Exhibit 10.1


  


 


AudioEye, Inc.


2019 Equity Incentive Plan


(as amended and restated on May 18, 2020)


 


1.       Purpose;
Eligibility.


 


1.1    General
Purpose. The name of this plan is the AudioEye, Inc. 2019 Equity Incentive Plan. The purposes of the Plan are to (a) enable
AudioEye, Inc., a Delaware corporation, and any Affiliate to attract and retain the types of Employees, Consultants and Directors
who will contribute to the Company’s long range success; (b) provide incentives that align the interests of Employees, Consultants
and Directors with those of the stockholders of the Company; and (c) promote the success of the Company’s business.


 


1.2    Eligible
Award Recipients. The persons eligible to receive Awards are the Employees, Consultants and Directors of the Company and its
Affiliates and such other individuals designated by the Committee who are reasonably expected to become Employees, Consultants
and Directors after the receipt of Awards.


 


1.3    Available
Awards. Awards that may be granted under the Plan include: (a) Incentive Stock Options, (b) Non-Qualified Stock Options, (c)
Stock Appreciation Rights, (d) Restricted Awards, (e) Performance Share Awards, (f) Cash Awards, and (g) Other Equity-Based Awards.


 


2.       Definitions.


 


“Affiliate”
means a corporation or other entity that, directly or through one or more intermediaries, controls, is controlled by or is under
common control with, the Company.


 


“Applicable
Laws” means the requirements related to or implicated by the administration of the Plan under applicable state corporate
law, United States federal and state securities laws, the Code, any stock exchange or quotation system on which the shares of Common
Stock are listed or quoted, and the applicable laws of any foreign country or jurisdiction where Awards are granted under the Plan.


 


“Award”
means any right granted under the Plan, including an Incentive Stock Option, a Non-Qualified Stock Option, a Stock Appreciation
Right, a Restricted Award, a Performance Share Award, a Cash Award, or an Other Equity-Based Award.


 


“Award
Agreement” means a written agreement, contract, certificate or other instrument or document evidencing the terms and
conditions of an individual Award granted under the Plan which may, in the discretion of the Company, be transmitted electronically
to any Participant. Each Award Agreement shall be subject to the terms and conditions of the Plan.


 


“Beneficial
Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular Person, such Person shall be deemed to have beneficial ownership of all securities that
such Person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable
or is exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned”
have a corresponding meaning.


 


“Board”
means the Board of Directors of the Company, as constituted at any time.


 


“Cash
Award” means an Award denominated in cash that is granted under Section 7.4 of the Plan.


 






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“Cause”
with respect to any Participant shall have the meaning specified in the Participant’s Award Agreement. In the absence of
any definition in the Award Agreement, “Cause” shall have the equivalent meaning or the same meaning as “cause”
or “for cause” set forth in any employment, consulting, or other agreement for the performance of services between
the Participant and the Company or an Affiliate or, in the absence of any such agreement or any such definition in such agreement,
such term shall mean (i) the failure by the Participant to perform, in a reasonable manner, his or her duties as assigned by the
Company or an Affiliate, (ii) any violation or breach by the Participant of his or her employment, consulting or other similar
agreement with the Company or an Affiliate, if any, (iii) any violation or breach by the Participant of any non-competition, non-solicitation,
non-disclosure and/or other similar agreement with the Company or an Affiliate, (iv) any act by the Participant of dishonesty or
bad faith with respect to the Company or an Affiliate, (v) use of alcohol, drugs or other similar substances in a manner that adversely
affects the Participant’s work performance, or (vi) the commission by the Participant of any act, misdemeanor, or crime reflecting
unfavorably upon the Participant or the Company or any Affiliate. The good faith determination by the Committee of whether the
Participant’s Continuous Service was terminated by the Company for “Cause” shall be final and binding for all
purposes hereunder.


  


“Change
in Control” with respect to any Participant shall have the meaning specified in the Participant’s Award Agreement
or any employment agreement between the Participant and the Company or its Affiliates. In the absence of any such definition, a
“Change in Control” shall mean the occurrence of any of the following:


 


(i)       The
acquisition by any Person of Beneficial Ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more
than eighty percent (80%) of either (A) the value of then outstanding equity securities of the Company (the “Outstanding
Company Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors (the “Outstanding Company Voting Securities”) (the foregoing Beneficial
Ownership hereinafter being referred to as a “Controlling Interest”); provided, however, that the following
acquisitions shall not constitute or result in a Change in Control: (v) any acquisition directly from the Company; (w) any acquisition
by the Company; (x) any acquisition by any Person that as of the Effective Date owns Beneficial Ownership of a Controlling Interest;
(y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Affiliate; or
(z) any acquisition by any entity pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) below;
or


 


(ii)      During
any period of two (2) consecutive years (not including any period prior to the Effective Date) individuals who constitute the Board
on the Effective Date (the “Incumbent Board”) cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination
for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest
with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or


 


(iii)     Consummation
of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Company or any of its
Affiliates, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets
or equity of another entity by the Company or any of its Affiliates (each a “Business Combination”), in each
case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the Beneficial
Owners, respectively, of the Outstanding Company Stock and Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than eighty percent (80%) of the value of the then outstanding equity
securities and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of
members of the board of directors (or comparable governing body of an entity that does not have such a board), as the case may
be, of the entity resulting from such Business Combination (including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company
Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any employee benefit plan (or related
trust) of the Company or such entity resulting from such Business Combination or any Person that as of the Effective Date owns
Beneficial Ownership of a Controlling Interest) beneficially owns, directly or indirectly, eighty percent (80%) or more of the
value of the then outstanding equity securities of the entity resulting from such Business Combination or the combined voting power
of the then outstanding voting securities of such entity except to the extent that such ownership existed prior to the Business
Combination and (C) at least a majority of the members of the board of directors or other governing body of the entity resulting
from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of
the action of the Board, providing for such Business Combination; or


 






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(iv)     A
complete liquidation or dissolution of the Company.


 


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.


 


“Code”
means the Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall be
deemed to include a reference to any regulations promulgated thereunder.


 


“Committee”
means a committee of one or more members of the Board appointed by the Board to administer the Plan in accordance with Section
3.3 and Section 3.4.


 


“Common
Stock” means the common stock, $0.00001 par value per share, of the Company, or such other securities of the Company
as may be designated by the Committee from time to time in substitution thereof.


 


“Company”
means AudioEye, Inc., a Delaware corporation, and any successor thereto.


 


“Consultant”
means any individual or entity which performs bona fide services to the Company or an Affiliate, other than as an Employee or Director,
and who may be offered securities registerable pursuant to a registration statement on Form S-8 under the Securities Act.


 


“Continuous
Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Consultant
or Director, is not interrupted or terminated. The Participant’s Continuous Service shall not be deemed to have terminated
merely because of 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 Continuous Service; provided further that if any
Award is subject to Section 409A of the Code, this sentence shall only be given effect to the extent consistent with Section 409A
of the Code. For example, a change in status from an Employee of the Company to a Director of an Affiliate will not constitute
an interruption of Continuous Service. The Committee or its delegate, in its sole discretion, may determine whether Continuous
Service shall be considered interrupted in the case of any leave of absence approved by that party, including sick leave, military
leave or any other personal or family leave of absence. The Committee or its delegate, in its sole discretion, may determine whether
a Company transaction, such as a sale or spin-off of a division or subsidiary that employs a Participant, shall be deemed to result
in a termination of Continuous Service for purposes of affected Awards, and such decision shall be final, conclusive and binding.


 


“Deferred
Stock Units” has the meaning set forth in Section 7.2 hereof.


 


“Director”
means a member of the Board.


 


“Disability”
means, unless the applicable Award Agreement says otherwise, that the Participant is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment; provided, however, for purposes
of determining the term of an Incentive Stock Option pursuant to Section 6.10 hereof, the term Disability shall have the meaning
ascribed to it under Section 22(e)(3) of the Code. The determination of whether an individual has a Disability shall be determined
under procedures established by the Committee. Except in situations where the Committee is determining Disability for purposes
of the term of an Incentive Stock Option pursuant to Section 6.10 hereof within the meaning of Section 22(e)(3) of the Code, the
Committee may rely on any determination that a Participant is disabled for purposes of benefits under any long-term disability
plan maintained by the Company or any Affiliate in which a Participant participates.


 






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“Disqualifying
Disposition” has the meaning set forth in Section 14.12.


 


“Effective
Date” shall mean the date as of which this Plan is adopted by the Board.


 


“Employee”
means any person, including an Officer or Director, employed by the Company or an Affiliate; provided, that, for
purposes of determining eligibility to receive Incentive Stock Options, an Employee shall mean an employee of the Company or a
parent or subsidiary corporation within the meaning of Section 424 of the Code. Mere service as a Director or payment of a director’s
fee by the Company or an Affiliate shall not be sufficient to constitute “employment” by the Company or an Affiliate.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Fair
Market Value” means, as of any date, the value of the Common Stock as determined below. If the Common Stock is listed
on any established stock exchange or a national market system, including without limitation, the New York Stock Exchange or the
NASDAQ Stock Market, the Fair Market Value shall be the closing price of a share of Common Stock (or if no sales were reported
the closing price on the date immediately preceding such date) as quoted on such exchange or system on the day of determination,
as reported in the Wall Street Journal. In the absence of an established market for the Common Stock, the Fair Market
Value shall be determined in good faith by the Committee and such determination shall be conclusive and binding on all persons.
Notwithstanding the foregoing, the Committee may also determine the Fair Market Value upon the average selling price of the Stock
during a specified period that is within thirty (30) days before or thirty (30) days after such date, provided that, with respect
to the grant of an Option or Stock Appreciation Right, the commitment to grant such Award based on such valuation method must be
irrevocable before the beginning of the specified period and otherwise compliant with Section 409A of the Code.


 


“Fiscal
Year” means the Company’s fiscal year.


  


“Free
Standing Rights” has the meaning set forth in Section 7.1(a).


 


“Good
Reason” shall, with respect to any Participant, have the meaning specified in the Award Agreement. In the absence of
any definition in the Award Agreement, “Good Reason” shall have the equivalent meaning or the same meaning as “good
reason” or “for good reason” set forth in any employment, consulting or other agreement for the performance of
services between the Participant and the Company or an Affiliate or, in the absence of any such agreement or any such definition
in such agreement, such term shall mean (i) the assignment to the Participant of any duties inconsistent in any material respect
with the Participant’s duties or responsibilities as assigned by the Company or an Affiliate, or any other action by the
Company or an Affiliate which results in a material diminution in such duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company or an Affiliate promptly
after receipt of notice thereof given by the Participant; or (ii) any material failure by the Company or an Affiliate to comply
with its obligations to the Participant as agreed upon, other than an isolated, insubstantial and inadvertent failure not occurring
in bad faith and which is remedied by the Company or an Affiliate promptly after receipt of notice thereof given by the Participant.
An event or action will not give the Participant grounds for Good Reason unless (A) the Participant gives the Company written notice
within 60 days after the initial existence of the event or action that the Participant intends to resign for Good Reason due to
such event or action; (B) the event or action is not reasonably cured by the Company within 30 days after the Company receives
written notice from the Participant; and (C) the Participant terminates service within 30 days after the end of the cure period.


 


“Grant
Date” means the date on which the Committee adopts a resolution, or takes other appropriate action, expressly granting
an Award to a Participant that specifies the key terms and conditions of the Award or, if a later date is set forth in such resolution,
then such date as is set forth in such resolution.


 






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“Incentive
Stock Option” means an Option that is designated by the Committee as an incentive stock option within the meaning of
Section 422 of the Code and that meets the requirements set out in the Plan.


 


“Non-Employee
Director” means a Director who is a “non-employee director” within the meaning of Rule 16b-3 and an “independent
director” as defined in the Marketplace Rules of The NASDAQ Stock Market LLC.


 


“Non-Qualified
Stock Option” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock
Option.


 


“Officer”
means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.


 


“Option”
means an Incentive Stock Option or a Non-Qualified Stock Option granted pursuant to the Plan.


 


“Optionholder”
means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding
Option.


 


“Option
Exercise Price” means the price at which a share of Common Stock may be purchased upon the exercise of an Option.


 


“Other
Equity-Based Award” means an Award that is not an Option, Stock Appreciation Right, Restricted Stock, Restricted
Stock Unit, or Performance Share Award that is granted under Section 7.4 and is payable by delivery of Common Stock and/or which
is measured by reference to the value of Common Stock.


 


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


 


“Performance
Goals” means, for a Performance Period, the one or more goals established by the Committee for the Performance Period
based upon business criteria or other performance measures determined by the Committee in its discretion.


 


“Performance
Period” means the one or more periods of time, as the Committee may select, 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 Performance
Share Award or a Cash Award.


 


“Performance
Share Award” means any Award granted pursuant to Section 7.3 hereof.


 


“Performance
Share” means the grant of a right to receive a number of actual shares of Common Stock or share units based upon the
performance of the Company during a Performance Period, as determined by the Committee.


 


“Permitted
Transferee” means a member of the Optionholder’s immediate family (child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law,
or sister-in-law, including adoptive relationships), any person sharing the Optionholder’s household (other than a tenant
or employee), a trust in which these persons have more than 50% of the beneficial interest, a foundation in which these persons
(or the Optionholder) control the management of assets, and any other entity in which these persons (or the Optionholder) own more
than 50% of the voting interests.


 


“Person” means
a person as defined in Section 13(d)(3) of the Exchange Act.


 


“Plan”
means this AudioEye, Inc. 2019 Equity Incentive Plan, as amended and/or amended and restated from time to time.


 


“Related
Rights” has the meaning set forth in Section 7.1(a).


 






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“Restricted
Award” means any Award granted pursuant to Section 7.2(a).


 


“Restricted
Period” has the meaning set forth in Section 7.2(a).


 


“Restricted
Stock” has the meaning set forth in Section 7.2(a).


 


“Restricted
Stock Units” has the meaning set forth in Section 7.2(a).


 


“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.


 


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


 


“Stock
Appreciation Right” means the right pursuant to an Award granted under Section 7.1 to receive, upon exercise, an amount
payable in cash or shares equal to the number of shares subject to the Stock Appreciation Right that is being exercised multiplied
by the excess of (a) the Fair Market Value of a share of Common Stock on the date the Award is exercised, over (b) the exercise
price specified in the Stock Appreciation Right Award Agreement.


 


“Stock
for Stock Exchange” has the meaning set forth in Section 6.4.


 


“Substitute
Award” has the meaning set forth in Section 4.7.


 


“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 10% of the total combined voting power of all classes of stock of the Company or of any of its Affiliates.


 


“Total
Share Reserve” has the meaning set forth in Section 4.1.


 


3.       Administration.


 


3.1    Authority
of Committee. The Plan shall be administered by the Committee or, in the Board’s sole discretion, by the Board. Subject
to the terms of the Plan, the Committee’s charter and Applicable Laws, and in addition to other express powers and authorization
conferred by the Plan, the Committee shall have the authority:


 


(a)       to
construe and interpret the Plan and apply its provisions;


 


(b)       to
promulgate, amend, and rescind rules and regulations relating to the administration of the Plan;


 


(c)       to
authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan;


 


(d)       to
determine when Awards are to be granted under the Plan and the applicable Grant Date;


 


(e)       from
time to time to select, subject to the limitations set forth in this Plan, those eligible Award recipients to whom Awards shall
be granted;


 


(f)        to
determine the number of shares of Common Stock to be made subject to each Award;


 


(g)       to
determine whether each Option is to be an Incentive Stock Option or a Non-Qualified Stock Option;


 






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(h)       to
prescribe the terms and conditions of each Award, including, without limitation, the exercise price and medium of payment and vesting
provisions, and to specify the provisions of the Award Agreement relating to such grant;


 


(i)        to
determine the target number of Performance Shares to be granted pursuant to a Performance Share Award, the performance measures
that will be used to establish the Performance Goals, the Performance Period(s) and the number of Performance Shares earned by
a Participant;


 


(j)        to
amend any outstanding Awards; provided, however, that if any such amendment impairs a Participant’s rights or
increases a Participant’s obligations under his or her Award or creates or increases a Participant’s federal income
tax liability with respect to an Award, such amendment shall also be subject to the Participant’s consent;


 


(k)                to
determine the duration and purpose of leaves of absences which may be granted to a Participant without constituting termination
of their employment for purposes of the Plan, which periods shall be no shorter than the periods generally applicable to Employees
under the Company’s employment policies;


 


(l)                  to
make decisions with respect to outstanding Awards that may become necessary upon a change in corporate control or an event that
triggers anti-dilution adjustments;


 


(m)               to
interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan and any instrument
or agreement relating to, or Award granted under, the Plan; and


 


(n)                to
exercise discretion to make any and all other determinations which it determines to be necessary or advisable for the administration
of the Plan.


 


The Committee also may modify the purchase
price or the exercise price of any outstanding Award, provided that if the modification effects a repricing, stockholder
approval shall be required before the repricing is effective.


 


3.2      Committee
Decisions Final. All decisions made by the Committee pursuant to the provisions of the Plan shall be final and binding on the
Company and the Participants, unless such decisions are determined by a court having jurisdiction to be arbitrary and capricious.


 


3.3      Delegation.
The Committee or, if no Committee has been appointed, the Board may delegate administration of the Plan to a committee or committees
of one or more members of the Board, and the term “Committee” shall apply to any person or persons to whom such
authority has been delegated. The Committee shall have the power to delegate to a subcommittee any of the administrative powers
the Committee is authorized to exercise (and references in this Plan to the Board or the Committee shall thereafter be to the committee
or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from
time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan.
The members of the Committee shall be appointed by and serve at the pleasure of the Board. From time to time, the Board may increase
or decrease the size of the Committee, add additional members to, remove members (with or without cause) from, appoint new members
in substitution therefor, and fill vacancies, however caused, in the Committee. The Committee shall act pursuant to a vote of the
majority of its members or, in the case of a Committee comprised of only two members, the unanimous consent of its members, whether
present or not, or by the written consent of the majority of its members and minutes shall be kept of all of its meetings and copies
thereof shall be provided to the Board. Subject to the limitations prescribed by the Plan and the Board, the Committee may establish
and follow such rules and regulations for the conduct of its business as it may determine to be advisable.


 


3.4      Committee
Composition. Except as otherwise determined by the Board, the Committee shall consist solely of two or more Non-Employee Directors.
The Board shall have discretion to determine whether or not it intends to comply with the exemption requirements of Rule 16b-3.
However, if the Board intends to satisfy such exemption requirements, with respect to any insider subject to Section 16 of the
Exchange Act, the Committee shall be a compensation committee of the Board that at all times consists solely of two or more Non-Employee
Directors. Nothing herein shall create an inference that an Award is not validly granted under the Plan in the event Awards are
granted under the Plan by a compensation committee of the Board that does not at all times consist solely of two or more Non-Employee
Directors.


 






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3.5      Indemnification.
In addition to such other rights of indemnification as they may have as Directors or members of the Committee, and to the extent
allowed by Applicable Laws, the Committee shall be indemnified by the Company against the reasonable expenses, including attorney’s
fees, actually incurred in connection with any action, suit or proceeding or in connection with any appeal therein, to which the
Committee may be party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted
under the Plan, and against all amounts paid by the Committee in settlement thereof (provided, however, that the settlement
has been approved by the Company, which approval shall not be unreasonably withheld) or paid by the Committee in satisfaction of
a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action,
suit or proceeding that such Committee did not act in good faith and in a manner which such person reasonably believed to be in
the best interests of the Company, or in the case of a criminal proceeding, had no reason to believe that the conduct complained
of was unlawful; provided, however, that within 60 days after the institution of any such action, suit or proceeding,
such Committee shall, in writing, offer the Company the opportunity at its own expense to handle and defend such action, suit or
proceeding.


  


4.       Shares
Subject to the Plan.


 


4.1      Subject
to adjustment in accordance with Section 11, no more than 1,900,000 shares of Common Stock shall be available for the
grant of Awards under the Plan (the “Total Share Reserve”). Any shares of Common Stock granted in connection
with Options and Stock Appreciation Rights shall be counted against this limit as one share for every one Option or Stock Appreciation
Right awarded. Any shares of Common Stock granted in connection with Awards other than Options and Stock Appreciation Rights shall
be counted against this limit as two shares of Common Stock for every one share of Common Stock granted in connection with such
Award. During the terms of the Awards, the Company shall keep available at all times the number of shares of Common Stock required
to satisfy such Awards.


 


4.2      Shares
of Common Stock available for distribution under the Plan may consist, in whole or in part, of authorized and unissued shares,
treasury shares or shares reacquired by the Company in any manner.


 


4.3      Subject
to adjustment in accordance with Section 11, no more than 1,900,000 shares of Common Stock may be issued in the aggregate
pursuant to the exercise of Incentive Stock Options (the “ISO Limit”).


 


4.4      The
maximum number of shares of Common Stock subject to Awards granted during a single Fiscal Year to any Director who is not an Employee
or Consultant during the Fiscal Year, together with any cash fees paid to such Director during the Fiscal Year, shall not exceed
a total value of $400,000 (calculating the value of any Awards based on the grant date fair value for financial reporting purposes).


 


4.5      The
maximum number of shares of Common Stock subject to Awards granted during a single Fiscal Year to any Employee or Consultant who
is not a Director during the Fiscal Year shall not exceed a total value of $5,000,000 (calculating the value of any Awards based
on the grant date fair value for financial reporting purposes).


 


4.6      Any
shares of Common Stock subject to an Award that expires or is canceled, forfeited, or terminated without issuance of the full number
of shares of Common Stock to which the Award related will again be available for issuance under the Plan. Any shares of Common
Stock that again become available for future grants pursuant to this Section 4.6 shall be added back as one
(1) share if such shares were subject to Options or Stock Appreciation Rights and as two (2) shares if such shares were subject
to other Awards. Notwithstanding anything to the contrary contained herein: shares subject to an Award under the Plan shall not
again be made available for issuance or delivery under the Plan if such shares are (a) shares tendered in payment of an Option,
(b) shares delivered or withheld by the Company to satisfy any tax withholding obligation, or (c) shares covered by a stock-settled
Stock Appreciation Right or other Awards that were not issued upon the settlement of the Award.


 






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4.7      Awards
may, in the sole discretion of the Committee, be granted under the Plan in assumption of, or in substitution for, outstanding awards
previously granted by an entity acquired by the Company or with which the Company combines (“Substitute Awards”).
Substitute Awards shall not be counted against the Total Share Reserve; provided, that, Substitute Awards issued in connection
with the assumption of, or in substitution for, outstanding options intended to qualify as Incentive Stock Options shall be counted
against the ISO Limit. Subject to applicable stock exchange requirements, available shares under a stockholder-approved plan of
an entity directly or indirectly acquired by the Company or with which the Company combines (as appropriately adjusted to reflect
such acquisition or transaction) may be used for Awards under the Plan and shall not count toward the Total Share Limit.


 


4.8    No
dividends will be paid to a Participant with respect to any shares subject to an Award prior to the vesting of such Award. For
the avoidance of doubt, as described in Section 7.2(b), any dividends that may be attributable to any particular share of Restricted
Stock or any particular Restricted Stock Unit or Deferred Stock Unit shall only be distributed to a Participant upon the release
of restrictions on such share of Restricted Stock or the settlement of such Restricted Stock Unit or Deferred Stock Unit, as applicable,
and a Participant shall have no right to such dividends if such Award is forfeited.





 


5.       Eligibility.


 


5.1      Eligibility
for Specific Awards. Incentive Stock Options may be granted only to Employees. Awards other than Incentive Stock Options
may be granted to Employees, Consultants and Directors and those individuals whom the Committee determines are reasonably expected
to become Employees, Consultants and Directors following the Grant Date.


 


5.2      Ten
Percent Stockholders. A Ten Percent Stockholder shall not be granted an Incentive Stock Option unless the Option Exercise Price
is at least 110% of the Fair Market Value of the Common Stock on the Grant Date and the Option is not exercisable after the expiration
of five years from the Grant Date.


 


6.       Option
Provisions. Each Option granted under the Plan shall be evidenced by an Award Agreement. Each Option so granted shall be subject
to the conditions set forth in this Section 6, and to such other conditions not inconsistent with the Plan as may be
reflected in the applicable Award Agreement. All Options shall be separately designated Incentive Stock Options or Non-Qualified
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. Notwithstanding the foregoing, the Company shall have no liability
to any Participant or any other person if an Option designated as an Incentive Stock Option fails to qualify as such at any time
or if an Option is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A
of the Code and the terms of such Option do not satisfy the requirements of Section 409A of the Code. The provisions of separate
Options need not be identical, but each Option shall include (through incorporation of provisions hereof by reference in the Option
or otherwise) the substance of each of the following provisions:


 


6.1      Term.
Subject to the provisions of Section 5.2 regarding Ten Percent Stockholders, no Incentive Stock Option shall be exercisable
after the expiration of 10 years from the Grant Date. The term of a Non-Qualified Stock Option granted under the Plan shall be
determined by the Committee; provided, however, no Non-Qualified Stock Option shall be exercisable after the expiration
of 10 years from the Grant Date.


 


6.2      Exercise
Price of an Incentive Stock Option. Subject to the provisions of Section 5.2 regarding Ten Percent Stockholders,
the Option Exercise Price of each Incentive Stock Option shall be not less than 100% of the Fair Market Value of the Common Stock
subject to the Option on the Grant Date. Notwithstanding the foregoing, an Incentive Stock Option may be granted with an Option
Exercise Price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution
for another option in a manner satisfying the provisions of Section 424(a) of the Code.


 






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6.3      Exercise
Price of a Non-Qualified Stock Option. The Option Exercise Price of each Non-Qualified Stock Option shall be not less than
100% of the Fair Market Value of the Common Stock subject to the Option on the Grant Date. Notwithstanding the foregoing, a Non-Qualified
Stock Option may be granted with an Option Exercise Price lower than that set forth in the preceding sentence if such Option is
granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions of Section 409A of the
Code.


 


6.4      Consideration.
The Option Exercise Price of Common Stock acquired pursuant to an Option shall be paid, to the extent permitted by applicable statutes
and regulations, either (a) in cash or by certified or bank check at the time the Option is exercised or (b) in the discretion
of the Committee, upon such terms as the Committee shall approve, the Option Exercise Price may be paid: (i) by delivery to the
Company of other Common Stock, duly endorsed for transfer to the Company, with a Fair Market Value on the date of delivery equal
to the Option Exercise Price (or portion thereof) due for the number of shares being acquired, or by means of attestation whereby
the Participant identifies for delivery specific shares of Common Stock that have an aggregate Fair Market Value on the date of
attestation equal to the Option Exercise Price (or portion thereof) and receives a number of shares of Common Stock equal to the
difference between the number of shares thereby purchased and the number of identified attestation shares of Common Stock (a “Stock
for Stock Exchange”); (ii) if the Common Stock is listed on any established stock exchange or a national market system,
through the delivery of irrevocable instructions to a broker to deliver promptly to the Company an amount equal to the exercise
price (i.e., by means of a “cashless” exercise procedure); (iii) by reduction in the number of shares of Common Stock
otherwise deliverable upon exercise of such Option with a Fair Market Value equal to the aggregate Option Exercise Price at the
time of exercise (i.e., by means of a “net exercise”); (iv) by any combination of the foregoing methods; or (v) in
any other form of legal consideration that may be acceptable to the Committee. Unless otherwise specifically provided in the Option,
the exercise price of Common Stock acquired pursuant to an Option that is paid by delivery (or attestation) to the Company of other
Common Stock acquired, directly or indirectly from the Company, shall be paid only by shares of the Common Stock of the Company
that have been held for more than six months (or such longer or shorter period of time required to avoid a charge to earnings for
financial accounting purposes). Notwithstanding the foregoing, during any period for which the Common Stock is publicly traded
(i.e., the Common Stock is listed on any established stock exchange or a national market system) an exercise by a Director or Officer
that involves or may involve a direct or indirect extension of credit or arrangement of an extension of credit by the Company,
directly or indirectly, in violation of Section 402(a) of the Sarbanes-Oxley Act of 2002 shall be prohibited with respect to any
Award under this Plan.


 


6.5      Transferability
of an Incentive Stock Option. An Incentive Stock Option shall not be transferable except by will or by the laws of descent
and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the
foregoing, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate
a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option.


 


6.6      Transferability
of a Non-Qualified Stock Option. A Non-Qualified Stock Option may, in the sole discretion of the Committee, be transferable
to a Permitted Transferee, upon written approval by the Committee to the extent provided in the Award Agreement. If the Non-Qualified
Stock Option does not provide for transferability, then the Non-Qualified Stock Option shall not be transferable except by will
or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder.
Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the
Option.


 


6.7      Vesting
of Options. Each Option may, but need not, vest and therefore become exercisable in periodic installments that may, but need
not, be equal. The Option may be subject to such other terms and conditions on the time or times when it may be exercised (which
may be based on performance or other criteria) as the Committee may deem appropriate. The vesting provisions of individual Options
may vary. No Option may be exercised for a fraction of a share of Common Stock.


 






    	 	10	 



     


    

 


6.8      Termination
of Continuous Service. Unless otherwise provided in an Award Agreement or in an employment agreement the terms of which have
been approved by the Committee, in the event an Optionholder’s Continuous Service terminates (other than upon the Optionholder’s
death or Disability), the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise
such Option as of the date of termination) but only within such period of time ending on the earlier of (a) the date three months
following the termination of the Optionholder’s Continuous Service or (b) the expiration of the term of the Option as set
forth in the Award Agreement; provided that, if the termination of Continuous Service is by the Company for Cause,
all outstanding Options (whether or not vested) shall immediately terminate and cease to be exercisable. If, after termination,
the Optionholder does not exercise his or her Option within the time specified in the Award Agreement, the Option shall terminate.


 


6.9      Extension
of Termination Date. An Optionholder’s Award Agreement may also provide that if the exercise of the Option following
the termination of the Optionholder’s Continuous Service for any reason would be prohibited at any time because the issuance
of shares of Common Stock would violate the registration requirements under the Securities Act or any other state or federal securities
law or the rules of any securities exchange or interdealer quotation system, then the Option shall terminate on the earlier of
(a) the expiration of the term of the Option in accordance with Section 6.1 or (b) the expiration of a period after termination
of the Participant’s Continuous Service that is three months after the end of the period during which the exercise of the
Option would be in violation of such registration or other securities law requirements.


 


6.10   Disability
of Optionholder. Unless otherwise provided in an Award Agreement, in the event that an Optionholder’s Continuous Service
terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her Option (to the extent that
the Optionholder was entitled to exercise such Option as of the date of termination), but only within such period of time ending
on the earlier of (a) the date that is 12 months following such termination or (b) the expiration of the term of the Option as
set forth in the Award Agreement. If, after termination, the Optionholder does not exercise his or her Option within the time specified
herein or in the Award Agreement, the Option shall terminate.


 


6.11   Death
of Optionholder. Unless otherwise provided in an Award Agreement, in the event an Optionholder’s Continuous Service terminates
as a result of the Optionholder’s death, then the Option may be exercised (to the extent the Optionholder was entitled to
exercise such Option as of the date of death) by the Optionholder’s estate, by a person who acquired the right to exercise
the Option by bequest or inheritance or by a person designated to exercise the Option upon the Optionholder’s death, but
only within the period ending on the earlier of (a) the date 12 months following the date of death or (b) the expiration of the
term of such Option as set forth in the Award Agreement. If, after the Optionholder’s death, the Option is not exercised
within the time specified herein or in the Award Agreement, the Option shall terminate.


 


6.12   Incentive
Stock Option $100,000 Limitation. 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 Optionholder during any calendar
year (under all plans of the Company and its Affiliates) exceeds $100,000, the Options or portions thereof which exceed such limit
(according to the order in which they were granted) shall be treated as Non-Qualified Stock Options.


 


6.13 Reload
Options. No Option may include provisions that "reload" the Option upon exercise.


 


7.       Provisions
of Awards Other Than Options.


 


7.1      Stock
Appreciation Rights.


 


(a)       General.
Each Stock Appreciation Right granted under the Plan shall be evidenced by an Award Agreement. Each Stock Appreciation Right so
granted shall be subject to the conditions set forth in this Section 7.1, and to such other conditions not inconsistent
with the Plan as may be reflected in the applicable Award Agreement. Stock Appreciation Rights may be granted alone (“Free
Standing Rights”) or in tandem with an Option granted under the Plan (“Related Rights”).


 






    	 	11	 



     


    

 


(b)      Grant
Requirements. Any Related Right that relates to a Non-Qualified Stock Option may be granted at the same time the Option is
granted or at any time thereafter but before the exercise or expiration of the Option. Any Related Right that relates to an Incentive
Stock Option must be granted at the same time the Incentive Stock Option is granted.


 


(c)       Term
of Stock Appreciation Rights. The term of a Stock Appreciation Right granted under the Plan shall be determined by the Committee; provided,
however, no Stock Appreciation Right shall be exercisable later than the tenth anniversary of the Grant Date.


 


(d)      Vesting
of Stock Appreciation Rights. Each Stock Appreciation Right may, but need not, vest and therefore become exercisable in periodic
installments that may, but need not, be equal. The Stock Appreciation Right may be subject to such other terms and conditions on
the time or times when it may be exercised as the Committee may deem appropriate. The vesting provisions of individual Stock Appreciation
Rights may vary. No Stock Appreciation Right may be exercised for a fraction of a share of Common Stock.


 


(e)       Exercise
and Payment. Upon exercise of a Stock Appreciation Right, the holder shall be entitled to receive from the Company an amount
equal to the number of shares of Common Stock subject to the Stock Appreciation Right that is being exercised multiplied by the
excess of (i) the Fair Market Value of a share of Common Stock on the date the Award is exercised, over (ii) the exercise price
specified in the Stock Appreciation Right or related Option. Payment with respect to the exercise of a Stock Appreciation Right
shall be made on the date of exercise. Payment shall be made in the form of shares of Common Stock (with or without restrictions
as to substantial risk of forfeiture and transferability, as determined by the Committee in its sole discretion), cash or a combination
thereof, as determined by the Committee.


 


(f)        Exercise
Price. The exercise price of a Free Standing Right shall be determined by the Committee. A Related Right granted simultaneously
with or subsequent to the grant of an Option and in conjunction therewith or in the alternative thereto shall have the same exercise
price as the related Option, shall be transferable only upon the same terms and conditions as the related Option, and shall be
exercisable only to the same extent as the related Option; provided, however, that a Stock Appreciation Right, by its
terms, shall be exercisable only when the Fair Market Value per share of Common Stock subject to the Stock Appreciation Right and
related Option exceeds the exercise price per share thereof and no Stock Appreciation Rights may be granted in tandem with an Option
unless the Committee determines that the requirements of Section 7.1(b) are satisfied.


 


(g)      Reduction
in the Underlying Option Shares. Upon any exercise of a Related Right, the number of shares of Common Stock for which any related
Option shall be exercisable shall be reduced by the number of shares for which the Stock Appreciation Right has been exercised.
The number of shares of Common Stock for which a Related Right shall be exercisable shall be reduced upon any exercise of any related
Option by the number of shares of Common Stock for which such Option has been exercised.


 


7.2      Restricted
Awards.


 


(a)       General.
A Restricted Award is an Award of actual shares of Common Stock (“Restricted Stock”) or hypothetical Common
Stock units (“Restricted Stock Units”) having a value equal to the Fair Market Value of an identical number
of shares of Common Stock, which may, but need not, provide that such Restricted Award may not be sold, assigned, transferred or
otherwise disposed of, pledged or hypothecated as collateral for a loan or as security for the performance of any obligation or
for any other purpose for such period (the “Restricted Period”) as the Committee shall determine. Each Restricted
Award granted under the Plan shall be evidenced by an Award Agreement. Each Restricted Award so granted shall be subject to the
conditions set forth in this Section 7.2 and to such other conditions not inconsistent with the Plan as may be
reflected in the applicable Award Agreement.


 


(b)      Restricted
Stock and Restricted Stock Units.


 


(i)   Each
Participant granted Restricted Stock shall execute and deliver to the Company an Award Agreement with respect to the Restricted
Stock setting forth the restrictions and other terms and conditions applicable to such Restricted Stock. If the Committee determines
that the Restricted Stock shall be held by the Company or in escrow rather than delivered to the Participant pending the release
of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company (A)
an escrow agreement satisfactory to the Committee, if applicable and (B) the appropriate blank stock power with respect to the
Restricted Stock covered by such agreement. If a Participant fails to execute an agreement evidencing an Award of Restricted Stock
and, if applicable, an escrow agreement and stock power, the Award shall be null and void. Subject to the restrictions set forth
in the Award, the Participant generally shall have the rights and privileges of a stockholder as to such Restricted Stock, including
the right to vote such Restricted Stock and the right to receive dividends; provided that, any cash dividends and stock
dividends with respect to the Restricted Stock shall be withheld by the Company for the Participant’s account, and interest
may be credited on the amount of the cash dividends withheld at a rate and subject to such terms as determined by the Committee.
The cash dividends or stock dividends so withheld by the Committee and attributable to any particular share of Restricted Stock
(and earnings thereon, if applicable) shall be distributed to the Participant in cash or, at the discretion of the Committee, in
shares of Common Stock having a Fair Market Value equal to the amount of such dividends, if applicable, upon the release of restrictions
on such share and, if such share is forfeited, the Participant shall have no right to such dividends.


 






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(ii) The
terms and conditions of a grant of Restricted Stock Units shall be reflected in an Award Agreement. No shares of Common Stock shall
be issued at the time a Restricted Stock Unit is granted, and the Company will not be required to set aside funds for the payment
of any such Award. A Participant shall have no voting rights with respect to any Restricted Stock Units granted hereunder. The
Committee may also grant Restricted Stock Units with a deferral feature, whereby settlement is deferred beyond the vesting date
until the occurrence of a future payment date or event set forth in an Award Agreement (“Deferred Stock Units”).
At the discretion of the Committee, each Restricted Stock Unit or Deferred Stock Unit (representing one share of Common Stock)
may be credited with an amount equal to the cash and stock dividends paid by the Company in respect of one share of Common Stock
(“Dividend Equivalents”). Dividend Equivalents shall be withheld by the Company and credited to the Participant’s
account, and interest may be credited on the amount of cash Dividend Equivalents credited to the Participant’s account at
a rate and subject to such terms as determined by the Committee. Dividend Equivalents credited to a Participant’s account
and attributable to any particular Restricted Stock Unit or Deferred Stock Unit (and earnings thereon, if applicable) shall be
distributed in cash or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount
of such Dividend Equivalents and earnings, if applicable, to the Participant upon settlement of such Restricted Stock Unit or Deferred
Stock Unit and, if such Restricted Stock Unit or Deferred Stock Unit is forfeited, the Participant shall have no right to such
Dividend Equivalents.


  


(c)       Restrictions.


 


(i)   Restricted
Stock awarded to a Participant shall be subject to the following restrictions until the expiration of the Restricted Period, and
to such other terms and conditions as may be set forth in the applicable Award Agreement: (A) if an escrow arrangement is used,
the Participant shall not be entitled to delivery of the stock certificate; (B) the shares shall be subject to the restrictions
on transferability set forth in the Award Agreement; (C) the shares shall be subject to forfeiture to the extent provided in the
applicable Award Agreement; and (D) to the extent such shares are forfeited, the stock certificates shall be returned to the Company,
and all rights of the Participant to such shares and as a stockholder with respect to such shares shall terminate without further
obligation on the part of the Company.


 


(ii) Restricted
Stock Units and Deferred Stock Units awarded to any Participant shall be subject to (A) forfeiture until the expiration of the
Restricted Period, and satisfaction of any applicable Performance Goals during such period, to the extent provided in the applicable
Award Agreement, and to the extent such Restricted Stock Units or Deferred Stock Units are forfeited, all rights of the Participant
to such Restricted Stock Units or Deferred Stock Units shall terminate without further obligation on the part of the Company and
(B) such other terms and conditions as may be set forth in the applicable Award Agreement.


 






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(d)      Restricted
Period. With respect to Restricted Awards, the Restricted Period shall commence on the Grant Date and end at the time or times
set forth on a schedule established by the Committee in the applicable Award Agreement. No Restricted Award may be granted or settled
for a fraction of a share of Common Stock.


 


(e)       Delivery
of Restricted Stock and Settlement of Restricted Stock Units. Upon the expiration of the Restricted Period with respect to
any shares of Restricted Stock, the restrictions set forth in Section 7.2(c) and the applicable Award Agreement shall
be of no further force or effect with respect to such shares, except as set forth in the applicable Award Agreement. If an escrow
arrangement is used, upon such expiration, the Company shall deliver to the Participant, or his or her beneficiary, without charge,
the stock certificate evidencing the shares of Restricted Stock which have not then been forfeited and with respect to which the
Restricted Period has expired (to the nearest full share) and any cash dividends or stock dividends credited to the Participant’s
account with respect to such Restricted Stock and the interest thereon, if any. Upon the expiration of the Restricted Period with
respect to any outstanding Restricted Stock Units, or at the expiration of the deferral period with respect to any outstanding
Deferred Stock Units, the Company shall deliver to the Participant, or his or her beneficiary, without charge, one share of Common
Stock for each such outstanding vested Restricted Stock Unit or Deferred Stock Unit (“Vested Unit”) and cash
equal to any Dividend Equivalents credited with respect to each such Vested Unit in accordance with Section 7.2(b)(ii) hereof
and the interest thereon or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to
such Dividend Equivalents and the interest thereon, if any; provided, however, that, if explicitly provided in the
applicable Award Agreement, the Committee may, in its sole discretion, elect to pay cash or part cash and part Common Stock in
lieu of delivering only shares of Common Stock for Vested Units. If a cash payment is made in lieu of delivering shares of Common
Stock, the amount of such payment shall be equal to the Fair Market Value of the Common Stock as of the date on which the Restricted
Period lapsed in the case of Restricted Stock Units, or the delivery date in the case of Deferred Stock Units, with respect to
each Vested Unit.


 


(f)        Stock
Restrictions. Each certificate representing Restricted Stock awarded under the Plan shall bear a legend in such form as the
Company deems appropriate.


 


7.3      Performance
Share Awards.


 


(a)       Grant
of Performance Share Awards. Each Performance Share Award granted under the Plan shall be evidenced by an Award Agreement.
Each Performance Share Award so granted shall be subject to the conditions set forth in this Section 7.3, and to such
other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. The Committee shall have
the discretion to determine: (i) the number of shares of Common Stock or stock-denominated units subject to a Performance Share
Award granted to any Participant; (ii) the Performance Period applicable to any Award; (iii) the conditions that must be satisfied
for a Participant to earn an Award; and (iv) the other terms, conditions and restrictions of the Award.


 


(b)      Earning
Performance Share Awards. The number of Performance Shares earned by a Participant will depend on the extent to which the performance
goals established by the Committee are attained within the applicable Performance Period, as determined by the Committee.


 


7.4      Other
Equity-Based Awards and Cash Awards. The Committee may grant Other Equity-Based Awards, either alone or in tandem with other
Awards, in such amounts and subject to such conditions as the Committee shall determine in its sole discretion. Each Equity-Based
Award shall be evidenced by an Award Agreement and shall be subject to such conditions, not inconsistent with the Plan, as may
be reflected in the applicable Award Agreement. The Committee may grant Cash Awards in such amounts and subject to such Performance
Goals, other vesting conditions, and such other terms as the Committee determines in its discretion. Cash Awards shall be evidenced
in such form as the Committee may determine.


 






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8.       Securities
Law Compliance. Each Award Agreement shall provide that no shares of Common Stock shall be purchased or sold thereunder unless
and until (a) any then applicable requirements of state or federal laws and regulatory agencies have been fully complied with to
the satisfaction of the Company and its counsel and (b) if required to do so by the Company, the Participant has executed and delivered
to the Company a letter of investment intent in such form and containing such provisions as the Committee may require. The Company
shall use reasonable efforts to seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such
authority as may be required to grant Awards and to issue and sell shares of Common Stock upon exercise of the Awards; provided,
however, that this undertaking shall not require the Company to register under the Securities Act the Plan, any Award or any
Common Stock issued or issuable pursuant to any such Award. If, after reasonable efforts, the Company is unable to obtain from
any such regulatory commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and
sale of Common Stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock
upon exercise of such Awards unless and until such authority is obtained.


 


9.       Use
of Proceeds from Stock. Proceeds from the sale of Common Stock pursuant to Awards, or upon exercise thereof, shall constitute
general funds of the Company.


 


10.    Miscellaneous.


 


10.1   Exercisability
and Vesting10.2. The Committee shall have the power to accelerate the time at which an
Award may first be exercised or the time during which an Award or any part thereof will vest in accordance with the Plan, notwithstanding
the provisions in the Award stating the time at which it may first be exercised or the time during which it will vest.


 


10.3   Stockholder
Rights. Except as provided in the Plan or an Award Agreement, no Participant shall 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 such Award unless and until such Participant
has satisfied all requirements for exercise of the Award pursuant to its terms and no adjustment shall be made for dividends (ordinary
or extraordinary, whether in cash, securities or other property) or distributions of other rights for which the record date is
prior to the date such Common Stock certificate is issued, except as provided in Section 11 hereof.


 


10.4   No
Employment or Other Service Rights. Nothing in the Plan or any instrument executed or Award granted pursuant thereto shall
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 shall affect the right of the Company or an Affiliate to terminate (a) the employment of an Employee with
or without notice and with or without Cause or (b) 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.


 


10.5   Transfer;
Approved Leave of Absence. For purposes of the Plan, no termination of employment by an Employee shall be deemed to result
from either (a) a transfer of employment to the Company from an Affiliate or from the Company to an Affiliate, or from one Affiliate
to another, or (b) an approved leave of absence for military service or sickness, or for any other purpose approved by the Company,
if the Employee’s right to reemployment is guaranteed either by a statute or by contract or under the policy pursuant to
which the leave of absence was granted or if the Committee otherwise so provides in writing, in either case, except to the extent
inconsistent with Section 409A of the Code if the applicable Award is subject thereto.


 


10.6   Withholding
Obligations. To the extent provided by the terms of an Award Agreement and subject to the discretion of the Committee, the
Participant may satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition of Common
Stock under 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: (a) tendering a cash payment; (b) authorizing the Company
to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise
or acquisition of Common Stock under the Award, provided, however, that no shares of Common Stock are withheld for
such purpose with a value exceeding the maximum amount of tax required to be withheld by law; (c) delivering to the Company previously
owned and unencumbered shares of Common Stock of the Company; or (d) if the Common Stock is listed on any established stock exchange
or a national market system, through the delivery of irrevocable instructions to a broker to deliver promptly to the Company an
amount equal to the tax required to be withheld by law (i.e., by means of a “cashless” exercise procedure).


 






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11.    Adjustments
Upon Changes in Stock. In the event of changes in the outstanding Common Stock or in the capital structure of the Company by
reason of any stock or extraordinary cash dividend, stock split, reverse stock split, an extraordinary corporate transaction such
as any recapitalization, reorganization, merger, consolidation, combination, exchange, or other relevant change in capitalization
occurring after the Grant Date of any Award, Awards granted under the Plan and any Award Agreements, the exercise price of Options
and Stock Appreciation Rights, the Performance Goals to which Performance Share Awards and Cash Awards are subject, the maximum
number of shares of Common Stock subject to all Awards stated in Section 4 will be equitably adjusted or substituted,
as to the number, price or kind of a share of Common Stock or other consideration subject to such Awards to the extent necessary
to preserve the economic intent of such Award. In the case of adjustments made pursuant to this Section 11, unless
the Committee specifically determines that such adjustment is in the best interests of the Company or its Affiliates, the Committee
shall, in the case of Incentive Stock Options, ensure that any adjustments under this Section 11 will not constitute
a modification, extension or renewal of the Incentive Stock Options within the meaning of Section 424(h)(3) of the
Code and in the case of Non-Qualified Stock Options, ensure that any adjustments under this Section 11 will not
constitute a modification of such Non-Qualified Stock Options within the meaning of Section 409A of the Code. Any adjustments made
under this Section 11 shall be made in a manner which does not adversely affect the exemption provided pursuant
to Rule 16b-3 under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder and, upon notice,
such adjustment shall be conclusive and binding for all purposes.


 


12.    Effect of
Change in Control.


 


12.1   Notwithstanding
any provision of the Plan to the contrary:


 


(a)     In
the event of a Participant’s termination of Continuous Service without Cause or for Good Reason during the 12-month period
following a Change in Control, all outstanding Options and Stock Appreciation Rights shall become immediately exercisable with
respect to 100% of the shares subject to such Options or Stock Appreciation Rights, and/or the Restricted Period shall expire immediately
with respect to 100% of the outstanding shares of Restricted Stock or Restricted Stock Units as of the date of the Participant’s
termination of Continuous Service.


 


(b)    With
respect to Performance Share Awards and Cash Awards, in the event of a Change in Control, all incomplete Performance Periods in
respect of such Awards in effect on the date the Change in Control occurs shall end on the date of such change and the Committee
shall (i) determine the extent to which Performance Goals with respect to each such Performance Period have been met based upon
such audited or unaudited financial information then available as it deems relevant and (ii) cause to be paid to the applicable
Participant partial or full Awards with respect to Performance Goals for each such Performance Period based upon the Committee’s
determination of the degree of attainment of Performance Goals or, if not determinable, assuming that the applicable “target”
levels of performance have been attained, or on such other basis determined by the Committee.


  


To the
extent practicable, any actions taken by the Committee under the immediately preceding clauses (a) and (b) shall occur in a manner
and at a time which allows affected Participants the ability to participate in the Change in Control with respect to the shares
of Common Stock subject to their Awards.


 


12.2   In
the event of a Change in Control, the Committee may cancel any outstanding Awards and pay to the holders thereof, in cash or stock,
or any combination thereof, the value of such Awards based upon the price per share of Common Stock received or to be received
by other stockholders of the Company in the event. In the case of any Option or Stock Appreciation Right with an exercise price
that equals or exceeds the price paid for a share of Common Stock in connection with the Change in Control, the Committee may cancel
the Option or Stock Appreciation Right without the payment of consideration therefor.


 


12.3   The
obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger,
consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to all or substantially
all of the assets and business of the Company and its Affiliates, taken as a whole.


 






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13.    Amendment
of the Plan and Awards.


 


13.1   Amendment
of Plan. The Board at any time, and from time to time, may amend or terminate the Plan. However, except as provided in Section
11 relating to adjustments upon changes in Common Stock and Section 13.3, no amendment shall be effective unless approved
by the stockholders of the Company to the extent stockholder approval is necessary to satisfy any Applicable Laws. At the time
of such amendment, the Board shall determine, upon advice from counsel, whether such amendment will be contingent on stockholder
approval.


 


13.2   Stockholder
Approval. The Board may, in its sole discretion, submit any other amendment to the Plan for stockholder approval.


 


13.3   Contemplated
Amendments. It is expressly contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable
to provide eligible Employees, Consultants and Directors with the maximum benefits provided or to be provided under the provisions
of the Code and the regulations promulgated thereunder relating to Incentive Stock Options or to the nonqualified deferred compensation
provisions of Section 409A of the Code and/or to bring the Plan and/or Awards granted under it into compliance therewith.


 


13.4   No
Impairment of Rights. Rights under any Award granted before amendment of the Plan shall not be impaired by any amendment of
the Plan unless (a) the Company requests the consent of the Participant and (b) the Participant consents in writing.


 


13.5   Amendment
of Awards. The Committee at any time, and from time to time, may amend the terms of any one or more Awards; provided,
however, that the Committee may not affect any amendment which would otherwise constitute an impairment of the rights under
any Award unless (a) the Company requests the consent of the Participant and (b) the Participant consents in writing.


 


14.    General Provisions.


 


14.1   Forfeiture
Events. The Committee may specify in an Award Agreement that the Participant’s rights, payments and benefits with respect
to an Award shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain events, in addition
to applicable vesting conditions of an Award. Such events may include, without limitation, breach of non-competition, non-solicitation,
confidentiality, or other restrictive covenants that are contained in the Award Agreement or otherwise applicable to the Participant,
a termination of the Participant’s Continuous Service for Cause, or other conduct by the Participant that is detrimental
to the business or reputation of the Company and/or its Affiliates.


 


14.2   Clawback.
Notwithstanding any other provisions in this Plan, the Company may cancel any Award, require reimbursement of any Award by a Participant,
and effect any other right of recoupment of equity or other compensation provided under the Plan in accordance with any Company
policies that may be adopted and/or modified from time to time (“Clawback Policy”). In addition, a Participant
may be required to repay to the Company previously paid compensation, whether provided pursuant to the Plan or an Award Agreement,
in accordance with the Clawback Policy. By accepting an Award, the Participant is agreeing to be bound by the Clawback Policy,
as in effect or as may be adopted and/or modified from time to time by the Company in its discretion (including, without limitation,
to comply with applicable law or stock exchange listing requirements).


 


 


14.3   Other
Compensation Arrangements. Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation
arrangements, subject to stockholder approval if such approval is required; and such arrangements may be either generally applicable
or applicable only in specific cases.


 






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14.4   Sub-Plans.
The Committee may from time to time establish sub-plans under the Plan for purposes of satisfying securities, tax or other laws
of various jurisdictions in which the Company intends to grant Awards. Any sub-plans shall contain such limitations and other terms
and conditions as the Committee determines are necessary or desirable. All sub-plans shall be deemed a part of the Plan, but each
sub-plan shall apply only to the Participants in the jurisdiction for which the sub-plan was designed.


  


14.5   Deferral
of Awards. The Committee may establish one or more programs under the Plan to permit selected Participants the opportunity
to elect to defer receipt of consideration upon exercise of an Award, satisfaction of performance criteria, or other event that
absent the election would entitle the Participant to payment or receipt of shares of Common Stock or other consideration under
an Award. The Committee may establish the election procedures, the timing of such elections, the mechanisms for payments of, and
accrual of interest or other earnings, if any, on amounts, shares or other consideration so deferred, and such other terms, conditions,
rules and procedures that the Committee deems advisable for the administration of any such deferral program.


 


14.6   Unfunded
Plan. The Plan shall be unfunded. Neither the Company, the Board nor the Committee shall be required to establish any special
or separate fund or to segregate any assets to assure the performance of its obligations under the Plan.


 


14.7   Recapitalizations.
Each Award Agreement shall contain provisions required to reflect the provisions of Section 11.


 


14.8   Delivery.
Upon exercise of a right granted under this Plan, the Company shall issue Common Stock or pay any amounts due within a reasonable
period of time thereafter. Subject to any statutory or regulatory obligations the Company may otherwise have, for purposes of this
Plan, 30 days shall be considered a reasonable period of time.


 


14.9   No
Fractional Shares. No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Committee shall
determine whether cash, additional Awards or other securities or property shall be issued or paid in lieu of fractional shares
of Common Stock or whether any fractional shares should be rounded, forfeited or otherwise eliminated.


 


14.10   Other
Provisions. The Award Agreements authorized under the Plan may contain such other provisions not inconsistent with this Plan,
including, without limitation, restrictions upon the exercise of Awards, as the Committee may deem advisable.


 


14.11   Section
409A. The Plan is intended to comply with Section 409A of the Code to the extent subject thereto, and, accordingly, to the
maximum extent permitted, the Plan shall be interpreted and administered to be in compliance therewith. Any payments described
in the Plan that are due within the “short-term deferral period” as defined in Section 409A of the Code shall not be
treated as deferred compensation unless Applicable Laws require otherwise. Notwithstanding anything to the contrary in the Plan,
to the extent required to avoid accelerated taxation and tax penalties under Section 409A of the Code, amounts that would otherwise
be payable and benefits that would otherwise be provided pursuant to the Plan during the six month period immediately following
the Participant’s termination of Continuous Service shall instead be paid on the first payroll date after the six-month anniversary
of the Participant’s separation from service (or the Participant’s death, if earlier). Notwithstanding the foregoing,
neither the Company nor the Committee shall have any obligation to take any action to prevent the assessment of any additional
tax or penalty on any Participant under Section 409A of the Code and neither the Company nor the Committee will have any liability
to any Participant for such tax or penalty.


 


14.12   Disqualifying
Dispositions. Any Participant who shall make a “disposition” (as defined in Section 424 of the Code) of all or
any portion of shares of Common Stock acquired upon exercise of an Incentive Stock Option within two years from the Grant Date
of such Incentive Stock Option or within one year after the issuance of the shares of Common Stock acquired upon exercise of such
Incentive Stock Option (a “Disqualifying Disposition”) shall be required to immediately advise the Company in
writing as to the occurrence of the sale and the price realized upon the sale of such shares of Common Stock.


 






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14.13   Section
16. It is the intent of the Company that the Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements
of Rule 16b-3 as promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the benefit of Rule
16b-3, or any other rule promulgated under Section 16 of the Exchange Act, and will not be subject to short-swing liability under
Section 16 of the Exchange Act. Accordingly, if the operation of any provision of the Plan would conflict with the intent expressed
in this Section 14.13, such provision to the extent possible shall be interpreted and/or deemed amended so as to avoid
such conflict.


 


14.14   Beneficiary
Designation. Each Participant under the Plan may from time to time name any beneficiary or beneficiaries by whom any right
under the Plan is to be exercised in case of such Participant’s death. Each designation will revoke all prior designations
by the same Participant, shall be in a form reasonably prescribed by the Committee and shall be effective only when filed by the
Participant in writing with the Company during the Participant’s lifetime.


 


14.15   Expenses.
The costs of administering the Plan shall be paid by the Company.


 


14.16   Severability.
If any of the provisions of the Plan or any Award Agreement is held to be invalid, illegal or unenforceable, whether in whole or
in part, such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability
and the remaining provisions shall not be affected thereby.


 


14.17   Plan
Headings. The headings in the Plan are for purposes of convenience only and are not intended to define or limit the construction
of the provisions hereof.


 


14.18   Non-Uniform
Treatment. The Committee’s determinations under the Plan need not be uniform and may be made by it selectively among
persons who are eligible to receive, or actually receive, Awards. Without limiting the generality of the foregoing, the Committee
shall be entitled to make non-uniform and selective determinations, amendments and adjustments, and to enter into non-uniform and
selective Award Agreements.


 


15.    Effective
Date of Plan. The Plan shall become effective as of the Effective Date, but no Award shall be exercised (or, in the case of
a stock Award, shall be granted) unless and until the Plan has been approved by the stockholders of the Company, which approval
shall be within twelve (12) months before or after the date the Plan is adopted by the Board.


 


16.    Termination
or Suspension of the Plan. The Plan shall terminate automatically on tenth anniversary of the Effective Date. No Award shall
be granted pursuant to the Plan after such date, but Awards theretofore granted may extend beyond that date. The Board may suspend
or terminate the Plan at any earlier date pursuant to Section 13.1 hereof. No Awards may be granted under the
Plan while the Plan is suspended or after it is terminated.


 


17.    Choice of
Law. The law of the State of Delaware shall govern all questions concerning the construction, validity and interpretation of
this Plan, without regard to such state’s conflict of law rules.


  



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