BEAMZ
INTERACTIVE, INC.


 


2009 INCENTIVE
COMPENSATION PLAN


 



    	 



    	 



    

 


TABLE OF CONTENTS


  


	 	 	Page
	 	 	 
	1.	Purpose	1
	 	 	 
	2.	Administration.	1
	 	(a)	Authority of the Committee	1
	 	(b)	Manner of Exercise of Authority	1
	 	(c)	Limitation of Liability	1
	 	 	 	 
	3.	Stock Subject to Plan	2
	 	(a)	Limitation on Overall Number of Shares Subject to Awards	2
	 	(b)	Application of Limitations	2
	 	 	 	 
	4.	Eligibility; Per-Person Award Limitations	2
	 	 	 	 
	5.	Specific Terms of Awards.	2
	 	(a)	General	2
	 	(b)	Options	2
	 	(c)	Stock Appreciation Rights	3
	 	(d)	Restricted Stock	4
	 	(e)	Bonus Stock and Awards in Lieu of Obligations	5
	 	(f)	Other Stock-Based Awards	5
	 	 	 	 
	6.	Certain Provisions Applicable to Awards.	5
	 	(a)	Stand-Alone, Additional, Tandem, and Substitute Awards	5
	 	(b)	Term of Awards	5
	 	(c)	Form and Timing of Payment Under Awards; Deferrals	6
	 	(d)	Exemptions from Section 16(b) Liability	6
	 	 	 	 
	7.	Change in Control.	6
	 	(a)	Effect of “Change in Control.”	6
	 	(b)	Definition of “Change in Control”.	6
	 	(c)	Definition of “Change in Control Price.”	7
	 	 	 	 
	8.	General Provisions.	7
	 	(a)	Compliance With Legal and Other Requirements	7
	 	(b)	Limits on Transferability; Beneficiaries	7
	 	(c)	Adjustments.	8
	 	(d)	Taxes	9
	 	(e)	Changes to the Plan and Awards	9
	 	(f)	Limitation on Rights Conferred Under Plan	9
	 	(g)	Unfunded Status of Awards; Creation of Trusts	9
	 	(h)	Nonexclusivity of the Plan	9
	 	(i)	Payments in the Event of Forfeitures; Fractional Shares	9
	 	(j)	Governing Law	10
	 	(k)	Plan Effective Date and Stockholder Approval; Termination of Plan	10
	 	 	 	 
	9.	Definitions	10
	 	(a)	“Award”	10
	 	(b)	“Beneficiary”	10
	 	(c)	“Beneficial Owner”, “Beneficially Owning” and “Beneficial Ownership”	10
	 	(d)	“Board”	10


 



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TABLE OF CONTENTS 


    


	 	 	 	Page 
	 	 	 	 
	 	(e)	“Change in Control”	10
	 	(f)	“Change in Control Price”	10
	 	(g)	“Code”	10
	 	(h)	“Committee”	10
	 	(i)	“Consultant”	11
	 	(j)	“Continuous Service”	11
	 	(k)	“Corporate Transaction”	11
	 	(l)	“Director”	11
	 	(m)	“Dividend Equivalent”	11
	 	(n)	“Effective Date”	11
	 	(o)	“Eligible Person”	11
	 	(p)	“Employee”	11
	 	(q)	“Exchange Act”	11
	 	(r)	“Executive Officer”	11
	 	(s)	“Fair Market Value”	11
	 	(t)	“Incentive Stock Option”	11
	 	(u)	“Incumbent Board”	12
	 	(v)	“Limited Stock Appreciation Right”	12
	 	(w)	“Option”	12
	 	(x)	“Optionee”	12
	 	(y)	“Other Stock-Based Awards”	12
	 	(z)	“Parent”	12
	 	(aa)	“Participant”	12
	 	(bb)	“Person”	12
	 	(cc)	“Related Entity”	12
	 	(dd)	“Restricted Stock”	12
	 	(ee)	“Rule 16b-3” and “Rule 16a-1(c)(3)”	12
	 	(ff)	“Stock”	12
	 	(gg)	“Stock Appreciation Right”	12
	 	(hh)	“Subsidiary”	12


 



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BEAMZ INTERACTIVE,
INC.


 


2009 INCENTIVE
COMPENSATION PLAN


 


1.            Purpose.
The purpose of this 2009 Incentive Compensation Plan (the “Plan”) is to assist Beamz Interactive, Inc., a Delaware
corporation (the “Company”) and its Related Entities in attracting, motivating, retaining, and rewarding high-quality
executives and other Employees, officers, Directors, and Consultants by enabling such persons to acquire or increase a proprietary
interest in the Company in order to strengthen the mutuality of interests between such persons and the Company's stockholders,
and providing such persons with annual and long-term performance incentives to expend their maximum efforts in the creation of
stockholder value. The Plan is intended to qualify certain compensation awarded under the Plan for tax deductibility under Section
162(m) of the Code to the extent deemed appropriate by the Board of Directors or any applicable committee (or any successor committee)
of the Board of Directors of the Company. The Plan has been designed so that the grant, vesting, exercise and payments of awards
hereunder are not subject to the requirements of Section 409A of the Code. To the extent that an award or payment, or the settlement
or deferral thereof, is or becomes subject to Section 409A of the Code, except as the Committee or the Board otherwise determines
in writing, the award shall be granted, paid, settled or deferred in a manner that will meet the requirements of Section 409A of
the Code, including regulations or other guidance issued with respect thereto, such that the grant, payment, settlement or deferral
shall not be subject to any additional taxation applicable under Section 409A of the Code.


 


2.            Administration.


 


(a)          Authority
of the Committee. The Plan shall be administered by the Board of Directors. The Committee
or the Board shall have full and final authority, in each case subject to and consistent with the provisions of the Plan, to select
Eligible Persons to become Participants, grant Awards, determine the type, number, and other terms and conditions of, and all
other matters relating to, Awards, prescribe Award agreements (which need not be identical for each Participant) and rules and
regulations for the administration of the Plan, construe and interpret the Plan and Award agreements and correct defects, supply
omissions, or reconcile inconsistencies therein, and to make all other decisions and determinations as the Committee or the Board
may deem necessary or advisable for the administration of the Plan. In exercising any discretion granted to the Committee or the
Board under the Plan or pursuant to any Award, the Committee or the Board shall not be required to follow past practices, act
in a manner consistent with past practices, or treat any Eligible Person in a manner consistent with the treatment of other Eligible
Persons.


 


(b)          Manner
of Exercise of Authority. Any action of the Committee or the Board shall be final, conclusive,
and binding on all persons, including the Company, its Related Entities, Participants, Beneficiaries, transferees under Section
8(b) hereof, or other persons claiming rights from or through a Participant, and stockholders. The express grant of any specific
power to the Committee or the Board, and the taking of any action by the Committee or the Board, shall not be construed as limiting
any power or authority of the Committee or the Board. The Committee or the Board may delegate to officers or managers of the Company
or any Related Entity, or committees thereof, the authority, subject to such terms as the Committee or the Board shall determine,
to perform administrative functions or other functions as the Committee or the Board may determine. The Committee or the Board
may appoint agents to assist it in administering the Plan.


 


(c)          Limitation
of Liability. The Committee and the Board, and each member thereof, shall be entitled to,
in good faith, rely or act upon any report or other information furnished to him or her by any Executive Officer, other officer
or Employee, the Company's independent auditors, Consultants or any other agents assisting in the administration of the Plan. Members
of the Committee and the Board, and any officer or Employee acting at the direction or on behalf of the Committee or the Board,
shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall,
to the extent permitted by law, be fully indemnified and protected by the Company with respect to any such action or determination.


 



    	 



    	 



    

  


3.            Stock
Subject to Plan


 


(a)          Limitation
on Overall Number of Shares Subject to Awards. Subject to adjustment as provided in Section
8(c) hereof, the total number of shares of Stock reserved and available for delivery in connection with Awards under the Plan
shall be the sum of (i) 255,000 shares plus (ii) the number of shares of Stock with respect to which any Awards previously granted
under the Plan terminated without being exercised, expire, are forfeited or canceled, do not vest, or are surrendered in payment
of any Awards or any tax withholding with regard thereto. Any shares of Stock delivered under the Plan may consist, in whole or
in part, of authorized and unissued shares or treasury shares. Subject to adjustment as provided in Section 8(c) hereof,
the number of shares of Stock that may be issued pursuant to Incentive Stock Options shall not exceed 50,000 shares.


 


(b)          Application
of Limitations. The limitation contained in Section 3(a) shall apply not only to
Awards that are settleable by the delivery of shares of Stock but also to Awards relating to shares of Stock but settleable only
in cash (such as cash-only Stock Appreciation Rights). The Committee or the Board may adopt reasonable counting procedures to
ensure appropriate counting, avoid double counting (as, for example, in the case of tandem or substitute awards), and make adjustments
if the number of shares of Stock actually delivered differs from the number of shares previously counted in connection with an
Award.


 


4.             Eligibility;
Per-Person Award Limitations. Awards may be granted under the Plan only to Eligible
Persons. In each fiscal year during any part of which the Plan is in effect, an Eligible Person may not be granted Awards relating
to more than 115,000 shares of Stock, subject to adjustment as provided in Section 8(c), under each of Sections 5(b),
5(c), 5(d), 5(e), and 5(f). Directors, who are not Employees, proposed directors, proposed employees,
and independent contractors shall be eligible to receive awards other than Incentive Stock Options.


 


5.            Specific
Terms of Awards.


 


(a)          General.
Awards may be granted on the terms and conditions set forth in this Section 5. In addition, the Committee or the Board may
impose on any Award or the exercise thereof, at the date of grant or thereafter (subject to Section 8(e)), such additional
terms and conditions, not inconsistent with the provisions of the Plan, as the Committee or the Board shall determine, including
terms requiring forfeiture of Awards in the event of termination of Continuous Service by the Participant and terms permitting
a Participant to make elections relating to his or her Award. The Committee or the Board shall retain full power and discretion
to accelerate, waive, or modify, at any time, any term or condition of an Award that is not mandatory under the Plan.


 


(b)          Options.
The Committee and the Board each is authorized to grant Options to Participants on the following terms and conditions:


 


(i)          Exercise
Price. The exercise price per share of Stock purchasable under an Option shall be determined
by the Committee or the Board, provided that such exercise price shall not, in the case of Incentive Stock Options, be less than
100% of the Fair Market Value of the Stock on the date of grant of the Option and shall not, in any event, be less than the par
value of a share of Stock on the date of grant of such Option. If an employee owns or is deemed to own (by reason of the attribution
rules applicable under Section 424(d) of the Code) more than 10% of the combined voting power of all classes of stock of the Company
or any Parent Corporation or Subsidiary and an Incentive Stock Option is granted to such employee, the option price of such Incentive
Stock Option (to the extent required by the Code at the time of grant) shall be no less than 110% of the Fair Market Value of
the Stock on the date such Incentive Stock Option is granted.


 



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(ii)         Time
and Method of Exercise. The Committee or the Board shall determine the time or times at which
or the circumstances under which an Option may be exercised in whole or in part (including based on achievement of performance
goals and/or future service requirements), the time or times at which Options shall cease to be or become exercisable following
termination of Continuous Service or upon other conditions, the methods by which such exercise price may be paid or deemed to be
paid (including in the discretion of the Committee or the Board a cashless exercise procedure), the form of such payment, including,
without limitation, cash, Stock, other Awards, or awards granted under other plans of the Company or a Related Entity, or other
property (including notes or other contractual obligations of Participants to make payment on a deferred basis), and the methods
by or forms in which Stock will be delivered or deemed to be delivered to Participants.


 


(iii)        Incentive
Stock Options. The terms of any Incentive Stock Option granted under the Plan shall comply
in all respects with the provisions of Section 422 of the Code. Anything in the Plan to the contrary notwithstanding, no term of
the Plan relating to Incentive Stock Options (including any Stock Appreciation Right in tandem therewith) shall be interpreted,
amended, or altered, nor shall any discretion or authority granted under the Plan be exercised, so as to disqualify either the
Plan or any Incentive Stock Option under Section 422 of the Code, unless the Participant has first requested the change that will
result in such disqualification. Thus, if and to the extent required to comply with Section 422 of the Code, Options granted as
Incentive Stock Options shall be subject to the following special terms and conditions:


 


(A)         the
Option shall not be exercisable more than ten years after the date such Incentive Stock Option is granted; provided, however,
that if a Participant owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than 10%
of the combined voting power of all classes of stock of the Company or any Parent Corporation and the Incentive Stock Option is
granted to such Participant, the term of the Incentive Stock Option shall be (to the extent required by the Code at the time of
the grant) for no more than five years from the date of grant; and


 


(B)         The
aggregate Fair Market Value (determined as of the date the Incentive Stock Option is granted) of the shares of stock with respect
to which Incentive Stock Options granted under the Plan and all other option plans of the Company or its Parent Corporation during
any calendar year exercisable for the first time by the Participant during any calendar year shall not (to the extent required
by the Code at the time of the grant) exceed $100,000.


 


(iv)        Repurchase
Rights. The Committee and the Board shall have the discretion to grant Options that are exercisable for unvested shares of
Stock. Should the Optionee’s Continuous Service cease while holding such unvested shares, the Company shall have the right
to repurchase, at the exercise price paid per share, any or all of those unvested shares. The terms upon which such repurchase
right shall be exercisable (including the period and procedure for exercise and the appropriate vesting schedule for the purchased
shares) shall be established by the Committee or the Board and set forth in the document evidencing such repurchase right.


 


(c)          Stock
Appreciation Rights. The Committee and the Board each is authorized to grant Stock Appreciation Right's to Participants
on the following terms and conditions:


 


(i)          Right
to Payment. A Stock Appreciation Right shall confer on the Participant to whom it is granted a right to receive, upon exercise
thereof, the excess of (A) the Fair Market Value of one share of stock on the date of exercise (or, in the case of a “Limited
Stock Appreciation Right” that may be exercised only in the event of a Change in Control, the Fair Market Value determined
by reference to the Change in Control Price, as defined under Section 7(c) hereof), over (B) the grant price of the Stock
Appreciation Right as determined by the Committee or the Board. The grant price of a Stock Appreciation Right shall not be less
than the Fair Market Value of a share of Stock on the date of grant except as provided under Section 5(a) hereof.


 



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(ii)         Other
Terms. The Committee or the Board shall determine at the date of grant or thereafter, the time or times at which and the circumstances
under which a Stock Appreciation Right may be exercised in whole or in part (including based on achievement of performance goals
and/or future service requirements), the time or times at which Stock Appreciation Rights shall cease to be or become exercisable
following termination of Continuous Service or upon other conditions, the method of exercise, method of settlement, form of consideration
payable in settlement, method by or forms in which Stock will be delivered or deemed to be delivered to Participants, whether or
not a Stock Appreciation Right shall be in tandem or in combination with any other Award, and any other terms and conditions of
any Stock Appreciation Right. Limited Stock Appreciation Rights that may only be exercised in connection with a Change in Control
or other event as specified by the Committee or the Board, may be granted on such terms, not inconsistent with this Section
5(c), as the Committee or the Board may determine. Stock Appreciation Rights and Limited Stock Appreciation Rights may be either
freestanding or in tandem with other Awards.


 


(d)          Restricted
Stock. The Committee and the Board each is authorized to grant Restricted Stock to Participants on the following terms and
conditions:


 


(i)          Grant
and Restrictions. Restricted Stock shall be subject to such restrictions on transferability, risk of forfeiture, and other
restrictions, if any, as the Committee or the Board may impose, or as otherwise provided in this Plan. The restrictions may lapse
separately or in combination at such times, under such circumstances (including based on achievement of performance goals and/or
future service requirements), in such installments, or otherwise, as the Committee or the Board may determine at the date of grant
or thereafter. Except to the extent restricted under the terms of the Plan and any Award agreement relating to the Restricted Stock,
a Participant granted Restricted Stock shall have all of the rights of a stockholder, including the right to vote the Restricted
Stock and the right to receive dividends thereon (subject to any mandatory reinvestment or other requirement imposed by the Committee
or the Board). During the restricted period applicable to the Restricted Stock, subject to Section 8(b) below, the Restricted
Stock may not be sold, transferred, pledged, hypothecated, margined, or otherwise encumbered by the Participant.


 


(ii)         Forfeiture.
Except as otherwise determined by the Committee or the Board at the time of the Award, upon termination of a Participant's Continuous
Service during the applicable restriction period, the Participant's Restricted Stock that is at that time subject to restrictions
shall be forfeited and reacquired by the Company; provided that the Committee or the Board may provide, by rule or regulation or
in any Award agreement, or may determine in any individual case, that restrictions or forfeiture conditions relating to Restricted
Stock shall be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee or the
Board may in other cases waive in whole or in part the forfeiture of Restricted Stock.


 


(iii)        Certificates
for Stock. Restricted Stock granted under the Plan may be evidenced in such manner as the Committee or the Board shall determine.
If certificates representing Restricted Stock are registered in the name of the Participant, the Committee or the Board may require
that such certificates bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted
Stock, that the Company retain physical possession of the certificates, and that the Participant deliver a stock power to the Company,
endorsed in blank, relating to the Restricted Stock.


 


(iv)        Dividends
and Splits. As a condition to the grant of an Award of Restricted Stock, the Committee or the Board may require that any cash
dividends paid on a share of Restricted Stock be automatically reinvested in additional shares of Restricted Stock or applied to
the purchase of additional Awards under the Plan. Unless otherwise determined by the Committee or the Board, Stock distributed
in connection with a Stock split or Stock dividend, and other property distributed as a dividend, shall be subject to restrictions
and a risk of forfeiture to the same extent as the Restricted Stock with respect to which such Stock or other property has been
distributed.


 



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(e)          Bonus
Stock and Awards in Lieu of Obligations. The Committee and the Board each is authorized to grant Stock as a bonus, or to grant
Stock or other Awards in lieu of Company obligations to pay cash or deliver other property under the Plan or under other plans
or compensatory arrangements, provided that, in the case of Participants subject to Section 16 of the Exchange Act, the amount
of such grants remains within the discretion of the Committee to the extent necessary to ensure that acquisitions of Stock or other
Awards are exempt from liability under Section 16(b) of the Exchange Act. Stock or Awards granted hereunder shall be subject to
such other terms as shall be determined by the Committee or the Board.


 


(f)          Other
Stock-Based Awards. The Committee and the Board each is authorized, subject to limitations under applicable law, to grant to
Participants such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise
based on, or related to, Stock, as deemed by the Committee or the Board to be consistent with the purposes of the Plan, including,
without limitation, convertible or exchangeable debt securities, other rights convertible or exchangeable into Stock, purchase
rights for Stock, Awards with value and payment contingent upon performance of the Company or any other factors designated by the
Committee or the Board, and Awards valued by reference to the book value of Stock or the value of securities of or the performance
of specified Related Entities or business units. The Committee or the Board shall determine the terms and conditions of such Awards.
Stock delivered pursuant to an Award in the nature of a purchase right granted under this Section 5(f) shall be purchased
for such consideration, paid for at such times, by such methods, and in such forms, including, without limitation, cash, Stock,
other Awards, or other property, as the Committee or the Board shall determine. The Committee and the Board shall have the discretion
to grant such other Awards that are exercisable for unvested shares of Stock. Should the Optionee’s Continuous Service cease
while holding such unvested shares, the Company shall have the right to repurchase, at the exercise price paid per share, any or
all of those unvested shares. The terms upon which such repurchase right shall be exercisable (including the period and procedure
for exercise and the appropriate vesting schedule for the purchased shares) shall be established by the Committee or the Board
and set forth in the document evidencing such repurchase right. Cash awards, as an element of or supplement to any other Award
under the Plan, may also be granted pursuant to this Section 5(f).


 


6.            Certain
Provisions Applicable to Awards.


 


(a)          Stand-Alone,
Additional, Tandem, and Substitute Awards. Awards granted under the Plan may, in the discretion of the Committee or the Board,
be granted either alone or in addition to, in tandem with, or in substitution or exchange for, any other Award or any award granted
under another plan of the Company, any Related Entity, or any business entity to be acquired by the Company or a Related Entity,
or any other right of a Participant to receive payment from the Company or any Related Entity. Such additional, tandem, and substitute
or exchange Awards may be granted at any time. If an Award is granted in substitution or exchange for another Award or award, the
Committee or the Board shall require the surrender of such other Award or award in consideration for the grant of the new Award.
In addition, Awards may be granted in lieu of cash compensation, including in lieu of cash amounts payable under other plans of
the Company or any Related Entity, in which the value of Stock subject to the Award is equivalent in value to the cash compensation
(for example, deferred stock or Restricted Stock), or in which the exercise price, grant price, or purchase price of the Award
in the nature of a right that may be exercised is equal to the Fair Market Value of the underlying Stock minus the value of the
cash compensation surrendered (for example, Options granted with an exercise price “discounted” by the amount of the
cash compensation surrendered).


 


(b)          Term
of Awards. The term of each Award shall be for such period as may be determined by the Committee or the Board; provided that
in no event shall the term of any Option or Stock Appreciation Right exceed a period of ten years (or such shorter term as may
be required in respect of an Incentive Stock Option under Section 422 of the Code).


 



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(c)          Form
and Timing of Payment Under Awards; Deferrals. Subject to the terms of the Plan and any applicable Award agreement, payments
to be made to the Company or a Related Entity upon the exercise of an Option or other Award or settlement of an Award may be made
in such forms as the Committee or the Board shall determine, including, without limitation, cash, other Awards or other property,
and may be made in a single payment or transfer, in installments, or on a deferred basis. The settlement of any Award may be accelerated,
and cash paid in lieu of Stock in connection with such settlement, in the discretion of the Committee or the Board or upon occurrence
of one or more specified events (in addition to a Change in Control). Installment or deferred payments may be required by the Committee
or the Board (subject to Section 8(e) of the Plan) or permitted at the election of the Participant on terms and conditions
established by the Committee or the Board. Payments may include, without limitation, provisions for the payment or crediting of
a reasonable interest rate on installment or deferred payments or the grant or crediting of Dividend Equivalents or other amounts
in respect of installment or deferred payments denominated in Stock.


 


(d)          Exemptions
from Section 16(b) Liability. It is the intent of the Company that this Plan comply in all respects with applicable provisions
of Rule 16b-3 or Rule 16a-1(c)(3) to the extent necessary to ensure that neither the grant of any Awards to nor other transaction
by a Participant who is subject to Section 16 of the Exchange Act is subject to liability under Section 16(b) thereof (except for
transactions acknowledged in writing to be non-exempt by such Participant). Accordingly, if any provision of this Plan or any Award
agreement does not comply with the requirements of Rule 16b-3 or Rule 16a-1(c)(3) as then applicable to any such transaction, such
provision will be construed or deemed amended to the extent necessary to conform to the applicable requirements of Rule 16b-3 or
Rule 16a-1(c)(3) so that such Participant shall avoid liability under Section 16(b). In addition, the purchase price of any Award
conferring a right to purchase Stock shall be not less than any specified percentage of the Fair Market Value of Stock at the date
of grant of the Award then required in order to comply with Rule 16b-3. 


 


7.            Change
in Control.


 


(a)          Effect
of “Change in Control.” If and to the extent provided in the Award, in the event of a “Change in Control,”
as defined in Section 7(b):


 


(i)          The
Committee may, within its discretion, accelerate the vesting and exercisability of any Option or Award carrying a right to exercise
that was not previously vested and exercisable as of the time of the Change in Control, subject to applicable restrictions set
forth in Section 8(a) hereof;


 


(ii)         The
Committee may, within its discretion, accelerate the exercisability of any limited Stock Appreciation Rights (and other Stock Appreciation
Rights if so provided by their terms) and provide for the settlement of such Stock Appreciation Rights for amounts, in cash, determined
by reference to the Change in Control Price; and


 


(iii)        The
Committee may, within its discretion, lapse the restrictions, deferral of settlement, and forfeiture conditions applicable to any
other Award granted under the Plan and such Awards may be deemed fully vested as of the time of the Change in Control, except to
the extent of any waiver by the Participant and subject to applicable restrictions set forth in Section 8(a) hereof.


 


(b)          Definition
of “Change in Control”. A “Change in Control” shall be deemed to have occurred upon:


 


(i)          Approval
by the stockholders of the Company of a reorganization, merger, consolidation, or other form of corporate transaction or series
of transactions, in each case, with respect to which persons who were the stockholders of the Company immediately prior to such
reorganization, merger, consolidation, or other transaction do not, immediately thereafter, own more than 50% of the combined voting
power entitled to vote generally in the election of directors of the reorganized, merged, or consolidated company's then outstanding
voting securities, or a liquidation or dissolution of the Company or the sale of all or substantially all of the assets of the
Company (unless such reorganization, merger, consolidation or other corporate transaction, liquidation, dissolution or sale (any
such event being referred to as a “Corporate Transaction”) is subsequently abandoned);


 



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(ii)         Individuals
who, as of the date on which the Award is granted, constitute the Board (the “Incumbent Board”) cease for any
reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the date on which
the Award was granted whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election contest relating to the election of the Directors of
the Company) shall be, for purposes of this Agreement, considered as though such person were a member of the Incumbent Board; or


 


(iii)        the
acquisition (other than from the Company) by any person, entity, or "group", within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act, of more than 50% of either the then outstanding shares of the Company’s Stock or
the combined voting power of the Company's then outstanding voting securities entitled to vote generally in the election of directors
(hereinafter referred to as the ownership of a “Controlling Interest”) excluding, for this purpose, any acquisitions
by (1) the Company or a Related Entity, (2) any person, entity, or “group” that as of the date on which the Award is
granted owns beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a Controlling
Interest or (3) any employee benefit plan of the Company a Related Entity.


 


(c)          Definition
of “Change in Control Price.” The “Change in Control Price” means an amount in cash equal to
the higher of (i) the amount of cash and fair market value of property that is the highest price per share paid (including extraordinary
dividends) in any Corporate Transaction triggering the Change in Control under Section 7(b)(i) hereof or any liquidation
of shares following a sale of substantially all of the assets of the Company, or (ii) the highest Fair Market Value per share at
any time during the 60-day period preceding and the 60-day period following the Change in Control.


 


8.            General
Provisions.


 


(a)          Compliance
With Legal and Other Requirements. The Company may, to the extent deemed necessary or advisable by the Committee or the Board,
postpone the issuance or delivery of Stock or payment of other benefits under any Award until completion of such registration or
qualification of such Stock or other required action under any federal or state law, rule, or regulation, listing, or other required
action with respect to any stock exchange or automated quotation system upon which the Stock or other Company securities may then
be listed or quoted, or compliance with any other obligation of the Company, as the Committee or the Board, may consider appropriate,
and may require any Participant to make such representations, furnish such information and comply with or be subject to such other
conditions as it may consider appropriate in connection with the issuance or delivery of Stock or payment of other benefits in
compliance with applicable laws, rules, and regulations, listing requirements, or other obligations.


 


(b)          Limits
on Transferability; Beneficiaries. No Award or other right or interest of a Participant under the Plan, including any Award
or right that constitutes a derivative security as generally defined in Rule 16a-1(c) under the Exchange Act, shall be pledged,
hypothecated, or otherwise encumbered or subject to any lien, obligation, or liability of such Participant to any party (other
than the Company or a Subsidiary), or assigned or transferred by such Participant otherwise than by a qualified domestic relations
order, by will or the laws of descent and distribution or to a Beneficiary upon the death of a Participant, and such Awards or
rights that may be exercisable shall be exercised during the lifetime of the Participant only by the Participant or his or her
guardian or legal representative, except that Awards and other rights (other than Incentive Stock Options and Stock Appreciation
Rights in tandem therewith) may be transferred to one or more Beneficiaries or other transferees during the lifetime of the Participant,
and may be exercised by such transferees in accordance with the terms of such Award, but only if and to the extent such transfers
and exercises are permitted by the Committee or the Board pursuant to the express terms of an Award agreement (subject to any terms
and conditions which the Committee or the Board may impose thereon, and further subject to any prohibitions or restrictions on
such transfers pursuant to Rule 16b-3). A Beneficiary, transferee, or other person claiming any rights under the Plan from or through
any Participant shall be subject to all terms and conditions of the Plan and any Award agreement applicable to such Participant,
except as otherwise determined by the Committee or the Board, and to any additional terms and conditions deemed necessary or appropriate
by the Committee or the Board.


 



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(c)          Adjustments.


 


(i)          Adjustments
to Awards. In the event that any dividend or other distribution (whether in the form of cash, Stock, or other property), recapitalization,
forward or reverse split, reorganization, merger, consolidation, spin-off, combination, repurchase, share exchange, liquidation,
dissolution, or other similar corporate transaction or event affects the Stock and/or such other securities of the Company or any
other issuer such that a substitution, exchange, or adjustment is determined by the Committee or the Board to be appropriate, then
the Committee or the Board shall, in such manner as it may deem equitable, substitute, exchange, or adjust any or all of (A) the
number and kind of shares of Stock that may be delivered in connection with Awards granted thereafter, (B) the number and kind
of shares of Stock by which annual per-person Award limitations are measured under Section 4 hereof, (C) the number and
kind of shares of Stock subject to or deliverable in respect of outstanding Awards, (D) the exercise price, grant price, or purchase
price relating to any Award and/or make provision for payment of cash or other property in respect of any outstanding Award, and
(E) any other aspect of any Award that the Committee or Board determines to be appropriate. 


 


(ii)         Adjustments
in Case of Certain Corporate Transactions. In the event of a proposed sale of all or substantially all of the Company’s
assets or any reorganization, merger, consolidation, or other form of corporate transaction in which the Company does not survive
(except for a transaction the principal purposes of which is to change the state in which the Company is incorporated), or in which
the shares of Stock are exchanged for or converted into securities issued by another entity, then the successor or acquiring entity
or an affiliate thereof may, with the consent of the Committee or the Board, assume each outstanding Option or substitute an equivalent
option or right. If the successor or acquiring entity or an affiliate thereof, does not cause such an assumption or substitution,
then (A) each Option shall terminate upon the consummation of sale, merger, consolidation, or other corporate transaction, and
(B) the Committee shall have the discretion and authority, consistent with Section 7, exercisable at any time, to provide
for the automatic acceleration of vesting or exercisability of one or more Awards granted by it under the Plan. The Committee or
the Board shall give written notice of any proposed transaction referred to in this Section 8(c)(ii) a reasonable period
of time prior to the closing date for such transaction (which notice may be given either before or after the approval of such transaction),
in order that Optionees may have a reasonable period of time prior to the closing date of such transaction within which to exercise
any Options that are then exercisable (including any Options that may become exercisable upon the closing date of such transaction).
An Optionee may condition his exercise of any Option upon the consummation of the transaction.


 


(iii)        Other
Adjustments. In addition, the Committee (and the Board if and only to the extent such authority is not required to be exercised
by the Committee to comply with Code Section 162(m)) is authorized to make adjustments in the terms and conditions of, and the
criteria included in, Awards in recognition of unusual or nonrecurring events (including, without limitation, acquisitions and
dispositions of businesses and assets) affecting the Company, any Related Entity, or any business unit, or the financial statements
of the Company or any Related Entity, or in response to changes in applicable laws, regulations, accounting principles, tax rates
and regulations, or business conditions or in view of the Committee's assessment of the business strategy of the Company, any Related
Entity or business unit thereof, performance of comparable organizations, economic and business conditions, personal performance
of a Participant, and any other circumstances deemed relevant; provided that no such adjustment shall be authorized or made if
and to the extent that such authority or the making of such adjustment would cause Options, or Stock Appreciation Rights hereof
to Participants designated by the Committee as Covered Employees and intended to qualify as “performance-based compensation”
under Code Section 162(m) and the regulations thereunder to otherwise fail to qualify as “performance-based compensation”
under Code Section 162(m) and regulations thereunder.


 



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(d)          Taxes.
The Company and any Related Entity are authorized to withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Stock, or any payroll or other payment to a Participant, amounts of withholding and other
taxes due or potentially payable in connection with any transaction involving an Award, and to take such other action as the Committee
or the Board may deem advisable to enable the Company and Participants to satisfy obligations for the payment of withholding taxes
and other tax obligations relating to any Award. This authority shall include authority to withhold or receive Stock or other property
and to make cash payments in respect thereof in satisfaction of a Participant's tax obligations, either on a mandatory or elective
basis in the discretion of the Committee.


 


(e)          Changes
to the Plan and Awards. The Board may amend, alter, suspend, discontinue, or terminate the Plan, or the Committee's authority
to grant Awards under the Plan, without the consent of stockholders or Participants, except that any amendment or alteration to
the Plan shall be subject to the approval of the Company's stockholders not later than the next annual meeting following such Board
action if such stockholder approval is required by any federal or state law or regulation (including, without limitation, Rule
16b-3 or Code Section 162(m)) or the rules of any stock exchange or automated quotation system on which the Stock may then be listed
or quoted, and the Board may otherwise, in its discretion, determine to submit other such changes to the Plan to stockholders for
approval; provided that, without the consent of an affected Participant, no such Board action may materially and adversely affect
the rights of such Participant under any previously granted and outstanding Award. The Committee or the Board may waive any conditions
or rights under, or amend, alter, suspend, discontinue, or terminate any Award theretofore granted and any Award agreement relating
thereto, except as otherwise provided in the Plan; provided that, without the consent of an affected Participant, no such Committee
or the Board action may materially and adversely affect the rights of such Participant under such Award.


 


(f)          Limitation
on Rights Conferred Under Plan. Neither the Plan nor any action taken hereunder shall be construed as (i) giving any Eligible
Person or Participant the right to continue as an Eligible Person or Participant or in the employ of the Company or a Related Entity;
(ii) interfering in any way with the right of the Company or a Related Entity to terminate any Eligible Person's or Participant's
Continuous Service at any time, (iii) giving an Eligible Person or Participant any claim to be granted any Award under the Plan
or to be treated uniformly with other Participants and Employees, or (iv) conferring on a Participant any of the rights of a stockholder
of the Company unless and until the Participant is duly issued or transferred shares of Stock in accordance with the terms of an
Award.


 


(g)          Unfunded
Status of Awards; Creation of Trusts. The Plan is intended to constitute an “unfunded” plan for incentive and deferred
compensation. With respect to any payments not yet made to a Participant or obligation to deliver Stock pursuant to an Award, nothing
contained in the Plan or any Award shall give any such Participant any rights that are greater than those of a general creditor
of the Company; provided that the Committee may authorize the creation of trusts and deposit therein cash, Stock, other Awards,
or other property, or make other arrangements to meet the Company's obligations under the Plan. Such trusts or other arrangements
shall be consistent with the “unfunded” status of the Plan unless the Committee otherwise determines with the consent
of each affected Participant. The trustee of such trusts may be authorized to dispose of trust assets and reinvest the proceeds
in alternative investments, subject to such terms and conditions as the Committee or the Board may specify and in accordance with
applicable law.


 


(h)          Nonexclusivity
of the Plan. Neither the adoption of the Plan by the Board nor its submission to the stockholders of the Company for approval
shall be construed as creating any limitations on the power of the Board or a committee thereof to adopt such other incentive arrangements
as it may deem desirable including incentive arrangements and awards which do not qualify under Code Section 162(m).


 


(i)          Payments
in the Event of Forfeitures; Fractional Shares. Unless otherwise determined by the Committee or the Board, in the event of
a forfeiture of an Award with respect to which a Participant paid cash or other consideration, the Participant shall be repaid
the amount of such cash or other consideration. No fractional shares of Stock shall be issued or delivered pursuant to the Plan
or any Award. The Committee or the Board shall determine whether cash, other Awards or other property shall be issued or paid in
lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.


 



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(j)          Governing
Law. The validity, construction, and effect of the Plan, any rules and regulations under the Plan, and any Award agreement
shall be determined in accordance with the laws of the state of Delaware without giving effect to principles of conflicts of laws,
and applicable federal law.


 


(k)          Plan
Effective Date and Stockholder Approval; Termination of Plan. The Plan shall become effective on the Effective Date, subject
to subsequent approval within 12 months of its adoption by the Board by stockholders of the Company eligible to vote in the election
of directors, by a vote sufficient to meet the requirements of Code Sections 162(m) (if applicable) and 422, Rule 16b-3 under the
Exchange Act (if applicable), or rules of any stock exchange or automated quotation system on which the stock may be listed or
quoted, and other laws, regulations, and obligations of the Company applicable to the Plan. Awards may be granted subject to stockholder
approval, but may not be exercised or otherwise settled in the event stockholder approval is not obtained except with respect to
Awards granted by the Company that are otherwise in compliance with Treasury Regulations Section 1.162-27(f)(4)(iii). The Plan
shall terminate at such time as no shares of Stock remain available for issuance under the Plan and the Company has no further
rights or obligations with respect to outstanding Awards under the Plan.


 


9.            Definitions.
For purposes of the Plan, the following terms shall be defined as set forth below, in addition
to such terms defined in Section 1 hereof.


 


(a)          “Award”
means any Option, Stock Appreciation Right (including Limited Stock Appreciation Right), Restricted Stock, Stock granted as a bonus
or in lieu of another award, or Other Stock-Based Award, together with any other right or interest, granted to a Participant under
the Plan.


 


(b)          “Beneficial
Owner”, “Beneficially Owning” and “Beneficial Ownership”shall have the meanings
ascribed to such terms in Rule 13d-3 under the Exchange Act and any successor to such Rule.


 


“Beneficiary”
means the person, persons, trust, or trusts that have been designated by a Participant in his or her most recent written beneficiary
designation filed with the Committee to receive the benefits specified under the Plan upon such Participant's death or to which
Awards or other rights are transferred if and to the extent permitted under Section 8(b) hereof. If, upon a Participant's
death, there is no designated Beneficiary or surviving designated Beneficiary, then the term Beneficiary means the person, persons,
trust, or trusts entitled by will or the laws of descent and distribution to receive such benefits.


 


(e)          
“Board” means the Company's Board of Directors.


 


(f)          “Change
in Control” means a Change in Control as defined with related terms in Section 7 of the Plan.


 


(g)          “Change
in Control Price” means the amount calculated in accordance with Section 7(c) of the Plan. 


 


(h)          “Code”
means the Internal Revenue Code of 1986, as amended from time to time, including regulations thereunder and successor provisions
and regulations thereto. 


 


(i)          “Committee”
means a committee designated by the Board to administer the Plan. The Board may designate more than one committee to administer
the Plan as to various categories of Eligible Persons. The Committee shall consist of at least two directors, and each member of
which shall be (i) a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act, unless administration
of the Plan by “non-employee directors” is not then required in order for exemptions under Rule 16b-3 to apply to transactions
under the Plan, and (ii) an “outside director” within the meaning of Section 162(m) of the Code, unless administration
of the Plan by “outside directors” is not then required in order to qualify for tax deductibility under Section 162(m)
of the Code, provided, when appropriate, a Committee shall satisfy the then requirements of any stock exchange or automated quotation
system upon which the Stock or other Company securities are listed or quoted.


 



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(j)          “Consultant”
means any person (other than an Employee or a Director, solely with respect to rendering services in such person’s capacity
as a director) who is engaged by the Company or any Related Entity to render consulting or advisory services to the Company or
such Related Entity.


 


(k)          “Continuous
Service” means uninterrupted provision of services to the Company in any capacity of Employee, Director, or Consultant.
Continuous Service shall not be considered to be interrupted in the case of (i) any approved leave of absence, (ii) transfers among
the Company, any Related Entities, or any successor entities, in any capacity of Employee Director, or Consultant, or (iii) any
change in status as long as the individual remains in the service of the Company or a Related Entity in any capacity of Employee,
Director, or Consultant (except as otherwise provided in the Option Agreement). An approved leave of absence shall include sick
leave, military leave, or any other authorized personal leave. 


 


(l)          “Corporate
Transaction” means a Corporate Transaction as defined in Section 7(b)(i) of the Plan. 


 


(m)         “Director”
means a member of the Board or the board of directors of any Related Entity. 


 


(n)          “Dividend
Equivalent” means a right, granted to a Participant under Section 6(c) hereof, to receive, cash, Stock, other
Awards or other property equal in value to dividends paid with respect to a specified number of shares of Stock, or other periodic
payments.


 


(o)          “Effective
Date” means the effective date of the Plan, which shall be [January ____, 2009]. 


 


(p)          “Eligible
Person” means each Executive Officer of the Company (as defined under the Exchange Act) and other officers, Directors,
and Employees of the Company or of any Related Entity, and Consultants with the Company or any Related Entity. The foregoing notwithstanding,
only employees of the Company, the Parent, or any Subsidiary shall be Eligible Persons for purposes of receiving any Incentive
Stock Options. An Employee on leave of absence may be considered as still in the employ of the Company or a Related Entity for
purposes of eligibility for participation in the Plan. 


 


(q)          “Employee”
means any person, including an officer or Director, who is an employee of the Company or any Related Entity. The Payment of a director’s
fee by the Company or a Related Entity shall not be sufficient to constitute “employment” by the Company.


 


(r)          “Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to time, including rules thereunder and successor
provisions and rules thereto. 


 


(s)          “Executive
Officer” means an executive officer of the Company as defined under the Exchange Act. 


 


(t)          “Fair
Market Value” means the fair market value of Stock, Awards, or other property as determined by the Committee or the Board,
or under procedures established by the Committee or the Board. Unless otherwise determined by the Committee or the Board, the Fair
Market Value of Stock as of any given date after which the Company becomes a publicly held corporation shall be the closing sale
price per share reported on a consolidated basis for stock listed on the principal stock exchange or market on which Stock is traded
on the date as of which such value is being determined or, if there is no sale on that date, then on the last previous day on which
a sale was reported. 


 


(u)          “Incentive
Stock Option” means any Option intended to be designated as an incentive stock option within the meaning of Section 422
of the Code or any successor provision thereto. 


 



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(v)          “Incumbent
Board” means the Incumbent Board as defined in Section 7(b)(ii) of the Plan. 


 


(w)         “Limited
Stock Appreciation Right” means a right granted to a Participant under Section 5(c) hereof. 


 


(x)          “Option”
means a right granted to a Participant under Section 5(b) hereof, to purchase Stock or other Awards at a specified price
during specified time periods. 


 


(y)          “Optionee”
means a person to whom an Option or Incentive Stock Option is granted under this Plan or any person who succeeds to the rights
of such person under this Plan. 


 


(z)           “Other
Stock-Based Awards” means Awards granted to a Participant under Section 5(f) hereof. 


 


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


 


(bb)         “Participant”
means a person who has been granted an Award under the Plan which remains outstanding, including a person who is no longer an Eligible
Person. 


 


(cc)         “Person”
shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
and shall include a “group” as defined in Section 13(d) thereof. 


 


(dd)         “Related
Entity” means any entity that is directly or indirectly controlled by the Company or any entity in which the Company
has a significant equity interest, as determined by the Board or the Committee.


 


(ee)         “Restricted
Stock” means Stock granted to a Participant under Section 5(d) hereof, that is subject to certain restrictions
and to a risk of forfeiture. 


 


(ff)          “Rule
16b-3” and “Rule 16a-1(c)(3)” means Rule 16b-3 and Rule 16a-1(c)(3), as from time to time in effect
and applicable to the Plan and Participants, promulgated by the Securities and Exchange Commission under Section 16 of the Exchange
Act.


 


(gg)         “Stock”
means the Company's Series C Convertible Preferred Stock, and such other securities as may be substituted (or resubstituted)
for Stock pursuant to Section 8(c) hereof.


 


(hh)         “Stock
Appreciation Right” means a right granted to a Participant under Section 5(c) hereof. 


 


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


 



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