Exhibit 10.1


 


IDEANOMICS, INC.


 


AMENDED AND RESTATED 2010 EQUITY INCENTIVE
PLAN


 


1.             Purposes
of the Plan. Ideanomics, Inc., a Nevada corporation (the “Company”) hereby establishes the Ideanomics, Inc. Amended
and Restated 2010 Equity Incentive Plan (the “Plan”).The purposes of this Plan are to attract and retain the best available
personnel for positions of substantial responsibility, to provide additional incentive to Employees, Directors and Consultants, and to
promote the long-term growth and profitability of the Company. The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock
Options, Restricted Stock, Restricted Stock Units, Stock Appreciation Rights, Performance Units and Performance Shares as the Administrator
may determine.


 


2.             Definitions.
The following definitions will apply to the terms in the Plan:


 


“Administrator”
means the Board or any of its Committees as will be administering the Plan, in accordance with Section 4.


 


“Applicable Laws”
means the requirements relating to the administration of equity-based awards under U.S. state corporate laws, U.S. federal and state securities
laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any foreign
country or jurisdiction where Awards are, or will be, granted under the Plan.


 


“Award”
means, individually or collectively, a grant under the Plan of Options, SARs, Restricted Stock, Restricted Stock Units, Performance Units
or Performance Shares.


 


“Award Agreement”
means the written or electronic agreement setting forth the terms and provisions applicable to each Award granted under the Plan. The
Award Agreement is subject to the terms and conditions of the Plan.


 


“Board”
means the Board of Directors of the Company.


 


“Change in Control”
means the occurrence of any of the following events:


 


(i)       Any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner”
(as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%)
or more of the total voting power represented by the Company's then outstanding voting securities; provided however, that for purposes
of this subsection (i) any acquisition of securities directly from the Company shall not constitute a Change in Control; or


 


(ii)       The
consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets;


 


(iii)       A
change in the composition of the Board occurring within a two-year period, as a result of which fewer than a majority of the directors
are Incumbent Directors. “Incumbent Directors” means directors who either (A) are Directors as of the effective date of the
Plan, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors
at the time of such election or nomination (but will not include an individual whose election or nomination is in connection with an actual
or threatened proxy contest relating to the election of directors to the Company); or


 


(iv)       The
consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or
consolidation.


 






     


     


    

 


For avoidance of doubt, a
transaction will not constitute a Change in Control if: (i) its sole purpose is the change the state of the Company’s incorporation,
or (ii) its sole purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held
the Company’s securities immediately before such transaction.


 


“Code”
means the Internal Revenue Code of 1986, as amended. Any reference in the Plan to a section of the Code will be a reference to any successor
or amended section of the Code.


 


“Committee”
means a committee of Directors or of other individuals satisfying Applicable Laws appointed by the Board in accordance with Section 4
hereof.


 


“Common Stock”
means the common stock of the Company.


 


“Company”
means Ideanomics, Inc., a Nevada corporation, or any successor thereto.


 


“Consultant”
means any person, including an advisor, engaged by the Company or a Parent or Subsidiary to render services to such entity.


 


“Director”
means a member of the Board.


 


“Disability”
means total and permanent disability as determined by the Administrator in its discretion in accordance with uniform and non-discriminatory
standards adopted by the Administrator from time to time.


 


“Employee”
means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary of the Company. Neither service
as a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment” by the Company.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 


“Exchange Program”
means a program under which (i) outstanding Awards are surrendered or cancelled in exchange for Awards of the same type (which may have
lower exercise prices and different terms), Awards of a different type and/or cash, and/or (ii) the exercise price of an outstanding Award
is reduced.


 


“Fair Market Value”
means, as of any date, the value of Common Stock determined as follows:


 


(i)       If
the Common Stock is listed on any established stock exchange or a national market system, including without limitation any division or
subdivision of the Nasdaq Stock Market, its Fair Market Value will be the closing sales price for such stock (or the closing bid, if no
sales were reported) as quoted on such exchange or system on the day of determination, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable;


 


(ii)       If
the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, including without limitation
quotation through the over the counter bulletin board (“OTCBB”) quotation service administered by the Financial Industry Regulatory
Authority (“FINRA”) , the Fair Market Value of a Share will be the mean between the high bid and low asked prices for the
Common Stock on the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
or


 


(iii)       In
the absence of an established market for the Common Stock, the Fair Market Value will be determined in good faith by the Administrator,
and to the extent Section 15 applies (a) with respect to ISOs, the Fair Market Value shall be determined in a manner consistent with Code
section 422 or (b) with respect to NSOs or SARs, the Fair Market Value shall be determined in a manner consistent with Code section 409A.


 


“Fiscal Year”
means the fiscal year of the Company.


 






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“Grant Date”
means, for all purposes, the date on which the Administrator determines to grant an Award, or such other later date as is determined by
the Administrator, provided that the Administrator cannot grant an Award prior to the date the material terms of the Award are established.
Notice of the Administrator’s determination to grant an Award will be provided to each Participant within a reasonable time after
the Grant Date.


 


“Incentive Stock
Option” or “ISO” means an Option that by its terms qualifies and is otherwise intended to qualify as an incentive
stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.


 


“Nonstatutory Stock
Option” or “NSO” means an Option that by its terms does not qualify or is not intended to qualify as an ISO.


 


“Officer”
means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder.


 


“Option”
means a stock option granted pursuant to the Plan.


 


“Optioned Shares”
means the Common Stock subject to an Option.


 


“Optionee”
means the holder of an outstanding Option.


 


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


 


“Participant”
means the holder of an outstanding Award.


 


“Performance Share”
means an Award denominated in Shares which may vest in whole or in part upon attainment of performance goals or other vesting criteria
as the Administrator may determine pursuant to Section 10.


 


“Performance Unit”
means an Award which may vest in whole or in part upon attainment of performance goals or other vesting criteria as the Administrator
may determine and which may be settled for cash, Shares or other securities or a combination of the foregoing pursuant to Section 10.


 


“Period of Restriction”
means the period during which Shares of Restricted Stock are subject to forfeiture or restrictions on transfer pursuant to Section 7.


 


“Plan”
means this 2010 Equity Incentive Plan.


 


“Restricted Stock”
means Shares awarded to a Participant which are subject to forfeiture and restrictions on transferability in accordance with Section 7.


 


“Restricted Stock
Unit” means the right to receive one Share at the end of a specified period of time, which right is subject to forfeiture in
accordance with Section 8 of the Plan.


 


“Rule 16b-3”
means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3.


 


“Section”
means a paragraph or section of this Plan.


 


“Section 16(b)”
means Section 16(b) of the Exchange Act.


 


“Service Provider”
means an Employee, Director or Consultant.


 


“Share”
means a share of the Common Stock, as adjusted in accordance with Section 13.


 


“Stock
Appreciation Right” or “SAR” means the right to receive payment from the Company in an amount no
greater than the excess of the Fair Market Value of a Share at the date the SAR is exercised over a specified price fixed by the
Administrator in the Award Agreement, which shall not be less than the Fair Market Value of a Share on the Grant Date. In the case
of a SAR which is granted in connection with an Option, the specified price shall be the Option exercise price.


 






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


 


“Ten Percent Owner”
means any Service Provider who is, on the grant date of an ISO, the owner of Shares (determined with application of ownership attribution
rules of Code Section 424(d)) possessing more than 10% of the total combined voting power of all classes of stock of the Company or any
of its Subsidiaries.


 


3.             Stock
Subject to the Plan.


 


a.             Stock
Subject to the Plan. Subject to the provisions of Section 13, the maximum aggregate number of Shares that may be issued under the
Plan is one hundred twenty million (120,000,000) Shares. The Shares may be authorized but unissued, or reacquired Common Stock.


 


b.            Lapsed
Awards. If an Award expires or becomes unexercisable without having been exercised in full or, with respect to Restricted Stock, Restricted
Stock Units, Performance Shares or Performance Units, is forfeited in whole or in part to the Company, the unpurchased Shares (or for
Awards other than Options and SARs, the forfeited or unissued Shares) which were subject to the Award will become available for future
grant or sale under the Plan (unless the Plan has terminated). With respect to SARs, only Shares actually issued pursuant to a SAR will
cease to be available under the Plan; all remaining Shares subject to the SARs will remain available for future grant or sale under the
Plan (unless the Plan has terminated). Shares that have actually been issued under the Plan under any Award will not be returned to the
Plan and will not become available for future distribution under the Plan; provided, however, that if Shares issued pursuant to Awards
of Restricted Stock, Restricted Stock Units, Performance Shares or Performance Units are forfeited to the Company, such Shares will become
available for future grant under the Plan. Shares withheld by the Company to pay the exercise price of an Award or to satisfy tax withholding
obligations with respect to an Award will become available for future grant or sale under the Plan. To the extent an Award under the Plan
is paid out in cash rather than Shares, such cash payment will not result in reducing the number of Shares available for issuance under
the Plan.


 


c.            Share
Reserve. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of the Plan.


 


4.             Administration
of the Plan.


 


a.             Procedure.
The Plan shall be administered by the Board or a Committee (or Committees) appointed by the Board, which Committee shall be constituted
to comply with Applicable Laws. If and so long as the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, the
Board shall consider in selecting the Administrator and the membership of any committee acting as Administrator the requirements regarding
(i) “nonemployee directors” within the meaning of Rule 16b-3 under the Exchange Act; (ii) “independent directors”
as described in the listing requirements for any stock exchange on which Shares are listed; and (iii) Section 15(b)(i) of the Plan if
the Company pays salaries for which it claims deductions that are subject to the Code section 162(m) limitation on its U.S. tax returns.
The Board may delegate the responsibility for administering the Plan with respect to designated classes of eligible Participants to different
committees consisting of two or more members of the Board, subject to such limitations as the Board or the Administrator deems appropriate.
Committee members shall serve for such term as the Board may determine, subject to removal by the Board at any time.


  


b.            Powers
of the Administrator. Subject to the provisions of the Plan and the approval of any relevant authorities, and in the case of a Committee,
subject to the specific duties delegated by the Board to such Committee, the Administrator will have the authority, in its discretion:


 


i.              to
determine the Fair Market Value;


 


ii.             to
select the Service Providers to whom Awards may be granted hereunder;


 






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iii.            to
determine the number of Shares to be covered by each Award granted hereunder;


 


iv.            to
approve forms of agreement for use under the Plan;


 


v.             to
determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder. Such terms and conditions
include, but are not limited to, the exercise price, the time or times when Awards may be exercised (which may be based on continued employment,
continued service or performance criteria), any vesting acceleration (whether by reason of a Change of Control or otherwise) or waiver
of forfeiture restrictions, and any restriction or limitation regarding any Award or the Shares relating thereto, based in each case on
such factors as the Administrator, in its sole discretion, will determine;


 


vi.           subject
to Section 15(c) of the Plan, to reduce, without prior stockholder approval, the exercise price of any Award to the then current Fair
Market Value of the Common Stock covered by such Award if the Fair Market Value has declined since the Grant Date;


 


vii.            to
construe and interpret the terms of the Plan and Awards granted pursuant to the Plan, including the right to construe disputed or doubtful
Plan and Award provisions;


 


viii.          to
prescribe, amend and rescind rules and regulations relating to the Plan;


 


ix.            to
modify or amend each Award (subject to Section 19(c)) to the extent any modification or amendment is consistent with the terms of the
Plan. The Administrator shall have the discretion to extend the exercise period of Options generally provided the exercise period is not
extended beyond the earlier of the original term of the Option or 10 years from the original grant date, or specifically (1) if the exercise
period of an Option is extended (but to no more than 10 years from the original grant date) at a time when the exercise price equals or
exceeds the fair market value of the Optioned Shares or (2) an Option cannot be exercised because such exercise would violate Applicable
Laws, provided that the exercise period is not extended more than 30 days after the exercise of the Option would no longer violate Applicable
Laws.


 


x.             to
allow Participants to satisfy withholding tax obligations in such manner as prescribed in Section 14;


 


xi.            to
authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Award previously granted by
the Administrator;


 


xii.           to
delay issuance of Shares or suspend Participant’s right to exercise an Award as deemed necessary to comply with Applicable Laws


 


xiii.          to
make all other determinations deemed necessary or advisable for administering the Plan.


 


c.            Effect
of Administrator’s Decision. The Administrator’s decisions, determinations and interpretations will be final and binding
on all Participants and any other holders of Awards. Any decision or action taken or to be taken by the Administrator, arising out of
or in connection with the construction, administration, interpretation and effect of the Plan and of its rules and regulations, shall,
to the maximum extent permitted by Applicable Laws, be within its absolute discretion (except as otherwise specifically provided in the
Plan) and shall be final, binding and conclusive upon the Company, all Participants and any person claiming under or through any Participant.


 


5.             Eligibility.
NSOs, Restricted Stock, Restricted Stock Units, SARs, Performance Units and Performance Shares may be granted to Service Providers. ISOs
may be granted as specified in Section 15(a).


 






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6.            Stock
Options.


 


a.             Grant
of Options. Subject to the terms and conditions of the Plan, the Administrator, at any time and from time to time, may grant Options
to Service Providers in such amounts as the Administrator will determine in its sole discretion. For purposes of the foregoing sentence,
Service Providers shall include prospective employees or consultants to whom Options are granted in connection with written offers of
employment or engagement of services, respectively, with the Company; provided that no Option granted to a prospective employee or consultant
may be exercised prior to the commencement of employment or services with the Company. The Administrator may grant NSOs, ISOs, or any
combination of the two. ISOs shall be granted in accordance with Section 15(a) of the Plan.


 


b.             Option
Award Agreement. Each Option shall be evidenced by an Award Agreement that shall specify the type of Option granted, the Option price,
the exercise date, the term of the Option, the number of Shares to which the Option pertains, and such other terms and conditions (which
need not be identical among Participants) as the Administrator shall determine in its sole discretion. If the Award Agreement does not
specify that the Option is to be treated as an ISO, the Option shall be deemed a NSO.


 


c.             Exercise
Price. The per Share exercise price for the Shares to be issued pursuant to exercise of an Option will be no less than the Fair Market
Value per Share on the Grant Date.


 


d.             Term
of Options. The term of each Option will be stated in the Award Agreement. Unless terminated sooner in accordance with the remaining
provisions of this Section 6, each Option shall expire either ten (10) years after the Grant Date, or after a shorter term as may be fixed
by the Board.


 


e.             Time
and Form of Payment.


 


i.              Exercise
Date. Each Award Agreement shall specify how and when Shares covered by an Option may be purchased. The Award Agreement may specify
waiting periods, the dates on which Options become exercisable or “vested” and, subject to the termination provisions of this
section, exercise periods. The Administrator may accelerate the exercisability of any Option or portion thereof.


 


ii.              Exercise
of Option. Any Option granted hereunder will be exercisable according to the terms of the Plan and at such times and under such conditions
as determined by the Administrator and set forth in the Award Agreement. An Option may not be exercised for a fraction of a Share. An
Option will be deemed exercised when the Company receives: (1) notice of exercise (in such form as the Administrator specify from time
to time) from the person entitled to exercise the Option, and (2) full payment for the Shares with respect to which the Option is exercised
(together with all applicable withholding taxes). Full payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Award Agreement and the Plan (together with all applicable withholding taxes). Shares issued upon exercise
of an Option will be issued in the name of the Optionee or, if requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent
of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Optioned Shares,
notwithstanding the exercise of the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised.
No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except
as provided in Section 13.


 


iii.            Payment.
The Administrator will determine the acceptable form of consideration for exercising an Option, including the method of payment. Such
consideration may consist entirely of:


 


(1)                cash;


 


(2)                check;


 


(3)                to
the extent not prohibited by Section 402 of the Sarbanes-Oxley Act of 2002, a promissory note;


 


(4)                other
Shares, provided Shares have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which
said Option will be exercised;


 






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(5)                to
the extent not prohibited by Section 402 of the Sarbanes-Oxley Act of 2002, in accordance with any broker-assisted cashless exercise procedures
approved by the Company and as in effect from time to time;


 


(6)                by
asking the Company to withhold Shares from the total Shares to be delivered upon exercise equal to the number of Shares having a value
equal to the aggregate Exercise Price of the Shares being acquired;


 


(7)                any
combination of the foregoing methods of payment; or


 


(8)                such
other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable Laws.


 


f.              Forfeiture
of Options. All unexercised Options shall be forfeited to the Company in accordance with the terms and conditions set forth in the
Award Agreement and again will become available for grant under the Plan.


 


7.             Restricted
Stock.


 


a.             Grant
of Restricted Stock. Subject to the terms and conditions of the Plan, the Administrator, at any time and from time to time, may grant
Shares of Restricted Stock to Service Providers in such amounts as the Administrator will determine in its sole discretion.


 


b.             Restricted
Stock Award Agreement. Each Award of Restricted Stock will be evidenced by an Award Agreement that will specify the Period of Restriction,
the number of Shares granted, and such other terms and conditions (which need not be identical among Participants) as the Administrator
will determine in its sole discretion. Unless the Administrator determines otherwise, the Company as escrow agent will hold Shares of
Restricted Stock until the restrictions on such Shares have lapsed.


 


c.             Vesting
Conditions and Other Terms.


 


i.              Vesting
Conditions. The Administrator, in its sole discretion, may impose such conditions on the vesting of Shares of Restricted Stock as
it may deem advisable or appropriate, including but not limited to, achievement of Company- wide, business unit, or individual goals (including,
but not limited to, continued employment or service), or any other basis determined by the Administrator in its discretion. The Administrator,
in its discretion, may accelerate the time at which any restrictions will lapse or be removed. The Administrator may, in its discretion,
also provide for such complete or partial exceptions to an employment or service restriction as it deems equitable.


 


ii.             Voting
Rights. During the Period of Restriction, Service Providers holding Shares of Restricted Stock granted hereunder may exercise full
voting rights with respect to those Shares, unless the Administrator determines otherwise.


 


iii.            Dividends
and Other Distributions. During the Period of Restriction, Service Providers holding Shares of Restricted Stock will be entitled to
receive all dividends and other distributions paid with respect to such Shares, unless the Administrator determines otherwise. If any
such dividends or distributions are paid in Shares, the Shares will be subject to the same restrictions on transferability and forfeitability
as the Shares of Restricted Stock with respect to which they were paid.


 


iv.            Transferability.
Except as provided in this Section, Shares of Restricted Stock may not be sold, transferred, pledged, assigned, or otherwise alienated
or hypothecated until the end of the applicable Period of Restriction.


 


d.            Removal
of Restrictions. All restrictions imposed on Shares of Restricted Stock shall lapse and the Period of Restriction shall end upon
the satisfaction of the vesting conditions imposed by the Administrator. Vested Shares of Restricted Stock will be released from
escrow as soon as practicable after the last day of the Period of Restriction or at such other time as the Administrator may
determine, but in no event later than the 15th day of the third month following the end of the year in which vesting occurred.


 


e.             Forfeiture
of Restricted Stock. On the date set forth in the Award Agreement, the Shares of Restricted Stock for which restrictions have not
lapsed will be forfeited and revert to the Company and again will become available for grant under the Plan.


 






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8.             Restricted
Stock Units.


 


a.             Grant
of Restricted Stock Units. Subject to the terms and conditions of the Plan, the Administrator, at any time and from time to time,
may grant Restricted Stock Units to Service Providers in such amounts as the Administrator will determine in its sole discretion.


 


b.             Restricted
Stock Units Award Agreement. Each Award of Restricted Stock Units will be evidenced by an Award Agreement that will specify the number
of Restricted Stock Units granted, vesting criteria, form of payout, and such other terms and conditions (which need not be identical
among Participants) as the Administrator will determine in its sole discretion.


 


c.             Vesting
Conditions. The Administrator shall set vesting criteria in its discretion, which, depending on the extent to which the criteria are
met, will determine the number of Restricted Stock Units that will be paid out to the Participant. The Administrator may set vesting criteria
based upon the achievement of Company-wide, business unit, or individual goals (including, but not limited to, continued employment or
service), or any other basis determined by the Administrator in its discretion. At any time after the grant of Restricted Stock Units,
the Administrator, in its sole discretion, may reduce or waive any vesting criteria that must be met to receive a payout.


 


d.             Time
and Form of Payment. Upon satisfaction of the applicable vesting conditions, payment of vested Restricted Stock Units shall occur
in the manner and at the time provided in the Award Agreement, but in no event later than the 15th day of the third month following the
end of the year in which vesting occurred. Except as otherwise provided in the Award Agreement, Restricted Stock Units may be paid in
cash, Shares, or a combination thereof at the sole discretion of the Administrator. Restricted Stock Units that are fully paid in cash
will not reduce the number of Shares available for issuance under the Plan.


 


e.              Forfeiture
of Restricted Stock Units. All unvested Restricted Stock Units shall be forfeited to the Company on the date set forth in the Award
Agreement and again will become available for grant under the Plan.


 


9.             Stock
Appreciation Rights.


 


a.             Grant
of SARs. Subject to the terms and conditions of the Plan, the Administrator, at any time and from time to time, may grant SARs to
Service Providers in such amounts as the Administrator will determine in its sole discretion.


 


b.            Award
Agreement. Each SAR grant will be evidenced by an Award Agreement that will specify the exercise price, the number of Shares underlying
the SAR grant, the term of the SAR, the conditions of exercise, and such other terms and conditions (which need not be identical among
Participants) as the Administrator will determine in its sole discretion.


 


c.             Exercise
Price and Other Terms. The per Share exercise price for the exercise of an SAR will be no less than the Fair Market Value per Share
on the Grant Date.


 


d.             Time
and Form of Payment of SAR Amount. Upon exercise of a SAR, a Participant will be entitled to receive payment from the Company in an
amount no greater than: (i) the difference between the Fair Market Value of a Share on the date of exercise over the exercise price; times
(ii) the number of Shares with respect to which the SAR is exercised. An Award Agreement may provide for a SAR to be paid in cash, Shares
of equivalent value, or a combination thereof.


 


e.             Forfeiture
of SARs. All unexercised SARs shall be forfeited to the Company in accordance with the terms and conditions set forth in the Award
Agreement and again will become available for grant under the Plan.


 






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10.           Performance
Units and Performance Shares.


 


a.             Grant
of Performance Units and Performance Shares. Performance Units or Performance Shares may be granted to Service Providers at any time
and from time to time, as will be determined by the Administrator, in its sole discretion. The Administrator will have complete discretion
in determining the number of Performance Units and Performance Shares granted to each Participant.


 


b.             Award
Agreement. Each Award of Performance Units and Shares will be evidenced by an Award Agreement that will specify the initial value,
the Performance Period, the number of Performance Units or Performance Shares granted, and such other terms and conditions (which need
not be identical among Participants) as the Administrator will determine in its sole discretion.


 


c.             Value
of Performance Units and Performance Shares. Each Performance Unit will have an initial value that is established by the Administrator
on or before the Grant Date. Each Performance Share will have an initial value equal to the Fair Market Value of a Share on the Grant
Date.


 


d.             Vesting
Conditions and Performance Period. The Administrator will set performance objectives or other vesting provisions (including, without
limitation, continued status as a Service Provider) in its discretion which, depending on the extent to which they are met, will determine
the number or value of Performance Units or Performance Shares that will be paid out to the Service Providers. The time period during
which the performance objectives or other vesting provisions must be met will be called the “Performance Period.” The Administrator
may set performance objectives based upon the achievement of Company-wide, divisional, or individual goals or any other basis determined
by the Administrator in its discretion.


 


e.              Time
and Form of Payment. After the applicable Performance Period has ended, the holder of Performance Units or Performance Shares will
be entitled to receive a payout of the number of vested Performance Units or Performance Shares by the Participant over the Performance
Period, to be determined as a function of the extent to which the corresponding performance objectives or other vesting provisions have
been achieved. Vested Performance Units or Performance Shares will be paid as soon as practicable after the expiration of the applicable
Performance Period, but in no event later than the 15th day of the third month following the end of the year the applicable Performance
Period expired. An Award Agreement may provide for the satisfaction of Performance Unit or Performance Share Awards in cash or Shares
(which have an aggregate Fair Market Value equal to the value of the vested Performance Units or Performance Shares at the close of the
applicable Performance Period) or in a combination thereof.


 


f.              Forfeiture
of Performance Units and Performance Shares. All unvested Performance Units or Performance Shares will be forfeited to the Company
on the date set forth in the Award Agreement, and again will become available for grant under the Plan.


 


11.           Leaves
of Absence/Transfer Between Locations. Unless the Administrator provides otherwise or as required by Applicable Laws, vesting of Awards
will be suspended during any unpaid leave of absence. An Employee will not cease to be an Employee in the case of (i) any leave of absence
approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, or any Subsidiary.


 


12.          Transferability
of Awards. Unless determined otherwise by the Administrator, an Award may not be sold, pledged, assigned, hypothecated, transferred,
or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of
the Participant, only by the Participant. If the Administrator makes an Award transferable, such Award will contain such additional terms
and conditions as the Administrator deems appropriate.


 






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13.          Adjustments;
Dissolution or Liquidation; Merger or Change in Control.


 


a.             Adjustments.
In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization,
stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares
or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator,
in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under the Plan, shall
appropriately adjust the number and class of Shares that may be delivered under the Plan and/or the number, class, and price of Shares
covered by each outstanding Award.


 


b.            Dissolution
or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Administrator will notify each Participant
as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not been previously exercised, an
Award will terminate immediately prior to the consummation of such proposed action.


 


c.             Change
in Control. In the event of a merger or Change in Control, any or all outstanding Awards may be assumed by the successor corporation,
which assumption shall be binding on all Participants. In the alternative, the successor corporation may substitute equivalent Awards
(after taking into account the existing provisions of the Awards). The successor corporation may also issue, in place of outstanding Shares
of the Company held by the Participant, substantially similar shares or other property subject to vesting requirements and repurchase
restrictions no less favorable to the Participant than those in effect prior to the merger or Change in Control.


 


In the event that the successor
corporation does not assume or substitute for the Award, unless the Administrator provides otherwise, the Participant will fully vest
in and have the right to exercise all of his or her outstanding Options and SARs, including Shares as to which such Awards would not otherwise
be vested or exercisable, all restrictions on Restricted Stock and Restricted Stock Units will lapse, and, with respect to Performance
Shares and Performance Units, all Performance Goals or other vesting criteria will be deemed achieved at target levels and all other terms
and conditions met. In addition, if an Option or SAR is not assumed or substituted in the event of a Change in Control, the Administrator
will notify the Participant in writing or electronically that the Option or SAR will be exercisable for a period of time determined by
the Administrator in its sole discretion, and the Option or SAR will terminate upon the expiration of such period.


 


For the purposes of this Section
13(c), an Award will be considered assumed if, following the Change in Control, the Award confers the right to purchase or receive, for
each Share subject to the Award immediately prior to the Change in Control, the consideration (whether stock, cash, or other securities
or property) or, in the case of a SAR upon the exercise of which the Administrator determines to pay cash or a Performance Share or Performance
Unit which the Administrator can determine to pay in cash, the fair market value of the consideration received in the merger or Change
in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice
of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if
such consideration received in the Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator
may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of an Option or SAR
or upon the payout of a Restricted Stock Unit, Performance Share or Performance Unit, for each Share subject to such Award (or in the
case of Restricted Stock Units and Performance Units, the number of implied shares determined by dividing the value of the Restricted
Stock Units and Performance Units, as applicable, by the per share consideration received by holders of Common Stock in the Change in
Control), to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration
received by holders of Common Stock in the Change in Control.


 


Notwithstanding anything in
this Section 13(c) to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more performance goals
will not be considered assumed if the Company or its successor modifies any of such performance goals without the Participant's consent;
provided, however, a modification to such performance goals only to reflect the successor corporation's post-Change in Control corporate
structure will not be deemed to invalidate an otherwise valid Award assumption.


 






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14.           Tax
Withholding.


 


a.            Withholding
Requirements. Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof), the Company will have the power
and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state,
local, foreign or other taxes required by Applicable Laws to be withheld with respect to such Award (or exercise thereof).


 


b.             Withholding
Arrangements. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit
a Participant to satisfy such tax withholding obligation, in whole or in part by (without limitation) (i) paying cash, (ii) electing to
have the Company withhold otherwise deliverable Shares having a Fair Market Value equal to the amount required to be withheld, or (iii)
delivering to the Company already-owned Shares having a Fair Market Value equal to the amount required to be withheld. The amount of the
withholding requirement will be deemed to include any amount which the Administrator agrees may be withheld at the time the election is
made. The Fair Market Value of the Shares to be withheld or delivered will be determined as of the date that the taxes are required to
be withheld.


 


15.         
 Provisions Applicable In the Event the Company or the Service Provider is Subject to U.S. Taxation.


 


a.             Grant
of Incentive Stock Options. If the Administrator grants Options to Employees subject to U.S. taxation, the Administrator may grant
such Employee an ISO and the following terms shall also apply:


 


i.               Maximum
Amount. Subject to the provisions of Section 13, to the extent consistent with Section 422 of the Code, not more than an aggregate
of one hundred twenty million (120,000,000) Shares may be issued as ISOs under the Plan.


 


ii.              General
Rule. Only Employees shall be eligible for the grant of ISOs.


 


iii.            Continuous
Employment. The Optionee must remain in the continuous employ of the Company or its Subsidiaries from the date the ISO is granted
until not more than three months before the date on which it is exercised. A leave of absence approved by the Company may exceed ninety
(90) days if reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of a leave
of absence approved by the Company is not so guaranteed, then three (3) months following the ninety-first (91st) day of such leave any
ISO held by the Optionee will cease to be treated as an ISO.


 


iv.            Award
Agreement.


 


(1)                The
Administrator shall designate Options granted as ISOs in the Award Agreement. Notwithstanding such designation, to the extent that the
aggregate Fair Market Value of the Shares with respect to which ISOs are exercisable for the first time by the Optionee during any calendar
year (under all plans of the Company and any Parent or Subsidiary) exceeds one hundred thousand dollars ($100,000), Options will not qualify
as an ISO. For purposes of this section, ISOs will be taken into account in the order in which they were granted. The Fair Market Value
of the Shares will be determined as of the time the Option with respect to such Shares is granted.


 


(2)                The
Award Agreement shall specify the term of the ISO. The term shall not exceed ten (10) years from the Grant Date or five (5) years from
the Grant Date for Ten Percent Owners.


 


(3)                The
Award Agreement shall specify an exercise price of not less than the Fair Market Value per Share on the Grant Date or one hundred ten
percent (110%) of the Fair Market Value per Share on the Grant Date for Ten Percent Owners.


 


(4)                The
Award Agreement shall specify that an ISO is not transferable except by will, beneficiary designation or the laws of descent and distribution.


 


v.            Form
of Payment. The consideration to be paid for the Shares to be issued upon exercise of an ISO, including the method of payment, shall
be determined by the Administrator at the time of grant in accordance with Section 6(e)(iii). 


 






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vi.            “Disability”,
for purposes of an ISO, means total and permanent disability as defined in Section 22(e)(3) of the Code.


 


vii.           Notice.
In the event of any disposition of the Shares acquired pursuant to the exercise of an ISO within two years from the Grant Date or one
year from the exercise date, the Optionee will notify the Company thereof in writing within thirty (30) days after such disposition. In
addition, the Optionee shall provide the Company with such information as the Company shall reasonably request in connection with determining
the amount and character of Optionee’s income, the Company’s deduction, and the Company’s obligation to withhold taxes
or other amounts incurred by reason of a disqualifying disposition, including the amount thereof.


 


b.             Performance-based
Compensation. If the Company pays salaries for which it claims deductions that are subject to the Code section 162(m) limitation on
its U.S. tax returns, then the following terms shall be applied in a manner consistent with the requirements of, and only to the extent
required for compliance with, the exclusion from the limitation on deductibility of compensation under Code Section 162(m):


 


i.              Outside
Directors. The Board shall consider in selecting the Administrator and the membership of any committee acting as Administrator the
provisions regarding “outside directors” within the meaning of Code Section 162(m).


 


ii.             Maximum
Amount.


 


(1)                Subject
to the provisions of Section 13, the maximum number of Shares that can be awarded to any individual Participant in the aggregate in any
one fiscal year of the Company is one hundred million (100,000,000) Shares;


 


(2)                For
Awards denominated in Shares and satisfied in cash, the maximum Award to any individual Participant in the aggregate in any one fiscal
year of the Company is the Fair Market Value of fifty million (50,000,000) Shares on the Grant Date; and


 


(3)                The
maximum amount payable pursuant to any cash Awards to any individual Participant in the aggregate in any one fiscal year of the Company
is the Fair Market Value of fifty million (50,000,000) Shares on the Grant Date.


 


iii.           Performance
Criteria. All performance criteria must be objective and be established in writing prior to the beginning of the performance period
or at later time as permitted by Code Section 162(m). Performance criteria may include alternative and multiple performance goals and
may be based on one or more business and/or financial criteria. In establishing the performance goals, the Committee in its discretion
may include one or any combination of the following criteria in either absolute or relative terms, for the Company or any Subsidiary:


 


(1)                Increased
revenue;


 


(2)                Net
income measures (including but not limited to income after capital costs and income before or after taxes);


 


(3)                Stock
price measures (including but not limited to growth measures and total stockholder return);


 


(4)                Market
share;


 


(5)                Earnings
per Share (actual or targeted growth);


 


(6)                Earnings
before interest, taxes, depreciation, and amortization (“EBITDA”);


  


(7)                Cash
flow measures (including but not limited to net cash flow and net cash flow before financing activities);


 









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(8)                Return
measures (including but not limited to return on equity, return on average assets, return on capital, risk-adjusted return on capital,
return on investors’ capital and return on average equity);


 


(9)                Operating
measures (including operating income, funds from operations, cash from operations, after-tax operating income, sales volumes, production
volumes, and production efficiency);


 


(10)             Expense
measures (including but not limited to overhead cost and general and administrative expense);


 


(11)             Margins;


 


(12)             Stockholder
value;


 


(13)             Total
stockholder return;


 


(14)             Proceeds
from dispositions;


 


(15)             Production
volumes;


 


(16)             Total
market value; and


 


(17)             Corporate
values measures (including but not limited to ethics compliance, environmental, and safety).


 


c.             Stock
Options and SARs Exempt from Code section 409A. If the Administrator grants Options or SARs to Employees subject to U.S. taxation
the Administrator may not modify or amend the Options or SARs to the extent that the modification or amendment adds a feature allowing
for additional deferral within the meaning of Code section 409A.


 


16.          No
Effect on Employment or Service. Neither the Plan nor any Award will confer upon any Participant any right with respect to continuing
the Participant's relationship as a Service Provider with the Company or any Parent or Subsidiary of the Company, nor will they interfere
in any way with the Participant's right or the Company's or its Parent’s or Subsidiary’s right to terminate such relationship
at any time, with or without cause, to the extent permitted by Applicable Laws.


 


17.           Effective
Date. The Plan’s effective date is the date on which it is adopted by the Board, so long as it is approved by the Company’s
stockholders at any time within 12 months of such adoption. Upon approval of the Plan by the stockholders of the Company, all Awards issued
pursuant to the Plan on or after the Effective Date shall be fully effective as if the stockholders of the Company had approved the Plan
on the Effective Date. If the stockholders fail to approve the Plan within one year before or after the Effective Date, any Awards made
hereunder shall be null and void and of no effect.


 


18.           Term
of Plan. The Plan will terminate 10 years following the earlier of (i) the date it was adopted by the Board or (ii) the date it became
effective upon approval by stockholders of the Company, unless sooner terminated by the Board pursuant to Section 19.


 


19.           Amendment
and Termination of the Plan.


 


a.             Amendment
and Termination. The Board may at any time amend, alter, suspend or terminate the Plan.


 


b.            Stockholder
Approval. The Company will obtain stockholder approval of any Plan amendment to the extent necessary and desirable to comply with
Applicable Laws.


 






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c.              Effect
of Amendment or Termination. No amendment, alteration, suspension or termination of the Plan will impair the rights of any Participant,
unless mutually agreed otherwise between the Participant and the Administrator, which agreement must be in writing and signed by the Participant
and the Company. Termination of the Plan will not affect the Administrator's ability to exercise the powers granted to it hereunder with
respect to Awards granted under the Plan prior to the date of such termination.


 


20.           Conditions
Upon Issuance of Shares.


 


a.             Legal
Compliance. The Administrator may delay or suspend the issuance and delivery of Shares, suspend the exercise of Options or SARs, or
suspend the Plan as necessary to comply Applicable Laws. Shares will not be issued pursuant to the exercise of an Award unless the exercise
of such Award and the issuance and delivery of such Shares will comply with Applicable Laws and will be further subject to the approval
of counsel for the Company with respect to such compliance.


 


b.             Investment
Representations. As a condition to the exercise of an Award, the Company may require the person exercising such Award to represent
and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention
to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required.


 


21.           Inability
to Obtain Authority. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, will relieve the Company
of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority will not have been obtained.


 


22.           Exchange
Programs. The Administrator may authorize the Company, without prior stockholder approval, to institute one or more Exchange Programs.
An Exchange Program may, at the discretion of the Administrator, be offered to individual Participants selected by the Administrator on
a case-by-case basis, or to a class of Participants identified by the Administrator. The terms and conditions of any Exchange Program
will be determined by the Administrator in its sole discretion, not inconsistent with the terms of the Plan, including without limitation,
Section 15(c); provided however, that no Exchange Program may adversely affect the rights of a Participant under an outstanding Award
unless the Participant consents in writing to be bound by the terms and conditions of the Exchange Program.


 


23.           Substitution
and Assumption of Awards. The Administrator may make Awards under the Plan that assume, substitute or replace performance shares,
phantom shares, stock awards, stock options, stock appreciation rights or similar awards granted by another entity (including a Parent
or Subsidiary), if such assumption, substitution or replacement is in connection with an asset acquisition, stock acquisition, merger,
consolidation or similar transaction involving the Company (and/or its Parent or Subsidiary) and such other entity (and/or its affiliate).
The Administrator may also cause the Plan to assume an equity-based award granted by the Company prior to the adoption and approval of
the Plan or substitute or replace such prior award with a similar type of Award under this Plan. Notwithstanding any provision of the
Plan (other than the maximum number of shares of Common Stock that may be issued under the Plan), ,(i) in the case of an Award that assumes,
substitutes or replaces an award of another entity pursuant to a corporate transaction, such Award shall be subject to the same terms
and conditions as the original award, with such adjustments or modifications as the Administrator deems necessary and appropriate to give
effect to the relevant provisions of any agreement entered into in connection with the such corporate transaction or (ii) in the case
of an Award that assumes, substitutes or replaces a prior Company award, such Award shall be subject to the same terms and conditions
as the original award, except to the extent that any such term or condition is inconsistent with the Plan, in which event the terms of
the Plan shall control. Notwithstanding the foregoing, in no event may the assumption, substitution or replacement of a prior Company
award with an Award under the Plan adversely affect the Participant’s rights under the prior Company award unless the Participant
consents in writing to such assumption, substitution or replacement. Shares issued pursuant to assumed, substituted or replaced awards
shall count against the total number of shares authorized to be issued under the Plan pursuant to Section 3.


 


24.           Governing
Law. The Plan and all Agreements shall be construed in accordance with and governed by the laws of the State of Nevada.


 






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