fubotv-2022employmentind






  US-DOCS\132933796.2  FUBOTV INC.  2022 EMPLOYMENT INDUCEMENT EQUITY INCENTIVE PLAN     1. Purposes of the Plan. The purposes of this Plan are:     • to attract and retain the best available personnel for positions of substantial responsibility,    • to provide additional incentive to Eligible Individuals, and    • to promote the success of the Company’s business.    The Plan permits the grant of Nonstatutory Stock Options, Stock Appreciation Rights, Restricted  Stock, Restricted Stock Units, Performance Units and Performance Shares.     2. Definitions. As used herein, the following definitions will apply:     (a)  “Administrator” means the Committee, unless the Board has assumed the authority for  administration of the Plan generally in accordance with Section 4 of the Plan.     (b) “Applicable Laws” means the legal and regulatory requirements relating to the  administration of equity-based awards, including but not limited to the related issuance of shares  of Common Stock, including but not limited to under U.S. federal and state corporate laws, U.S.  federal and state securities laws, the Code, any stock exchange or quotation system on which the  Common Stock is listed or quoted and the applicable laws of any non-U.S. country or jurisdiction  where Awards are, or will be, granted under the Plan.     (c) “Award” means, individually or collectively, a grant under the Plan of Options, Stock  Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Units or Performance  Shares.     (d) “Award Agreement” means the written or electronic agreement setting forth the terms and  provisions applicable to each Award granted under the Plan. The Award Agreement is subject to  the terms and conditions of the Plan.     (e) “Board” means the Board of Directors of the Company.     (f) “Change in Control” means the occurrence of any of the following events:     (i) Change in Ownership of the Company. A change in the ownership of the  Company which occurs on the date that any one person, or more than one person  acting as a group (“Person”), acquires ownership of the stock of the Company that,  together with the stock held by such Person, constitutes more than fifty percent  (50%) of the total voting power of the stock of the Company; provided, however,  that for purposes of this subsection, the acquisition of additional stock by any one  Person, who is considered to own more than fifty percent (50%) of the total voting  power of the stock of the Company will not be considered a Change in Control.  Further, if the stockholders of the Company immediately before such change in  ownership continue to retain immediately after the change in ownership, in  substantially the same proportions as their ownership of shares of the Company’s  voting stock immediately prior to the change in ownership, direct or indirect  beneficial ownership of fifty percent (50%) or more of the total voting power of  





 






2    US-DOCS\132933796.2  the stock of the Company or of the ultimate parent entity of the Company, such  event shall not be considered a Change in Control under this subsection (i). For  this purpose, indirect beneficial ownership shall include, without limitation, an  interest resulting from ownership of the voting securities of one or more  corporations or other business entities which own the Company, as the case may  be, either directly or through one or more subsidiary corporations or other business  entities; or     (ii) Change in Effective Control of the Company. A change in the effective control of  the Company which occurs on the date that a majority of members of the Board is  replaced during any twelve (12) month period by Directors whose appointment or  election is not endorsed by a majority of the members of the Board prior to the date  of the appointment or election. For purposes of this subsection (ii), if any Person  is considered to be in effective control of the Company, the acquisition of  additional control of the Company by the same Person will not be considered a  Change in Control; or     (iii) Change in Ownership of a Substantial Portion of the Company’s Assets. A change  in the ownership of a substantial portion of the Company’s assets which occurs on  the date that any Person acquires (or has acquired during the twelve (12) month  period ending on the date of the most recent acquisition by such person or  persons) assets from the Company that have a total gross fair market value equal  to or more than fifty percent (50%) of the total gross fair market value of all of the  assets of the Company immediately prior to such acquisition or acquisitions;  provided, however, that for purposes of this subsection (iii), the following will not  constitute a change in the ownership of a substantial portion of the Company’s  assets: (A) a transfer to an entity that is controlled by the Company’s stockholders  immediately after the transfer, or (B) a transfer of assets by the Company to: (1) a  stockholder of the Company (immediately before the asset transfer) in exchange  for or with respect to the Company’s stock, (2) an entity, fifty percent (50%) or  more of the total value or voting power of which is owned, directly or indirectly,  by the Company, (3) a Person, that owns, directly or indirectly, fifty percent  (50%) or more of the total value or voting power of all the outstanding stock of the  Company, or (4) an entity, at least fifty percent (50%) of the total value or voting  power of which is owned, directly or indirectly, by a Person described in this  subsection (iii)(B)(3). For purposes of this subsection (iii), gross fair market value  means the value of the assets of the Company, or the value of the assets being  disposed of, determined without regard to any liabilities associated with such  assets.         For purposes of this Section 2(f), persons will be considered to be acting as a group  if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock,  or similar business transaction with the Company.     Notwithstanding the foregoing, a transaction will not be deemed a Change in  Control unless the transaction qualifies as a change in control event within the meaning of Code Section  409A, as it has been and may be amended from time to time, and any proposed or final Treasury Regulations  and Internal Revenue Service guidance that has been promulgated or may be promulgated thereunder from  time to time.     





 






3    US-DOCS\132933796.2  Further and for the avoidance of doubt, a transaction will not constitute a Change  in Control if: (i) its sole purpose is to change the jurisdiction of the Company’s incorporation, or (ii) its sole  purpose is to create a holding company that will be owned in substantially the same proportions by the  persons who held the Company’s securities immediately before such transaction.     (g) “Code” means the Internal Revenue Code of 1986, as amended. Reference to a specific  section of the Code or regulation thereunder shall include such section or regulation, any  valid regulation promulgated under such section, and any comparable provision of any  future legislation or regulation amending, supplementing or superseding such section or  regulation.     (h) “Committee” means the Compensation Committee of the Board comprised of two or more  Directors, each of whom is intended to qualify as an Outside Director and an Independent  Director.     (i) “Common Stock” means the common stock of the Company.     (j) “Company” means fuboTV Inc., a Florida corporation, or any successor thereto.     (k) “Consultant” means any natural person, including an advisor, engaged by the Company or  a Parent or Subsidiary to render bona fide services to such entity, provided the services  (i) are not in connection with the offer or sale of securities in a capital-raising transaction,  and (ii) do not directly promote or maintain a market for the Company’s securities, in each  case, within the meaning of Form S-8 promulgated under the Securities Act, and provided  further, that a Consultant will include only those persons to whom the issuance of Shares  may be registered under Form S-8 promulgated under the Securities Act.     (l) “Director” means a member of the Board.     (m) “Disability” means total and permanent disability as defined in Code Section 22(e)(3),  provided that the Administrator in its discretion may determine whether a permanent and  total disability exists in accordance with uniform and non-discriminatory standards adopted  by the Administrator from time to time.     (n) “Eligible Individual” means any prospective Employee who is commencing employment  with the Company or a Subsidiary, or is being rehired following a bona fide interruption  of employment by the Company or a Subsidiary, if he or she is granted an Award in  connection with his or her commencement of employment with the Company or a  Subsidiary and such grant is an inducement material to his or her entering into employment  with the Company or a Subsidiary (within the meaning of New York Stock Exchange Rule  303A.08 or any successor rule, if the Company’s securities are traded on the New York  Stock Exchange, and/or the applicable requirements of any other established stock  exchange on which the Company’s securities are traded, as applicable, as such rules and  requirements may be amended from time to time).  Notwithstanding the foregoing, if the  Company’s securities are traded on the Nasdaq Stock Market, an “Eligible Individual” shall  not include any prospective employee who has previously been an employee or director of  the Company or a Parent or Subsidiary unless following a bona fide period of non- employment by the Company or a Parent or Subsidiary. The Administrator may in its  discretion adopt procedures from time to time to ensure that a prospective Employee is  eligible to participate in the Plan prior to the granting of any Awards to such individual  under the Plan (including without limitation a requirement that each such prospective  





 






4    US-DOCS\132933796.2  Employee certify to the Company prior to the receipt of an Award under the Plan that he  or she has not been previously employed by the Company or a Parent or Subsidiary, or if  previously employed, has had a bona fide interruption of employment, and that the grant  of Awards under the Plan is an inducement material to his or her agreement to enter into  employment with the Company or a Subsidiary).    (o) “Employee” means any person employed by the Company or any Parent or Subsidiary of  the Company. Neither service as a Director nor payment of a director’s fee by the Company  will be sufficient to constitute “employment” by the Company.     (p) “Exchange Act” means the Securities Exchange Act of 1934, as amended.     (q) “Exchange Program” means a program under which (i) outstanding Awards are  surrendered or cancelled in exchange for awards of the same type (which may have higher  or lower exercise prices and different terms), awards of a different type, and/or cash, (ii)  Participants would have the opportunity to transfer any outstanding Awards to a financial  institution or other person or entity selected by the Administrator, and/or (iii) the exercise  price of an outstanding Award is reduced or increased. The Administrator will determine  the terms and conditions of any Exchange Program in its sole discretion.     (r) “Fair Market Value” means, as of any date, the value of Common Stock determined as  follows:     (i) If the Common Stock is listed on any established stock exchange or a national  market system (other than an over-the counter market, which will not be  considered an established stock exchange of national market system for the  purposes of this definition), including without limitation the New York Stock  Exchange, the Nasdaq Global Select Market, the Nasdaq Global Market or the  Nasdaq Capital Market of The Nasdaq Stock Market, its Fair Market Value will  be the closing sales price for such stock (or, if no closing sales price was reported  on that date, as applicable, on the last trading date such closing sales price was  reported) as quoted on such exchange or system on the day of determination, as  reported in The Wall Street Journal or such other source as the Administrator  deems reliable;     (ii) If the Common Stock is regularly quoted by a recognized securities dealer but  selling prices are not reported, the Fair Market Value of a Share will be the mean  between the high bid and low asked prices for the Common Stock on the day of  determination (or, if no bids and asks were reported on that date, as applicable, on  the last trading date such bids and asks were reported), as reported in The Wall  Street Journal or such other source as the Administrator deems reliable;     (iii) In the absence of an established market for the Common Stock, the Fair Market  Value will be determined in good faith by the Administrator.     (s) “Fiscal Year” means the fiscal year of the Company.     (t) “Independent Director” means a Director of the Company who is not an Employee and  who qualifies as “independent” within the meaning of New York Stock Exchange Rule  303A.02, or any successor rule, if the Company’s securities are traded on the New York  Stock Exchange, and/or the applicable requirements of any other established stock  





 






5    US-DOCS\132933796.2  exchange on which the Company’s securities are traded, as applicable, as such rules and  requirements may be amended from time to time.    (u) “Nonstatutory Stock Option” means an Option that by its terms does not qualify or is not  intended to qualify as an incentive stock option within the meaning of Code Section 422  and the regulations promulgated thereunder.     (v) “Officer” means a person who is an officer of the Company within the meaning of Section  16 of the Exchange Act and the rules and regulations promulgated thereunder.     (w) “Option” means a stock option granted pursuant to the Plan.     (x) “Outside Director” means a Director who is not an Employee.     (y) “Parent” means a “parent corporation,” whether now or hereafter existing, as defined in  Code Section 424(e).     (z) “Participant” means the holder of an outstanding Award.     (aa) “Performance Share” means an Award denominated in Shares which may be earned in  whole or in part upon attainment of performance goals or other vesting criteria as the  Administrator may determine pursuant to Section 10.     (bb)  “Performance Unit” means an Award which may be earned in whole or in part upon  attainment of performance goals or other vesting criteria as the Administrator may  determine and which may be settled for cash, Shares or other securities or a combination  of the foregoing pursuant to Section 10.     (cc) “Period of Restriction” means the period during which the transfer of Shares of Restricted  Stock are subject to restrictions and therefore, the Shares are subject to a substantial risk of  forfeiture. Such restrictions may be based on the passage of time, the achievement of target  levels of performance, or the occurrence of other events as determined by the  Administrator.     (dd) “Plan” means this 2022 Employment Inducement Equity Incentive Plan.     (ee) “Restricted Stock” means Shares issued pursuant to an Award of Restricted Stock under  Section 8 of the Plan, or issued pursuant to the early exercise of an Option.     (ff) “Restricted Stock Unit” means a bookkeeping entry representing an amount equal to the  Fair Market Value of one Share, granted pursuant to Section 9. Each Restricted Stock Unit  represents an unfunded and unsecured obligation of the Company.     (gg) “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in  effect when discretion is being exercised with respect to the Plan.     (hh) “Section 16(b)” means Section 16(b) of the Exchange Act.     (ii) “Securities Act” means the Securities Act of 1933, as amended.     (jj) “Service Provider” means an Employee, Director or Consultant.  





 






6    US-DOCS\132933796.2     (kk) “Share” means a share of the Common Stock, as adjusted in accordance with Section 15  of the Plan.     (ll) “Stock Appreciation Right” means an Award, granted alone or in connection with an  Option, that pursuant to Section 7 is designated as a Stock Appreciation Right.     (mm) “Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing, as  defined in Code Section 424(f).     3. Stock Subject to the Plan.     (a) Stock Subject to the Plan. Subject to the provisions of Section 15 of the Plan, the maximum  aggregate number of Shares that may be subject to Awards and sold under the Plan is  3,250,000 Shares. The Shares may be authorized but unissued or treasury Shares.     (b) Lapsed Awards. If an Award expires or becomes unexercisable without having been  exercised in full, is surrendered pursuant to an Exchange Program, or, with respect to  Restricted Stock, Restricted Stock Units, Performance Units or Performance Shares, is  forfeited to or repurchased by the Company due to the failure to vest, the unpurchased  Shares (or for Awards other than Options or Stock Appreciation Rights the forfeited or  repurchased Shares) which were subject thereto will become available for future grant or  sale under the Plan (unless the Plan has terminated). With respect to Stock Appreciation  Rights, only Shares actually issued pursuant to a Stock Appreciation Right will cease to be  available under the Plan; all remaining Shares under Stock Appreciation Rights will remain  available for future grant or sale under the Plan (unless the Plan has terminated). Shares  that have actually been issued under the Plan under any Award will not be returned to the  Plan and will not become available for future distribution under the Plan; provided,  however, that if Shares issued pursuant to Awards of Restricted Stock, Restricted Stock  Units, Performance Shares or Performance Units are repurchased by the Company or are  forfeited to the Company due to the failure to vest, such Shares will become available for  future grant under the Plan. Shares used to pay the exercise price of an Award or to satisfy  the tax withholdings related to an Award will become available for future grant or sale  under the Plan. To the extent an Award under the Plan is paid out in cash rather than Shares,  such cash payment will not result in reducing the number of Shares available for issuance  under the Plan. Notwithstanding the provisions of this Section 3, no Shares shall again be  available for future grants of Awards under the Plan pursuant to this Section 3 to the extent  that such return of shares would cause the Plan to constitute a “formula plan” or constitute  a “material revision” of the Plan subject to stockholder approval under the then-applicable  rules of the New York Stock Exchange (or any other applicable exchange or quotation  system).        (c) Share Reserve. The Company, during the term of this Plan, will at all times reserve and  keep available such number of Shares as will be sufficient to satisfy the requirements of  the Plan.        





 






7    US-DOCS\132933796.2  4. Administration of the Plan.      (a) Procedure.     (i) Administrator. The Plan will be administered by the Committee, which Committee  will be constituted to satisfy Applicable Laws. The Board may abolish the  Committee or re-vest in itself any previously delegated authority at any time;  provided, however, that any action taken by the Board in connection with the  administration of the Plan shall not be deemed approved by the Board unless such  actions are approved by a majority of the Independent Directors. Awards under the  Plan will be approved by (a) the Committee comprised entirely of Independent  Directors or (b) a majority of the Company’s Independent Directors.     (ii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exempt  under Rule 16b-3, the transactions contemplated hereunder will be structured to  satisfy the requirements for exemption under Rule 16b-3.        (b) Powers of the Administrator. Subject to the provisions of the Plan the Administrator will  have the authority, in its discretion:     (i) to determine the Fair Market Value;     (ii) to select the Eligible Individuals to whom Awards may be granted hereunder;     (iii) to determine the number of Shares to be covered by each Award granted hereunder;     (iv) to approve forms of Award Agreements for use under the Plan;     (v) to determine the terms and conditions, not inconsistent with the terms of the Plan,  of any Award granted hereunder. Such terms and conditions include, but are not  limited to, the exercise price, the time or times when Awards may be exercised  (which may be based on performance criteria), any vesting acceleration or waiver  of forfeiture restrictions, and any restriction or limitation regarding any Award or  the Shares relating thereto, based in each case on such factors as the Administrator  will determine;     (vi) to institute and determine the terms and conditions of an Exchange Program,  without stockholder approval;     (vii) to construe and interpret the terms of the Plan and Awards granted pursuant to the  Plan;     (viii) to prescribe, amend and rescind rules and regulations relating to the Plan, including  rules and regulations relating to sub-plans established for the purpose of satisfying  applicable non-U.S. laws or for qualifying for favorable tax treatment under  applicable non-U.S. laws;     (ix) to modify or amend each Award (subject to Section 20(c) of the Plan), including  but not limited to the discretionary authority to extend the post-termination  





 






8    US-DOCS\132933796.2  exercisability period of Awards; provided, however, that in no case will an Option  or Stock Appreciation Right be extended beyond its original maximum term;     (x) to allow Participants to satisfy tax withholding obligations in a manner prescribed  in Section 15(d);     (xi) to authorize any person to execute on behalf of the Company any instrument  required to effect the grant of an Award previously granted by the Administrator;     (xii) to allow a Participant to defer the receipt of the payment of cash or the delivery of  Shares that otherwise would be due to such Participant under an Award;      (xiii) to make all other determinations deemed necessary or advisable for administering  the Plan; and    (xiv) to adopt procedures from time to time intended to ensure that an individual is an  Eligible Individual prior to the granting of any Awards to such individual under  the Plan (including without limitation a requirement, if any, that each such  individual certify to the Company prior to the receipt of an Award under the Plan  that he or she has not been previously employed by the Company or Parent or a  Subsidiary, or if previously employed, has had a bona fide period of non- employment, and that the grant of Awards under the Plan is an inducement material  to his or her agreement to enter into employment with the Company or a  Subsidiary).     (c) Effect of Administrator’s Decision. The Administrator’s decisions, determinations and  interpretations will be final and binding on all Participants and any other holders of Awards  and will be given the maximum deference permitted by Applicable Laws.     5. Eligibility. Restricted Stock, Restricted Stock Units, Performance Shares and Performance Units  may be granted to any Eligible Individuals. Nonstatutory Stock Options and Stock Appreciation Rights, to  the extent required for exemption under Section 409A, may be granted only to Eligible Individuals  rendering services to the Company or a Subsidiary (not a Parent).      6. Stock Options.     (a) Grant of Options. Subject to the terms and provisions of the Plan, the Administrator, at any  time and from time to time, may grant Options in such amounts as the Administrator, in its  sole discretion, will determine.     (b) Option Agreement. Each Award of an Option will be evidenced by an Award Agreement  that will specify the exercise price, the term of the Option, the number of Shares subject to  the Option, the exercise restrictions, if any, applicable to the Option, and such other terms  and conditions as the Administrator, in its sole discretion, will determine.     (c) Limitations. Each Option granted under the Plan will be a Nonstatutory Stock Option.      (d) Term of Option. The term of each Option will be stated in the Award Agreement and will  be no more than ten (10) years from the date of grant thereof.      (e) Option Exercise Price and Consideration.  





 






9    US-DOCS\132933796.2     (i) Exercise Price. The per Share exercise price for the Shares to be issued pursuant  to the exercise of an Option will be determined by the Administrator and shall be  no less than one hundred percent (100%) of the Fair Market Value per Share on  the date of grant (or the fair market value per Share as determined in accordance  with Treas. Reg. 1.409A-1(b)(5)(iv)(A)).       (ii) Waiting Period and Exercise Dates. At the time an Option is granted, the  Administrator will fix the period within which the Option may be exercised and  will determine any conditions that must be satisfied before the Option may be  exercised.     (iii) Form of Consideration. The Administrator will determine the acceptable form of  consideration for exercising an Option, including the method of payment. Such  consideration may consist entirely of: (1) cash; (2) check; (3) promissory note; to  the extent permitted by Applicable Laws; (4) other Shares, provided that such  Shares have a Fair Market Value on the date of surrender equal to the aggregate  exercise price of the Shares as to which such Option will be exercised and provided  further that accepting such Shares will not result in any adverse accounting  consequences to the Company, as the Administrator determines in its sole  discretion; (5) consideration received by the Company under a broker assisted (or  other) cashless exercise program (whether through a broker or otherwise)  implemented by the Company in connection with the Plan; (6) by net exercise; (7)  such other consideration and method of payment for the issuance of Shares to the  extent permitted by Applicable Laws; or (8) any combination of the foregoing  methods of payment. In making its determination as to the type of consideration to  accept, the Administrator will consider if acceptance of such consideration may be  reasonably expected to benefit the Company.     (f) Exercise of Option.     (i) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunder  will be exercisable according to the terms of the Plan and at such times and under  such conditions as determined by the Administrator and set forth in the Award  Agreement. An Option may not be exercised for a fraction of a Share.     An Option will be deemed exercised when the Company receives: (i) notice of  exercise (in such form as the Administrator may specify from time to time) from  the person entitled to exercise the Option, and (ii) full payment for the Shares with  respect to which the Option is exercised (together with applicable tax withholding).  Full payment may consist of any consideration and method of payment authorized  by the Administrator and permitted by the Award Agreement and the Plan. Shares  issued upon exercise of an Option will be issued in the name of the Participant or,  if requested by the Participant, in the name of the Participant and his or her spouse.  Until the Shares are issued (as evidenced by the appropriate entry on the books of  the Company or of a duly authorized transfer agent of the Company), no right to  vote or receive dividends or any other rights as a stockholder will exist with respect  to the Shares subject to an Option, notwithstanding the exercise of the Option. The  Company will issue (or cause to be issued) such Shares promptly after the Option  is exercised. No adjustment will be made for a dividend or other right for which  





 






10    US-DOCS\132933796.2  the record date is prior to the date the Shares are issued, except as provided in  Section 15 of the Plan.     Exercising an Option in any manner will decrease the number of Shares thereafter  available, both for purposes of the Plan and for sale under the Option, by the  number of Shares as to which the Option is exercised.     (ii) Termination of Relationship as a Service Provider. If a Participant ceases to be a  Service Provider, other than upon the Participant’s termination as the result of the  Participant’s death or Disability, the Participant may exercise his or her Option  within such period of time as is specified in the Award Agreement to the extent  that the Option is vested on the date of termination (but in no event later than the  expiration of the term of such Option as set forth in the Award Agreement). In the  absence of a specified time in the Award Agreement, the Option will remain  exercisable for three (3) months following the Participant’s termination. Unless  otherwise provided by the Administrator, if on the date of termination the  Participant is not vested as to his or her entire Option, the Shares covered by the  unvested portion of the Option will revert to the Plan. If after termination the  Participant does not exercise his or her Option within the time specified by the  Administrator, the Option will terminate, and the Shares covered by such Option  will revert to the Plan.     (iii) Disability of Participant. If a Participant ceases to be a Service Provider as a result  of the Participant’s Disability, the Participant may exercise his or her Option within  such period of time as is specified in the Award Agreement to the extent the Option  is vested on the date of termination (but in no event later than the expiration of the  term of such Option as set forth in the Award Agreement). In the absence of a  specified time in the Award Agreement, the Option will remain exercisable for  twelve (12) months following the Participant’s termination. Unless otherwise  provided by the Administrator, if on the date of termination the Participant is not  vested as to his or her entire Option, the Shares covered by the unvested portion of  the Option will revert to the Plan. If after termination the Participant does not  exercise his or her Option within the time specified herein, the Option will  terminate, and the Shares covered by such Option will revert to the Plan.     (iv) Death of Participant. If a Participant dies while a Service Provider, the Option may  be exercised following the Participant’s death within such period of time as is  specified in the Award Agreement to the extent that the Option is vested on the  date of death (but in no event may the option be exercised later than the expiration  of the term of such Option as set forth in the Award Agreement), by the  Participant’s designated beneficiary, provided such beneficiary has been  designated prior to Participant’s death in a form acceptable to the Administrator.  If no such beneficiary has been designated by the Participant, then such Option  may be exercised by the personal representative of the Participant’s estate or by  the person(s) to whom the Option is transferred pursuant to the Participant’s will  or in accordance with the laws of descent and distribution. In the absence of a  specified time in the Award Agreement, the Option will remain exercisable for  twelve (12) months following Participant’s death. Unless otherwise provided by  the Administrator, if at the time of death Participant is not vested as to his or her  entire Option, the Shares covered by the unvested portion of the Option will  immediately revert to the Plan. If the Option is not so exercised within the time  





 






11    US-DOCS\132933796.2  specified herein, the Option will terminate, and the Shares covered by such Option  will revert to the Plan.     7. Stock Appreciation Rights.     (a) Grant of Stock Appreciation Rights. Subject to the terms and conditions of the Plan, a Stock  Appreciation Right may be granted to Eligible Individuals at any time and from time to  time as will be determined by the Administrator, in its sole discretion.     (b) Number of Shares. The Administrator will have complete discretion to determine the  number of Shares subject to any Award of Stock Appreciation Rights.     (c) Exercise Price and Other Terms. The per Share exercise price for the Shares that will  determine the amount of the payment to be received upon exercise of a Stock Appreciation  Right as set forth in Section 7(f) will be determined by the Administrator and will be no  less than one hundred percent (100%) of the Fair Market Value per Share on the date of  grant. Otherwise, the Administrator, subject to the provisions of the Plan, will have  complete discretion to determine the terms and conditions of Stock Appreciation Rights  granted under the Plan.     (d) Stock Appreciation Right Agreement. Each Stock Appreciation Right grant will be  evidenced by an Award Agreement that will specify the exercise price, the term of the  Stock Appreciation Right, the conditions of exercise, and such other terms and conditions  as the Administrator, in its sole discretion, will determine.     (e) Expiration of Stock Appreciation Rights. A Stock Appreciation Right granted under the  Plan will expire upon the date determined by the Administrator, in its sole discretion, and  set forth in the Award Agreement. Notwithstanding the foregoing, the rules of Section 6(d)  relating to the maximum term and Section 6(f) relating to exercise also will apply to Stock  Appreciation Rights.     (f) Payment of Stock Appreciation Right Amount. Upon exercise of a Stock Appreciation  Right, a Participant will be entitled to receive payment from the Company in an amount  determined by multiplying:     (i) The difference between the Fair Market Value of a Share on the date of exercise  over the exercise price; times     (ii) The number of Shares with respect to which the Stock Appreciation Right is  exercised.     At the discretion of the Administrator, the payment upon Stock Appreciation Right exercise  may be in cash, in Shares of equivalent value, or in some combination thereof.     8. Restricted Stock.     (a) Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the  Administrator, at any time and from time to time, may grant Shares of Restricted Stock to  Eligible Individuals in such amounts as the Administrator, in its sole discretion, will  determine.     





 






12    US-DOCS\132933796.2  (b) Restricted Stock Agreement. Each Award of Restricted Stock will be evidenced by an  Award Agreement that will specify the Period of Restriction, the number of Shares granted,  and such other terms and conditions as the Administrator, in its sole discretion, will  determine. Unless the Administrator determines otherwise, the Company as escrow agent  will hold Shares of Restricted Stock until the restrictions on such Shares have lapsed.     (c) Transferability. Except as provided in this Section 8 or as the Administrator determines,  Shares of Restricted Stock may not be sold, transferred, pledged, assigned, or otherwise  alienated or hypothecated until the end of the applicable Period of Restriction.     (d) Other Restrictions. The Administrator, in its sole discretion, may impose such other  restrictions on Shares of Restricted Stock as it may deem advisable or appropriate.     (e) Removal of Restrictions. Except as otherwise provided in this Section 8, Shares of  Restricted Stock covered by each Restricted Stock grant made under the Plan will be  released from escrow as soon as practicable after the last day of the Period of Restriction  or at such other time as the Administrator may determine. The Administrator, in its  discretion, may accelerate the time at which any restrictions will lapse or be removed.     (f) Voting Rights. During the Period of Restriction, Service Providers holding Shares of  Restricted Stock granted hereunder may exercise full voting rights with respect to those  Shares, unless the Administrator determines otherwise.     (g) Dividends and Other Distributions. During the Period of Restriction, Service Providers  holding Shares of Restricted Stock will be entitled to receive all dividends and other  distributions paid with respect to such Shares, unless the Administrator provides otherwise.  If any such dividends or distributions are paid in Shares, the Shares will be subject to the  same restrictions on transferability and forfeitability as the Shares of Restricted Stock with  respect to which they were paid.     (h) Return of Restricted Stock to Company. On the date set forth in the Award Agreement, the  Restricted Stock for which restrictions have not lapsed will revert to the Company and  again will become available for grant under the Plan.     9. Restricted Stock Units.     (a) Grant. Restricted Stock Units may be granted at any time and from time to time as  determined by the Administrator. After the Administrator determines that it will grant  Restricted Stock Units under the Plan, it will advise the Participant in an Award Agreement  of the terms, conditions, and restrictions related to the grant, including the number of  Restricted Stock Units.     (b) Vesting Criteria and Other Terms. The Administrator will set vesting criteria in its  discretion, which, depending on the extent to which the criteria are met, will determine the  number of Restricted Stock Units that will be paid out to the Participant. The Administrator  may set vesting criteria based upon the achievement of Company-wide, divisional, business  unit, or individual goals (including, but not limited to, continued employment or service),  applicable federal or state securities laws, or any other basis determined by the  Administrator in its discretion.     





 






13    US-DOCS\132933796.2  (c) Earning Restricted Stock Units. Upon meeting the applicable vesting criteria, the  Participant will be entitled to receive a payout as determined by the Administrator.  Notwithstanding the foregoing, at any time after the grant of Restricted Stock Units, the  Administrator, in its sole discretion, may reduce or waive any vesting criteria that must be  met to receive a payout.     (d) Form and Timing of Payment. Payment of earned Restricted Stock Units will be made as  soon as practicable after the date(s) determined by the Administrator and set forth in the  Award Agreement which shall establish exemption or comply with all requirements of  Code Section 409A. The Administrator, in its sole discretion, may settle earned Restricted  Stock Units in cash, Shares, or a combination of both.     (e) Cancellation. On the date set forth in the Award Agreement, all unearned Restricted Stock  Units will be forfeited to the Company.     10. Performance Units and Performance Shares.     (a) Grant of Performance Units/Shares. Performance Units and Performance Shares may be  granted to Eligible Individuals at any time and from time to time, as will be determined by  the Administrator, in its sole discretion. The Administrator will have complete discretion  in determining the number of Performance Units and Performance Shares granted to each  Participant.     (b) Value of Performance Units/Shares. Each Performance Unit will have an initial value that  is established by the Administrator on or before the date of grant. Each Performance Share  will have an initial value equal to the Fair Market Value of a Share on the date of grant.     (c) Performance Objectives and Other Terms. The Administrator will set performance  objectives or other vesting provisions (including, without limitation, continued status as a  Service Provider) in its discretion which, depending on the extent to which they are met,  will determine the number or value of Performance Units/Shares that will be paid out to  the Service Providers. The time period during which the performance objectives or other  vesting provisions must be met will be called the “Performance Period.” Each Award of  Performance Units/Shares will be evidenced by an Award Agreement that will specify the  Performance Period, and such other terms and conditions as the Administrator, in its sole  discretion, will determine. The Administrator may set performance objectives based upon  the achievement of Company-wide, divisional, business unit or individual goals (including,  but not limited to, continued employment or service), applicable federal or state securities  laws, or any other basis determined by the Administrator in its discretion.     (d) Earning of Performance Units/Shares. After the applicable Performance Period has ended,  the holder of Performance Units/Shares will be entitled to receive a payout of the number  of Performance Units/Shares earned by the Participant over the Performance Period, to be  determined as a function of the extent to which the corresponding performance objectives  or other vesting provisions have been achieved. After the grant of a Performance  Unit/Share, the Administrator, in its sole discretion, may reduce or waive any performance  objectives or other vesting provisions for such Performance Unit/Share.     (e) Form and Timing of Payment of Performance Units/Shares. Payment of earned  Performance Units/Shares will be made as soon as practicable after the expiration of the  applicable Performance Period or at such other time as may be specified in the Award  





 






14    US-DOCS\132933796.2  Agreement which shall establish exemption or comply with all requirements of Code  Section 409A. The Administrator, in its sole discretion, may pay earned Performance  Units/Shares in the form of cash, in Shares (which have an aggregate Fair Market Value  equal to the value of the earned Performance Units/Shares at the close of the applicable  Performance Period) or in a combination thereof.     (f) Cancellation of Performance Units/Shares. On the date set forth in the Award Agreement,  all unearned or unvested Performance Units/Shares will be forfeited to the Company, and  again will be available for grant under the Plan.     11. Actions Required Upon Grant of Award. Following the issuance of any Award under the Plan, the  Company shall, in accordance with the listing requirements of the applicable securities exchange,  (a) promptly issue a press release disclosing the material terms of the grant, including the  recipient(s) of the grant and the number of shares involved (and if the disclosure relates to an award  to executive officers, or if the award was individually negotiated, then the disclosure must include  the identity of the recipient), and (b) notify the applicable securities exchange of such grant no later  than the earlier to occur of (i) five calendar days after entering into the agreement to issue the  Award or (ii) the date of the public announcement of the Award.     12. Compliance With Code Section 409A. Awards will be designed and operated in such a manner that  they are either exempt from the application of, or comply with, the requirements of Code  Section 409A such that the grant, payment, settlement or deferral will not be subject to the  additional tax or interest applicable under Code Section 409A, except as otherwise determined in  the sole discretion of the Administrator. The Plan and each Award Agreement under the Plan is  intended to meet the requirements of Code Section 409A and will be construed and interpreted in  accordance with such intent, except as otherwise determined in the sole discretion of the  Administrator. To the extent that an Award or payment, or the settlement or deferral thereof, is  subject to Code Section 409A the Award will be granted, paid, settled or deferred in a manner that  will meet the requirements of Code Section 409A, such that the grant, payment, settlement or  deferral will not be subject to the additional tax or interest applicable under Code Section 409A. In  no event will the Company have any obligation under the terms of this Plan to reimburse a  Participant for any taxes or other costs that may be imposed on Participant as a result of Section  409A.     13. Leaves of Absence/Transfer Between Locations. Unless the Administrator provides otherwise,  vesting of Awards granted hereunder will be suspended during any unpaid leave of absence. A  Participant will not cease to be an Employee in the case of (i) any leave of absence approved by  the Company or (ii) transfers between locations of the Company or between the Company, its  Parent, or any Subsidiary.      14. Limited Transferability of Awards.  Unless determined otherwise by the Administrator, Awards  may not be sold, pledged, assigned, hypothecated, or otherwise transferred in any manner other  than by will or by the laws of descent and distribution, and may be exercised, during the lifetime  of the Participant, only by the Participant. If the Administrator makes an Award transferable, such  Award will contain such additional terms and conditions as the Administrator deems appropriate.     15. Adjustments; Dissolution or Liquidation; Merger or Change in Control.     (a) Adjustments. In the event that any dividend or other distribution (whether in the form of  cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock  split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or  





 






15    US-DOCS\132933796.2  exchange of Shares or other securities of the Company, or other change in the corporate  structure of the Company affecting the Shares occurs, the Administrator, in order to prevent  diminution or enlargement of the benefits or potential benefits intended to be made  available under the Plan, will adjust the number and class of shares of stock that may be  delivered under the Plan and/or the number, class, and price of shares of stock covered by  each outstanding Award, and the numerical Share limits of Section 3.     (b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the  Company, the Administrator will notify each Participant as soon as practicable prior to the  effective date of such proposed transaction. To the extent it has not been previously  exercised, an Award will terminate immediately prior to the consummation of such  proposed action.     (c) Change in Control. In the event of a merger of the Company with or into another  corporation or other entity or a Change in Control, each outstanding Award will be treated  as the Administrator determines (subject to the provisions of the following paragraph)  without a Participant’s consent, including, without limitation, that (i) Awards will be  assumed, or substantially equivalent awards will be substituted, by the acquiring or  succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the  number and kind of shares and prices; (ii) upon written notice to a Participant, that the  Participant’s Awards will terminate upon or immediately prior to the consummation of  such merger or Change in Control; (iii) outstanding Awards will vest and become  exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, in  whole or in part prior to or upon consummation of such merger or Change in Control, and,  to the extent the Administrator determines, terminate upon or immediately prior to the  effectiveness of such merger or Change in Control; (iv) (A) the termination of an Award  in exchange for an amount of cash and/or property, if any, equal to the amount that would  have been attained upon the exercise of such Award or realization of the Participant’s rights  as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of  the date of the occurrence of the transaction the Administrator determines in good faith that  no amount would have been attained upon the exercise of such Award or realization of the  Participant’s rights, then such Award may be terminated by the Company without  payment), or (B) the replacement of such Award with other rights or property selected by  the Administrator in its sole discretion; or (v) any combination of the foregoing. In taking  any of the actions permitted under this subsection 15(c), the Administrator will not be  obligated to treat all Awards, all Awards held by a Participant, or all Awards of the same  type, similarly.     In the event that the successor corporation does not assume or substitute for the Award (or  portion thereof), the Participant will fully vest in and have the right to exercise all of his or  her outstanding Options and Stock Appreciation Rights, including Shares as to which such  Awards would not otherwise be vested or exercisable, all restrictions on Restricted Stock  and Restricted Stock Units will lapse, and, with respect to Awards with performance-based  vesting, all performance goals or other vesting criteria will be deemed achieved at one  hundred percent (100%) of target levels and all other terms and conditions met, in all cases,  unless specifically provided otherwise under the applicable Award Agreement or other  written agreement between the Participant and the Company or any of its Subsidiaries or  Parents, as applicable. In addition, if an Option or Stock Appreciation Right is not assumed  or substituted in the event of a merger or Change in Control, the Administrator will notify  the Participant in writing or electronically that the Option or Stock Appreciation Right will  be exercisable for a period of time determined by the Administrator in its sole discretion,  





 






16    US-DOCS\132933796.2  and the Option or Stock Appreciation Right will terminate upon the expiration of such  period.     For the purposes of this subsection 15(c) and subsection 15(d), an Award will be  considered assumed if, following the merger or Change in Control, the Award confers the  right to purchase or receive, for each Share subject to the Award immediately prior to the  merger or Change in Control, the consideration (whether stock, cash, or other securities or  property) received in the merger or Change in Control by holders of Common Stock for  each Share held on the effective date of the transaction (and if holders were offered a choice  of consideration, the type of consideration chosen by the holders of a majority of the  outstanding Shares); provided, however, that if such consideration received in the merger  or Change in Control is not solely common stock of the successor corporation or its Parent,  the Administrator may, with the consent of the successor corporation, provide for the  consideration to be received upon the exercise of an Option or Stock Appreciation Right  or upon the payout of a Restricted Stock Unit, Performance Unit, or Performance Share,  for each Share subject to such Award, to be solely common stock of the successor  corporation or its Parent equal in fair market value to the per share consideration received  by holders of Common Stock in the merger or Change in Control.     Notwithstanding anything in this Section 15(c) to the contrary, an Award that vests, is  earned or paid-out upon the satisfaction of one or more performance goals will not be  considered assumed if the Company or its successor modifies any of such performance  goals without the Participant’s consent, in all cases, unless specifically provided otherwise  under the applicable Award Agreement or other written agreement between the Participant  and the Company or any of its Subsidiaries or Parents, as applicable; provided, however, a  modification to such performance goals only to reflect the successor corporation’s post- Change in Control corporate structure will not be deemed to invalidate an otherwise valid  Award assumption.     Notwithstanding anything in this Section 15(c) to the contrary, and unless otherwise  provided in an Award Agreement, if an Award that vests, is earned or paid-out under an  Award Agreement is subject to Code Section 409A and if the change in control definition  contained in the Award Agreement does not comply with the definition of “change of  control” for purposes of a distribution under Code Section 409A, then any payment of an  amount that is otherwise accelerated under this Section will be delayed until the earliest  time that such payment would be permissible under Code Section 409A without triggering  any penalties applicable under Code Section 409A.     16. Tax Withholding.     (a) Withholding Requirements. Prior to the delivery of any Shares or cash pursuant to an  Award (or exercise thereof) or such earlier time as any tax withholding obligation is due,  the Company will have the power and the right to deduct or withhold, or require a  Participant to remit to the Company, an amount sufficient to satisfy federal, state, local,  non-U.S. or other taxes (including the Participant’s FICA obligation) required to be  withheld with respect to such Award (or exercise thereof).     (b) Withholding Arrangements. The Administrator, in its sole discretion and pursuant to such  procedures as it may specify from time to time, may permit a Participant to satisfy such tax  withholding obligation, in whole or in part by such methods as the Administrator shall  determine, including, without limitation, (i) paying cash, (ii) electing to have the Company  





 






17    US-DOCS\132933796.2  withhold otherwise deliverable cash or Shares having a fair market value equal to the  minimum statutory amount required to be withheld or such greater amount as the  Administrator may determine if such amount would not have adverse accounting  consequences, as the Administrator determines in its sole discretion, (iii) delivering to the  Company already-owned Shares having a fair market value equal to the minimum statutory  amount required to be withheld or such greater amount as the Administrator may  determine, in each case, provided the delivery of such Shares will not result in any adverse  accounting consequences, as the Administrator determines in its sole  discretion, (iv) selling a sufficient number of Shares otherwise deliverable to the  Participant through such means as the Administrator may determine in its sole discretion  (whether through a broker or otherwise) equal to the amount required to be withheld, or (v)  any combination of the foregoing methods of payment. The amount of the withholding  requirement will be deemed to include any amount which the Administrator agrees may be  withheld at the time the election is made, not to exceed the amount determined by using  the maximum federal, state or local marginal income tax rates applicable to the Participant  with respect to the Award on the date that the amount of tax to be withheld is to be  determined or such greater amount as the Administrator may determine if such amount  would not have adverse accounting consequences, as the Administrator determines in its  sole discretion. The fair market value of the Shares to be withheld or delivered will be  determined as of the date that the taxes are required to be withheld.     17. No Effect on Employment or Service. Neither the Plan nor any Award will confer upon a  Participant any right with respect to continuing the Participant’s relationship as a Service Provider  with the Company or its Subsidiaries or Parents, as applicable, nor will they interfere in any way  with the Participant’s right or the right of the Company and its Subsidiaries or Parents, as applicable  to terminate such relationship at any time, with or without cause, to the extent permitted by  Applicable Laws.     18. Date of Grant. The date of grant of an Award will be, for all purposes, the date on which the  Administrator makes the determination granting such Award, or such other later date as is  determined by the Administrator. Notice of the determination will be provided to each Participant  within a reasonable time after the date of such grant.     19. Term of Plan. The Plan will become effective upon its adoption by the Board. It will continue in  effect until terminated by the Board.     20. Amendment and Termination of the Plan.     (a) Amendment and Termination. The Administrator may at any time amend, alter, suspend  or terminate the Plan.     (b) Stockholder Approval. The Company will obtain stockholder approval of any Plan  amendment to the extent necessary and desirable to comply with Applicable Laws.     (c) Effect of Amendment or Termination. No amendment, alteration, suspension or  termination of the Plan will impair the rights of any Participant, unless mutually agreed  otherwise between the Participant and the Administrator, which agreement must be in  writing and signed by the Participant and the Company. Termination of the Plan will not  affect the Administrator’s ability to exercise the powers granted to it hereunder with respect  to Awards granted under the Plan prior to the date of such termination.     





 






18    US-DOCS\132933796.2  21. Conditions Upon Issuance of Shares.     (a) Legal Compliance. Shares will not be issued pursuant to the exercise of an Award unless  the exercise of such Award and the issuance and delivery of such Shares will comply with  Applicable Laws and will be further subject to the approval of counsel for the Company  with respect to such compliance.     (b) Investment Representations. As a condition to the exercise of an Award, the Company may  require the person exercising such Award to represent and warrant at the time of any such  exercise that the Shares are being purchased only for investment and without any present  intention to sell or distribute such Shares if, in the opinion of counsel for the Company,  such a representation is required.     22. Inability to Obtain Authority. The inability of the Company to obtain authority from any regulatory  body having jurisdiction or to complete or comply with the requirements of any registration or other  qualification of the Shares under any state, federal or non-U.S. law or under the rules and  regulations of the Securities and Exchange Commission, the stock exchange on which Shares of  the same class are then listed, or any other governmental or regulatory body, which authority,  registration, qualification or rule compliance is deemed by the Company’s counsel to be necessary  or advisable for the issuance and sale of any Shares hereunder, will relieve the Company of any  liability in respect of the failure to issue or sell such Shares as to which such requisite authority,  registration, qualification or rule compliance will not have been obtained.     23. Stockholder Approval Not Required. It is expressly intended that approval of the Company’s  stockholders not be required as a condition of the effectiveness of the Plan, and the Plan’s  provisions shall be interpreted in a manner consistent with such intent for all purposes. Specifically,  (a) New York Stock Exchange Rule 303A.08 generally requires stockholder approval for equity- compensation plans adopted by companies whose securities are listed on the New York Stock  Exchange, and (b) Nasdaq Stock Market Rule 5635(c) generally requires stockholder approval for  stock option plans or other equity compensation arrangements adopted by companies whose  securities are listed on the Nasdaq Stock Market pursuant to which stock awards or stock may be  acquired by officers, directors, employees or consultants of such companies. New York Stock  Exchange Rule 303A.08 and Nasdaq Stock Market Rule 5635(c)(4) each provides an exemption in  certain circumstances for “employment inducement” awards (within the meaning of New York  Stock Exchange Rule 303A.08 and Nasdaq Stock Market Rule 5635(c)(4)). Notwithstanding  anything to the contrary herein, (w) if the Company’s securities are traded on the New York Stock  Exchange, then Awards under the Plan may only be made to employees who are being hired by the  Company or a Subsidiary, or being rehired following a bona fide period of interruption of  employment by the Company or a Subsidiary, and (x) if the Company’s securities are traded on the  Nasdaq Stock Market, then Awards under the Plan may only be made to employees who have not  previously been an employee or director of the Company or a Parent or Subsidiary, or following a  bona fide period of non-employment by the Company or a Parent or Subsidiary, in each case as an  inducement material to the employee’s entering into employment with the Company or a  Subsidiary. Awards under the Plan will be approved by (y) the Committee, which shall be  comprised solely of Independent Directors, or (z) a majority of the Company’s Independent  Directors. Accordingly, pursuant to New York Stock Exchange Rule 303A.08 and Nasdaq Stock  Market Rule 5635(c)(4), the issuance of Awards and the Shares issuable upon exercise or vesting  of such Awards pursuant to the Plan are not subject to the approval of the Company’s stockholders.        





 






19    US-DOCS\132933796.2  24. Forfeiture Events.     (a) All Awards under the Plan will be subject to recoupment under any clawback policy that  the Company is required to adopt pursuant to the listing standards of any national securities  exchange or association on which the Company’s securities are listed or as is otherwise  required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other  Applicable Laws. In addition, the Administrator may impose such other clawback,  recovery or recoupment provisions in an Award Agreement as the Administrator  determines necessary or appropriate, including but not limited to a reacquisition right  regarding previously acquired Shares or other cash or property. Unless this Section 24 is  specifically mentioned and waived in an Award Agreement or other document, no recovery  of compensation under a clawback policy or otherwise will be an event that triggers or  contributes to any right of a Participant to resign for “good reason” or “constructive  termination” (or similar term) under any agreement with the Company or a Subsidiary or  Parent of the Company.     (b) The Administrator may specify in an Award Agreement that the Participant’s rights,  payments, and benefits with respect to an Award will be subject to reduction, cancellation,  forfeiture, or recoupment upon the occurrence of specified events, in addition to any  otherwise applicable vesting or performance conditions of an Award. Such events may  include, but will not be limited to, termination of such Participant’s status as Service  Provider for cause or any specified action or inaction by a Participant, whether before or  after such termination of service, that would constitute cause for termination of such  Participant’s status as a Service Provider.