Blueprint





  Exhibit 10.1






 

 

 

 

 

 

 

 

 

 

 

 



LIBERATED SYNDICATION INC.

 



2018 OMNIBUS EQUITY INCENTIVE PLAN


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 




	





	
 

	
 







 








 










 



LIBERATED SYNDICATION INC.



2018 OMNIBUS EQUITY INCENTIVE PLAN

 


ARTICLE
I


PURPOSE

 


The
purpose of this Liberated Syndication Inc. 2018 Omnibus Equity
Incentive Plan (the “Plan”) is to benefit
Liberated Syndication Inc., a Nevada corporation (the
“Company”) and its
stockholders, by assisting the Company and its subsidiaries to
attract, retain and provide incentives to employees, directors, and
consultants of the Company and its Affiliates, and to align the
interests of such service providers with those of the
Company’s stockholders. Accordingly, the Plan provides for
the granting of Non-qualified Stock Options, Incentive Stock
Options, Restricted Stock Awards, Restricted Stock Unit Awards,
Performance Stock Awards, Performance Unit Awards, Unrestricted
Stock Awards, or any combination of the foregoing.

 


ARTICLE
II



DEFINITIONS

 


The
following definitions shall be applicable throughout the Plan
unless the context otherwise requires:

 

2.1 “Affiliate” shall mean any
corporation which, with respect to the Company, is a
“subsidiary corporation” within the meaning of Section
424(f) of the Code or other entity in which the Company has a
controlling interest in such entity or another entity which is part
of a chain of entities in which the Company or each entity has a
controlling interest in another entity in the unbroken chain of
entities ending with the applicable entity.

 

2.2 “Award” shall mean,
individually or collectively, any Option, Restricted Stock Award,
Restricted Stock Unit Award, Performance Stock Award, Performance
Unit Award, or Unrestricted Stock Award.

 

2.3 “Award Agreement” shall
mean a written agreement between the Company and the Holder with
respect to an Award, setting forth the terms and conditions of the
Award, as amended.

 

2.4 “Board” shall mean the
Board of Directors of the Company.

 

2.5 “Cause” shall mean
(i) if the Holder is a party to an employment or service
agreement with the Company or an Affiliate which agreement defines
“Cause” (or a similar term), “Cause” shall have the
same meaning as provided for in such agreement, or (ii) for a
Holder who is not a party to such an agreement, “Cause” shall mean
termination by the Company or an Affiliate of the employment (or
other service relationship) of the Holder by reason of the
Holder’s (A) intentional failure to perform reasonably
assigned duties, (B) dishonesty or willful misconduct in the
performance of the Holder’s duties, (C) involvement in a
transaction which is materially adverse to the Company or an
Affiliate, (D) breach of fiduciary duty involving personal profit,
(E) willful violation of any law, rule, regulation or court order
(other than misdemeanor traffic violations and misdemeanors not
involving misuse or misappropriation of money or property), (F)
commission of an act of fraud or intentional misappropriation or
conversion of any asset or opportunity of the Company or an
Affiliate, or (G) material breach of any provision of the Plan or
the Holder’s Award Agreement or any other written agreement
between the Holder and the Company or an Affiliate, in each case as
determined in good faith by the Board, the determination of which
shall be final, conclusive and binding on all parties.


 




 









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2.6 “Change of Control” shall
mean: (i) for a Holder who is a party to an employment or
consulting agreement with the Company or an Affiliate which
agreement defines “Change of Control” (or a similar
term), “Change of
Control” shall have the same meaning as provided for
in such agreement, or (ii) for a Holder who is not a party to such
an agreement, “Change of Control” shall
mean the satisfaction of any one or more of the following
conditions (and the “Change of Control” shall be deemed
to have occurred as of the first day that any one or more of the
following conditions shall have been satisfied):

 

(a) Any person (as such
term is used in paragraphs 13(d) and 14(d)(2) of the Exchange Act,
hereinafter in this definition, “Person”), other than the
Company or an Affiliate or an employee benefit plan of the Company
or an Affiliate, becomes the beneficial owner (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than fifty percent
(50%) of the combined voting power of the Company’s then
outstanding securities;

 

(b) The closing of a
merger, consolidation or other business combination (a
“Business
Combination”) other than a Business Combination in
which holders of the Shares immediately prior to the Business
Combination have substantially the same proportionate ownership of
the common stock or ordinary shares, as applicable, of the
surviving corporation immediately after the Business Combination as
immediately before;

 

(c) The closing of an
agreement for the sale or disposition of all or substantially all
of the Company’s assets to any entity that is not an
Affiliate;

 

(d) The approval by the
holders of shares of a plan of complete liquidation of the Company,
other than a merger of the Company into any subsidiary or a
liquidation as a result of which persons who were stockholders of
the Company immediately prior to such liquidation have
substantially the same proportionate ownership of shares of common
stock or ordinary shares, as applicable, of the surviving
corporation immediately after such liquidation as immediately
before; or

 

(e) Within any
twenty-four (24) month period, the Incumbent Directors shall cease
to constitute at least a majority of the Board or the board of
directors of any successor to the Company; provided, however, that any director
elected to the Board, or nominated for election, by a majority of
the Incumbent Directors then still in office, shall be deemed to be
an Incumbent Director for purposes of this paragraph (e), but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or
threatened election contest with respect to the election or removal
of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of an individual, entity or
“group” other than the Board (including, but not
limited to, any such assumption that results from paragraphs (a),
(b), (c), or (d) of this definition).


 




 

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2.7 “Code” shall mean the
United States of America Internal Revenue Code of 1986, as amended.
Reference in the Plan to any section of the Code shall be deemed to
include any amendments or successor provisions to any section and
any regulation under such section.

 

2.8 “Committee” shall mean a
committee comprised of two (2) or more members of the Board who are
selected by the Board as provided in Section 4.1.

 

2.9  “Company”
shall have the meaning given to such term in the introductory
paragraph, including any successor thereto.

 

2.10 “Consultant”
shall mean any non-Employee (individual or entity) advisor to the
Company or an Affiliate who or which has contracted directly with
the Company or an Affiliate to render bona fide consulting or
advisory services thereto.

 

2.11 “Director”
shall mean a member of the Board or a member of the board of
directors of an Affiliate, in either case, who is not an
Employee.

 

2.12  “Effective
Date” shall mean May 1, 2018.

 

2.13 “Employee”
shall mean any employee, including any officer, of the Company or
an Affiliate.

 

2.14 “Exchange
Act” shall mean the United States of America
Securities Exchange Act of 1934, as amended.

 

2.15 “Fair
Market Value” shall mean, as of any specified date,
the closing sales price of the Shares for such date (or, in the
event that the Shares are not traded on such date, on the
immediately preceding trading date) on the NASDAQ Stock Market
(“NASDAQ”), as reported by NASDAQ, or such other
domestic or foreign national securities exchange, including OTC
Markets (OTCQB, OTCQX), on which the Shares may be listed. If the
Shares are not listed on NASDAQ or on a national securities
exchange, but are quoted on the OTC Bulletin Board or by the
National Quotation Bureau, the Fair Market Value of the Shares
shall be the mean of the highest bid and lowest asked prices per
Share for such date. If the Shares are not quoted or listed as set
forth above, Fair Market Value shall be determined by the Board in
good faith by any fair and reasonable means (which means may be set
forth with greater specificity in the applicable Award Agreement).
The Fair Market Value of property other than Shares shall be
determined by the Board in good faith by any fair and reasonable
means consistent with the requirements of applicable
law.

 

2.16 “Family
Member” of an individual shall mean any child,
stepchild, grandchild, parent, stepparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law or sister-in-law, including
adoptive relationships, any person sharing the Holder’s
household (other than a tenant or employee of the Holder), a trust
in which such persons have more than fifty percent (50%) of the
beneficial interest, a foundation in which such persons (or the
Holder) control the management of assets, and any other entity in
which such persons (or the Holder) own more than fifty percent
(50%) of the voting interests.


 




 

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2.17 “Holder”
shall mean an Employee, Director or Consultant who has been granted
an Award or any such individual’s beneficiary, estate or
representative, who has acquired such Award in accordance with the
terms of the Plan, as applicable.

 

2.18  “Incentive
Stock Option” shall mean an Option which is intended
by the Committee to constitute an “incentive stock
option” and conforms to the applicable provisions of Section
422 of the Code.

 

2.19 “Incumbent
Director” shall mean, with respect to any period of
time specified under the Plan for purposes of determining whether
or not a Change of Control has occurred, the individuals who were
members of the Board at the beginning of such period.

 

2.20 “Non-qualified
Stock Option” shall mean an Option which is not an
Incentive Stock Option or which is designated as an Incentive Stock
Option but does not meet the applicable requirements of Section 422
of the Code.

 

2.21 “Option”
shall mean an Award granted under Article VII of the Plan of an
option to purchase Shares and shall include both Incentive Stock
Options and Non-qualified Stock Options.

 

2.22 “Option
Agreement” shall mean a written agreement between the
Company and a Holder with respect to an Option.

 

2.23 “Performance
Criteria” shall mean the criteria selected by the
Committee for purposes of establishing the Performance Goal(s) for
a Holder for a Performance Period.

 

2.24 “Performance
Goals” shall mean, for a Performance Period, the
written goal or goals established by the Committee for the
Performance Period based upon the Performance Criteria, which may
be related to the performance of the Holder, the Company or an
Affiliate.

 

2.25 “Performance
Period” shall mean one or more periods of time, which
may be of varying and overlapping durations, selected by the
Committee, over which the attainment of the Performance Goals shall
be measured for purposes of determining a Holder’s right to,
and the payment of, a Performance Stock Award or a Performance Unit
Award.

 

2.26 “Performance
Stock Award” or “Performance Stock” shall
mean an Award granted under Article XII of the Plan under which,
upon the satisfaction of predetermined Performance Goals, Shares
are paid to the Holder.

 

2.27 “Performance
Stock Agreement” shall mean a written agreement
between the Company and a Holder with respect to a Performance
Stock Award.

 

2.28 “Performance
Unit” shall mean a Unit awarded to a Holder pursuant
to a Performance Unit Award.

 




 

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2.29 “Performance
Unit Award” shall mean an Award granted under Article
XI of the Plan under which, upon the satisfaction of predetermined
Performance Goals, a cash payment shall be made to the Holder,
based on the number of Units awarded to the Holder.

 

2.30 “Performance
Unit Agreement” shall mean a written agreement between
the Company and a Holder with respect to a Performance Unit
Award.

 

2.31 “Plan”
shall mean this Liberated Syndication Inc. 2018 Omnibus Equity
Incentive Plan, as amended from time to time, together with each of
the Award Agreements utilized hereunder.

 

2.32 “Restricted
Stock Award” and “Restricted Stock” shall
mean an Award granted under Article VIII of the Plan of Shares, the
transferability of which by the Holder is subject to
Restrictions.

 

2.33 “Restricted
Stock Agreement” shall mean a written agreement
between the Company and a Holder with respect to a Restricted Stock
Award.

 

2.34 “Restricted
Stock Unit Award” and “RSUs” shall refer to an
Award granted under Article X of the Plan under which, upon the
satisfaction of predetermined individual service-related vesting
requirements, a cash payment shall be made to the Holder, based on
the number of Units awarded to the Holder.

 

2.35 “Restricted
Stock Unit Agreement” shall mean a written agreement
between the Company and a Holder with respect to a Restricted Stock
Award.

 

2.36  “Restriction
Period” shall mean the period of time for which Shares
subject to a Restricted Stock Award shall be subject to
Restrictions, as set forth in the applicable Restricted Stock
Agreement.

 

2.37 “Restrictions”
shall mean the forfeiture, transfer and/or other restrictions
applicable to Shares awarded to an Employee, Director or Consultant
under the Plan pursuant to a Restricted Stock Award and set forth
in a Restricted Stock Agreement.

 

2.38 “Rule
16b-3” shall mean Rule 16b-3 promulgated by the
Securities and Exchange Commission under the Exchange Act, as such
may be amended from time to time, and any successor rule,
regulation or statute fulfilling the same or a substantially
similar function.

 

2.39 “Shares”
or “Stock” shall mean the
common stock of the Company, par value $0.001 per
share.

 

2.40 “Ten
Percent Stockholder” shall mean an Employee who, at
the time an Option is granted to him or her, owns shares possessing
more than ten percent (10%) of the total combined voting power of
all classes of shares of the Company or of any parent corporation
or subsidiary corporation thereof (both as defined in Section 424
of the Code), within the meaning of Section 422(b)(6) of the
Code.

 




 

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2.41 “Termination
of Service” shall mean a termination of a
Holder’s employment with, or status as a Director or
Consultant of, the Company or an Affiliate, as applicable, for any
reason, including, without limitation, Total and Permanent
Disability or death, except as provided in Section 6.4. In the
event Termination of Service shall constitute a payment event with
respect to any Award subject to Code Section 409A, Termination of
Service shall only be deemed to occur upon a “separation from
service” as such term is defined under Code Section 409A and
applicable authorities.

 

2.42 “Total
and Permanent Disability” of an individual shall mean
the inability of such individual to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period
of not less than twelve (12) months, within the meaning of Section
22(e)(3) of the Code.

 

2.43 “Unit”
shall mean a bookkeeping unit, which represents such monetary
amount as shall be designated by the Committee in each Performance
Unit Agreement, or represents one Share for purposes of each
Restricted Stock Unit Award.

 

2.44 “Unrestricted
Stock Award” shall mean an Award granted under Article
IX of the Plan of Shares which are not subject to
Restrictions.

 

2.45 “Unrestricted
Stock Agreement” shall mean a written agreement
between the Company and a Holder with respect to an Unrestricted
Stock Award.

 


ARTICLE
III


EFFECTIVE DATE OF
PLAN

 


The
Plan shall be effective as of the Effective Date.

 


ARTICLE
IV


ADMINISTRATION

 

4.1 Composition
of Committee. The Plan shall be
administered by the Committee, which shall be appointed by the
Board. If necessary, in the Board’s discretion, to comply
with Rule 16b-3 under the Exchange Act or relevant securities
exchange or inter-dealer quotation service, the Committee shall
consist solely of two (2) or more Directors who are each (i)
“non-employee directors” within the meaning of Rule
16b-3 and (ii) “independent” for purposes of any
applicable listing requirements. If a member of the Committee shall
be eligible to receive an Award under the Plan, such Committee
member shall have no authority hereunder with respect to his or her
own Award.


 




 

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4.2 Powers.
Subject to the other provisions of the Plan, the Committee shall
have the sole authority, in its discretion, to make all
determinations under the Plan, including but not limited to (i)
determining which Employees, Directors or Consultants shall receive
an Award, (ii) the time or times when an Award shall be made (the
date of grant of an Award shall be the date on which the Award is
awarded by the Committee), (iii) what type of Award shall be
granted, (iv) the term of an Award, (v) the date or dates on which
an Award vests, (vi) the form of any payment to be made pursuant to
an Award, (vii) the terms and conditions of an Award (including the
forfeiture of the Award, and/or any financial gain, if the Holder
of the Award violates any applicable restrictive covenant thereof),
(viii) the Restrictions under a Restricted Stock Award, (ix) the
number of Shares which may be issued under an Award, (x)
Performance Goals applicable to any Award and certification of the
achievement of such goals, and (xi) the waiver of any Restrictions
or Performance Goals, subject in all cases to compliance with
applicable laws. In making such determinations the Committee may
take into account the nature of the services rendered by the
respective Employees, Directors and Consultants, their present and
potential contribution to the Company’s (or the
Affiliate’s) success and such other factors as the Committee
in its discretion may deem relevant.

 

4.3 Additional
Powers. The Committee
shall have such additional powers as are delegated to it under the
other provisions of the Plan. Subject to the express provisions of
the Plan, the Committee is authorized to construe the Plan and the
respective Award Agreements executed hereunder, to prescribe such
rules and regulations relating to the Plan as it may deem advisable
to carry out the intent of the Plan, to determine the terms,
restrictions and provisions of each Award and to make all other
determinations necessary or advisable for administering the Plan.
The Committee may correct any defect or supply any omission or
reconcile any inconsistency in any Award Agreement in the manner
and to the extent the Committee shall deem necessary, appropriate
or expedient to carry it into effect. The determinations of the
Committee on the matters referred to in this Article IV shall be
conclusive and binding on the Company and all Holders.

 

4.4 Committee
Action. Subject to
compliance with all applicable laws, action by the Committee shall
require the consent of a majority of the members of the Committee,
expressed either orally at a meeting of the Committee or in writing
in the absence of a meeting. No member of the Committee shall have
any liability for any good faith action, inaction or determination
in connection with the Plan.

 


ARTICLE
V


SHARES SUBJECT TO
PLAN AND LIMITATIONS THEREON

 

5.1 Authorized
Shares and Award Limits. The Committee may
from time to time grant Awards to one or more Employees, Directors
and/or Consultants determined by it to be eligible for
participation in the Plan in accordance with the provisions of
Article VI. Subject to Article XIII, the aggregate number of
Shares that may be issued under the Plan shall not exceed 3,000,000
Shares. Shares shall be deemed to have been issued under the Plan
solely to the extent actually issued and delivered pursuant to an
Award. To the extent that an Award lapses, expires, is canceled, is
terminated unexercised or ceases to be exercisable for any reason,
or the rights of its Holder terminate, any Shares subject to such
Award shall again be available for the grant of a new Award.
Notwithstanding any provision in the Plan to the contrary, the
maximum number of Shares that may be subject to Awards of Options
under Article VII granted to any one person during any calendar
year, shall be Three Hundred Thousand (300,000) Shares (subject to
adjustment in the same manner as provided in Article XIII with
respect to Shares subject to Awards then outstanding).


 




 

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5.2 Types
of Shares. The Shares to be
issued pursuant to the grant or exercise of an Award may consist of
authorized but unissued Shares, Shares purchased on the open market
or Shares previously issued and outstanding and reacquired by the
Company.

 


ARTICLE
VI


ELIGIBILITY AND TERMINATION OF
SERVICE

 

6.1 Eligibility.
Awards made under the Plan may be granted solely to individuals or
entities who, at the time of grant, are Employees, Directors or
Consultants. An Award may be granted on more than one occasion to
the same Employee, Director or Consultant, and, subject to the
limitations set forth in the Plan, such Award may include, a
Non-qualified Stock Option, a Restricted Stock Award, a Restricted
Stock Unit Award, an Unrestricted Stock Award, a Performance Stock
Award, a Performance Unit Award, or any combination thereof, and
solely for Employees, an Incentive Stock Option.

 

6.2 Termination
of Service. Except to the
extent inconsistent with the terms of the applicable Award
Agreement and/or the provisions of Section 6.3 or 6.4, the
following terms and conditions shall apply with respect to a
Holder’s Termination of Service with the Company or an
Affiliate, as applicable:

 

(a) The Holder’s
rights, if any, to exercise any then exercisable Options shall
terminate:

 

(i) If such termination
is for a reason other than the Holder’s Total and Permanent
Disability or death, ninety (90) days after the date of such
Termination of Service;

 

(ii) If such termination
is on account of the Holder’s Total and Permanent Disability,
one (1) year after the date of such Termination of Service;
or

 

(iii) If such termination
is on account of the Holder’s death, one (1) year after the
date of the Holder’s death.

 


Upon
such applicable date the Holder (and such Holder’s estate,
designated beneficiary or other legal representative) shall forfeit
any rights or interests in or with respect to any such Options.
Notwithstanding the foregoing, the Committee, in its sole
discretion, may provide for a different time period in the Award
Agreement, or may extend the time period, following a Termination
of Service, during which the Holder has the right to exercise any
vested Non-qualified Stock Option, which time period may not extend
beyond the expiration date of the Award term.


 




 

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(b) In the event of a
Holder’s Termination of Service for any reason prior to the
actual or deemed satisfaction and/or lapse of the Restrictions,
vesting requirements, terms and conditions applicable to a
Restricted Stock Award and/or Restricted Stock Unit Award, such
Restricted Stock and/or RSUs shall immediately be canceled, and the
Holder (and such Holder’s estate, designated beneficiary or
other legal representative) shall forfeit any rights or interests
in and with respect to any such Restricted Stock and/or RSUs.
Notwithstanding the immediately preceding sentence, the Committee,
in its sole discretion, may determine, prior to or within thirty
(30) days after the date of such Termination of Service that all or
a portion of any such Holder’s Restricted Stock and/or RSUs
shall not be so canceled and forfeited.

 

6.3 Special
Termination Rule. Except to the
extent inconsistent with the terms of the applicable Award
Agreement, and notwithstanding anything to the contrary contained
in this Article VI, if a Holder’s employment with, or status
as a Director of, the Company or an Affiliate shall terminate, and
if, within ninety (90) days of such termination, such Holder shall
become a Consultant, such Holder’s rights with respect to any
Award or portion thereof granted thereto prior to the date of such
termination may be preserved, if and to the extent determined by
the Committee in its sole discretion, as if such Holder had been a
Consultant for the entire period during which such Award or portion
thereof had been outstanding. Should the Committee effect such
determination with respect to such Holder, for all purposes of the
Plan, such Holder shall not be treated as if his or her employment
or Director status had terminated until such time as his or her
Consultant status shall terminate, in which case his or her Award,
as it may have been reduced in connection with the Holder’s
becoming a Consultant, shall be treated pursuant to the provisions
of Section 6.2, provided, however, that any such Award which is
intended to be an Incentive Stock Option shall, upon the
Holder’s no longer being an Employee, automatically convert
to a Non-qualified Stock Option. Should a Holder’s status as
a Consultant terminate, and if, within ninety (90) days of such
termination, such Holder shall become an Employee or a Director,
such Holder’s rights with respect to any Award or portion
thereof granted thereto prior to the date of such termination may
be preserved, if and to the extent determined by the Committee in
its sole discretion, as if such Holder had been an Employee or a
Director, as applicable, for the entire period during which such
Award or portion thereof had been outstanding, and, should the
Committee effect such determination with respect to such Holder,
for all purposes of the Plan, such Holder shall not be treated as
if his or her Consultant status had terminated until such time as
his or her employment with the Company or an Affiliate, or his or
her Director status, as applicable, shall terminate, in which case
his or her Award shall be treated pursuant to the provisions of
Section 6.2.

 

6.4 Termination
of Service for Cause. Notwithstanding
anything in this Article VI or elsewhere in the Plan to the
contrary, and unless a Holder’s Award Agreement specifically
provides otherwise, in the event of a Holder’s Termination of
Service for Cause, all of such Holder’s then outstanding
Awards shall expire immediately and be forfeited in their entirety
upon such Termination of Service.


 




 

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ARTICLE
VII


OPTIONS

 

7.1 Option Period. The term of each
Option shall be as specified in the Option Agreement; provided, however, that except as set
forth in Section 7.3, no Option shall be exercisable after the
expiration of ten (10) years from the date of its
grant.

 

7.2 Limitations on Exercise of
Option. An Option shall be exercisable in whole or in such
installments and at such times as specified in the Option
Agreement.

 

7.3 Special Limitations on Incentive Stock
Options. To the extent that the aggregate Fair Market Value
(determined at the time the respective Incentive Stock Option is
granted) of Shares with respect to which Incentive Stock Options
are exercisable for the first time by an individual during any
calendar year under all plans of the Company and any parent
corporation or subsidiary corporation thereof (both as defined in
Section 424 of the Code) which provide for the grant of Incentive
Stock Options exceeds One Hundred Thousand Dollars ($100,000) (or
such other individual limit as may be in effect under the Code on
the date of grant), the portion of such Incentive Stock Options
that exceeds such threshold shall be treated as Non-qualified Stock
Options. The Committee shall determine, in accordance with
applicable provisions of the Code, Treasury Regulations and other
administrative pronouncements, which of a Holder’s Options,
which were intended by the Committee to be Incentive Stock Options
when granted to the Holder, will not constitute Incentive Stock
Options because of such limitation, and shall notify the Holder of
such determination as soon as practicable after such determination.
No Incentive Stock Option shall be granted to an Employee if, at
the time the Incentive Stock Option is granted, such Employee is a
Ten Percent Stockholder, unless (i) at the time such Incentive
Stock Option is granted the Option price is at least one hundred
ten percent (110%) of the Fair Market Value of the Shares subject
to the Incentive Stock Option, and (ii) such Incentive Stock Option
by its terms is not exercisable after the expiration of five (5)
years from the date of grant. No Incentive Stock Option shall be
granted more than ten (10) years from the earlier of the Effective
Date or date on which the Plan is approved by the Company’s
stockholders. The designation by the Committee of an Option as an
Incentive Stock Option shall not guarantee the Holder that the
Option will satisfy the applicable requirements for
“incentive stock option” status under Section 422 of
the Code.


 




 

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7.4 Option Agreement. Each Option
shall be evidenced by an Option Agreement in such form and
containing such provisions not inconsistent with the other
provisions of the Plan as the Committee from time to time shall
approve, including, but not limited to, provisions intended to
qualify an Option as an Incentive Stock Option. An Option Agreement
may provide for the payment of the Option price, in whole or in
part, by the delivery of a number of Shares (plus cash if
necessary) that have been owned by the Holder for at least six (6)
months and having a Fair Market Value equal to such Option price,
or such other forms or methods as the Committee may determine from
time to time, in each case, subject to such rules and regulations
as may be adopted by the Committee. Each Option Agreement shall,
solely to the extent inconsistent with the provisions of Sections
6.2, 6.3, and 6.4, as applicable, specify the effect of Termination
of Service on the exercisability of the Option. Moreover, without
limiting the generality of the foregoing, a Non-qualified Stock
Option Agreement may provide for a “cashless exercise”
of the Option, in whole or in part, by (a) establishing
procedures whereby the Holder, by a properly-executed written
notice, directs (i) an immediate market sale or margin loan as
to all or a part of Shares to which he is entitled to receive upon
exercise of the Option, pursuant to an extension of credit by the
Company to the Holder of the Option price, (ii) the delivery
of the Shares from the Company directly to a brokerage firm and
(iii) the delivery of the Option price from sale or margin
loan proceeds from the brokerage firm directly to the Company, or
(b) reducing the number of Shares to be issued upon exercise
of the Option by the number of such Shares having an aggregate Fair
Market Value equal to the Option price (or portion thereof to be so
paid) as of the date of the Option’s exercise. An Option
Agreement may also include provisions relating to: (i) subject
to the provisions hereof, accelerated vesting of Options, including
but not limited to, upon the occurrence of a Change of Control,
(ii) tax matters (including provisions covering any applicable
Employee wage withholding requirements and requiring additional
“gross-up” payments to Holders to meet any excise taxes
or other additional income tax liability imposed as a result of a
payment made upon a Change of Control resulting from the operation
of the Plan or of such Option Agreement) and (iii) any other
matters not inconsistent with the terms and provisions of the Plan
that the Committee shall in its sole discretion determine. The
terms and conditions of the respective Option Agreements need not
be identical.

 

7.5 Option
Price and Payment. The price at
which an Share may be purchased upon exercise of an Option shall be
determined by the Committee; provided, however, that such Option price
(i) shall not be less than the Fair Market Value of an Share
on the date such Option is granted (or 110% of Fair Market Value
for an Incentive Stock Option held by Ten Percent Stockholder, as
provided in Section 7.3), and (ii) shall be subject to
adjustment as provided in Article XIII. The Option or portion
thereof may be exercised by delivery of an irrevocable notice of
exercise to the Company. The Option price for the Option or portion
thereof shall be paid in full in the manner prescribed by the
Committee as set forth in the Plan and the applicable Option
Agreement, which manner, with the consent of the Committee, may
include the withholding of Shares otherwise issuable in connection
with the exercise of the Option. Separate share certificates shall
be issued by the Company for those Shares acquired pursuant to the
exercise of an Incentive Stock Option and for those Shares acquired
pursuant to the exercise of a Non-qualified Stock
Option.


 




 

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7.6 Stockholder
Rights and Privileges. The Holder of an
Option shall be entitled to all the privileges and rights of a
stockholder of the Company solely with respect to such Shares as
have been purchased under the Option and for which share
certificates have been registered in the Holder’s
name.

 

7.7 Options
and Rights in Substitution for Stock or Options Granted by Other
Corporations. Options may be
granted under the Plan from time to time in substitution for stock
options held by individuals employed by entities who become
Employees, Directors or Consultants as a result of a merger or
consolidation of the employing entity with the Company or any
Affiliate, or the acquisition by the Company or an Affiliate of the
assets of the employing entity, or the acquisition by the Company
or an Affiliate of stock or shares of the employing entity with the
result that such employing entity becomes an
Affiliate.

 


ARTICLE
VIII


RESTRICTED STOCK AWARDS

 

8.1 Award.
A Restricted Stock Award shall constitute an Award of Shares to the
Holder as of the date of the Award which are subject to a
“substantial risk of forfeiture” as defined under
Section 83 of the Code during the specified Restriction Period. At
the time a Restricted Stock Award is made, the Committee shall
establish the Restriction Period applicable to such Award. Each
Restricted Stock Award may have a different Restriction Period, in
the discretion of the Committee. The Restriction Period applicable
to a particular Restricted Stock Award shall not be changed except
as permitted by Section 8.2.

 

8.2 Terms
and Conditions. At the time any
Award is made under this Article VIII, the Company and the Holder
shall enter into a Restricted Stock Agreement setting forth each of
the matters contemplated thereby and such other matters as the
Committee may determine to be appropriate. The Company shall cause
the Shares to be issued in the name of Holder, either by book-entry
registration or issuance of one or more stock certificates
evidencing the Shares, which Shares or certificates shall be held
by the Company or the stock transfer agent or brokerage service
selected by the Company to provide services for the Plan. The
Shares shall be restricted from transfer and shall be subject to an
appropriate stop-transfer order, and if any certificate is issued,
such certificate shall bear an appropriate legend referring to the
restrictions applicable to the Shares. After any Shares vest, the
Company shall deliver the vested Shares, in book-entry or
certificated form in the Company’s sole discretion,
registered in the name of Holder or his or her legal
representatives, beneficiaries or heirs, as the case may be, less
any Shares withheld to pay withholding taxes. If provided for under
the Restricted Stock Agreement, the Holder shall have the right to
vote Shares subject thereto and to enjoy all other stockholder
rights, including the entitlement to receive dividends on the
Shares during the Restriction Period. At the time of such Award,
the Committee may, in its sole discretion, prescribe additional
terms and conditions or restrictions relating to Restricted Stock
Awards, including, but not limited to, rules pertaining to the
effect of Termination of Service prior to expiration of the
Restriction Period. Such additional terms, conditions or
restrictions shall, to the extent inconsistent with the provisions
of Sections 6.2, 6.3 and 6.4, as applicable, be set forth in a
Restricted Stock Agreement made in conjunction with the Award. Such
Restricted Stock Agreement may also include provisions relating to:
(i) subject to the provisions hereof, accelerated vesting of
Awards, including but not limited to accelerated vesting upon the
occurrence of a Change of Control, (ii) tax matters (including
provisions covering any applicable Employee wage withholding
requirements and requiring additional “gross-up”
payments to Holders to meet any excise taxes or other additional
income tax liability imposed as a result of a payment made in
connection with a Change of Control resulting from the operation of
the Plan or of such Restricted Stock Agreement) and (iii) any
other matters not inconsistent with the terms and provisions of the
Plan that the Committee shall in its sole discretion determine. The
terms and conditions of the respective Restricted Stock Agreements
need not be identical. All Shares delivered to a Holder as part of
a Restricted Stock Award shall be delivered and reported by the
Company or the Affiliate, as applicable, to the Holder at the time
of vesting.


 




 

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8.3 Payment
for Restricted Stock. The Committee
shall determine the amount and form of any payment from a Holder
for Shares received pursuant to a Restricted Stock Award, if any,
provided that in the absence of such a determination, a Holder
shall not be required to make any payment for Shares received
pursuant to a Restricted Stock Award, except to the extent
otherwise required by law.

 


ARTICLE
IX


UNRESTRICTED STOCK AWARDS

 

9.1 Award.
Shares may be awarded (or sold) to Employees, Directors or
Consultants under the Plan which are not subject to Restrictions of
any kind, in consideration for past services rendered thereby to
the Company or an Affiliate or for other valid
consideration.

 

9.2 Terms
and Conditions.  At the time any
Award is made under this Article IX, the Company and the Holder
shall enter into an Unrestricted Stock Agreement setting forth each
of the matters contemplated hereby and such other matters as the
Committee may determine to be appropriate.

 

9.3 Payment
for Unrestricted Stock. The Committee
shall determine the amount and form of any payment from a Holder
for Shares received pursuant to an Unrestricted Stock Award, if
any, provided that in the absence of such a determination, a Holder
shall not be required to make any payment for Shares received
pursuant to an Unrestricted Stock Award, except to the extent
otherwise required by law.

 


ARTICLE
X



RESTRICTED STOCK UNIT AWARDS

 

10.1 Award.
A Restricted Stock Unit Award shall constitute a promise to grant
Shares (or cash equal to the Fair Market Value of Shares) to the
Holder at the end of a specified Restriction Period. At the time a
Restricted Stock Unit Award is made, the Committee shall establish
the Restriction Period applicable to such Award. Each Restricted
Stock Unit Award may have a different Restriction Period, in the
discretion of the Committee. A Restricted Stock Unit shall not
constitute an equity interest in the Company and shall not entitle
the Holder to voting rights, dividends or any other rights
associated with ownership of Shares prior to the time the Holder
shall receive a distribution of Shares pursuant to Section
10.3.

 

10.2 Terms
and Conditions. At the time any
Award is made under this Article X, the Company and the Holder
shall enter into a Restricted Stock Unit Agreement setting forth
each of the matters contemplated thereby and such other matters as
the Committee may determine to be appropriate. The Restricted Stock
Unit Agreement shall set forth the individual service-based vesting
requirement which the Holder would be required to satisfy before
the Holder would become entitled to distribution pursuant to
Section 10.3 and the number of Units awarded to the Holder. Such
conditions shall be sufficient to constitute a “substantial
risk of forfeiture” as such term is defined under Section
409A of the Code. At the time of such Award, the Committee may, in
its sole discretion, prescribe additional terms and conditions or
restrictions relating to Restricted Stock Unit Awards in the
Restricted Stock Unit Agreement, including, but not limited to,
rules pertaining to the effect of Termination of Service prior to
expiration of the applicable vesting period. The terms and
conditions of the respective Restricted Stock Unit Agreements need
not be identical.


 




 

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10.3 Distributions
of Shares. The Holder of a
Restricted Stock Unit shall be entitled to receive a cash payment
equal to the Fair Market Value of an Share, or one Share, as
determined in the sole discretion of the Committee and as set forth
in the Restricted Stock Unit Agreement, for each Restricted Stock
Unit subject to such Restricted Stock Unit Award, if the Holder
satisfies the applicable vesting requirement. Such distribution
shall be made no later than by the fifteenth (15th) day of the third
(3rd)
calendar month next following the end of the calendar year in which
the Restricted Stock Unit first becomes vested (i.e., no longer
subject to a “substantial risk of
forfeiture”).

 


ARTICLE
XI


PERFORMANCE
UNIT AWARDS

 

11.1 Award.
A Performance Unit Award shall constitute an Award under which,
upon the satisfaction of predetermined individual and/or Company
(and/or Affiliate) Performance Goals based on selected Performance
Criteria, a cash payment shall be made to the Holder, based on the
number of Units awarded to the Holder. At the time a Performance
Unit Award is made, the Committee shall establish the Performance
Period and applicable Performance Goals. Each Performance Unit
Award may have different Performance Goals, in the discretion of
the Committee. A Performance Unit Award shall not constitute an
equity interest in the Company and shall not entitle the Holder to
voting rights, dividends or any other rights associated with
ownership of Shares.

 

11.2 Terms
and Conditions. At the time any
Award is made under this Article XI, the Company and the Holder
shall enter into a Performance Unit Agreement setting forth each of
the matters contemplated thereby and such other matters as the
Committee may determine to be appropriate. The Committee shall set
forth in the applicable Performance Unit Agreement the Performance
Period, Performance Criteria and Performance Goals which the Holder
and/or the Company would be required to satisfy before the Holder
would become entitled to payment pursuant to Section 11.3, the
number of Units awarded to the Holder and the dollar value or
formula assigned to each such Unit. Such payment shall be subject
to a “substantial risk of forfeiture” under Section
409A of the Code. At the time of such Award, the Committee may, in
its sole discretion, prescribe additional terms and conditions or
restrictions relating to Performance Unit Awards, including, but
not limited to, rules pertaining to the effect of Termination of
Service prior to expiration of the applicable performance period.
The terms and conditions of the respective Performance Unit
Agreements need not be identical.

 

11.3 Payments.
The Holder of a Performance Unit shall be entitled to receive a
cash payment equal to the dollar value assigned to such Unit under
the applicable Performance Unit Agreement if the Holder and/or the
Company satisfy (or partially satisfy, if applicable under the
applicable Performance Unit Agreement) the Performance Goals set
forth in such Performance Unit Agreement. All payments shall be
made no later than by the fifteenth (15th) day of the third
(3rd)
calendar month next following the end of the Company’s fiscal
year to which such performance goals and objectives
relate.


 




 

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ARTICLE
XII



PERFORMANCE STOCK AWARDS

 

12.1 Award.
A Performance Stock Award shall constitute a promise to grant
Shares (or cash equal to the Fair Market Value of Shares) to the
Holder at the end of a specified Performance Period subject to
achievement of specified Performance Goals. At the time a
Performance Stock Award is made, the Committee shall establish the
Performance Period and applicable Performance Goals based on
selected Performance Criteria. Each Performance Stock Award may
have different Performance Goals, in the discretion of the
Committee. A Performance Stock Award shall not constitute an equity
interest in the Company and shall not entitle the Holder to voting
rights, dividends or any other rights associated with ownership of
Shares unless and until the Holder shall receive a distribution of
Shares pursuant to Section 11.3.

 

12.2 Terms
and Conditions. At the time any
Award is made under this Article XII, the Company and the Holder
shall enter into a Performance Stock Agreement setting forth each
of the matters contemplated thereby and such other matters as the
Committee may determine to be appropriate. The Committee shall set
forth in the applicable Performance Stock Agreement the Performance
Period, selected Performance Criteria and Performance Goals which
the Holder and/or the Company would be required to satisfy before
the Holder would become entitled to the receipt of Shares pursuant
to such Holder’s Performance Stock Award and the number of
Shares subject to such Performance Stock Award. Such distribution
shall be subject to a “substantial risk of forfeiture”
under Section 409A of the Code. If such Performance Goals are
achieved, the distribution of Shares (or the payment of cash, as
determined in the sole discretion of the Committee), shall be made
no later than by the fifteenth (15th) day of the third
(3rd)
calendar month next following the end of the Company’s fiscal
year to which such goals and objectives relate. At the time of such
Award, the Committee may, in its sole discretion, prescribe
additional terms and conditions or restrictions relating to
Performance Stock Awards, including, but not limited to, rules
pertaining to the effect of the Holder’s Termination of
Service prior to the expiration of the applicable performance
period. The terms and conditions of the respective Performance
Stock Agreements need not be identical.

 

12.3 Distributions
of Shares. The Holder of a
Performance Stock Award shall be entitled to receive a cash payment
equal to the Fair Market Value of a Share, or one Share, as
determined in the sole discretion of the Committee, for each
Performance Stock Award subject to such Performance Stock
Agreement, if the Holder satisfies the applicable vesting
requirement. Such distribution shall be made no later than by the
fifteenth (15th) day of the third
(3rd)
calendar month next following the end of the Company’s fiscal
year to which such performance goals and objectives
relate.


 




 

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ARTICLE
XIII



RECAPITALIZATION OR REORGANIZATION

 

13.1 Adjustments
to Shares. The shares with
respect to which Awards may be granted under the Plan are Shares as
presently constituted; provided, however, that if, and whenever,
prior to the expiration or distribution to the Holder of Shares
underlying an Award theretofore granted, the Company shall effect a
subdivision or consolidation of the Shares or the payment of an
Share dividend on Shares without receipt of consideration by the
Company, the number of Shares with respect to which such Award may
thereafter be exercised or satisfied, as applicable, (i) in
the event of an increase in the number of outstanding Shares, shall
be proportionately increased, and the purchase price per Share
shall be proportionately reduced, and (ii) in the event of a
reduction in the number of outstanding Shares, shall be
proportionately reduced, and the purchase price per Share shall be
proportionately increased. Notwithstanding the foregoing or any
other provision of this Article XIII, any adjustment made with
respect to an Award (x) which is an Incentive Stock Option, shall
comply with the requirements of Section 424(a) of the Code, and in
no event shall any adjustment be made which would render any
Incentive Stock Option granted under the Plan to be other than an
“incentive stock option” for purposes of Section 422 of
the Code, and (y) which is a Non-qualified Stock Option, shall
comply with the requirements of Section 409A of the Code, and in no
event shall any adjustment be made which would render any
Non-qualified Stock Option granted under the Plan to become subject
to Section 409A of the Code.

 

13.2 Recapitalization.
If the Company recapitalizes or otherwise changes its capital
structure, thereafter upon any exercise or satisfaction, as
applicable, of a previously granted Award, the Holder shall be
entitled to receive (or entitled to purchase, if applicable) under
such Award, in lieu of the number of Shares then covered by such
Award, the number and class of shares and securities to which the
Holder would have been entitled pursuant to the terms of the
recapitalization if, immediately prior to such recapitalization,
the Holder had been the holder of record of the number of Shares
then covered by such Award.

 

13.3 Other
Events.In the event of
changes to the outstanding Shares by reason of an extraordinary
cash dividend, reorganization, merger, consolidation, combination,
split-up, spin-off, exchange or other relevant change in
capitalization occurring after the date of the grant of any Award
and not otherwise provided for under this Article XIII, any
outstanding Awards and any Award Agreements evidencing such Awards
shall be adjusted by the Board in its discretion in such manner as
the Board shall deem equitable or appropriate taking into
consideration the applicable accounting and tax consequences, as to
the number and price of Shares or other consideration subject to
such Awards. In the event of any adjustment pursuant to Sections
13.1, 13.2 or this Section 13.3, the aggregate number of Shares
available under the Plan pursuant to Section 5.1 may be
appropriately adjusted by the Board, the determination of which
shall be conclusive. In addition, the Committee may make provision
for a cash payment to a Holder or a person who has an outstanding
Award.

 




 

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13.4
Change of Control. The
Committee may, in its sole discretion, at the time an Award is made
or at any time prior to, coincident with or after the time of a
Change of Control, cause any Award either (i) to be canceled in
consideration of a payment in cash or other consideration in amount
per share equal to the excess, if any, of the price or implied
price per Share in the Change of Control over the per Share
exercise, base or purchase price of such Award, which may be paid
immediately or over the vesting schedule of the Award; (ii) to be
assumed, or new rights substituted therefore, by the surviving
corporation or a parent or subsidiary of such surviving corporation
following such Change of Control; (iii) accelerate any time
periods, or waive any other conditions, relating to the vesting,
exercise, payment or distribution of an Award so that any Award to
a Holder whose employment has been terminated as a result of a
Change of Control may be vested, exercised, paid or distributed in
full on or before a date fixed by the Committee; (iv) to be
purchased from a Holder whose employment has been terminated as a
result of a Change of Control, upon the Holder’s request, for
an amount of cash equal to the amount that could have been obtained
upon the exercise, payment or distribution of such rights had such
Award been currently exercisable or payable; or (v) terminate any
then outstanding Award or make any other adjustment to the Awards
then outstanding as the Committee deems necessary or appropriate to
reflect such transaction or change. The number of Shares subject to
any Award shall be rounded to the nearest whole
number.

 

13.5
Powers
Not Affected. The existence of
the Plan and the Awards granted hereunder shall not affect in any
way the right or power of the Board or of the stockholders of the
Company to make or authorize any adjustment, recapitalization,
reorganization or other change of the Company’s capital
structure or business, any merger or consolidation of the Company,
any issue of debt or equity securities ahead of or affecting Shares
or the rights thereof, the dissolution or liquidation of the
Company or any sale, lease, exchange or other disposition of all or
any part of its assets or business or any other corporate act or
proceeding.

 

13.6
No
Adjustment for Certain Awards. Except as
hereinabove expressly provided, the issuance by the Company of
shares of any class or securities convertible into shares of any
class, for cash, property, labor or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefor or
upon conversion of shares or obligations of the Company convertible
into such shares or other securities, and in any case whether or
not for fair value, shall not affect previously granted Awards, and
no adjustment by reason thereof shall be made with respect to the
number of Shares subject to Awards theretofore granted or the
purchase price per Share, if applicable.


 




 

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ARTICLE
XIV



AMENDMENT AND TERMINATION OF PLAN

 


The
Plan shall continue in effect, unless sooner terminated pursuant to
this Article XIV, until the tenth (10th) anniversary of the
date on which it is adopted by the Board (except as to Awards
outstanding on that date). The Board in its discretion may
terminate the Plan at any time with respect to any shares for which
Awards have not theretofore been granted; provided, however, that the Plan’s
termination shall not materially and adversely impair the rights of
a Holder with respect to any Award theretofore granted without the
consent of the Holder. The Board shall have the right to alter or
amend the Plan or any part hereof from time to time; provided, however, that without the
approval by a majority of the votes cast at a meeting of
stockholders at which a quorum representing a majority of the
shares of the Company entitled to vote generally in the election of
directors is present in person or by proxy, no amendment or
modification of the Plan may (i) materially increase the
benefits accruing to Holders, (ii) except as otherwise
expressly provided in Article XIII, materially increase the number
of Shares subject to the Plan or the individual Award Agreements
specified in Article V, (iii) materially modify the
requirements for participation in the Plan, or (iv) amend,
modify or suspend this Article XIV. In addition, no change in any
Award theretofore granted may be made which would materially and
adversely impair the rights of a Holder with respect to such Award
without the consent of the Holder (unless such change is required
in order to exempt the Plan or any Award from Section 409A of the
Code).

 


ARTICLE
XV



MISCELLANEOUS

 

15.1 No
Right to Award. Neither the
adoption of the Plan by the Company nor any action of the Board or
the Committee shall be deemed to give an Employee, Director or
Consultant any right to an Award except as may be evidenced by an
Award Agreement duly executed on behalf of the Company, and then
solely to the extent and on the terms and conditions expressly set
forth therein.

 

15.2 No
Rights Conferred. Nothing contained
in the Plan shall (i) confer upon any Employee any right with
respect to continuation of employment with the Company or any
Affiliate, (ii) interfere in any way with any right of the
Company or any Affiliate to terminate the employment of an Employee
at any time, (iii) confer upon any Director any right with
respect to continuation of such Director’s membership on the
Board, (iv) interfere in any way with any right of the Company
or an Affiliate to terminate a Director’s membership on the
Board at any time, (v) confer upon any Consultant any right
with respect to continuation of his or her consulting engagement
with the Company or any Affiliate, or (vi) interfere in any
way with any right of the Company or an Affiliate to terminate a
Consultant’s consulting engagement with the Company or an
Affiliate at any time.


 




 

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15.3 Other
Laws; No Fractional Shares; Withholding. The Company shall
not be obligated by virtue of any provision of the Plan to
recognize the exercise of any Award or to otherwise sell or issue
Shares in violation of any laws, rules or regulations, and any
postponement of the exercise or settlement of any Award under this
provision shall not extend the term of such Award. Neither the
Company nor its directors or officers shall have any obligation or
liability to a Holder with respect to any Award (or Shares issuable
thereunder) (i) that shall lapse because of such postponement,
or (ii) for any failure to comply with the requirements of any
applicable law, rules or regulations, including but not limited to
any failure to comply with the requirements of Section 409A of this
Code. No fractional Shares shall be delivered, nor shall any cash
in lieu of fractional Shares be paid. The Company shall have the
right to deduct in cash (whether under this Plan or otherwise) in
connection with all Awards any taxes required by law to be withheld
and to require any payments required to enable it to satisfy its
withholding obligations. In the case of any Award satisfied in the
form of Shares, no Shares shall be issued unless and until
arrangements satisfactory to the Company shall have been made to
satisfy any tax withholding obligations applicable with respect to
such Award. Subject to such terms and conditions as the Committee
may impose, the Company shall have the right to retain, or the
Committee may, subject to such terms and conditions as it may
establish from time to time, permit Holders to elect to tender,
Shares (including Shares issuable in respect of an Award) to
satisfy, in whole or in part, the amount required to be
withheld.

 

15.4 No
Restriction on Corporate Action. Nothing contained
in the Plan shall be construed to prevent the Company or any
Affiliate from taking any corporate action which is deemed by the
Company or such Affiliate to be appropriate or in its best
interest, whether or not such action would have an adverse effect
on the Plan or any Award made under the Plan. No Employee,
Director, Consultant, beneficiary or other person shall have any
claim against the Company or any Affiliate as a result of any such
action.

 

15.5 Restrictions
on Transfer. No Award under
the Plan or any Award Agreement and no rights or interests herein
or therein, shall or may be assigned, transferred, sold, exchanged,
encumbered, pledged or otherwise hypothecated or disposed of by a
Holder except (i) by will or by the laws of descent and
distribution, or (ii) where permitted under applicable tax
rules, by gift to any Family Member of the Holder, subject to
compliance with applicable laws. An Award may be exercisable during
the lifetime of the Holder only by such Holder or by the
Holder’s guardian or legal representative unless it has been
transferred by gift to a Family Member of the Holder, in which case
it shall be exercisable solely by such transferee. Notwithstanding
any such transfer, the Holder shall continue to be subject to the
withholding requirements provided for under Section 15.3
hereof.


 




 

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15.6 Beneficiary
Designations. Each Holder may,
from time to time, name a beneficiary or beneficiaries (who may be
contingent or successive beneficiaries) for purposes of receiving
any amount which is payable in connection with an Award under the
Plan upon or subsequent to the Holder’s death. Each such
beneficiary designation shall serve to revoke all prior beneficiary
designations, be in a form prescribed by the Company and be
effective solely when filed by the Holder in writing with the
Company during the Holder’s lifetime. In the absence of any
such written beneficiary designation, for purposes of the Plan, a
Holder’s beneficiary shall be the Holder’s
estate.

 

15.7 Rule
16b-3. It is intended
that the Plan and any Award made to a person subject to Section 16
of the Exchange Act shall meet all of the requirements of
Rule 16b-3. If any provision of the Plan or of any such Award
would disqualify the Plan or such Award under, or would otherwise
not comply with the requirements of, Rule 16b-3, such
provision or Award shall be construed or deemed to have been
amended as necessary to conform to the requirements of
Rule 16b-3.

 

15.8 Clawback Policy.
Notwithstanding any contained herein or in any incentive
“performance based” Awards under the Plan shall be
subject to reduction, forfeiture or repayment by reason of a
correction or restatement of the Company’s financial
information if and to the extent such reduction or repayment is
required by any applicable law.

 

15.9 Section
409A. Notwithstanding
any other provision of the Plan, the Committee shall have no
authority to issue an Award under the Plan with terms and/or
conditions which would cause such Award to constitute non-qualified
“deferred compensation” under Section 409A of the
Code unless such Award shall be structured to be exempt from or
comply with all requirements of Code Section 409A. The Plan and all
Award Agreements are intended to comply with the requirements of
Section 409A of the Code (or to be exempt therefrom) and shall
be so interpreted and construed and no amount shall be paid or
distributed from the Plan unless and until such payment complies
with all requirements of Code Section 409A. It is the intent of the
Company that the provisions of this Agreement and all other plans
and programs sponsored by the Company be interpreted to comply in
all respects with Code Section 409A, however, the Company shall
have no liability to the Holder, or any successor or beneficiary
thereof, in the event taxes, penalties or excise taxes may
ultimately be determined to be applicable to any payment or benefit
received by the Holder or any successor or beneficiary
thereof.


 




 

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15.10 Indemnification.
Each person who is or shall have been a member of the Committee or
of the Board shall be indemnified and held harmless by the Company
against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred thereby in connection with or
resulting from any claim, action, suit, or proceeding to which such
person may be made a party or may be involved by reason of any
action taken or failure to act under the Plan and against and from
any and all amounts paid thereby in settlement thereof, with the
Company’s approval, or paid thereby in satisfaction of any
judgment in any such action, suit, or proceeding against such
person; provided,
however, that such
person shall give 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 and shall be independent of
any other rights of indemnification to which such persons may be
entitled under the Company’s Articles of Incorporation or
By-laws, by contract, as a matter of law, or
otherwise.

 

15.11 Other
Benefit Plans. No Award, payment
or amount received hereunder shall be taken into account in
computing an Employee’s salary or compensation for the
purposes of determining any benefits under any pension, retirement,
life insurance or other benefit plan of the Company or any
Affiliate, unless such other plan specifically provides for the
inclusion of such Award, payment or amount received. Nothing in the
Plan shall be construed to limit the right of the Company to
establish other plans or to pay compensation to its employees, in
cash or property, in a manner which is not expressly authorized
under the Plan.

 

15.12 Limits
of Liability. Any liability of
the Company with respect to an Award shall be based solely upon the
contractual obligations created under the Plan and the Award
Agreement. None of the Company, any member of the Board nor any
member of the Committee shall have any liability to any party for
any action taken or not taken, in good faith, in connection with or
under the Plan.

 

15.13 Governing
Law. Except as
otherwise provided herein, the Plan shall be construed in
accordance with the laws of the State of Nevada, without regard to
principles of conflicts of law.

 

15.14 Severability
of Provisions. If any provision
of the Plan is held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision of the Plan,
and the Plan shall be construed and enforced as if such invalid or
unenforceable provision had not been included in the
Plan.

 

15.15 No
Funding. The Plan shall be
unfunded. The Company shall not be required to establish any
special or separate fund or to make any other segregation of funds
or assets to ensure the payment of any Award. Prior to receipt of
Shares or a cash distribution pursuant to the terms of an Award,
such Award shall represent an unfunded unsecured contractual
obligation of the Company and the Holder shall have no greater
claim to the Shares underlying such Award or any other assets of
the Company or Affiliate than any other unsecured general
creditor.

 

15.16 Headings.
Headings used throughout the Plan are for convenience only and
shall not be given legal significance.


 




 

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