Exhibit 10.1


 


BIO-PATH
HOLDINGS, INC.

2022 STOCK INCENTIVE PLAN


 


On October 17, 2022, the
board of directors of Bio-Path Holdings, Inc., a Delaware corporation, adopted this Bio-Path Holdings, Inc. 2022 Stock Incentive Plan
subject to the approval of the stockholders in accordance with the bylaws of Bio-Path Holdings, Inc.


 


SECTION
1. PURPOSE OF THIS PLAN


 


1.1          Eligible Award Recipients. The individuals eligible to receive Awards are the Employees, Directors, and Consultants
of Bio-Path Holdings, Inc. (the “Company”) and its Affiliates.


 


1.2          General Purpose. The Company, by means of the Bio-Path Holdings, Inc. 2022 Stock Incentive Plan (the “Plan”),
seeks to retain and attract Employees, Directors and Consultants who contribute to the Company’s success by their ability, ingenuity
and industry and to enable such Persons to participate in the long-term success and growth of the Company through the granting of the
following Awards: (i) Incentive Stock Options, (ii) Non-Qualified Stock Options, (iii) Restricted Shares, (iv) Restricted Share Units,
(v) Stock Appreciation Rights, or (vi) any other award the Plan Administrator, in its sole and absolute discretion, deems appropriate
to meet the objectives of this Plan.


 


SECTION
2. DEFINITIONS


 


As used in this Plan, the
following terms shall have the meanings set forth below unless the context requires otherwise:


 


2.1          “Affiliate” shall mean, when used hereunder in connection with an Incentive Stock Option, any Parent
Corporation or Subsidiary Corporation; when used hereunder in connection a Non-Qualified Stock Option or other Award intended to be exempt
from Section 409A of the Code, any entity related to the Company under Section 414 of the Code, as modified by Section 409A of the Code;
and for all other purposes hereunder, any entity controlling, controlled by, or under common control with the Company, in all instances,
whether now or hereafter existing.


 


2.2          “Award” shall mean the grant under this Plan of a Stock Option, a Stock Appreciation Right, a Restricted
Share, a Restricted Share Unit or any other grant of incentive compensation pursuant to this Plan.


 


2.3          “Award Agreement” shall mean the written agreement evidencing the terms and conditions of a grant
of one or more Awards under this Plan to an Eligible Individual. Each Award Agreement shall be subject to the terms and conditions of
the Plan and need not be identical.


 


2.4          “Award Date” shall mean the date on which an Award is granted to an Eligible Individual.


 


2.5          “Award Term” shall mean the maximum period during which a Participant may exercise, purchase, or
otherwise benefit from an Award granted under this Plan.


 


2.6          “Board” shall mean the Board of Directors of the Company, as the same may be constituted from time
to time.


 


2.7          “Breach Event” shall mean the Participant’s breach or default of an agreement, commitment or
obligation to or with the Company or any Affiliate either during Participant’s Continuous Service or after Participant’s Termination
Date, including, without limitation, breaching a confidentiality, noncompetition or non-solicitation agreement, covenant or obligation.
The determination of whether a Breach Event has occurred shall be made in the sole and absolute discretion of the Plan Administrator.


 


2.8          “Cause” shall mean, unless the applicable Award Agreement states otherwise:


 






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(a)            If a Participant is a party to an employment or service agreement with the
Company or an Affiliate and such agreement provides for a definition of “Cause,” the definition therein; or 


 


(b)            If no such agreement exists, or if such agreement does not define Cause:
(i) Participant’s commission of any action constituting a criminal felony (other than automobile related violations) or other serious
crime; (ii) Participant’s willful and continued refusal to follow reasonable instructions of the Board or the Participant’s
supervisor or manager, in each case that are material to the Company’s operations or prospects and only after the Board provides
written notice to the Participant which identifies with reasonable specificity the manner in which the Participant refused to follow such
instructions and Participant has been provided a reasonable opportunity to cure such deficiency; (iii) Participant’s engagement
in conduct that is materially injurious to the Company or an Affiliate; (iv) Participant devoting less than substantially all of his full
time during normal business hours to the Company and which is not promptly cured after written notice from the Board to the Participant;
or (v) Participant committing any Breach Event.


 


The determination
of a Participant’s termination for “Cause” shall be made in the sole and absolute discretion of the Plan Administrator.


 


2.9          “Change in Control” shall mean the occurrence of any one of the following events:


 


(a)            a sale, transfer or other conveyance of all or substantially all of the assets
of the Company on a consolidated basis;


 


(b)            the acquisition of beneficial ownership (as such term is defined in Rule
13d-3 promulgated under the Exchange Act) by any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), directly or indirectly, of securities representing 50% or more of the total number of votes that may be cast for the election of
directors of the Company;


 


(c)            the failure at any annual or special meeting of the Company’s stockholders
held during the three-year period following a “solicitation in opposition” as defined in Rule 14a-6 promulgated under the
Exchange Act, of a majority of the persons nominated by the Company in the proxy material mailed to shareholders by the management of
the Company to win election to seats on the Board (such majority calculated based upon the total number of persons nominated by the Company
failing to win election to seats on the Board divided by the total number of Board members of the Board as of the beginning of such three
year period), excluding only those who die, retire voluntarily, are disabled or are otherwise disqualified in the interim between their
nomination and the date of the meeting; or


 


(d)            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
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.


 


Notwithstanding the foregoing,
to the extent that any amount constituting deferred compensation (as defined in Section 409A of the Code) would become payable under this
Plan by reason of a Change in Control, such amount shall become payable only if the event constituting a Change in Control would also
qualify as a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets
of the Company, each as defined within the meaning of Code Section 409A, as amended from time to time. The determination of whether a
 “Change in Control” has occurred shall be made in the sole and absolute discretion of the Board.


 


2.10        “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time (or any successor
to such legislation), along with the regulations and guidance published in the Internal Revenue Bulletin from time to time.


 


2.11        “Committee” shall mean the Compensation Committee of the Board or any other person or persons to
whom all or a portion of the authority to administer this Plan has been delegated by the Board.


 






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2.12        “Common Stock” shall mean the authorized shares of common stock of the Company, par value $0.001
per share.


 


2.13        “Company” shall mean Bio-Path Holdings, Inc., a Delaware corporation, and any successor thereto.


 


2.14        “Consultant” shall mean any person, including an advisor, engaged by the Company or any Affiliate
to render consulting or advisory services and who is compensated for such services or who provides bona fide services to the Company or
any Affiliate pursuant to a written agreement. However, the term “Consultant” shall not include Directors.


 


2.15        “Continuous Service” means that the Participant’s service with the Company or any Affiliate,
whether as an Employee, Director or Consultant, is not interrupted or terminated. The Participant’s Continuous Service shall not
be deemed to have terminated merely because of a change in the capacity in which Participant renders service to the Company or any Affiliate
as an Employee, Director or Consultant or a change in the entity for which Participant renders such service. For example, a change in
status from an Employee of the Company to a Consultant of an Affiliate or a Director will not constitute an interruption of Continuous
Service. Notwithstanding the foregoing, with respect to an Incentive Stock Option, an Employee’s Continuous Service shall be deemed
to have terminated in the event of a change in capacity from an Employee to a Consultant or non-Employee Director. The Plan Administrator,
in its sole discretion, may determine whether Continuous Service shall be considered interrupted in the case of any leave of absence approved
by the Company, including sick leave, military leave or any other personal leave.


 


2.16        “Director” shall mean a member of the Board, whether an Employee, former Employee or other non-Employee
member.


 


2.17        “Disability” shall mean the Participant’s permanent and total inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which
can be expected to last for a continuous period of not less than 12 months. The term “Disability” shall also include any definition
of disability that may be contained in any long-term disability plan maintained or sponsored by the Company from time to time. The determination
of a Participant’s “Disability” shall be made in the sole and absolute discretion of the Plan Administrator.


 


2.18        “Effective Date” shall mean the date on which the Plan is approved by the stockholders of the Company
in accordance with the bylaws of the Company.


 


2.19        “Eligible Individual” shall mean an Employee, Consultant or Director eligible to receive an Award
under Section 5 of this Plan.


 


2.20        “Employee” shall mean, for purposes of this Plan, a common-law employee of the Company or any Affiliate.
Mere service as a Director or payment in accordance with any Director compensation policies adopted by the Board from time to time shall
not be sufficient to constitute “employment” by the Company or an Affiliate.


 


2.21        “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time (or any
successor to such legislation).


 


2.22        “Exercise Agreement” shall mean the written or electronic agreement delivered by Participant to the
Plan Administrator to evidence Participant’s exercise of those rights provided under the applicable Award Agreement.


 


2.23        “Exercise Date” shall mean the date set forth in the Exercise Agreement on which Participant exercises
those rights provided under the applicable Award Agreement.


 


2.24        “Exercise Price” shall mean the consideration required, as determined by the Plan Administrator and
set out in the Award Agreement, to be remitted upon exercise of an Award.


 


2.25        “Expiration Date” shall mean the date that is ten (10) years from the Effective Date, or, in the
event the Plan is subsequently amended to make any change described in clause (iii) of subsection 16.1, the date that is ten (10)
years from the earlier of the date on which such amendment is approved by the Board or the stockholders of the Company in accordance with
the bylaws of the Company.


 






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2.26        “Fair Market Value” shall mean, with respect to each Share,


 


(a)            If the Common Stock is listed on a national securities exchange or a national
market system, including without limitation the Nasdaq Capital Market, the closing sales price for such stock (or the closing bid, if
no sales were reported) as quoted on such exchange or system for the date of determination, as reported in The Wall Street Journal or
such other source as the Plan Administrator, in its sole and absolute discretion deems reliable;


 


(b)           If the Common Stock is regularly quoted by a recognized securities dealer
but selling prices are not reported, the mean of the high bid and low asked prices for the Common Stock on the last market trading day
prior to the date of determination; or


 


(c)            In the absence of an established market for the Common Stock, the value established,
in good faith, by the Board as of the determination date in accordance with the applicable regulations and guidance promulgated under
Code Section 409A (or any successor provision thereto) and published in the Internal Revenue Bulletin.


 


2.27        “Incentive Stock Option” shall mean any option to purchase Shares awarded pursuant to Section
6 of this Plan that qualifies as an “incentive stock option” pursuant to Section 422 of the Code (or any successor provision
thereto).


 


2.28        “Non-Qualified Stock Option” shall mean any option to purchase Shares awarded pursuant to Section
6 of this Plan that does not qualify as an Incentive Stock Option (including, without limitation, any option to purchase Shares originally
designated as or intended to qualify as an Incentive Stock Option but that does not, for any reason whatsoever, qualify as an Incentive
Stock Option).


 


2.29        “Parent Corporation” shall mean any entity (other than the Company) in an unbroken chain of entities
ending with the Company, provided each entity in the unbroken chain (other than the Company) owns, at the time of the determination, ownership
interests possessing fifty percent (50%) or more of the total combined voting power of all classes of ownership interests in one of the
other entities in such chain; provided, however, that with respect to an Award of an Incentive Stock Option, the term “Parent Corporation”
shall refer solely to an entity that is taxed under Federal income tax laws as a corporation.


 


2.30        “Participant” shall mean any Eligible Individual who has been granted and holds an Award granted
pursuant to this Plan.


 


2.31        “Person” shall mean an individual, partnership, joint venture, corporation, limited liability company,
trust, estate or other entity or organization.


 


2.32        “Plan” shall mean this Bio-Path Holdings, Inc. 2022 Stock Incentive Plan, as amended from time to
time.


 


2.33        “Plan Administrator” shall mean the Committee appointed by the Board to administer the Plan or if
no Committee is appointed or then serving, the Board.


 


2.34        “Purchase Price” shall mean the consideration required, as determined by the Plan Administrator and
set out in the Award Agreement, to be remitted upon grant of an Award of Restricted Shares.


 


2.35        “Restricted Shares” shall mean any Shares granted pursuant to Section 9 of this Plan that
are subject to transferability restrictions and a substantial risk of forfeiture.


 






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2.36        “Restricted Share Units” shall mean any Award granted pursuant to Section 10 of this Plan
denominated in Shares and subject to the terms, conditions and restrictions determined by the Plan Administrator and set forth in the
applicable Award Agreement.


 


2.37        “Restriction Period” shall mean the period during which Restricted Shares issued pursuant to Section
9 hereof or Restricted Share Units issued pursuant to Section 10 hereof are subject to transferability restrictions and a substantial
risk of forfeiture.


 


2.38        “Retirement” shall mean the Participant’s termination of Continuous Service at any time after
the attainment of age 65, provided that such Participant has provided at least five years of Continuous Service.


 


2.39        “Securities Act” shall mean the Securities Act of 1933, as amended from time to time and all rules
and regulations promulgated thereunder (or any successor to such legislation).


 


2.40        “Shares” shall mean shares of the Common Stock and any shares of capital stock or other securities
hereafter issued or issuable upon, in respect of or in substitution or exchange for shares of Common Stock.


 


2.41        “Stock Appreciation Right” shall mean any Award granted pursuant to Section 7 of this Plan
for the right to receive cash, Shares or a combination of both, with a value equal to the excess of the Fair Market Value of the aggregate
number of Shares subject to such Stock Appreciation Right on the Exercise Date over the Fair Market Value of the aggregate number of Shares
subject to such Stock Appreciation Right on the Award Date.


 


2.42        “Stock Option” shall mean any Incentive Stock Option or Non-Qualified Stock Option.


 


2.43        “Subsidiary Corporation” shall mean any entity (other than the Company) in an unbroken chain of entities
beginning with the Company, provided each entity (other than the last entity) in the unbroken chain owns, at the time of the determination,
stock possessing fifty percent (50%) or more of the total combined voting power of all classes of ownership interests in one of the other
entities in such chain; provided, however, that with respect to an Award of an Incentive Stock Option, the term “Subsidiary Corporation”
shall refer solely to an entity that is taxed under Federal income tax laws as a corporation.


 


2.44        “Ten Percent Stockholder” shall mean an individual who, at the time a Stock Option is granted pursuant
to Section 6 hereof, 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 of all classes of stock of the Company or any Affiliate.


 


2.45        “Termination Date” shall mean the date on which Participant’s Continuous Service with the Company
(and all Affiliates) terminates due to death, Disability, voluntary termination, with or without Cause, or otherwise.


 


SECTION
3. ADMINISTRATION OF THIS PLAN


 


3.1          Administration.


 


(a)            The Plan shall be administered by, and the Plan Administrator shall be, the
Committee; provided, however, that any power, authority or discretion granted to the Committee as the Plan Administrator may also be taken
by the Board (subject to Section 3.1(c)); provided, further, that if a transaction is intended to be exempt under Rule 16b-3
of the Exchange Act, it shall be structured to satisfy the requirements for exemption under Rule 16b-3 of the Exchange Act. 


 


(b)            The Committee shall be authorized to act with respect to all matters relating
to the administration of the Plan. The Committee will act by a majority of its members (or by unanimous vote if the Committee is comprised
of two (2) members). To the extent the Committee shall cease to exist or no longer be authorized to act hereunder, the functions delegated
to the Committee shall revert to the Board.


 


(c)            Notwithstanding anything contained herein to the contrary, any action taken
by the Board under this Plan shall require the affirmative vote of a majority of Directors who are independent, if any, as determined
under the rules of any national securities exchange on which the Common Stock is listed or traded or, if the Common Stock is not listed
or traded on any national securities exchange, the Nasdaq Stock Market.


 






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3.2          Powers of Plan Administrator. The Plan Administrator shall have the power, in its sole and absolute discretion,
but subject to and within the limitations of, the express provisions of the Plan:


 


(a)            To determine from time to time which Eligible Individuals shall be granted
Awards under the Plan, provided that any Award granted to a member of the Committee shall be subject to the approval or ratification of
the Board;


 


(b)            To determine when and how each Award shall be granted; what type or combination
of types of Awards shall be granted; the provisions of each Award granted (which need not be identical), including the time or times when
an Award may be exercised; the number of Shares with respect to which an Award shall be granted to each such Person; the Exercise Price
or the Purchase Price for Shares under an Award; the terms or other conditions, vesting periods or any restrictions for an Award and any
restrictions on Shares acquired pursuant to an Award; and any other terms and conditions of an Award that the Plan Administrator deems
appropriate and as are not inconsistent with the terms of the Plan;


 


(c)            To
determine whether, to what extent, and under what circumstances, to allow alternative payment options to exercise Awards, or pay withholding
taxes imposed upon the grant, exercise or vesting of any Award, and the terms and conditions of such payment options;


 


(d)            To
rely upon Employees for such clerical and recordkeeping duties as may be necessary in connection with the administration of this Plan;


 


(e)            To
accelerate or defer (with the consent of the subject Participant) the vesting of any rights under an Award;


 


(f)             To
establish, amend and revoke such rules and regulations as it may deem appropriate for the conduct of meetings and the proper administration
of the Plan;


 


(g)            To
delegate to one or more Persons the right to act on its behalf in such matters as authorized by the Plan Administrator;


 


(h)            To
construe and interpret the Plan and Award Agreements issued hereunder;


 


(i)             To
amend the Plan or an Award Agreement to the extent provided under Section 16 hereof. The Plan Administrator, in the exercise of
this power, may correct any defect, omission or inconsistency in the Plan or in any Award Agreement, in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective; and


 


(j)             To
take any and all other actions that are deemed necessary or advisable by the Plan Administrator for the administration of the Plan.


 


3.3          Effect of Plan Administrator’s Decision. All determinations, interpretations and constructions made by
the Plan Administrator in good faith shall not be subject to review by any Person and shall be final, binding and conclusive on all Persons.
The Plan Administrator, any member of the Board or Committee (or subcommittee) and any officer or Employee of the Company or any Affiliate
acting at the direction of, or on behalf of, the Plan Administrator shall not be personally liable for any action or determination taken
or made in good faith with respect to the Plan, and shall, to the extent provided in subsection 17.6 hereof, be fully indemnified
by the Company with respect to any such action or determination.


 






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SECTION
4. SHARES SUBJECT TO PLAN AND RELATED ADJUSTMENTS


 


4.1          Share Reserve. Except as otherwise provided in this Section 4, the maximum number of Shares that may be
issued with respect to Awards granted pursuant to this Plan shall not exceed 1,300,000. All or any portion of the Share reserve may be
issued in connection with the exercise of Incentive Stock Options. The Shares issued pursuant to this Plan may be authorized but unissued
Shares or may be issued Shares that have been repurchased or acquired by the Company, including shares purchased by the Company on the
open market for purposes of the Plan.


 


4.2          Maximum Award to Non-Employee Directors. No non-Employee Director may be granted Awards covering Shares having
a Fair Market Value of more than $500,000 on the grant date in any one calendar year.


 


4.3          Cancellation, Expiration, or Forfeiture of Awards.  To the extent that any Award granted pursuant to this
Plan shall, on and after the Effective Date hereof, be forfeited, expire or be cancelled, in whole or in part, then the number of Shares
subject to the Plan, as provided in subsection 4.1, shall be increased by the portion of such awards so forfeited, expired or cancelled
and such forfeited, expired or cancelled Shares may again be awarded pursuant to the provisions of this Plan.


 


4.4          Payment in Shares. Notwithstanding anything contained herein to the contrary, Shares tendered in payment of the
Exercise Price, Purchase Price or withholding taxes with respect to an Award shall not become, or again be, available for Awards under
this Plan.


 


4.5          Awards Payable in Shares. The grant of Awards that may not be satisfied by issuance of Shares shall not
count against the maximum number of Shares that may be issued under the Plan pursuant to subsection 4.1. Shares attributable to
Awards that may be satisfied either by the issuance of Shares or by cash or other consideration shall be counted against the maximum number
of Shares that may be issued under the Plan pursuant to subsection 4.1.


 


4.6          Repurchases of Shares. If Shares issued in connection with any Award granted pursuant to this Plan, shall, on
and after the Effective Date, be repurchased by the Company, in whole or in part, then the number of Shares subject to the Plan pursuant
to subsection 4.1 shall not be increased by that portion of the Shares repurchased by the Company and such repurchased Shares may
not again be awarded pursuant to the provisions of this Plan.


 


4.7          Issuance of Share Certificates. Prior to the issuance of Common Stock hereunder, whether upon grant, exercise,
or purchase under the applicable Award, Participant shall submit the consideration, if any, required under the applicable Award Agreement;
payment or other provision for any applicable tax withholding obligations; and all documents to be executed and delivered by Participant
in accordance with the provisions of this Plan and the applicable Award Agreement or as may otherwise be required by the Company or the
Plan Administrator, including, without limitation, with respect to Restricted Shares, a stock power, endorsed in blank, relating to the
Shares covered by such Award. The Company will evidence the issuance of Shares hereunder by any means appropriate, including, without
limitation, book-entry registration or issuance of a duly executed Share certificate in the name of Participant, provided that stock certificates
evidencing Restricted Shares granted pursuant to this Plan shall, if directed by the Company, be held in the custody of the Company or
its duly authorized delegate until the restrictions thereon have lapsed. If certificates are issued, a separate certificate or certificates
will be issued for Shares issued in connection with each type of Award granted to the Participant.


 


SECTION
5. ELIGIBILITY


 


5.1          Individuals Eligible to Participate. The Plan Administrator shall determine, within the limitations of the Plan,
the Employees, Consultants, and Directors to whom Awards are to be granted. In making the determination of whether to grant an Award to
an Employee, Consultant, or Director, as well as the determination of the type of Award and terms of such Award, the Plan Administrator
may consider such factors as the Plan Administrator, in its sole and absolute discretion, may deem relevant in connection with the purposes
of this Plan.


 


5.2          Evidence of Participation. Each Award granted to an Eligible Individual shall be evidenced by an Award Agreement,
in such form as prescribed by the Plan Administrator and containing such terms and provisions as are not inconsistent with this Plan.
The provisions of separate Award Agreements need not be identical, but each Award Agreement shall include (through incorporation of the
provisions hereof by reference in the Award Agreement or otherwise) the substance of the terms of the Plan. Each Award will be deemed
to have been granted as of the date on which the Plan Administrator has completed the action declaring the Award, which date shall be
specified by the Plan Administrator in the applicable Award Agreement, notwithstanding any delay which may elapse in executing and delivering
such Award Agreement.


 






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SECTION
6. STOCK OPTIONS


 


6.1          Grant of Stock Options. The Plan Administrator may, in its sole and absolute discretion, grant Stock Options,
whether alone or in addition to other Awards granted pursuant to this Plan, to any Eligible Individual; provided, however, that Incentive
Stock Options may only be granted to Employees. Each Eligible Individual so selected shall be offered a Stock Option to purchase the number
of Shares determined by the Plan Administrator and set forth in an Award Agreement. The Plan Administrator shall specify in the Award
Agreement the number of Shares subject to the Award, whether such Stock Option is an Incentive Stock Option or Non-Qualified Stock Option,
and such other terms or conditions as the Plan Administrator shall, in its sole and absolute discretion, determine appropriate and which
are not inconsistent with the terms of the Plan.


 


6.2          Award Term. No Stock Option shall be exercisable after the expiration of the Award Term determined by
the Plan Administrator and set out in Participant’s Award Agreement. Notwithstanding any provision to the contrary, the Award Term
of any Stock Option granted under this Plan shall not exceed ten (10) years from the Award Date; provided, however, that no Incentive
Stock Option granted to a Ten Percent Stockholder will be exercisable after the expiration of five (5) years from the date such Incentive
Stock Option is granted.


 


6.3          Exercise Price. The Exercise Price of each Stock Option granted under this Section 6 shall be established
by the Plan Administrator as of the Award Date. Notwithstanding the foregoing, the Exercise Price of any Stock Option shall not be less
than 100% of the Fair Market Value of a Share on the Award Date (or if greater, the par value of such Common Stock) or, in the case of
an Incentive Stock Option granted to a Ten Percent Stockholder, 110% of the Fair Market Value of a Share on the Award Date.


 


6.4          Vesting of Stock Options. Except as may otherwise be provided in an Award Agreement, each Stock Option
granted pursuant to this Plan may only be exercised to the extent that Participant is vested in such Stock Option. Except as otherwise
provided under subsection 15.2 herein, each Stock Option shall vest separately in accordance with the vesting schedule determined
by the Plan Administrator, which shall be set out in the applicable Award Agreement. Notwithstanding the foregoing, the Plan Administrator
may accelerate the vesting schedule of any outstanding Stock Option to the extent the Plan Administrator determines, in its sole and absolute
discretion, that such acceleration is not inconsistent with the purposes of this Plan.


 


6.5          Transferability of Option.


 


(a)            Rights
to Transfer. A Stock Option shall be transferable to the extent provided in the Award Agreement; provided, however, that an Incentive
Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime
of Participant only by Participant. If the Award Agreement does not provide for transferability, then the Stock Option shall not be transferable
except by will or by the laws of descent and distribution, and shall be exercisable during the lifetime of Participant only by Participant.


 


(b)            Evidence
of Rights. The transferee of a Stock Option shall not be permitted to exercise the Stock Option unless and until such transferee has
provided the Plan Administrator a copy of the will and/or such other evidence as the Plan Administrator determines necessary to establish
the validity of the transfer.


 


6.6          Qualification of Incentive Stock Options.


 


(a)            Stockholder
Approval of Plan. To the extent stockholder approval of this Plan is required by Section 422 of the Code, no Eligible Individual shall
be granted an Incentive Stock Option unless this Plan is approved by the stockholders of the Company within twelve (12) months before
or after the date this Plan is adopted (or, if applicable, amended pursuant to clause (iii) of subsection 16.1) by the Board.


 






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(b)           Fair
Market Value Restrictions. To the extent that the aggregate Fair Market Value (determined on the Award Date) of Common Stock with
respect to which Incentive Stock Options are exercisable for the first time by the Participant during any calendar year (under all plans
of the Company and its Affiliates) exceeds one hundred thousand dollars ($100,000), the Stock Options or portions thereof that exceed
such limit (according to the order in which they were granted) shall be treated as Non-Qualified Stock Options.


 


(c)           Termination
of Authority to Issue Incentive Stock Options. Notwithstanding any provision of this Plan to the contrary, no Incentive Stock Option
shall be granted to any Employee after the Expiration Date.


 


(d)           Qualification
of Incentive Stock Option. To the extent that a Stock Option designated as an Incentive Stock Option does not qualify as an Incentive
Stock Option (whether because of its provisions, the failure of the stockholders of the Company to timely approve the Plan, or the time
or manner of its exercise or otherwise) such Stock Option or the portion thereof that does not qualify as an Incentive Stock Option shall
be deemed to constitute a Non-Qualified Stock Option under this Plan.


 


(e)           Failure
to Qualify. Notwithstanding any provision herein to the contrary, none of the Plan Administrator, the Company, any Affiliates, or
the directors, officers or employees of the foregoing, shall have any liability to any Participant or any other Person if a Stock Option
designated as an Incentive Stock Option fails to qualify as such at any time.


 


6.7          Payment in Lieu of Shares. Notwithstanding any provision to the contrary herein, upon exercise of any
one or more Stock Options on or after Participant’s Termination Date, the Company may, in its sole discretion, in lieu of the issuance
of Shares, remit to Participant (or his legal representative, estate, heirs, or designated beneficiary, as the case may be) a lump sum
cash payment equal to the Fair Market Value of the Common Stock that would otherwise be issued under the applicable Stock Option(s), less
the aggregate Exercise Price; provided, however, that such payment shall not be made unless the Company has sufficient capital and liquidity,
as determined by the Board, in its sole and absolute discretion, to make such cash payment.


 


SECTION
7. stock appreciation rights


 


7.1          Grant of Stock Appreciation Rights. The Plan Administrator may grant Stock Appreciation
Rights, whether alone or in addition to other Awards granted pursuant to this Plan, to any Eligible Individual. Each Stock Appreciation
Right shall be evidenced by an Award Agreement, which shall include any conditions and restrictions as the Plan Administrator shall impose
as are not inconsistent with the terms of the Plan.


 


7.2          Award Term. No Stock Appreciation Right shall be exercisable after the expiration
of the Award Term determined by the Plan Administrator and set out in Participant’s Award Agreement.


 


7.3          Exercise Price. The Exercise Price of each Stock Appreciation Right granted under
this Section 7 shall be established by the Plan Administrator or shall be determined by a method established by the Plan Administrator
as of the Award Date, but in no event shall the Exercise Price be less than the Fair Market Value of a Share on the Award Date.


 


7.4          Vesting of Stock Appreciation Rights. Except as may otherwise be provided in an Award
Agreement, each Stock Appreciation Right granted pursuant to this Plan may only be exercised to the extent that Participant is vested
in such Stock Appreciation Right. Except as otherwise provided under subsection 15.2 herein, each Stock Appreciation Right shall
vest separately in accordance with the vesting schedule determined by the Plan Administrator and set out in the applicable Award Agreement.
Notwithstanding the foregoing, the Plan Administrator may accelerate the vesting schedule of any outstanding Stock Appreciation Right
to the extent the Plan Administrator determines, in its sole and absolute discretion, that such acceleration is not inconsistent with
the purposes of this Plan.


 






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7.5          Transferability


 


(a)            Right to Transfer. Except to the extent otherwise provided in the applicable Award Agreement, a Stock Appreciation Right
shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of Participant
only by Participant.


 


(b)            Designation of Beneficiary. Notwithstanding the foregoing, Participant may, by delivering written notice to the Plan Administrator,
in a form satisfactory to the Plan Administrator, designate a third party who, in the event of the death of Participant, shall thereafter
be entitled to exercise the Stock Appreciation Right.


 


(c)            Evidence of Rights. The transferee of a Stock Appreciation Right shall not be evidenced on the books and records of the
Company unless and until such transferee has provided the Plan Administrator a copy of the will and/or such other evidence as the Plan
Administrator determines necessary to establish the validity of the transfer.


 


7.6          Payment of Benefit. Except as otherwise expressly provided in the applicable Award
Agreement, Participant shall be paid for the value of the Stock Appreciation Right in cash, Shares, or a combination thereof, as determined
by the Plan Administrator in its sole and absolute discretion.


 


SECTION
8. EXERCISE OF STOCK OPTIONS AND STOCK APPRECIATION RIGHTS


 


Each Stock Option and Stock
Appreciation Right shall be exercised subject to, and in accordance with, this Section 8.


 


8.1          Time of Exercise.


 


(a)            Termination of Service. Unless otherwise provided in the applicable
Award Agreement, in the event Participant’s Continuous Service terminates (other than upon Participant’s death or Disability,
for Cause or upon Retirement by a Director), Participant may exercise his Stock Option or Stock Appreciation Right (to the extent that
Participant was entitled to exercise such Award as of the Termination Date) but only within such period of time ending on the earlier
of (i) the day that is three (3) months from Participant’s Termination Date or (ii) the expiration of the Award Term. Notwithstanding
any provision in the Plan or an Award Agreement to the contrary, in the event of a change in capacity of Participant from an Employee
of the Company to either a non-Employee Director or Consultant, if Participant fails to exercise an Incentive Stock Option within the
3-month period from such Termination Date, as provided herein, the Incentive Stock Option shall, upon expiration of such 3-month period,
become a Non-Qualified Stock Option under the Plan.


 


(b)            Death of Participant. Unless otherwise provided in the applicable
Award Agreement, in the event Participant’s Continuous Service terminates by reason of such Participant’s death, Participant’s
estate, heirs or designated beneficiary may exercise Participant’s Stock Option or Stock Appreciation Right (to the extent that
Participant was entitled to exercise such Award as of the Termination Date) but only within such period of time ending on the earlier
of (i) the day that is twelve (12) months from Participant’s Termination Date or (ii) the expiration of the Award Term.


 


(c)            Disability of Participant. Unless otherwise provided in the applicable
Award Agreement, in the event Participant’s Continuous Service terminates by reason of such Participant’s Disability, Participant
(or his legal representative) may exercise Participant’s Stock Option or Stock Appreciation Right (to the extent that Participant
was entitled to exercise such Award as of the Termination Date) but only within such period of time ending on the earlier of (i) the day
that is twelve (12) months from the Participant’s Termination Date or (ii) the expiration of the Award Term.


 


(d)            Retirement of Directors. Unless otherwise provided in the applicable
Award Agreement, in the event of the Retirement of a Participant who is a Director, such Participant’s Stock Options or Stock Appreciation
Rights will not terminate as a result of such Retirement, and such Participant shall be entitled to exercise such Stock Options or Stock
Appreciation Rights (to the extent that Participant is entitled to exercise such Award as of the date of Retirement) during the applicable
Award Term.


 






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(e)            Discretion of Plan Administrator. The Plan Administrator shall have
the sole discretion, exercisable at any time while the Stock Option or Stock Appreciation Right remains outstanding, to extend the time
during which such Award is to remain exercisable following Participant’s Termination Date from the period otherwise in effect for
that Award and set forth in the Award Agreement to such greater period of time as the Plan Administrator shall deem appropriate; provided,
however, that the period in which the Award is exercisable shall not be extended to a date beyond the expiration of the Award Term. If
the Plan Administrator extends the time during which an Incentive Stock Option will remain exercisable, then such extension shall be treated
as the grant of a new Option as of the date of the extension.


 


(f)            Expiration of Award. If Participant does not exercise his Stock Option
or Stock Appreciation Right within the periods specified in this Section 8, the Award shall terminate and will no longer be exercisable.


 


(g)           Lapsed and Cancelled Awards. Nothing contained in this Plan will be
deemed to extend the term of an Award or to revive any Award that has previously lapsed or been cancelled, terminated or surrendered.


 


8.2          Procedure for Exercise. Each exercise of a Stock Option or Stock Appreciation Right
shall be evidenced by an Exercise Agreement in the form prescribed by the Plan Administrator and duly executed by Participant (or his
legal representative, estate, heirs, or designated beneficiary, as the case may be) and shall be accompanied by payment, if applicable,
of the Exercise Price and withholding taxes imposed upon exercise of the Award.


 


SECTION
9. RESTRICTED SHARES


 


9.1          Grants of Restricted Shares.  The Plan Administrator may, in its sole and absolute
discretion, grant Restricted Shares, whether alone or in addition to other Awards granted pursuant to this Plan, to any Eligible Individual.
Each Eligible Individual granted Restricted Shares shall execute an Award Agreement setting forth the terms and conditions of such Restricted
Shares, including, without limitation, the Purchase Price, if any; the Restriction Period, which shall in no event exceed ten (10) years
from the Award Date; and conditions of forfeitability, whether based on period of service or otherwise.


 


9.2          Payment for Restricted Shares. Upon Participant’s acceptance of an applicable Award Agreement for Restricted
Shares, Participant shall pay to the Company the Purchase Price, if any, for the Restricted Shares. Such Purchase Price may be paid in
any manner permitted under Section 13 herein and set forth in the applicable Award Agreement. The Purchase Price, if any, shall
be determined by the Plan Administrator, in its sole and absolute discretion, and set forth in the applicable Award Agreement.


 


9.3          Terms of Restricted Shares.


 


(a)            Forfeiture of Restricted Shares. Subject to subsection 9.3(b) herein, and except as otherwise provided in the applicable
Award Agreement, all Restricted Shares shall be forfeited and returned to the Company and all rights of Participant with respect to such
Restricted Shares shall terminate unless Participant satisfies the requirements of the Award Agreement, which may include requirements
for continuation of service and such other terms and conditions as the Plan Administrator, in its sole and absolute discretion, shall
determine applicable with respect to the Restricted Shares.


 


(b)            Waiver of Restriction Period. Notwithstanding anything contained in this Section 9 to the contrary, the Plan
Administrator may, in its sole and absolute discretion, waive the Restriction Period and any other conditions set forth in the applicable
Award Agreement in the event of the death or Disability of Participant and may impose such terms and conditions (including forfeiture
of a proportionate number of the Restricted Shares) as the Plan Administrator shall deem appropriate.


 


9.4          Transferability of Restricted Shares.


 


(a)            Rights to Transfer. An Award of Restricted Shares shall be transferable
to the extent provided in the Award Agreement. If the Award Agreement does not provide for transferability, then the Restricted Shares
shall not be transferable except by will or by the laws of descent and distribution.


 






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(b)           Evidence of Rights. The transferee of an Award of Restricted Shares
shall not be evidenced on the books and records of the Company unless and until such transferee has provided the Plan Administrator a
copy of the will and/or such other evidence as the Plan Administrator determines necessary to establish the validity of the transfer.


 


SECTION
10. RESTRICTED SHARE UNITS


 


10.1        Grant of Restricted Share Units. The Plan Administrator may, in its sole and absolute discretion, grant Restricted
Share Units, whether alone or in addition to other Awards granted pursuant to this Plan, to any Eligible Individual. Each Eligible Individual
granted Restricted Share Units shall execute an Award Agreement, which shall set forth such terms and conditions applicable to the Restricted
Share Units as the Plan Administrator shall determine are appropriate and consistent with the provisions of the Plan, including the Restriction
Period, which shall in no event exceed ten (10) years from the Award Date, and conditions of forfeitability, whether based on period of
service or otherwise. A Restricted Share Unit shall represent an unfunded, unsecured right to receive one Share or cash equal to the Fair
Market Value of a Share, as provided in the Award Agreement.


 


10.2        Terms of Restricted Share Units.


 


(a)           Forfeiture of Restricted Share Units. Subject to subsection 10.2(b) herein, and except as otherwise provided in the
applicable Award Agreement, all Restricted Share Units shall be forfeited and all rights of a Participant with respect to such Restricted
Share Units shall terminate unless the Participant satisfies the requirements of the Award Agreement, which may include requirements for
continuation of service and such other terms and conditions as the Plan Administrator, in its sole and absolute discretion, shall determine
to be applicable with respect to the Restricted Share Units.


 


(b)           Waiver of Restriction Period. Notwithstanding anything contained in this Section 9 to the contrary, the Plan
Administrator may, in its sole and absolute discretion, waive the Restriction Period and any other conditions set forth in the applicable
Award Agreement in the event of the death or Disability of Participant and may impose such terms and conditions (including forfeiture
of a proportionate number of the Restricted Share Units) as the Plan Administrator shall deem appropriate.


 


10.3        Settlement. Except as otherwise provided in an applicable Award Agreement, Restricted
Share Units shall be settled no later than March 15th of the calendar year following the end of the calendar year in which
such Restricted Share Units are no longer subject to a substantial risk of forfeiture. Notwithstanding the foregoing, settlement may occur
after such date if (i) it is administratively impracticable to settle a Restricted Share Unit by such date and such impracticability was
unforeseeable on the Award Date, provided that settlement occurs as soon as administratively practicable thereafter; or (ii) settlement
by such date would jeopardize the ability of the Company to continue as a going concern, provided that settlement occurs as soon as doing
so would not have such effect.


 


10.4        Transferability of Restricted Share Units.


 


(a)           Rights to Transfer. An Award of Restricted Share Units shall be transferable to the extent provided in the Award Agreement.
If the Award Agreement does not provide for transferability, then the Restricted Share Units shall not be transferable except by will
or by the laws of descent and distribution.


 


(b)           Evidence of Rights. The transferee of an Award of Restricted Share Units shall not be evidenced on the books and records
of the Company unless and until such transferee has provided the Plan Administrator a copy of the will or such other evidence as the Plan
Administrator determines necessary to establish the validity of the transfer.


 


SECTION
11. OTHER AWARDS


 


The Plan Administrator may
grant to any Eligible Individual other forms of Awards based upon, payable in or otherwise related to, in whole or in part, the Common
Stock, if the Plan Administrator, in its sole discretion, determines that such other form of Award is consistent with the purposes of
this Plan. The terms and conditions of such other form of Award shall be specified in an Award Agreement that sets forth the terms and
conditions of such Award, including, but not limited to, the price, if any, and the vesting schedule, if any, of such Award and shall
include any conditions and restrictions as the Plan Administrator shall impose as are not inconsistent with the terms of the Plan. Such
Awards may be granted for such minimum consideration, if any, as may be required by applicable law or for such other greater consideration
as may be determined by the Plan Administrator, in its sole discretion.


 






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SECTION
12. STOCKHOLDER RIGHTS


 


Except to the extent otherwise
provided in the applicable Award Agreement, no Person shall have any rights as a stockholder of the Company with respect to any Shares
of Common Stock subject to an Award unless and until such Person becomes the holder of record of such Shares pursuant to subsection
4.7 hereof, and except as otherwise permitted by subsection 15.1, no adjustment will be made for dividends or other distributions
in respect of such Shares for which the record date is prior to the date on which such Person has become the holder of record. For these
purposes, a Participant who receives a grant of Restricted Shares shall become a holder of record as of the Award Date or, if later, the
date on which the applicable Purchase Price is paid, and shall thereafter be entitled to the voting and dividend rights appurtenant to
such Shares (provided that such dividends shall continue to be subject to any restrictions applicable to the Restricted Shares themselves).


 


SECTION
13. PAYMENT OF CONSIDERATION FOR AWARDS


 


13.1        Consideration for Shares. Except as otherwise provided in this Plan, consideration for Shares purchased
under Awards may be submitted only in such amounts and at such intervals of time as specified in the applicable Award Agreement:


 


(a)            by payment to the Company of the amount of such consideration by cash, wire transfer, certified check or bank draft;


 


(b)            by execution of a promissory note, to be submitted with a stock power, endorsed in blank relating to the Shares held as collateral
for such note;


 


(c)            by “net exercise,” pursuant to which the Company withholds from the Shares that would otherwise be issued upon exercise
of an Award that number of Shares with a Fair Market Value equal to the Exercise Price for the Award;


 


(d)            through a broker-dealer acting on behalf of Participant if (i) the broker-dealer has received a fully and duly endorsed copy of
the Award Agreement and a fully and duly endorsed notice of exercise or purchase, along with written instructions signed by Participant
requesting that the Company deliver Shares to the broker-dealer to be held in a designated account on behalf of Participant; (ii) adequate
provision has been made with respect to the payment of any withholding taxes due upon grant, exercise, or vesting; and (iii) the broker-dealer
and Participant have otherwise complied with applicable securities laws;


 


(e)            through the delivery of unrestricted Shares having a Fair Market Value equal to the Exercise Price and owned by Participant for
more than six (6) months (or such shorter or longer period of time as is necessary to avoid a charge to earnings on the Company’s
financial statements) or that otherwise meet the conditions established by the Company to avoid adverse accounting consequences (as determined
by the Company);


 


(f)             any combination of one or more methods described herein; or


 


(g)            any other consideration deemed acceptable by the Plan Administrator, in its sole and absolute discretion.


 


Notwithstanding any provision
herein to the contrary, Participant shall not be permitted to exercise an Incentive Stock Option pursuant to paragraphs (c) - (g) above
unless the Award Agreement specifically permits such method of exercise on the Award Date.


 






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13.2        Withholding Requirements. The amount, as determined by the Plan Administrator, of any federal, state or local
tax required to be withheld by the Company due to the grant, exercise, or vesting of an Award must be submitted in such amounts and at
such time as specified in the applicable Award Agreement:


 


(a)            by payment to the Company of the amount of such withholding obligation by
cash, wire transfer, certified check or bank draft;


 


(b)            through either (i) the retention by the Company of a number of Shares out
of the Shares being acquired through the Award or (ii) the delivery of unrestricted Shares owned by Participant for more than six (6)
months (or such shorter or longer period as is necessary to avoid a charge to earnings on the Company’s financial statements) and
having a Fair Market Value equal to the minimum withholding obligation or that otherwise meet the conditions established by the Company
to avoid adverse accounting consequences (as determined by the Company); or


 


(c)            pursuant to a written agreement between Participant and the Company authorizing
the Company to withhold from such Participant’s regular wages the amount of such withholding tax obligation.


 


If Participant elects to use
and the Plan Administrator permits either method described in subsection 13.2(b) herein in full or partial satisfaction of any
withholding tax liability resulting from the grant, exercise or vesting of an Award hereunder, the Company shall remit an amount equal
to the Fair Market Value of the Shares so withheld or delivered, as the case may be, to the appropriate taxing authorities.


 


SECTION
14. COMPLIANCE WITH SECURITIES AND OTHER LAWS


 


14.1        Securities Laws. Notwithstanding any other provision of this Plan, the Company shall
not be obligated to sell or issue any Shares pursuant to any Award granted under this Plan unless (a) the Shares have been registered
under applicable Federal securities law, (b) the prior approval of such sale or issuance has been obtained from any state regulatory body
having jurisdiction to the extent necessary to comply with applicable state securities laws, (c) the Shares have been duly listed or quoted
on a national securities exchange or automated quotation system of a registered securities association in accordance with the procedures
specified thereunder and (d) with respect to Participants subject to Section 16 of the Exchange Act, the Company determines that the Plan,
the Award Agreement and the sale or issuance of Shares thereunder, comply with all applicable provisions of Rule 16b-3 of the Exchange
Act (or any successor provision thereto). The Plan Administrator may modify or revoke all or any provision of an Award Agreement in order
to comply with applicable federal and state securities laws and none of the Company, the Plan Administrator, or any Director, officer,
employee, agent or representative thereof will have liability to any Person for refusing to issue, deliver or transfer any Award or any
Share issuable in connection with such Award if such refusal is based upon the foregoing provisions of this subsection 14.1.


 


14.2        Prohibition on Deferred Compensation. Notwithstanding any provision herein to the
contrary, any Award issued hereunder that constitutes a deferral of compensation under a “nonqualified deferred compensation plan”,
as such term is defined under Section 409A(d)(1) of the Code (or a successor provision thereto), shall be modified or cancelled to comply
with the requirements of Section 409A of the Code (or a successor provision thereto) and applicable guidance published in the Internal
Revenue Bulletin.


 


SECTION
15. ADJUSTMENTS TO AWARDS


 


15.1        Capitalization Adjustments. If any change is made in the Common Stock subject to the Plan, or subject to any
Award, without the receipt of consideration by the Company (through merger, consolidation, reorganization, recapitalization, reincorporation,
stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of Shares, exchange of Shares, change
in corporate structure or other transaction not involving the receipt of consideration by the Company), the Plan shall be appropriately
adjusted in the class(es) and maximum number of Shares available for issuance under the Plan pursuant to subsection 4.1, and all
outstanding Awards shall be appropriately adjusted in the class(es) and number of Shares and price per Share of Common Stock subject to
such outstanding Awards. The Plan Administrator shall make such adjustments, and its determination shall be final, binding and conclusive.
(The conversion of any convertible securities of the Company shall not be treated as a transaction “without receipt of consideration”
by the Company).


 






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15.2        Change in Control. In the event of a Change in Control, unless the Plan Administrator determines otherwise, then
with respect to Awards held by Participants whose Continuous Service has not terminated:


 


(a)            Notice and Acceleration. (i) The Company shall provide each Participant written notice of such Change in Control, (ii) all
outstanding Stock Options and Stock Appreciation Rights of such Participant shall automatically accelerate and become fully exercisable,
and (iii) the restrictions and conditions on all outstanding Restricted Shares and Restricted Share Units held by such Participant shall
immediately lapse.


 


(b)            Assumption of Grants. Upon a Change in Control where the Company is not the surviving corporation (or survives only as a
subsidiary of another corporation), unless the Plan Administrator determines otherwise, all outstanding Stock Options and Stock Appreciation
Rights that are not exercised shall be assumed by, or replaced with comparable options or rights, by the surviving corporation.


 


(c)            Other Alternatives. Notwithstanding Section 15.2(b), in the event of a Change in Control, the Plan Administrator
may take one or both of the following actions: the Plan Administrator may (i) require that Participants surrender their outstanding Stock
Options and Stock Appreciation Rights in exchange for a payment by the Company, in cash or Common Stock as determined by the Plan Administrator,
in an amount equal to the amount by which the then Fair Market Value of the shares of Common Stock subject to the Participant’s
unexercised Stock Options and Stock Appreciation Rights exceeds the Exercise Price of the Stock Options, or the Fair Market Value of the
Stock Appreciation Rights on the Award Date, as applicable, or (ii) after giving Participants an opportunity to exercise their outstanding
Stock Options and Stock Appreciation Rights, terminate any or all unexercised Stock Options and Stock Appreciation Rights at such time
as the Plan Administrator deems appropriate. Such surrender or termination shall take place as of the date of the Change in Control or
such other date as the Committee may specify.


 


15.3        Termination for Cause. Except to the extent otherwise provided in the applicable Award Agreement(s) or in Section
8.1, in the event a Participant’s Continuous Service is terminated for Cause, all outstanding Awards held by such Participant, whether
or not vested, shall immediately terminate without consideration to such Participant.


 


SECTION
16. AMENDMENT AND TERMINATION


 


16.1        Amendment of Plan. Notwithstanding anything contained in this Plan to the contrary, all provisions of this Plan
may at any time, or from time to time, be modified or amended by the Board; provided, however, that no amendment or modification shall
be made to the Plan that would (i) impair the rights of any Participant with respect to an outstanding Award issued to such Participant,
unless the Participant impaired by the amendment or modification consents to such change in writing; (ii) expand the types of Awards available
under the Plan or otherwise materially revise the Plan; or (iii) increase the number of Shares reserved for issuance under the Plan (other
than in accordance with an adjustment pursuant to subsection 15.1 hereof), modify the class of Persons eligible to receive Awards
under the Plan, or change the identity of the granting company or the Shares issued upon exercise of Incentive Stock Options, unless an
amendment under (ii) or (iii) above is approved by the stockholders of the Company within twelve (12) months before or after such amendment.
In addition, the Plan Administrator shall be authorized, to the same extent as the Board, to correct any defect, omission or inconsistency
in the Plan in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective.


 


16.2        Amendment of Award. The Plan Administrator may amend, modify or terminate any outstanding Award at any time prior
to payment or exercise in any manner not inconsistent with the terms of this Plan; provided, however, that a Participant’s rights
under the Award shall not be impaired by such amendment unless (i) the Plan Administrator requests the consent of such Participant and
(ii) Participant consents in writing.


 


16.3        Termination of Plan. The Board may suspend or terminate this Plan at any time, and such suspension or termination
may be retroactive or prospective; provided that the termination of this Plan shall not impair or affect any Award previously granted
hereunder and the rights of the holder thereof shall remain in effect until the Award has been exercised in its entirety or has expired
or otherwise has been terminated by the terms of such Award. Absent any action by the Board to terminate or suspend the Plan, the Plan
shall automatically terminate on the Expiration Date.


 






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SECTION
17. GENERAL PROVISIONS


 


17.1        General Assets. The proceeds to be received by the Company upon exercise of any Award or purchase of Shares pursuant
to any Award will constitute general assets of the Company and may be used for any proper purposes.


 


17.2        No Assignment or Alienation. Any attempted assignment, transfer, pledge, hypothecation or other disposition of
an Award or Shares issued in connection with an Award contrary to the provisions of this Plan, the applicable Award Agreement, or the
levy of any execution, attachment or similar process upon an Award or Shares issued in connection with an Award shall be null and void
and without effect.


 


17.3        No Limit on Other Compensation Arrangements. Nothing contained in this Plan shall prevent the Company from adopting
or continuing in effect other compensation arrangements, and such arrangements may be either generally applicable or applicable only in
specific cases.


 


17.4        Tax Withholding. The Plan Administrator shall notify each Participant of any tax withholding obligations
arising as a result of the grant, exercise or vesting of an Award. As a condition to Participant’s exercise of an Award and, if
applicable, the issuance of Shares, Participant must satisfy the applicable withholding obligation as may be required by law in a manner
permitted under Section 13.2 hereof


 


17.5        No Right to Employment or Continuation of Relationship. Nothing in this Plan or in any Award Agreement,
nor the grant of any Award, shall confer upon or be construed as giving any Participant any right to remain in the employ of the Company
or an Affiliate or to continue as a Consultant or non-Employee Director. Further, the Company or an Affiliate may at any time dismiss
a Participant from employment or terminate the relationship of any Consultant or non-Employee Director with the Company or any Affiliate,
free from any liability or any claim pursuant to this Plan, unless otherwise expressly provided in this Plan or in any Award Agreement.
No Consultant, Director or Employee of the Company or any Affiliate shall have any claim to be granted an Award, and there is no obligation
for uniformity of treatment of any Consultant, Director or Employee of the Company or any Affiliate, or of any Participant.


 


17.6        Indemnification of Plan Administrator. The Company shall indemnify each present and future member of the
Committee or the Board acting in its capacity as Plan Administrator, as well as any officer or employee acting at the direction of the
Plan Administrator or its authorized delegate, for all expenses (including the amount of judgments and the amount of approved settlements
made with a view to the curtailment of costs of litigation, other than amounts paid to the Company itself) reasonably incurred by him
in connection with or arising out of any action, suit, or proceeding in which he may be involved by reason of his performance of services
in connection with the administration of this Plan, whether or not he continues to perform such services at the time of incurring such
expenses; provided, however, that such indemnity shall not include any expenses incurred by such individual (a) in respect of matters
as to which he shall be finally adjudged in any such action, suit, or proceeding to have been guilty of gross negligence or willful misconduct
in the performance of his duties hereunder or (b) in respect of any matter in which any settlement is effected in an amount in excess
of the amount approved by the Company on the advice of its legal counsel. The foregoing right of indemnification shall inure to the benefit
of the heirs, executors, or administrators of the estate of each such member of the Committee or the Board, as well as any employee acting
at the direction of the Plan Administrator or its authorized delegate, and shall be in addition to all other rights to which such member,
officer or employee shall be entitled as a matter of law, contract, or otherwise.


 


17.7        No Limitation Upon the Rights of the Company. The grant of an Award pursuant to this Plan shall not affect in
any way the right or power of the Company to make adjustments, reclassifications, or changes of its capital or business structure; to
merge, convert or consolidate; to dissolve or liquidate; or sell or transfer all or any part of its business or assets.


 


17.8        No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to this Plan. If an Award vests
or becomes exercisable with respect to a fractional Share, such installment will instead be rounded to the next highest whole number of
Shares, except for the final installment, which will be for the balance of the total Shares subject to the Award. If a fractional Share
is granted or issuable under an Award, the Plan Administrator shall pay cash to Participant in an amount equal to the proportional Fair
Market Value of such fractional Share in lieu of any such fractional Share, and any rights with respect to such fractional Share shall
be cancelled, terminated and otherwise eliminated.


 






    16 


     


    

 


17.9        Restriction on Repricing. Notwithstanding any provision in this Plan to the contrary, repricing of Stock Options
and Stock Appreciation Rights shall not be permitted. For this purpose, a repricing means any of the following (or any other action that
has the same effect as any of the following): (i) changing the terms of a Stock Option or a Stock Appreciation Right to lower its exercise
price; (ii) any other action that is treated as a repricing under generally accepted accounting principles; and (iii) repurchasing or
canceling a Stock Option or Stock Appreciation Right at a time when its exercise price is equal to or greater than the fair market value
of the underlying Shares in exchange for cash, another Stock Option, Stock Appreciation Right, Restricted Shares or other equity award.
Such cancellation and exchange would be considered a repricing regardless of whether it is treated as a repricing under generally accepted
accounting principles and regardless of whether it is voluntary on the part of the Participant.


 


17.10      Clawback of Benefits. Notwithstanding any other provisions in this Plan or an Award Agreement to the contrary,
the Company may cancel any Award, require the Participant to reimburse any or all amounts paid pursuant to an Award or under the terms
of this Plan, and effect any other right of recoupment of equity or other compensation provided under the Plan in accordance with any
Company policies that may be adopted and/or modified from time to time, or as necessary or appropriate to comply with applicable laws.


 


17.11      GOVERNING LAW. TO THE EXTENT NOT OTHERWISE PREEMPTED BY FEDERAL LAW, THE VALIDITY, CONSTRUCTION AND EFFECT
OF THIS PLAN AND ANY RULES AND REGULATIONS RELATING TO THIS PLAN SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.


 


17.12      Qualification of Plan. This Plan is not intended to be, and shall not be, qualified under Section 401(a)
of the Code.


 


17.13      Unfunded Benefits. Each Award represents an unfunded, unsecured right to receive cash or Shares upon settlement
of the Award. The Company shall not be obligated to set aside any amounts or establish a trust for the payment of benefits hereunder,
unless otherwise specifically provided herein.


 


17.14      Compliance within Jurisdiction. Notwithstanding any provision herein to the contrary, this Plan shall not be
effective in any jurisdiction, and no Awards shall be granted to residents thereof, unless the Plan has been properly qualified under
the applicable securities laws, if any, of such jurisdiction, if such proper qualification is required pursuant to such securities laws,
if any.


 


17.15      Severability. If any provision of this Plan or any Award is, or becomes, or is deemed to be, invalid, illegal
or unenforceable in any jurisdiction or as to any individual or Award, or would cause this Plan or any Award to fail to comply under any
law deemed applicable by the Plan Administrator, such provision shall be construed or deemed amended to conform to applicable law, or
if it cannot be construed or deemed amended without, in the sole determination of the Plan Administrator, materially altering the intent
of this Plan or the Award, such provision shall be stricken as to such jurisdiction, individual or Award and the remainder of this Plan
and any such Award shall remain in full force and effect.


 


17.16      Headings. Headings are given throughout this Plan solely as a convenience to facilitate reference. Such headings
shall not be deemed in any way material or relevant to the construction or interpretation of this Plan or any provision thereof.


 


17.17      Gender and Number. In construing the Plan, any masculine terminology herein shall also include the feminine,
and the definition of any term herein in the singular shall also include the plural, except when otherwise indicated by the context.


 






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