Exhibit 10.6


 


RITTER PHARMACEUTICALS, INC.


 


2009 STOCK PLAN


 


1.          Purposes of the Plan.  The
purposes of this Plan are to attract and retain the best available personnel for positions of substantial responsibility, to provide
additional incentive to Employees, Directors and Consultants and to promote the success of the Company's business. Options granted
under the Plan may be Incentive Stock Options or Nonstatutory Stock Options, as determined by the Administrator at the time of
grant. Stock Purchase Rights may also be granted under the Plan.


 


2.          Definitions.  As
used herein, the following definitions shall apply:


 


(a)          “Administrator”
means the Board or any of its Committees as shall be administering the Plan in accordance with Section 4 hereof.


 


(b)          “Applicable
Laws” means the requirements relating to the administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted
and the applicable laws of any other country or jurisdiction where Options or Stock Purchase Rights are granted under the Plan.


 


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


 


(d)          “Change
in Control” means the occurrence of any of the following events:


 


(i)          Any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner”
(as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the Company’s then outstanding voting securities; or


 


(ii)         The
consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets; or


 


(iii)        The
consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of
the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately
after such merger or consolidation. Notwithstanding the foregoing, only a Change in Control event that also qualifies as a "change
in the ownership" or a "change in the effective control" of the Company or a "change in the ownership of a
substantial portion" of the assets of the Company within the meaning of Treasury Regulation Section 1.409A-3(i)(5) shall be
recognized as a Change of Control for purposes of triggering exercise, distribution or settlement rights under any Option or Stock
Purchase Right granted under this Plan that is subject to Code Section 409A.


 







    	 



    	 



    

 


(e)          “Code”
means the Internal Revenue Code of 1986, as amended.


 


(f)          “Committee”
means a committee of Directors or of other individuals satisfying Applicable Laws appointed by the Board in accordance with Section 4
hereof.


 


(g)          “Common
Stock” means the Common Stock of the Company.


 


(h)          “Company”
means Ritter Pharmaceuticals, Inc., a Delaware corporation.


 


(i)          “Consultant”
means any person who is engaged by the Company or any Parent or Subsidiary to render consulting or advisory services to such entity.


 


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


 


(k)          “Disability”
means total and permanent disability as defined in Section 22(e)(3) of the Code; provided, however, that for purposes of exercising
any Option or Stock Purchase Right which is subject to Section 409A of the Code, "Disability" means that the subject
individual is considered "disabled" within the meaning of Treasury Regulation Sections 1.409A-3(a)(2) and (i)(4), as
determined by the Administrator in its sole discretion.


 


(l)          “Employee”
means any person, including officers and Directors, employed by the Company or any Parent or Subsidiary of the Company. Neither
service as a Director nor payment of a director's fee by the Company shall be sufficient to constitute “employment”
by the Company.


 


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


 


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


 


(i)          If
the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price
for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination,
as reported in The Wall Street Journal or such other source as the Administrator deems reliable;


 


(ii)         If
the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for the Common Stock on the day of determination; or


 


(iii)        In
the absence of an established market for the Common Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator by the reasonable application of a reasonable valuation method in accordance with Treasury Regulation Section 1.409A-1(b)(5)(iv)(B).


 


(o)          
“Incentive Stock Option” means an Option intended to qualify as an incentive stock option within the meaning
of Section 422 of the Code.


 




    	- 2 -



    	 



    

 


(p)          
“Nonstatutory Stock Option” means an Option not intended to qualify as an Incentive Stock Option.


 


(q)          “Option”
means a stock option granted pursuant to the Plan.


 


(r)          “Option
Agreement” means a written or electronic agreement between the Company and an Optionee evidencing the terms and conditions
of an individual Option grant. The Option Agreement is subject to the terms and conditions of the Plan.


 


(s)          “Optioned Stock”
means the Common Stock subject to an Option or a Stock Purchase Right.


 


(t)          “Optionee”
means the holder of an outstanding Option or Stock Purchase Right granted under the Plan.


 


(u)          “Parent”
means a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.


 


(v)         “Plan”
means this 2009 Stock Plan.


 


(w)          “Restricted
Stock” means Shares issued pursuant to a Stock Purchase Right or Shares of restricted stock issued pursuant to an Option.


 


(x)          “Restricted
Stock Purchase Agreement” means a written agreement between the Company and the Optionee evidencing the terms and restrictions
applying to Shares purchased under a Stock Purchase Right. The Restricted Stock Purchase Agreement is subject to the terms and
conditions of the Plan and the notice of grant.


 


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


 


(z)          
“Service Provider” means an Employee, Director, Consultant or other permitted recipient under Rule 701 under
the Securities Act.


 


(aa)         “Share”
means a share of the Common Stock, as adjusted in accordance with Section 13 below.


 


(bb)         “Stock
Purchase Right” means a right to purchase Common Stock pursuant to Section 11 below.


 


(cc)         “Subsidiary”
means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.


 


3.          Stock Subject to the Plan.  Subject
to the provisions of Section 13 of the Plan, the maximum aggregate number of Shares that may be subject to option and sold
under the Plan is Five Hundred Thousand (500,000) Shares. The Shares may be authorized but unissued, or reacquired Common Stock.


 


If an Option or Stock Purchase
Right expires or becomes unexercisable without having been exercised in full, the unpurchased Shares that were subject thereto
shall become


 




    	- 3 -



    	 



    

 


 


available for future grant
or sale under the Plan (unless the Plan has terminated). However, Shares that have actually been issued under the Plan, upon exercise
of either an Option or Stock Purchase Right, shall not be returned to the Plan and shall not become available for future distribution
under the Plan, except that if unvested Shares of Restricted Stock are repurchased by the Company at their original purchase price,
such Shares shall become available for future grant under the Plan.


 


4.          Administration of the Plan.


 


(a)          Administrator.  The
Plan shall be administered by the Board or a Committee appointed by the Board, which Committee shall be constituted to comply with
Applicable Laws.


 


(b)          Powers of the Administrator.  Subject
to the provisions of the Plan and, in the case of a Committee, the specific duties delegated by the Board to such Committee, and
subject to the approval of any relevant authorities, the Administrator shall have the authority in its sole discretion:


 


(i)          to
determine the Fair Market Value;


 


(ii)         to
select the Service Providers to whom Options and Stock Purchase Rights may from time to time be granted hereunder;


 


(iii)        to
determine the number of Shares to be covered by each such award granted hereunder;


 


(iv)        to
approve forms of agreement for use under the Plan;


 


(v)         to
determine the terms and conditions of any Option or Stock Purchase Right granted hereunder. Such terms and conditions include,
but are not limited to, the exercise price, the time or times when Options or Stock Purchase Rights may be exercised (which may
be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation
regarding any Option or Stock Purchase Right or the Common Stock relating thereto, based in each case on such factors as the Administrator,
in its sole discretion, shall determine;


 


(vi)        to
prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of satisfying applicable foreign laws;


 


(vii)       to
allow Optionees to satisfy withholding tax obligations by electing to have the Company withhold from the Shares to be issued upon
exercise of an Option or Stock Purchase Right that number of Shares having a Fair Market Value equal to the minimum amount required
to be withheld. The Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be
withheld is to be determined. All elections by Optionees to have Shares withheld for this purpose shall be made in such form and
under such conditions as the Administrator may deem necessary or advisable; and


 




    	- 4 -



    	 



    

 


(viii)      to
construe and interpret the terms of the Plan and Options granted pursuant to the Plan.


 


(c)           Effect of Administrator's Decision.
All decisions, determinations and interpretations of the Administrator shall be final and binding on all Optionees.


 


5.          Eligibility.  Nonstatutory
Stock Options and Stock Purchase Rights may be granted to Service Providers. Incentive Stock Options may be granted only to Employees.


 


6.          Limitations.


 


(a)           Incentive
Stock Option Limit.  Each Option shall be designated in the Option Agreement as either an Incentive Stock Option
or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of
the Shares with respect to which Incentive Stock Options are exercisable for the first time by the Optionee during any calendar
year (under all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be treated as Nonstatutory
Stock Options. For purposes of this Section 6(a): (x) Incentive Stock Options shall be taken into account in the order
in which they were granted and (y)  the Fair Market Value of the Shares shall be determined as of the time the Option with
respect to such Shares is granted.


 


(b)           At-Will
Employment.  Neither the Plan nor any Option or Stock Purchase Right shall confer upon any Optionee any right with
respect to continuing the Optionee's relationship as a Service Provider with the Company, nor shall it interfere in any way with
his or her right or the Company's right to terminate such relationship at any time, with or without cause, and with or without
notice.


 


7.          Term of Plan.  Subject
to stockholder approval in accordance with Section 19, the Plan shall become effective upon its adoption by the Board. Unless sooner
terminated under Section 15, it shall continue in effect for a term of ten (10) years from the later of (i) the effective
date of the Plan, or (ii) the earlier of the Board approval or stockholder approval of the most recent amendment to Plan involving
an increase in the number of Shares reserved for issuance under the Plan.


 


8.          Term
of Option.  The term of each Option shall be stated in the Option Agreement; provided, however, that the term shall
be no more than ten (10) years from the date of grant thereof. In the case of an Incentive Stock Option granted to an Optionee
who, at the time the Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes
of stock of the Company or any Parent or Subsidiary, the term of the Option shall be five (5) years from the date of grant
or such shorter term as may be provided in the Option Agreement.


 




    	- 5 -



    	 



    

 


9.          Option
Exercise Price and Consideration.


 


(a)           Exercise
Price.  The per share exercise price for the Shares to be issued upon exercise of an Option shall be such price as
is determined by the Administrator, but shall be subject to the following:


 


(i)          In
the case of an Incentive Stock Option


 


(A)         
granted to an Employee who, at the time of grant of such Option, owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Parent or Subsidiary, the exercise price shall be no less than one hundred
ten percent (110%) of the Fair Market Value per Share on the date of grant.


 


(B)         granted
to any other Employee, the per Share exercise price shall be no less than one hundred percent (100%) of the Fair Market Value per
Share on the date of grant.


 


(ii)         In
the case of a Nonstatutory Stock Option, the per Share exercise price shall be no less than one hundred percent (100%) of the Fair
Market Value per Share on the date of grant.


 


(b)           Notwithstanding
the foregoing, Options may be granted with a per Share exercise price other than as required above pursuant to a merger or other
corporate transaction, or as otherwise determined by the Board provided, however, that for any Nonstatutory Stock Option which
is subject to Code Section 409A because it is granted with a per Share exercise price that is less than one hundred percent (100%)
of the Fair Market Value per Share as of the date of grant, the Option Agreement shall contain such provisions as necessary to
comply with Code Section 409A.


 


(c)           Forms
of Consideration.  The consideration to be paid for the Shares to be issued upon exercise of an Option, including
the method of payment, shall be determined by the Administrator (and, in the case of an Incentive Stock Option, shall be determined
at the time of grant). Such consideration may consist of, without limitation, (1) cash, (2) check, (3) promissory note,
(4) other Shares, provided Shares acquired directly from the Company (x) have been owned by the Optionee for more than six
(6) months on the date of surrender, and (y) have a Fair Market Value on the date of surrender equal to the aggregate exercise
price of the Shares as to which such Option shall be exercised, (5) consideration received by the Company under a cashless
exercise program implemented by the Company in connection with the Plan, or (6) any combination of the foregoing methods of
payment. In making its determination as to the type of consideration to accept, the Administrator shall consider if acceptance
of such consideration may be reasonably expected to benefit the Company, and what form of consideration is permitted by law.


 




    	- 6 -



    	 



    

  


10.         Exercise of Option.


 


(a)           Procedure for Exercise;
Rights as a Stockholder.  Any Option granted hereunder shall be exercisable according to the terms hereof at such
times and under such conditions as determined by the Administrator and set forth in the Option Agreement. An Option may not be
exercised for a fraction of a Share.


 


An Option shall be deemed
exercised when the Company receives (i) written or electronic notice of exercise (in accordance with the Option Agreement)
from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is
exercised. Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by
the Option Agreement and the Plan. Shares issued upon exercise of an Option shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee and his or her spouse. Until the Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive
dividends or any other rights as a stockholder shall exist with respect to the Shares, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made
for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 13
of the Plan.


 


Exercise of an Option in
any manner shall result in a decrease in the number of Shares thereafter available, both for purposes of the Plan and for sale
under the Option, by the number of Shares as to which the Option is exercised.


 


(b)           Termination of
Relationship as a Service Provider.  If an Optionee ceases to be a Service Provider, such Optionee may exercise his
or her Option within thirty (30) days of termination, or such longer period of time as specified in the Option Agreement, to the
extent that the Option is vested on the date of termination (but in no event later than the expiration of the term of the Option
as set forth in the Option Agreement, and in the case of an Incentive Stock Option, in no event later than the earlier of three (3)
months after the date of termination and the expiration of the term of the Option as set forth in the Option Agreement). If, on
the date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion
of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time
specified by the Administrator, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.


 


(c)           Disability
of Optionee.  If an Optionee ceases to be a Service Provider as a result of the Optionee's Disability, the Optionee
may exercise his or her Option within six (6) months of termination, or such longer period of time as specified in the Option Agreement,
to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option
as set forth in the Option Agreement, and in the case of an Incentive Stock Option, in no event later than the earlier of one (1)
year after the date of Termination and the expiration of the term of the Option as set forth in the Option Agreement). If, on the
date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the
Option shall revert to the Plan. If, after termination, the Optionee does


 




    	- 7 -



    	 



    

 


not exercise his or her Option
within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.


 


(d)           Death of Optionee.  If
an Optionee dies while a Service Provider, the Option may be exercised within six (6) months following Optionee’s death,
or such longer period of time as specified in the Option Agreement, to the extent that the Option is vested on the date of death
(but in no event later than the expiration of the term of such Option as set forth in the Option Agreement) by the Optionee’s
designated beneficiary, provided such beneficiary has been designated prior to Optionee’s death in a form acceptable to the
Administrator. If no such beneficiary has been designated by the Optionee, then such Option may be exercised by the personal representative
of the Optionee’s estate or by the person(s) to whom the Option is transferred pursuant to the Optionee’s will or in
accordance with the laws of descent and distribution. If, at the time of death, the Optionee is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option shall immediately revert to the Plan. If the Option is not so
exercised within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the
Plan.


 


(e)           Leaves
of Absence.


 


(i)          Unless
the Administrator provides otherwise, vesting of Options granted hereunder to employees, officers and Directors shall be suspended
during any unpaid leave of absence.


 


(ii)         A
Service Provider who is an Employee shall not cease to be an Employee in the case of (A) any leave of absence approved by
the Company or (B) transfers between locations of the Company or between the Company, its Parent, any Subsidiary, or any successor.


 


(iii)        For
purposes of Incentive Stock Options, no such leave may exceed ninety (90) days, unless reemployment upon expiration of such leave
is guaranteed by statute or contract. If reemployment upon expiration of a leave of absence approved by the Company is not so guaranteed,
then following the 91st day of such leave, any Incentive Stock Option held by the Optionee shall cease to be treated as an Incentive
Stock Option and shall be treated for tax purposes as a Nonstatutory Stock Option.


 




    	- 8 -



    	 



    

 


11.         Stock
Purchase Rights.


 


(a)           Rights
to Purchase.  Stock Purchase Rights may be issued either alone, in addition to, or in tandem with other awards granted
under the Plan and/or cash awards made outside of the Plan. After the Administrator determines that it will offer Stock Purchase
Rights under the Plan, it shall advise the offeree in writing or electronically of the terms, conditions and restrictions related
to the offer, including the number of Shares that such person shall be entitled to purchase, the price to be paid, and the time
within which such person must accept such offer. The terms of the offer shall comply in all respects with Section 260.140.42 of
Title 10 of the California Code of Regulations. The offer shall be accepted by execution of a Restricted Stock Purchase Agreement
in the form determined by the Administrator.


 


(b)           Repurchase
Option.  Unless the Administrator determines otherwise, the Restricted Stock Purchase Agreement shall grant the Company
a repurchase option exercisable within ninety (90) days of the voluntary or involuntary termination of the purchaser’s service
with the Company for any reason (including death or disability). The purchase price for Shares repurchased pursuant to the Restricted
Stock Purchase Agreement shall be the original price paid by the purchaser and may be paid by cancellation of any indebtedness
of the purchaser to the Company. The repurchase option shall lapse at such rate as the Administrator may determine.


 


(c)           Other
Provisions.  The Restricted Stock Purchase Agreement shall contain such other terms, provisions and conditions not
inconsistent with the Plan as may be determined by the Administrator in its sole discretion. If the price to be paid and any other
terms cause the Stock Purchase Right to be subject to Code Section 409A, then the applicable Restricted Stock Purchase Agreement
shall comply with all applicable requirement of Code Section 409A, including, without limitation, permissible distribution/settlement
events or dates, proper time and method of settlement, proper timing of deferral and exercise/settlement elections, and other applicable
provisions.


 


(d)           Rights
as a Stockholder.  Once the Stock Purchase Right is exercised, the purchaser shall have rights equivalent to those
of a stockholder and shall be a stockholder when his or her purchase is entered upon the records of the duly authorized transfer
agent of the Company. No adjustment shall be made for a dividend or other right for which the record date is prior to the date
the Stock Purchase Right is exercised, except as provided in Section 13 of the Plan.


 


12.        Limited
Transferability of Options and Stock Purchase Rights.  Unless determined otherwise by the Administrator,
Options and Stock Purchase Rights may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner,
and may be exercised only by the Optionee during the lifetime of the Optionee. If the Administrator, in its sole discretion, makes
an Incentive Stock Option transferable, such Incentive Stock Option may only be transferred (i) by will, (ii) by the laws of descent
and distribution, or (iii) to a revocable trust. If the Administrator, in its sole discretion, makes a Nonstatutory Stock Option
or Stock Purchase Right transferable, such Nonstatutory Stock Option may only be transferred (i) by will, or (ii) by the laws of
descent and distribution, (iii) to a revocable trust, or (iv) to Family Members of the Optionee. For purposes of this Section 12,
“Family Member” shall mean any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse,
registered domestic partner,


 




    	- 9 -



    	 



    

 


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 employee's household (other than a tenant or employee), a trust in which these persons have more than fifty percent of the
beneficial interest, a foundation in which these persons (or the employee) control the management of assets, and any other entity
in which these persons (or the employee) own more than fifty percent of the voting interests


 


13.        Adjustments;
Dissolution or Liquidation; Merger or Change in Control.


 


(a)           Adjustments.  In
the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization,
stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange
of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs,
the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available
under the Plan, may (in its sole discretion) adjust the number and class of Shares that may be delivered under the Plan and/or
the number, class, and price of Shares covered by each outstanding Option or Stock Purchase Right; provided, however, that the
Administrator shall make such adjustments to the extent required by Section 25102(o) of the California Corporations Code.


 


(b)           Dissolution
or Liquidation.  In the event of the proposed dissolution or liquidation of the Company, the Administrator shall
notify each Optionee as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not
been previously exercised, an Option or Stock Purchase Right will terminate immediately prior to the consummation of such proposed
action.


 


(c)          Merger
or Change in Control.  In the event of a merger of the Company with or into another corporation, or a Change in Control,
each outstanding Option and Stock Purchase Right shall be assumed or an equivalent option substituted by the successor corporation
or a Parent or Subsidiary of the successor corporation. In the event that the successor corporation in a merger or Change in Control
refuses to assume or substitute for the Option or Stock Purchase Right, then the Optionee shall fully vest in and have the right
to exercise the Option or Stock Purchase Right as to all of the Optioned Stock, including Shares as to which it would not otherwise
be vested or exercisable; provided, however, that such exercise shall only be permitted as and to the extent it complies with Code
Section 409A or does not cause the Option or Stock Purchase Right to cease to be exempt from that statute, notwithstanding any
provisions of this Section 13(c) to the contrary. If an Option or Stock Purchase Right becomes fully vested and exercisable in
lieu of assumption or substitution in the event of a merger or Change in Control, the Administrator shall notify the Optionee in
writing or electronically that this Option or Stock Purchase Right shall be fully exercisable for a period of fifteen (15) days
from the date of such notice, and the Option or Stock Purchase Right shall terminate upon expiration of such period. For the purposes
of this paragraph, the Option or Stock Purchase Right shall be considered assumed if, following the merger or Change in Control,
the option or right confers the right to purchase or receive, for each Share of Optioned Stock subject to the Option or Stock Purchase
Right immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property)
received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction
(and if holders were


 




    	- 10 -



    	 



    

 


offered a choice of consideration,
the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration
received in the merger or Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator
may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Option
or Stock Purchase Right, for each Share of Optioned Stock subject to the Option or Stock Purchase Right, to be solely common stock
of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of common
stock in the merger or Change in Control.


 


14.        Time of Granting Options
and Stock Purchase Rights.  The date of grant of an Option or Stock Purchase Right shall, for all purposes, be the
date on which the Administrator makes the determination granting such Option or Stock Purchase Right, or such later date as is
determined by the Administrator. Notice of the determination shall be given to each Service Provider to whom an Option or Stock
Purchase Right is so granted within a reasonable time after the date of such grant.


 


15.        Amendment and Termination of the Plan.


 


(a)           Amendment
and Termination.  The Board may at any time amend, alter, suspend or terminate the Plan.


 


(b)           Stockholder
Approval.  The Board shall obtain stockholder approval of any Plan amendment to the extent necessary and desirable
to comply with Applicable Laws.


 


(c)           Effect of Amendment or Termination.  No
amendment, alteration, suspension or termination of the Plan shall impair the rights of any Optionee, unless mutually agreed otherwise
between the Optionee and the Administrator, which agreement must be in writing and signed by the Optionee and the Company. Termination
of the Plan shall not affect the Administrator's ability to exercise the powers granted to it hereunder with respect to Options
granted under the Plan prior to the date of such termination.


 


16.        Conditions Upon Issuance of Shares.


 


(a)           Legal
Compliance.  Shares shall not be issued pursuant to the exercise of an Option unless the exercise of such Option
and the issuance and delivery of such Shares shall comply with Applicable Laws and shall be further subject to the approval of
counsel for the Company with respect to such compliance.


 


(b)          Investment
Representations.  As a condition to the exercise of an Option, the Administrator may require the person exercising
such Option to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation
is required.


 


17.        Inability
to Obtain Authority.  The inability of the Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company


 







    	- 11 -



    	 



    

  


of any liability
in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.


 


18.        Reservation of Shares.  The
Company, during the term of this Plan, shall at all times reserve and keep available such number of Shares as shall be sufficient
to satisfy the requirements of the Plan.


 


19.        Stockholder
Approval.  The Plan shall be subject to approval by the stockholders of the Company prior to the later of (i) twelve (12)
months after the date the Plan is adopted or (ii) the date of first grant of an Option or Stock Purchase Right to a Service Provider
in California. Such stockholder approval shall be obtained in the degree and manner required under Applicable Laws.


 


20.        409A
Compliance.  The Company intends that this Plan shall comply with Code Section 409A to the extent that statute applies
to any Option or Stock Purchase Right granted hereunder, but nothing in this Plan or in any Option Agreement or Restricted Stock
Purchase Agreement governed by this Plan shall constitute a guarantee of such compliance nor of any particular tax treatment of
any such award. The Company, the Board (and its members individually), the Administrator (and its members individually), and all
shareholders, officers, parents, subsidiaries, affiliates, successors, assigns and representatives of the Company shall have no
liability to any person claiming any interest in or rights under any Option or Stock Purchase Right granted under the Plan for
any taxes, interest, penalties or damages resulting from any non-compliance with Codes Section 409A, nor for any cost or expense
(including the fees of attorneys or other professional advisors) incurred by any such person in connection with any determination
whether a violation of Code Section 409A occurred or in connection with contesting, paying or settling any claim relating to such
a determination or violation.


 




    	- 12 -