Exhibit 10.1




 








ZIOPHARM
Oncology, Inc.


 


2012
Equity Incentive Plan


 


Adopted
by the Board of Directors: March 7, 2012


Approved
by the Stockholders: June 20, 2012


 


1.General.


 


(a)Status of
Prior Plan. The Plan is intended as a new equity incentive plan that is separate from the ZIOPHARM Oncology, Inc. Amended and
Restated 2003 Stock Option Plan (the “Prior Plan”). Following the Effective Date, no additional
stock awards may be granted under the Prior Plan. Any shares of Common Stock that are set aside under the Prior Plan’s share
reserve but which are not subject to any outstanding stock awards under the Prior Plan as of 12:01 a.m. Eastern Standard Time on
the Effective Date (the “Prior Plan’s Available Reserve”) will cease to be available for use under
the Prior Plan at such time and will be added to this Plan’s Share Reserve (as further described in Section 3(a)) and be
then immediately available for issuance pursuant to Stock Awards. In addition, from and after 12:01 a.m. Eastern Standard Time
on the Effective Date, all outstanding stock awards granted under the Prior Plan will remain subject to the terms of the Prior
Plan. All Awards granted on or after 12:01 a.m. Eastern Standard Time on the Effective Date of this Plan will be subject
to the terms of this Plan.


 


(b)Eligible
Award Recipients. Employees, Directors and Consultants are eligible to receive Awards.


 


(c)Available
Awards. The Plan provides for the grant of the following types of Awards: (i) Incentive Stock Options; (ii) Nonstatutory Stock
Options; (iii) Stock Appreciation Rights; (iv) Restricted Stock Awards; (v) Restricted Stock Unit Awards; (vi) Performance Stock
Awards, (vii) Performance Cash Awards; and (viii) Other Stock Awards.


 


(d)Purpose.
The Plan, through the granting of Awards, is intended to help the Company secure and retain the services of eligible award recipients,
provide incentives for such persons to exert maximum efforts for the success of the Company and any Affiliate and provide a means
by which the eligible recipients may benefit from increases in value of the Common Stock.


 


2.Administration.


 


(a)Administration
by Board. The Board will administer the Plan. The Board may delegate administration of the Plan to a Committee or Committees,
as provided in Section 2(c).


 


(b)Powers of
Board. The Board will have the power, subject to, and within the limitations of, the express provisions of the Plan:


 


(i)To determine:
(A) who will be granted Awards; (B) when and how each Award will be granted; (C) what type of Award will be granted; (D) the provisions
of each Award (which need not be identical), including when a person will be permitted to exercise or otherwise receive cash or
Common Stock under the Award; (E) the number of shares of


 



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Common Stock subject
to, or the cash value of, an Award; and (F) the Fair Market Value applicable to a Stock Award.


 


(ii)To construe
and interpret the Plan and Awards granted under it, and to establish, amend and revoke rules and regulations for administration
of the Plan and Awards. The Board, in the exercise of these powers, may correct any defect, omission or inconsistency in the Plan
or in any Award Agreement or in the written terms of a Performance Cash Award, in a manner and to the extent it will deem necessary
or expedient to make the Plan or Award fully effective.


 


(iii)To settle
all controversies regarding the Plan and Awards granted under it.


 


(iv)To accelerate,
in whole or in part, the time at which an Award may be exercised or vest (or at which cash or shares of Common Stock may be issued).


 


(v)To suspend
or terminate the Plan at any time. Except as otherwise provided in the Plan or an Award Agreement, suspension or termination of
the Plan will not materially impair a Participant’s rights under his or her then-outstanding Award without his or her written
consent except as provided in subsection (viii) below.


 


(vi)To amend
the Plan in any respect the Board deems necessary or advisable, including, without limitation, by adopting amendments relating
to Incentive Stock Options and certain nonqualified deferred compensation under Section 409A and/or to make the Plan or Awards
granted under the Plan exempt from or compliant therewith, subject to the limitations, if any, of applicable law. However, if required
by applicable law or listing requirements, and except as provided in Section 9(a) relating to Capitalization Adjustments,
the Company will seek stockholder approval of any amendment of the Plan that (A) materially increases the number of shares
of Common Stock available for issuance under the Plan, (B) materially expands the class of individuals eligible to receive
Awards under the Plan, (C) materially increases the benefits accruing to Participants under the Plan, (D) materially reduces
the price at which shares of Common Stock may be issued or purchased under the Plan, (E) materially extends the term of the
Plan, or (F) materially expands the types of Awards available for issuance under the Plan. Except as provided in the Plan
(including subsection (viii) below) or an Award Agreement, no amendment of the Plan will materially impair a Participant’s
rights under an outstanding Award without his or her written consent.


 


(vii)To submit
any amendment to the Plan for stockholder approval, including, but not limited to, amendments to the Plan intended to satisfy the
requirements of (A) Section 162(m) of the Code regarding the exclusion of performance-based compensation from the limit on corporate
deductibility of compensation paid to Covered Employees, (B) Section 422 of the Code regarding incentive stock options, or (C)
Rule 16b-3.


 



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(viii)To approve
forms of Award Agreements for use under the Plan and to amend the terms of any one or more Awards, including, but not limited to,
amendments to provide terms more favorable to the Participant than previously provided in the Award Agreement, subject to any specified
limits in the Plan that are not subject to Board discretion; provided, however, that a Participant’s rights under
any Award will not be impaired by any such amendment unless (A) the Company requests the consent of the affected Participant,
and (B) such Participant consents in writing. Notwithstanding the foregoing, (1) a Participant’s rights will not be
deemed to have been impaired by any such amendment if the Board, in its sole discretion, determines that the amendment, taken as
a whole, does not materially impair the Participant’s rights, and (2) subject to the limitations of applicable law, if any,
the Board may amend the terms of any one or more Awards without the affected Participant’s consent: (A) to maintain
the qualified status of the Award as an Incentive Stock Option under Section 422 of the Code; (B) to change the terms of an Incentive
Stock Option, if such change results in impairment of the Award solely because it impairs the qualified status of the Award as
an Incentive Stock Option under Section 422 of the Code; (C) to clarify the manner of exemption from, or to bring the Award
into compliance with, Section 409A; or (D) to comply with other applicable laws or listing requirements.


 


(ix)Generally,
to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the
Company and that are not in conflict with the provisions of the Plan or Awards.


 


(x)To adopt
such procedures and sub-plans as are necessary or appropriate to permit participation in the Plan by Employees, Directors or Consultants
who are foreign nationals or employed outside the United States (provided that Board approval will not be necessary for immaterial
modifications to the Plan or any Award Agreement that are required for compliance with the laws of the relevant foreign jurisdiction).


 


(c)Delegation
to Committee.


 


(i)General.
The Board may delegate some or all of the administration of the Plan to a Committee or Committees. If administration of the Plan
is delegated to a Committee, the Committee will have, in connection with the administration of the Plan, the powers theretofore
possessed by the Board that have been delegated to the Committee, including the power to delegate to a subcommittee of the Committee
any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board will thereafter
be to the Committee or subcommittee). Any delegation of administrative powers will be reflected in resolutions, not inconsistent
with the provisions of the Plan, adopted from time to time by the Board or Committee (as applicable). The Committee may, at any
time, abolish the subcommittee and/or revest in the Committee any powers delegated to the subcommittee. The Board may retain the
authority to concurrently administer the Plan with the Committee and may, at any time, revest in the Board some or all of the powers
previously delegated.


 


(ii)Section
162(m) and Rule 16b-3 Compliance. The Committee may consist solely of two (2) or more Outside
Directors, in accordance with Section 162(m) of the Code, or solely of two (2) or more Non-Employee Directors, in accordance with
Rule 16b-3.


 



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(d) Delegation
to an Officer. The Board may delegate to one (1) or more Officers the authority to do one or both of the following (i) designate
Employees who are not Officers to be recipients of Options and SARs (and, to the extent permitted by applicable law, other Stock
Awards) and, to the extent permitted by applicable law, the terms of such rights and options, and (ii) determine the number of
shares of Common Stock to be subject to such Stock Awards granted to such Employees; provided, however, that the Board resolutions
regarding such delegation will specify the total number of shares of Common Stock that may be subject to the Stock Awards granted
by such Officer and that such Officer may not grant a Stock Award to himself or herself. Any such Stock Awards will be granted
on the form of Award Agreement most recently approved for use by the Committee or the Board, unless otherwise provided in the resolutions
approving the delegation authority. The Board may not delegate authority to an Officer who is acting solely in the capacity of
an Officer (and not also as a Director) to determine the Fair Market Value pursuant to Section 13(y)(iii) below.


 


(e)Effect of
Board’s Decision. All determinations, interpretations and constructions made by the Board in good faith will not be subject
to review by any person and will be final, binding and conclusive on all persons.


 


(f)Cancellation
and Re-Grant of Stock Awards. Neither the Board nor any Committee will have the authority to: (i) reduce the exercise, purchase
or strike price of any outstanding Options or SAR under the Plan; or (ii) cancel any outstanding Options or SARs that have an exercise
price or strike price greater than the current Fair Market Value of the Common Stock in exchange for cash or other Stock Awards
under the Plan, unless the stockholders of the Company have approved such an action within twelve (12) months prior to such an
event.


 


3.Shares
Subject to the Plan.


 


(a)Share Reserve.



 


(i)Subject
to Section 9(a) relating to Capitalization Adjustments, the aggregate number of shares of Common Stock that may be issued pursuant
to Stock Awards from and after the Effective Date will not exceed (A) 4,000,000 shares (which
number is the sum of (1) the number of shares (seventy-nine thousand eight hundred thirty-six (79,836)) subject to the Prior Plans’
Available Reserve and (2) an additional three million nine hundred twenty thousand one hundred sixty-four (3,920,164) new shares)
(the “Share Reserve”).


 


(ii)For clarity,
the Share Reserve in this Section 3(a) is a limitation on the number of shares of Common Stock that may be issued pursuant to the
Plan. Accordingly, this Section 3(a) does not limit the granting of Stock Awards except as provided in Section 7(a). Shares may
be issued in connection with a merger or acquisition as permitted by NASDAQ Listing Rule 5635(c) or, if applicable, NYSE Listed
Company Manual Section 303A.08, AMEX Company Guide Section 711 or other applicable rule, and such issuance will not reduce the
number of shares available for issuance under the Plan.


 


(b)Reversion
of Shares to the Share Reserve. If a Stock Award or any portion thereof (i) expires or otherwise terminates without all of
the shares covered by such Stock Award having been issued or (ii) is settled in cash (i.e., the Participant receives cash
rather than stock), such expiration, termination or settlement will not reduce (or otherwise offset) the number of shares of Common
Stock that may be available for issuance under the Plan. If any shares of Common Stock issued pursuant to a Stock Award are forfeited
back to or repurchased by the Company because of the failure to meet a contingency or condition required to vest such shares in
the Participant, then the shares that are forfeited or repurchased will revert to and again become available for issuance under
the Plan. Any shares reacquired by the Company in satisfaction of tax withholding obligations on a Stock Award or as consideration
for the exercise or purchase price of a Stock Award will again become available for issuance under the Plan.


 



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(c)Incentive
Stock Option Limit. Subject to Section 9(a) relating to Capitalization Adjustments, the aggregate maximum number of shares
of Common Stock that may be issued pursuant to the exercise of Incentive Stock Options will be 9,000,000 shares of Common Stock.


 


(d)Section 162(m)
Limitations. Subject to Section 9(a) relating to Capitalization Adjustments, at such time as the Company may be subject to
the applicable provisions of Section 162(m) of the Code, the following limitations shall apply.


 


(i)A maximum
of 2,000,000 shares of Common Stock subject to Options, SARs and Other Stock Awards whose value is determined by reference
to an increase over an exercise or strike price of at least one hundred percent (100%) of the Fair Market Value on the date
any such Stock Award is granted may be granted to any Participant during any calendar year. Notwithstanding the foregoing, if any
additional Options, SARs or Other Stock Awards whose value is determined by reference to an increase over an exercise or strike
price of at least one hundred percent (100%) of the Fair Market Value on the date the Stock Award are granted to any Participant
during any calendar year, compensation attributable to the exercise of such additional Stock Awards will not satisfy the requirements
to be considered “qualified performance-based compensation” under Section 162(m) of the Code unless such additional
Stock Award is approved by the Company’s stockholders.


 


(ii)A maximum
of 2,000,000 shares of Common Stock subject to Performance Stock Awards may be granted to any one Participant during any one calendar
year (whether the grant, vesting or exercise is contingent upon the attainment during the Performance Period of the Performance
Goals).


 


(iii)A maximum
of $2,000,000 may be granted as a Performance Cash Award to any one Participant during any one calendar year.


 


If a Performance Stock
Award is in the form of an Option, it will count only against the Performance Stock Award limit. If a Performance Stock Award could
be paid out in cash, it will count only against the Performance Stock Award limit.


 


(e)Source of
Shares. The stock issuable under the Plan will be shares of authorized but unissued or reacquired Common Stock, including shares
repurchased by the Company on the open market or otherwise.


 


4.Eligibility.


 


(a)Eligibility
for Specific Stock Awards. Incentive Stock Options may be granted only to employees of the Company or a “parent corporation”
or “subsidiary corporation” thereof (as such terms are defined in Sections 424(e) and 424(f) of the Code). Stock Awards
other than Incentive Stock Options may be granted to Employees, Directors and Consultants; provided, however, that Stock
Awards may not be granted to Employees, Directors and Consultants who are providing Continuous Service only to any “parent”
of the Company, as such term is defined in Rule 405, unless (i) the stock underlying such Stock Awards is treated as “service
recipient stock” under Section 409A (for example, because the Stock Awards are granted pursuant to a corporate transaction
such as a spin off transaction) or (ii) the Company, in consultation with its legal counsel, has determined that such Stock Awards
are otherwise exempt from or alternatively comply with the distribution requirements of Section 409A.


 



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(b)Ten Percent
Stockholders. A Ten Percent Stockholder will not be granted an Incentive Stock Option unless the exercise price of such Option
is at least one hundred ten percent (110%) of the Fair Market Value on the date of grant and the Option is not exercisable after
the expiration of five (5) years from the date of grant.


 


5.Provisions
relating to Options and Stock Appreciation Rights.


 


Each Option or SAR
will be in such form and will contain such terms and conditions as the Board deems appropriate. All Options will be separately
designated Incentive Stock Options or Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate
certificate or certificates will be issued for shares of Common Stock purchased on exercise of each type of Option. If an Option
is not specifically designated as an Incentive Stock Option, or if an Option is designated as an Incentive Stock Option but some
portion or all of the Option fails to qualify as an Incentive Stock Option under the applicable rules, then the Option (or portion
thereof) will be a Nonstatutory Stock Option. The provisions of separate Options or SARs need not be identical; provided, however,
that each Award Agreement will conform to (through incorporation of provisions hereof by reference in the applicable Award Agreement
or otherwise) the substance of each of the following provisions:


 


(a)Term.
Subject to the provisions of Section 4(b) regarding Ten Percent Stockholders, no Option or SAR will be exercisable after the expiration
of ten (10) years from the date of its grant or such shorter period specified in the Award Agreement.


 


(b)Exercise
Price. Subject to the provisions of Section 4(b) regarding Ten Percent Stockholders, the exercise or strike price of each Option
or SAR will be not less than one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Option or SAR
on the date the Award is granted. Notwithstanding the foregoing, an Option or SAR may be granted with an exercise or strike price
lower than one hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Award if such Award is granted
pursuant to an assumption of or substitution for another option or stock appreciation right pursuant to a Corporate Transaction
and in a manner consistent with the provisions of Section 409A and, if applicable, Section 424(a) of the Code. Each
SAR will be denominated in shares of Common Stock equivalents.


 


(c)Purchase
Price for Options. The purchase price of Common Stock acquired pursuant to the exercise of an Option may be paid, to the extent
permitted by applicable law and as determined by the Board in its sole discretion, by any combination of the methods of payment
set forth below. The Board will have the authority to grant Options that do not permit all of the following methods of payment
(or otherwise restrict the ability to use certain methods) and to grant Options that require the consent of the Company to use
a particular method of payment. The permitted methods of payment are as follows:


 



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(i)by cash,
check, bank draft or money order payable to the Company;


 


(ii)pursuant
to a program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the issuance of the stock
subject to the Option, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions
to pay the aggregate exercise price to the Company from the sales proceeds;


 


(iii)by delivery
to the Company (either by actual delivery or attestation) of shares of Common Stock;


 


(iv)if an
Option is a Nonstatutory Stock Option, by a “net exercise” arrangement pursuant to which the Company will reduce the
number of shares of Common Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value that does
not exceed the aggregate exercise price; provided, however, that the Company will accept a cash or other payment from the
Participant to the extent of any remaining balance of the aggregate exercise price not satisfied by such reduction in the number
of whole shares to be issued. Shares of Common Stock will no longer be subject to an Option and will not be exercisable thereafter
to the extent that (A) shares issuable upon exercise are used to pay the exercise price pursuant to the “net exercise,”
(B) shares are delivered to the Participant as a result of such exercise, and (C) shares are withheld to satisfy tax withholding
obligations; or


 


(v)in any
other form of legal consideration that may be acceptable to the Board and specified in the applicable Award Agreement.


 


(d)Exercise
and Payment of a SAR. To exercise any outstanding SAR, the Participant must provide written notice of exercise to the Company
in compliance with the provisions of the Award Agreement evidencing such SAR. The appreciation distribution payable on the exercise
of a SAR will be not greater than an amount equal to the excess of (A) the aggregate Fair Market Value (on the date of the exercise
of the SAR) of a number of shares of Common Stock equal to the number of Common Stock equivalents in which the Participant is vested
under such SAR, and with respect to which the Participant is exercising the SAR on such date, over (B) the aggregate strike price
of the number of Common Stock equivalents with respect to which the Participant is exercising the SAR on such date. The appreciation
distribution may be paid in Common Stock, in cash, in any combination of the two or in any other form of consideration, as determined
by the Board and contained in the Award Agreement evidencing such SAR.


 


(e)Transferability
of Options and SARs. The Board may, in its sole discretion, impose such limitations on the transferability of Options and SARs
as the Board will determine. In the absence of such a determination by the Board to the contrary, the following restrictions on
the transferability of Options and SARs will apply:


 


(i)Restrictions
on Transfer. An Option or SAR will not be transferable except by will or by the laws of descent and distribution (or pursuant
to subsections (ii) and (iii) below), and will be exercisable during the lifetime of the Participant only by the Participant. The
Board may permit transfer of the Option or SAR in a manner that is not prohibited by applicable tax and securities laws. Except
as explicitly provided herein, neither an Option nor a SAR may be transferred for consideration.


 



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(ii)Domestic Relations
Orders. Subject to the approval of the Board or a duly authorized Officer, an Option or SAR may be transferred pursuant to
the terms of a domestic relations order, official marital settlement agreement or other divorce or separation instrument as permitted
by Treasury Regulation 1.421-1(b)(2). If an Option is an Incentive Stock Option, such Option may be deemed to be a Nonstatutory
Stock Option as a result of such transfer.


 


(iii)Beneficiary
Designation. Subject to the approval of the Board or a duly authorized Officer, a Participant may, by delivering written notice
to the Company, in a form approved by the Company (or the designated broker), designate a third party who, on the death of the
Participant, will thereafter be entitled to exercise the Option or SAR and receive the Common Stock or other consideration resulting
from such exercise. In the absence of such a designation, the executor or administrator of the Participant’s estate will
be entitled to exercise the Option or SAR and receive the Common Stock or other consideration resulting from such exercise. However,
the Company may prohibit designation of a beneficiary at any time, including due to any conclusion by the Company that such designation
would be inconsistent with the provisions of applicable laws.


 


(f)Vesting Generally.
The total number of shares of Common Stock subject to an Option or SAR may vest and therefore become exercisable in periodic installments
that may or may not be equal. The Option or SAR may be subject to such other terms and conditions on the time or times when it
may or may not be exercised (which may be based on the satisfaction of Performance Goals or other criteria) as the Board may deem
appropriate. The vesting provisions of individual Options or SARs may vary. The provisions of this Section 5(f) are subject to
any Option or SAR provisions governing the minimum number of shares of Common Stock as to which an Option or SAR may be exercised.


 


(g)Termination
of Continuous Service. Except as otherwise provided in the applicable Award Agreement or
other agreement between the Participant and the Company, if a Participant’s Continuous Service terminates (other than for
Cause and other than upon the Participant’s death or Disability), the Participant may exercise his or her Option or SAR (to
the extent that the Participant was entitled to exercise such Award as of the date of termination of Continuous Service) within
the period of time ending on the earlier of (i) the date three (3) months following the termination of the Participant’s
Continuous Service (or such longer or shorter period specified in the applicable Award Agreement), and (ii) the expiration of the
term of the Option or SAR as set forth in the Award Agreement. If, after termination of Continuous Service, the Participant does
not exercise his or her Option or SAR within the applicable time frame, the Option or SAR will terminate.


 



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(h)Extension
of Termination Date. Except as otherwise provided in the applicable Award Agreement or other
agreement between the Participant and the Company, if the exercise of an Option or SAR following the termination of the
Participant’s Continuous Service (other than for Cause and other than upon the Participant’s death or Disability) would
be prohibited at any time solely because the issuance of shares of Common Stock would violate the registration requirements under
the Securities Act, then the Option or SAR will terminate on the earlier of (i) the expiration of a total period of three (3) months
(that need not be consecutive) after the termination of the Participant’s Continuous Service during which the exercise of
the Option or SAR would not be in violation of such registration requirements, or (ii) the expiration of the term of the Option
or SAR as set forth in the applicable Award Agreement. In addition, unless otherwise provided in a Participant’s Award Agreement,
if the sale of any Common Stock received upon exercise of an Option or SAR following the termination of the Participant’s
Continuous Service (other than for Cause) would violate the Company’s insider trading policy, then the Option or SAR will
terminate on the earlier of (i) the expiration of a period of months (that need not be consecutive) equal to the applicable post-termination
exercise period after the termination of the Participant’s Continuous Service during which the sale of the Common Stock received
upon exercise of the Option or SAR would not be in violation of the Company’s insider trading policy, or (ii) the expiration
of the term of the Option or SAR as set forth in the applicable Award Agreement.


 


(i)Disability
of Participant. Except as otherwise provided in the applicable Award Agreement or other agreement
between the Participant and the Company, if a Participant’s Continuous Service terminates as a result of the Participant’s
Disability, the Participant may exercise his or her Option or SAR (to the extent that the Participant was entitled to exercise
such Option or SAR as of the date of termination of Continuous Service), but only within such period of time ending on the earlier
of (i) the date twelve (12) months following such termination of Continuous Service (or such longer or shorter period specified
in the Award Agreement), and (ii) the expiration of the term of the Option or SAR as set forth in the Award Agreement. If,
after termination of Continuous Service, the Participant does not exercise his or her Option or SAR within the applicable time
frame, the Option or SAR (as applicable) will terminate.


 


(j)Death
of Participant. Except as otherwise provided in the applicable Award Agreement or other agreement
between the Participant and the Company, if (i) a Participant’s Continuous Service terminates as a result of the Participant’s
death, or (ii) the Participant dies within the period (if any) specified in the Award Agreement for exercisability after the termination
of the Participant’s Continuous Service (for a reason other than death), then the Option or SAR may be exercised (to the
extent the Participant was entitled to exercise such Option or SAR as of the date of death) by the Participant’s estate,
by a person who acquired the right to exercise the Option or SAR by bequest or inheritance or by a person designated to exercise
the Option or SAR upon the Participant’s death, but only within the period ending on the earlier of (i) the date eighteen
(18) months following the date of death (or such longer or shorter period specified in the Award Agreement), and (ii) the expiration
of the term of such Option or SAR as set forth in the Award Agreement. If, after the Participant’s death, the Option or SAR
is not exercised within the applicable time frame, the Option or SAR will terminate.


 


(k)Termination
for Cause. Except as explicitly provided otherwise in a Participant’s Award Agreement
or other individual written agreement between the Company or any Affiliate and the Participant, if a Participant’s Continuous
Service is terminated for Cause, the Option or SAR will terminate immediately upon such Participant’s termination of Continuous
Service, and the Participant will be prohibited from exercising his or her Option or SAR from and after the time of such termination
of Continuous Service.


 



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(l)Non-Exempt
Employees. If an Option or SAR is granted to an Employee who is a non-exempt employee for purposes of the Fair Labor Standards
Act of 1938, as amended, the Option or SAR will not be first exercisable for any shares of Common Stock until at least six (6)
months following the date of grant of the Option or SAR (although the Award may vest prior to such date). Consistent with the provisions
of the Worker Economic Opportunity Act, (i) if such non-exempt Employee dies or suffers a Disability, (ii) upon a Corporate Transaction
in which such Option or SAR is not assumed, continued, or substituted, (iii) upon a Change in Control, or (iv) upon the Participant’s
retirement (as such term may be defined in the Participant’s Award Agreement, in another agreement between the Participant
and the Company, or, if no such definition, in accordance with the Company's then current employment policies and guidelines),
the vested portion of any Options and SARs may be exercised earlier than six (6) months following the date of grant. The foregoing
provision is intended to operate so that any income derived by a non-exempt employee in connection with the exercise or vesting
of an Option or SAR will be exempt from his or her regular rate of pay. To the extent permitted and/or required for compliance
with the Worker Economic Opportunity Act to ensure that any income derived by a non-exempt employee in connection with the exercise,
vesting or issuance of any shares under any other Stock Award will be exempt from the employee’s regular rate of pay, the
provisions of this Section 5(l) will apply to all Stock Awards and are hereby incorporated by reference into such Stock Award Agreements.


 


6.Provisions
of Stock Awards other than Options and SARs.


 


(a)Restricted
Stock Awards. Each Restricted Stock Award Agreement will be in such form and will contain such terms and conditions as the
Board deems appropriate. To the extent consistent with the Company’s bylaws, at the Board’s
election, shares of Common Stock may be (i) held in book entry form subject to the Company’s instructions until any restrictions
relating to the Restricted Stock Award lapse, or (ii) evidenced by a certificate, which certificate will be held in such form
and manner as determined by the Board. The terms and conditions of Restricted Stock Award Agreements may change from time to time,
and the terms and conditions of separate Restricted Stock Award Agreements need not be identical.  Each Restricted Stock
Award Agreement will conform to (through incorporation of the provisions hereof by reference in the agreement or otherwise) the
substance of each of the following provisions:


 


(i)Consideration.
A Restricted Stock Award may be awarded in consideration for (A) cash, check, bank draft or money order payable to the Company,
(B) past services to the Company or an Affiliate, or (C) any other form of legal consideration (including future services) that
may be acceptable to the Board, in its sole discretion, and permissible under applicable law.


 


(ii)Vesting. Shares
of Common Stock awarded under the Restricted Stock Award Agreement may be subject to forfeiture to the Company in accordance with
a vesting schedule to be determined by the Board.


 


(iii)Termination
of Participant’s Continuous Service. If a Participant’s Continuous Service terminates, the Company may receive
through a forfeiture condition or a repurchase right any or all of the shares of Common Stock held by the Participant that have
not vested as of the date of termination of Continuous Service under the terms of the Restricted Stock Award Agreement.


 



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(iv)Transferability.
Rights to acquire shares of Common Stock under the Restricted Stock Award Agreement will be transferable by the Participant only
upon such terms and conditions as are set forth in the Restricted Stock Award Agreement, as the Board will determine in its sole
discretion, so long as Common Stock awarded under the Restricted Stock Award Agreement remains subject to the terms of the Restricted
Stock Award Agreement.


 


(v)Dividends.
A Restricted Stock Award Agreement may provide that any dividends paid on Restricted Stock will be subject to the same vesting
and forfeiture restrictions as apply to the shares subject to the Restricted Stock Award to which they relate.


 


(b)Restricted
Stock Unit Awards. Each Restricted Stock Unit Award Agreement will be in such form and will
contain such terms and conditions as the Board deems appropriate. The terms and conditions of Restricted Stock Unit Award Agreements
may change from time to time, and the terms and conditions of separate Restricted Stock Unit Award Agreements need not be identical.
Each Restricted Stock Unit Award Agreement will conform to (through incorporation of the provisions hereof by reference in the
Agreement or otherwise) the substance of each of the following provisions:


 


(i)Consideration.
At the time of grant of a Restricted Stock Unit Award, the Board will determine the consideration, if any, to be paid by the Participant
upon delivery of each share of Common Stock subject to the Restricted Stock Unit Award. The consideration to be paid (if any) by
the Participant for each share of Common Stock subject to a Restricted Stock Unit Award may be paid in any form of legal consideration
that may be acceptable to the Board, in its sole discretion, and permissible under applicable law.


 


(ii)Vesting.
At the time of the grant of a Restricted Stock Unit Award, the Board may impose such restrictions
on or conditions to the vesting of the Restricted Stock Unit Award as it, in its sole discretion, deems appropriate.


 


(iii)Payment.
A Restricted Stock Unit Award may be settled by the delivery of shares of Common Stock, their cash equivalent, any combination
thereof or in any other form of consideration, as determined by the Board and contained in the Restricted Stock Unit Award Agreement.


 


(iv)Additional
Restrictions. At the time of the grant of a Restricted Stock Unit Award, the Board, as it
deems appropriate, may impose such restrictions or conditions that delay the delivery of the shares of Common Stock (or their cash
equivalent) subject to a Restricted Stock Unit Award to a time after the vesting of such Restricted Stock Unit Award.


 


(v)Dividend
Equivalents. Dividend equivalents may be credited in respect of shares of Common Stock covered
by a Restricted Stock Unit Award, as determined by the Board and contained in the Restricted Stock Unit Award Agreement. At the
sole discretion of the Board, such dividend equivalents may be converted into additional shares of Common Stock covered by the
Restricted Stock Unit Award in such manner as determined by the Board. Any additional shares covered by the Restricted Stock Unit
Award credited by reason of such dividend equivalents will be subject to all of the same terms and conditions of the underlying
Restricted Stock Unit Award Agreement to which they relate.


 



    	11.



    	 



    



(vi)Termination
of Participant’s Continuous Service. Except as otherwise provided in the applicable
Restricted Stock Unit Award Agreement, such portion of the Restricted Stock Unit Award that has not vested will be forfeited upon
the Participant’s termination of Continuous Service.


 


(c)Performance
Awards.


 


(i)Performance
Stock Awards. A Performance Stock Award is a Stock Award (covering a number of shares not in excess of that set forth in Section
3(d)(ii) above) that is payable (including that may be granted, vest or exercised) contingent upon the attainment during a Performance
Period of certain Performance Goals. A Performance Stock Award may, but need not, require the completion of a specified period
of Continuous Service. The length of any Performance Period, the Performance Goals to be achieved during the Performance Period,
and the measure of whether and to what degree such Performance Goals have been attained will be conclusively determined by the
Committee (or, if not required for compliance with Section 162(m) of the Code, the Board), in its sole discretion. In addition,
to the extent permitted by applicable law and the applicable Award Agreement, the Board may determine that cash may be used in
payment of Performance Stock Awards.


 


(ii)Performance
Cash Awards. A Performance Cash Award is a cash award (for a dollar value not in excess of that set forth in Section 3(d)(iii)
above) that is payable contingent upon the attainment during a Performance Period of certain Performance Goals. A Performance Cash
Award may also require the completion of a specified period of Continuous Service. At the time of grant of a Performance Cash Award,
the length of any Performance Period, the Performance Goals to be achieved during the Performance Period, and the measure of whether
and to what degree such Performance Goals have been attained will be conclusively determined by the Committee (or, if not required
for compliance with Section 162(m) of the Code, the Board), in its sole discretion. The Board may specify the form of payment of
Performance Cash Awards, which may be cash or other property, or may provide for a Participant to have the option for his or her
Performance Cash Award, or such portion thereof as the Board may specify, to be paid in whole or in part in cash or other property.


 


(iii)Board Discretion.
The Board retains the discretion to reduce or eliminate the compensation or economic benefit due upon attainment of Performance
Goals and to define the manner of calculating the Performance Criteria it selects to use for a Performance Period.


 


(iv)Section 162(m)
Compliance. Unless otherwise permitted in compliance with the requirements of Section 162(m) of the Code with respect to an
Award intended to qualify as “performance-based compensation” thereunder, the Committee will establish the Performance
Goals applicable to, and the formula for calculating the amount payable under, the Award no later than the earlier of (A) the date
ninety (90) days after the commencement of the applicable Performance Period, and (B) the date on which twenty-five percent (25%)
of the Performance Period has elapsed, and in any event at a time when the achievement of the applicable Performance Goals remains
substantially uncertain. Prior to the payment of any compensation under an Award intended to qualify as “performance-based
compensation” under Section 162(m) of the Code, the Committee will certify the extent to which any Performance Goals
and any other material terms under such Award have been satisfied (other than in cases where such relate solely to the increase
in the value of the Common Stock). Notwithstanding satisfaction of any completion of any Performance Goals, Options, cash or other
benefits granted, issued, retainable and/or vested under an Award on account of satisfaction of such Performance Goals may be reduced
by the Committee on the basis of such further considerations as the Committee, in its sole discretion, will determine.


 



    	12.



    	 



    



(d)Other
Stock Awards. Other forms of Stock Awards valued in whole or in part by reference
to, or otherwise based on, Common Stock, including the appreciation in value thereof (e.g., options or stock rights with
an exercise price or strike price less than 100% of the Fair Market Value of the Common Stock at the time of grant) may be granted
either alone or in addition to Stock Awards provided for under Section 5 and the preceding provisions of this Section 6. Subject
to the provisions of the Plan, the Board will have sole and complete authority to determine the persons to whom and the time or
times at which such Other Stock Awards will be granted, the number of shares of Common Stock (or the cash equivalent thereof) to
be granted pursuant to such Other Stock Awards and all other terms and conditions of such Other Stock Awards.


 


7.Covenants
of the Company.


 


(a)Availability
of Shares. The Company will keep available at all times the number of shares of Common Stock reasonably required to satisfy
then-outstanding Stock Awards.


 


(b)Securities
Law Compliance. The Company will seek to obtain from each regulatory commission or agency having jurisdiction over the Plan
such authority as may be required to grant Stock Awards and to issue and sell shares of Common Stock upon exercise of the Stock
Awards; provided, however, that this undertaking will not require the Company to register under the Securities Act the Plan,
any Stock Award or any Common Stock issued or issuable pursuant to any such Stock Award. If, after reasonable efforts and at a
reasonable cost, the Company is unable to obtain from any such regulatory commission or agency the authority that counsel for the
Company deems necessary for the lawful issuance and sale of Common Stock under the Plan, the Company will be relieved from any
liability for failure to issue and sell Common Stock upon exercise of such Stock Awards unless and until such authority is obtained.
A Participant will not be eligible for the grant of an Award or the subsequent issuance of cash or Common Stock pursuant to the
Award if such grant or issuance would be in violation of any applicable securities law.


 


(c)No Obligation
to Notify or Minimize Taxes. The Company will have no duty or obligation to any Participant to advise such holder as to the
time or manner of exercising such Stock Award. Furthermore, the Company will have no duty or obligation to warn or otherwise advise
such holder of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised. The
Company has no duty or obligation to minimize the tax consequences of an Award to the holder of such Award.


 



    	13.



    	 



    



8.Miscellaneous.


 


(a)Use of Proceeds
from Sales of Common Stock. Proceeds from the sale of shares of Common Stock pursuant to Stock Awards will constitute general
funds of the Company.


 


(b)Corporate
Action Constituting Grant of Awards. Corporate action constituting a grant by the Company of an Award to any Participant will
be deemed completed as of the date of such corporate action, unless otherwise determined by the Board, regardless of when the instrument,
certificate, or letter evidencing the Award is communicated to, or actually received or accepted by, the Participant. In the event
that the corporate records (e.g., Board consents, resolutions or minutes) documenting the corporate action constituting the grant
contain terms (e.g., exercise price, vesting schedule or number of shares) that are inconsistent with those in the Award Agreement
as a result of a clerical error in the papering of the Award Agreement, the corporate records will control and the Participant
will have no legally binding right to the incorrect term in the Award Agreement.


 


(c)Stockholder
Rights. No Participant will be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares
of Common Stock subject to an Award unless and until (i) such Participant has satisfied all requirements for exercise of, or the
issuance of shares of Common Stock under, the Award pursuant to its terms, and (ii) the issuance of the Common Stock subject to
such Award has been entered into the books and records of the Company.


 


(d)No Employment
or Other Service Rights. Nothing in the Plan, any Award Agreement or any other instrument executed
thereunder or in connection with any Award granted pursuant thereto will confer upon any Participant any right to continue
to serve the Company or an Affiliate in the capacity in effect at the time the Award was granted or will affect the right of the
Company or an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without cause, including,
but not limited to, Cause, (ii) the service of a Consultant pursuant to the terms of such Consultant’s agreement with the
Company or an Affiliate, or (iii) the service of a Director pursuant to the bylaws of the Company or an Affiliate, and any applicable
provisions of the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may be.


 


(e)Change in
Time Commitment. In the event a Participant’s regular level of time commitment in the performance of his or her services
for the Company and any Affiliates is reduced (for example, and without limitation, if the Participant is an Employee of the Company
and the Employee has a change in status from a full-time Employee to a part-time Employee) after the date of grant of any Award
to the Participant, the Board has the right in its sole discretion to (i) make a corresponding reduction in the number of shares
or cash amount subject to any portion of such Award that is scheduled to vest or become payable after the date of such change in
time commitment, and (ii) in lieu of or in combination with such a reduction, extend the vesting or payment schedule applicable
to such Award. In the event of any such reduction, the Participant will have no right with respect to any portion of the Award
that is so reduced or extended.


 



    	14.



    	 



    



(f)Incentive
Stock Option Limitations. To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock
with respect to which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under
all plans of the Company and any Affiliates) exceeds one hundred thousand dollars ($100,000) (or such other limit established in
the Code) or otherwise does not comply with the rules governing Incentive Stock Options, the Options or portions thereof that exceed
such limit (according to the order in which they were granted) or otherwise do not comply with such rules will be treated as Nonstatutory
Stock Options, notwithstanding any contrary provision of the applicable Option Agreement(s).


 


(g)Investment
Assurances. The Company may require a Participant, as a condition of exercising or acquiring Common Stock under any Award,
(i) to give written assurances satisfactory to the Company as to the Participant’s knowledge and experience in financial
and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and
experienced in financial and business matters and that he or she is capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising the Award; and (ii) to give written assurances satisfactory to the Company stating
that the Participant is acquiring Common Stock subject to the Award for the Participant’s own account and not with any present
intention of selling or otherwise distributing the Common Stock. The foregoing requirements, and any assurances given pursuant
to such requirements, will be inoperative if (A) the issuance of the shares upon the exercise or acquisition of Common Stock under
the Stock Award has been registered under a then currently effective registration statement under the Securities Act, or (B) as
to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws. The Company may, upon advice of counsel to the Company, place legends
on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply with applicable securities
laws, including, but not limited to, legends restricting the transfer of the Common Stock.


 


(h)Withholding
Obligations. Unless prohibited by the terms of an Award Agreement, the Company may, in its sole
discretion, satisfy any federal, state or local tax withholding obligation relating to an Award by any of the following means (in
addition to the Company’s right to withhold from any compensation paid to the Participant by the Company) or by a combination
of such means: (i) causing the Participant to tender a cash payment; (ii)  withholding shares of Common Stock from the
shares of Common Stock issued or otherwise issuable to the Participant in connection with the Stock Award; provided, however,
that no shares of Common Stock are withheld with a value exceeding the minimum amount of tax required to be withheld by law
(or such lesser amount as may be necessary to avoid classification of the Stock Award as a liability for financial accounting purposes);
(iii) withholding cash from an Award settled in cash; (iv) withholding payment from any amounts otherwise payable to the Participant;
or (v) by such other method as may be set forth in the Award Agreement.


 


(i)Electronic
Delivery. Any reference herein to a “written” agreement or document will include any agreement or document delivered
electronically, filed publicly at www.sec.gov (or any successor website thereto) or posted on the Company’s intranet (or
other shared electronic medium controlled by the Company to which the Participant has access).


 



    	15.



    	 



    



(j)Deferrals.
To the extent permitted by applicable law, the Board, in its sole discretion, may determine that the delivery of Common Stock or
the payment of cash, upon the exercise, vesting or settlement of all or a portion of any Award may be deferred and may establish
programs and procedures for deferral elections to be made by Participants. Deferrals by Participants will be made in accordance
with Section 409A. Consistent with Section 409A, the Board may provide for distributions while a Participant is still an employee
or otherwise providing services to the Company. The Board is authorized to make deferrals of Awards and determine when, and in
what annual percentages, Participants may receive payments, including lump sum payments, following the Participant’s termination
of Continuous Service, and implement such other terms and conditions consistent with the provisions of the Plan and in accordance
with applicable law.


 


(k)Compliance
with Section 409A. Unless otherwise expressly provided for in an Award Agreement, the Plan and Award Agreements will be interpreted
to the greatest extent possible in a manner that makes the Plan and the Awards granted hereunder exempt from Section 409A of the
Code, and, to the extent not so exempt, in compliance with Section 409A of the Code. If the Board determines that any Award granted
hereunder is not exempt from and is therefore subject to Section 409A of the Code, the Award Agreement evidencing such Award will
incorporate the terms and conditions necessary to avoid the consequences specified in Section 409A(a)(1) of the Code and to the
extent an Award Agreement is silent on terms necessary for compliance, such terms are hereby incorporated by reference into the
Award Agreement. Notwithstanding anything to the contrary in this Plan (and unless the Award Agreement specifically provides otherwise),
if the shares of Common Stock are publicly traded, and if a Participant holding an Award that constitutes “deferred compensation”
under Section 409A of the Code is a “specified employee” for purposes of Section 409A of the Code, no distribution
or payment of any amount that is due because of a “separation from service” (as defined in Section 409A of the Code
without regard to alternative definitions thereunder) will be issued or paid before the date that is six (6) months following
the date of such Participant’s “separation from service” or, if earlier, the date of the Participant’s
death, unless such distribution or payment can be made in a manner that complies with Section 409A of the Code, and any amounts
so deferred will be paid in a lump sum on the day after such six (6) month period elapses, with the balance paid thereafter on
the original schedule.


 


(l)Clawback/Recovery.
All Awards granted under the Plan will be subject to recoupment in accordance with any clawback policy that the Company is required
to adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities
are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law.
In addition, the Board may impose such other clawback, recovery or recoupment provisions in an Award Agreement as the Board determines
necessary or appropriate, including but not limited to a reacquisition right in respect of previously acquired shares of Common
Stock or other cash or property upon the occurrence of Cause. No recovery of compensation under such a clawback policy will be
an event giving rise to a right to resign for “good reason” or “constructive termination” (or similar term)
under any agreement with the Company.


 



    	16.



    	 



    



9.Adjustments
upon Changes in Common Stock; Other Corporate Events.


 


(a)Capitalization
Adjustments. In the event of a Capitalization Adjustment, the Board will appropriately and proportionately adjust: (i) the
class(es) and maximum number of securities subject to the Plan pursuant to Section 3(a); (ii) the class(es) and maximum number
of securities that may be issued pursuant to the exercise of Incentive Stock Options pursuant to Section 3(c); (iii) the class(es)
and maximum number of securities that may be awarded to any person pursuant to Sections 3(d); and (iv) the class(es) and number
of securities and price per share of stock subject to outstanding Stock Awards. The Board will make such adjustments, and its determination
will be final, binding and conclusive.


 


(b)Dissolution
or Liquidation. Except as otherwise provided in the Stock Award Agreement, in the event of a dissolution or liquidation of
the Company, all outstanding Stock Awards (other than Stock Awards consisting of vested and outstanding shares of Common Stock
not subject to a forfeiture condition or the Company’s right of repurchase) will terminate immediately prior to the completion
of such dissolution or liquidation, and the shares of Common Stock subject to the Company’s repurchase rights or subject
to a forfeiture condition may be repurchased or reacquired by the Company notwithstanding the fact that the holder of such Stock
Award is providing Continuous Service; provided, however, that the Board may, in its sole discretion, cause some or all
Stock Awards to become fully vested, exercisable and/or no longer subject to repurchase or forfeiture (to the extent such Stock
Awards have not previously expired or terminated) before the dissolution or liquidation is completed but contingent on its completion.


 


(c)Corporate
Transaction. The following provisions will apply to Stock Awards in the event of a Corporate Transaction unless otherwise provided
in the instrument evidencing the Stock Award or any other written agreement between the Company or any Affiliate and the Participant
or unless otherwise expressly provided by the Board at the time of grant of a Stock Award. In the event of a Corporate Transaction,
then, notwithstanding any other provision of the Plan, the Board may take one or more of the following actions with respect to
Stock Awards, contingent upon the closing or consummation of the Corporate Transaction:


 


(i)arrange
for the surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s parent company) to assume
or continue the Stock Award or to substitute a similar stock award for the Stock Award (including, but not limited to, an award
to acquire the same consideration paid to the stockholders of the Company pursuant to the Corporate Transaction);


 


(ii)arrange
for the assignment of any reacquisition or repurchase rights held by the Company in respect of Common Stock issued pursuant to
the Stock Award to the surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s parent
company);


 



    	17.



    	 



    



(iii)accelerate
the vesting, in whole or in part, of the Stock Award (and, if applicable, the time at which the Stock Award may be exercised) to
a date prior to the effective time of such Corporate Transaction as the Board determines (or, if the Board does not determine such
a date, to the date that is five (5) days prior to the effective date of the Corporate Transaction), with such Stock Award terminating
if not exercised (if applicable) at or prior to the effective time of the Corporate Transaction; provided, however, that
the Board may require Participants to complete and deliver to the Company a notice of exercise before the effective date of a Corporate
Transaction, which exercise is contingent upon the effectiveness of such Corporate Transaction;


 


(iv)arrange
for the lapse, in whole or in part, of any reacquisition or repurchase rights held by the Company with respect to the Stock Award;


 


(v)cancel
or arrange for the cancellation of the Stock Award, to the extent not vested or not exercised prior to the effective time of the
Corporate Transaction, in exchange for such cash consideration, if any, as the Board, in its sole discretion, may consider appropriate;
and


 


(vi)make a
payment, in such form as may be determined by the Board equal to the excess, if any, of (A) the value of the property the Participant
would have received upon the exercise of the Stock Award immediately prior to the effective time of the Corporate Transaction,
over (B) any exercise price payable by such holder in connection with such exercise. For clarity,
this payment may be zero ($0) if the value of the property is equal to or less than the exercise price. Payments under this provision
may be delayed to the same extent that payment of consideration to the holders of the Company’s Common Stock in connection
with the Corporate Transaction is delayed as a result of escrows, earn outs, holdbacks or any other contingencies.


 


The Board need not take the same action
or actions with respect to all Stock Awards or portions thereof or with respect to all Participants. The Board may take different
actions with respect to the vested and unvested portions of a Stock Award prior to the earlier of (i) the effective time of the
Corporate Transaction and (ii) the effectiveness of such action(s) with respect to the Awards.


 


(d)Change in
Control. A Stock Award may be subject to additional acceleration of vesting and exercisability upon or after a Change in Control
as may be provided in the Stock Award Agreement for such Stock Award or as may be provided in any other written agreement between
the Company or any Affiliate and the Participant, but in the absence of such provision, no such acceleration will occur.


 


10.Plan
Term; Earlier Termination or Suspension of the Plan.


 


(a)The Board
may suspend or terminate the Plan at any time. No Incentive Stock Option will be granted after
the tenth (10th) anniversary of the earlier of (i) the date the Plan is adopted by the Board, or (ii) the date the Plan
is approved by the stockholders of the Company. No Awards may be granted under the Plan while the Plan is suspended or after it
is terminated.


 


(b)No Impairment
of Rights. Suspension or termination of the Plan will not impair rights and obligations under any Award granted while the Plan
is in effect except with the written consent of the affected Participant or as otherwise permitted in the Plan.


 


11.Effective
Date of Plan.


 


This Plan will become
effective on the Effective Date.


 



    	18.



    	 



    



12.Choice
of Law.


 


The laws of the State of Delaware will
govern all questions concerning the construction, validity and interpretation of this Plan, without regard to that state’s
conflict of laws rules.


 


13.Definitions.
As used in the Plan, the following definitions will apply to the capitalized terms indicated below:


 


(a)“Affiliate”
means, at the time of determination, any “parent” or “subsidiary” of the Company as such terms are defined
in Rule 405. The Board will have the authority to determine the time or times at which “parent” or “subsidiary”
status is determined within the foregoing definition.


 


(b)“Award”
means a Stock Award or a Performance Cash Award.


 


(c)“Award
Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions of
an Award.


 


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


 


(e)“Capitalization
Adjustment” means any change that is made in, or other events that occur with respect to, the Common Stock subject
to the Plan or subject to any Stock Award after the Effective Date without the receipt of consideration by the Company through
merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash,
large nonrecurring cash dividend, stock split, reverse stock split, liquidating dividend, combination of shares, exchange of shares,
change in corporate structure or any similar equity restructuring transaction, as that term is used in Statement of Financial Accounting
Standards Board Accounting Standards Codification Topic 718 (or any successor thereto). Notwithstanding the foregoing, the conversion
of any convertible securities of the Company will not be treated as a Capitalization Adjustment.


 


(f)“Cause”
will have the meaning ascribed to such term in any written agreement between the Participant and the Company defining such
term and, in the absence of such agreement, such term means, with respect to a Participant, the occurrence of any of the following
events: (i) the willful misconduct, failure, disregard or refusal by such Participant to perform any of the material duties of
his or her material duties of employment; provided, however, that such Participant will have one opportunity to cure any
breach within five (5) business days (“Cure Period”) of written notice to the Participant; (ii) any willful,
intentional or grossly negligent act by such Participant having the effect of injuring, in a material way the business or reputation
of the Company or an Affiliate; (iii) such Participant’s conviction of any felony or a misdemeanor involving moral turpitude
(including entry of a nolo contendere plea); (iv) the determination by the Company, after a reasonable and good-faith investigation
by the Company following a written allegation by another employee of the Company, that such Participant engaged in some form of
harassment prohibited by law (including, without limitation, harassment that constitutes age, sex or race discrimination); any
misappropriation or embezzlement of the property of the Company or an Affiliate; (vi) breach by such Participant of any agreement
between the Participant and the Company or an Affiliate which is not cured by the Participant within thirty (30) days after notice
thereof is given by the Company or an Affiliate.


 



    	19.



    	 



    



(g)“Change
in Control” means the occurrence, in a single transaction or in a series of related transactions, of any one or more
of the following events:


 


(i)any Exchange
Act Person becomes the Owner, directly or indirectly, of securities of the Company representing more than fifty percent (50%) of
the combined voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or
similar transaction. Notwithstanding the foregoing, a Change in Control will not be deemed to occur (A) on account of the acquisition
of securities of the Company directly from the Company, (B) on account of the acquisition of securities of the Company by an investor,
any affiliate thereof or any other Exchange Act Person that acquires the Company’s securities in a transaction or series
of related transactions the primary purpose of which is to obtain financing for the Company through the issuance of equity securities,
or (C) solely because the level of Ownership held by any Exchange Act Person (the “Subject Person”) exceeds
the designated percentage threshold of the outstanding voting securities as a result of a repurchase or other acquisition of voting
securities by the Company reducing the number of shares outstanding, provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of voting securities by the Company, and after such share acquisition,
the Subject Person becomes the Owner of any additional voting securities that, assuming the repurchase or other acquisition had
not occurred, increases the percentage of the then outstanding voting securities Owned by the Subject Person over the designated
percentage threshold, then a Change in Control will be deemed to occur;


 


(ii)there
is consummated a merger, consolidation or similar transaction involving (directly or indirectly) the Company and, immediately after
the consummation of such merger, consolidation or similar transaction, the stockholders of the Company immediately prior thereto
do not Own, directly or indirectly, either (A) outstanding voting securities representing more than fifty percent (50%) of the
combined outstanding voting power of the surviving Entity in such merger, consolidation or similar transaction or (B) more than
fifty percent (50%) of the combined outstanding voting power of the parent of the surviving Entity in such merger, consolidation
or similar transaction, in each case in substantially the same proportions as their Ownership of the
outstanding voting securities of the Company immediately prior to such transaction;


 


(iii)there
is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the consolidated assets of
the Company and its Subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated
assets of the Company and its Subsidiaries to an Entity, more than fifty percent (50%) of the combined voting power of the voting
securities of which are Owned by stockholders of the Company in substantially the same proportions as their Ownership of the outstanding
voting securities of the Company immediately prior to such sale, lease, license or other disposition; or


 



    	20.



    	 



    



(iv)individuals
who, on the date the Plan is adopted by the Board, are members of the Board (the “Incumbent Board”) cease
for any reason to constitute at least a majority of the members of the Board; provided, however, that if the appointment
or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members
of the Incumbent Board then still in office, such new member will, for purposes of this Plan, be considered as a member of the
Incumbent Board.


 


Notwithstanding the
foregoing definition or any other provision of this Plan, (A) the term Change in Control will not include a sale of assets, merger
or other transaction effected exclusively for the purpose of changing the domicile of the Company, and (B) the definition of Change
in Control (or any analogous term) in an individual written agreement between the Company or any Affiliate and the Participant
will supersede the foregoing definition with respect to Awards subject to such agreement; provided, however, that if no
definition of Change in Control or any analogous term is set forth in such an individual written agreement, the foregoing definition
will apply; provided, further, that no Change in Control shall be deemed to occur upon announcement or commencement of a
tender offer or upon a potential takeover or upon stockholder approval of a merger or other transaction, in each case without a
requirement that the Change in Control actually occur. If required for compliance with Section 409A of the Code, in no event will
a Change in Control be deemed to have occurred if such transaction is not also a “change in the ownership or effective control
of” the Company or “a change in the ownership of a substantial portion of the assets of” the Company as determined
under Treasury Regulation Section 1.409A-3(i)(5) (without regard to any alternative definition thereunder). The Board may, in its
sole discretion and without a Participant’s consent, amend the definition of “Change in Control” to conform to
the definition of “Change in Control” under Section 409A of the Code, and the regulations thereunder.


 


(h)“Code”
means the Internal Revenue Code of 1986, as amended, including any applicable regulations and guidance thereunder.


 


(i)“Committee”
means a committee of one (1) or more Directors to whom authority has been delegated by the Board in accordance with Section 2(c).


 


(j)“Common
Stock” means the common stock of the Company.


 


(k)“Company”
means ZIOPHARM Oncology, Inc., a Delaware corporation.


 


(l)“Consultant”
means any person, including an advisor, who is (i) engaged by the Company or an Affiliate to render consulting or advisory services
and is compensated for such services, or (ii) serving as a member of the board of directors of an Affiliate and is compensated
for such services. However, service solely as a Director, or payment of a fee for such service, will
not cause a Director to be considered a “Consultant” for purposes of the Plan. Notwithstanding
the foregoing, a person is treated as a Consultant under this Plan only if a Form S-8 Registration Statement
under the Securities Act is available to register either the offer or the sale of the Company’s securities to such person.


 



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(m)“Continuous
Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Director
or Consultant, is not interrupted or terminated. A change in the capacity in which the Participant renders service to the Company
or an Affiliate as an Employee, Consultant or Director or a change in the Entity for which the Participant renders such service,
provided that there is no interruption or termination of the Participant’s service with the Company or an Affiliate, will
not terminate a Participant’s Continuous Service; provided, however, that if the Entity for which a Participant
is rendering services ceases to qualify as an Affiliate, as determined by the Board, in its sole discretion, such Participant’s
Continuous Service will be considered to have terminated on the date such Entity ceases to qualify as an Affiliate. For example,
a change in status from an Employee of the Company to a Consultant of an Affiliate or to a Director will not constitute an interruption
of Continuous Service. To the extent permitted by law, the Board or the chief executive officer of the Company, in that party’s
sole discretion, may determine whether Continuous Service will be considered interrupted in the case of (i) any leave of absence
approved by the Board or chief executive officer, including sick leave, military leave or any other personal leave, or (ii) transfers
between the Company, an Affiliate, or their successors. Notwithstanding the foregoing, a leave of absence will be treated as Continuous
Service for purposes of vesting in a Stock Award only to such extent as may be provided in the Company’s leave of absence
policy, in the written terms of any leave of absence agreement or policy applicable to the Participant, or as otherwise required
by law. In addition, to the extent required for exemption from or compliance with Section 409A of the Code, the determination of
whether there has been a termination of Continuous Service will be made, and such term will be construed, in a manner that is consistent
with the definition of “separation from service” as defined under Treasury Regulation Section 1.409A-1(h) (without
regard to any alternative definition thereunder).


 


(n)“Corporate
Transaction” means the consummation, in a single transaction or in a series of related transactions, of any one or
more of the following events:


 


(i)a sale
or other disposition of all or substantially all, as determined by the Board, in its sole discretion, of the consolidated assets
of the Company and its Subsidiaries;


 


(ii)a sale
or other disposition of at least ninety percent (90%) of the outstanding securities of the Company;


 


(iii)a merger,
consolidation or similar transaction following which the Company is not the surviving corporation; or


 


(iv)a merger,
consolidation or similar transaction following which the Company is the surviving corporation but the shares of Common Stock outstanding
immediately preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of the merger, consolidation
or similar transaction into other property, whether in the form of securities, cash or otherwise.


 


To the extent required
for compliance with Section 409A of the Code, in no event will an event be deemed a Corporate Transaction if such transaction is
not also a “change in the ownership or effective control of” the Company or “a change in the ownership of a substantial
portion of the assets of” the Company as determined under Treasury Regulation Section 1.409A-3(i)(5) (without regard to any
alternative definition thereunder).


 


(o)“Covered
Employee” will have the meaning provided in Section 162(m)(3) of the Code.


 


(p)“Director”
means a member of the Board.


 



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(q)“Disability”
means, with respect to a Participant, the inability of such Participant to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve (12) months, as provided in Sections 22(e)(3) and 409A(a)(2)(C)(i)
of the Code, and will be determined by the Board on the basis of such medical evidence as the Board deems warranted under the circumstances.


 


(r)“Effective
Date” means the effective date of this Plan document, which is the date of the annual meeting of stockholders of
the Company held in 2012 provided this Plan is approved by the Company’s stockholders at such meeting.


 


(s)“Employee”
means any person employed by the Company or an Affiliate. However, service solely as a Director, or payment of a fee for such services,
will not cause a Director to be considered an “Employee” for purposes of the Plan.


 


(t)“Entity”
means a corporation, partnership, limited liability company or other entity.


 


(u)“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


 


(v)“Exchange
Act Person” means any natural person, Entity or “group” (within the meaning of Section
13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” will not include (i) the Company or any Subsidiary
of the Company, (ii) any employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any Subsidiary of the Company, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, (iv) an Entity Owned, directly or indirectly, by the stockholders
of the Company in substantially the same proportions as their Ownership of stock of the Company; or
(v) any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) that,
as of the Effective Date, is the Owner, directly or indirectly, of securities of the Company representing more than fifty percent
(50%) of the combined voting power of the Company’s then outstanding securities.


 


(w)“Fair
Market Value” means, as of any date, the value of the Common Stock determined as follows:


 


(i)If the
Common Stock is listed on any established stock exchange or traded on any established market, the Fair Market Value of a share
of Common Stock will be, unless otherwise determined by the Board, the closing sales price for such stock as quoted on such exchange
or market (or the exchange or market with the greatest volume of trading in the Common Stock) on the date of determination, as
reported in a source the Board deems reliable.


 


(ii)Unless
otherwise provided by the Board, if there is no closing sales price for the Common Stock on the date of determination, then the
Fair Market Value will be the closing selling price on the last preceding date for which such quotation exists.


 



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(iii)In the
absence of such markets for the Common Stock, the Fair Market Value will be determined by the Board in good faith and in a manner
that complies with Sections 409A and 422 of the Code.


 


(x)“Incentive
Stock Option” means an option granted pursuant to Section 5 of the Plan that is intended to be, and that qualifies
as, an “incentive stock option” within the meaning of Section 422 of the Code.


 


(y)“Non-Employee
Director” means a Director who either (i) is not a current employee or officer of the Company or an Affiliate,
does not receive compensation, either directly or indirectly, from the Company or an Affiliate for services rendered as a consultant
or in any capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a)
of Regulation S-K promulgated pursuant to the Securities Act (“Regulation S-K”)), does not possess an
interest in any other transaction for which disclosure would be required under Item 404(a) of Regulation S-K, and is not engaged
in a business relationship for which disclosure would be required pursuant to Item 404(b) of Regulation S-K; or (ii) is otherwise
considered a “non-employee director” for purposes of Rule 16b-3.


 


(z)Nonstatutory
Stock Option” means any option granted pursuant to Section 5 of the Plan that does not qualify as an Incentive Stock
Option.


 


(aa)“Officer”
means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act.


 


(bb)“Option”
means an Incentive Stock Option or a Nonstatutory Stock Option to purchase shares of Common Stock granted pursuant to the Plan.


 


(cc)“Option
Agreement” means a written agreement between the Company and an Participant evidencing the terms and conditions of
an Option grant. Each Option Agreement will be subject to the terms and conditions of the Plan.


 


(dd)“Other
Stock Award” means an award based in whole or in part by reference to the Common Stock which is granted pursuant
to the terms and conditions of Section 6(d).


 


(ee)“Outside
Director” means a Director who either (i) is not a current employee of the Company or an “affiliated corporation”
(within the meaning of Treasury Regulations promulgated under Section 162(m) of the Code), is not a former employee of the Company
or an “affiliated corporation” who receives compensation for prior services (other than benefits under a tax-qualified
retirement plan) during the taxable year, has not been an officer of the Company or an “affiliated corporation,” and
does not receive remuneration from the Company or an “affiliated corporation,” either directly or indirectly, in any
capacity other than as a Director, or (ii) is otherwise considered an “outside director” for purposes of Section 162(m)
of the Code.


 


(ff)“Own,”
“Owned,” “Owner,” “Ownership”
means a person or Entity will be deemed to “Own,” to have “Owned,” to be the “Owner” of,
or to have acquired “Ownership” of securities if such person or Entity, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise, has or shares voting power, which includes the power to vote or to direct
the voting, with respect to such securities.


 



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(gg)“Participant”
means a person to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Stock
Award.


 


(hh)“Performance
Cash Award” means an award of cash granted pursuant to the terms and conditions of Section 6(c)(ii).


 


(ii)“Performance
Criteria” means the one or more criteria that the Board will select for purposes of establishing the Performance
Goals for a Performance Period. The Performance Criteria that will be used to establish such Performance Goals may be based on
any one of, or combination of, the following as determined by the Board: (i) earnings (including earnings per share and net earnings);
(ii) earnings before interest, taxes and depreciation; (iii) earnings before interest, taxes, depreciation and amortization; (iv)
total stockholder return; (v) return on equity or average stockholder’s equity; (vi) return on assets, investment, or capital
employed; (vii) stock price; (viii) margin (including gross margin); (ix) income (before or after taxes); (x) operating income;
(xi) operating income after taxes; (xii) pre-tax profit; (xiii) operating cash flow; (xiv) sales or revenue targets; (xv) increases
in revenue or product revenue; (xvi) expenses and cost reduction goals; (xvii) improvement in or attainment of working capital
levels; (xiii) economic value added (or an equivalent metric); (xix) market share; (xx) cash flow; (xxi) cash flow per share; (xxii)
share price performance; (xxiii) debt reduction; (xxiv) implementation or completion of projects or processes; (xxv) customer satisfaction;
(xxvi) stockholders’ equity; (xxvii) capital expenditures; (xxiii) debt levels; (xxix) operating profit or net operating
profit; (xxx) workforce diversity; (xxxi) growth of net income or operating income; (xxxii) billings; (xxxiii) achievement of drug
development milestones; (xxxiv) regulatory achievements, including approval of a compound; (xxxv) progress of internal research
or clinical programs; (xxxvi) progress of partner programs; (xxxvii) implementation or completion of projects and processes; (xxxviii)
clinical progress, (xxxix) in-licensing; and (xl) to the extent that an Award is not intended to comply with Section 162(m) of
the Code, other measures of performance selected by the Board.


 


(jj)“Performance
Goals” means, for a Performance Period, the one or more goals established by the Board for the Performance Period
based upon the Performance Criteria. Performance Goals may be based on a Company-wide basis, with respect to one or more business
units, divisions, Affiliates, or business segments, and in either absolute terms or relative to the performance of one or more
comparable companies or the performance of one or more relevant indices. Unless specified otherwise by the Board (i) in the Award
Agreement at the time the Award is granted or (ii) in such other document setting forth the Performance Goals at the time the Performance
Goals are established, the Board will appropriately make adjustments in the method of calculating the attainment of Performance
Goals for a Performance Period as follows: (1) to exclude restructuring and/or other nonrecurring charges; (2) to exclude exchange
rate effects, as applicable, for non-U.S. dollar denominated Performance Goals; (3) to exclude the effects of changes to generally
accepted accounting principles; (4) to exclude the effects of any statutory adjustments to corporate tax rates; and (5) to exclude
the effects of any “extraordinary items” as determined under generally accepted accounting principles.


 


(kk)“Performance
Period” means the period of time selected by the Board over which the attainment of one or more Performance Goals
will be measured for the purpose of determining a Participant’s right to and the payment of a Stock Award or a Performance
Cash Award. Performance Periods may be of varying and overlapping duration, at the sole discretion of the Board.


 



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(ll)“Performance
Stock Award” means a Stock Award granted under the terms and conditions of Section 6(c)(i).


 


(mm)“Plan”
means this ZIOPHARM Oncology, Inc. 2012 Equity Incentive Plan.


 


(nn)“Restricted
Stock Award” means an award of shares of Common Stock which is granted pursuant to the terms and conditions of Section
6(a).


 


(oo)“Restricted
Stock Award Agreement” means a written agreement between the Company and a holder of a Restricted Stock Award evidencing
the terms and conditions of a Restricted Stock Award grant. Each Restricted Stock Award Agreement will be subject to the terms
and conditions of the Plan.


 


(pp)“Restricted
Stock Unit Award” means a right to receive shares of Common Stock which is granted pursuant to the
terms and conditions of Section 6(b).


 


(qq)“Restricted
Stock Unit Award Agreement” means a written agreement between the Company and a holder of a Restricted
Stock Unit Award evidencing the terms and conditions of a Restricted Stock Unit Award grant. Each Restricted Stock Unit Award Agreement
will be subject to the terms and conditions of the Plan.


 


(rr)“Rule
16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time
to time.


 


(ss)“Rule
405” means Rule 405 promulgated under the Securities Act.


 


(tt)“Section
409A” means Section 409A of the Code and the regulations and other guidance thereunder and any state law of similar
effect.


 


(uu)“Securities
Act” means the Securities Act of 1933, as amended.


 


(vv)“Stock
Appreciation Right” or “SAR” means a right to receive the appreciation on
Common Stock that is granted pursuant to the terms and conditions of Section 5.


 


(ww)“Stock
Award” means any right to receive Common Stock granted under the Plan, including an Incentive Stock Option, a Nonstatutory
Stock Option, a Restricted Stock Award, a Restricted Stock Unit Award, a Stock Appreciation Right, a Performance Stock Award or
any Other Stock Award.


 


(xx)“Stock
Award Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions
of a Stock Award grant. Each Stock Award Agreement will be subject to the terms and conditions of the Plan.


 



    	26.



    	 



    



(yy)“Subsidiary”
means, with respect to the Company, (i) any corporation of which more than fifty percent (50%) of the outstanding capital stock
having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the
time, stock of any other class or classes of such corporation will have or might have voting power by reason of the happening of
any contingency) is at the time, directly or indirectly, Owned by the Company, and (ii) any partnership, limited liability company
or other entity in which the Company has a direct or indirect interest (whether in the form of voting or participation in profits
or capital contribution) of more than fifty percent (50%).


 


(zz)“Ten
Percent Stockholder” means a person who Owns (or is deemed to Own pursuant to Section 424(d) of the Code) stock possessing
more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any Affiliate.


 



    	27.