Exhibit 10.05


 


H/CELL ENERGY CORPORATION


2016 INCENTIVE STOCK OPTION PLAN


 





 



  


The H/Cell Energy Corporation
2016 Incentive Stock Option Plan (the "Plan") is designed to retain directors, executives and selected
employees and consultants and reward them for individual performance that contributes to the success of the Company. These objectives
are accomplished by issuing Options to purchase Stock in the Company under the Plan thereby providing Participants with a proprietary
interest in the growth and performance of the Company.


 


1.     Definitions.


 


(a)   "Board"
- The Board of Directors of the Company.


 


(b)   "Code"
- The Internal Revenue Code of 1986, as amended from time to time.


 


(c)   "Committee"
- The Compensation Committee of the Company's Board, or such other committee of the Board that is designated by the Board to administer
the Plan, composed of not less than two members of the Board whom are disinterested persons, as contemplated by Rule 16b-3 ("Rule
16b-3") promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act").


 


(d)   "Company"
– H/CELL ENERGY CORPORATION and its subsidiaries including subsidiaries of subsidiaries.


 


(e)   "Exchange
Act" - The Securities Exchange Act of 1934, as amended from time to time.


 


(f)   "Fair
Market Value" - The fair market value of the Company's issued and outstanding Stock as determined in good faith by the
Board or Committee.


 


(g)   "Grant"
- The grant of any form of stock option to a Participant pursuant to such terms, conditions and limitations as the Committee may
establish in order to fulfill the objectives of the Plan.


 


(h)   "Grant
Agreement" - An agreement between the Company and a Participant that sets forth the terms, conditions and limitations
applicable to a Grant.


 


(i)   "Option"
- Either an Incentive Stock Option, in accordance with Section 422 of the Code, or a Nonstatutory Option, to purchase the Company's
Stock that may be awarded to a Participant under the Plan. A Participant who receives an award of an Option shall be referred to
as an "Optionee."


 


(j)   "Participant"
- A director, officer, employee or consultant of the Company to whom an Award has been made under the Plan.


 


Appendix A


 




     


     


    




 


(k)  "Securities
Act" - The Securities Act of 1933, as amended from time to time.


 


(l)   "Stock"
- Authorized and issued or unissued shares of common stock of the Company.


 


2.    Administration.
The Plan shall be administered by the Board, provided however, that the Board may delegate such administration to the Committee.
Subject to the provisions of the Plan, the Board and/or the Committee shall have authority to (a) grant, in its discretion, Incentive
Stock Options in accordance with Section 422 of the Code, or Nonstatutory Options; (b) determine in good faith the fair market
value of the Stock covered by any Grant; (c) determine which eligible persons shall receive Grants and the number of shares, restrictions,
terms and conditions to be included in such Grants; (d) construe and interpret the Plan; (e) promulgate, amend and rescind rules
and regulations relating to its administration, and correct defects, omissions and inconsistencies in the Plan or any Grant; (f)
consistent with the Plan and with the consent of the Participant, as appropriate, amend any outstanding Grant or amend the exercise
date or dates thereof; (g) determine the duration and purpose of leaves of absence which may be granted to Participants without
constituting termination of their employment for the purpose of the Plan or any Grant; and (h) make all other determinations necessary
or advisable for the Plan's administration. The interpretation and construction by the Board of any provisions of the Plan or selection
of Participants shall be conclusive and final. No member of the Board or the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any Grant made thereunder.


 


3.     Eligibility.


 


(a)   General:
The persons who shall be eligible to receive Grants shall be directors, officers, employees or consultants to the Company. The
term consultant shall mean any person, other than an employee, who is engaged by the Company to render services and is compensated
for such services. An Optionee may hold more than one Option. Any issuance of a Grant to an officer or director of the Company
subsequent to the first registration of any of the securities of the Company under the Exchange Act shall comply with the requirements
of Rule 16b-3.


 


(b)   Incentive
Stock Options: Incentive Stock Options may only be issued to employees of the Company. Incentive Stock Options may be granted
to officers or directors, provided they are also employees of the Company. Payment of a director's fee shall not be sufficient
to constitute employment by the Company.


 


The Company shall not grant an
Incentive Stock Option under the Plan to any employee if such Grant would result in such employee holding the right to exercise
for the first time in any one calendar year, under all Incentive Stock Options granted under the Plan or any other plan maintained
by the Company, with respect to shares of Stock having an aggregate fair market value, determined as of the date of the Option
is granted, in excess of $100,000. Should it be determined that an Incentive Stock Option granted under the Plan exceeds such maximum
for any reason other than a failure in good faith to value the Stock subject to such option, the excess portion of such option
shall be considered a Nonstatutory Option. To the extent the employee holds two (2) or more such Options which become exercisable
for the first time in the same calendar year, the foregoing limitation on the exercisability of such Option as Incentive Stock
Options under the Federal tax laws shall be applied on the basis of the order in which such Options are granted. If, for any reason,
an entire Option does not qualify as an Incentive Stock Option by reason of exceeding such maximum, such Option shall be considered
a Nonstatutory Option.





 




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(c)   Nonstatutory
Option: The provisions of the foregoing Section 3(b) shall not apply to any Option designated as a "Nonstatutory Option"
or which sets forth the intention of the parties that the Option be a Nonstatutory Option.


 


4.     Stock.


 


(a)   Authorized
Stock: Stock subject to Grants may be either unissued or reacquired Stock.


 


(b)   Number
of Shares: Subject to adjustment as provided in Section 5(i) of the Plan, the total number of shares of Stock which may be
purchased or granted directly by Options or purchased indirectly through exercise of Options granted under the Plan shall not exceed
Two Million Five Hundred Thousand (2,500,000). If any Grant shall for any reason terminate or expire, any shares allocated thereto
but remaining unpurchased upon such expiration or termination shall again be available for Grants with respect thereto under the
Plan as though no Grant had previously occurred with respect to such shares. Any shares of Stock issued pursuant to a Grant and
repurchased pursuant to the terms thereof shall be available for future Grants as though not previously covered by a Grant.


 


(c)   Reservation
of Shares: The Company shall reserve and keep available at all times during the term of the Plan such number of shares as shall
be sufficient to satisfy the requirements of the Plan. If, after reasonable efforts, which efforts shall not include the registration
of the Plan or Grants under the Securities Act, the Company is unable to obtain authority from any applicable regulatory body,
which authorization is deemed necessary by legal counsel for the Company for the lawful issuance of shares hereunder, the Company
shall be relieved of any liability with respect to its failure to issue and sell the shares for which such requisite authority
was so deemed necessary unless and until such authority is obtained.


 


(d)   Application
of Funds: The proceeds received by the Company from the issuance of Stock pursuant to the exercise of Options will be used
for general corporate purposes.


 


(e)   No
Obligation to Exercise: The issuance of a Grant shall impose no obligation upon the Participant to exercise any rights under
such Grant.


 


5.     Terms
and Conditions of Options. Options granted hereunder shall be evidenced by agreements between the Company and the respective
Optionees, in such form and substance as the Board or Committee shall from time to time approve. The form of Incentive Stock Option
Agreement attached hereto as Exhibit A and the three forms of a Nonstatutory Stock Option Agreement for employees, for directors
and for consultants, attached hereto as Exhibit B-1, Exhibit B-2 and Exhibit B-3, respectively, shall be deemed
to be approved by the Board. Option agreements need not be identical, and in each case may include such provisions as the Board
or Committee may determine, but all such agreements shall be subject to and limited by the following terms and conditions:





 




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(a)   Number
of Shares: Each Option shall state the number of shares to which it pertains.


 


(b)   Exercise
Price: Each Option shall state the exercise price, which shall be determined as follows:


 


(i)    Any
Incentive Stock Option granted to a person who at the time the Option is granted owns (or is deemed to own pursuant to Section
424(d) of the Code) stock possessing more than ten percent (10%) of the total combined voting power or value of all classes of
stock of the Company ("Ten Percent Holder") shall have an exercise price of no less than 110% of the Fair Market Value
of the Stock as of the date of grant; and


 


(ii)    Incentive
Stock Options granted to a person who at the time the Option is granted is not a Ten Percent Holder shall have an exercise price
of no less than 100% of the Fair Market Value of the Stock as of the date of grant.


 


For the purposes of this Section
5(b), the Fair Market Value shall be as determined by the Board in good faith, which determination shall be conclusive and binding;
provided however, that if there is a public market for such Stock, the Fair Market Value per share shall be the average of the
bid and asked prices (or the closing price if such stock is listed on the New York Stock Exchange, the NASDAQ Global Select Market,
the NASDAQ Global Market, the NASDAQ Capital Market or the NYSE MKT) on the date of grant of the Option, or if listed on a stock
exchange, the closing price on such exchange on such date of grant.


 


(c)   Medium
and Time of Payment: The exercise price shall become immediately due upon exercise of the Option and shall be paid in cash
or certified check made payable to the Company. The Company will not issue any Stock pursuant to the exercise of Options prior
to payment being received in full for such Options.


 


(d)   Term
and Exercise of Options: Any Option granted to an employee of the Company shall become exercisable over a period of no longer
than five (5) years. In no event shall any Option be exercisable after the expiration of ten (10) years from the date it is granted,
and no Incentive Stock Option granted to a Ten Percent Holder shall, by its terms, be exercisable after the expiration of five
(5) years from the date of the Option. Unless otherwise specified by the Board or the Committee in the resolution authorizing such
Option, the date of grant of an Option shall be deemed to be the date upon which the Board or the Committee authorizes the granting
of such Option.


 


Each Option shall be exercisable
by rounding up to the nearest whole share, in installments or otherwise, as the respective Option agreements may provide. During
the lifetime of an Optionee, the Option shall be exercisable only by the Optionee and shall not be assignable or transferable by
the Optionee, and no other person shall acquire any rights therein. To the extent not exercised, installments (if more than one)
shall accumulate, but shall be exercisable, in whole or in part, only during the period for exercise as stated in the Option agreement,
whether or not other installments are then exercisable.


 




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(e)   Termination
of Status as Employee, Consultant or Director: If Optionee's status as an employee shall terminate for any reason other than
Optionee's disability or death, then Optionee (or if the Optionee shall die after such termination, but prior to exercise, Optionee's
personal representative or the person entitled to succeed to the Option) shall have the right to exercise the portions of any of
Optionee's Incentive Stock Options which were exercisable as of the date of such termination, in whole or in part, within 10 days
after such termination (or, in the event of "termination for good cause" as that term is defined in Nevada case
law related thereto, or by the terms of the Plan or the Option Agreement or an employment agreement, the Option shall automatically
terminate as of the termination of employment as to all shares covered by the Option).


 


With respect to Nonstatutory
Options granted to employees, directors or consultants, the Board may specify such period for exercise, not less than 10 days (except
that in the case of "termination for cause" or removal of a director), the Option shall automatically terminate
as of the termination of employment or services as to shares covered by the Option, following termination of employment or services
as the Board deems reasonable and appropriate. The Option may be exercised only with respect to installments that the Optionee
could have exercised at the date of termination of employment or services. Nothing contained herein or in any Option granted pursuant
hereto shall be construed to affect or restrict in any way the right of the Company to terminate the employment or services of
an Optionee with or without cause.


 


(f)   Disability
of Optionee: If an Optionee is disabled (within the meaning of Section 22(e)(3) of the Code) at the time of termination, the
three (3) month period set forth in Section 5(e) shall be a period, as determined by the Board and set forth in the Option, of
not less than six months nor more than one year after such termination.


 


(g)   Death
of Optionee: If an Optionee dies while employed by, engaged as a consultant to, or serving as a director of the Company, the
portion of such Optionee's Option which was exercisable at the date of death may be exercised, in whole or in part, by the estate
of the decedent or by a person succeeding to the right to exercise such Option at any time within (i) a period, as determined by
the Board and set forth in the Option, of not less than six (6) months nor more than one (1) year after Optionee's death, which
period shall not be more, in the case of a Nonstatutory Option, than the period for exercise following termination of employment
or services, or (ii) during the remaining term of the Option, whichever is the lesser. The Option may be so exercised only with
respect to installments exercisable at the time of Optionee's death and not previously exercised by the Optionee.


 


(h)   Nontransferability
of Option: No Option shall be transferable by the Optionee, except by will or by the laws of descent and distribution.


 




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(i)    Recapitalization:
Subject to any required action of shareholders, the number of shares of Stock covered by each outstanding Option, and the exercise
price per share thereof set forth in each such Option, shall be proportionately adjusted for any increase or decrease in the number
of issued shares of Stock of the Company resulting from a stock split, stock dividend, combination, subdivision or reclassification
of shares, or the payment of a stock dividend, or any other increase or decrease in the number of such shares affected without
receipt of consideration by the Company; provided, however, the conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration" by the Company.


 


In the event of a proposed dissolution
or liquidation of the Company, a merger or consolidation in which the Company is not the surviving entity, or a sale of all or
substantially all of the assets or capital stock of the Company (collectively, a "Reorganization"), except as
provided in the following paragraph, any Option granted hereunder shall terminate, but, provided that the Optionee shall have the
right ten (10) days prior to any such Reorganization to exercise his Option in whole or in part whether or not the vesting requirements
set forth in the stock option agreement have been satisfied..


 


If the stockholders of the Company
receive capital stock of another corporation (“Exchange Stock”) in exchange for their Common Shares in any Reorganization,
all options granted hereunder shall terminate in accordance with the provision of the preceding paragraph unless the Directors
and the corporation issuing the Exchange Stock in their sole and arbitrary discretion and subject to any required action by the
stockholders of the Company and such corporation, agree that all such Options granted hereunder are converted into options to purchase
shares of Exchange Stock. The amount and price of such options shall be determined by adjusting the amount and price of the Options
granted hereunder in the same proportion as used for determining the number of shares of Exchange Stock the holders of the Common
Shares receive in such merger, consolidation, acquisition of property or stock, separation or reorganization. The vesting schedule
set forth in the stock option agreement shall continue to apply to the options granted for the Exchange Stock.


 


Subject to any required action
of shareholders, if the Company shall be the surviving entity in any merger or consolidation, each outstanding Option thereafter
shall pertain to and apply to the securities to which a holder of shares of Stock equal to the shares subject to the Option would
have been entitled by reason of such merger or consolidation.


 


In the event of a change in the
Stock of the Company as presently constituted, which is limited to a change of all of its authorized shares without par value into
the same number of shares with a par value, the shares resulting from any such change shall be deemed to be the Stock within the
meaning of the Plan.


 


To the extent that the foregoing
adjustments relate to stock or securities of the Company, such adjustments shall be made by the Board, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided in this Section 5(i), the Optionee shall have no rights
by reason of any subdivision or consolidation of shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class, and the number or price of shares of Stock subject to any Option
shall not be affected by, and no adjustment shall be made by reason of, any dissolution, liquidation, merger, consolidation or
sale of assets or capital stock, or any issue by the Company of shares of stock of any class or securities convertible into shares
of stock of any class.


 




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The Grant of an Option pursuant
to the Plan shall not affect in any way the right or power of the Company to make any adjustments, reclassifications, reorganizations
or changes in its capital or business structure or to merge, consolidate, dissolve, or liquidate or to sell or transfer all or
any part of its business or assets.


 


(j)    Rights
as a Shareholder: An Optionee shall have no rights as a shareholder with respect to any shares covered by an Option until the
effective date of the issuance of the shares following exercise of such Option by Optionee. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record
date is prior to the date such stock certificate is issued, except as expressly provided in Section 5(i) hereof.


 


(k)   Modification,
Acceleration, Extension, and Renewal of Options: Subject to the terms and conditions and within the limitations of the Plan,
the Board may modify an Option, or, once an Option is exercisable, accelerate the rate at which it may be exercised, and may extend
or renew outstanding Options granted under the Plan or accept the surrender of outstanding Options (to the extent not theretofore
exercised) and authorize the granting of new Options in substitution for such Options, provided such action is permissible under
Section 422 of the Code and applicable state securities laws. Notwithstanding the provisions of this Section 5(k), however, no
modification of an Option shall, without the consent of the Optionee, alter to the Optionee's detriment or impair any rights or
obligations under any Option theretofore granted under the Plan.


 


(l)    Other
Provisions: The Option agreements authorized under the Plan shall contain such other provisions, including, without limitation,
restrictions upon the exercise of the Options, as the Board or the Committee shall deem advisable. Shares shall not be issued pursuant
to the exercise of an Option, if the exercise of such Option or the issuance of shares thereunder would violate, in the opinion
of legal counsel for the Company, the provisions of any applicable law or the rules or regulations of any applicable governmental
or administrative agency or body, such as the Code, the Securities Act, the Exchange Act, applicable state securities laws, Nevada
corporation law, and the rules promulgated under the foregoing or the rules and regulations of any exchange upon which the shares
of the Company are listed. Without limiting the generality of the foregoing, the exercise of each Option shall be subject to the
condition that if at any time the Company shall determine that (i) the satisfaction of withholding tax or other similar liabilities,
or (ii) the listing, registration or qualification of any shares covered by such exercise upon any securities exchange or under
any state or federal law, or (iii) the consent or approval of any regulatory body, or (iv) the perfection of any exemption from
any such withholding, listing, registration, qualification, consent or approval is necessary or desirable in connection with such
exercise or the issuance of shares thereunder, then in any such event, such exercise shall not be effective unless such withholding,
listing registration, qualification, consent, approval or exemption shall have been effected, obtained or perfected free of any
conditions not acceptable to the Company.


 




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6.     Investment
Intent. All Grants under the Plan are intended to be exempt from registration under the Securities Act provided by Rule 701
thereunder. Unless and until the granting of Options or sale and issuance of Stock subject to the Plan are registered under the
Securities Act or shall be exempt pursuant to the rules promulgated thereunder, each Grant under the Plan shall provide that the
purchases or other acquisitions of Stock thereunder shall be for investment purposes and not with a view to, or for resale in connection
with, any distribution thereof. Further, unless the issuance and sale of the Stock have been registered under the Securities Act,
each Grant shall provide that no shares shall be purchased upon the exercise of the rights under such Grant unless and until (i)
all then applicable requirements of state and federal laws and regulatory agencies shall have been fully complied with to the satisfaction
of the Company and its counsel, and (ii) if requested to do so by the Company, the person exercising the rights under the Grant
shall (i) give written assurances as to knowledge and experience of such person (or a representative employed by such person) in
financial and business matters and the ability of such person (or representative) to evaluate the merits and risks of exercising
the Option, and (ii) execute and deliver to the Company a letter of investment intent and/or such other form related to applicable
exemptions from registration, all in such form and substance as the Company may require. If shares are issued upon exercise of
any rights under a Grant without registration under the Securities Act, subsequent registration of such shares shall relieve the
purchaser thereof of any investment restrictions or representations made upon the exercise of such rights.


 


7.     Amendment,
Modification, Suspension or Discontinuance of the Plan. The Board may, insofar as permitted by law, from time to time, with
respect to any shares at the time not subject to outstanding Grants, suspend or terminate the Plan or revise or amend it in any
respect whatsoever, except that without the approval of the shareholders of the Company, no such revision or amendment shall (i)
increase the number of shares subject to the Plan, (ii) decrease the price at which Grants may be granted, (iii) materially increase
the benefits to Participants, or (iv) change the class of persons eligible to receive Grants under the Plan; provided, however,
no such action shall alter or impair the rights and obligations under any Option outstanding as of the date thereof without the
written consent of the Participant thereunder. No Grant may be issued while the Plan is suspended or after it is terminated, but
the rights and obligations under any Grant issued while the Plan is in effect shall not be impaired by suspension or termination
of the Plan.


 


In the event of any change in
the outstanding Stock by reason of a stock split, stock dividend, combination or reclassification of shares, recapitalization,
merger, or similar event, the Board or the Committee may adjust proportionally (a) the number of shares of Stock (i) reserved under
the Plan and (ii) available for Incentive Stock Options and Nonstatutory Options ; (b) the Stock prices related to outstanding
Grants; and (c) the appropriate Fair Market Value and other price determinations for such Grants. In the event of any other change
affecting the Stock or any distribution (other than normal cash dividends) to holders of Stock, such adjustments as may be deemed
equitable by the Board or the Committee, including adjustments to avoid fractional shares, shall be made to give proper effect
to such event. In the event of a corporate merger, consolidation, acquisition of property or stock, separation, reorganization
or liquidation, the Board or the Committee shall be authorized to issue or assume stock options, whether or not in a transaction
to which Section 424(a) of the Code applies, and other Grants by means of substitution of new Grant Agreements for previously issued
Grants or an assumption of previously issued Grants.


 




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8.     Section
409A of the Code. Notwithstanding any other provision of the Plan, no stock option granted
under the Plan shall have any terms or features (including, without limitation, terms or features relating to the time of or events
triggering vesting, method of exercise or payment of withholding tax, method of settlement, form and timing of consideration payable
in settlement, or deferral or other elections), whether at the time of grant or subsequent to the time of grant, that would cause
the stock option to be nonqualified deferred compensation that fails to comply with, or be exempt from, the requirements under
Section 409A of the Code and the guidance and regulations issued thereunder. Moreover, notwithstanding any other provision
of the Plan, no action may be taken by the Committee or the Board under or in respect of the Plan (including, without limitation,
Plan amendments under Paragraph 7 or adjustments under Paragraph 5) that would cause the Plan or any stock option granted under
the Plan to be a nonqualified deferred compensation plan that fails to comply with the requirements of Section 409A of the
Code and the guidance and regulations issued thereunder. Notwithstanding the foregoing, in no event shall the Company or any Committee
member be liable for any adverse tax consequences if the Plan or any award shall fail to comply with, or be exempt from, the requirements
under Section 409A of the Code and the guidance and regulations issued thereunder.


 


9.     Tax
Withholding. The Company shall have the right to deduct applicable taxes from any Grant payment and withhold, at the time of
delivery or exercise of Options or vesting of shares under such Grants, an appropriate number of shares for payment of taxes required
by law or to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for withholding
of such taxes. If Stock is used to satisfy tax withholding, such stock shall be valued based on the Fair Market Value when the
tax withholding is required to be made.


 


10.   Availability
of Information. During the term of the Plan and any additional period during which a Grant granted pursuant to the Plan shall
be exercisable, the Company shall make available, not later than one hundred and twenty (120) days following the close of each
of its fiscal years, such financial and other information regarding the Company as is required by the bylaws of the Company and
applicable law to be furnished in an annual report to the shareholders of the Company.


 


11.   Notice.
Any written notice to the Company required by any of the provisions of the Plan shall be addressed to the chief personnel officer
or to the chief executive officer of the Company, and shall become effective when it is received by the office of the chief personnel
officer or the chief executive officer.


 


12.   Indemnification
of Board. In addition to such other rights or indemnifications as they may have as directors or otherwise, and to the extent
allowed by applicable law, the members of the Board and the Committee shall be indemnified by the Company against the reasonable
expenses, including attorneys' fees, actually and necessarily incurred in connection with the defense of any claim, action, suit
or proceeding, or in connection with any appeal thereof, to which they or any of them may be a party by reason of any action taken,
or failure to act, under or in connection with the Plan or any Grant granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them
in satisfaction of a judgment in any such claim, action, suit or proceeding, except in any case in relation to matters as to which
it shall be adjudged in such claim, action, suit or proceeding that such Board or Committee member is liable for negligence or
misconduct in the performance of his or her duties; provided that within sixty (60) days after institution of any such action,
suit or Board proceeding the member involved shall offer the Company, in writing, the opportunity, at its own expense, to handle
and defend the same.


 




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13.   Governing
Law. The Plan and all determinations made and actions taken pursuant hereto, to the extent not otherwise governed by the Code
or the securities laws of the United States, shall be governed by the law of the State of Nevada and construed accordingly.


 


14.   Effective
and Termination Dates. The Plan shall become effective on the date it is approved by the holders of a majority of the shares
of Stock then outstanding. The Plan shall terminate ten years later, subject to earlier termination by the Board pursuant to Section
7.


 


The foregoing Plan
(consisting of 10 pages, including this page) was duly adopted and approved by the Board of Directors on March 9, 2016.


 


	 	H/CELL ENERGY CORPORATION,
	 	a Nevada corporation
	 	 
	 	By:	 
	 	 	Andrew Hidalgo
	 	Its:	Chief Executive Officer


 




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