MONAKER GROUP, INC. 8-K


 


Exhibit 10.1 


 





 


MONAKER
GROUP, INC. 


AMENDED
AND RESTATED 





2017
EQUITY INCENTIVE PLAN





 


TABLE
OF CONTENTS


 


	ARTICLE
    I. PREAMBLE	 	1
	ARTICLE
    II. DEFINITIONS	 	2
	ARTICLE
    III. ADMINISTRATION	 	6
	ARTICLE
    IV. INCENTIVE STOCK OPTIONS	 	11
	ARTICLE
    V. NONQUALIFIED STOCK OPTIONS	 	13
	ARTICLE
    VI. INCIDENTS OF STOCK OPTIONS	 	14
	ARTICLE
    VII. RESTRICTED STOCK	 	16
	ARTICLE
    VIII. STOCK AWARDS	 	18
	ARTICLE
    IX. PERFORMANCE SHARES	 	18
	ARTICLE
    X. CHANGES OF CONTROL OR OTHER FUNDAMENTAL CHANGES	 	20
	ARTICLE
    XI. AMENDMENT AND TERMINATION	 	21
	ARTICLE
    XII. MISCELLANEOUS PROVISIONS	 	22



 





Amended
and Restated 2017 Equity Incentive Plan

Monaker Group, Inc.












    


     


    

 


MONAKER
GROUP, INC.





AMENDED
AND RESTATED  


2017
EQUITY INCENTIVE PLAN


 


ARTICLE
I.

PREAMBLE


 


1.1.       This
Amended and Restated 2017 Equity Incentive Plan of Monaker Group, Inc. (the “Company”) is intended to
secure for the Company and its Affiliates the benefits arising from ownership of the Company’s Common Stock by the Employees,
Officers, Directors and Consultants of the Company and its Affiliates, all of whom are and will be responsible for the Company’s
future growth. The Plan is designed to help attract and retain for the Company and its Affiliates personnel of superior ability
for positions of exceptional responsibility, to reward Employees, Officers, Directors and Consultants for their services and to
motivate such individuals through added incentives to further contribute to the success of the Company and its Affiliates. With
respect to persons subject to Section 16 of the Act, transactions under this Plan are intended to satisfy the requirements of
Rule 16b-3 of the Act.


 


1.2.       Awards
under the Plan may be made to an Eligible Person in the form of (i) Incentive Stock Options (to Eligible Employees only); (ii)
Nonqualified Stock Options; (iii) Restricted Stock; (iv) Stock Awards; (v) Performance Shares; or (vi) any combination of the
foregoing.


 


1.3.       The
Company’s board of directors adopted the Plan on August 25, 2017 (the “Effective Date”). The grant
of Incentive Stock Options is subject to approval by the Company’s shareholders within twelve (12) months of the Effective
Date. Shareholder approval is to be obtained in accordance with the Company’s Certificate of Formation and Bylaws, each
as amended, and applicable laws. The Board may grant Incentive Stock Options prior to shareholder approval, but until the Company
obtains this approval, a grantee shall not exercise them. If the Company does not timely obtain shareholder approval (or a grantee
desires to exercise such Incentive Stock Options prior to shareholder approval), a grantee may exercise previously granted Incentive
Stock Options as Nonqualified Stock Options. Unless sooner terminated as provided elsewhere in this Plan, this Plan shall terminate
upon the close of business on the day next preceding the tenth (10th) anniversary of the Effective Date. Award Agreements outstanding
on such date shall continue to have force and effect in accordance with the provisions thereof.


 


1.4.       The
Plan shall be governed by, and construed in accordance with, the laws of the State of Nevada (except its choice-of-law provisions).


 


1.5.       Capitalized
terms shall have the meaning provided in ARTICLE II unless otherwise provided in this Plan or any related Award
Agreement.


 





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ARTICLE
II.

DEFINITIONS


 


DEFINITIONS.
Except where the context otherwise indicates, the following definitions apply:


 


2.1.       “Act”
means the Securities Exchange Act of 1934, as now in effect or as hereafter amended.


 


2.2.       “Affiliate”
means any parent corporation or subsidiary corporation of the Company, whether now or hereinafter existing, as those terms are
defined in Sections 424(e) and (f), respectively, of the Code.


 


2.3.       “Award”
means an award granted to a Participant in accordance with the provisions of the Plan, including, but not limited to, Stock Options,
Restricted Stock, Stock Awards, Performance Shares, or any combination of the foregoing.


 


2.4.       “Award
Agreement” means the separate written agreement evidencing each Award granted to a Participant under the Plan.


 


2.5.       “Board
of Directors” or “Board” means the Board of Directors of the Company, as constituted from
time to time.


 


2.6.       “Bylaws”
means the Company’s Bylaws as amended and restated from time to time.


 


2.7.       “Change
of Control” means (i) the adoption of a plan of merger or consolidation of the Company with any other corporation
or association as a result of which the holders of the voting capital stock of the Company as a group would receive less than
50% of the voting capital stock of the surviving or resulting corporation; (ii) the approval by the Board of Directors of an agreement
providing for the sale or transfer (other than as security for obligations of the Company) of substantially all the assets of
the Company; or (iii) in the absence of a prior expression of approval by the Board of Directors, the acquisition of more than
20% of the Company’s voting capital stock by any person within the meaning of Rule 13d-3 under the Act (other than the Company
or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company).


 


2.8.       “Code”
means the Internal Revenue Code of 1986, as amended, and the regulations and interpretations promulgated thereunder.


 


2.9.       “Committee”
means a committee of two or more members of the Board appointed by the Board in accordance with Section 3.2 of
the Plan. In the event the Company has not designated a Committee pursuant to Section 3.2 of the Plan, “Committee”
shall refer to the Compensation Committee of the Company (in the event the Compensation Committee has authority to administer
the Plan), if any, or the Board of Directors of the Company.


 


2.10.     “Common
Stock” means the Company’s common stock.


 


2.11.     “Company”
means Monaker Group, Inc., a Nevada corporation.


 


2.12.     “Consultant”
means any person, including an advisor engaged by the Company or an Affiliate to render bona fide consulting or advisory services
to the Company or an Affiliate, other than as an Employee, Director or Non-Employee Director.


 


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2.13. 
    “Director” means a member of the Board of Directors of the Company.


 


2.14.    
 “Disability” means the permanent and total disability of a person within the meaning of Section
22(e)(3) of the Code.


 


2.15.  
   “Effective Date” shall be the date set forth in Section 1.3 of the
Plan.


 


2.16.  
   “Eligible Employee” means an Eligible Person who is an Employee of the Company or
any Affiliate.


 


2.17.    
 “Eligible Person” means any Employee, Officer, Director, Non-Employee Director or Consultant of
the Company or any Affiliate, except for instances where services are in connection with the offer or sale of securities in a
capital-raising transaction, or they directly or indirectly promote or maintain a market for the Company’s securities, subject
to any other limitations as may be provided by the Code, the Act, or the Board. In making such determinations, the Board may take
into account the nature of the services rendered by such person, his or her present and potential contribution to the Company’s
success, and such other factors as the Board in its discretion shall deem relevant.


 


2.18.      “Employee”
means an individual who is a common-law employee of the Company or an Affiliate including employment as an Officer. Mere service
as a Director or payment of a director’s fee by the Company or an Affiliate shall not be sufficient to constitute “employment”
by the Company or an Affiliate.


 


2.19.      “ERISA”
means the Employee Retirement Income Security Act of 1974, as now in effect or as hereafter amended.


 


2.20.      “Fair
Market Value” means, as of any date and unless the Committee determines otherwise, the value of Common Stock determined
as follows:


 


2.20.1       If
the Common Stock is listed on any established stock exchange or a national market system, including without limitation the NYSE
MKT, Nasdaq National Market or The Nasdaq SmallCap Market 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 for the day of
determination, as reported in The Wall Street Journal or such other source as the Committee deems reliable;


 


2.20.2       If
the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported for the date in question,
or the Common Stock is quoted on an over-the-counter market, the Fair Market Value will be the mean between the high bid and low
asked prices for the Common Stock for the day of determination, as reported in The Wall Street Journal or such other source as
the Committee deems reliable; or


 


2.20.3       In
the absence of an established market for the Common Stock, the Fair Market Value will be determined in good faith by the Committee.


 


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2.20.4       The
Committee also may adopt a different methodology for determining Fair Market Value with respect to one or more Awards if a different
methodology is necessary or advisable to secure any intended favorable tax, legal or other treatment for the particular Award(s)
(for example, and without limitation, the Committee may provide that Fair Market Value for purposes of one or more Awards will
be based on an average of closing prices (or the average of high and low daily trading prices) for a specified period preceding
the relevant date).


 


2.21.       “Grant
Date” means, as to any Award, the latest of:


 


2.21.1       the
date on which the Board authorizes the grant of the Award; or


 


2.21.2       the
date the Participant receiving the Award becomes an Employee or a Director of the Company or its Affiliate, to the extent employment
status is a condition of the grant or a requirement of the Code or the Act; or


 


2.21.3       such
other date (later than the dates described in 2.21.1 and 2.21.2 above) as the Board may designate
and as set forth in the Participant’s Award Agreement.


 


2.22.       “Immediate
Family” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law and shall include adoptive relationships.


 


2.23.       “Incentive
Stock Option” means a Stock Option intended to qualify as an incentive stock option within the meaning of Section
422 of the Code and is granted under ARTICLE IV of the Plan and designated as an Incentive Stock Option in a
Participant’s Award Agreement.


 


2.24.       “Non-Employee
Director” shall have the meaning set forth in Rule 16b-3 under the Act.


 


2.25.       “Nonqualified
Stock Option” means a Stock Option not intended to qualify as an Incentive Stock Option and is not so designated
in the Participant’s Award Agreement.


 


2.26.       “Officer”
means a person who is an officer of the Company within the meaning of Section 16 of the Act.


 


2.27.       “Option
Period” means the period during which a Stock Option may be exercised from time to time, as established by the Board
and set forth in the Award Agreement for each Participant who is granted a Stock Option.


 


2.28.       “Option
Price” means the purchase price for a share of Common Stock subject to purchase pursuant to a Stock Option, as established
by the Board and set forth in the Award Agreement for each Participant who is granted a Stock Option.


 


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2.29.       “Outside
Director” means a Director who either (i) is not a current employee of the Company or an “affiliated
corporation” (within the meaning of Treasury Regulations promulgated under Section 162(m) of the Code), is not a
former employee of the Company or an “affiliated corporation” receiving compensation for prior services
(other than benefits under a tax qualified pension plan), was not an officer of the Company or an “affiliated corporation”
at any time and is not currently receiving direct or indirect remuneration from the Company or an “affiliated corporation”
for services in any capacity other than as a Director or (ii) is otherwise considered an “outside director”
for purposes of Section 162(m) of the Code.


 


2.30.       “Participant”
means an Eligible Person to whom an Award has been granted and who has entered into an Award Agreement evidencing the Award or,
if applicable, such other person who holds an outstanding Award.


 


2.31.       “Performance
Objectives” shall have the meaning set forth in ARTICLE IX of the Plan.


 


2.32.       “Performance
Period” shall have the meaning set forth in ARTICLE IX of the Plan.


 


2.33.       “Performance
Share” means an Award under ARTICLE IX of the Plan of a unit valued by reference to the Common
Stock, the payout of which is subject to achievement of such Performance Objectives, measured during one or more Performance Periods,
as the Board, in its sole discretion, shall establish at the time of such Award and set forth in a Participant’s Award Agreement.


 


2.34.       “Plan”
means this Amended and Restated Monaker Group, Inc. 2017 Equity Incentive Plan, as it may be amended from time to time.


 


2.35.       “Reporting
Person” means a person required to file reports under Section 16(a) of the Act.


 


2.36.       “Restricted
Stock” means an Award under ARTICLE VII of the Plan of shares of Common Stock that are at the time
of the Award subject to restrictions or limitations as to the Participant’s ability to sell, transfer, pledge or assign
such shares, which restrictions or limitations may lapse separately or in combination at such time or times, in installments or
otherwise, as the Board, in its sole discretion, shall determine at the time of such Award and set forth in a Participant’s
Award Agreement.


 


2.37.       “Restriction
Period” means the period commencing on the Grant Date with respect to such shares of Restricted Stock and ending
on such date as the Board, in its sole discretion, shall establish and set forth in a Participant’s Award Agreement.


 


2.38.       “Retirement”
means retirement as determined under procedures established by the Board or in any Award, as set forth in a Participant’s
Award Agreement.


 


2.39.       “Rule
16b-3” means Rule 16b-3 promulgated under the Act or any successor to Rule 16b-3, as in effect from time to time.
Those provisions of the Plan which make express reference to Rule 16b-3, or which are required in order for certain option transactions
to qualify for exemption under Rule 16b-3, shall apply only to a Reporting Person.


 


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2.40.       “Stock
Award” means an Award of shares of Common Stock under ARTICLE VIII of the Plan.


 


2.41.       “Stock
Option” means an Award under ARTICLE IV or ARTICLE V of the Plan of an option
to purchase Common Stock. A Stock Option may be either an Incentive Stock Option or a Nonqualified Stock Option.


 


2.42.       “Ten
Percent Stockholder” means an individual who owns (or is deemed to own pursuant to Section 424(d) of the Code),
at the time of grant, stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock
of the Company or any of its Affiliates.


 


2.43.       “Termination
of Service” means (i) in the case of an Eligible Employee, the discontinuance of employment of such Participant
with the Company or its Subsidiaries for any reason other than a transfer to another member of the group consisting of the Company
and its Affiliates and (ii) in the case of a Director who is not an Employee of the Company or any Affiliate, the date such Participant
ceases to serve as a Director. The determination of whether a Participant has discontinued service shall be made by the Board
in its sole discretion. In determining whether a Termination of Service has occurred, the Board may provide that service as a
Consultant or service with a business enterprise in which the Company has a significant ownership interest shall be treated as
employment with the Company.


 


ARTICLE
III.

ADMINISTRATION


 


3.1.       The
Plan shall be administered by the Board of Directors of the Company. The Board shall have the exclusive right to interpret and
construe the Plan, to select the Eligible Persons who shall receive an Award, and to act in all matters pertaining to the grant
of an Award and the determination and interpretation of the provisions of the related Award Agreement, including, without limitation,
the determination of the number of shares subject to Stock Options and the Option Period(s) and Option Price(s) thereof, the number
of shares of Restricted Stock or shares subject to Stock Awards or Performance Shares subject to an Award, the vesting periods
(if any) and the form, terms, conditions and duration of each Award, and any amendment thereof consistent with the provisions
of the Plan. The Board may adopt, establish, amend and rescind such rules, regulations and procedures as it may deem appropriate
for the proper administration of the Plan, make all other determinations which are, in the Board’s judgment, necessary or
desirable for the proper administration of the Plan, amend the Plan or a Stock Award as provided in ARTICLE XI, and
terminate or suspend the Plan as provided in ARTICLE XI. All acts, determinations and decisions of the Board made
or taken pursuant to the Plan or with respect to any questions arising in connection with the administration and interpretation
of the Plan or any Award Agreement, including the severability of any and all of the provisions thereof, shall be conclusive,
final and binding upon all persons. On or after the date of grant of an Award under the Plan, the Board may (i) accelerate the
date on which any such Award becomes vested, exercisable or transferable, as the case may be, (ii) extend the term of any such
Award, including, without limitation, extending the period following a termination of a Participant’s employment during
which any such Award may remain outstanding, or (iii) waive any conditions to the vesting, exercisability or transferability,
as the case may be, of any such Award; provided, that the Board shall not have any such authority to the extent that the grant
of such authority would cause any tax to become due under Section 409A of the Code.


 


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3.2.       The
Board may, to the full extent permitted by and consistent with applicable law and the Company’s Bylaws, and subject to Subparagraph
3.2.1 herein below, delegate any or all of its powers with respect to the administration of the Plan to the Company’s
Compensation Committee or another Committee of the Company consisting of not fewer than two members of the Board each of whom
shall qualify (at the time of appointment to the Committee and during all periods of service on the Committee) in all respects
as a Non-Employee Director and as an Outside Director.


 


3.2.1       If
administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board, including the power to delegate to a subcommittee any of the administrative powers the Committee
is authorized to exercise (and references in the Plan to the Board shall thereafter be to the Committee or subcommittee), subject,
however, to such resolutions, not consistent with the provisions of the Plan, as may be adopted from time to time by the Board.


 


3.2.2       The
Board may abolish the Committee at any time and reassume all powers and authority previously delegated to the Committee.


 


3.2.3       For
purposes of clarifying the preceding paragraph, shares of Common Stock covered by Awards shall only be counted as used to the
extent they are actually issued and delivered to a Participant (or such Participant’s permitted transferees as described
in the Plan) pursuant to the Plan. If an Award is settled for cash or if shares of Common Stock are withheld to pay the exercise
price of a Stock Option or to satisfy any tax withholding requirement in connection with an Award, only the shares issued (if
any), net of the shares withheld, will be deemed delivered for purposes of determining the number of shares of Common Stock that
are available for delivery under the Plan. In addition, shares of Common Stock related to Awards that expire, are forfeited or
cancelled or terminate for any reason without the issuance of shares shall not be treated as issued pursuant to the Plan. In addition,
if shares of Common Stock owned by a Participant (or such Participant’s permitted transferees as described in the Plan)
are tendered (either actually or through attestation) to the Company in payment of any obligation in connection with an Award,
the number of shares tendered shall be added to the number of shares of Common Stock that are available for delivery under the
Plan.


 


3.2.4       In
addition to, and not in limitation of, the right of any Committee so designated by the Board to administer this Plan to grant
Awards to Eligible Persons under this Plan, the full Board of Directors and/or the Company’s Compensation Committee may
from time to time grant Awards to Eligible Persons pursuant to the terms and conditions of this Plan, subject to the requirements
of the Code, Rule 16b-3 under the Act or any other applicable law, rule or regulation. In connection with any such grants, the
Board of Directors and/or the Company’s Compensation Committee shall have all of the power and authority of the Committee
to determine the Eligible Persons to whom such Awards shall be granted and the other terms and conditions of such Awards.


 


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3.3.       Without
limiting the provisions of this ARTICLE III, and subject to the provisions of ARTICLE X, the Board is
authorized to take such action as it determines to be necessary or advisable, and fair and equitable to Participants and to the
Company, with respect to an outstanding Award in the event of a Change of Control as described in ARTICLE X or
other similar event. Such action may include, but shall not be limited to, establishing, amending or waiving the form, terms,
conditions and duration of an Award and the related Award Agreement, so as to provide for earlier, later, extended or additional
times for exercise or payments, differing methods for calculating payments, alternate forms and amounts of payment, an accelerated
release of restrictions or other modifications. The Board may take such actions pursuant to this Section 3.3 by
adopting rules and regulations of general applicability to all Participants or to certain categories of Participants, by including,
amending or waiving terms and conditions in an Award and the related Award Agreement, or by taking action with respect to individual
Participants from time to time. In the event any Award is not evidenced by a written Award Agreement, such Award shall be governed
by the terms of this Plan and the terms and conditions of the grant of the Award as evidenced by the minutes of the Board (or
any authorized Committee thereof). For the sake of clarity, the failure of the Company to document an Award by way of a written
Award Agreement shall not affect the validity of such Award.


 


3.4.       Subject
to the provisions of Section 3.9 and this Section 3.4, the maximum aggregate number of shares of
Common Stock which may be issued pursuant to Awards under the Plan shall be 2,000,000 shares. Such shares
of Common Stock shall be made available from authorized and unissued shares of the Company.


 


3.4.1       For
all purposes under the Plan, each Performance Share awarded shall be counted as one share of Common Stock subject to an Award.


 


3.4.2       If,
for any reason, any shares of Common Stock (including shares of Common Stock subject to Performance Shares) that have been awarded
or are subject to issuance or purchase pursuant to Awards outstanding under the Plan are not delivered or purchased, or are reacquired
by the Company, for any reason, including but not limited to a forfeiture of Restricted Stock or failure to earn Performance Shares
or the termination, expiration or cancellation of a Stock Option, or any other termination of an Award without payment being made
in the form of shares of Common Stock (whether or not Restricted Stock), such shares of Common Stock shall not be charged against
the aggregate number of shares of Common Stock available for Award under the Plan and shall again be available for Awards under
the Plan. In no event, however, may Common Stock that is surrendered or withheld to pay the exercise price of a Stock Option or
to satisfy tax withholding requirements be available for future grants under the Plan.


 


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3.4.3       For
purposes of clarifying the preceding paragraph, shares of Common Stock covered by Awards shall only be counted as used to the
extent they are actually issued and delivered to a Participant (or such Participant’s permitted transferees as described
in the Plan) pursuant to the Plan. In addition, shares of Common Stock related to Awards that expire, are forfeited or cancelled
or terminate for any reason without the issuance of shares shall not be treated as issued pursuant to the Plan.


 


3.4.4       The
foregoing subsections 3.4.1 and 3.4.2 of this Section 3.4 shall be subject
to any limitations provided by the Code or by Rule 16b-3 under the Act or by any other applicable law, rule or regulation.


 


3.5.       Each
Award granted under the Plan shall be evidenced by a written Award Agreement, which shall be subject to and shall incorporate
(by reference or otherwise) the applicable terms and conditions of the Plan and shall include any other terms and conditions (not
inconsistent with the Plan) required by the Board. In the event any Award is not evidenced by a written Award Agreement, such
Award shall be governed by the terms of this Plan and the terms and conditions of the grant of the Award as evidenced by the minutes
of the Board (or any authorized Committee thereof). For the sake of clarity, the failure of the Company to document an Award by
way of a written Award Agreement shall not affect the validity of such Award.


 


3.6.       Securities
Matters.


 


3.6.1       The
Company shall be under no obligation to affect the registration pursuant to the Act of any shares of Common Stock to be issued
hereunder or to effect similar compliance under any state or local laws. Notwithstanding anything herein to the contrary, the
Company shall not be obligated to cause to be issued any shares of Common Stock pursuant to the Plan unless and until the Company
is advised by its counsel that the issuance of such shares is in compliance with all applicable laws, regulations of governmental
authority and the requirements of any securities exchange on which shares of Common Stock are traded. The Board may require, as
a condition to the issuance of shares of Common Stock pursuant to the terms hereof, that the recipient of such shares make such
covenants, agreements and representations, and that any certificates representing such shares bear such legends, as the Board
deems necessary or desirable.


 


3.6.2       The
exercise of any Stock Option granted hereunder shall only be effective at such time as counsel to the Company shall have determined
that the issuance of shares of Common Stock pursuant to such exercise is in compliance with all applicable laws, regulations of
governmental authority and the requirements of any securities exchange on which shares of Common Stock are traded. The Company
may, in its sole discretion, defer the effectiveness of an exercise of a Stock Option hereunder or the issuance of shares of Common
Stock pursuant to any Award pending or to ensure compliance under federal, state or local securities laws. The Company shall inform
the Participant in writing of its decision to defer the effectiveness of the exercise of a Stock Option or the issuance of shares
of Common Stock pursuant to any Award. During the period that the effectiveness of the exercise of a Stock Option has been deferred,
the Participant may, by written notice, withdraw such exercise and obtain the refund of any amount paid with respect thereto.


 


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3.6.3       In
the event the Plan and/or the Common Stock issuable in connection with Awards hereunder are registered with the Securities Exchange
Commission (the “SEC”) under the Act, no free-trading shares of Common Stock shall be issuable by the
Company under the Plan and pursuant to such registration statement, (a) except to natural person (as such term is interpreted
by the SEC); (b) in connection with services associated with the offer or sale of securities in a capital-raising transaction;
or (c) where the services directly or indirectly promote or maintain a market for the Company’s securities.


 


3.7.       The
Board may require any Participant acquiring shares of Common Stock pursuant to any Award under the Plan to represent to and agree
with the Company in writing that such person is acquiring the shares of Common Stock for investment purposes and without a view
to resale or distribution thereof. Shares of Common Stock issued and delivered under the Plan shall also be subject to such stop-transfer
orders and other restrictions as the Board may deem advisable under the rules, regulations and other requirements of the Securities
and Exchange Commission, any stock exchange upon which the Common Stock is then listed and any applicable federal or state laws,
and the Board may cause a legend or legends to be placed on the certificate or certificates representing any such shares to make
appropriate reference to any such restrictions. In making such determination, the Board may rely upon an opinion of counsel for
the Company.


 


3.8.       Except
as otherwise expressly provided in the Plan or in an Award Agreement with respect to an Award, no Participant shall have any right
as a shareholder of the Company with respect to any shares of Common Stock subject to such Participant’s Award except to
the extent that, and until, one or more certificates representing such shares of Common Stock shall have been delivered to the
Participant. No shares shall be required to be issued, and no certificates shall be required to be delivered, under the Plan unless
and until all of the terms and conditions applicable to such Award shall have, in the sole discretion of the Board, been satisfied
in full and any restrictions shall have lapsed in full, and unless and until all of the requirements of law and of all regulatory
bodies having jurisdiction over the offer and sale, or issuance and delivery, of the shares shall have been fully complied with.


 


3.9.       The
total amount of shares with respect to which Awards may be granted under the Plan and rights of outstanding Awards (both as to
the number of shares subject to the outstanding Awards and the Option Price(s) or other purchase price(s) of such shares, as applicable)
shall be appropriately adjusted for any increase or decrease in the number of outstanding shares of Common Stock of the Company
resulting from payment of a stock dividend on the Common Stock, a stock split or subdivision or combination of shares of the Common
Stock, or a reorganization or reclassification of the Common Stock, or any other change in the structure of shares of the Common
Stock. The foregoing adjustments and the manner of application of the foregoing provisions shall be determined by the Board in
its sole discretion. Any such adjustment may provide for the elimination of any fractional shares which might otherwise become
subject to an Award. All adjustments made as a result of the foregoing in respect of each Incentive Stock Option shall be made
so that such Incentive Stock Option shall continue to be an Incentive Stock Option, as defined in Section 422 of the Code.


 


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3.10.       No
director or person acting pursuant to authority delegated by the Board shall be liable for any action or determination under the
Plan made in good faith. The members of the Board shall be entitled to indemnification by the Company in the manner and to the
extent set forth in the Company’s Articles of Incorporation, as amended, Bylaws or as otherwise provided from time to time
regarding indemnification of Directors.


 


3.11.       The
Board shall be authorized to make adjustments in any performance based criteria or in the other terms and conditions of outstanding
Awards in recognition of unusual or nonrecurring events affecting the Company (or any Affiliate, if applicable) or its financial
statements or changes in applicable laws, regulations or accounting principles. The Board may correct any defect, supply any omission
or reconcile any inconsistency in the Plan or any Award Agreement in the manner and to the extent it shall deem necessary or desirable
to reflect any such adjustment. In the event the Company (or any Affiliate, if applicable) shall assume outstanding employee benefit
awards or the right or obligation to make future such awards in connection with the acquisition of another corporation or business
entity, the Board may, in its sole discretion, make such adjustments in the terms of outstanding Awards under the Plan as it shall
deem appropriate.


 


3.12.       Subject
to the express provisions of the Plan, the Board shall have full power and authority to determine whether, to what extent and
under what circumstances any outstanding Award shall be terminated, canceled, forfeited or suspended. Notwithstanding the foregoing
or any other provision of the Plan or an Award Agreement, all Awards to any Participant that are subject to any restriction or
have not been earned or exercised in full by the Participant shall be terminated and canceled if the Participant is terminated
for cause, as determined by the Board in its sole discretion.


 


ARTICLE
IV.

INCENTIVE STOCK OPTIONS


 


4.1.    
   The Board, in its sole discretion, may from time to time on or after the Effective Date grant Incentive Stock
Options to Eligible Employees, subject to the provisions of this ARTICLE IV and ARTICLE III and ARTICLE
VI and subject to the following conditions:


 


4.1.1       Incentive
Stock Options shall be granted only to Eligible Employees, each of whom may be granted one or more of such Incentive Stock Options
at such time or times determined by the Board.


 


4.1.2       The
Option Price per share of Common Stock for an Incentive Stock Option shall be set in the Award Agreement, but shall not be less
than (i) one hundred percent (100%) of the Fair Market Value of the Common Stock at the Grant Date, or (ii) in the case of an
Incentive Stock Option granted to a Ten Percent Stockholder, one hundred ten percent (110%) of the Fair Market Value of the Common
Stock at the Grant Date.


 


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4.1.3       An
Incentive Stock Option may be exercised in full or in part from time to time within ten (10) years from the Grant Date, or such
shorter period as may be specified by the Board as the Option Period and set forth in the Award Agreement; provided, however,
that, in the case of an Incentive Stock Option granted to a Ten Percent Stockholder, such period shall not exceed five (5) years
from the Grant Date; and further, provided that, in any event, the Incentive Stock Option shall lapse and cease to be exercisable
upon a Termination of Service or within such period following a Termination of Service as shall have been determined by the Board
and set forth in the related Award Agreement; and provided, further, that such period shall not exceed the period of time ending
on the date three (3) months following a Termination of Service (except as otherwise provided in any employment agreement approved
by the Board), unless employment shall have terminated:


 


(i)       as
a result of Disability, in which event such period shall not exceed the period of time ending on the date twelve (12) months following
a Termination of Service; or


 


(ii)      as
a result of death, or if death shall have occurred following a Termination of Service (other than as a result of Disability) and
during the period that the Incentive Stock Option was still exercisable, in which event such period may not exceed the period
of time ending on the earlier of the date twelve (12) months after the date of death;


 


(iii)      and
provided, further, that such period following a Termination of Service or death shall in no event extend beyond the original Option
Period of the Incentive Stock Option.


 


4.1.4       The
aggregate Fair Market Value of the shares of Common Stock with respect to which any Incentive Stock Options (whether under this
Plan or any other plan established by the Company) are first exercisable during any calendar year by any Eligible Employee shall
not exceed one hundred thousand dollars ($100,000), determined based on the Fair Market Value(s) of such shares as of their respective
Grant Dates; provided, however, that to the extent permitted under Section 422 of the Code, if the aggregate Fair Market Values
of the shares of Common Stock with respect to which Stock Options intended to be Incentive Stock Options are first exercisable
by any Eligible Employee during any calendar year (whether such Stock Options are granted under this Plan or any other plan established
by the Company) exceed one hundred thousand dollars ($100,000), the Stock Options or portions thereof which exceed such limit
(according to the order in which they were granted) shall be treated as Nonqualified Stock Options.


 


4.1.5       No
Incentive Stock Options may be granted more than ten (10) years from the Effective Date.


 


4.1.6       The
Award Agreement for each Incentive Stock Option shall provide that the Participant shall notify the Company if such Participant
sells or otherwise transfers any shares of Common Stock acquired upon exercise of the Incentive Stock Option within two (2) years
of the Grant Date of such Incentive Stock Option or within one (1) year of the date such shares were acquired upon the exercise
of such Incentive Stock Option.


 


4.2.       Subject
to the limitations of Section 3.4, the maximum aggregate number of shares of Common Stock subject to Incentive Stock
Option Awards shall be the maximum aggregate number of shares available for Awards under the Plan.


 


4.3.       The
Board may provide for any other terms and conditions which it determines should be imposed for an Incentive Stock Option to qualify
under Section 422 of the Code, as well as any other terms and conditions not inconsistent with this ARTICLE IV or ARTICLE
III or ARTICLE VI, as determined in its sole discretion and set forth in the Award Agreement for such Incentive
Stock Option.


 


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4.4.       Each
provision of this ARTICLE IV and of each Incentive Stock Option granted hereunder shall be construed in accordance
with the provisions of Section 422 of the Code, and any provision hereof that cannot be so construed shall be disregarded.


 


ARTICLE
V.

NONQUALIFIED STOCK OPTIONS


 


5.1.       The
Board, in its sole discretion, may from time to time on or after the Effective Date grant Nonqualified Stock Options to Eligible
Persons, subject to the provisions of this ARTICLE V and ARTICLE III or ARTICLE VI and
subject to the following conditions:


 


5.1.1       Nonqualified
Stock Options may be granted to any Eligible Person, each of whom may be granted one or more of such Nonqualified Stock Options,
at such time or times determined by the Board.


 


5.1.2       The
Option Price per share of Common Stock for a Nonqualified Stock Option shall be set in the Award Agreement and may be less than
one hundred percent (100%) of the Fair Market Value of the Common Stock at the Grant Date; provided, however, that the exercise
price of each Nonqualified Stock Option granted under the Plan shall in no event be less than the par value per share of the Company’s
Common Stock.


 


5.1.3       A
Nonqualified Stock Option may be exercised in full or in part from time to time within the Option Period specified by the Board
and set forth in the Award Agreement; provided, however, that, in any event, the Nonqualified Stock Option shall lapse and cease
to be exercisable upon a Termination of Service or within such period following a Termination of Service as shall have been determined
by the Board and set forth in the related Award Agreement.


 


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5.2.       The
Board may provide for any other terms and conditions for a Nonqualified Stock Option not inconsistent with this ARTICLE
V or ARTICLE III or ARTICLE VI, as determined in its sole discretion and set forth in the
Award Agreement for such Nonqualified Stock Option.


 


ARTICLE
VI.

INCIDENTS OF STOCK OPTIONS


 


6.1.       Each
Stock Option shall be granted subject to such terms and conditions, if any, not inconsistent with this Plan, as shall be determined
by the Board and set forth in the related Award Agreement, including any provisions as to continued employment as consideration
for the grant or exercise of such Stock Option and any provisions which may be advisable to comply with applicable laws, regulations
or rulings of any governmental authority.


 


6.2.       Except
as hereinafter described, a Stock Option shall not be transferable by the Participant other than by will or by the laws of descent
and distribution, and shall be exercisable during the lifetime of the Participant only by the Participant or the Participant’s
guardian or legal representative. In the event of the death of a Participant, any unexercised Stock Options may be exercised to
the extent otherwise provided herein or in such Participant’s Award Agreement by the executor or personal representative
of such Participant’s estate or by any person who acquired the right to exercise such Stock Options by bequest under the
Participant’s will or by inheritance. The Board, in its sole discretion, may at any time permit a Participant to transfer
a Nonqualified Stock Option for no consideration to or for the benefit of one or more members of the Participant’s Immediate
Family (including, without limitation, to a trust for the benefit of the Participant and/or one or more members of such Participant’s
Immediate Family or a corporation, partnership or limited liability company established and controlled by the Participant and/or
one or more members of such Participant’s Immediate Family), subject to such limits as the Board may establish. The transferee
of such Nonqualified Stock Option shall remain subject to all terms and conditions applicable to such Nonqualified Stock Option
prior to such transfer. The foregoing right to transfer the Nonqualified Stock Option, if granted by the Board shall apply to
the right to consent to amendments to the Award Agreement.


 


6.3.       Shares
of Common Stock purchased upon exercise of a Stock Option shall be paid for in such amounts, at such times and upon such terms
as shall be determined by the Board, subject to limitations set forth in the Stock Option Award Agreement. The Board may, in its
sole discretion, permit the exercise of a Stock Option by payment in cash or by tendering shares of Common Stock (either by actual
delivery of such shares or by attestation), or any combination thereof, as determined by the Board. In the sole discretion of
the Board, payment in shares of Common Stock also may be made with shares received upon the exercise or partial exercise of the
Stock Option, whether or not involving a series of exercises or partial exercises and whether or not share certificates for such
shares surrendered have been delivered to the Participant. The Board also may, in its sole discretion, permit the payment of the
exercise price of a Stock Option by the voluntary surrender of all or a portion of the Stock Option. Shares of Common Stock previously
held by the Participant and surrendered in payment of the Option Price of a Stock Option shall be valued for such purpose at the
Fair Market Value thereof on the date the Stock Option is exercised.


 


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6.4.       The
holder of a Stock Option shall have no rights as a shareholder with respect to any shares covered by the Stock Option (including,
without limitation, any voting rights, the right to inspect or receive the Company’s balance sheets or financial statements
or any rights to receive dividends or non-cash distributions with respect to such shares) until such time as the holder has exercised
the Stock Option and then only with respect to the number of shares which are the subject of the exercise. No adjustment shall
be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued.


 


6.5.       The
Board may permit the voluntary surrender of all or a portion of any Stock Option granted under the Plan to be conditioned upon
the granting to the Participant of a new Stock Option for the same or a different number of shares of Common Stock as the Stock
Option surrendered, or may require such voluntary surrender as a condition precedent to a grant of a new Stock Option to such
Participant. Subject to the provisions of the Plan, such new Stock Option shall be exercisable at such Option Price, during such
Option Period and on such other terms and conditions as are specified by the Board at the time the new Stock Option is granted.
Upon surrender, the Stock Options surrendered shall be canceled and the shares of Common Stock previously subject to them shall
be available for the grant of other Stock Options.


 


6.6.       The
Board may at any time offer to purchase a Participant’s outstanding Stock Option for a payment equal to the value of such
Stock Option payable in cash, shares of Common Stock or Restricted Stock or other property upon surrender of the Participant’s
Stock Option, based on such terms and conditions as the Board shall establish and communicate to the Participant at the time that
such offer is made.


 


6.7.       The
Board shall have the discretion, exercisable either at the time the Award is granted or at the time the Participant discontinues
employment, to establish as a provision applicable to the exercise of one or more Stock Options that, during a limited period
of exercisability following a Termination of Service, the Stock Option may be exercised not only with respect to the number of
shares of Common Stock for which it is exercisable at the time of the Termination of Service but also with respect to one or more
subsequent installments for which the Stock Option would have become exercisable had the Termination of Service not occurred.


 


6.8.       Notwithstanding
anything to the contrary herein, the Company may reprice any Stock Option without the approval of the stockholders of the Company.
For this purpose, “reprice” means (i) any of the following or any other action that has the same effect:
(A) lowering the exercise price of a Stock Option after it is granted, (B) any other action that is treated as a repricing under
U.S. generally accepted accounting principles (“GAAP”), or (C) cancelling a Stock Option at a time when
its exercise price exceeds the Fair Market Value of the underlying Common Stock, in exchange for another Stock Option, restricted
stock or other equity, unless the cancellation and exchange occurs in connection with a merger, acquisition, spin-off or other
similar corporate transaction; and (ii) any other action that is considered to be a repricing under formal or informal guidance
issued by exchange or market on which the Company’s Common Stock then trades or is quoted.


 


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6.9.       In
addition to, and without limiting the above Section 6.8, the Board may permit the voluntary surrender of all or a
portion of any Stock Option granted under the Plan to be conditioned upon the granting to the Participant of a new Stock Option
for the same or a different number of shares of Common Stock as the Stock Option surrendered, or may require such voluntary surrender
as a condition precedent to a grant of a new Stock Option to such Participant. Subject to the provisions of the Plan, such new
Stock Option shall be exercisable at such Option Price, during such Option Period and on such other terms and conditions as are
specified by the Board at the time the new Stock Option is granted. Upon surrender, the Stock Options surrendered shall be canceled
and the shares of Common Stock previously subject to them shall be available for the grant of other Stock Options.


 


ARTICLE
VII.

RESTRICTED STOCK


 


7.1.       The
Board, in its sole discretion, may from time to time on or after the Effective Date award shares of Restricted Stock to Eligible
Persons as a reward for past service and an incentive for the performance of future services that will contribute materially to
the successful operation of the Company and its Affiliates, subject to the terms and conditions set forth in this ARTICLE
VII.


 


7.2.       The
Board shall determine the terms and conditions of any Award of Restricted Stock, which shall be set forth in the related Award
Agreement, including without limitation:


 


7.2.1       the
purchase price, if any, to be paid for such Restricted Stock, which may be zero, subject to such minimum consideration as may
be required by applicable law;


 


7.2.2       the
duration of the Restriction Period or Restriction Periods with respect to such Restricted Stock and whether any events may accelerate
or delay the end of such Restriction Period(s);


 


7.2.3       the
circumstances upon which the restrictions or limitations shall lapse, and whether such restrictions or limitations shall lapse
as to all shares of Restricted Stock at the end of the Restriction Period or as to a portion of the shares of Restricted Stock
in installments during the Restriction Period by means of one or more vesting schedules;


 


7.2.4       whether
such Restricted Stock is subject to repurchase by the Company or to a right of first refusal at a predetermined price or if the
Restricted Stock may be forfeited entirely under certain conditions;


 


7.2.5       whether
any performance goals may apply to a Restriction Period to shorten or lengthen such period; and


 


7.2.6       whether
dividends and other distributions with respect to such Restricted Stock are to be paid currently to the Participant or withheld
by the Company for the account of the Participant.


 


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7.3. Awards
of Restricted Stock must be accepted within a period of thirty (30) days after the Grant Date (or such shorter or longer period
as the Board may specify at such time) by executing an Award Agreement with respect to such Restricted Stock and tendering the
purchase price, if any. A prospective recipient of an Award of Restricted Stock shall not have any rights with respect to such
Award, unless such recipient has executed an Award Agreement with respect to such Restricted Stock, has delivered a fully executed
copy thereof to the Board and has otherwise complied with the applicable terms and conditions of such Award.


 


7.4.       In
the sole discretion of the Board and as set forth in the Award Agreement for an Award of Restricted Stock, all shares of Restricted
Stock held by a Participant and still subject to restrictions shall be forfeited by the Participant upon the Participant’s
Termination of Service and shall be reacquired, canceled and retired by the Company. Notwithstanding the foregoing, unless otherwise
provided in an Award Agreement with respect to an Award of Restricted Stock, in the event of the death, Disability or Retirement
of a Participant during the Restriction Period, or in other cases of special circumstances (including hardship or other special
circumstances of a Participant whose employment is involuntarily terminated), the Board may elect to waive in whole or in part
any remaining restrictions with respect to all or any part of such Participant’s Restricted Stock, if it finds that a waiver
would be appropriate.


 


7.5.       Except
as otherwise provided in this ARTICLE VII, no shares of Restricted Stock received by a Participant shall be sold,
exchanged, transferred, pledged, hypothecated or otherwise disposed of during the Restriction Period.


 


7.6.       Upon
an Award of Restricted Stock to a Participant, a certificate or certificates representing the shares of such Restricted Stock
will be issued to and registered in the name of the Participant. Unless otherwise determined by the Board, such certificate or
certificates will be held in custody by the Company until (i) the Restriction Period expires and the restrictions or limitations
lapse, in which case one or more certificates representing such shares of Restricted Stock that do not bear a restrictive legend
(other than any legend as required under applicable federal or state securities laws) shall be delivered to the Participant, or
(ii) a prior forfeiture by the Participant of the shares of Restricted Stock subject to such Restriction Period, in which case
the Company shall cause such certificate or certificates to be canceled and the shares represented thereby to be retired, all
as set forth in the Participant’s Award Agreement. It shall be a condition of an Award of Restricted Stock that the Participant
deliver to the Company a stock power endorsed in blank relating to the shares of Restricted Stock to be held in custody by the
Company.


 


7.7.       Except
as provided in this ARTICLE VII or in the related Award Agreement, a Participant receiving an Award of shares
of Restricted Stock Award shall have, with respect to such shares, all rights of a shareholder of the Company, including the right
to vote the shares and the right to receive any distributions, unless and until such shares are otherwise forfeited by such Participant;
provided, however, the Board may require that any cash dividends with respect to such shares of Restricted Stock be automatically
reinvested in additional shares of Restricted Stock subject to the same restrictions as the underlying Award, or may require that
cash dividends and other distributions on Restricted Stock be withheld by the Company or its Affiliates for the account of the
Participant. The Board shall determine whether interest shall be paid on amounts withheld, the rate of any such interest, and
the other terms applicable to such withheld amounts.


 


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ARTICLE
VIII.

STOCK AWARDS


 


8.1.       The
Board, in its sole discretion, may from time to time on or after the Effective Date grant Stock Awards to Eligible Persons in
payment of compensation that has been earned or as compensation to be earned, including without limitation compensation awarded
or earned concurrently with or prior to the grant of the Stock Award, subject to the terms and conditions set forth in this ARTICLE
VIII.


 


8.2.       For
the purposes of this Plan, in determining the value of a Stock Award, all shares of Common Stock subject to such Stock Award shall
be set in the Award Agreement and may be less than one hundred percent (100%) of the Fair Market Value of the Common Stock at
the Grant Date.


 


8.3.       Unless
otherwise determined by the Board and set forth in the related Award Agreement, shares of Common Stock subject to a Stock Award
will be issued, and one or more certificates representing such shares will be delivered, to the Participant as soon as practicable
following the Grant Date of such Stock Award. Upon the issuance of such shares and the delivery of one or more certificates representing
such shares to the Participant, such Participant shall be and become a shareholder of the Company fully entitled to receive dividends,
to vote and to exercise all other rights of a shareholder of the Company. Notwithstanding any other provision of this Plan, unless
the Board expressly provides otherwise with respect to a Stock Award, as set forth in the related Award Agreement, no Stock Award
shall be deemed to be an outstanding Award for purposes of the Plan.


 


ARTICLE
IX.

PERFORMANCE SHARES


 


9.1.       The
Board, in its sole discretion, may from time to time on or after the Effective Date award Performance Shares to Eligible Persons
as an incentive for the performance of future services that will contribute materially to the successful operation of the Company
and its Affiliates, subject to the terms and conditions set forth in this ARTICLE IX.


 


9.2.       The
Board shall determine the terms and conditions of any Award of Performance Shares, which shall be set forth in the related Award
Agreement, including without limitation:


 


9.2.1       the
purchase price, if any, to be paid for such Performance Shares, which may be zero, subject to such minimum consideration as may
be required by applicable law;


 


9.2.2       the
performance period (the “Performance Period”) and/or performance objectives (the “Performance
Objectives”) applicable to such Awards;


 


9.2.3       the
number of Performance Shares that shall be paid to the Participant if the applicable Performance Objectives are exceeded or met
in whole or in part; and


 


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9.2.4       the
form of settlement of a Performance Share.


 


9.3.       At
any date, each Performance Share shall have a value equal to the Fair Market Value of a share of Common Stock.


 


9.4.       Performance
Periods may overlap, and Participants may participate simultaneously with respect to Performance Shares for which different Performance
Periods are prescribed.


 


9.5.       Performance
Objectives may vary from Participant to Participant and between Awards and shall be based upon such performance criteria or combination
of factors as the Board may deem appropriate, including, but not limited to, minimum earnings per share or return on equity. If
during the course of a Performance Period there shall occur significant events which the Board expects to have a substantial effect
on the applicable Performance Objectives during such period, the Board may revise such Performance Objectives.


 


9.6.       In
the sole discretion of the Board and as set forth in the Award Agreement for an Award of Performance Shares, all Performance Shares
held by a Participant and not earned shall be forfeited by the Participant upon the Participant’s Termination of Service.
Notwithstanding the foregoing, unless otherwise provided in an Award Agreement with respect to an Award of Performance Shares,
in the event of the death, Disability or Retirement of a Participant during the applicable Performance Period, or in other cases
of special circumstances (including hardship or other special circumstances of a Participant whose employment is involuntarily
terminated), the Board may determine to make a payment in settlement of such Performance Shares at the end of the Performance
Period, based upon the extent to which the Performance Objectives were satisfied at the end of such period and pro-rated for the
portion of the Performance Period during which the Participant was employed by the Company or an Affiliate; provided, however,
that the Board may provide for an earlier payment in settlement of such Performance Shares in such amount and under such terms
and conditions as the Board deems appropriate or desirable.


 


9.7.       The
settlement of a Performance Share shall be made in cash, whole shares of Common Stock or a combination thereof and shall be made
as soon as practicable after the end of the applicable Performance Period. Notwithstanding the foregoing, the Board in its sole
discretion may allow a Participant to defer payment in settlement of Performance Shares on terms and conditions approved by the
Board and set forth in the related Award Agreement entered into in advance of the time of receipt or constructive receipt of payment
by the Participant.


 


9.8.       Performance
Shares shall not be transferable by the Participant. The Board shall have the authority to place additional restrictions on the
Performance Shares including, but not limited to, restrictions on transfer of any shares of Common Stock that are delivered to
a Participant in settlement of any Performance Shares.


 


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ARTICLE
X.

CHANGES OF CONTROL OR OTHER FUNDAMENTAL CHANGES


 


10.1.       Upon
the occurrence of a Change of Control and unless otherwise provided in the Award Agreement with respect to a particular Award:


 


10.1.1       all
outstanding Stock Options shall become immediately exercisable in full, subject to any appropriate adjustments in the number of
shares subject to the Stock Option and the Option Price, and shall remain exercisable for the remaining Option Period, regardless
of any provision in the related Award Agreement limiting the exercisability of such Stock Option or any portion thereof for any
length of time;


 


10.1.2       all
outstanding Performance Shares with respect to which the applicable Performance Period has not been completed shall be paid out
as soon as practicable as follows:


 


(i)       all
Performance Objectives applicable to the Award of Performance Shares shall be deemed to have been satisfied to the extent necessary
to earn one hundred percent (100%) of the Performance Shares covered by the Award;


 


(ii)       the
applicable Performance Period shall be deemed to have been completed upon occurrence of the Change of Control;


 


(iii)      the
payment to the Participant in settlement of the Performance Shares shall be the amount determined by the Board, in its sole discretion,
or in the manner stated in the Award Agreement, as multiplied by a fraction, the numerator of which is the number of full calendar
months of the applicable Performance Period that have elapsed prior to occurrence of the Change of Control, and the denominator
of which is the total number of months in the original Performance Period; and


 


(iv)     upon
the making of any such payment, the Award Agreement as to which it relates shall be deemed terminated and of no further force
and effect; and


 


10.1.3       all
outstanding shares of Restricted Stock with respect to which the restrictions have not lapsed shall be deemed vested, and all
such restrictions shall be deemed lapsed and the Restriction Period ended.


 


10.2.       Anything
contained herein to the contrary notwithstanding, upon the dissolution or liquidation of the Company, each Award granted under
the Plan and then outstanding shall terminate; provided, however, that following the adoption of a plan of dissolution or liquidation,
and in any event prior to the effective date of such dissolution or liquidation, each such outstanding Award granted hereunder
shall be exercisable in full and all restrictions shall lapse, to the extent set forth in Section 10.1.1, 10.1.2 and 10.1.3 above.


 


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10.3.       After
the merger of one or more corporations into the Company or any Affiliate, any merger of the Company into another corporation,
any consolidation of the Company or any Affiliate of the Company and one or more corporations, or any other corporate reorganization
of any form involving the Company as a party thereto and involving any exchange, conversion, adjustment or other modification
of the outstanding shares of the Common Stock, each Participant shall, at no additional cost, be entitled, upon any exercise of
such Participant’s Stock Option, to receive, in lieu of the number of shares as to which such Stock Option shall then be
so exercised, the number and class of shares of stock or other securities or such other property to which such Participant would
have been entitled to pursuant to the terms of the agreement of merger or consolidation or reorganization, if at the time of such
merger or consolidation or reorganization, such Participant had been a holder of record of a number of shares of Common Stock
equal to the number of shares as to which such Stock Option shall then be so exercised. Comparable rights shall accrue to each
Participant in the event of successive mergers, consolidations or reorganizations of the character described above. The Board
may, in its sole discretion, provide for similar adjustments upon the occurrence of such events with regard to other outstanding
Awards under this Plan. The foregoing adjustments and the manner of application of the foregoing provisions shall be determined
by the Board in its sole discretion. Any such adjustment may provide for the elimination of any fractional shares which might
otherwise become subject to an Award. All adjustments made as the result of the foregoing in respect of each Incentive Stock Option
shall be made so that such Incentive Stock Option shall continue to be an Incentive Stock Option, as defined in Section 422 of
the Code.


 


ARTICLE
XI.

AMENDMENT AND TERMINATION


 


11.1.       Subject
to the provisions of Section 11.2, the Board of Directors at any time and from time to time may amend or terminate
the Plan as may be necessary or desirable to implement or discontinue the Plan or any provision hereof. To the extent required
by the Act or the Code, however, no amendment, without approval by the Company’s shareholders, shall:


 


11.1.1       materially
alter the group of persons eligible to participate in the Plan;


 


11.1.2       except
as provided in Section 3.4, change the maximum aggregate number of shares of Common Stock that are available for Awards
under the Plan; or


 


11.1.3       alter
the class of individuals eligible to receive an Incentive Stock Option or increase the limit on Incentive Stock Options set forth
in Section 4.1.4 or the value of shares of Common Stock for which an Eligible Employee may be granted an Incentive
Stock Option.


 


11.2.       No
amendment to or discontinuance of the Plan or any provision hereof by the Board of Directors or the shareholders of the Company
shall, without the written consent of the Participant, adversely affect (in the sole discretion of the Board) any Award theretofore
granted to such Participant under this Plan; provided, however, that the Board retains the right and power to:


 


11.2.1       annul
any Award if the Participant is terminated for cause as determined by the Board; and


 


11.2.2       convert
any outstanding Incentive Stock Option to a Nonqualified Stock Option.


 


11.3.       If
a Change of Control has occurred, no amendment or termination shall impair the rights of any person with respect to an outstanding
Award as provided in ARTICLE X.


 


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ARTICLE
XII.

MISCELLANEOUS PROVISIONS


 


12.1.       Nothing
in the Plan or any Award granted hereunder shall confer upon any Participant any right to continue in the employ of the Company
or its Affiliates or to serve as a Director or shall interfere in any way with the right of the Company or its Affiliates or the
shareholders of the Company, as applicable, to terminate the employment of a Participant or to release or remove a Director at
any time. Unless specifically provided otherwise, no Award granted under the Plan shall be deemed salary or compensation for the
purpose of computing benefits under any employee benefit plan or other arrangement of the Company or its Affiliates for the benefit
of their respective employees unless the Company shall determine otherwise. No Participant shall have any claim to an Award until
it is actually granted under the Plan and an Award Agreement has been executed and delivered to the Company. To the extent that
any person acquires a right to receive payments from the Company under the Plan, such right shall, except as otherwise provided
by the Board, be no greater than the right of an unsecured general creditor of the Company. All payments to be made hereunder
shall be paid from the general funds of the Company, and no special or separate fund shall be established and no segregation of
assets shall be made to assure payment of such amounts, except as provided in ARTICLE VII with respect to Restricted
Stock and except as otherwise provided by the Board.


 


12.2.       The
Plan and the grant of Awards shall be subject to all applicable federal and state laws, rules, and regulations and to such approvals
by any government or regulatory agency as may be required. Any provision herein relating to compliance with Rule 16b-3 under the
Act shall not be applicable with respect to participation in the Plan by Participants who are not subject to Section 16 of the
Act.


 


12.3.       The
terms of the Plan shall be binding upon the Company, its successors and assigns.


 


12.4.       Neither
a Stock Option nor any other type of equity-based compensation provided for hereunder shall be transferable except as provided
for in Section 6.2. In addition to the transfer restrictions otherwise contained herein, additional transfer restrictions
shall apply to the extent required by federal or state securities laws. If any Participant makes such a transfer in violation
hereof, any obligation hereunder of the Company to such Participant shall terminate immediately.


 


12.5.       This
Plan and all actions taken hereunder shall be governed by the laws of the State of Nevada.


 


12.6.       Each
Participant exercising an Award hereunder agrees to give the Board prompt written notice of any election made by such Participant
under Section 83(b) of the Code, or any similar provision thereof.


 


Amended
and Restated 2017 Equity Incentive Plan

Monaker Group, Inc.




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12.7.       If
any provision of this Plan or an Award Agreement is or becomes or is deemed invalid, illegal or unenforceable in any jurisdiction,
or would disqualify the Plan or any Award Agreement under any law deemed applicable by the Board, such provision shall be construed
or deemed amended to conform to applicable laws, or if it cannot be construed or deemed amended without, in the determination
of the Board, materially altering the intent of the Plan or the Award Agreement, it shall be stricken, and the remainder of the
Plan or the Award Agreement shall remain in full force and effect.


 


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


 


12.9.       The
Plan is not subject to the provisions of ERISA or qualified under Section 401(a) of the Code.


 


12.10.       If
a Participant is required to pay to the Company an amount with respect to income and employment tax withholding obligations in
connection with (i) the exercise of a Nonqualified Stock Option, (ii) certain dispositions of Common Stock acquired upon the exercise
of an Incentive Stock Option, or (iii) the receipt of Common Stock pursuant to any other Award, then the issuance of Common Stock
to such Participant shall not be made (or the transfer of shares by such Participant shall not be required to be effected, as
applicable) unless such withholding tax or other withholding liabilities shall have been satisfied in a manner acceptable to the
Company. To the extent provided by the terms of an Award Agreement, the Participant may satisfy any federal, state or local tax
withholding obligation relating to the exercise or acquisition of Common Stock under an Award by any of the following means (in
addition to the Company’s right to withhold from any compensation paid to the Participant by the Company) or by a combination
of such means: (i) tendering a cash payment; (ii) authorizing the Company to withhold shares of Common Stock from the shares of
Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under the Award,
provided, however, that no shares of Common Stock are withheld with a value exceeding the minimum amount of tax required to be
withheld by law; or (iii) delivering to the Company owned and unencumbered shares of Common Stock.


 


12.11.       Compliance
with other laws.


 


12.11.1       For
Reporting Persons:


 


(i)       the
Plan is intended to satisfy the provisions of Rule 16b-3;


 


(ii)      all
transactions involving Participants who are subject to Section 16(b) of the Exchange Act of 1934, as amended, are subject to the
provisions of Rule 16b-3 regardless of whether they are set forth in the Plan; and


 


(iii)     any
provision of the Plan that conflicts with Rule 16b-3 does not apply to the extent of the conflict.


 


Amended
and Restated 2017 Equity Incentive Plan

Monaker Group, Inc.




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12.11.2       If
any provision of the Plan, any Award, or Award Agreement conflicts with the requirements of Code Section 162(m) or 422 for Awards
subject to these requirements, then that provision does not apply to the extent of the conflict.


 


12.11.3       Notwithstanding
any other provision of the Plan, the Board and each applicable Committee shall administer the Plan and exercise all authority
and discretion under the Plan to satisfy the requirements of Code Section 409A or any exemption thereto.


 


12.11.4       Notwithstanding
any other provision of the Plan, if, for an Employee of a parent company, the conversion of an Incentive Stock Option to a Nonqualified
Stock Option or the treatment of an Incentive Stock Option as a Nonqualified Stock Option would not satisfy the requirements of
Code Section 409A or an exemption thereto, as determined by the Board in its exclusive discretion, then the Incentive Stock Option
shall terminate on the date that it would no longer qualify as an Incentive Stock Option as determined by the Board in its exclusive
discretion.


 


12.12.       Any
reference in the Plan to a written document includes any document delivered electronically or posted on the Company’s intranet.


 


12.13.       The
headings and captions in the Plan are inserted as a matter of convenience for organizational purposes, and do not construe, define,
extend, interpret, or limit any provision of the Plan.


 


12.14.       Whenever
the context may require, any pronoun includes the corresponding masculine, feminine, or neuter form, and the singular includes
the plural and vice versa.


 


12.15.       Any
reference in the Plan to a statutory or regulatory provision includes corresponding successor provisions.


 


12.16.       The
proceeds from the sale of shares pursuant to Awards granted under the Plan shall constitute general funds of the Company.


 


12.17.       Nothing
contained in the Plan or in any Award agreement executed pursuant hereto shall be deemed to confer upon any individual or entity
to whom an Award is or may be granted hereunder any right to remain in the employ or service of the Company or a parent or subsidiary
of the Company or any entitlement to any remuneration or other benefit pursuant to any consulting or advisory arrangement.


 


Amended
by the stockholders of the Company on August 15, 2019.


 


Amended
and Restated 2017 Equity Incentive Plan

Monaker Group, Inc.


 




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