Exhibit 10.13


 


AUDIOEYE,
INC.


 


2016
INCENTIVE COMPENSATION PLAN


 




     


     


    

 


AUDIOEYE,
INC.


 


2016
INCENTIVE COMPENSATION PLAN


 


	1.	Purpose	1
	 	 	 
	2.	Definitions	1
	 	 	 
	3.	Administration.	6
	 	 	 
	4.	Shares Subject to Plan.	7
	 	 	 
	5.	Eligibility; Per-Person Award Limitations	8
	 	 	 
	6.	Specific Terms of Awards.	9
	 	 	 
	7.	Certain Provisions Applicable to Awards.	14
	 	 	 
	8.	Code Section 162(m) Provisions.	17
	 	 	 
	9.	Change in Control.	18
	 	 	 
	10.	General Provisions.	20


 




     


     


    

 


AUDIOEYE,
INC.


 


2016
INCENTIVE COMPENSATION PLAN


 


1.           Purpose.
The purpose of this AUDIOEYE, INC. 2016 INCENTIVE COMPENSATION PLAN (the “Plan”) is to assist AudioEye, Inc., a Delaware
corporation (the “Company”) and its Related Entities (as hereinafter defined) in attracting, motivating, retaining
and rewarding high-quality executives and other employees, officers, directors, consultants and other persons who provide services
to the Company or its Related Entities 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.


 


2.           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 and elsewhere herein.


 


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


 


(b)          “Award
Agreement” means any written agreement, contract or other instrument or document evidencing any Award granted by
the Committee hereunder.


 


(c)          “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 10(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.


 


(d)          “Beneficial
Owner” and “Beneficial Ownership” shall have the meaning ascribed to such term in Rule
13d-3 under the Exchange Act and any successor to such Rule.


 


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


 


(f)          “Cause”
shall, with respect to any Participant, have the meaning specified in the Award Agreement. In the absence of any definition in
the Award Agreement, “Cause” shall have the equivalent meaning or the same meaning as “cause” or “for
cause” set forth in any employment, consulting, or other agreement for the performance of services between the Participant
and the Company or a Related Entity or, in the absence of any such agreement or any such definition in such agreement, such term
shall mean (i) the failure by the Participant to perform, in a reasonable manner, his or her duties as assigned by the Company
or a Related Entity, (ii) any violation or breach by the Participant of his or her employment, consulting or other similar agreement
with the Company or a Related Entity, if any, (iii) any violation or breach by the Participant of any non-competition, non-solicitation,
non-disclosure and/or other similar agreement with the Company or a Related Entity, (iv) any act by the Participant of dishonesty
or bad faith with respect to the Company or a Related Entity, (v) use of alcohol, drugs or other similar substances in a manner
that adversely affects the Participant’s work performance, or (vi) the commission by the Participant of any act, misdemeanor,
or crime reflecting unfavorably upon the Participant or the Company or any Related Entity. The good faith determination by the
Committee of whether the Participant’s Continuous Service was terminated by the Company for “Cause” shall be
final and binding for all purposes hereunder.


 




     


     


    

 


(g)          “Change
in Control” means a Change in Control as defined in Section 9(b) 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; provided, however, that if the Board fails to designate a committee
or if there are no longer any members on the committee so designated by the Board, or for any other reason determined by the Board,
then the Board shall serve as the Committee. While it is intended that the Committee shall consist of at least two directors, each
of whom shall be (i) a “non-employee director” within the meaning of Rule 16b-3 (or any successor rule) 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, (ii) an “outside director” within the meaning of Section
162(m) of the Code, and (iii) “Independent,” the failure of the Committee to be so comprised shall not invalidate any
Award that otherwise satisfies the terms of the Plan.


 


(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 the uninterrupted provision of services to the Company or any Related Entity in any capacity of Employee,
Director, Consultant or other service provider. 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, Consultant or other service provider, 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, Consultant or other service provider (except
as otherwise provided in the Award Agreement). An approved leave of absence shall include sick leave, military leave, or any other
authorized personal leave.


 


(l)          “Covered
Employee” means the Person who, as of the end of the taxable year, either is the principal executive officer of the
Company or is serving as the acting principal executive officer of the Company, and each other Person whose compensation is required
to be disclosed in the Company’s filings with the Securities and Exchange Commission by reason of that person being among
the three highest compensated officers of the Company as of the end of a taxable year, or such other person as shall be considered
a “covered employee” for purposes of Section 162(m) of the Code.


 




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(m)          “Deferred
Stock” means a right to receive Shares, including Restricted Stock, cash measured based upon the value of Shares
or a combination thereof, at the end of a specified deferral period.


 


(n)          “Deferred
Stock Award” means an Award of Deferred Stock granted to a Participant under Section 6(e) hereof.


 


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


 


(p)          “Disability”
means a permanent and total disability (within the meaning of Section 22(e) of the Code), as determined by a medical doctor satisfactory
to the Committee.


 


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


 


(r)          “Effective
Date” means the effective date of the Plan, which shall be January 5, 2016.


 


(s)          “Eligible
Person” means each officer, Director, Employee, Consultant and other person who provides services to the Company
or any Related Entity. The foregoing notwithstanding, only Employees of the Company, or any parent corporation or subsidiary corporation
of the Company (as those terms are defined in Sections 424(e) and (f) of the Code, respectively), shall be Eligible Persons for
purposes of receiving any Incentive Stock Options. An Employee on leave of absence may, in the discretion of the Committee, be
considered as still in the employ of the Company or a Related Entity for purposes of eligibility for participation in the Plan.


 


(t)          “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.


 


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


 


(v)         “Fair
Market Value” means the fair market value of Shares, Awards or other property as determined by the Committee, or
under procedures established by the Committee. Unless otherwise determined by the Committee, the Fair Market Value of a Share as
of any given date 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 Shares are traded on the date immediately preceding the date as of which such value is being
determined (or as of such later measurement date as determined by the Committee on the date the Award is authorized by the Committee),
or, if there is no sale on that date, then on the last previous day on which a sale was reported.


 




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(w)          “Good
Reason” shall, with respect to any Participant, have the meaning specified in the Award Agreement. In the absence
of any definition in the Award Agreement, “Good Reason” shall have the equivalent meaning or the same meaning as “good
reason” or “for good reason” set forth in any employment, consulting or other agreement for the performance of
services between the Participant and the Company or a Related Entity or, in the absence of any such agreement or any such definition
in such agreement, such term shall mean (i) the assignment to the Participant of any duties inconsistent in any material respect
with the Participant’s duties or responsibilities as assigned by the Company or a Related Entity, or any other action by
the Company or a Related Entity which results in a material diminution in such duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company or a Related Entity
promptly after receipt of notice thereof given by the Participant; (ii) any material failure by the Company or a Related Entity
to comply with its obligations to the Participant as agreed upon, other than an isolated, insubstantial and inadvertent failure
not occurring in bad faith and which is remedied by the Company or a Related Entity promptly after receipt of notice thereof given
by the Participant; or (iii) the Company’s or Related Entity’s requiring the Participant to be based at any office
or location outside of fifty (50) miles from the location of employment or service as of the date of Award, except for travel reasonably
required in the performance of the Participant’s responsibilities.


 


(x)          “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.


 


(y)          “Independent,”
when referring to either the Board or members of the Committee, shall have the same meaning as used in the rules of the Listing
Market.


 


(z)          “Incumbent
Board” means the Incumbent Board as defined in Section 9(b)(ii) hereof.


 


(aa)         “Listing
Market” means the OTC Bulletin Board or any other national securities exchange on which any securities of the Company
are listed for trading, and if not listed for trading, by the rules of the Nasdaq Market.


 


(bb)         “Non-Qualified
Stock Option” means any option that is not an Incentive Stock Option.


 


(cc)         
“Option” means a right granted to a Participant under Section 6(b) hereof, to purchase Shares or other
Awards at a specified price during specified time periods.


 


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


 


(ee)         “Other
Stock-Based Awards” means Awards granted to a Participant under Section 6(i) hereof.


 


(ff)          “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.


 




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(gg)       “Performance
Award” means any Award of Performance Shares or Performance Units granted pursuant to Section 6(h) hereof.


 


(hh)       “Performance
Period” means that period established by the Committee at the time any Performance Award is granted or at any time
thereafter during which any performance goals specified by the Committee with respect to such Award are to be measured.


 


(ii)          “Performance
Share” means any grant pursuant to Section 6(h) hereof of a unit valued by reference to a designated number of Shares,
which value may be paid to the Participant by delivery of such property as the Committee shall determine, including cash, Shares,
other property, or any combination thereof, upon achievement of such performance goals during the Performance Period as the Committee
shall establish at the time of such grant or thereafter.


 


(jj)          “Performance
Unit” means any grant pursuant to Section 6(h) hereof of a unit valued by reference to a designated amount of property
(including cash) other than Shares, which value may be paid to the Participant by delivery of such property as the Committee shall
determine, including cash, Shares, other property, or any combination thereof, upon achievement of such performance goals during
the Performance Period as the Committee shall establish at the time of such grant or thereafter.


 


(kk)        “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.


 


(ll)          “Related
Entity” means any Subsidiary, and any business, corporation, partnership, limited liability company or other entity
designated by the Board, in which the Company or a Subsidiary holds a substantial ownership interest, directly or indirectly.


 


(mm)      “Restriction
Period” means the period of time specified by the Committee that Restricted Stock Awards shall be subject to such
restrictions on transferability, risk of forfeiture and other restrictions, if any, as the Committee may impose.


 


(nn)        “Restricted
Stock” means any Share issued with the restriction that the holder may not sell, transfer, pledge or assign such
Share and with such risks of forfeiture and other restrictions as the Committee, in its sole discretion, may impose (including
any restriction on the right to vote such Share and the right to receive any dividends), which restrictions may lapse separately
or in combination at such time or times, in installments or otherwise, as the Committee may deem appropriate.


 


(oo)        “Restricted
Stock Award” means an Award granted to a Participant under Section 6(d) hereof.


 


(pp)        “Rule
16b-3” means Rule 16b-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.


 




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(qq)         “Shares”
means the shares of common stock of the Company, par value $.00001 per share, and such other securities as may be substituted (or
resubstituted) for Shares pursuant to Section 10(c) hereof.


 


(rr)         “Stock
Appreciation Right” means a right granted to a Participant under Section 6(c) hereof.


 


(ss)         “Subsidiary”
means any corporation or other entity in which the Company has a direct or indirect ownership interest of 50% or more of the total
combined voting power of the then outstanding securities or interests of such corporation or other entity entitled to vote generally
in the election of directors or in which the Company has the right to receive 50% or more of the distribution of profits or 50%
or more of the assets on liquidation or dissolution.


 


(tt)         “Substitute
Awards” means Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for,
Awards previously granted, or the right or obligation to make future Awards, by a company (i) acquired by the Company or any Related
Entity, (ii) which becomes a Related Entity after the date hereof, or (iii) with which the Company or any Related Entity combines.


 


3.           Administration.


 


(a)          Authority
of the Committee. The Plan shall be administered by the Committee except to the extent (and subject to the limitations
imposed by Section 3(b) hereof) the Board elects to administer the Plan, in which case the Plan shall be administered by only
those members of the Board who are Independent members of the Board, in which case references herein to the “Committee”
shall be deemed to include references to the Independent members of the Board. The Committee shall have full and final authority,
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 may deem necessary or advisable for the administration of the Plan. In exercising
any discretion granted to the Committee under the Plan or pursuant to any Award, the Committee shall not be required to follow
past practices, act in a manner consistent with past practices, or treat any Eligible Person or Participant in a manner consistent
with the treatment of any other Eligible Persons or Participants.


 


(b)          Manner
of Exercise of Committee Authority. The Committee, and not the Board, shall exercise sole and exclusive discretion (i)
on any matter relating to a Participant then subject to Section 16 of the Exchange Act with respect to the Company to the
extent necessary in order that transactions by such Participant shall be exempt under Rule 16b-3 under the Exchange Act, (ii)
with respect to any Award that is intended to qualify as “performance-based compensation” under Section 162(m), to
the extent necessary in order for such Award to so qualify; and (iii) with respect to any Award to an Independent Director. Any
action of the Committee shall be final, conclusive and binding on all persons, including the Company, its Related Entities, Eligible
Persons, Participants, Beneficiaries, transferees under Section 10(b) hereof or other persons claiming rights from or through
a Participant, and stockholders. The express grant of any specific power to the Committee, and the taking of any action by the
Committee, shall not be construed as limiting any power or authority of the Committee. The Committee may delegate to officers
or managers of the Company or any Related Entity, or committees thereof, the authority, subject to such terms and limitations
as the Committee shall determine, to perform such functions, including administrative functions as the Committee may determine
to the extent that such delegation will not result in the loss of an exemption under Rule 16b-3(d)(1) for Awards granted to Participants
subject to Section 16 of the Exchange Act in respect of the Company and will not cause Awards intended to qualify as “performance-based
compensation” under Code Section 162(m) to fail to so qualify. The Committee may appoint agents to assist it in administering
the Plan.


 




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(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 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.


 


4.           Shares
Subject to Plan.


 


(a)          Limitation
on Overall Number of Shares Available for Delivery Under Plan. Subject to adjustment as provided in Section 10(c) hereof,
the total number of Shares reserved and available for delivery under the Plan shall be ten million (10,000,000)(1)(2).
Any Shares delivered under the Plan may consist, in whole or in part, of authorized and unissued shares or treasury shares.


 


(b)          Application
of Limitation to Grants of Awards. No Award may be granted if the number of Shares to be delivered in connection with
such an Award exceeds the number of Shares remaining available for delivery under the Plan, minus the number of Shares
deliverable in settlement of or relating to then outstanding Awards. The Committee 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 actually delivered differs from the number of Shares previously counted in connection
with an Award.


 


 



 




		(1)	As a result of the Company’s 25-for-1 reverse stock split on August 1, 2018 (the “2018
Reverse Stock Split”), this number was reduced to 400,000.



 


		(2)	On July 7, 2016, the Company’s Board of Directors increased the number of Shares reserved
and available for delivery under the Plan by an additional five million (5,000,000), which number was reduced to 200,000 as a result
of the 2018 Reverse Stock Split. Following the 2018 Reverse Stock Split, the total number of shares authorized under the 2016 Plan
was 600,000.









 




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(c)          Availability
of Shares Not Delivered under Awards and Adjustments to Limits. 


 


(i)          If
any Awards are forfeited, expire or otherwise terminate without issuance of such Shares, or any Award is settled for cash or otherwise
does not result in the issuance of all or a portion of the Shares subject to such Award, the Shares to which those Awards were
subject, shall, to the extent of such forfeiture, expiration, termination, cash settlement or non-issuance, again be available
for delivery with respect to Awards under the Plan, subject to Section 4(c)(iv) below.


 


(ii)         In
the event that any Option or other Award granted hereunder is exercised through the tendering of Shares (either actually or by
attestation) or by the withholding of Shares by the Company, or withholding tax liabilities arising from such option or other award
are satisfied by the tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company, then
only the number of Shares issued net of the Shares tendered or withheld shall be counted for purposes of determining the maximum
number of Shares available for grant under the Plan.


 


(iii)        Substitute
Awards shall not reduce the Shares authorized for delivery under the Plan or authorized for delivery to a Participant in any period.
Additionally, in the event that a company acquired by the Company or any Related Entity or with which the Company or any Related
Entity combines has shares available under a pre-existing plan approved by its stockholders, the shares available for delivery
pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment
or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of
common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce
the Shares authorized for delivery under the Plan; if and to the extent that the use of such Shares would not require approval
of the Company’s stockholders under the rules of the Listing Market.


 


(iv)        Any
Share that again becomes available for delivery pursuant to this Section 4(c) shall be added back as one (1) Share.


 


(v)         Notwithstanding
anything in this Section 4(c) to the contrary but subject to adjustment as provided in Section 10(c) hereof, the maximum aggregate
number of Shares that may be delivered under the Plan as a result of the exercise of the Incentive Stock Options shall be ten million
(10,000,000)(3) Shares.


 


5.           Eligibility;
Per-Person Award Limitations. Awards may be granted under the Plan only to Eligible Persons. Subject to adjustment as
provided in Section 10(c), in any fiscal year of the Company during any part of which the Plan is in effect, no Participant may
be granted (i) Options or Stock Appreciation Rights with respect to more than 500,000(4) Shares or (ii) Restricted Stock,
Deferred Stock, Performance Shares and/or Other Stock-Based Awards with respect to more than 500,000(5) Shares. In addition,
the maximum dollar value payable to any one Participant with respect to Performance Units is (x) $250,000 with respect to any
12 month Performance Period and (y) with respect to any Performance Period that is more than 12 months, $500,000.


 


 



 


		(3)	As a result of the Company’s 2018 Reverse Stock Split, this number was reduced to 400,000.



 


		(4)	As a result of the Company’s 2018 Reverse Stock Split, this number was reduced to 20,000.



 


		(5)	As a result of the Company’s 2018 Reverse Stock Split, this number was reduced to 20,000.




 




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6.           Specific
Terms of Awards.


 


(a)          General.
Awards may be granted on the terms and conditions set forth in this Section 6. In addition, the Committee may impose on any Award
or the exercise thereof, at the date of grant or thereafter (subject to Section 10(e)), such additional terms and conditions,
not inconsistent with the provisions of the Plan, as the Committee shall determine, including terms requiring forfeiture of Awards
in the event of termination of the Participant’s Continuous Service and terms permitting a Participant to make elections
relating to his or her Award. Except as otherwise expressly provided herein, the Committee 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. Except in
cases in which the Committee is authorized to require other forms of consideration under the Plan, or to the extent other forms
of consideration must be paid to satisfy the requirements of Delaware law, no consideration other than services may be required
for the grant (as opposed to the exercise) of any Award.


 


(b)          Options.
The Committee is authorized to grant Options to any Eligible Person on the following terms and conditions:


 


(i)          Exercise
Price. Other than in connection with Substitute Awards, the exercise price per Share purchasable under an Option shall
be determined by the Committee, provided that such exercise price shall not be less than 100% of the Fair Market Value of a Share
on the date of grant of the Option and shall not, in any event, be less than the par value of a Share on the date of grant of the
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 corporation
of the Company, as those terms are defined in Sections 424(e) and (f) of the Code, respectively) and an Incentive Stock Option
is granted to such Employee, the exercise 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 a Share on the date such Incentive Stock Option is granted.


 


(ii)         Time
and Method of Exercise. The Committee 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 the exercise price may be paid or deemed to be paid (including in the discretion of the
Committee a cashless exercise procedure), the form of such payment, including, without limitation, cash, Shares (including without
limitation the withholding of Shares otherwise deliverable pursuant to the Award), 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 provided that such deferred payments are not in violation of Section 13(k) of the Exchange Act, or
any rule or regulation adopted thereunder or any other applicable law), and the methods by or forms in which Shares will be delivered
or deemed to be delivered to Participants.


 




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(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 issued 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, or consents to, 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 for 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 or subsidiary corporation of the
Company, as those terms are defined in Sections 424(e) and (f) of the Code, respectively) 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 with respect to which
Incentive Stock Options granted under the Plan and all other option plans of the Company (and any parent corporation or subsidiary
corporation of the Company, as those terms are defined in Sections 424(e) and (f) of the Code, respectively) that become 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.


 


(c)          Stock
Appreciation Rights. The Committee may grant Stock Appreciation Rights to any Eligible Person in conjunction with all
or part of any Option granted under the Plan or at any subsequent time during the term of such Option (a “Tandem Stock Appreciation
Right”), or without regard to any Option (a “Freestanding Stock Appreciation Right”), in each case upon such
terms and conditions as the Committee may establish in its sole discretion, not inconsistent with the provisions of the Plan,
including the following:


 


(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 on the date of exercise over (B) the grant price of the Stock Appreciation
Right as determined by the Committee. The grant price of a Stock Appreciation Right shall not be less than 100% of the Fair Market
Value of a Share on the date of grant, in the case of a Freestanding Stock Appreciation Right, or less than the associated Option
exercise price, in the case of a Tandem Stock Appreciation Right.


 




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(ii)         Other
Terms. The Committee 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 Shares 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.


 


(iii)        Tandem
Stock Appreciation Rights. Any Tandem Stock Appreciation Right may be granted at the same time as the related Option is
granted or, for Options that are Non-Qualified Stock Options, at any time thereafter before exercise or expiration of such Option.
Any Tandem Stock Appreciation Right related to an Option may be exercised only when the related Option would be exercisable and
the Fair Market Value of the Shares subject to the related Option exceeds the exercise price at which Shares can be acquired pursuant
to the Option. In addition, if a Tandem Stock Appreciation Right exists with respect to less than the full number of Shares covered
by a related Option, then an exercise or termination of such Option shall not reduce the number of Shares to which the Tandem Stock
Appreciation Right applies until the number of Shares then exercisable under such Option equals the number of Shares to which the
Tandem Stock Appreciation Right applies. Any Option related to a Tandem Stock Appreciation Right shall no longer be exercisable
to the extent the Tandem Stock Appreciation Right has been exercised, and any Tandem Stock Appreciation Right shall no longer be
exercisable to the extent the related Option has been exercised.


 


(d)          Restricted
Stock Awards. The Committee is authorized to grant Restricted Stock Awards to any Eligible Person on the following terms
and conditions:


 


(i)          Grant
and Restrictions. Restricted Stock Awards shall be subject to such restrictions on transferability, risk of forfeiture
and other restrictions, if any, as the Committee may impose, or as otherwise provided in this Plan during the Restriction Period.
The terms of any Restricted Stock Award granted under the Plan shall be set forth in a written Award Agreement which shall contain
provisions determined by the Committee and not inconsistent with the 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 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 a Restricted Stock Award, 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). During the period that the Restriction
Stock Award is subject to a risk of forfeiture, subject to Section 10(b) below and except as otherwise provided in the Award Agreement,
the Restricted Stock may not be sold, transferred, pledged, hypothecated, margined or otherwise encumbered by the Participant.


 




    	 	11	 



     


    

 


(ii)         Forfeiture.
Except as otherwise determined by the Committee, 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 a risk of forfeiture that has not
lapsed or otherwise been satisfied shall be forfeited and reacquired by the Company; provided that, subject to the limitations
set forth in Section 6(j)(ii) hereof, the Committee may provide, by rule or regulation or in any Award Agreement, or may determine
in any individual case, that forfeiture conditions relating to Restricted Stock Awards shall be waived in whole or in part in the
event of terminations resulting from specified causes, and the Committee 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 shall determine. If
certificates representing Restricted Stock are registered in the name of the Participant, the Committee 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 a Restricted Stock Award, the Committee may require or permit a Participant
to elect 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, Shares 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 Shares or other property have been
distributed.


 


(e)          Deferred
Stock Award. The Committee is authorized to grant Deferred Stock Awards to any Eligible Person on the following terms
and conditions:


 


(i)          Award
and Restrictions. Satisfaction of a Deferred Stock Award shall occur upon expiration of the deferral period specified for
such Deferred Stock Award by the Committee (or, if permitted by the Committee, as elected by the Participant). In addition, a Deferred
Stock Award shall be subject to such restrictions (which may include a risk of forfeiture) as the Committee may impose, if any,
which restrictions may lapse at the expiration of the deferral period or at earlier specified times (including based on achievement
of performance goals and/or future service requirements), separately or in combination, in installments or otherwise, as the Committee
may determine. A Deferred Stock Award may be satisfied by delivery of Shares, cash equal to the Fair Market Value of the specified
number of Shares covered by the Deferred Stock, or a combination thereof, as determined by the Committee at the date of grant or
thereafter. Prior to satisfaction of a Deferred Stock Award, a Deferred Stock Award carries no voting or dividend or other rights
associated with Share ownership.


 




    	 	12	 



     


    

 


(ii)         Forfeiture.
Except as otherwise determined by the Committee, upon termination of a Participant’s Continuous Service during the applicable
deferral period or portion thereof to which forfeiture conditions apply (as provided in the Award Agreement evidencing the Deferred
Stock Award), the Participant’s Deferred Stock Award that is at that time subject to a risk of forfeiture that has not lapsed
or otherwise been satisfied shall be forfeited; provided that, subject to the limitations set forth in Section 6(j)(ii) hereof,
the Committee may provide, by rule or regulation or in any Award Agreement, or may determine in any individual case, that forfeiture
conditions relating to a Deferred Stock Award shall be waived in whole or in part in the event of terminations resulting from specified
causes, and the Committee may in other cases waive in whole or in part the forfeiture of any Deferred Stock Award.


 


(iii)        Dividend
Equivalents. Unless otherwise determined by the Committee at the date of grant, any Dividend Equivalents that are granted
with respect to any Deferred Stock Award shall be either (A) paid with respect to such Deferred Stock Award at the dividend payment
date in cash or in Shares of unrestricted stock having a Fair Market Value equal to the amount of such dividends, or (B) deferred
with respect to such Deferred Stock Award and the amount or value thereof automatically deemed reinvested in additional Deferred
Stock, other Awards or other investment vehicles, as the Committee shall determine or permit the Participant to elect. The applicable
Award Agreement shall specify whether any Dividend Equivalents shall be paid at the dividend payment date, deferred or deferred
at the election of the Participant. If the Participant may elect to defer the Dividend Equivalents, such election shall be made
within 30 days after the grant date of the Deferred Stock Award, but in no event later than 12 months before the first date on
which any portion of such Deferred Stock Award vests.


 


(f)          Bonus
Stock and Awards in Lieu of Obligations. The Committee is authorized to grant Shares to any Eligible Persons as a bonus,
or to grant Shares or other Awards in lieu of obligations to pay cash or deliver other property under the Plan or under other
plans or compensatory arrangements, provided that, in the case of Eligible Persons 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
Shares or other Awards are exempt from liability under Section 16(b) of the Exchange Act. Shares or Awards granted hereunder shall
be subject to such other terms as shall be determined by the Committee.


 


(g)          Dividend
Equivalents. The Committee is authorized to grant Dividend Equivalents to any Eligible Person entitling the Eligible Person
to receive cash, Shares, other Awards, or other property equal in value to the dividends paid with respect to a specified number
of Shares, or other periodic payments. Dividend Equivalents may be awarded on a free-standing basis or in connection with another
Award. The Committee may provide that Dividend Equivalents shall be paid or distributed when accrued or shall be deemed to have
been reinvested in additional Shares, Awards, or other investment vehicles, and subject to such restrictions on transferability
and risks of forfeiture, as the Committee may specify. Any such determination by the Committee shall be made at the grant date
of the applicable Award.


 




    	 	13	 



     


    

 


(h)          Performance
Awards. The Committee is authorized to grant Performance Awards to any Eligible Person payable in cash, Shares, or other
Awards, on terms and conditions established by the Committee, subject to the provisions of Section 8 if and to the extent that
the Committee shall, in its sole discretion, determine that an Award shall be subject to those provisions. The performance criteria
to be achieved during any Performance Period and the length of the Performance Period shall be determined by the Committee upon
the grant of each Performance Award; provided, however, that a Performance Period shall not be shorter than twelve (12) months
nor longer than five (5) years. Except as provided in Section 9 or as may be provided in an Award Agreement, Performance Awards
will be distributed only after the end of the relevant Performance Period. The performance goals to be achieved for each Performance
Period shall be conclusively determined by the Committee and may be based upon the criteria set forth in Section 8(b), or in the
case of an Award that the Committee determines shall not be subject to Section 8 hereof, any other criteria that the Committee,
in its sole discretion, shall determine should be used for that purpose. The amount of the Award to be distributed shall be conclusively
determined by the Committee. Performance Awards may be paid in a lump sum or in installments following the close of the Performance
Period or, in accordance with procedures established by the Committee, on a deferred basis.


 


(i)          Other
Stock-Based Awards. The Committee is authorized, subject to limitations under applicable law, to grant to any Eligible
Person 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, Shares, as deemed by the Committee to be consistent with the purposes of the Plan. Other Stock-Based Awards
may be granted to Participants either alone or in addition to other Awards granted under the Plan, and such Other Stock-Based
Awards shall also be available as a form of payment in the settlement of other Awards granted under the Plan. The Committee shall
determine the terms and conditions of such Awards. Shares delivered pursuant to an Award in the nature of a purchase right granted
under this Section 6(i) shall be purchased for such consideration, (including without limitation loans from the Company or a Related
Entity provided that such loans are not in violation of Section 13(k) of the Exchange Act, or any rule or regulation adopted thereunder
or any other applicable law) paid for at such times, by such methods, and in such forms, including, without limitation, cash,
Shares, other Awards or other property, as the Committee shall determine.


 


7.           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, 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 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 Shares 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 Shares minus the value of the cash
compensation surrendered (for example, Options or Stock Appreciation Right granted with an exercise price or grant price “discounted”
by the amount of the cash compensation surrendered), provided that any such determination to grant an Award in lieu of cash compensation
must be made in compliance with Section 409A of the Code.


 




    	 	14	 



     


    

 


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


 


(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 by 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 shall determine, including, without limitation, cash, Shares, other Awards or other property, and
may be made in a single payment or transfer, in installments, or on a deferred basis, provided that any determination to pay in
installments or on a deferred basis shall be made by the Committee at the date of grant. Any installment or deferral provided
for in the preceding sentence shall, however, be subject to the Company’s compliance with applicable law and all applicable
rules of the Listing Market, and in a manner intended to be exempt from or otherwise satisfy the requirements of Section 409A
of the Code. Subject to Section 7(e) hereof, the settlement of any Award may be accelerated, and cash paid in lieu of Shares in
connection with such settlement, in the sole discretion of the Committee or upon occurrence of one or more specified events (in
addition to a Change in Control). Any such settlement shall be at a value determined by the Committee in its sole discretion,
which, without limitation, may in the case of an Option or Stock Appreciation Right be limited to the amount if any by which the
Fair Market Value of a Share on the settlement date exceeds the exercise or grant price. Installment or deferred payments may
be required by the Committee (subject to Section 7(e) of the Plan, including the consent provisions thereof in the case of any
deferral of an outstanding Award not provided for in the original Award Agreement) or permitted at the election of the Participant
on terms and conditions established by the Committee. The Committee may, without limitation, make provision 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 Shares.


 


(d)          Exemptions
from Section 16(b) Liability. It is the intent of the Company that the grant of any Awards to or other transaction by
a Participant who is subject to Section 16 of the Exchange Act shall be exempt from Section 16 pursuant to an applicable exemption
(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 then applicable to any such transaction, such
provision shall be construed or deemed amended to the extent necessary to conform to the applicable requirements of Rule 16b-3
so that such Participant shall avoid liability under Section 16(b).


 




    	 	15	 



     


    

 


(e)          Code
Section 409A.


 


(i)          The
Award Agreement for any Award that the Committee reasonably determines to constitute a Section 409A Plan, and the provisions of
the Plan applicable to that Award, shall be construed in a manner consistent with the applicable requirements of Section 409A,
and the Committee, in its sole discretion and without the consent of any Participant, may amend any Award Agreement (and the provisions
of the Plan applicable thereto) if and to the extent that the Committee determines that such amendment is necessary or appropriate
to comply with the requirements of Section 409A of the Code.


 


(ii)         If
any Award constitutes a “nonqualified deferred compensation plan” under Section 409A of the Code (a “Section
409A Plan”), then the Award shall be subject to the following additional requirements, if and to the extent required to comply
with Section 409A of the Code:


 


(A)         Payments
under the Section 409A Plan may not be made earlier than the first to occur of (u) the Participant’s “separation from
service,” (v) the date the Participant becomes “disabled,” (w) the Participant’s death, (x) a “specified
time (or pursuant to a fixed schedule)” specified in the Award Agreement at the date of the deferral of such compensation,
(y) a “change in the ownership or effective control of the corporation, or in the ownership of a substantial portion of the
assets” of the Company, or (z) the occurrence of an “unforeseeble emergency;”


 


(B)         The
time or schedule for any payment of the deferred compensation may not be accelerated, except to the extent provided in applicable
Treasury Regulations or other applicable guidance issued by the Internal Revenue Service;


 


(C)         Any
elections with respect to the deferral of such compensation or the time and form of distribution of such deferred compensation
shall comply with the requirements of Section 409A(a)(4) of the Code; and


 


(D)        In
the case of any Participant who is “specified employee,” a distribution on account of a “separation from service”
may not be made before the date which is six months after the date of the Participant’s “separation from service”
(or, if earlier, the date of the Participant’s death).


 


For purposes of the foregoing, the terms
in quotations shall have the same meanings as those terms have for purposes of Section 409A of the Code, and the limitations set
forth herein shall be applied in such manner (and only to the extent) as shall be necessary to comply with any requirements of
Section 409A of the Code that are applicable to the Award. The Company does not make any representation to the Participant that
any Awards awarded under this Plan will be exempt from, or satisfy, the requirements of Section 409A, and the Company shall have
no liability or other obligation to indemnify or hold harmless any Participant or Beneficiary for any tax, additional tax, interest
or penalties that any Participant or Beneficiary may incur in the event that any provision of this Plan, any Award Agreement, or
any amendment or modification thereof, or any other action taken with respect thereto, is deemed to violate any of the requirements
of Section 409A.


 




    	 	16	 



     


    

 


(iii)        Notwithstanding
the foregoing, the Company does not make any representation to any Participant or Beneficiary that any Awards made pursuant to
this Plan are exempt from, or satisfy, the requirements of Section 409A, and the Company shall have no liability or other obligation
to indemnify or hold harmless the Participant or any Beneficiary for any tax, additional tax, interest or penalties that the Participant
or any Beneficiary may incur in the event that any provision of this Plan, or any Award Agreement, or any amendment or modification
thereof, or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A.


 


8.           Code
Section 162(m) Provisions.


 


(a)          Covered
Employees. Unless otherwise specified by the Committee, the provisions of this Section 8 shall be applicable to any Performance
Award granted to an Eligible Person who is, or is likely to be, as of the end of the tax year in which the Company would claim
a tax deduction in connection with such Award, a Covered Employee.


 


(b)          Performance
Criteria. If a Performance Award is subject to this Section 8, then the payment or distribution thereof or the lapsing
of restrictions thereon and the distribution of cash, Shares or other property pursuant thereto, as applicable, shall be contingent
upon achievement of one or more objective performance goals. Performance goals shall be objective and shall otherwise meet the
requirements of Section 162(m) of the Code and regulations thereunder including the requirement that the level or levels of performance
targeted by the Committee result in the achievement of performance goals being “substantially uncertain.” One or more
of the following business criteria for the Company, on a consolidated basis, and/or for Related Entities, or for business or geographical
units of the Company and/or a Related Entity (except with respect to the total stockholder return and earnings per share criteria),
shall be used by the Committee in establishing performance goals for such Awards: (1) earnings per share; (2) revenues
or margins; (3) cash flow; (4) operating margin; (5) return on net assets, investment, capital, or equity; (6) economic
value added; (7) direct contribution; (8) net income; pretax earnings; earnings before interest and taxes; earnings
before interest, taxes, depreciation and amortization; earnings after interest expense and before extraordinary or special items;
operating income or income from operations; income before interest income or expense, unusual items and income taxes, local, state
or federal and excluding budgeted and actual bonuses which might be paid under any ongoing bonus plans of the Company; (9) working
capital; (10) management of fixed costs or variable costs; (11) identification or consummation of investment opportunities
or completion of specified projects in accordance with corporate business plans, including strategic mergers, acquisitions or
divestitures; (12) total stockholder return; (13) debt reduction; (14) market share; (15) entry into new markets, either
geographically or by business unit; (16) customer retention and satisfaction; (17) strategic plan development and implementation,
including turnaround plans; and/or (18) the Fair Market Value of a Share. Any of the above goals may be determined on an absolute
or relative basis or as compared to the performance of a published or special index deemed applicable by the Committee including,
but not limited to, the Standard & Poor’s 500 Stock Index or a group of companies that are comparable to the Company.
In determining the achievement of the performance goals, the Committee shall exclude the impact of any (i) restructurings, discontinued
operations, extraordinary items, and other unusual or non-recurring charges, (ii) event either not directly related to the operations
of the Company or not within the reasonable control of the Company’s management, or (iii) change in accounting standards
required by generally accepted accounting principles.


 




    	 	17	 



     


    

 


(c)          Performance
Period; Timing For Establishing Performance Goals. Achievement of performance goals in respect of Performance Awards shall
be measured over a Performance Period no shorter than twelve (12) months and no longer than five (5) years, as specified by the
Committee. Performance goals shall be established not later than 90 days after the beginning of any Performance Period applicable
to such Performance Awards, or at such other date as may be required or permitted for “performance-based compensation”
under Section 162(m) of the Code.


 


(d)          Adjustments.
The Committee may, in its discretion, reduce the amount of a settlement otherwise to be made in connection with Awards subject
to this Section 8, but may not exercise discretion to increase any such amount payable to a Covered Employee in respect of an
Award subject to this Section 8. The Committee shall specify the circumstances in which such Awards shall be paid or forfeited
in the event of termination of Continuous Service by the Participant prior to the end of a Performance Period or settlement of
Awards.


 


(e)          Committee
Certification. No Participant shall receive any payment under the Plan that is subject to this Section 8 unless the
Committee has certified, by resolution or other appropriate action in writing, that the performance criteria and any other material
terms previously established by the Committee or set forth in the Plan, have been satisfied to the extent necessary to qualify
as “performance based compensation” under Section 162(m) of the Code.


 


9.           Change
in Control.


 


(a)          Effect
of “Change in Control.” If and only to the extent provided in any employment or other agreement between
the Participant and the Company or any Related Entity, or in any Award Agreement, or to the extent otherwise determined by
the Committee in its sole discretion and without any requirement that each Participant be treated consistently, upon the
occurrence of a “Change in Control,” as defined in Section 9(b):


 


(i)          Any
Option or Stock Appreciation Right that was not previously vested and exercisable as of the time of the Change in Control, shall
become immediately vested and exercisable, subject to applicable restrictions set forth in Section 10(a) hereof.


 


(ii)         Any
restrictions, deferral of settlement, and forfeiture conditions applicable to a Restricted Stock Award, Deferred Stock Award or
an Other Stock-Based Award subject only to future service requirements granted under the Plan shall lapse and such Awards shall
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 10(a) hereof.


 


(iii)        With
respect to any outstanding Award subject to achievement of performance goals and conditions under the Plan, the Committee may,
in its discretion, deem such performance goals and conditions as having been met as of the date of the Change in Control.


 




    	 	18	 



     


    

 


(b)          Definition
of “Change in Control.” Unless otherwise specified in any employment agreement between the Participant
and the Company or any Related Entity, or in an Award Agreement, a “Change in Control” shall mean the occurrence
of any of the following:


 


(i)          The
acquisition by any Person of Beneficial Ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more
than fifty percent (50%) of either (A) the value of then outstanding equity securities of the Company (the “Outstanding Company
Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally
in the election of directors (the “Outstanding Company Voting Securities) (the foregoing Beneficial Ownership hereinafter
being referred to as a “Controlling Interest”); provided, however, that for purposes of this Section 9(b), the following
acquisitions shall not constitute or result in a Change in Control: (v) any acquisition directly from the Company; (w) any acquisition
by the Company; (x) any acquisition by any Person that as of the Effective Date owns Beneficial Ownership of a Controlling Interest;
(y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Related Entity;
or (z) any acquisition by any entity pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii)
below; or


 


(ii)         During
any period of two (2) consecutive years (not including any period prior to the Effective Date) individuals who constitute the Board
on the Effective Date (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election
by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result of 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 a
Person other than the Board; or


 


(iii)        Consummation
of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving the Company or any of its
Related Entities, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets
or equity of another entity by the Company or any of its Related Entities (each a “Business Combination”), in each
case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the Beneficial
Owners, respectively, of the Outstanding Company Stock and Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the value of the then outstanding equity
securities and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of
members of the board of directors (or comparable governing body of an entity that does not have such a board), as the case may
be, of the entity resulting from such Business Combination (including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company
Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any employee benefit plan (or related
trust) of the Company or such entity resulting from such Business Combination or any Person that as of the Effective Date owns
Beneficial Ownership of a Controlling Interest) beneficially owns, directly or indirectly, fifty percent (50%) or more of the value
of the then outstanding equity securities of the entity resulting from such Business Combination or the combined voting power of
the then outstanding voting securities of such entity except to the extent that such ownership existed prior to the Business Combination
and (C) at least a majority of the members of the Board of Directors or other governing body of the entity resulting from such
Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action
of the Board, providing for such Business Combination; or


 




    	 	19	 



     


    

 


(iv)        Approval
by the stockholders of the Company of a complete liquidation or dissolution of the Company.


 


10.         General
Provisions.


 


(a)          Compliance
With Legal and Other Requirements. The Company may, to the extent deemed necessary or advisable by the Committee, postpone
the issuance or delivery of Shares or payment of other benefits under any Award until completion of such registration or qualification
of such Shares or other required action under any federal or state law, rule or regulation, listing or other required action with
respect to the Listing Market, or compliance with any other obligation of the Company, as the Committee, 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 Shares 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 granted under the Plan shall be pledged, hypothecated
or otherwise encumbered or subject to any lien, obligation or liability of such Participant to any party, or assigned or transferred
by such Participant otherwise than 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 are permitted by the Committee pursuant to the express terms of an Award Agreement (subject to any terms
and conditions which the Committee may impose thereon). 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, and to any additional terms and conditions deemed necessary
or appropriate by the Committee.


 


(c)          Adjustments.


 


(i)          Adjustments
to Awards. In the event that any extraordinary dividend or other distribution (whether in the form of cash, Shares, 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 Shares and/or such other securities
of the Company or any other issuer such that a substitution, exchange, or adjustment is determined by the Committee to be appropriate,
then the Committee shall, in such manner as it may deem equitable, substitute, exchange or adjust any or all of (A) the number
and kind of Shares which may be delivered in connection with Awards granted thereafter, (B) the number and kind of Shares
by which annual per-person Award limitations are measured under Section 4 hereof, (C) the number and kind of Shares 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 determines to be appropriate.


 




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(ii)         Adjustments
in Case of Certain Transactions. In the event of any merger, consolidation or other reorganization in which the Company
does not survive, or in the event of any Change in Control, any outstanding Awards may be dealt with in accordance with any of
the following approaches, without the requirement of obtaining any consent or agreement of a Participant as such, as determined
by the agreement effectuating the transaction or, if and to the extent not so determined, as determined by the Committee: (a) the
continuation of the outstanding Awards by the Company, if the Company is a surviving entity, (b) the assumption or substitution
for, as those terms are defined in Section 9(a)(iv) hereof, the outstanding Awards by the surviving entity or its parent or subsidiary,
(c) full exercisability or vesting and accelerated expiration of the outstanding Awards, or (d) settlement of the value of the
outstanding Awards in cash or cash equivalents or other property followed by cancellation of such Awards (which value, in the case
of Options or Stock Appreciation Rights, shall be measured by the amount, if any, by which the Fair Market Value of a Share exceeds
the exercise or grant price of the Option or Stock Appreciation Right as of the effective date of the transaction). The Committee
shall give written notice of any proposed transaction referred to in this Section 10(c)(ii) at 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 Participants may have a reasonable period of time prior to the closing date of such transaction within which to exercise
any Awards that are then exercisable (including any Awards that may become exercisable upon the closing date of such transaction).
A Participant may condition his exercise of any Awards upon the consummation of the transaction.


 


(iii)        Other
Adjustments. 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 Section 162(m) of the Code) is authorized to make adjustments in the terms and conditions of, and the
criteria included in, Awards (including Performance Awards, or performance goals and conditions relating thereto) 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, Stock Appreciation Rights, Performance Awards granted pursuant to Section 8(b) 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. Adjustments permitted hereby may include, without limitation, increasing
the exercise price of Options and Stock Appreciation Rights, increasing performance goals, or other adjustments that may be adverse
to the Participant.


 




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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 Shares, 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
may deem advisable to enable the Company or any Related Entity 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 Shares 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 annual meeting next 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 the Listing Market, and the Board may otherwise, in its discretion, determine
to submit other such changes to the Plan to stockholders for approval; provided that, except as otherwise permitted by the Plan
or Award Agreement, without the consent of an affected Participant, no such Board action may materially and adversely affect the
rights of such Participant under the terms of any previously granted and outstanding Award. The Committee 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, except as otherwise permitted by the Plan or Award Agreement,
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 terms of such Award. Notwithstanding anything to the contrary, the Committee shall be authorized
to amend any outstanding Option and/or Stock Appreciation Right to reduce the exercise price or grant price without the prior
approval of the stockholders of the Company. In addition, the Committee shall be authorized to cancel outstanding Options and/or
Stock Appreciation Rights replaced with Awards having a lower exercise price without the prior approval of the stockholders of
the Company.


 




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(f)          Limitation
on Rights Conferred Under Plan. Neither the Plan nor any action taken hereunder or under any Award 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
or service 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 including, without limitation,
any right to receive dividends or distributions, any right to vote or act by written consent, any right to attend meetings of
stockholders or any right to receive any information concerning the Company’s business, financial condition, results of
operation or prospects, unless and until such time as the Participant is duly issued Shares on the stock books of the Company
in accordance with the terms of an Award. None of the Company, its officers or its directors shall have any fiduciary obligation
to the Participant with respect to any Awards unless and until the Participant is duly issued Shares pursuant to the Award on
the stock books of the Company in accordance with the terms of an Award. Neither the Company nor any of the Company’s officers,
directors, representatives or agents is granting any rights under the Plan to the Participant whatsoever, oral or written, express
or implied, other than those rights expressly set forth in this Plan or the Award Agreement.


 


(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 Shares 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,
Shares, 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 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 Section 162(m) of
the Code.


 


(i)          Payments
in the Event of Forfeitures; Fractional Shares. Unless otherwise determined by the Committee, 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 shall be issued or delivered pursuant to the Plan or any Award. The Committee
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.


 


(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 conflict of laws,
and applicable federal law.


 


(k)          Non-U.S.
Laws. The Committee shall have the authority to adopt such modifications, procedures, and subplans as may be necessary
or desirable to comply with provisions of the laws of foreign countries in which the Company or its Related Entities may operate
to assure the viability of the benefits from Awards granted to Participants performing services in such countries and to meet
the objectives of the Plan.


 




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(l)          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), applicable requirements under the rules of any stock exchange or automated quotation system
on which the Shares 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 the stockholder
approval is not obtained. The Plan shall terminate at the earliest of (a) such time as no Shares remain available for issuance
under the Plan, (b) termination of this Plan by the Board, or (c) the tenth anniversary of the Effective Date. Awards outstanding
upon expiration of the Plan shall remain in effect until they have been exercised or terminated, or have expired.


 




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