Exhibit
10.1


 


OCEAN
POWER TECHNOLOGIES, INC.


EMPLOYMENT
INDUCEMENT INCENTIVE AWARD PLAN





 


ARTICLE
1 


PURPOSE


 


The
purpose of the Ocean Power Technologies, Inc. Employment Inducement Incentive Award Plan (the “Plan”) is to
promote the success and enhance the value of Ocean Power Technologies, Inc., a Delaware corporation (the “Company”)
by linking the individual interests of Eligible Individuals to those of the Company’s stockholders and by providing such
individuals with an incentive for outstanding performance to generate superior returns to the Company’s stockholders. The
Plan is further intended to provide flexibility to the Company and its subsidiaries in their ability to motivate, attract, and
retain the services of Eligible Individuals upon whose judgment, interest, and special effort the successful conduct of the Company’s
operation is largely dependent. Only Eligible Individuals may receive Awards under the Plan.


 


ARTICLE
2


DEFINITIONS
AND CONSTRUCTION


 


Wherever
the following terms are used in the Plan they shall have the meanings specified below, unless the context clearly indicates otherwise.
The singular pronoun shall include the plural where the context so indicates.


 


2.1       “Administrator”
means the entity that conducts the general administration of the Plan as provided in Article 8 hereof.


 


2.2       “Affiliate”
means any Subsidiary.


 


2.3       “Applicable
Accounting Standards” means Generally Accepted Accounting Principles in the United States, International Financial Reporting
Standards or such other accounting principles or standards as may apply to the Company’s financial statements under United
States federal securities laws from time to time.


 


2.4       “Applicable
Law” means any applicable law, including without limitation, (a) provisions of the Code, the Securities Act, the Exchange
Act and any rules or regulations thereunder; (b) corporate, securities, tax or other laws, statutes, rules, requirements or regulations,
whether federal, state, local or foreign; and (c) rules of any securities exchange, national market system or automated quotation
system on which the Shares are listed, quoted or traded.


 


2.5       “Award”
means a Performance Share Award, Restricted Stock award, a Restricted Stock Unit award or a Stock Payment award which may be awarded
or granted under the Plan.


 





2.6       “Award
Agreement” means any written notice, agreement, contract or other instrument or document evidencing an Award, including
through electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall determine,
consistent with the Plan.


 




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2.7       “Board”
means the Board of Directors of the Company.





 


2.8       “Change
in Control” means the occurrence of any of the following events:





 


(a)       a
“Person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than fifty percent (50%) of the total
voting power of the voting Stock of the Company, on a fully diluted basis;


 


(b)       individuals
who on the Effective Date constitute the Board (together with any new Directors whose election by such Board or whose nomination
by such Board for election by the stockholders of the Company was approved by a vote of at least a majority of the members of
such Board then in office who either were members of such Board on the Effective Date or whose election or nomination for election
was previously so approved) cease for any reason to constitute a majority of the members of such Board then in office;


 


(c)       the
Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company,
other than any such transaction in which the holders of securities that represented one hundred percent (100%) of the voting Stock
of the Company immediately prior to such transaction (or other securities into which such securities are converted as part of
such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the voting Stock
of the surviving Person in such merger or consolidation transaction immediately after such transaction; or


 


(d)       there
is consummated any direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation),
in one transaction or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries,
taken as a whole, to any “Person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act).


 


Notwithstanding
the foregoing, if a Change in Control constitutes a payment event with respect to any Award (or any portion of an Award) that
provides for the deferral of compensation that is subject to Section 409A of the Code, to the extent required to avoid the imposition
of additional taxes under Section 409A of the Code, the transaction or event described in subsection (a), (b), (c) or (d) with
respect to such Award (or portion thereof) shall only constitute a Change in Control for purposes of the payment timing of such
Award if such transaction also constitutes a “change in control event” (within the meaning of Code Section 409A).
Consistent with the terms of this Section 2.8, the Administrator shall have full and final authority to determine conclusively
whether a Change in Control of the Company has occurred pursuant to the above definition, the date of the occurrence of such Change
in Control and any incidental matters relating thereto.


 


2.9       “Code”
means the Internal Revenue Code of 1986, as amended from time to time, together with the regulations and official guidance promulgated
thereunder, whether issued prior or subsequent to the grant of any Award.


 




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2.10       “Committee”
means the Compensation Committee of the Board, or another committee or subcommittee of the Board described in Article 8 hereof.


 


2.11       “Common
Stock” means the common stock of the Company, par value $0.001 per share.


 


2.12       “Company”
has the meaning provided in Article 1.


 


2.13       “Director”
means a member of the Board, as constituted from time to time.


 


2.15       “DRO”
means a “domestic relations order” as defined by the Code or Title I of the Employee Retirement Income Security Act
of 1974, as amended from time to time, or the rules thereunder.


 


2.16       “Effective
Date” means the date on which the Plan is approved by the Board.


 


2.17       “Eligible
Individual” means any prospective Employee who is commencing employment with the Company or a Subsidiary, or is being
rehired following a bona fide period of non-employment by the Company or a Subsidiary, if he or she is granted an Award in connection
with his or her commencement of employment with the Company or a Subsidiary and such grant is an inducement material to his or
her entering into employment with the Company or a Subsidiary (within the meaning of NASDAQ Stock Market Rule IM-5636-1 or any
successor rule, if the Company’s securities are traded on the NASDAQ Stock Market, and/or the applicable requirements of
any other established stock exchange on which the Company’s securities are traded, as applicable, as such rules and requirements
may be amended from time to time). Notwithstanding the foregoing, if the Company’s securities are traded on the NASDAQ Stock
Market, an “Eligible Individual” shall not include any prospective Employee who has previously been an Employee or
Director of the Company unless following a bona fide period of non-employment by the Company or a Subsidiary. The Administrator
may in its discretion adopt procedures from time to time to ensure that a prospective Employee is eligible to participate in the
Plan prior to the granting of any Awards to such individual under the Plan (including without limitation a requirement that each
such prospective Employee certify to the Company prior to the receipt of an Award under the Plan that he or she has had a bona
fide period of non-employment, and that the grant of Awards under the Plan is an inducement material to his or her agreement to
enter into employment with the Company or a Subsidiary).


 


2.18       “Employee”
means any officer or other employee (within the meaning of Section 3401(c) of the Code) of the Company or any Subsidiary.


 


2.19       “Equity
Restructuring” means the following within the meaning of FASB ASC Topic 718: a nonreciprocal transaction between the
Company and its stockholders, such as a stock dividend, stock split, reverse stock split, spin-off, rights offering or recapitalization
through a large, nonrecurring cash dividend, that affects the number or kind of Shares (or other securities of the Company) or
the share price of Common Stock (or other securities) and causes a change in the per share value of the Common Stock underlying
outstanding stock-based Awards.


 


2.20       “Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to time.


 




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2.21       “Expiration
Date” has the meaning provided in Section 9.1 hereof.


 


2.22       “Fair
Market Value” means the fair market value of a share of Stock for purposes of the Plan, which shall be determined as
of any Grant Date or other date as follows:


 


(a)      If
on such Grant Date or such other date for determinations under this Plan the shares of Stock are listed on a Stock Exchange, or
are publicly traded on another established securities market (a “Securities Market”), the Fair Market Value of a share
of Stock shall be the closing price of the Stock on the Grant Date or the other determination date as reported on such Stock Exchange
or such Securities Market (provided that, if there is more than one such Stock Exchange or Securities Market, the Administrator
shall designate the appropriate Stock Exchange or Securities Market for purposes of the Fair Market Value determination). If there
is no such reported closing price on such Grant Date or the other date of determination under this Plan, the Fair Market Value
of a share of Stock shall be the closing price of the Stock on the next preceding day on which any sale of Stock shall have been
reported on such Stock Exchange or such Securities Market.


 


(b)      If
on such Grant Date or such other determination date the shares of Stock are not listed on a Stock Exchange or publicly traded
on a Securities Market, the Fair Market Value of a share of Stock shall be the value of the Stock as determined by the Administrator
by the reasonable application of a reasonable valuation method, and if applicable, in a manner consistent with Code Section 409A.


 


2.23       “Grant
Date” means, as determined by the Administrator, the latest to occur of: the date as of which the Committee approves
the Award or such later date as specified by the Committee in its approval.


 


2.24       “Independent
Director” means a Director of the Company who is not an Employee of the Company and who qualifies as “independent”
within the meaning of NASDAQ Stock Market Rule 5605(a)(2), or any successor rule, if the Company’s securities are traded
on the NASDAQ Stock Market, and/or the applicable requirements of any other established stock exchange on which the Company’s
securities are traded, as applicable, as such rules and requirements may be amended from time to time.


 


2.25       “Other
Incentive Award” means an Award denominated in, linked to or derived from Shares or value metrics related to Shares,
granted pursuant to Section 6.4 hereof.


 


2.26       “Participant”
means an Eligible Individual who has been granted an Award pursuant to the Plan.


 


2.27       “Performance
Share” means a contractual right awarded under Section 6.1 hereof to receive a number of Shares based on the attainment
of specified performance goals or other criteria determined by the Administrator.


 


2.28       “Permitted
Transferee” means, with respect to a Participant, any “family member” of the Participant, as defined under
the General Instructions to Form S-8 Registration Statement under the Securities Act or any successor Form thereto, or any other
transferee specifically approved by the Administrator, after taking into account Applicable Law.


 




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2.29       “Plan”
means this Ocean Power Technologies, Inc. Employment Inducement Incentive Award Plan, as it may be amended from time to time.


 


2.30       “Program”
means any program adopted by the Administrator pursuant to the Plan containing the terms and conditions intended to govern a specified
type of Award granted under the Plan and pursuant to which such type of Award may be granted under the Plan.


 


2.31       “Restricted
Stock” means an award of Shares made under Article 5 hereof that is subject to certain restrictions on transfer and
subject to risk of forfeiture.


 


2.32       “Restricted
Stock Unit” means a contractual right awarded under Section 6.2 hereof to receive in the future a Share.


 


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


 


2.34       “Securities
Market” has the meaning provided in Section 2.22 hereof.


 


2.35       “Share
Limit” has the meaning provided in Section 3.1(a) hereof.


 


2.36       “Shares”
means shares of Common Stock.


 


2.37       “Stock
Payment” shall mean a payment in the form of Shares awarded under Section 6.3 hereof.


 


2.38       “Subsidiary”
shall mean (a) a corporation, association or other business entity of which fifty percent (50%) or more of the total combined
voting power of all classes of capital stock is owned, directly or indirectly, by the Company and/or by one or more Subsidiaries,
(b) any partnership or limited liability company of which fifty percent (50%) or more of the equity interests are owned, directly
or indirectly, by the Company and/or by one or more Subsidiaries, and (c) any other entity not described in clauses (a) or (b)
above of which fifty percent (50%) or more of the ownership and the power (whether voting interests or otherwise), pursuant to
a written contract or agreement, to direct the policies and management or the financial and the other affairs thereof, are owned
or controlled by the Company and/or by one or more Subsidiaries; notwithstanding the foregoing, if any Award is deferred compensation
subject to Code Section 409A, a higher than 50% ownership by the Company or Subsidiary will be used if so required under Code
Section 409A.


 


2.39       “Successor
Entity” shall have the meaning provided in Section 2.8(c)(i) hereof.


 


2.40       “Termination
of Service” shall mean a Participant’s termination of employment with the Company or Subsidiary, and notwithstanding
the foregoing, to the extent required by Code Section 409A, it shall mean a separation from service within the meaning of Code
Section 409A. Unless the Administrator otherwise provides in an Award Agreement, in another agreement with the Participant or
otherwise in writing after such Award Agreement is entered into, but prior to termination of Participant’s Service, upon
the termination of such Participant’s service to the Company or its Subsidiaires, any Award held by such Participant that
has not vested, or with respect to which all applicable restrictions and conditions has not lapsed, shall immediately be deemed
forfeited. Upon forfeiture of such Award, the Participant thereof shall have no further rights with respect thereto, including
any right to vote such Restricted Stock or any right to receive dividends with respect to such Restricted Stock or Stock Units.


 




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The
Administrator, in its sole discretion, shall determine the effect of all matters and questions relating to any Termination of
Service, including, without limitation, whether a Termination of Service has occurred, whether any Termination of Service resulted
from a discharge for cause and whether any particular leave of absence constitutes a Termination of Service. For purposes of the
Plan, a Participant’s employee-employer relationship shall be deemed to be terminated in the event that the Subsidiary employing
such Participant ceases to remain an Subsidiary following any merger, sale of stock or other corporate transaction or event (including,
without limitation, a spin-off).





 


ARTICLE
3


SHARES SUBJECT
TO THE PLAN





 


 3.1       Number of Shares




 


(a)       Subject
to Sections 3.1(b), 9.1 and 9.2 hereof, the aggregate number of Shares which may be issued or transferred pursuant to Awards under
the Plan shall be equal to 500,000 (the “Share Limit”). Notwithstanding the foregoing, to the extent permitted
under Applicable Law and applicable stock exchange rules, Awards that provide for the delivery of Shares subsequent to the applicable
grant date may be granted in excess of the Share Limit if such Awards provide for the forfeiture or cash settlement of such Awards
to the extent that insufficient Shares remain under the Share Limit at the time that Shares would otherwise be issued in respect
of such Award.


 


(b)       To
the extent permitted by Applicable Law or the applicable stock exchange rules, if any Shares subject to an Award are forfeited
or expire or such Award is settled for cash (in whole or in part), the Shares subject to such Award shall, to the extent of such
forfeiture, expiration or cash settlement, again be available for future grants of Awards under the Plan and shall be added back
to the Share Limit in the same number of Shares as were debited from the Share Limit in respect of the grant of such Award (as
may be adjusted in accordance with Section 9.2 hereof). Notwithstanding anything to the contrary contained herein, Shares tendered
by the Participant or withheld by the Company to satisfy any tax withholding obligation with respect to an Award shall not be
added back to the Share Limit and will not be available for future grants of Awards. Any Shares repurchased by the Company under
Section 5.4 hereof at the same price paid by the Participant so that such Shares are returned to the Company will again be available
for Awards.


 


3.2       Stock
Distributed


 


Any
Shares distributed pursuant to an Award may consist, in whole or in part, of authorized and unissued Common Stock, treasury Common
Stock or Common Stock purchased on the open market.


 




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ARTICLE
4


GRANTING
OF AWARDS


 


4.1       Participation


 


The
Administrator may, from time to time, select from among all Eligible Individuals, those to whom one or more Awards shall be granted
and shall determine the nature and amount of each Award, which shall not be inconsistent with the requirements of the Plan to
be inducement Awards under the applicable stock exchange rules and Applicable Law. No Eligible Individual shall have any right
to be granted an Award pursuant to the Plan.


 


4.2       Award
Agreement


 


Each
Award shall be evidenced by an Award Agreement stating the terms and conditions applicable to such Award, consistent with the
requirements of the Plan and any applicable Program.


 


4.3       Limitations
Applicable to Section 16 Persons


 


Notwithstanding
anything contained herein to the contrary, with respect to any Award granted or awarded to any individual who is then subject
to Section 16 of the Exchange Act, the Plan, any applicable Program and the applicable Award Agreement shall be subject to any
additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including Rule 16b-3 of
the Exchange Act and any amendments thereto) that are requirements for the application of such exemptive rule, and such additional
limitations shall be deemed to be incorporated by reference into such Award to the extent permitted by Applicable Law.


 


4.4       At-Will
Service


 


Nothing
in the Plan or in any Program or Award Agreement hereunder shall confer upon any Participant any right to continue as an Employee,
or shall interfere with or restrict in any way the rights of the Company or any Subsidiary, which rights are hereby expressly
reserved, to discharge any Participant at any time for any reason whatsoever, with or without cause, and with or without notice,
or to terminate or change all other terms and conditions of any Participant’s employment or engagement, except to the extent
expressly provided otherwise in a written agreement between the Participant and the Company or any Subsidiary.


 


4.5       Foreign
Participants


 


Notwithstanding
any provision of the Plan to the contrary, in order to comply with the laws in other countries in which the Company and its Subsidiaries
operate or have Employees, or in order to comply with the requirements of any foreign securities exchange, the Administrator,
in its sole discretion, shall have the power and authority to:


 


(a)       determine
which Subsidiaries shall be covered by the Plan;


 


(b)       determine
which Eligible Individuals outside the United States are eligible to participate in the Plan;


 




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(c)       modify
the terms and conditions of any Program or any Award granted to Eligible Individuals outside the United States to comply with
applicable foreign laws or listing requirements of any such foreign securities exchange;


 


(d)       establish
subplans and modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable;
provided, however, that no such subplans and/or modifications shall increase the Share Limit; and


 


(e)       take
any action, before or after an Award is made, that it deems advisable to obtain approval or comply with any necessary local governmental
regulatory exemptions or approvals or listing requirements of any such foreign securities exchange. Notwithstanding the foregoing,
the Administrator may not take any actions hereunder, and no Awards shall be granted, that would violate Applicable Law.


 


4.6       Stand-Alone
and Tandem Awards


 


Awards
granted pursuant to the Plan may, in the sole discretion of the Administrator, be granted either alone, in addition to, or in
tandem with, any other Award granted pursuant to the Plan. Awards granted in addition to or in tandem with other Awards may be
granted either at the same time as or at a different time from the grant of such other Awards.





 


ARTICLE
5


RESTRICTED STOCK


 


5.1       Award
of Restricted Stock





 


(a)       The
Administrator is authorized to grant Restricted Stock to Eligible Individuals, and shall determine the terms and conditions, including
the restrictions applicable to each award of Restricted Stock, which terms and conditions shall not be inconsistent with the Plan,
and may impose such conditions on the issuance of such Restricted Stock as it deems appropriate.





 


(b)       The
Administrator shall establish the purchase price, if any, and form of payment for Restricted Stock; provided, however,
that if a purchase price is charged, such purchase price shall be no less than the par value of the Shares to be purchased, unless
otherwise permitted by Applicable Law. In all cases, legal consideration shall be required for each issuance of Restricted Stock
to the extent required by Applicable Law.


 


5.2       Rights
as Stockholders


 


Subject
to Section 5.4 hereof, upon issuance of Restricted Stock, the Participant shall have, unless otherwise provided by the Administrator,
all the rights of a stockholder with respect to said Shares, subject to the restrictions in an applicable Program or in the applicable
Award Agreement, including voting rights and the right to receive all dividends and other distributions paid or made with respect
to the Shares; provided, however, that, in the sole discretion of the Administrator as provided in the Award Agreement,
any extraordinary distributions with respect to the Shares shall be subject to the restrictions set forth in Section 5.3 hereof.


 




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5.3       Restrictions


 


All
shares of Restricted Stock (including any shares received by Participants thereof with respect to shares of Restricted Stock as
a result of stock dividends, stock splits or any other form of recapitalization) shall, in the terms of an applicable Program
or the applicable Award Agreement, be subject to such restrictions and vesting requirements as the Administrator shall provide.
Such restrictions may include, without limitation, restrictions concerning voting rights and transferability and such restrictions
may lapse separately or in combination at such times and pursuant to such circumstances or based on such criteria as selected
by the Administrator, including, without limitation, criteria based on the Participant’s continued service with the Company,
any performance criteria, Company or Subsidiary performance, individual performance or other criteria selected by the Administrator.
By action taken after the Restricted Stock is issued, the Administrator may, on such terms and conditions as it may determine
to be appropriate, accelerate the vesting of such Restricted Stock by removing any or all of the restrictions imposed by the terms
of any Program or by the applicable Award Agreement. Restricted Stock may not be sold, transferred or encumbered until all restrictions
are terminated or expire.


 


5.4       Repurchase
or Forfeiture of Restricted Stock





 


If
no purchase price was paid by the Participant for the Restricted Stock, upon a Termination of Service, the Participant’s
rights in unvested Restricted Stock then subject to restrictions shall lapse, and such Restricted Stock shall be surrendered to
the Company and cancelled without consideration. If a purchase price was paid by the Participant for the Restricted Stock, upon
a Termination of Service the Company shall have the right to repurchase from the Participant the unvested Restricted Stock then-subject
to restrictions at a cash price per share equal to the price paid by the Participant for such Restricted Stock or such other amount
as may be specified in an applicable Program or the applicable Award Agreement. The Administrator in its sole discretion may provide
in the Award Agreement that, upon certain events, including without limitation a Change in Control, the Participant’s death,
retirement or disability, any other specified Termination of Service or any other event, the Participant’s rights in unvested
Restricted Stock shall not terminate, such Restricted Stock shall vest and cease to be forfeitable and, if applicable, the Company
shall cease to have a right of repurchase.


 


5.5       Certificates
for Restricted Stock


 


Restricted
Stock granted pursuant to the Plan may be evidenced in such manner as the Administrator shall determine. Certificates or book
entries evidencing shares of Restricted Stock must include an appropriate legend referring to the terms, conditions, and restrictions
applicable to such Restricted Stock, and the Company may, in its sole discretion, retain physical possession of any stock certificate
until such time as all applicable restrictions lapse.


 


5.6       Section
83(b) Election


 


If
a Participant makes an election under Section 83(b) of the Code to be taxed with respect to the Restricted Stock as of the Grant
Date of the Restricted Stock rather than as of the date or dates upon which the Participant would otherwise be taxable under Section
83(a) of the Code, the Participant shall be required to deliver a copy of such election to the Company promptly after filing such
election with the Internal Revenue Service. Notwithstanding the foregoing, the Participant shall be solely responsible for any
tax consequences of such election, including, without limitation, the timeliness of such election.


 




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ARTICLE
6


PERFORMANCE
SHARE AWARDS; RESTRICTED STOCK UNITS


STOCK
PAYMENTS; and OTHER INCENTIVE AWARDS


 


6.1       Performance
Share Awards


 


Any
Eligible Individual selected by the Administrator may be granted one or more Performance Share Awards which shall be denominated
in a number of Shares and the vesting of which may be linked to any specific performance criteria (in each case on a specified
date or dates or over any period or periods determined by the Administrator) and/or time-vesting or other criteria, as determined
by the Administrator.


 


6.2       Restricted
Stock Units


 


The
Administrator is authorized to grant Restricted Stock Units to any Eligible Individual. The number and terms and conditions of
Restricted Stock Units shall be determined by the Administrator. The Administrator shall specify the date or dates on which the
Restricted Stock Units shall become fully vested and nonforfeitable, and may specify such conditions to vesting as it deems appropriate,
including conditions based on any specific criteria, including service to the Company or any Subsidiary and/or the attainment
of any performance goals, in each case, on a specified date or dates or over any period or periods, as determined by the Administrator.
The Administrator shall specify, or permit the Participant to elect, the conditions and dates upon which the Shares underlying
the Restricted Stock Units shall be issued, which dates shall not be earlier than the date as of which the Restricted Stock Units
vest and become nonforfeitable and which conditions and dates shall be consistent with the applicable provisions of Section 409A
of the Code or an exemption therefrom. On the distribution dates, the Company shall issue to the Participant one unrestricted,
fully transferable Share (or the Fair Market Value of one such Share in cash) for each vested and nonforfeitable Restricted Stock
Unit.


 


6.3       Stock
Payments


 


The
Administrator is authorized to make one or more Stock Payments to any Eligible Individual. The number or value of Shares of any
Stock Payment shall be determined by the Administrator and may be based upon any specific criteria, including service to the Company
or any Subsidiary, and/or the attainment of any performance goals, determined by the Administrator. Stock Payments may, but are
not required to be made in lieu of base salary, bonus, fees or other cash compensation otherwise payable to such Eligible Individual.


 


6.4       Other
Terms and Conditions


 


All
applicable terms and conditions of each Award described in this Article 6, including without limitation, as applicable, the term,
vesting conditions and exercise/purchase price applicable to the Award, shall be set by the Administrator in its sole discretion,
provided, however, that the value of the consideration paid by a Participant for an Award shall not be less than
the par value of a Share, unless otherwise permitted by Applicable Law.


 




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6.5       Exercise
upon Termination of Service


 


Awards
described in this Article 6 are exercisable or distributable, as applicable, only while the Participant is an Employee. The Administrator,
however, in its sole discretion may provide that such Award may be exercised or distributed subsequent to a Termination of Service
as provided under an applicable Program, Award Agreement, payment deferral election and/or in certain events, including without
limitation, a Change in Control, the Participant’s death, retirement or disability or any other specified Termination of
Service; provided that it is in accordance with Code Section 409A to the extent Code Section 409A applies to the Award or in accordance
with Code Section 83 to the extent Code Section 83 applies to the Award.


 


ARTICLE
7


ADDITIONAL
TERMS OF AWARDS


 


7.1       Payment


 


The
Administrator shall determine the methods by which payments by any Participant with respect to any Awards granted under the Plan
shall be made, including, without limitation:





 


(a)       cash
or check;


 


(b)       Shares
(including, in the case of payment of the exercise price of an Award, Shares issuable pursuant to the exercise of the Award) held
for such period of time as may be required by the Administrator in order to avoid adverse accounting consequences, in each case,
having a Fair Market Value on the date of delivery equal to the aggregate payments required;





 


(c)       other
form of legal consideration acceptable to the Administrator.


 





The
Administrator shall also determine the methods by which Shares shall be delivered or deemed to be delivered to Participants. Notwithstanding
any other provision of the Plan to the contrary, no Participant who is a Director or an “executive officer” of the
Company within the meaning of Section 13(k) of the Exchange Act shall be permitted to make payment with respect to any Awards
granted under the Plan, or continue any extension of credit with respect to such payment with a loan from the Company or a loan
arranged by the Company in violation of Section 13(k) of the Exchange Act.


 




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7.2       Tax
Withholding


 


The
Company and its Subsidiaries shall have the authority and the right to deduct or withhold, or require a Participant to remit to
the Company or a Subsidiary, an amount sufficient to satisfy federal, state, local and foreign taxes (including the Participant’s
social security, Medicare and any other employment tax obligation) required by Applicable Law to be withheld with respect to any
taxable event concerning a Participant arising in connection with any Award. The Administrator may in its sole discretion and
in satisfaction of the foregoing requirement allow a Participant to satisfy such obligations by any payment means described in
Section 7.1 hereof, including without limitation, by allowing such Participant to elect to have the Company or a Subsidiary withhold
Shares otherwise issuable under an Award (or allow the surrender of Shares). The number of Shares which may be so withheld or
surrendered shall be limited to the number of Shares which have a fair market value on the date of withholding or repurchase no
greater than the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state, local
and foreign income tax and payroll tax purposes that are applicable to such supplemental taxable income.


 


7.3       Transferability
of Awards.


 


(a)       Except
as otherwise provided in Section 7.3(b) or (c) hereof:


 


(i)       No
Award under the Plan may be sold, pledged, assigned or transferred in any manner other than by will or the laws of descent and
distribution or, subject to the consent of the Administrator, pursuant to a DRO, unless and until such Award has been exercised,
or the Shares underlying such Award have been issued, and all restrictions applicable to such Shares have lapsed, and no Award
shall be transferred pursuant to a DRO if it would violate Applicable Law, including the applicable stock exchange rules and Code
Sections 409A and 83;





 


(ii)       No
Award or interest or right therein shall be subject to the debts, contracts or engagements of the Participant or his/her successors
in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, hypothecation, encumbrance, assignment
or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment,
garnishment or any other legal or equitable proceedings (including bankruptcy) unless and until such Award has been exercised,
or the Shares underlying such Award have been issued, and all restrictions applicable to such Shares have lapsed, and any attempted
disposition of an Award prior to the satisfaction of these conditions shall be null and void and of no effect, except to the extent
that such disposition is permitted by clause (i) of this provision; and





 


(iii)       During
the lifetime of the Participant, only the Participant may exercise an Award (or any portion thereof) granted to him/her under
the Plan, unless it has been disposed of pursuant to a DRO; after the death of the Participant, any exercisable portion of an
Award may, prior to the time when such portion becomes unexercisable under the Plan or the applicable Program or Award Agreement,
be exercised by his/her personal representative or by any person empowered to do so under the deceased Participant’s will
or under the then-applicable laws of descent and distribution.


 




    		Page 12 of 24	 



    	 	 	 



    




 


(b)       Notwithstanding
Section 7.3(a) hereof, a Permitted Transferee of such Participant to transfer an Award to any one or more Permitted Transferees
of such Participant, subject to the following terms and conditions:





 


(i)       an
Award transferred to a Permitted Transferee shall not be assignable or transferable by the Permitted Transferee (other than to
another Permitted Transferee of the applicable Participant) other than by will or the laws of descent and distribution;





 


(ii)       an
Award transferred to a Permitted Transferee shall continue to be subject to all the terms and conditions of the Award as applicable
to the original Participant (other than the ability to further transfer the Award); and





 


(iii)       the
Participant (or transferring Permitted Transferee) and the Permitted Transferee shall execute any and all documents requested
by the Administrator, including without limitation, documents to (A) confirm the status of the transferee as a Permitted Transferee,
(B) satisfy any requirements for an exemption for the transfer under applicable federal, state and foreign securities laws and
(C) evidence the transfer.


 


(c)       Notwithstanding
Section 7.3(a) hereof, a Participant may, in the manner determined by the Administrator, designate a beneficiary to exercise the
rights of the Participant and to receive any distribution with respect to any Award upon the Participant’s death. A beneficiary,
legal guardian, legal representative, or other person claiming any rights pursuant to the Plan is subject to all terms and conditions
of the Plan and any Program or Award Agreement applicable to the Participant, except to the extent the Plan, the Program and the
Award Agreement may otherwise provide, and to any additional restrictions deemed necessary or appropriate by the Administrator.
If the Participant is married or a domestic partner in a domestic partnership qualified under Applicable Law and resides in a
“community property” state, a designation of a person other than the Participant’s spouse or domestic partner,
as applicable, as his or her beneficiary with respect to more than fifty percent (50%) of the Participant’s interest in
the Award shall not be effective without the prior written or electronic consent of the Participant’s spouse or domestic
partner. If no beneficiary has been designated or survives the Participant, payment shall be made to the person entitled thereto
pursuant to the Participant’s will or the laws of descent and distribution. Subject to the foregoing, a beneficiary designation
may be changed or revoked by a Participant at any time provided the change or revocation is delivered to the Administrator prior
to the Participant’s death.


 


7.4       Conditions
to Issuance of Shares


 


(a)       Notwithstanding
anything herein to the contrary, neither the Company nor its Affiliates shall be required to issue or deliver any certificates
or make any book entries evidencing Shares pursuant to the exercise of any Award, unless and until the Administrator has determined,
with advice of counsel, that the issuance of such Shares is in compliance with Applicable Law, and the Shares are covered by an
effective registration statement or applicable exemption from registration. In addition to the terms and conditions provided herein,
the Administrator may require that a Participant make such reasonable covenants, agreements, and representations as the Administrator,
in its discretion, deems advisable in order to comply with any such laws, regulations, or requirements.


 




    		Page 13 of 24	 



    	 	 	 



    




 


(b)       All
Share certificates delivered pursuant to the Plan and all Shares issued pursuant to book entry procedures are subject to any stop-transfer
orders and other restrictions as the Administrator deems necessary or advisable to comply with Applicable Law. The Administrator
may place legends on any Share certificate or book entry to reference restrictions applicable to the Shares.


 


(c)       The
Administrator shall have the right to require any Participant to comply with any timing or other restrictions with respect to
the settlement, distribution or exercise of any Award, including a window-period limitation, as may be imposed in the sole discretion
of the Administrator.





 


(d)       No
fractional Shares shall be issued and, including for tax purposes, the Administrator shall round down to avoid the issuance of
fractional Shares.


 


(e)       Notwithstanding
any other provision of the Plan, unless otherwise determined by the Administrator or required by Applicable Law, the Company and/or
its Affiliates may, in lieu of delivering to any Participant certificates evidencing Shares issued in connection with any Award,
record the issuance of Shares in the books of the Company (or, as applicable, its transfer agent or stock plan administrator).





 


7.5       Forfeiture
and Claw-Back Provisions


 


(a)       Pursuant
to its general authority to determine the terms and conditions applicable to Awards under the Plan, the Administrator shall have
the right to provide, in the terms of Awards made under the Plan, or to require a Participant to agree by separate written or
electronic instrument, that:





 


(i)       any
proceeds, gains or other economic benefit actually or constructively received by the Participant upon any receipt or exercise
of the Award, or upon the receipt or resale of any Shares underlying the Award, must be paid to the Company, and


 


(ii)       the
Award shall terminate and any unexercised portion of the Award (whether or not vested) shall be forfeited, if (x) a Termination
of Service occurs prior to a specified date, or within a specified time period following receipt or exercise of the Award, (y)
the Participant at any time, or during a specified time period, engages in any activity in competition with the Company, or which
is inimical, contrary or harmful to the interests of the Company, as further defined by the Administrator or (z) the Participant
incurs a Termination of Service for cause; and





 


(b)       All
Awards (including any proceeds, gains or other economic benefit actually or constructively received by the Participant upon any
receipt or exercise of any Award or upon the receipt or resale of any Shares underlying the Award) shall be subject to the applicable
provisions of any claw-back policy implemented by the Company, whether implemented prior to or after the grant of such Award,
including without limitation, any claw-back policy adopted to comply with the requirements of Applicable Law.


 




    		Page 14 of 24	 



    	 	 	 



    




 


7.6       Limits
on Amending Outstanding Awards


 


Subject
to Section 9.2 hereof, the Administrator shall not have the authority, without the approval of the stockholders of the Company,
to amend any outstanding award or to cancel and replace an Award.


 


7.7       Cash
Settlement


 


Without
limiting the generality of any other provision of the Plan, the Administrator may provide, in an Award Agreement or subsequent
to the grant of an Award, in its discretion, that any Award may be settled in cash, Shares or a combination thereof.


 


7.8       Leave
of Absence


 


Unless
the Administrator provides otherwise, vesting of Awards granted hereunder shall be suspended during any unpaid leave of absence
in accordance with Applicable Law. A Participant shall not cease to be considered an Employee in the case of any bona fide leave
of absence approved by the Company, provided that such leave of absence does not affect the specific terms applying to the Participant’s
Award, including compliance with the Code or other Applicable Law.


 


7.9       Terms
May Vary Between Awards


 


The
terms and conditions of each Award shall be determined by the Administrator in its sole discretion and the Administrator shall
have complete flexibility to provide for varied terms and conditions as between any Awards, whether of the same or different Award
type and/or whether granted to the same or different Participants (in all cases, subject to the terms and conditions of the Plan).


 


ARTICLE
8


ADMINISTRATION


 


8.1       Administrator


 


The
Committee (or another committee or a subcommittee of the Board assuming the functions of the Committee under the Plan) shall administer
the Plan (except as otherwise permitted herein) and, unless otherwise determined by the Board, shall consist solely of two or
more Independent Directors appointed by and holding office at the pleasure of the Board, each of whom is intended to qualify as
a “non-employee director” as defined by Rule 16b-3 of the Exchange Act and an “independent director” under
the rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded, in each case,
to the extent required under such provision; provided, however, that any action taken by the Committee shall
be valid and effective, whether or not members of the Committee at the time of such action are later determined not to have satisfied
the requirements for membership set forth in this Section 8.1 or otherwise provided in the Company’s charter or Bylaws or
in any charter of the Committee. Except as may otherwise be provided in any charter of the Committee, appointment of Committee
members shall be effective upon acceptance of appointment, Committee members may resign at any time by delivering written or electronic
notice to the Board, and vacancies in the Committee may only be filled by the Board.


 




    		Page 15 of 24	 



    	 	 	 



    




 


8.2       Duties
and Powers of Administrator


 


It
shall be the duty of the Administrator to conduct the general administration of the Plan in accordance with its provisions. The
Administrator shall have the power to interpret the Plan and all Programs and Award Agreements, provide omitted definitions or
terms, and to adopt such rules for the administration, interpretation and application of the Plan and any Program as are not inconsistent
with the Plan, to interpret, amend or revoke any such rules and to amend any Program or Award Agreement provided that the rights
or obligations of the holder of the Award that is the subject of any such Program or Award Agreement are not affected adversely
by such amendment, unless the consent of the Participant is obtained or such amendment is otherwise permitted under Section 9.9
hereof. Any such grant or award under the Plan need not be the same with respect to each Participant. In its sole discretion,
the Board may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan except
with respect to matters which under Rule 16b-3 under the Exchange Act or the rules of any securities exchange or automated quotation
system on which the Shares are listed, quoted or traded are required to be determined in the sole discretion of the Committee.


 


8.3       Action
by the Committee


 


Unless
otherwise established by the Board, in the Company’s charter or Bylaws, in any charter of the Committee or as required by
Applicable Law, a majority of the Committee shall constitute a quorum and the acts of a majority of the members present at any
meeting at which a quorum is present, and acts approved in writing by all members of the Committee in lieu of a meeting, shall
be deemed the acts of the Committee. To the greatest extent permitted by Applicable Law, each member of the Committee is entitled
to, in good faith, rely or act upon any report or other information furnished to that member by any officer or other employee
of the Company or any Subsidiary, the Company’s independent certified public accountants, or any executive compensation
consultant or other professional retained by the Company to assist in the administration of the Plan.


 


8.4       Authority
of Administrator


 


Subject
to any specific designation in the Plan and Applicable Law, the Administrator has the exclusive power, authority and sole discretion
to:


 


(a)       Adopt
procedures from time to time intended to ensure that an individual is an Eligible Individual prior to the granting of any Awards
to such individual under the Plan (including without limitation a requirement, if any, that each such individual certify to the
Company prior to the receipt of an Award under the Plan that he or she has not been previously employed, has had a bona fide period
of non-employment, and that the grant of Awards under the Plan is an inducement material to his or her agreement to enter into
employment with the Company or a Subsidiary);





 


(b)       Designate
Eligible Individuals to receive Awards;


 


(c)       Determine
the type or types of Awards to be granted to each Eligible Individual;


 




    		Page 16 of 24	 



    	 	 	 



    




 


(d)       Determine
the number of Awards to be granted and the number of Shares to which an Award will relate;





 


(e)       Determine
the terms and conditions of any Award granted pursuant to the Plan, including, but not limited to, the exercise price, grant price,
or purchase price, any performance criteria, any restrictions or limitations on the Award, any schedule for vesting, lapse of
forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations or waivers thereof, and any provisions
related to non-competition and recapture of gain on an Award, based in each case on such considerations as the Administrator in
its sole discretion determines;


 


(f)       Determine
whether, to what extent, and under what circumstances an Award may be settled in, or the exercise price of an Award may be paid
in cash, Shares, other Awards, or other property, or an Award may be canceled, forfeited, or surrendered;





 


(g)       Prescribe
the form of each Award Agreement, which need not be identical for each Participant;


 


(h)       Decide
all other matters that must be determined in connection with an Award;





 


(i)       Establish,
adopt, or revise any rules and regulations as it may deem necessary or advisable to administer the Plan;





 


(j)       Interpret
the terms of, and any matter arising pursuant to, the Plan, any Program or any Award Agreement;





 


(k)       Accelerate
wholly or partially the vesting or lapse of restrictions of any Award or portion thereof at any time after the grant of an Award,
subject to whatever terms and conditions it selects and Section 9.2; and





 


(l)       Make
all other decisions and determinations that may be required pursuant to the Plan or as the Administrator deems necessary or advisable
to administer the Plan.


 


8.5       Actions
Required Upon Grant of Award


 


Following
the issuance of any Award under the Plan, the Company shall comply with any applicable announcement and notification requirements
set forth in the listing requirements of the applicable securities exchange.


 


8.6       Decisions Binding


 


The
Administrator’s interpretation of the Plan, any Awards granted pursuant to the Plan, any Program, any Award Agreement and
all decisions and determinations by the Administrator with respect to the Plan are final, binding, and conclusive on all parties.


 




    		Page 17 of 24	 



    	 	 	 



    




 


ARTICLE
9


MISCELLANEOUS PROVISIONS


 


9.1       Amendment,
Suspension or Termination of the Plan


 


Except
as otherwise provided in this Section 9.1, and if in compliance with applicable rules of the NASDAQ Stock Market, the Plan may
be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator.
However, without approval of the Company’s stockholders given within twelve (12) months before or after the action by the
Administrator, no action of the Administrator may, except as provided in Section 9.2 hereof, amend the Plan or any Award in any
material respect. Except as provided in Section 9.9 hereof, no amendment, suspension or termination of the Plan shall, without
the consent of the Participant, impair any rights or obligations under any Award theretofore granted or awarded, unless the Award
itself otherwise expressly so provides. No Awards may be granted or awarded during any period of suspension or after termination
of the Plan, and in no event may any Award be granted under the Plan after the tenth (10th) anniversary of the date
of its adoption (the “Expiration Date”). Any Awards that are outstanding on the Expiration Date, or the date
of termination of the Plan (if earlier), shall remain in force according to the terms of the Plan and the applicable Award Agreement.


 


9.2
       Effect of Changes in Capitalization







 


(a)       If
the number of outstanding shares of Stock is increased or decreased or the shares of Stock are changed into or exchanged for a
different number of shares or kind of capital stock or other securities of the Company on account of any recapitalization, reclassification,
stock split, reverse stock split, spin-off, combination of stock, exchange of stock, stock dividend or other distribution payable
in capital stock, or other increase or decrease in shares of Stock effected without receipt of consideration by the Company occurring
after the Effective Date, the number and kinds of shares of stock for Awards may be made under the Plan, including the share limits
set forth in Section 3.1, shall be adjusted proportionately and accordingly by the Administrator. In addition, the number and
kind of shares of stock for which Awards are outstanding shall be adjusted proportionately and accordingly by the Administrator
so that the proportionate interest of the Participant therein immediately following such event shall, to the extent practicable,
be the same as immediately before such event. The conversion of any convertible securities of the Company shall not be treated
as an increase in shares effected without receipt of consideration. Notwithstanding the foregoing, in the event of any distribution
to the Company’s stockholders of securities of any other entity or other assets (including an extraordinary dividend, but
excluding a non-extraordinary dividend, declared and paid by the Company) without receipt of consideration by the Company, the
Administrator shall, in such manner as the Administrator deems appropriate, adjust the number and kind of shares of stock subject
to outstanding Awards as required to reflect such distribution.


 




    		Page 18 of 24	 



    	 	 	 



    

 





(b)       Subject
to Section 9.2(c), if the Company shall be the surviving entity in any reorganization, merger or consolidation of the Company
with one or more other entities which does not constitute a Change in Control, any Award theretofore granted pursuant to the Plan
shall pertain to and apply to the securities to which a holder of the number of shares of Stock subject to such Award would have
been entitled immediately following such reorganization, merger or consolidation. Subject to any contrary language in an Award
Agreement or in another agreement with the Participant, or otherwise set forth in writing, any restrictions applicable to such
Award shall apply as well to any replacement shares received by the Participant as a result of such reorganization, merger or
consolidation. In the event of any reorganization, merger or consolidation of the Company referred to in this Section 9.2(b),
Performance Awards shall be adjusted so as to apply to the securities that a holder of the number of shares of Stock subject to
the Performance Awards would have been entitled to receive immediately following such reorganization, merger or consolidation.


 


(c)       Except
as otherwise provided in the applicable Award Agreement or in another agreement with the Participant, or as otherwise set forth
in writing, upon the occurrence of a Change in Control in which outstanding Awards are not being assumed or continued, which such
continuation or assumption shall be determined by the Administrator in its sole discretion, the following provisions shall apply
to such Award, to the extent not assumed or continued:


 





(i)       in
each case with the exception of Performance Awards, all outstanding Restricted Stock shall be deemed to have vested, all Restricted
Stock Units shall be deemed to have vested and the shares of Stock subject thereto shall be delivered, immediately prior to the
occurrence of such Change in Control subject to the following. The Administrator may elect, in its sole discretion, to cancel
any outstanding Restricted Stock and/or Restricted Stock Units and pay or deliver, or cause to be paid or delivered, to the holder
thereof an amount in cash or securities having a value (as determined by the Administrator acting in good faith) equal to the
formula or fixed price per share paid to holders of shares of Stock pursuant to such Change in Control.


 


(ii)       For
Performance Awards denominated in Stock, if less than half of the performance period has lapsed, such Awards shall be treated
as though target performance has been achieved. If at least half the performance period has lapsed, actual performance to date
shall be determined as of a date reasonably proximal to the date of consummation of the Change in Control as determined by the
Administrator in its sole discretion, and that level of performance thus determined shall be treated as achieved immediately prior
to occurrence of the Change in Control. For purposes of the preceding sentence, if, based on the discretion of the Administrator,
actual performance is not determinable, the Awards shall be treated as though target performance has been achieved. After application
of this Section 9.2(c)(ii), if any Awards arise from application of this Article 9, such Awards shall be settled under the applicable
provision of Section 9.2(c)(i).


 


(iii)       Other
Awards shall be governed by the terms of the applicable Award Agreement.


 


(d)       Except
as otherwise provided in the applicable Award Agreement or in another agreement with the Participant, or as otherwise set forth
in writing, upon the occurrence of a Change in Control in which outstanding Restricted Stock, Restricted Stock Units, or other
Awards are being assumed or continued, which such continuation or assumption shall be determined by the Administrator in its sole
discretion, the following provisions shall apply to such Award, to the extent assumed or continued:


 




    		Page 19 of 24	 



    	 	 	 



    




 


(i)       
The Plan and the Restricted Stock, Restricted Stock Units, and other Awards granted under the Plan shall continue in the manner
and under the terms so provided in the event of any Change in Control to the extent that provision is made in writing in connection
with such Change in Control for the assumption or continuation of such Restricted Stock, Restricted Stock Units, and other Awards,
or for the substitution for such Restricted Stock, Restricted Stock Units, and other Awards of new restricted stock, common stock
units, and other equity-based awards relating to the stock of a successor entity, or a parent or subsidiary thereof, with appropriate
adjustments as to the number of shares disregarding any consideration that is not common stock. In the event an Award is assumed,
continued or substituted upon the consummation of any Change in Control and the employment of such Participant with the Company
or a Subsidiary is terminated without cause within one year following the consummation of such Change in Control, such Award shall
be fully vested and may be exercised in full, to the extent applicable, beginning on the date of such termination and for the
one-year period immediately following such termination or for such longer period as the Administrator shall determine.


 


9.3       No
Stockholders Rights


 


Except
as otherwise provided herein or in an applicable Program or Award Agreement, a Participant shall have none of the rights of a
stockholder with respect to Shares covered by any Award until the Participant becomes the record owner of such Shares.


 


9.4       Paperless
Administration


 


In
the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation,
granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation,
granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.


 


9.5       Effect
of Plan upon Other Compensation Plans


 


The
adoption of the Plan shall not affect any other compensation or incentive plans in effect for the Company or any Affiliate. Nothing
in the Plan shall be construed to limit the right of the Company or any Subsidiary: (a) to establish any other forms of incentives
or compensation for Employees of the Company or any Subsidiary or (b) to grant or assume options or other rights or awards otherwise
than under the Plan in connection with any proper corporate purpose including without limitation, the grant or assumption of options
in connection with the acquisition by purchase, lease, merger, consolidation or otherwise, of the business, stock or assets of
any corporation, partnership, limited liability company, firm or association.


 




    		Page 20 of 24	 



    	 	 	 



    




 


9.6       Compliance
with Laws


 


The
Plan, the granting and vesting of Awards under the Plan, the issuance and delivery of Shares and the payment of money under the
Plan or under Awards granted or awarded hereunder are subject to compliance with all Applicable Law and to such approvals by any
listing, regulatory or governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in
connection therewith. Any securities delivered under the Plan shall be subject to such restrictions, and the person acquiring
such securities shall, if requested by the Company, provide such assurances and representations to the Company as the Company
may deem necessary or desirable to assure compliance with all Applicable Law. To the extent permitted by Applicable Law, the Plan
and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such Applicable Law.


 


9.7       Titles
and Headings, References to Sections of the Code or Exchange Act


 


The
titles and headings of the sections in the Plan are for convenience of reference only and, in the event of any conflict, the text
of the Plan, rather than such titles or headings, shall control. References to sections of the Code or the Exchange Act shall
include any amendment or successor thereto.


 


9.8       Governing
Law


 


The
Plan and any Programs or Award Agreements hereunder shall be administered, interpreted and enforced under the internal laws of
the State of Delaware without regard to conflicts of laws thereof.


 


9.9       Section
409A


 


To
the extent that the Administrator determines that any Award granted under the Plan is subject to Section 409A of the Code, the
Plan, any applicable Program and the Award Agreement covering such Award shall be interpreted in accordance with Section 409A
of the Code. If a Participant is a “specified employee” as defined under Code Section 409A and the Participant’s
Award is to be settled on account of the Participant’s separation from service (for reasons other than death) and such Award
constitutes “deferred compensation” as defined under Code Section 409A, then any portion of the Participant’s
Award that would otherwise be settled during the six-month period commencing on the Participant’s separation from service
shall be settled as soon as practicable following the conclusion of the six-month period (or following the Participant’s
death if it occurs during such six-month period). Notwithstanding any provision of the Plan to the contrary, in the event that,
following the Effective Date, the Administrator determines that any Award may be subject to Section 409A of the Code, the Administrator
may adopt such amendments to the Plan, any applicable Program and the Award Agreement or adopt other policies and procedures (including
amendments, policies and procedures with retroactive effect), or take any other actions, that the Administrator determines are
necessary or appropriate to avoid the imposition of taxes on the Award under Section 409A of the Code, either through compliance
with the requirements of Section 409A of the Code or with an available exemption therefrom, provided, however, that this Section
9.9 shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such
other action, nor shall the Company have any liability for failing to do so.


 




    		Page 21 of 24	 



    	 	 	 



    




 


9.10       No
Rights to Awards


 


No
Eligible Individual or other person shall have any claim to be granted any Award pursuant to the Plan, and neither the Company
nor the Administrator is obligated to treat Eligible Individuals, Participants or any other persons uniformly.


 


9.11       Unfunded
Status of Awards


 


The
Plan is intended to be an “unfunded” plan for incentive compensation. With respect to any payments not yet made to
a Participant pursuant to an Award, nothing contained in the Plan or any Program or Award Agreement shall give the Participant
any rights that are greater than those of a general creditor of the Company or any Subsidiary.


 


9.12       Indemnification


 


To
the extent allowable pursuant to Applicable Law and the Company’s charter and Bylaws, each member of the Board and any officer
or other employee to whom authority to administer any component of the Plan is delegated shall be indemnified and held harmless
by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection
with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved
by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in
satisfaction of judgment in such action, suit, or proceeding against him or her; provided, however, that he or she
gives the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and
defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification
to which such persons may be entitled pursuant to the Company’s Certificate of Incorporation or Bylaws, as a matter of law,
or otherwise, or any power that the Company may have to indemnify them or hold them harmless.


 


9.13       Relationship
to other Benefits


 


No
payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit
sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary except to the extent otherwise expressly
provided in writing in such other plan or an agreement thereunder.


 


9.14       Expenses


 


The
expenses of administering the Plan shall be borne by the Company and its Subsidiaries.


 


9.15       No
Representations or Warranties Regarding Tax Effect


 


Notwithstanding
any provision of the Plan to the contrary, neither the Company, any Subsidiary, nor any of their employees, the Board, the Committee,
any shareholder or any of their agents represent or warrant the tax treatment under any federal, state, local or foreign laws
and regulations thereunder (individually and collectively referred to as the “Tax Laws”) of any Award granted or any
amounts paid to any Participant under the Plan including, but not limited to, when and to what extent such Awards or amounts may
be subject to tax, penalties and interest under the Tax Laws





 




    		Page 22 of 24	 



    	 	 	 



    

 


ARTICLE
10


STOCKHOLDER APPROVAL


 


10.1
       It is expressly intended that approval of the Company’s stockholders not be required
as a condition of the effectiveness of the Plan, and the Plan’s provisions shall be interpreted in a manner consistent with
such intent for all purposes. Specifically, NASDAQ Stock Market Rule 5635(c) generally requires stockholder approval for stock
option plans or other equity compensation arrangements adopted by companies whose securities are listed on the NASDAQ Stock Market
pursuant to which stock awards or stock may be acquired by officers, directors, employees or consultants of such companies. NASDAQ
Stock Market Rule 5635(c)(4) provides an exemption in certain circumstances for “employment inducement” awards (within
the meaning of NASDAQ Stock Market Rule 5635(c)(4)). Notwithstanding anything to the contrary herein, if the Company’s securities
are traded on the NASDAQ Stock Market, then Awards under the Plan may only be made to Employees who have not previously been an
Employee or Director of the Company or a Subsidiary, in each case as an inducement material to the Employee’s entering into
employment with the Company or a Subsidiary. Awards under the Plan will be approved by (a) the Committee, comprised of a majority
of the Company’s Independent Directors, or (b) a majority of the Company’s Independent Directors. Accordingly, pursuant
to NASDAQ Stock Market Rule 5635(c)(4), the issuance of Awards and the shares of Stock issuable upon exercise or vesting of such
Awards pursuant to the Plan are not subject to the approval of the Company’s stockholders.


 


[signature
page follows]


 







    		Page 23 of 24	 



    	 	 	 



    




 


I
hereby certify that the foregoing Plan was duly adopted by the Board of Directors of Ocean Power Technologies, Inc. on January
18, 2018. 


*   
*    *    *    *


 





Executed on this
18th day of January 2018.










 





	 	/s/
    George H. Kirby III
	 	George
    H. Kirby III
	 	President
    and CEO
	 	 
	 	/s/
    John W. Lawrence
	 	John
    W. Lawrence
	 	General
    Counsel & Secretary







 




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