Exhibit 10.27


 


 


 


 


 


 


 


 


 


 


 


 


EVO
TRANSPORTATION & ENERGY SERVICES, INC.


 


2018
STOCK INCENTIVE PLAN


 


 


 


 


 


 


 


Adopted
April 12, 2018


 


 


 


 


 


 


 


 


 


 


 






     


     


    

 


TABLE
OF CONTENTS


 


	 	 	 	Page
	 	 	 	 
	1.	Purpose of Plan	1
	 	 	 
	2.	Definitions	1
	 	 	 
	3.	Effective Date and Duration of the Plan	4
	 	3.1	Effective Date and Duration	4
	 	3.2	Stockholder Approval	4
	 	 	 	 
	4.	Shares Available for Issuance	4
	 	4.1	Maximum Number of Shares Available	4
	 	4.2	Accounting for Incentive Awards	4
	 	4.3	Adjustments to Shares and Incentive Awards	4
	 	 	 	 
	5.	Plan Administration	5
	 	5.1	The Committee	5
	 	5.2	Authority of the Committee	5
	 	 	 	 
	6.	Participation	6
	 	 	 
	7.	Options	7
	 	7.1	Grant	7
	 	7.2	Exercise Price	7
	 	7.3	Exercisability and Duration	7
	 	7.4	Payment of Exercise Price	7
	 	7.5	Manner of Exercise	7
	 	7.6	Aggregate Limitation of Stock Subject to Incentive Stock Options	7
	 	 	 	 
	8.	Stock Appreciation Rights	8
	 	8.1	Grant	8
	 	8.2	Exercise Price	8
	 	8.3	Exercisability and Duration	8
	 	 	 	 
	9.	Restricted Stock Awards	8
	 	9.1	Grant	8
	 	9.2	Rights as a Stockholder; Transferability	8
	 	9.3	Dividends and Distributions	9
	 	9.4	Enforcement of Restrictions	9
	 	 	 	 
	10.	Performance Units	9
	 	 	 
	11.	Stock Bonuses	9
	 	 	 
	12.	Effect of Termination of Employment or Other Service	10
	 	12.1	Termination Due to Death, Disability or Retirement	10
	 	12.2	Termination for Reasons Other than Death, Disability or Retirement	10
	 	12.3	Modification of Rights Upon Termination	11
	 	12.4	Exercise of Incentive Stock Options Following Termination	11
	 	12.5	Date of Termination of Employment or Other Service	11





 






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	 	 	 	Page
	 	 	 	 
	13.	Payment of Withholding Taxes	11
	 	13.1	General Rules	11
	 	13.2	Special Rules	12
	 	 	 	 
	14.	Action upon Change in Control	12
	 	 	 
	15.	Rights of Eligible Recipients and Participants; Transferability	12
	 	15.1	Employment or Service	12
	 	15.2	Rights as a Stockholder	13
	 	15.3	Restrictions on Transfer	13
	 	15.4	Breach of Confidentiality or Non-Compete Agreements	13
	 	15.5	Non-Exclusivity of the Plan	13
	 	 	 	 
	16.	Securities Law and Other Restrictions	13
	 	 	 
	17.	Plan Amendment, Modification and Termination	14
	 	 	 
	18.	Miscellaneous	14
	 	18.1	Governing Law	14
	 	18.2	Successors and Assigns	14


  






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EVO
TRANSPORTATION & ENERGY SERVICES, INC.


 


2018
STOCK INCENTIVE PLAN


 


1. Purpose
of Plan.


 


The
purpose of the EVO Transportation & Energy Services, Inc. 2018 Stock Incentive Plan (the “Plan”) is to
advance the interests of EVO Transportation & Energy Services, Inc., a Delaware corporation (the “Company”)
and its stockholders by enabling the Company and its Subsidiaries to attract and retain persons of skill and ability to perform
services for the Company and its Subsidiaries by providing an incentive to such individuals through equity participation in the
Company and by rewarding such individuals who contribute to the achievement by the Company of its economic objectives.


 


2. Definitions.


 


The
following terms will have the meanings set forth below, unless the context clearly otherwise requires:


 


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


 


2.2. “Broker
Exercise Notice” means a written notice pursuant to which a Participant, upon exercise of an Option, irrevocably instructs
a broker or dealer to sell a sufficient number of shares or lend a sufficient amount of money to pay all or a portion of the exercise
price of the Option and/or any related withholding tax obligations and remit such sums to the Company and directs the Company
to deliver stock certificates to be issued upon such exercise directly to such broker or dealer.


 


2.3. “Cause”
means:


 


(a) “Cause”
as defined in any employment or other agreement or policy applicable to the Participant; or


 


(b) If
no such agreement or policy exists, (i) dishonesty, fraud, misrepresentation, embezzlement or deliberate injury or attempted injury,
in each case related to the Company or any Subsidiary, (ii) substantial failure on the part of the Participant to perform his
or her duties to the Company or any Subsidiary or gross negligence on the part of the Participant in the performance of such duties,
(iii) any unlawful or criminal activity of a serious nature, or (iv) any material breach of any employment, service, confidentiality
or non-compete agreement entered into with the Company or any Subsidiary.


 


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


 


(a) the
sale, lease, exchange or other transfer of all or substantially all of the assets of the Company (in one transaction or in a series
of related transactions) except where such sale, lease, exchange or other transfer is to an entity controlled by the Company;


 






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(b) the
approval by the stockholders of the Company of any plan or proposal for the liquidation or dissolution of the Company; or


 


(c) any
person becomes after the effective date of the Plan the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of fifty percent (50%) or more of the combined voting power of the Company’s outstanding securities
ordinarily having the right to vote at elections of directors; or


 


(d) a
merger or consolidation to which the Company is a party if the persons who are the stockholders of the Company immediately prior
to effective date of such merger or consolidation have “beneficial ownership” (as defined in Rule l3d-3 under the
Exchange Act), immediately following the effective date of such merger or consolidation, of securities of the surviving corporation
representing 50% or less of the combined voting power of the surviving corporation’s then outstanding securities ordinarily
having the right to vote at elections of directors.


 


2.5. “Code”
means the Internal Revenue Code of 1986, as amended.


 


2.6. “Committee”
means the group of individuals administering the Plan, as provided in Section 5 of the Plan.


 


2.7. “Common
Stock” means the common stock of the Company, $0.0001 par value, or the number and kind of shares of stock or other
securities into which such common stock may be changed in accordance with Section 4.3 of the Plan.


 


2.8. “Disability”
means the disability of the Participant such as would entitle the Participant to receive disability income benefits pursuant to
the long-term disability plan of the Company or Subsidiary then covering the Participant or, if no such plan exists or is applicable
to the Participant, the permanent and total disability of the Participant within the meaning of Section 22(e)(3) of the Code.


 


2.9. “Effective
Date” shall mean April 12, 2018, the date this Plan was adopted by the Board.


 


2.10. “Eligible
Recipient” means any employee of the Company or any Subsidiary and any non-employee director, consultant or independent
contractor of the Company or any Subsidiary.


 


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


 


2.12. “Fair
Market Value” means, with respect to the Common Stock, as of any date: (i) the last reported sale price of a share of
Common Stock as of such date during the regular daily trading session on the Nasdaq Stock Market or on any national exchange (or,
if no shares were traded or quoted on such date, as of the next preceding date on which there was such a trade or quote); or (ii)
if the Common Stock is publicly traded but is not so listed, the average of the closing bid and asked prices on such date, as
reported by The Wall Street Journal, in the over-the-counter market (or, if no shares were quoted on such date, as of the next
preceding date on which there was such a quote); or (iii) if the Common Stock is not so listed or reported, such price as the
Committee determines in good faith in the exercise of its reasonable discretion, taking into account all available information
material to the value of the Common Stock, and consistent with the definition of “fair market value” under Section
409A of the Code.


 






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2.13. “Incentive
Award” means an Option, Stock Appreciation Right, Restricted Stock Award, Performance Unit or Stock Bonus granted to
an Eligible Recipient pursuant to the Plan.


 


2.14. “Incentive
Stock Option” means a right to purchase Common Stock granted to an Eligible Recipient pursuant to Section 7 of
the Plan that qualifies as an “incentive stock option” within the meaning of Section 422 of the Code.


 


2.15. “Non-Statutory
Stock Option” means a right to purchase Common Stock granted to an Eligible Recipient pursuant to Section 7 of
the Plan that does not qualify as an Incentive Stock Option.


 


2.16. “Option”
means an Incentive Stock Option or a Non-Statutory Stock Option.


 


2.17. “Participant”
means an Eligible Recipient who receives one or more Incentive Awards under the Plan.


 


2.18. “Performance
Unit” means a right granted to an Eligible Recipient pursuant to Section 10 of the Plan to receive a payment from
the Company, in the form of stock, cash or a combination of both, upon the achievement of established employment, service, performance
or other goals.


 


2.19. “Previously
Acquired Shares” means shares of Common Stock that are already owned by the Participant or, with respect to any Incentive
Award, that are to be issued upon the grant, exercise or vesting of such Incentive Award.


 


2.20. “Restricted
Stock Award” means an award of Common Stock granted to an Eligible Recipient pursuant to Section 9 of the Plan
that is subject to the restrictions on transferability and the risk of forfeiture imposed by the provisions of such Section 9.


 


2.21. “Retirement”
means termination of employment or service pursuant to and in accordance with the regular (or, if approved by the Board for purposes
of the Plan, early) retirement/pension plan or practice of the Company or Subsidiary then covering the Participant, provided that
if the Participant is not covered by any such plan or practice, the Participant will be deemed to be covered by the Company’s
plan or practice for purposes of this determination.


 


2.22. “Securities
Act” means the Securities Act of 1933, as amended.


 


2.23. “Stock
Appreciation Right” means a right granted to an Eligible Recipient pursuant to Section 8 of the Plan to receive
a payment from the Company at the time of exercise, in the form of stock, cash or a combination of both, equal to the difference
between the Fair Market Value of one or more shares of Common Stock and the exercise price of such shares under the terms of such
Stock Appreciation Right.


 






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2.24. “Stock
Bonus” means an award of Common Stock granted to an Eligible Recipient pursuant to Section 11 of the Plan.


 


2.25. “Subsidiary”
means any entity that is directly or indirectly controlled by the Company or any entity in which the Company has a significant
equity interest, as determined by the Committee.


 


2.26. “Tax
Date” means the date any withholding tax obligation arises under the Code or other applicable tax statute for a Participant
with respect to an Incentive Award.


 


3. Effective
Date and Duration of the Plan.


 


3.1. Effective
Date and Duration. The Plan is effective as of the Effective Date. The Plan will terminate at midnight on the tenth (10th)
anniversary of the Effective Date and may be terminated prior to such time by Board action, and no Incentive Award may be granted
after such termination. Incentive Awards outstanding upon termination of the Plan may continue to be exercised, or become free
of restrictions, in accordance with their terms.


 


3.2. Stockholder
Approval. The Plan shall be submitted to the stockholders of the Company for approval within twelve (12) months before or
after the Effective Date. Incentive Awards may be granted prior to the date this Plan is approved by the stockholders of the Company;
provided, however, that any incentive stock options granted after adoption of the Plan by the Board shall be treated as nonqualified
stock options if stockholder approval is not obtained within such twelve-month period.


 


4. Shares
Available for Issuance.


 


4.1. Maximum
Number of Shares Available. Subject to adjustment as provided in Section 4.3 of the Plan or by amendment, the maximum
number of shares of Common Stock that will be available for issuance under the Plan will be Four Million Two Hundred Fifty Thousand
(4,250,000).


 


4.2. Accounting
for Incentive Awards. Shares of Common Stock that are issued under the Plan or that are subject to outstanding Incentive Awards
will be applied to reduce the maximum number of shares of Common Stock remaining available for issuance under the Plan. Any shares
of Common Stock that are subject to an Incentive Award that lapse, expire, are forfeited or for any reason are terminated unexercised
or unvested and any shares of Common Stock that are subject to an Incentive Award that is settled or paid in cash or any form
other than shares of Common Stock will automatically again become available for issuance under the Plan. Any shares of Common
Stock that constitute the forfeited portion of a Restricted Stock Award, however, will not become available for re-issuance under
the Plan after they have been so forfeited.


 


4.3. Adjustments
to Shares and Incentive Awards. In the event of any reorganization, merger, consolidation, recapitalization, liquidation,
reclassification, stock dividend, stock split, combination of shares, rights offering, divestiture or extraordinary dividend (including
a spin-off) or any other similar change in the corporate structure or shares of the Company, the Committee (or, if the Company
is not the surviving corporation in any such transaction, the board of directors of the surviving corporation) will make appropriate
adjustment (which determination will be conclusive) as to the number and kind of securities or other property (including cash)
available for issuance or payment under the Plan and, in order to prevent dilution or enlargement of the rights of Participants,
(a) the number and kind of securities or other property (including cash) subject to outstanding Options, and (b) the exercise
price of outstanding Options.


 






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5. Plan
Administration.


 


5.1. The
Committee. The Plan will be administered by the Board or by a committee of the Board. So long as the Company has a class of
its equity securities registered under Section 12 of the Exchange Act, any committee administering the Plan will consist solely
of two or more members of the Board who are “non-employee directors” within the meaning of Rule 16b-3 under the Exchange
Act and, if the Board so determines in its sole discretion, who are “outside directors” within the meaning of Section
162(m) of the Code. Such a committee, if established, will act by majority approval of the members (but may also take action with
the written consent of a majority of the members of such committee), and a majority of the members of such a committee will constitute
a quorum. As used in the Plan “Committee” will refer to the Board or to such a committee, if established. To the extent
consistent with corporate law, the Committee may delegate to any officers of the Company the duties, power and authority of the
Committee under the Plan pursuant to such conditions or limitations as the Committee may establish; provided, however,
that only the Committee may exercise such duties, power and authority with respect to Eligible Recipients who are subject to Section
16 of the Exchange Act. The Committee may exercise its duties, power and authority under the Plan in its sole and absolute discretion
without the consent of any Participant or other party, unless the Plan specifically provides otherwise. Each determination, interpretation
or other action made or taken by the Committee pursuant to the provisions of the Plan will be final, conclusive and binding for
all purposes and on all persons, including, without limitation, the Company, the stockholders of the Company, the participants
and their respective successors-in-interest. No member of the Committee will be liable for any action or determination made in
good faith with respect to the Plan or any Incentive Award granted under the Plan.


 


5.2. Authority
of the Committee.


 


(a) In
accordance with and subject to the provisions of the Plan, the Committee will have the authority to determine all provisions of
Incentive Awards as the Committee may deem necessary or desirable and as consistent with the terms of the Plan, including, without
limitation, the following: (i) the Eligible Recipients to be selected as Participants; (ii) the nature and extent of the Incentive
Awards to be made to each Participant (including the number of shares of Common Stock to be subject to each Incentive Award, any
exercise price, the manner in which Incentive Awards will vest or become exercisable and whether Incentive Awards will be granted
in tandem with other Incentive Awards) and the form of written agreement, if any, evidencing such Incentive Award; (iii) the time
or times when Incentive Awards will be granted; (iv) the duration of each Incentive Award; and (v) the restrictions and other
conditions to which the payment or vesting of Incentive Awards may be subject. In addition, the Committee will have the authority
under the Plan in its sole discretion to pay the economic value of any Incentive Award in the form of cash, Common Stock or any
combination of both.


 






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(b) The
Committee will have the authority under the Plan to amend or modify the terms of any outstanding Incentive Award in any manner,
including, without limitation, the authority to modify the number of shares or other terms and conditions of an Incentive Award,
extend the term of an Incentive Award, accelerate the exercisability or vesting or otherwise terminate any restrictions relating
to an Incentive Award, accept the surrender of any outstanding Incentive Award or, to the extent not previously exercised or vested,
authorize the grant of new Incentive Awards in substitution for surrendered Incentive Awards; provided, however,
that the amended or modified terms are permitted by the Plan as then in effect, that such amendment or modification does not cause
the Incentive Award to become subject to Section 409A of the Code, and that any Participant adversely affected by such amended
or modified terms has consented to such amendment or modification. No amendment or modification to an Incentive Award, however,
whether pursuant to this Section 5.2 or any other provisions of the Plan, will be deemed to be a re-grant of such Incentive
Award for purposes of the Plan.


 


(c) In
the event of (i) any reorganization, merger, consolidation, recapitalization, liquidation, reclassification, stock dividend, stock
split, combination of shares, rights offering, extraordinary dividend or divestiture (including a spin-off) or any other similar
change in corporate structure or shares, (ii) any purchase, acquisition, sale or disposition of a significant amount of assets
or a significant business, (iii) any change in accounting principles or practices, or (iv) any other similar change, in each case
with respect to the Company or any other entity whose performance is relevant to the grant or vesting of an Incentive Award, the
Committee (or, if the Company is not the surviving corporation in any such transaction, the board of directors of the surviving
corporation) may, without the consent of any affected Participant, amend or modify the vesting criteria of any outstanding Incentive
Award that is based in whole or in part on the financial performance of the Company (or any Subsidiary or division thereof) or
such other entity so as equitably to reflect such event, with the desired result that the criteria for evaluating such financial
performance of the Company or such other entity will be substantially the same (in the sole discretion of the Committee or the
board of directors of the surviving corporation) following such event as prior to such event; provided, however,
that the amended or modified terms are permitted by the Plan as then in effect.


 


6. Participation.


 


Participants
in the Plan will be those Eligible Recipients who, in the judgment of the Committee, have contributed, are contributing or are
expected to contribute to the achievement of economic objectives of the Company or its Subsidiaries. Eligible Recipients may be
granted from time to time one or more Incentive Awards, singly or in combination or in tandem with other Incentive Awards, as
may be determined by the Committee in its sole discretion. Incentive Awards will be deemed to be granted as of the date specified
in the grant resolution of the Committee, which date will be the date of any related agreement with the Participant.


 






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7. Options.


 


7.1. Grant.
An Eligible Recipient may be granted one or more Options under the Plan, and such Options will be subject to such terms and conditions,
consistent with the other provisions of the Plan, as may be determined by the Committee in its sole discretion. The Committee
may designate whether an Option is to be considered an Incentive Stock Option or a Non-Statutory Stock Option. To the extent that
any Incentive Stock Option granted under the Plan ceases for any reason to qualify as an “incentive stock option”
for purposes of Section 422 of the Code, such Incentive Stock Option will continue to be outstanding for purposes of the Plan
but will thereafter be deemed to be a Non-Statutory Stock Option.


 


7.2. Exercise
Price. The per share price to be paid by a Participant upon exercise of an Option will be determined by the Committee in its
discretion at the time of the Option grant; provided, however, that such price will not be less than one hundred
percent (100%) of the Fair Market Value of one share of Common Stock on the date of grant (or, with respect to an Incentive Stock
Option, one hundred ten percent (110%) of the Fair Market Value if, at the time the Incentive Stock Option is granted, the Participant
owns, directly or indirectly, more than ten percent (10%) of the total combined voting power of all classes of stock of the Company
or any parent or subsidiary corporation of the Company).


 


7.3. Exercisability
and Duration. An Option will become exercisable at such times and in such installments as may be determined by the Committee
in its sole discretion at the time of grant; provided, however, that no Incentive Stock Option may be exercisable
after ten (10) years from its date of grant (five (5) years from its date of grant if, at the time the Incentive Stock Option
is granted, the Participant owns, directly or indirectly, more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any parent or subsidiary corporation of the Company).


 


7.4. Payment
of Exercise Price. The total purchase price of the shares to be purchased upon exercise of an Option will be paid entirely
in cash (including check, bank draft or money order); provided, however, that the Committee, in its sole discretion
and upon terms and conditions established by the Committee, may allow such payments to be made, in whole or in part, by tender
of a Broker Exercise Notice, Previously Acquired Shares, a promissory note (on terms acceptable to the Committee in its sole discretion)
or a combination of such methods, or by any other form of payment the Committee may authorize.


 


7.5. Manner
of Exercise. An Option may be exercised by a Participant in whole or in part from time to time, subject to the conditions
contained in the Plan and in the agreement evidencing such Option, by delivery in person, by facsimile or electronic transmission
or through the mail of written notice of exercise to the Company (Attention: Chief Financial Officer) at its principal executive
office, and by paying in full the total exercise price for the shares of Common Stock to be purchased in accordance with Section 7.4
of the Plan.


 


7.6. Aggregate
Limitation of Stock Subject to Incentive Stock Options. To the extent that the aggregate Fair Market Value (determined as
of the date an Incentive Stock Option is granted) of the shares of Common Stock with respect to which incentive stock options
(within the meaning of Section 422 of the Code) are exercisable for the first time by a Participant during any calendar year (under
the Plan and any other incentive stock option plans of the Company or any subsidiary or parent corporation of the Company (within
the meaning of the Code)) exceeds $100,000 (or such other amount as may be prescribed by the Code from time to time), such excess
Options will be treated as Non-Statutory Stock Options. 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.


 






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8. Stock
Appreciation Rights.


 


8.1. Grant.
An Eligible Recipient may be granted one or more Stock Appreciation Rights under the Plan, and such Stock Appreciation Rights
will be subject to such terms and conditions, consistent with the other provisions of the Plan, as may be determined by the Committee
in its sole discretion. The Committee will have the sole discretion to determine the form in which payment of the economic value
of Stock Appreciation Rights will be made to a Participant (i.e., cash, Common Stock or any combination thereof) or to consent
to or disapprove the election by a Participant of the form of such payment.


 


8.2. Exercise
Price. The exercise price of a Stock Appreciation Right will be determined by the Committee, in its discretion, at the date
of grant but may not be less than one hundred percent (100%) of the Fair Market Value of one share of Common Stock on the date
of grant.


 


8.3. Exercisability
and Duration. A Stock Appreciation Right will become exercisable at such time and in such installments as may be determined
by the Committee in its sole discretion at the time of grant; provided, however, that no Stock Appreciation Right
may be exercisable after ten (10) years from its date of grant. A Stock Appreciation Right will be exercised by giving notice
in the same manner as for Options, as set forth in Section 7.5 of the Plan.


 


9. Restricted
Stock Awards.


 


9.1. Grant.
An Eligible Recipient may be granted one or more Restricted Stock Awards under the Plan, and such Restricted Stock Awards will
be subject to such terms and conditions, consistent with the other provisions of the Plan, as may be determined by the Committee
in its sole discretion. The Committee may impose such restrictions or conditions, such as forfeiture or a repurchase option, not
inconsistent with the provisions of the Plan, to the vesting of or the lapse of restrictions or conditions for any such Restricted
Stock Awards as it deems appropriate, including, without limitation, that the Participant remain in the continuous employ or service
of the Company or a Subsidiary for a certain period or that the Participant or the Company (or any Subsidiary or division thereof)
satisfy certain performance goals or criteria.


 


9.2. Rights
as a Stockholder; Transferability. Except as provided in Sections 9.1, 9.3 and 15.3 of the Plan, a Participant will have
all voting, dividend, liquidation and other rights with respect to shares of Common Stock issued to the Participant as a Restricted
Stock Award under this Section 9 upon the Participant becoming the holder of record of such shares as if such Participant
were a holder of record of shares of unrestricted Common Stock.


 






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9.3. Dividends
and Distributions. Unless the Committee determines otherwise in its sole discretion (either in the agreement evidencing the
Restricted Stock Award at the time of grant or at any time after the grant of the Restricted Stock Award), any dividends or distributions
(including regular quarterly cash dividends) paid with respect to shares of Common Stock subject to the unvested portion of a
Restricted Stock Award will be subject to the same restrictions as the shares to which such dividends or distributions relate.
In the event the Committee determines not to pay dividends or distributions currently, the Committee will determine in its sole
discretion whether any interest will be paid on such dividends or distributions. In addition, the Committee in its sole discretion
may require such dividends and distributions to be reinvested (and in such case the Participant consents to such reinvestment)
in shares of Common Stock that will be subject to the same restrictions as the shares to which such dividends or distributions
relate.


 


9.4. Enforcement
of Restrictions. To enforce the restrictions referred to in this Section 9, the Committee may place a legend on the stock
certificates referring to such restrictions and may require the Participant, until the restrictions have lapsed, to keep the stock
certificates, together with duly endorsed stock powers, in the custody of the Company or its transfer agent or to maintain evidence
of stock ownership, together with duly endorsed stock powers, in a certificateless book-entry stock account with the Company’s
transfer agent.


 


10. Performance
Units.


 


An
Eligible Recipient may be granted one or more Performance Units under the Plan, and such Performance Units will be subject to
such terms and conditions, consistent with the other provisions of the Plan, as may be determined by the Committee in its sole
discretion. The Committee may impose such restrictions or conditions, not inconsistent with the provisions of the Plan, to the
vesting of such Performance Units as it deems appropriate, including, without limitation, that the Participant remain in the continuous
employ or service of the Company or any Subsidiary for a certain period or that the Participant or the Company (or any Subsidiary
or division thereof) satisfy certain performance goals or criteria. The Committee will have the sole discretion to determine the
form in which payment of the economic value of Performance Units will be made to a Participant (i.e., cash, Common Stock or any
combination thereof) or to consent to or disapprove the election by a Participant of the form of such payment.


 


11. Stock
Bonuses.


 


An
Eligible Recipient may be granted one or more Stock Bonuses under the Plan, and such Stock Bonuses will be subject to such terms
and conditions, consistent with the other provisions of the Plan, as may be determined by the Committee. The Participant will
have all voting, dividend, liquidation and other rights with respect to the shares of Common Stock issued to a Participant as
a Stock Bonus under this Section 11 upon the Participant becoming the holder of record of such shares; provided, however,
that the Committee may impose such restrictions on the assignment or transfer of a Stock Bonus as it deems appropriate.


 






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12. Effect
of Termination of Employment or Other Service.


 


12.1. Termination
Due to Death, Disability or Retirement. Unless otherwise provided by the Committee in its sole discretion in the agreement
evidencing an Incentive Award:


 


(a) In
the event a Participant’s employment or other service with the Company and all Subsidiaries is terminated by reason of death
or Disability:


 


(i) all
outstanding Options and Stock Appreciation Rights then held by the Participant will become immediately exercisable in full and
remain exercisable for a period of six (6) months after such termination (but in no event after the expiration date of any such
Option or Stock Appreciation Right);


 


(ii) all
Restricted Stock Awards then held by the Participant will become fully vested; and


 


(iii) all
Performance Units and Stock Bonuses then held by the Participant will vest and/or continue to vest in the manner determined by
the Committee and set forth in the agreement evidencing such Performance Units or Stock Bonuses.


 


(b) In
the event a Participant’s employment or other service with the Company and all Subsidiaries is terminated by reason of Retirement:


 


(i) all
outstanding Options and Stock Appreciation Rights then held by the Participant will remain exercisable, to the extent exercisable
as of the date of such termination, for a period of six (6) months after such termination (but in no event after the expiration
date of any such Option or Stock Appreciation Right);


 


(ii) all
Restricted Stock Awards then held by the Participant that have not vested as of such termination will be terminated and forfeited;
and


 


(iii) all
Performance Units and Stock Bonuses then held by the Participant will vest and/or continue to vest in the manner determined by
the Committee and set forth in the agreement evidencing such Performance Units or Stock Bonuses.


 


12.2. Termination
for Reasons Other than Death, Disability or Retirement. Unless otherwise provided by the Committee in its sole discretion
in the agreement evidencing an Incentive Award, in the event a Participant’s employment or other service with the Company
and all Subsidiaries is terminated for any reason other than death, Disability or Retirement, or a Participant is in the employ
or service of a Subsidiary and the Subsidiary ceases to be a Subsidiary of the Company (unless the Participant continues in the
employ or service of the Company or another Subsidiary), all rights of the Participant under the Plan and any agreements evidencing
an Incentive Award will immediately terminate without notice of any kind, and no Options or Stock Appreciation Rights then held
by the Participant will thereafter be exercisable, all Restricted Stock Awards then held by the Participant that have not vested
will be terminated and forfeited, and all Performance Units and Stock Bonuses then held by the Participant will vest and/or continue
to vest in the manner determined by the Committee and set forth in the agreement evidencing such Performance Units or Stock Bonuses;
provided, however, that if such termination is due to any reason other than voluntary termination by the Participant
or termination by the Company or any Subsidiary for “Cause,” all outstanding Options and Stock Appreciation Rights
then held by such Participant will remain exercisable, to the extent exercisable as of such termination, for a period of ninety
(90) days after such termination (but in no event after the expiration date of any such Option or Stock Appreciation Right).


 






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12.3. Modification
of Rights Upon Termination. Notwithstanding the other provisions of this Section 12, upon a Participant’s termination
of employment or other service with the Company and all Subsidiaries, the Committee may, in its sole discretion (which may be
exercised at any time on or after the date of grant, including following such termination), cause Options and Stock Appreciation
Rights (or any part thereof) then held by such Participant to become or continue to become exercisable and/or remain exercisable
following such termination of employment or service and Restricted Stock Awards, Performance Units and Stock Bonuses then held
by such Participant to vest and/or continue to vest or become free of transfer restrictions, as the case may be, following such
termination of employment or service, in each case in the manner determined by the Committee; provided, however,
that no Incentive Award may remain exercisable or continue to vest beyond its expiration date. Notwithstanding the foregoing,
no extension to exercise will be permitted if such extension would cause the Award to become subject to Section 409A of the Code.


 


12.4. Exercise
of Incentive Stock Options Following Termination. Any Incentive Stock Option that remains exercisable pursuant to an agreement
with the Company following termination of employment and is unexercised more than one (1) year following termination of employment
by reason of death or Disability or more than three (3) months following termination for any reason other than death or Disability
will thereafter be deemed to be a Non-Statutory Stock Option.


 


12.5. Date
of Termination of Employment or Other Service. Unless the Committee otherwise determines in its sole discretion, a Participant’s
employment or other service will, for purposes of the Plan, be deemed to have terminated on the date recorded on the personnel
or other records of the Company or the Subsidiary for which the Participant provides employment or other service, as determined
by the Committee in its sole discretion based upon such records.


 


13. Payment
of Withholding Taxes.


 


13.1. General
Rules. The Company is entitled to (a) withhold and deduct from future wages of the Participant (or from other amounts that
may be due and owing to the Participant from the Company or a Subsidiary), or make other arrangements for the collection of, all
legally required amounts necessary to satisfy any and all foreign, federal, state and local withholding and employment-related
tax requirements attributable to an Incentive Award, including, without limitation, the grant, exercise or vesting of, or payment
of dividends with respect to, an Incentive Award or a disqualifying disposition of stock received upon exercise of an Incentive
Stock Option, or (b) require the Participant promptly to remit the amount of such withholding to the Company before taking any
action, including issuing any shares of Common Stock, with respect to an Incentive Award.


 






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13.2. Special
Rules. The Committee may, in its sole discretion and upon terms and conditions established by the Committee, permit or require
a Participant to satisfy, in whole or in part, any withholding or employment-related tax obligation described in Section 13.1
of the Plan by electing to tender Previously Acquired Shares, a Broker Exercise Notice or a promissory note (on terms acceptable
to the Committee in its sole discretion), or by a combination of such methods.


 


14. Action
upon Change in Control.


 


If
a Change in Control of the Company occurs or is about to occur, the Committee, in its sole discretion, may provide for one or
more of the following:


 


(a) the
partial or full acceleration of the exercisability of outstanding Incentive Awards held by some or all Participants, provided
that the Committee, in its sole discretion, may condition such acceleration (or the Participant’s receipt of any securities
or payments with respect to such acceleration) upon the Participant’s continued service to the Company or to the successor
person in the Change in Control;


 


(b) the
complete termination of the Plan and cancellation of outstanding Incentive Awards not exercised prior to a date specified by the
Committee;


 


(c) the
continuance of the Plan with respect to outstanding Incentive Awards;


 


(d) replacement
or exchange of the Incentive Awards for options to purchase similar securities of the successor person in the Change in Control;


 


(e) the
substitution for outstanding Incentive Awards of shares of common stock of the person acquiring control of the Company or a related
corporation; or


 


(f) the
receipt by some or all Participants holding outstanding Incentive Awards with respect to some or all of the shares of Common Stock
subject to such Incentive Awards, as of the effective date of any such Change in Control of the Company, of cash in an amount
equal to the excess of the per share price paid in connection with the Change in Control of the Company over the exercise price
per share of such Incentive Awards, multiplied by the number of shares subject to such Incentive Awards.


 


15. Rights
of Eligible Recipients and Participants; Transferability.


 


15.1. Employment
or Service. Nothing in the Plan will interfere with or limit in any way the right of the Company or any Subsidiary to terminate
the employment or service of any Eligible Recipient or Participant at any time, nor confer upon any Eligible Recipient or Participant
any right to continue in the employ or service of the Company or any Subsidiary.


 






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15.2. Rights
as a Stockholder. As a holder of Incentive Awards (other than Restricted Stock Awards and Stock Bonuses), a Participant will
have no rights as a stockholder unless and until such Incentive Awards are exercised for, or paid in the form of, shares of Common
Stock and the Participant becomes the holder of record of such shares. Except as otherwise provided in the Plan, no adjustment
will be made for dividends or distributions with respect to such Incentive Awards as to which there is a record date preceding
the date the Participant becomes the holder of record of such shares, except as the Committee may determine in its discretion.


 


15.3. Restrictions
on Transfer. Except pursuant to testamentary will or the laws of descent and distribution or as otherwise expressly permitted
by the Plan, unless approved by the Committee in its sole discretion, no right or interest of any Participant in an Incentive
Award prior to the exercise or vesting of such Incentive Award will be assignable or transferable, or subjected to any lien, during
the lifetime of the Participant, either voluntarily or involuntarily, directly or indirectly, by operation of law or otherwise.
A Participant will, however, be entitled to designate a beneficiary to receive an Incentive Award upon such Participant’s
death, and in the event of a Participant’s death, payment of any amounts due under the Plan will be made to, and exercise
of any Options (to the extent permitted pursuant to Section 12 of the Plan) may be made by, the Participant’s legal
representatives, heirs and legatees.


 


15.4. Breach
of Confidentiality, Assignment of Inventions or Non-Compete Agreements. Notwithstanding anything in the Plan to the contrary,
in the event that a Participant materially breaches the terms of any confidentiality, assignment of inventions or non-compete
agreement entered into with the Company or any Subsidiary, whether such breach occurs before or after termination of such Participant’s
employment or other service with the Company or any Subsidiary, the Committee in its sole discretion may immediately terminate
all rights of the Participant under the Plan and any agreements evidencing an Incentive Award then held by the Participant without
notice of any kind.


 


15.5. Non-Exclusivity
of the Plan. Nothing contained in the Plan is intended to modify or rescind any previously or subsequently approved compensation
plans or programs of the Company or create any limitations on the power or authority of the Board to adopt such additional or
other compensation arrangements as the Board may deem necessary or desirable.


 


16. Securities
Law and Other Restrictions.


 


Notwithstanding
any other provision of the Plan or any agreements entered into pursuant to the Plan, the Company will not be required to issue
any shares of Common Stock under the Plan, and a Participant may not sell, assign, transfer or otherwise dispose of shares of
Common Stock issued pursuant to Incentive Awards granted under the Plan, unless (a) there is in effect with respect to such shares
a registration statement under the Securities Act and any applicable state or foreign securities laws or an exemption from such
registration under the Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other
consent, approval or permit from any other regulatory body which the Committee, in its sole discretion, deems necessary or advisable.
The Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties
involved, and the placement of any legends on certificates representing shares of Common Stock, as may be deemed necessary or
advisable by the Company in order to comply with such securities law or other restrictions.


 






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17. Plan
Amendment, Modification and Termination.


 


The
Board may suspend or terminate the Plan or any portion thereof at any time, and may amend the Plan from time to time in such respects
as the Board may deem advisable in order that Incentive Awards under the Plan will conform to any change in applicable laws or
regulations or in any other respect the Board may deem to be in the best interests of the Company; provided, however,
that no amendments to the Plan will be effective without approval of the stockholders of the Company if shareholder approval of
the amendment is then required pursuant to Section 422 of the Code or the rules of any stock exchange or Nasdaq or similar regulatory
body. No termination, suspension or amendment of the Plan may adversely affect any outstanding Incentive Award without the consent
of the affected Participant; provided, however, that this sentence will not impair the right of the Committee to
take whatever action it deems appropriate under Sections 5.2, 4.3 and 14 of the Plan.


 


18. Miscellaneous.


 


18.1. Governing
Law. The validity, construction, interpretation, administration and effect of the Plan and any rules, regulations and actions
relating to the Plan will be governed by and construed exclusively in accordance with the laws of the State of Delaware, notwithstanding
the conflicts of laws principles of any jurisdictions.


 


18.2. Successors
and Assigns. The Plan will be binding upon and inure to the benefit of the successors and permitted assigns of the Company
and the Participants.


 


 


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