Exhibit
10.10


 


FRESH
VINE WINE, INC. 


2021
EQUITY INCENTIVE PLAN


 


Effective
[●], 2021


 


TABLE
OF CONTENTS 


 




	1.	Purpose	3
	 	 	 	 
	2.	Administration	3
	 	 	 	 
	3.	Eligible Participants	3
	 	 	 	 
	4.	Types of Incentives	3
	 	 	 	 
	5.	Shares Subject to the Plan	4
	 	5.1.	Number of Shares	4
	 	5.2.	Cancellation	4
	 	5.3.	Type of Common Stock	4
	 	5.4.	Limitation on Awards Granted to Non-Employee Directors	4
	 	 	 	 
	6.	Stock Options	4
	 	6.1.	Price	4
	 	6.2.	Number	4
	 	6.3.	Duration and Time for Exercise	4
	 	6.4.	Manner of Exercise	5
	 	6.5.	Incentive Stock Options	5
	 	 	 	 
	7.	Stock Appreciation Rights	6
	 	7.1.	Price	6
	 	7.2.	Number	6
	 	7.3.	Duration	6
	 	7.4.	Exercise	6
	 	7.5.	Issuance of Shares Upon Exercise	6
	 	 	 	 
	8.	Stock Awards, Restricted Stock and Restricted Stock Units	7
	 	8.1.	Number of Shares	7
	 	8.2.	Sale Price	7
	 	8.3.	Restrictions	7
	 	8.4.	Enforcement of Restrictions	7
	 	8.5.	End of Restrictions	8
	 	8.6.	Rights of Holders of Restricted Stock and Restricted Stock Units	8
	 	8.7.	Settlement of Restricted Stock Units	8
	 	8.8.	Dividend Equivalents	8



 






     


     


    

 


	9.	Performance Awards	8
	 	 	 	 
	10.	General	8
	 	10.1.	Plan Effective Date and Stockholder Approval; Termination of Plan	8
	 	10.2.	Duration	9
	 	10.3.	Non-transferability of Incentives	9
	 	10.4.	Effect of Termination or Death	9
	 	10.5.	Restrictions under Securities Laws	9
	 	10.6.	Adjustment	10
	 	10.7.	Incentive Plans and Agreements	10
	 	10.8.	Withholding	10
	 	10.9.	No Continued Employment, Engagement or Right to Corporate Assets	10
	 	10.10.	Payments Under Incentives	10
	 	10.11.	Amendment of the Plan	11
	 	10.12.	Amendment of Agreements for Incentives; No Repricing	11
	 	10.13.	Sale, Merger, Exchange or Liquidation	11
	 	10.14.	Definition of Fair Market Value	12
	 	10.15.	Definition of Grant Date	12
	 	10.16.	Compliance with Code Section 409A	13





 






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FRESH
VINE WINE, INC. 


 


2021
EQUITY INCENTIVE PLAN


 


1.
Purpose. The purpose of the 2021 Equity Incentive Plan (the “Plan”) of Fresh Vine Wine, Inc., a Nevada corporation
(the “Company”), is to increase stockholder value and to advance the interests of the Company by furnishing a variety
of economic incentives (“Incentives”) designed to attract, retain and motivate employees, certain key consultants
and directors of the Company. Incentives may consist of opportunities to purchase or receive shares of common stock, $0.001 par
value, of the Company (“Common Stock”) or other incentive awards on terms determined under this Plan.


 


2.
Administration. The Plan shall be administered by the board of directors of the Company (the “Board of Directors”)
or by a stock option or compensation committee (the “Committee”) of the Board of Directors. The Committee shall consist
of at least one director of the Company and shall be appointed from time to time by the Board of Directors. Each member of the
Committee shall be (a) a “non-employee director” within the meaning of Rule 16b-3 of the Securities Exchange Act of
1934 (including the regulations promulgated thereunder, the “1934 Act”) (a “Non-Employee Director”), and
(b) shall be independent directors under listing rules of the NYSE American or, if the Company is no longer listed on the NYSE
American, then any national securities exchange on which the Company’s common stock may be listed. The Committee shall have
complete authority to award Incentives under the Plan, to interpret the Plan, and to make any other determination which it believes
necessary and advisable for the proper administration of the Plan. The Committee’s decisions and matters relating to the
Plan shall be final and conclusive on the Company and its participants. If at any time there is no stock option or compensation
committee, the term “Committee”, as used in the Plan, shall refer to the Board of Directors. The Committee or the
Board of Directors may delegate to one or more officers the authority to do one or both of the following (i) designate employees
who are not officers to be recipients of Stock Options (and, to the extent permitted by applicable law, other Incentives) and,
to the extent permitted by applicable law, the terms of such Incentives (which need not be identical), and (ii) determine the
number of shares of Common Stock to be subject to such Incentives; provided, however, that (y) the Committee or Board of Director
resolutions regarding such delegation shall specify the maximum number of shares of Common Stock that may be subject to Incentives
granted by such officer(s) during any fiscal year, as well as any other limitations on such officer’s authority, and (z)
that such officer may not grant an Incentive to himself or herself. Any such Incentives will be granted on the form of Incentive
agreement most recently approved for use by the Committee or the Board of Directors, unless otherwise provided in the resolutions
approving the delegation authority. The officer(s) shall report each Incentive granted pursuant to such delegation of authority
at the first meeting of the Board of Directors (or, if applicable, the Committee) following the date of such grant.


 


3.
Eligible Participants. Officers of the Company, employees of the Company or its subsidiaries, members of the Board of Directors,
and consultants or other independent contractors who provide services to the Company or its subsidiaries shall be eligible to
receive Incentives under the Plan when designated by the Committee. Participants may be designated individually or by groups or
categories (for example, by pay grade) as the Committee deems appropriate. Participation by officers of the Company or its subsidiaries
and any performance objectives relating to such officers must be approved by the Committee. Participation by others and any performance
objectives relating to others may be approved by groups or categories (for example, by pay grade) and authority to designate participants
who are not officers and to set or modify such targets may be delegated.


 


4.
Types of Incentives. Incentives under the Plan may be granted in any one or a combination of the following forms: (a) incentive
stock options and non-statutory stock options (Section 6); (b) stock appreciation rights (“SARs”) (Section 7); (c)
stock awards (Section 8); (d) restricted stock (Section 8); restricted stock units (Section 8) and performance awards (Section
9). Subject to the specific limitations provided in this Plan, payment of Incentives may be in the form of cash, Common Stock
or combinations thereof as the Committee shall determine, and with such other restrictions as it may impose.


 






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5.
Shares Subject to the Plan.


 


5.1.
Number of Shares. Subject to adjustment as provided in Section 10.6, the number of shares of Common Stock which may be
issued under the Plan shall not exceed 1,800,000 shares of Common Stock. Shares of Common Stock that are issued under the Plan
or are subject to Incentives awarded under the Plan will be applied to reduce the maximum number of shares of Common Stock remaining
available for issuance under the Plan.


 


5.2.
Cancellation. If an Incentive granted under the Plan expires or is terminated or canceled unexercised as to any shares
of Common Stock or forfeited or reacquired by the Company pursuant to rights reserved upon issuance thereof, such forfeited and
reacquired shares may again be issued under the Plan pursuant to another Incentive. If any Shares subject to an Incentive granted
under the Plan are withheld or applied as payment in connection with the exercise of an Incentive (including the withholding of
shares on the exercise of a stock option or the exercise of an SAR that is settled in shares) or the withholding or payment of
taxes related thereto, such shares shall not again be available for grant under the Plan.


 


5.3.
Type of Common Stock. Common Stock issued under the Plan in connection with Incentives will be authorized and unissued
shares.


 


5.4.
Limitation on Awards Granted to Non-Employee Directors. No member of the Board of Directors who is not also an employee
of the Company may be granted any Incentive or Incentives that exceed in the aggregate $500,000 in value (such value computed
as of the date of grant in accordance with applicable financial accounting rules) in any calendar year (provided that service
solely as a director, or payment of a fee for such services, will not cause a director to be considered an “employee”
for purposes of this Section 5.4). The foregoing limit shall not apply to any Incentive made pursuant to any election by the directors
to receive an Incentive in lieu of all or a portion of annual and committee retainers and meeting fees that are otherwise required
to be paid in cash.


 


6.
Stock Options. A stock option is a right to purchase shares of Common Stock from the Company. Each stock option granted
by the Committee under this Plan shall be subject to the following terms and conditions:


 


6.1.
Price. The option price per share shall be determined by the Committee, subject to adjustment under Section 10.6. Notwithstanding
the foregoing sentence, the option price per share shall not be less than the Fair Market Value (as defined in Section 10.14)
of the Common Stock on the Grant Date (as defined in Section 10.15).


 


6.2.
Number. The number of shares of Common Stock subject to a stock option shall be determined by the Committee, subject to
adjustment as provided in Section 10.6. The number of shares of Common Stock subject to a stock option shall be reduced in the
same proportion that the holder thereof exercises an SAR if any SAR is granted in conjunction with or related to the stock option.


 


6.3.
Duration and Time for Exercise. Subject to earlier termination as provided in Section 10.3, the term of each stock option
shall be determined by the Committee but shall not exceed ten years and one day from the Grant Date. Each stock option shall become
exercisable at such time or times during its term as shall be determined by the Committee at the time of grant. The Committee
may accelerate the exercisability of any stock option. Subject to the first sentence of this paragraph, the Committee may extend
the term of any stock option to the extent provided in Section 10.4.


 






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6.4.
Manner of Exercise. A stock option may be exercised, in whole or in part, by giving written notice to the Company, specifying
the number of shares of Common Stock to be purchased and accompanied by the full purchase price for such shares. The option price
shall be payable (a) in United States dollars upon exercise of the option and may be paid by cash, uncertified or certified check
or bank draft; (b) unless otherwise provided in the option agreement, by delivery of shares of Common Stock in payment of all
or any part of the option price, which shares shall be valued for this purpose at the Fair Market Value on the date such option
is exercised; or (c) unless otherwise provided in the option agreement, by instructing the Company to withhold from the shares
of Common Stock issuable upon exercise of the stock option shares of Common Stock in payment of all or any part of the exercise
price and/or any related withholding tax obligations consistent with Section 10.8, which shares shall be valued for this purpose
at the Fair Market Value or in such other manner as may be authorized from time to time by the Committee. Before the issuance
of shares of Common Stock upon the exercise of a stock option, a participant shall have no rights as a stockholder.


 


6.5.
Incentive Stock Options. Notwithstanding anything in the Plan to the contrary, the following additional provisions shall
apply to the grant of stock options which are intended to qualify as Incentive Stock Options (as such term is defined in Code
Section 422):


 


(a)
The aggregate Fair Market Value (determined as of the time the option is granted) of the shares of Common Stock with respect
to which Incentive Stock Options are exercisable for the first time by any participant during any calendar year (under all of
the Company’s plans) shall not exceed $100,000. The determination will be made by taking Incentive Stock Options into
account in the order in which they were granted. If such excess only applies to a portion of an Incentive Stock Option, the
Committee, in its discretion, will designate which shares will be treated as shares to be acquired upon exercise of an
Incentive Stock Option.


 


(b)
Any option agreement for an Incentive Stock Option under the Plan shall contain such other provisions as the Committee shall
deem advisable, but shall in all events be consistent with and contain all provisions required in order to qualify the
options as Incentive Stock Options.


 


(c)
All Incentive Stock Options must be granted within ten years from the earlier of the date on which this Plan was adopted by
Board of Directors or the date this Plan was approved by the stockholders.


 


(d)
Unless sooner exercised, all Incentive Stock Options shall expire no later than ten years after the Grant Date.


 


(e)
The option price for Incentive Stock Options shall be not less than the Fair Market Value of the Common Stock subject to the
option on the Grant Date.


 


(f)
If Incentive Stock Options are granted to any participant who, at the time such option is granted, would own (within the
meaning of Code Section 422) stock possessing more than 10% of the total combined voting power of all classes of stock of the
employer corporation or of its parent or subsidiary corporation, (i) the option price for such Incentive Stock Options shall
be not less than 110% of the Fair Market Value of the Common Stock subject to the option on the Grant Date and (ii) such
Incentive Stock Options shall expire no later than five years after the Grant Date.


 






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7.
Stock Appreciation Rights. An SAR is a right to receive, without payment to the Company, a number of shares of Common Stock,
the amount of which is determined pursuant to the formula set forth in Section 7.5. An SAR may be granted (a) with respect to
any stock option granted under this Plan, either concurrently with the grant of such stock option or at such later time as determined
by the Committee (as to all or any portion of the shares of Common Stock subject to the stock option), or (b) alone, without reference
to any related stock option. Each SAR granted by the Committee under this Plan shall be subject to the following terms and conditions:


 


7.1.
Price. The exercise price per share of any SAR granted without reference to a stock option shall be determined by the Committee,
subject to adjustment under Section 10.6. Notwithstanding the foregoing sentence, the exercise price per share shall not be less
than the Fair Market Value of the Common Stock on the Grant Date.


 


7.2.
Number. Each SAR granted to any participant shall relate to such number of shares of Common Stock as shall be determined
by the Committee, subject to adjustment as provided in Section 10.6. In the case of an SAR granted with respect to a stock option,
the number of shares of Common Stock to which the SAR relates shall be reduced in the same proportion that the holder of the option
exercises the related stock option.


 


7.3.
Duration. Subject to earlier termination as provided in Section 10.3, the term of each SAR shall be determined by the Committee
but shall not exceed ten years and one day from the Grant Date. Unless otherwise provided by the Committee, each SAR shall become
exercisable at such time or times, to such extent and upon such conditions as the stock option, if any, to which it relates is
exercisable. The Committee may in its discretion accelerate the exercisability of any SAR. Subject to the first sentence of this
paragraph, the Committee may extend the term of any SAR to the extent provided in Section 10.4.


 


7.4.
Exercise. An SAR may be exercised, in whole or in part, by giving written notice to the Company, specifying the number
of SARs which the holder wishes to exercise. Upon receipt of such written notice, the Company shall, within 90 days thereafter,
deliver to the exercising holder certificates for the shares of Common Stock or cash or both, as determined by the Committee,
to which the holder is entitled pursuant to Section 7.5.


 


7.5.
Issuance of Shares Upon Exercise. The number of shares of Common Stock which shall be issuable upon the exercise of an
SAR shall be determined by dividing:


 


(a)
the number of shares of Common Stock as to which the SAR is exercised multiplied by the amount of the appreciation in such
shares (for this purpose, the “appreciation” shall be the amount by which the Fair Market Value of the shares of
Common Stock subject to the SAR on the exercise date exceeds (1) in the case of an SAR related to a stock option, the
purchase price of the shares of Common Stock under the stock option or (2) in the case of an SAR granted alone, without
reference to a related stock option, an amount which shall be determined by the Committee at the time of grant, subject to
adjustment under Section 10.6); by


 


(b)
the Fair Market Value of a share of Common Stock on the exercise date.


 


No
fractional shares of Common Stock shall be issued upon the exercise of an SAR; instead, the holder of the SAR shall be entitled
to receive a cash adjustment equal to the same fraction of the Fair Market Value of a share of Common Stock on the exercise date
or to purchase the portion necessary to make a whole share at its Fair Market Value on the date of exercise.


 






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8.
Stock Awards, Restricted Stock and Restricted Stock Units. A stock award consists of the transfer by the Company to a participant
of shares of Common Stock, with or without other payment therefor, as additional compensation for services to the Company. A share
of restricted stock consists of shares of Common Stock which are sold or transferred by the Company to a participant at a price,
if any, determined by the Committee and subject to restrictions on their sale or other transfer by the participant. Restricted
stock units represent the right to receive shares of Common Stock at a future date. The transfer of Common Stock pursuant to stock
awards, ,the transfer or sale of restricted stock and restricted stock units shall be subject to the following terms and conditions:


 


8.1.
Number of Shares. The number of shares to be transferred or sold by the Company to a participant pursuant to a stock award
or as restricted stock, or the number of shares that may be issued pursuant to a restricted stock unit, shall be determined by
the Committee.


 


8.2.
Sale Price. The Committee shall determine the price, if any, at which shares of restricted stock shall be sold to a participant,
which may vary from time to time and among participants and which may be below the Fair Market Value of such shares of Common
Stock at the date of sale.


 


8.3.
Restrictions. All shares of restricted stock transferred or sold by the Company hereunder, and all restricted stock units
granted hereunder, shall be subject to such restrictions as the Committee may determine, including, without limitation any or
all of the following:


 


(a)
a prohibition against the sale, transfer, pledge or other encumbrance of the shares of restricted stock, or the delivery of
shares pursuant to restricted stock units, such prohibition to lapse at such time or times as the Committee shall determine
(whether in annual or more frequent installments, at the time of the death, disability or retirement of the holder of such
shares, or otherwise);


 


(b)
a requirement that the holder of shares of restricted stock or restricted stock units forfeit, or (in the case of shares
sold to a participant) re-sell back to the Company at his or her cost, all or a part of such shares in the event of
termination of his or her employment, service on the Board of Directors or consulting engagement during any period in which
such shares are subject to restrictions; and


 


(c)
such other conditions or restrictions as the Committee may deem advisable. 


 


8.4.
Enforcement of Restrictions. In order to enforce the restrictions imposed by the Committee pursuant to Section 8.3, the
participant receiving restricted stock or restricted stock units shall enter into an agreement with the Company setting forth
the conditions of the grant. Shares of restricted stock shall be registered in the name of the participant and deposited, together
with a stock power endorsed in blank, with the Company. Each such certificate shall bear a legend that refers to the Plan and
the restrictions imposed under the applicable agreement. At the Committee’s election, shares of restricted stock may be
held in book entry form subject to the Company’s instructions until any restrictions relating to the restricted stock grant
lapse.


 






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8.5.
End of Restrictions. Subject to Section 10.5, at the end of any time period during which the shares of restricted stock
are subject to forfeiture and restrictions on transfer, such shares will be delivered free of all restrictions to the participant
or to the participant’s legal representative, beneficiary or heir. Subject to Section 10.5, upon the lapse or waiver of
restrictions applicable to restricted stock units, or at a later time specified in the agreement governing the grant of restricted
stock units, any shares derived from the restricted stock units shall be issued and delivered to the holder of the restricted
stock units.


 


8.6.
Rights of Holders of Restricted Stock and Restricted Stock Units. Subject to the terms and conditions of the Plan, each
participant receiving restricted stock shall have all the rights of a stockholder with respect to shares of stock during any period
in which such shares are subject to forfeiture and restrictions on transfer, including without limitation, the right to vote such
shares. Any holder of restricted stock units shall not be, and shall not have rights and privileges of, a stockholder with respect
to any shares that may be derived from the restricted stock units unless and until such shares have been issued.


 


8.7.
Settlement of Restricted Stock Units. Restricted stock units may be satisfied by delivery of shares of stock, cash equal
to the Fair Market Value of the specified number of shares covered by the restricted stock units, or a combination thereof, as
determined by the Committee at the date of grant or thereafter.


 


8.8.
Dividend Equivalents. In connection with any award of restricted stock units, the Committee may grant the right to receive
cash, shares of stock or other property equal in value to dividends paid with respect to the number of shares represented by the
restricted stock units (“Dividend Equivalents”). Unless otherwise determined by the Committee at the date of grant,
any Dividend Equivalents that are granted with respect to any award of restricted stock units shall be either (a) paid with respect
to such restricted stock units at the dividend payment date in cash or in shares of unrestricted stock having a Fair Market Value
equal to the amount of such dividends, or (b) deferred with respect to such restricted stock units and the amount or value thereof
automatically deemed reinvested in additional restricted stock units until the time for delivery of shares (if any) pursuant to
the terms of the restricted stock unit award.


 


9.
Performance Awards. The right of a participant to exercise or receive a grant or settlement of any Incentive, and the timing
thereof, may be subject to such performance conditions as may be specified by the Committee (such an Incentive is referred to
as a “Performance Award”). The Committee may use such business criteria and other measures of performance as it may
deem appropriate in establishing any performance conditions, and may exercise its discretion to change the amounts payable under
any Incentive subject to performance conditions.


 


10. General.


 


10.1.
Plan Effective Date and Stockholder Approval; Termination of Plan. The Plan shall become effective on the Effective Date,
subject to subsequent approval within twelve (12) months of its adoption by the Board by stockholders of the Company eligible
to vote in the election of directors, by a vote sufficient to meet the requirements of Code Section 422, Rule 16b-3 under the
Exchange Act (if applicable), applicable requirements of any stock exchange, if any, and other laws, regulations, and obligations
of the Company applicable to the Plan. Awards may be granted subject to stockholder approval, but may not be exercised or otherwise
settled in the event stockholder approval is not obtained. The Plan shall terminate no later than ten (10) years from the date
of the later of (x) the Effective Date and (y) the date an increase in the number of shares reserved for issuance under the Plan
is approved by the Board (so long as such increase is also approved by the stockholders).


 






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10.2.
Duration. The Plan shall remain in effect until all Incentives granted under the Plan have either been satisfied by the
issuance of shares of Common Stock or the payment of cash or been terminated under the terms of the Plan and all restrictions
imposed on shares of Common Stock in connection with their issuance under the Plan have lapsed. No Incentives may be granted under
the Plan after the tenth anniversary of the Effective Date of the Plan.


 


10.3.
Non-transferability of Incentives. No stock option, SAR, restricted stock or stock award may be transferred, pledged or
assigned by the holder thereof (except, in the event of the holder’s death, by will or the laws of descent and distribution
to the limited extent provided in the Plan or the Incentive, or pursuant to a qualified domestic relations order as defined by
the Code or Title I of the Employee Retirement Income Security Act, or the rules thereunder), and the Company shall not be required
to recognize any attempted assignment of such rights by any participant. Notwithstanding the preceding sentence, stock options
(other than stock options intended to qualify as Incentive Stock Options pursuant to Section 6.5) may be transferred by the holder
thereof to the holder’s spouse, children, grandchildren or parents (collectively, the “Family Members”), to
trusts for the benefit of Family Members, to partnerships or limited liability companies in which Family Members are the only
partners or stockholders, or to entities exempt from federal income taxation pursuant to Code Section 501(c)(3). During a participant’s
lifetime, a stock option may be exercised only by him or her, by his or her guardian or legal representative or by the transferees
permitted by this Section 10.3.


 


10.4.
Effect of Termination or Death. If a participant ceases to be an employee of or consultant to the Company for any reason,
including death or disability, any Incentives may be exercised or shall expire at such times as may be set forth in the agreement,
if any, applicable to the Incentive, or otherwise as determined by the Committee; provided, however, the term of an Incentive
may not be extended beyond the term originally prescribed when the Incentive was granted, unless the Incentive satisfies (or is
amended to satisfy) the requirements of Code Section 409A, including the rules and regulations promulgated thereunder (together,
“Code Section 409A”); and provided further that the term of an Incentive may not be extended beyond the maximum term
permitted under this Plan.


 


10.5.
Restrictions under Securities Laws. Notwithstanding anything in this Plan to the contrary: (a) the Company may, if it shall
determine it necessary or desirable for any reason, at the time of award of any Incentive or the issuance of any shares of Common
Stock pursuant to any Incentive, require the recipient of the Incentive, as a condition to the receipt thereof or to the receipt
of shares of Common Stock issued pursuant thereto, to deliver to the Company a written representation of present intention to
acquire the Incentive or the shares of Common Stock issued pursuant thereto for his or her own account for investment and not
for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration
or qualification (or any updating of any such document) of any Incentive or the shares of Common Stock issuable pursuant thereto
is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval
of any governmental regulatory body is necessary or desirable as a condition of, or in connection with the award of any Incentive,
the issuance of shares of Common Stock pursuant thereto, or the removal of any restrictions imposed on such shares, such Incentive
shall not be awarded or such shares of Common Stock shall not be issued or such restrictions shall not be removed, as the case
may be, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company.


 






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10.6.
Adjustment. In the event of any recapitalization, stock dividend, stock split, combination of shares or other change in
the Common Stock, the number of shares of Common Stock then subject to the Plan, including shares subject to outstanding Incentives,
and the other numbers of shares of Common Stock provided in the Plan, shall be adjusted in proportion to the change in outstanding
shares of Common Stock. In the event of any such adjustments, the purchase price of any option, the performance objectives of
any Incentive, and the shares of Common Stock issuable pursuant to any Incentive shall be adjusted as and to the extent appropriate,
in the discretion of the Committee, to provide participants with the same relative rights before and after such adjustment.


 


10.7.
Incentive Plans and Agreements. Except in the case of stock awards, the terms of each Incentive shall be stated in a plan
or agreement approved by the Committee. The Committee may also determine to enter into agreements with holders of options to reclassify
or convert certain outstanding options, within the terms of the Plan, as Incentive Stock Options or as non-statutory stock options
and in order to eliminate SARs with respect to all or part of such options and any other previously issued options. The Committee
shall communicate the key terms of each award to the participant promptly after the Committee approves the grant of such award.


 


10.8.
Withholding.


 


(a)
The Company shall have the right to withhold from any payments made under the Plan or to collect as a condition of payment,
any taxes required by law to be withheld. If so permitted by the Committee at the time of the award of any Incentive or at a
later time, at any time when a participant is required to pay to the Company an amount required to be withheld under
applicable income tax laws in connection with a distribution of Common Stock or upon exercise of an option or SAR or upon
vesting of restricted stock, the participant may satisfy this obligation in whole or in part by electing (the
“Election”) to have the Company withhold, from the distribution or from such shares of restricted stock, shares
of Common Stock having a value up to the minimum amount of withholding taxes required to be collected on the transaction. The
value of the shares to be withheld shall be based on the Fair Market Value of the Common Stock on the date that the amount of
tax to be withheld shall be determined (“Tax Date”).


 


(b)
Each Election must be made before the Tax Date. The Committee may disapprove of any Election, may suspend or terminate the
right to make Elections, or may provide with respect to any Incentive that the right to make Elections shall not apply to
such Incentive. An Election is irrevocable.


 


10.9.
No Continued Employment, Engagement or Right to Corporate Assets. No participant under the Plan shall have any right, because
of his or her participation, to continue in the employ of the Company for any period of time or to any right to continue his or
her present or any other rate of compensation. Nothing contained in the Plan shall be construed as giving an employee, a consultant,
such persons’ beneficiaries or any other person any equity or interests of any kind in the assets of the Company or creating
a trust of any kind or a fiduciary relationship of any kind between the Company and any such person.


 


10.10. Payments
Under Incentives. Payment of cash or distribution of any shares of Common Stock to which a participant is entitled under
any Incentive shall be made as provided in the Incentive. Except as permitted under Section 10.17, payments and
distributions may not be deferred under any Incentive unless the deferral complies with the requirements of Code Section
409A.


 






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10.11. Amendment
of the Plan. The Board of Directors may amend, modify, suspend, discontinue or terminate the Plan at any time. However,
no such amendment or discontinuance shall adversely change or impair, without the consent of the recipient, an
Incentive previously granted. Further, any amendment or modification that (a) increases the total number of shares available
for issuance pursuant to Incentives granted under the Plan (except as contemplated by the provisions of Section 10.6 relating
to a recapitalization, stock dividend, stock split, combination of shares or other change in the Common Stock), or (b)
requires the approval of the Company’s shareholders pursuant to any applicable law, regulation or securities exchange
rule or listing requirement, shall be subject to approval by the Company’s stockholders.


 


10.12. Amendment
of Agreements for Incentives; No Repricing. Except as otherwise provided in this Section 10.12 or Section 10.17, the
terms of an existing Incentive may be amended by agreement between the Committee and the participant. Notwithstanding
the foregoing sentence, in the case of a stock option or SAR, no such amendment shall (a) without stockholder approval, lower
the exercise price of a previously granted stock option or SAR, cancel a stock option or SAR when the exercise price per
share exceeds the Fair Market Value of the underlying shares in exchange for another Incentive or cash, or take any other
action with respect to a stock option that may be treated as a repricing under the federal securities laws or generally
accepted accounting principles; or (b) extend the term of the Incentive, except as provided in Sections 10.4 and
10.17.


 


10.13. Sale,
Merger, Exchange or Liquidation. Unless otherwise provided in the agreement for an Incentive, in the event of
an acquisition of the Company through the sale of substantially all of the Company’s assets or through a merger,
exchange, reorganization or liquidation of the Company or a similar event as determined by the Committee (collectively a
“transaction”), the Committee shall be authorized, in its sole discretion, to take any and all action it deems
equitable under the circumstances, including but not limited to any one or more of the following:


 


(a)
providing that the Plan and all Incentives shall terminate and the holders of (i) all outstanding vested options shall
receive, in lieu of any shares of Common Stock they would be entitled to receive under such options, such stock, securities
or assets, including cash, as would have been paid to such participants if their options had been exercised and such
participant had received Common Stock immediately before such transaction (with appropriate adjustment for the exercise
price, if any), (ii) SARs that entitle the participant to receive Common Stock shall receive, in lieu of any shares of Common
Stock each participant was entitled to receive as of the date of the transaction pursuant to the terms of such Incentive, if
any, such stock, securities or assets, including cash, as would have been paid to such participant if such Common Stock had
been issued to and held by the participant immediately before such transaction, and (iii) any Incentive under the Employment
Agreement which does not entitle the participant to receive Common Stock shall be equitably treated as determined by the
Committee.


 


(b)
providing that participants holding outstanding vested Common Stock based Incentives shall receive, with respect to each
share of Common Stock issuable pursuant to such Incentives as of the effective date of any such transaction, at the
determination of the Committee, cash, securities or other property, or any combination thereof, in an amount equal to the
excess, if any, of the Fair Market Value of such Common Stock on a date within ten days before the effective date of such
transaction over the option price or other amount owed by a participant, if any, and that such Incentives shall be cancelled,
including the cancellation without consideration of all options that have an exercise price below the per share value of the
consideration received by the Company in the transaction.


 






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(c)
providing that the Plan (or replacement plan) shall continue with respect to Incentives not cancelled or terminated as of
the effective date of such transaction and provide to participants holding such Incentives the right to earn their respective
Incentives on a substantially equivalent basis (taking into account the transaction and the number of shares or other equity
issued by such successor entity) with respect to the equity of the entity succeeding the Company by reason of such
transaction.


 


(d)
providing that all unvested, unearned or restricted Incentives, including but not limited to restricted stock for which
restrictions have not lapsed as of the effective date of such transaction, shall be void and deemed terminated, or, in the
alternative, for the acceleration or waiver of any vesting, earning or restrictions on any Incentive.


 


The
Board of Directors may restrict the rights of participants or the applicability of this Section 10.13 to the extent necessary
to comply with Section 16(b) of the 1934 Act, the Code or any other applicable law or regulation. The grant of an Incentive award
pursuant to the Plan shall not limit in any way the right or power of the Company to make adjustments, reclassifications, reorganizations
or changes of its capital or business structure or to merge, exchange or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.


 


10.14. Definition
of Fair Market Value. For purposes of this Plan, the “Fair Market Value” of a share of Common Stock at a
specified date shall, unless otherwise expressly provided in this Plan, be the amount which the Committee determines in
good faith to be 100% of the fair market value of such a share as of the date in question. Notwithstanding the
foregoing:


 


(a)
If such shares are listed on a U.S. securities exchange, then Fair Market Value shall be determined by reference to the last
sale price of a share of Common Stock on such U.S. securities exchange on the applicable date. If such U.S. securities
exchange is closed for trading on such date, or if the Common Stock does not trade on such date, then the last sale price
used shall be the one on the date the Common Stock last traded on such U.S. securities exchange.


 


(b)
If such shares are publicly traded but are not listed on a U.S. securities exchange, then Fair Market Value shall be
determined by reference to the trading price of a share of Common Stock on such date (or, if the applicable market is closed
on such date, the last date on which the Common Stock was publicly traded), by a method consistently applied by the
Committee.


 


(c)
If such shares are not publicly traded, then the Committee’s determination will be based upon a good faith valuation
of the Company’s Common Stock as of such date, which shall be based upon such factors as the Committee deems
appropriate. The valuation shall be accomplished in a manner that complies with Code Section 409A and shall be consistently
applied to Incentives under the Plan.


 


10.15. Definition
of Grant Date. For purposes of this Plan, the “Grant Date” of an Incentive shall be the date on which the
Committee approved the award or, if later, the date established by the Committee as the date of grant of the
Incentive.


 






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10.16. Compliance
with Code Section 409A.


 


(a)
Except to the extent such acceleration or deferral is permitted by the requirements of Code Section 409A, neither the
Committee nor a participant may accelerate or defer the time or schedule of any payment of, or the amount scheduled to be
paid under, an Incentive that constitutes Deferred Compensation (as defined in paragraph(d) below); provided, however, that
payment shall be permitted if it is in accordance with a “specified time” or “fixed schedule” or on
account of “separation from service,” “disability,” death, “change in control” or “
unforeseeable emergency” (as those terms are defined under Code Section 409A) that is specified in the agreement
evidencing the Incentive.


 


(b)
Notwithstanding anything in this Plan, unless the agreement evidencing the Incentive specifically provides otherwise, if a
participant is treated as a Specified Employee (as defined in paragraph (d) and as determined under Code Section 409A by the
Committee in good faith) as of the date of his or her “separation from service” as defined for purposes of Code
Section 409A, the Company may not make payment to the participant of any Incentive that constitutes Deferred Compensation,
earlier than 6 months following the participant’s separation from service (or if earlier, upon the Specified
Employee’s death), except as permitted under Code Section 409A. Any payments that otherwise would be payable to the
Specified Employee during the foregoing 6-month period will be accumulated and payment delayed until the first date after the
6-month period. The Committee may specify in the Incentive agreement, that the amount of the Deferred Compensation delayed
under this paragraph shall accumulate interest, earnings or Dividend Equivalents (as applicable) during the period of such
delay.


 


(c)
The Committee may, however, reform any provision in an Incentive that is intended to comply with (or be exempt from) Code
Section 409A, to maintain to the maximum extent practicable the original intent of the applicable provision without violating
the provisions of Code Section 409A.


 


(d)
For purposes of this Section 10.17, “Deferred Compensation” means any Incentive under this Plan that provides
for the “deferral of compensation” under a “nonqualified deferred compensation plan” (as those terms
are defined under Code Section 409A) and that would be subject to the taxes specified in Code Section 409A(a)(1) if and to
the extent that the Plan and the agreement evidencing the Incentive do not meet or are not operated in compliance with the
requirements of paragraphs (a)(2), (a)(3) and (a)(4) of Code Section 409A. Deferred Compensation shall not include any
amount that is otherwise exempt from the requirements of Code Section 409A. A “Specified Employee” means a
Participant who is a “key employee” as described in Code Section 416 (i) (disregarding paragraph (5) thereof) at
any time during the Company’s fiscal year ending on January 31, or such other “identification date” that
applies consistently for all plans of the Company that provide “deferred compensation” that is subject to the
requirements of Code Section 409A. Each participant will be identified as a Specified Employee in accordance with Code
Section 409A, including with respect to the merger of the Company with any other company or any spin-off or similar
transaction, and such identification shall apply for the 12-month period commencing on the first day of the fourth month
following the identification date. Notwithstanding the foregoing, no participant shall be a Specified Employee unless the
stock of the Company (or other member of a “controlled group of corporations” as determined under Code Section
1563) is publicly traded on an established securities market (or otherwise) as of the date of the
participant’s “separation from service” as defined in Code Section 409A.


 






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Approved
by the Board of Directors on _________________.


 


Approved
by the stockholders of the Company on _________________.


 




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