Exhibit
10.1


 


SOLUNA
HOLDINGS, INC.


SECOND
AMENDED AND RESTATED 2021 STOCK INCENTIVE PLAN


1.               
PURPOSE


The
purpose of the Soluna Holdings, Inc. Second Amended and Restated 2021 Stock Incentive Plan (this “Plan”) is to promote the
interests of Soluna Holdings, Inc. (the “Company”) and its stockholders by allowing the Company to attract and retain senior
managers, employees, directors, consultants, professionals and service providers who provide services to the Company or any of its subsidiaries,
provided that such services are bona fide services that are not of a capital-raising nature (“Eligible Persons”). This Plan
is expected to contribute to the attainment of these objectives by enabling the Company to compensate Eligible Persons utilizing shares
of common stock, par value $0.001 per share, of the Company (“Shares”) in addition to cash, and to grant to Eligible Persons
Shares which may be unrestricted or restricted as provided in Section 6 of this Plan (“Restricted Stock”). In addition, this
Plan is expected to contribute to the attainment of these objectives by providing for grants to Eligible Persons of (i) the right to
receive Shares at a specific future time (“RSUs”) and (ii) stock options (“Options”), which Options may be exercised
for Shares.


2.               
ADMINISTRATION


This
Plan shall be administered by the Compensation Committee of the Board of Directors (the “Committee”), unless the Company
does not have a Compensation Committee, in which case this Plan shall be administered by the Board of Directors of the Company (the “Board”).
Subject to the provisions of this Plan, the Committee shall be authorized to interpret this Plan; to establish, amend and rescind any
rules and regulations relating to this Plan; and to make all determinations necessary or advisable for the administration of this Plan.
The determinations of the Committee in the administration of this Plan, as described herein, shall be final and conclusive. Each of the
Chief Executive Officer, the Chief Financial Officer and the Secretary of the Company shall be authorized to implement this Plan in accordance
with its terms and to take such actions of a ministerial nature as shall be necessary to effectuate the intent and purposes of this Plan.


3.               
ELIGIBILITY


The
class of individuals eligible to receive Shares, Restricted Stock, Restricted Stock Units or Options (the “Awards”) under
this Plan shall be persons who are Eligible Persons (as defined above). Any holder of an Award granted under this Plan shall hereinafter
be referred to as a “Participant” or collectively as “Participants.”


4.               
SHARES SUBJECT TO THIS PLAN


		(a)	Share
                                            Reserve and Limitation of Grants. Subject to adjustment as provided in Section 7 hereof,
                                            the maximum aggregate number of Shares that may be issued under this Plan (i) pursuant to
                                            the exercise of Options, (ii) as Shares or Restricted Stock and (iii) in settlement of RSUs
                                            shall be limited to (A) during the Company’s fiscal year ending December 31, 2021 (the
                                            “2021 Fiscal Year”), 1,460,191 Shares, (B) for the period from January 1, 2022
                                            to June 30, 2022, fifteen percent (15%) of the number of Shares outstanding on January 3,
                                            2022, which was the first trading day of 2022, and (C) beginning with the third quarter of
                                            the Company’s fiscal year ending December 31, 2022 (the “2022 Fiscal Year”),
                                            fifteen percent (15%) of the number of Shares outstanding as of the first trading day of
                                            each quarter, net of any Shares awarded in the previous quarter(s). Subject to adjustment
                                            as provided in Section 7 hereof, and notwithstanding any provision hereto to the contrary,
                                            (i) Shares subject to this Plan shall include Shares reverted back to the Company pursuant
                                            to Section 4(b) in a prior year or quarter, as applicable, as provided herein and (ii) the
                                            number of Shares that may be issued under this Plan may never be less than the number of
                                            Shares that are then outstanding under (or available to settle existing) Awards. For purposes
                                            of determining the number of Shares available under this Plan, Shares withheld by the Company
                                            to satisfy applicable tax withholding or exercise price obligations pursuant to Section 10(e)
                                            of this Plan shall be deemed issued under this Plan.



    	 		 



     


    









		(b)	Reversion
                                            of Shares. In the event that, prior to the date this Plan shall terminate in accordance
                                            with Section 8 hereof, any Award granted under this Plan expires unexercised or unvested
                                            or is terminated, surrendered or cancelled without the delivery of Shares, or any shares
                                            of Restricted Stock are forfeited back to the Company, then the Shares subject to such Award
                                            may be made available for subsequent Awards under the terms of this Plan.



5.               
GRANT, TERMS AND CONDITIONS OF OPTIONS


		(a)	In
                                            General. The Committee may grant Awards in the form of Options. Every Option shall be
                                            evidenced by an Option agreement in such form as the Committee shall approve from time to
                                            time, specifying the number of Shares that may be purchased pursuant to the Option, the time
                                            or times at which the Option shall become exercisable in whole or in part and such other
                                            terms and conditions as the Committee shall approve and containing or incorporating by reference
                                            the terms and conditions set forth in this Section 5.



		(b)	Duration.
                                            The duration of each Option shall be as specified by the Committee.



		(c)	Exercise
                                            Price. The exercise price of each Option shall be any lawful consideration, as specified
                                            by the Committee in its discretion; provided, however, that the exercise price shall be at
                                            least one hundred percent (100%) of the Fair Market Value of the Shares on the date on which
                                            the Committee awards the Option, which shall be considered the date of grant of the Option
                                            for purposes of fixing the price.



For
purposes of this Plan and except as may be otherwise explicitly provided in this Plan or in any Award agreement, the Fair Market Value
of a Share at any particular date shall be determined according to the following rules:


(i)              
If the Shares are not at the time listed or admitted to trading on any national securities exchange or The Nasdaq Stock Market LLC (“Nasdaq”)
or any of the OTC Markets (“OTC Markets”), then Fair Market Value shall be determined in good faith by the Board, which may
take into consideration (1) the price paid for the Shares in the most recent trade of a substantial number of Shares known to the Board
to have occurred at arm’s length between willing and knowledgeable investors, (2) an appraisal by an independent party or (3) any
other method of valuation undertaken in good faith by the Board, or some or all of the above as the Board shall in its discretion elect;


(ii)            
If the Shares of are at the time listed or admitted to trading on any national securities exchange or Nasdaq, then Fair Market Value
shall mean the Closing Price (as defined below) for the Shares on such date. The “Closing Price” on any date shall mean the
last sale price for the Shares, regular way, or, in case no such sale takes place on that day, the average of the closing bid and asked
prices, regular way, for the Shares, in either case as reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the national securities exchange or Nasdaq; or


(iii)           
If the Shares are at the time traded in the OTC Markets, the average of the closing bid and asked prices, regular way, for the Shares,
in either case as reported in the OTC Markets with respect to securities listed or admitted to trading in the OTC Markets.


		(d)	Method
                                            of Exercise. Options may be exercised by delivery to the Company of a notice of exercise
                                            in a form, which may be electronic, approved by the Committee, together with payment in full
                                            in the manner specified in Section 5(f) of the exercise price for the number of Shares for
                                            which the Option is exercised. Shares subject to the Option will be delivered by the Company
                                            as soon as practicable following exercise and payment of the exercise price. If the Participant
                                            fails to pay for or to accept delivery of all or any part of the number of Shares specified
                                            in the notice upon tender of delivery thereof, the right to exercise the Option with respect
                                            to those Shares shall be terminated, unless the Committee otherwise agrees.




    	 		 



     


    






		(e)	Broker-Assisted
                                            Exercises. To the extent permitted by law, any Option may permit payment of the exercise
                                            price and payment of any applicable tax withholding from the proceeds of sale through a broker
                                            or bank on a date satisfactory to the Committee of some or all of the Shares to which such
                                            exercise relates. In such case, the Committee will establish rules and procedures relating
                                            to such broker- (or bank-) assisted exercises in a manner intended to comply with the requirements
                                            of Section 402 of the Sarbanes-Oxley Act of 2002 and Internal Revenue Code Section 409A including
                                            as to all Options, without limitation, the time when the election to exercise an option in
                                            such manner may be made, the time period by which the broker or bank must remit payment of
                                            the exercise price and applicable tax withholding, the interest or other earnings attributable
                                            to the payment and the method of funding, if any, attributable to the payment.



		(f)	Payment.
                                            The Committee will determine the methods by which the exercise price of an Option may be
                                            paid, the form of payment and the methods by which Shares will be delivered or deemed to
                                            be delivered to Participants. As determined by the Committee, payment of the exercise price
                                            of an Option may be made, in whole or in part, in the form of: (i) cash or cash equivalents;
                                            (ii) delivery (by either actual delivery or attestation) of previously-acquired Shares based
                                            on the Fair Market Value of the Shares on the date the Option is exercised; (iii) withholding
                                            of Shares from the Option based on the Fair Market Value of Shares on the date the Option
                                            is exercised; (iv) broker-assisted or bank-assisted market sales; or (v) any other “cashless
                                            exercise” arrangement satisfactory to the Committee.



		(g)	Vesting.
                                            An Option may be exercised so long as it is vested and outstanding from time to time, in
                                            whole or in part, in the manner and subject to the conditions that the Committee in its discretion
                                            may provide in the Option agreement.



		(h)	Effect
                                            of Cessation of Employment or Service Relationship. The Committee shall determine in
                                            its discretion and specify in each Option agreement the effect, if any, of the termination
                                            of the Participant’s employment or other service relationship upon the exercisability
                                            of the Option.



		(i)	Transferability
                                            of Options. An Option shall not be assignable or transferable by the Participant except
                                            by will or by the laws of descent and distribution. During the life of the Participant, an
                                            Option shall be exercisable only by him, by a conservator or guardian duly appointed for
                                            him by reason of his incapacity or by the person appointed by the Participant in a durable
                                            power of attorney acceptable to the Company’s counsel. Notwithstanding the preceding
                                            sentences of this Section 5(i), the Committee may in its discretion permit the Participant
                                            to transfer an Option to a member of the Immediate Family (as defined below) of the Participant,
                                            to a trust solely for the benefit of the Participant and the Participant’s Immediate
                                            Family or to a partnership or limited liability company whose only partners or members are
                                            the Participant and members of the Participant’s Immediate Family. “Immediate
                                            Family” shall mean, with respect to any Participant, the Participant’s child,
                                            stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
                                            son-in-law, daughter-in-law, brother-in-law or sister-in-law, and shall include adoptive
                                            relationships.



		(j)	No
                                            Rights as Stockholder. A Participant shall have no rights as a stockholder with respect
                                            to any Shares covered by an Option until becoming the record holder of the Shares. No adjustment
                                            shall be made for dividends or other rights for which the record date is earlier than the
                                            date the certificate is issued (or equivalent book reporting is made), other than as required
                                            or permitted pursuant to Section 7.



		(k)	Treatment
                                            of Options Upon Termination or Change in Control. Each agreement underlying an Option
                                            Award shall set forth the extent to which the Participant shall have the right to retain
                                            such Award following termination of the Participant’s employment or other service relationship
                                            with the Company and the rights, if any, of the Participant upon a Change in Control, which
                                            may include, among other things, the acceleration of vesting of any unvested Options. Whether
                                            any such right shall apply to a particular Option Award shall be determined in the sole discretion
                                            of the Committee.









    	 		 



     


    




6.               
TERMS AND CONDITIONS OF RESTRICTED STOCK AND RSUS


		(a)	Stock
                                            Awards and RSUs. The Committee may grant Awards in the form of Shares or shares of Restricted
                                            Stock and/or RSUs (collectively, referred to as “Stock Awards”). Restrictions
                                            on Restricted Stock may include the right of the Company to repurchase all or part of the
                                            Shares at their issue price or other stated or formula price (or to require forfeiture of
                                            the Shares if issued at no cost) from the Participant in the event that conditions specified
                                            by the Committee in the applicable Stock Award agreement are not satisfied prior to the end
                                            of the applicable restriction period or periods established by the Committee for the Stock
                                            Award.



		(b)	Form
                                            of Settlement. RSUs may be settled in cash or Shares, subject to the discretion of the
                                            Committee.



		(c)	Procedures
                                            Relating to Stock Awards. A Restricted Stock agreement or RSU agreement shall evidence
                                            the applicable Stock Award and shall contain such terms and conditions as the Committee shall
                                            provide. A holder of a Stock Award without restrictions or Restricted Stock shall, subject
                                            to the terms of any applicable agreement, have all of the rights of a stockholder of the
                                            Company, including the right to vote the Shares and (except as provided below) the right
                                            to receive any dividends. Certificates representing Restricted Stock shall be imprinted with
                                            a legend to the effect that the Shares represented may not be sold, exchanged, transferred,
                                            pledged, hypothecated or otherwise disposed of except in accordance with the terms of the
                                            applicable agreement. (If shares of Restricted Stock are held in book entry form, statements
                                            evidencing those shares shall include a similar legend.) The Participant shall be required
                                            to deposit any stock certificates with an escrow agent designated by the Committee, together
                                            with a stock power or other instrument of transfer appropriately endorsed in blank. With
                                            respect to such Shares, the Committee shall provide that dividends will not be paid with
                                            respect to unvested Restricted Stock until the time (if at all) the Restricted Stock vests,
                                            and the Company will retain such dividends and pay them (subject to applicable withholding)
                                            to the Participant upon vesting.



Except
as otherwise provided in this Section 6, Restricted Stock shall become freely transferable by the Participant after all conditions and
restrictions applicable to the Shares have been satisfied or lapse (including satisfaction of any applicable tax withholding obligations).


		(d)	Additional
                                            Matters Relating to RSUs.



(i)              
Each grant of RSUs shall constitute the agreement by the Company to issue or transfer Shares to the Participant in the future in consideration
of the performance of services, subject to the fulfillment during the period established by the Committee and set forth in the RSU agreement
(the “Deferral Period”) of such conditions as the Committee may specify.


(ii)            
Each grant of RSUs may be made without additional consideration from the Participant or in consideration of a payment by the Participant
that is less than the Fair Market Value on the date of grant.


(iii)           
Each grant shall provide that the RSUs covered thereby shall be subject to a Deferral Period, which shall be fixed by the Committee on
the date of grant, and any grant or sale may provide for the earlier termination of such Deferral Period in the event of a Change in
Control (as defined below) of the Company or other similar transaction or event. For the purposes of this Plan, “Change in Control”
shall mean a merger or consolidation in which securities constituting more than fifty percent (50%) of the total combined voting power
of the Company’s outstanding securities are transferred to a person or persons that do not own more than fifty percent (50%) of
the combined voting power of the Company’s securities immediately prior to such transaction, or the sale, transfer or other disposition
of all or substantially all of the Company’s assets to a non-affiliate of the Company.



    	 		 



     


    







(iv)           
During the Deferral Period, the Participant shall not have any right to transfer any rights under the subject Award, shall not have any
rights of ownership in the Shares issuable pursuant to the RSUs and shall not have any right to vote such Shares, but the Committee may
on or after the date of grant, authorize the payment of dividend or other distribution equivalents on such Shares in cash or additional
Shares on a current, deferred or contingent basis.


(v)             
Each grant of RSUs shall be evidenced by an agreement delivered to and accepted by the Participant and containing such terms and provisions
as the Committee may determine consistent with this Plan.


		(e)	Treatment
                                            of Stock Awards Upon Termination or Change in Control. Each agreement underlying a Stock
                                            Award shall set forth the extent to which the Participant shall have the right to retain
                                            the Stock Award following termination of the Participant’s employment or other service
                                            relationship with the Company and the rights, if any, of the Participant upon a Change in
                                            Control, which may include, among other things, the acceleration of vesting of a Stock Award.
                                            Whether any such right shall apply to a particular Stock Award shall be determined in the
                                            sole discretion of the Committee.



7.               
ADJUSTMENT AND CHANGES IN SHARES


If,
after the Effective Date (as defined below), there is a stock dividend or stock split, recapitalization (including payment of an extraordinary
dividend), merger, consolidation, combination, spin-off, distribution of assets to stockholders, exchange of shares or other similar
corporate change affecting the Shares, the Board shall appropriately adjust the aggregate number of Shares (including Shares underlying
Options) available for Awards under this Plan or subject to outstanding Awards, and any other factors, limits or terms affecting any
outstanding or subsequently issuable Awards as may be appropriate.


8.               
EFFECTIVE DATE, DURATION OF PLAN AMENDMENT AND TERMINATION


This
Plan shall become effective on the date of the adoption of this Plan by the Board (the “Effective Date”). This Plan shall
automatically terminate on February 12, 2031, which is the tenth (10th) anniversary of this Plan’s Effective Date. The
Board may terminate, suspend or amend this Plan at any time without stockholder approval except to the extent that stockholder approval
is required to satisfy applicable requirements imposed by (a) Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or any successor rule or regulation; or (b) the rules of any exchange on or through which the Shares are then listed or
traded. For the avoidance of doubt, this Plan shall be effective upon adoption by the Board, and shall be submitted to the stockholders
of the Company for approval within twelve (12) months after adopted by Board. In the event that the stockholders of the Company shall
not approve this Plan within such twelve (12) month period, this Plan shall terminate. If this Plan is terminated, as a result of not
having been approved by stockholders during such 12-month period, automatic termination on the tenth (10) anniversary as provided in
this Section 8 or pursuant to action of the Board or any other terms of this Plan, notwithstanding such termination, all Awards granted
prior to such termination shall continue until they are terminated by their terms.


9.               
APPLICABLE LAW AND REGISTRATION


The
grant of Awards and the issuance of Shares (including Restricted Stock, Shares underlying Options upon their exercise and Shares issued
in connection with RSUs) shall be subject to all applicable laws, rules and regulations and to such approvals of any governmental agencies
or securities exchanges as may be required. Notwithstanding the foregoing, no Shares, Restricted Stock, RSUs or Options shall be issued
under this Plan unless the Company is satisfied that such issuance will be in compliance with applicable federal and state securities
laws. Shares issued under this Plan may be subject to such stop transfer orders and other restrictions as the Board may deem advisable
under the rules, regulations and other requirements of the Securities and Exchange Commission, any exchange on or through which the Shares
are then listed or traded or any applicable federal or state securities law. The Board may cause a legend or legends to be placed on
any stock certificates issued (or book entries) under this Plan to make appropriate reference to restrictions within the scope of this
Section 9 or other provisions of this Plan. To the extent not preempted by federal law, the validity, construction and effect of this
Plan, any rules and regulations relating to this Plan and all agreements hereunder shall be determined and construed in accordance with
and governed by the laws of the State of Nevada, without regard to the principles of conflicts of law.










    	 		 



     


    




10.            
MISCELLANEOUS


		(a)	Transferability
                                            of Awards. Except as otherwise provided herein, Awards shall not be sold, assigned, transferred,
                                            pledged or otherwise encumbered by the person to whom they are granted, either voluntarily
                                            or by operation of law, except by will or the laws of descent and distribution and, during
                                            the life of the Participant, shall be exercisable only by the Participant.



		(b)	Documentation.
                                            Each Award shall be evidenced in such form (written, electronic or otherwise) as the Committee
                                            shall determine. Each Award may contain terms and conditions in addition to those set forth
                                            in this Plan.



		(c)	No
                                            Guarantee of Employment or Continuation of Service Relationship. Neither this Plan nor
                                            any Award agreement shall give an employee or other service provider the right to continue
                                            in the employment of or to continue to provide services to the Company or a subsidiary, or
                                            give the Company or a subsidiary the right to require continued employment or services.



		(d)	Rounding
                                            Conventions. The Committee may, in its sole discretion and taking into account any requirements
                                            of the Internal Revenue Code, including without limitation, as applicable, Sections 409A
                                            and 422 through 424 of the Internal Revenue Code, determine the effect of vesting, stock
                                            dividend and any other adjustments on shares and any cash amount payable hereunder, and may
                                            provide that no fractional shares will be issued (rounding up or down as determined by the
                                            Committee) and that cash amounts be rounded down to the nearest whole cent.



		(e)	Tax
                                            Withholding. To the extent required by law, the Company (or a subsidiary) shall withhold
                                            or cause to be withheld income and other taxes with respect to any income recognized by a
                                            Participant by reason of the exercise, vesting or settlement of an Award, and as a condition
                                            to the receipt of any Award the Participant shall agree that if the amount payable to him
                                            or her by the Company and any subsidiary in the ordinary course is insufficient to pay such
                                            taxes, then he or she shall upon the request of the Company pay to the Company an amount
                                            sufficient to satisfy its tax withholding obligations. Without limiting the foregoing, the
                                            Committee may in its discretion permit any Participant’s withholding obligation to
                                            be paid in whole or in part in the form of Shares by withholding from the Shares to be issued
                                            or by accepting delivery from the Participant of Shares already owned by him or her. If payment
                                            of withholding taxes is made in whole or in part in Shares, the Participant shall deliver
                                            to the Company certificates registered in his or her name representing Shares legally and
                                            beneficially owned by him or her, fully vested and free of all liens, claims and encumbrances
                                            of every kind, duly endorsed or accompanied by stock powers duly endorsed by the record holder
                                            of the shares represented by such certificates. If the Participant is subject to Section
                                            16(a) of the Exchange Act, his or her ability to pay any withholding obligation in the form
                                            of Shares shall be subject to any additional restrictions as may be necessary to avoid any
                                            transaction that might give rise to liability under Section 16(b) of the Exchange Act.



		(f)	Use
                                            of Proceeds. The proceeds from the sale of Shares pursuant to Awards shall constitute
                                            general funds of the Company.



		(g)	Awards
                                            to Non-United States Persons. Awards may be made to Participants who are foreign nationals
                                            or employed outside the United States on such terms and conditions different from those specified
                                            in this Plan as the Committee considers necessary or advisable to achieve the purposes of
                                            this Plan or to comply with applicable laws. The Board shall have the right to amend this
                                            Plan, consistent with its authority to amend this Plan as set forth in Section 8, to obtain
                                            favorable tax treatment for Participants, and any such amendments shall be evidenced by an
                                            Appendix to this Plan. The Board may delegate this authority to the Committee.





		(h)	Compliance
                                            with Section 409A. It is the intention of the Company that no payment or entitlement
                                            pursuant to this Plan will give rise to any adverse tax consequences to any person pursuant
                                            to Section 409A of the Internal Revenue Code. The Committee shall interpret and apply this
                                            Plan to that end, and shall not give effect to any provision therein in a manner that reasonably
                                            could be expected to give rise to adverse tax consequences under Section 409A of the Internal
                                            Revenue Code.





 


Approved May 27, 2022