Exhibit 10.1


 





KCAP FINANCIAL, INC.


 


2006 EQUITY INCENTIVE
PLAN

As Amended and Restated Effective June 20, 2014


 


		1.	PURPOSE AND CERTAIN DEFINED TERMS



 


The purpose of this
2006 Equity Incentive Plan, as Amended and Restated Effective June 20, 2014 (the “Plan”) is to advance the interests
of the Company (as defined below) by providing for the grant to employees and officers of Share-based awards, including without
limitation options to acquire Shares (as defined below) and, to the extent permitted by exemptive or other relief that may be granted
by the Securities and Exchange Commission (the “Commission”) or its staff, Restricted Shares (as defined below)
and options to acquire Restricted Shares (collectively, the “Awards”). At all times during such periods as the
Company qualifies or intends to qualify as a “business development company” under the Investment Company Act of 1940,
as amended (the “1940 Act”), the terms of the Plan shall be construed so as to conform to the share-based compensation
requirements applicable to “business development companies” under the 1940 Act. Any employee or officer selected to
receive an Award under the Plan is referred to as a “participant.”


 


The following terms,
when used in the Plan, will have the meanings and be subject to the provisions set forth below:


 


“Affiliate”
means any corporation or other entity that stands in a relationship to the Company that would result in the Company and such corporation
or other entity being treated as one employer under Section 414(b) or Section 414(c) of the Code, except that in determining eligibility
for the grant of an Option by reason of service for an Affiliate, Sections 414(b) and 414(c) of the Code shall be applied by substituting
“at least 50%” for “at least 80%” under Section 1563(a)(l), (2) and (3) of the Code and Treas. Regs.§
1.414(c)-2; provided, that to the extent permitted under Section 409A, “at least 20%” shall be used in lieu of “at
least 50%”; and further provided, that the lower ownership threshold described in this definition (50% or 20% as the case
may be) shall apply only if the same definition of affiliation is used consistently with respect to all compensatory stock options
or stock awards (whether under the Plan or another plan). The Company may at any time by amendment provide that different ownership
thresholds (consistent with Section 409A) apply. Notwithstanding the foregoing provisions of this definition, except as otherwise
determined by the Board, a corporation or other entity shall be treated as an Affiliate only if its employees would be treated
as employees of the Company for purposes of the rules promulgated under the Securities Act of 1933, as amended, with respect to
the use of Form S-8.


 


“Board”
means, prior to Conversion, the board of managers of the LLC and, at and after Conversion, the board of directors of the Corporation.


 


“Company”
means, prior to Conversion, the board of managers of the LLC and, at and after Conversion, the Corporation.


 




    	 



    	 



    




 


“Conversion”
means the conversion of the LLC, pursuant to Section 265 of the Delaware General Corporation Law and Section 216 of the Delaware
Limited Liability Company Act, to the Corporation.


 


“Corporation”
means KCAP Financial, Inc., a Delaware corporation. The Corporation was formerly known as Kohlberg Capital Corporation.


 


“Disability”
means participant’s inability to perform his or her essential duties, responsibilities and functions of participant’s
position with the Company (as determined by the Board in its good faith judgment, consistent with its policies and past practice)
as a result of any mental or physical disability or incapacity even with responsible accommodations of such disability or incapacity
provided by the Company or if providing such accommodations would be unreasonable.


 


“LLC”
means Kohlberg Capital, LLC, a Delaware limited liability company.


 


“Non-Employee
Director Plan” means the Company’s 2008 Non-Employee Director Plan, as amended from time to time.


 


“Performance
Criteria” or, in the singular, “Performance Criterion,” means specified criteria, other than the mere
continuation of employment or the mere passage of time, the satisfaction of which is a condition for the grant, exercisability,
vesting or full enjoyment of an Award. For purposes of Awards that are intended to qualify for the performance-based compensation
exception under Section 162(m) of the Code, a Performance Criterion will mean an objectively determinable measure of performance
relating to any or any combination of the following (measured either absolutely or by reference to an index or indices and determined
either on a consolidated basis or, as the context permits, on a divisional, subsidiary, line of business, project or geographical
basis or in combinations thereof): sales; revenues; assets; expenses; earnings before or after deduction for all or any portion
of interest, taxes, depreciation, or amortization, whether or not on a continuing operations or an aggregate or per share basis;
return on equity, investment, capital or assets; one or more operating ratios; borrowing levels, leverage ratios or credit rating;
market share; capital expenditures; cash flow; stock price; stockholder return; sales of particular products or services; customer
acquisition or retention; acquisitions and divestitures (in whole or in part); joint ventures and strategic alliances; spin-offs,
split-ups and the like; reorganizations; or recapitalizations, restructurings, financings (issuance of debt or equity) or refinancings.
A Performance Criterion and any targets with respect thereto determined by the Administrator need not be based upon an increase,
a positive or improved result or avoidance of loss. To the extent consistent with the requirements for satisfying the performance-based
compensation exception under Section 162(m) of the Code, the Board may provide in the case of any A ward intended to qualify for
such exception that one or more of the Performance Criteria applicable to such Award will be adjusted in an objectively determinable
manner to reflect events (for example, but without limitation, acquisitions or dispositions) occurring during the performance period
that affect the applicable Performance Criterion or Criteria.


 




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“Restricted
Shares” means an award of Shares for so long as the Shares remain subject to restrictions requiring that they be forfeited
to the Corporation if specified conditions are not satisfied.


 


“Shares”
means, prior to Conversion, the common units of the LLC and, at and after Conversion, the common stock, $.01 par value per share,
of the Corporation.


 


“Shareholders”
means, prior to Conversion, the members of the LLC and, at and after Conversion, the shareholders of the Corporation.


 


		2.	ADMINISTRATION



 


The Plan shall be administered
by the Board unless and until it delegates administration to a committee as provided herein; provided that a “required majority,”
as defined in Section 57(o) of the 1940 Act, must approve each issuance of Awards and Dividend Equivalent Rights in accordance
with Section 61(a)(3)(A)(iv) of the 1940 Act. The Board shall have discretionary authority, subject to the express provisions of
the Plan, (a) to grant Awards to such Eligible Persons (defined below in Section 5 hereof) as the Board may select; (b) to determine
the time or times when Awards shall be granted and the number of Shares subject to each Award; (c) to determine the terms and conditions
of each Award; (d) to prescribe the form or forms of any instruments evidencing Awards and any other instruments required under
the Plan and to change such forms from time to time; (e) to adopt, amend, and rescind rules and regulations for the administration
of the Plan; and (f) to interpret the Plan and to decide any questions and settle all controversies and disputes that may arise
in connection with the Plan. Such determinations of the Board shall be conclusive and shall bind all parties. Subject to Section
9 hereof, the Board shall also have the authority, both generally and in particular instances, to waive compliance by a participant
with any obligation to be performed by him or her under an Award, to waive any condition or provision of an Award, and to amend
or cancel any Award (and if an Award is canceled, to grant a new Award on such terms as the Board shall specify), except that the
Board may not take any action with respect to an outstanding Award that would adversely affect the rights of the participant under
such Award without such participant’s consent. Nothing in the preceding sentence shall be construed as limiting the power
of the Board to make adjustments required by Sections 4 (d) and 6(i) hereof or by applicable law. In the case of any Award intended
to be eligible for the performance-based compensation exception under Section 162(m) of the Internal Revenue Code of 1986, as amended
(the “Code”), the Board will exercise its discretion consistent with qualifying the A ward for that exception.


 


The Board may, in its
discretion, delegate some or all of its powers with respect to the Plan to a committee (the “Committee”), in
which event all references (as appropriate) to the Board hereunder shall be deemed to refer to the Committee.


 


Determinations, interpretations
and constructions made by the Board in good faith shall not be subject to review by any person and shall be final, binding and
conclusive on all persons.


 




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		3.	EFFECTIVE DATE AND TERM OF PLAN



 


The Board, including
a “required majority” as defined in Section 57(o) of the 1940 Act, adopted the Plan on December 11, 2006, and amended
and restated the Plan on February 5, 2008, and on June 20, 2014.


 


No Awards shall be
granted under the Plan after February 5, 2018, but Awards previously granted may extend beyond that date.


 


		4.	SHARES SUBJECT TO THE PLAN



 


(a)          Number
of Shares. Subject to adjustment as provided in Section 4(d), the aggregate number of Shares that may be the subject of Awards
granted under the Plan shall be 2,000,000. If an option Award granted under the Plan terminates without having been exercised in
full, or upon exercise is satisfied other than by delivery of Shares, or if any Share Award is repurchased by the Company, the
number of Shares as to which such Award was not exercised shall be available for future grants.


 


The maximum number
of Shares for which any option .Award may be granted to any person in any calendar year shall be 1,000,000. The maximum number
of Shares that may be granted to any person under other Awards (if any and to the extent permitted under the 1940 Act) in any calendar
year shall be 500,000. The foregoing provisions will be construed in a manner consistent with Section 162(m) of the Code (if applicable)
and Section 61 of the 1940 Act.


 


(b)          Shares
to be Delivered. Shares delivered under the Plan shall be authorized but unissued Shares, or if the Board so decides in its
sole discretion, previously issued Shares acquired by the Company and held in its treasury. Any Shares acquired by the Company
will be acquired in accordance with the 1940 Act, including Section 23 of the 1940 Act. No fractional Shares shall be delivered
under the Plan.


 


(c)         Limits on
Number of Awards. The combined maximum amount of Restricted Stock that may be issued under the Plan will be 10% of the outstanding
Shares on February 5, 2008, plus 10% of the number of Shares issued or delivered by the Company (other than pursuant to compensation
plans) during the term of the Plan. No one person shall be granted more than 25% of the Restricted Stock reserved for issuance
under this Plan. The amount of voting securities that would result from the exercise of all of the Company’s outstanding
warrants, options and rights, together with any Restricted Shares issued pursuant to the Plan, at the time of issuance shall not
exceed 25% of the outstanding voting securities of the Company, except that if the amount of voting securities that would result
from the exercise of all the Company’s outstanding warrants, options and rights issued to the Company’s directors,
officers and employees, together with any Restricted Shares issued pursuant to the Plan, would exceed 15% of the outstanding voting
securities of the Company, the total amount of voting securities that would result from the exercise of all outstanding warrants,
options and rights, together with any Restricted Shares issued pursuant to the Plan, at the time of issuance shall not exceed 20%
of the outstanding voting securities of the Company.


 




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(d)         Changes
in Shares. In the event of a Share dividend, Share split or combination of Shares, recapitalization, or other change in the
Shares, the number and kind of Shares or securities of the Company subject to Awards then outstanding or subsequently granted under
the Plan, the exercise price of such Awards, the maximum number of Shares or securities that may be delivered under the Plan, and
other relevant provisions shall be appropriately adjusted by the Board, whose determination shall be binding on all persons.


 


The Board may also
adjust the number of Shares subject to outstanding Awards, the exercise price of outstanding Awards, and the terms of outstanding
Awards, to take into consideration material changes in accounting practices or principles, extraordinary dividends, consolidations
or mergers (except those described in Section 6(i)), acquisitions or dispositions of securities or property, or any other event
if it is determined by the Board that such adjustment is appropriate to avoid distortion in the operation of the Plan; provided,
however, that the exercise price of options granted under the Plan will not be adjusted unless the Company receives an exemptive
order from the Commission or written confirmation from the staff of the Commission that the Company may do so. References in the
Plan to Shares will be construed to include any units, any stock or any other securities resulting from an adjustment pursuant
to this Section 4(d).


 


		5.	AWARDS; ETC.



 


Persons eligible to
receive Awards under the Plan (“Eligible Persons”) shall be those key employees and officers of the Company
and, to the extent permitted by exemptive or other relief that may be granted by the Commission or its staff, employees of wholly-owned
consolidated subsidiaries of the Company who, in the opinion of the Board, are in a position to make a significant contribution
to the success of the Company and its subsidiaries. A subsidiary for purposes of the Plan shall be a corporation, limited liability
company or other entity in which the Company owns, directly or indirectly, equity securities possessing 50% or more of the total
combined voting power of all classes of equity securities. Notwithstanding the foregoing, in the case of an Award that is an incentive
option, an Eligible Person shall only be those employees of the Company or of a “parent corporation” or “subsidiary
corporation” of the Company as those terms are defined in Section 424 of the Code.


 


In the case of an Award
of Restricted Shares (to the extent such Awards are permitted by exemptive relief or other relief that may be granted by the Commission
or its staff) that is intended to qualify as performance-based for the purposes of Section 162(m) of the Code, the Plan and such
Award will be construed to the maximum extent permitted by law in a manner consistent with qualifying the Award for such exception.
With respect to such Awards, the Board will pre-establish, in writing, one or more specific Performance Criteria no later than
90 days after the commencement of the period of service to which the performance relates (or at such earlier time as is required
to qualify the Award as performance-based under Section 162(m) of the Code). The Performance Criteria so established shall serve
as a condition to either the grant of the Award or the vesting of Shares subject to the Award, as determined by the Board. Prior
to grant or vesting, as the case may be, the Board will certify whether the Performance Criteria have been attained and such determination
will be final and conclusive. If the Performance Criteria with respect to the Award are not attained, no other Award will be provided
in substitution. No Award of Restricted Shares that is intended to qualify as performance-based for the purposes of section 162(m)
of the Code may be granted after the first meeting of the Shareholders of the Company held in 2010 until the Performance Criteria
have been resubmitted to and reapproved by the Shareholders of the Company in accordance with the requirements of Section 162(m)
of the Code, unless such grant is made contingent upon such approval.


 




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		6.	TERMS AND CONDITIONS OF A WARDS



 


(a)         Code Section
409A Exemption. Except as the Board otherwise determines, no option shall have deferral features, or shall be administered
in a manner, that would cause such option to fail to qualify for exemption from Section 409A of the Code. Any option resulting
in a deferral of compensation subject to Section 409A of the Code shall be construed to the maximum extent possible, as determined
by the Board, consistent with the requirements of Section 409A of the Code.


 


(b)         Exercise
Price of Options. The exercise price of each option shall be determined by the Board. The exercise price of an option will
not be less than the current market value of, or if no such market value exists, the current net asset value of, the Shares as
determined in good faith by the Board on the date of grant. Current market value shall be the closing price of the Common Stock
on the NASDAQ Global Select Market on the date of grant.


 


(c)         Duration
of Options. An option shall be exercisable during such period or periods as the Board may specify. The latest date on which
an option may be exercised (the “Expiration Date”) shall be the date that is ten years from the date the option
was granted or such earlier date as may be specified by the Board at the time the option is granted.


 


(d)         Exercise
of Options.


 


		(1)	An option shall vest or become exercisable at such time or times and upon such conditions as the
Board shall specify. In the case of an option not immediately exercisable in full, the Board may at any time accelerate the time
at which all or any part of the option may be exercised regardless of any adverse or potentially adverse tax consequences resulting
from such acceleration.



 


		(2)	Any exercise of an option shall be in writing, signed by the proper person and furnished to the
Company, accompanied by (i) such documents as may be required by the Board and (ii) payment in full as specified below in Section
6(e) for the number of Shares for which the option is exercised.



 


		(3)	The Board shall have the right to require that the participant exercising the option remit to the
Company an amount sufficient to satisfy any federal, state, or local withholding tax requirements (or make other arrangements satisfactory
to the Company with regard to such taxes) arising in connection with the exercise of the option. If permitted by the Board and
to the extent permitted under the 1940 Act, either at the time of the grant of the option or in connection with exercise, the participant
may elect, at such time and in such manner as the Board may prescribe, to satisfy such withholding obligation by (i) delivering
to the Company Shares owned by such individual having a fair market value equal to such withholding obligation, or (ii) requesting
that the Company withhold from the Shares to be delivered upon the exercise a number of Shares having a fair market value equal
to such withholding obligation.



 




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		(4)	If an option is exercised by the executor or administrator of a deceased participant, or by the
person or persons to whom the option has been transferred by the participant’s will or the applicable laws of descent and
distribution, the Company shall be under no obligation to deliver Shares pursuant to such exercise until the Company is satisfied
as to the authority of the person or persons exercising the option.



 


(e)         Payment
for and Delivery of Shares. Shares purchased upon exercise of an option under the Plan shall be paid for as follows: (i) in
cash, check acceptable to the Company (determined in accordance with such guidelines as the Board may prescribe), or money order
payable to the order of the Company, or (ii) if so permitted by the Board (which, in the case of an incentive option, shall specify
such method of payment at the time of grant) and to the extent permitted by the 1940 Act and otherwise legally permissible, (A)
by delivery of an unconditional and irrevocable undertaking by a broker to deliver promptly to the Company sufficient funds to
pay the exercise price, or (B) by any combination of the permissible forms of payment.


 


(f)          Delivery
of Shares. A participant shall not have the rights of a Shareholder with regard to Awards under the Plan except as to Shares
actually received by him or her under the Plan.


 


(g)        Dividend
Equivalents, Etc. To the extent permitted under the 1940 Act, the Board may provide for the payment of amounts in lieu of cash
dividends or other cash distributions with respect to Shares subject to an Award; provided, however, that such grants must be approved
by order of the Commission.


 


(h)         Non transferability
of Awards. No option, Share, or other Award may be transferred other than by will or by the laws of descent and . distribution,
and during a participant’s lifetime an Award may be exercised only by him or her.


 


(i)         Mergers,
etc. To the extent permitted under the 1940 Act and except as otherwise provided in an Award agreement or an employment agreement
between the participant and the Company or an Affiliate, the following provisions shall apply in the event of a Covered Transaction
(as defined below).


 


		(1)	Subject to subparagraph (2) below, all outstanding Awards requiring exercise will terminate and
cease to be exercisable, and all other Awards to the extent not fully vested (including Awards subject to conditions not yet satisfied
or determined) will be forfeited, as of the effective time of the Covered Transaction (as defined in subparagraph (3) herein),
provided that the Board may in its sole discretion on or prior to the effective date of the Covered Transaction take any (or any
combination of) the following actions: (i) make any outstanding option exercisable in full, (ii) remove any performance or other
conditions or restrictions on any A ward and (iii) in the event of a Covered Transaction under the terms of which holders of the
Shares of the Company will receive upon consummation thereof a payment for each such Share surrendered in the Covered Transaction
(whether cash, non-cash or a combination of the foregoing), make or provide for a payment (with respect to some or all of the Awards),
to the participant equal in the case of each affected Award to the difference between (A) the fair market value of a Share times
the numbers of Shares subject to such outstanding Award (to the extent then exercisable at prices not in excess of the fair market
value) and (B) the aggregate exercise price of all Shares subject to such outstanding Award, in each case on such payment terms
(which need not be the same as the terms of payment to holders of Shares) and other terms, and subject to such conditions, as the
Committee determines; or



 




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		(2)	With respect to an outstanding Award held by a participant who, following the Covered Transaction,
will be employed by or otherwise providing services to an entity which is a surviving or acquiring entity in the covered transaction
or any affiliate of such an entity, the Board may at or prior to the effective time of the Covered Transaction, in its sole discretion
and in lieu of the action described in subparagraph (1) above, arrange to have such surviving or acquiring entity or affiliate
assume any Award held by such participant outstanding hereunder or grant a replacement A ward which, in the judgment of the Board
is substantially equivalent to any Award being replaced.



 


		(3)	For purposes of this Section 6(i), a “Covered Transaction” is a (i) Share sale,
consolidation, merger, or similar transaction or series of related transactions in which the Company is not the surviving corporation
or which results in the acquisition of all or substantially all of the Company’s then outstanding Shares by a single person
or entity or by a group of persons and/or entities acting in concert; (ii) a sale or transfer of all or substantially all the Company’s
assets, or (iii) a dissolution or liquidation of the Company. Where a Covered Transaction involves a tender offer that is reasonably
expected to be followed by a merger described in clause (i) (as determined by the Board), the Covered Transaction shall be deemed
to have occurred upon consummation of the tender offer.



 


(j)          No Grants
in Contravention of the 1940 Act. At all times during such periods as the Company qualifies or intends to qualify as a “business
development company,” no Award may be granted under the Plan if the grant or terms of such Award would cause the Company
to violate Section 61 of the 1940 Act (or any other provision of the 1940 Act applicable to “business development companies”),
and, if approved for grant, such an Award will be void and of no effect.


 


(k)          Tax
Withholding. The delivery of any Shares, or the lifting or lapse of restrictions on any Award, shall be subject to the participant’s
satisfaction of all applicable federal, state and local income and employment tax withholding obligations. A participant may satisfy
such obligation(s) in whole or in part, by (i) delivering to the Company a check for the amount required to be withheld, or (ii)
if permitted under the 1940 Act and as the Board in its sole discretion approves in any specific or general case, having the Company
withhold Shares issuable to the participant under the Plan or delivering to the Company already-owned Shares, in either case having
a fair market value equal to the amount required to be withheld, as determined by the Company. In addition, to the extent that
the Company so chooses, the Company can hold back 100% of the participant’s compensation earned after such obligations arose
and such held back amount shall be applied by the Company to satisfy such obligations.


 




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		7.	TERMINATION OF EMPLOYMENT



 


(a)         Unless the
Board expressly provides otherwise, and except as otherwise provided in an Award agreement or an employment agreement between the
participant and the Company or an Affiliate, immediately upon the cessation of the participant’s employment or services an
Award requiring exercise will cease to be exercisable and will terminate, and all other Awards to the extent not already vested
will be forfeited (and, in the case of an Award of Restricted Shares, such unvested Restricted Shares will be transferred to, and
reacquired by, the Company), except that:


 


		(1)	subject to (2) and (3) below, all vested options held by the participant immediately prior the
cessation of the participant’s employment, to the extent then exercisable, will remain exercisable for the less of (i) a
period of 90 days or (ii) the period ending on the latest date on which such option could have been exercised without regard to
this Section 7(a)(l), and will thereupon terminate;



 


		(2)	all vested options held by a participant immediately prior to the participant’s death, to
the extent then exercisable, will remain exercisable for the lesser of (i) the 180 day period ending following the participant’s
death or (ii) the period ending on the latest date on which such option could have been exercised without regard to this Section
7(a), and will thereupon terminate;



 


		(3)	all options (whether or not vested) held by a participant immediately prior to the cessation of
the participant’s employment or “Cause” will immediately terminate; for this purpose “Cause”
shall have the same meaning as provided in the employment agreement between the participant and the Company or its Affiliate, provided
that if the participant is not a party to any such agreement, “Cause” shall mean the participant’s repeated material
failure to perform (other than by reason of Disability), or gross negligence in the performance of, participant’s duties
and responsibilities to the Company or any of its Affiliates which failure is not cured within thirty (30) days after written notice
of such failure or negligence is delivered to participant; (ii) participant’s material breach of any written employment agreement
between participant and the Company or any of its Affiliates which breach is not cured within thirty (30) days after written notice
of such breach is delivered to participant; (iii) commission by participant of a felony involving moral turpitude or fraud with
respect to the Company or any of its Affiliates; (iv) participant being sanctioned by a federal or state government or agency with
violations of federal or state securities laws in any judicial or administrative process or proceeding, or having been found by
any court to have committed any such violation; or (v) participant’s failure to comply with (A) any material Company policy,
including without limitation, all Company Codes of Ethics, policies, procedures and handbooks, applicable to such participant or
(B) any legal or regulatory obligations or requirements of participant, including, without limitation, failure of participant to
provide any certifications as may be required by law which is not cured within thirty (30) days after written notice of such violation
is delivered to participant. and



 




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		(4)	Except as otherwise provided in an Award, after completion of the 90-day (or 180-day) period, such
Awards shall terminate to the extent not previously exercised, expired, or terminated.



 


No option shall
be exercised or surrendered in exchange for a cash payment after the Expiration Date.


 


(b)         In particular
but not in limitation of the foregoing, the Board may provide in the case of any Award for post-termination exercise provisions
different from those expressly set forth in this Section 7, including without limitation terms allowing a later exercise by a former
employee (or, in the case of a former employee who is deceased, the person or persons to whom the Award is transferred by will
or the laws of descent and distribution) as to all or any portion of the Award not exercisable immediately prior to termination
of employment or other service, but in no case may an A ward be exercised after the Expiration Date.


 


		8.	EMPLOYMENT RIGHTS



 


Neither the adoption
of the Plan nor the grant of Awards shall confer upon any participant any right to continue as an employee of the Company, its
parent, or any subsidiary or affect in any way the right of the Company, its parent, or a subsidiary to terminate the participant’s
relationship at any time. Except as specifically provided by the Board in any particular case, the loss of existing or potential
profit in Awards granted under this Plan shall not constitute an element of damages in the event of termination of the relationship
of a participant even if the termination is in violation of an obligation of the Company to the participant by contract or otherwise.


 


		9.	DISCONTINUANCE, CANCELLATION, AMENDMENT, AND TERMINATION



 


The Board may at any
time or times amend the Plan or any outstanding Award for any purpose which may at the time be permitted by law, and may at any
time terminate the Plan as to any future grants of Awards; provided that, except as otherwise expressly provided in the Plan the
Board may not, without the participant’s consent, alter the terms of an Award so as to affect adversely the participant’s
rights under the Award, unless the Board expressly reserved the right to do so at the time of the Award. Any amendments to the
Plan shall be conditioned upon Shareholder approval only to the extent, if any, such approval is required by law (including the
Code), as determined by the Board.


 


		10.	LIMITATION OF LIABILITY



 


Notwithstanding anything
to the contrary in the Plan, neither the Company, any subsidiary, nor the Board, nor any person acting on behalf of the Company,
any subsidiary, or the Board, shall be liable to any participant or to the estate or beneficiary of any participant or to any other
holder of an option by reason of any acceleration of income, or any additional tax, asserted by reason of the failure of an option
to satisfy the requirements of Section 409 A or by reason of Section 4999 of the Code; provided, that nothing in this Section 10
shall limit the ability of the Board to provide by separate express written agreement with a participant for a gross-up payment
or other payment in connection with any such tax or additional tax.


 




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		11.	WAIVER OF JURY TRIAL



 


By accepting an Award
under the Plan, each participant waives any right to a trial by jury in any action, proceeding or counterclaim concerning any rights
under the Plan and any Award, or under any amendment, waiver, consent, instrument, document or other agreement delivered or which
in the future may be delivered in connection therewith, and agrees that any such action, proceedings or counterclaim shall be tried
before a court and not before a jury. By accepting an Award under the Plan, each participant certifies that no officer, representative,
or attorney of the Company has represented, expressly or otherwise, that the Company would not, in the event of any action, proceeding
or counterclaim, seek to enforce the foregoing waivers.


 


		12.	LEGAL CONDITIONS ON DELIVERY OF SHARES



 


The Company will not
be obligated to deliver any Shares pursuant to the Plan or to remove any restriction from Shares previously delivered under the
Plan until: (i) the Company is satisfied that all legal matters in connection with the issuance and delivery of such Shares have
been addressed and resolved; (ii) if the outstanding Shares are at the time of delivery listed on any stock exchange or national
market system, the Shares to be delivered have been listed or authorized to be listed on such exchange or system upon official
notice of issuance; and (iii) all conditions of the Award have been satisfied or waived. If the sale of Shares has not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), the Company may require, as a condition
to exercise of the Award, such representations or agreements as counsel for the Company may consider appropriate to avoid violation
of the Securities Act. The Company may require that certificates evidencing Shares issued under the Plan bear an appropriate legend
reflecting any restriction on transfer applicable to such Shares, and the Company may hold the certificates pending lapse of the
applicable restrictions.


 




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