As
filed with the Securities and Exchange Commission on September 6, 2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Vislink
Technologies, Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
20-5856795 |
(State
or Other Jurisdiction
of
Incorporation) |
|
(I.R.S.
Employer
Identification
Number) |
350
Clark Drive, Suite 125
Mt.
Olive, NJ 07828
(Address,
including zip code, of registrant’s principal executive offices)
2023
Omnibus Equity Incentive Plan
(Full
title of the plan)
Carleton
Miller
Chief
Executive Officer
Vislink
Technologies, Inc.
350
Clark Drive, Suite 125
Mt.
Olive, NJ 07828
(908)
852-3700
(Name
and address, and telephone number, including area code, of agent for service)
Copies
to:
Ira
L. Kotel, Esq.
Dentons
US LLP
1221
Avenue of the Americas
New
York, New York 10020
(212)
768-6700
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
|
|
Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this registration statement
in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”). The document(s) containing
the information specified in Part I will be sent or given to participants in the Vislink Technologies, Inc. 2023 Omnibus Equity Incentive
Plan (the “Plan”) as specified by Rule 428(b)(1) of the Securities Act. Such documents are not being filed with the Securities
and Exchange Commission (the “Commission”) as part of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in the registration statement
pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART
II.
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. |
Incorporation
of Documents by Reference. |
The
following documents filed with the Commission by Vislink Technologies, Inc. (the “Company”) are hereby incorporated by reference
in this registration statement:
a. |
Annual
Report on Form 10-K for the fiscal year ended December 31, 2022, filed with SEC on March 31, 2023; |
|
|
b. |
Quarterly
Reports on Form 10-Q for the fiscal quarters ended March 31, 2023, filed with the SEC on May 15, 2023, and June 30, 2023, filed with
the SEC on August 11, 2023; |
|
|
c. |
Current
Reports on Form 8-K filed with the SEC on January 12, 2023, March 27, 2023, April 28, 2023, May 15, 2023, May 26, 2023 and August 25, 2023; and |
|
|
d. |
The
description of the Company’s common stock contained in the registrant’s registration statement on Form 8-A, filed by
the registrant with the Commission under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
on March 7, 2013, including any amendments or reports filed for the purpose of updating such description filed as Exhibit 4.11 on
Form 10-K for the fiscal year ended December 31, 2022, filed with SEC on March 31, 2023. |
All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of
a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Under
no circumstances will any information filed under current items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless
such Form 8-K expressly provides to the contrary.
Item
4. |
Description
of Securities. |
Not
applicable.
Item
5. |
Interests
of Named Experts and Counsel. |
Not
applicable.
Item
6. |
Indemnification
of Directors and Officers. |
The
registrant is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law (“DGCL”)
provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending,
or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person was an officer, director, employee, or agent of such corporation,
or is or was serving at the request of such person as an officer, director, employee, or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit, or proceeding, provided that such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that his or her conduct was illegal. The registrant’s amended and restated bylaws
includes such provisions related to the registrant’s authority to indemnify a director, officer, employee, fiduciary, or agent.
Section
145 of the DGCL also provides that Delaware corporation may indemnify any person who is, or is threatened to be made, a party to any
threatened, pending, or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director,
officer, employee, or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee,
or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, except that no indemnification
is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation.
Under
the DGCL, where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation
must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred. Article VII, Section
1 of the registrant’s amended and restated bylaws contains a mandatory indemnification provision, which requires us to indemnify
a person in the defense of any proceeding to which the person was a party because the person is or was a director or officer, against
reasonable expenses incurred by him or her in connection with the proceeding.
Item
7. |
Exemption
from Registration Claimed. |
Not
applicable.
See
the attached Exhibit Index on the page immediately following the signature pages hereto, which is incorporated herein by reference.
A.
The undersigned Registrant hereby undertakes:
| 1. | To
file, during any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement: |
| i. | To
include any prospectus required by section 10(a)(3) of the Securities Act; |
| | |
| ii. | To
reflect in the prospectus any facts or events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective Registration Statement. |
| | |
| iii. | To
include any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such information in the
Registration Statement; |
Provided,
however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section
15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
| 2. | That,
for the purpose of determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
| 3. | To
remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering. |
B.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
INDEX
TO EXHIBITS
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Mt. Olive, State of New Jersey, on this 6th day of September 2023.
VISLINK
TECHNOLOGIES, INC. |
|
(Registrant) |
|
|
|
|
By: |
/s/
Paul Norridge |
|
Name: |
Paul
Norridge |
|
Title: |
Chief
Financial Officer |
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carleton Miller and Paul
Norridge, and each of them, as his or her true and lawful attorneys-in-fact, each with full power of substitution, for him or her in
any and all capacities, to sign this Registration Statement on Form S-8 of Vislink Technologies, Inc., and any or all amendments thereto
(including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his substitute, may lawfully do
or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Carleton Miller |
|
Chief
Executive Officer and Director |
|
September
6, 2023 |
Carleton
Miller |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Paul Norridge |
|
Chief
Financial Officer |
|
September
6, 2023 |
Paul
Norridge |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/
Susan Swenson |
|
Chairman
of the Board |
|
September
6, 2023 |
Susan
Swenson |
|
|
|
|
|
|
|
|
|
/s/
Jude T. Panetta |
|
Director |
|
September
6, 2023 |
Jude
T. Panetta |
|
|
|
|
|
|
|
|
|
/s/
Ralph Faison |
|
Director |
|
September
6, 2023 |
Ralph
Faison |
|
|
|
|
|
|
|
|
|
/s/
Brian K. Krolicki |
|
Director |
|
September
6, 2023 |
Brian
K. Krolicki |
|
|
|
|
Exhibit 4.3
VISLINK
TECHNOLOGIES, INC.
2023
OMNIBUS EQUITY INCENTIVE PLAN
(Effective
August 23, 2023)
TABLE
OF CONTENTS
|
Page |
Article
1. Effective Date, Objectives and Duration |
1 |
|
|
|
1.1 |
Effective
Date of the Plan |
1 |
1.2 |
Objectives
of the Plan |
1 |
1.3 |
Duration
of the Plan |
1 |
|
|
|
Article
2. Definitions |
1 |
|
|
|
2.1 |
“Affiliate” |
1 |
2.2 |
“Award” |
1 |
2.3 |
“Award
Agreement” |
1 |
2.4 |
“Board” |
2 |
2.5 |
“Bonus
Shares” |
2 |
2.6 |
“Cause” |
2 |
2.7 |
“CEO” |
2 |
2.8 |
“Change
in Control” |
2 |
2.9 |
“Code” |
2 |
2.10 |
“Committee”
or “Incentive Plan Committee” |
2 |
2.11 |
“Compensation
Committee” |
2 |
2.12 |
“Common
Stock” |
2 |
2.13 |
“Corporate
Transaction” |
2 |
2.14 |
“Deferred
Stock” |
3 |
2.15 |
“Disability”
or “Disabled” |
3 |
2.16 |
“Dividend
Equivalent” |
3 |
2.17 |
“Effective
Date” |
3 |
2.18 |
“Eligible
Person” |
3 |
2.19 |
“Exchange
Act” |
3 |
2.20 |
“Exercise
Price” |
3 |
2.21 |
“Fair
Market Value” |
4 |
2.22 |
“Grant
Date” |
4 |
2.23 |
“Grantee” |
4 |
2.24 |
“Incentive
Stock Option” |
4 |
2.25 |
“Including”
or “includes” |
4 |
2.26 |
“Management
Committee” |
4 |
2.27 |
“Non-Employee
Director” |
4 |
2.28 |
“Option” |
4 |
2.29 |
“Other
Stock-Based Award” |
4 |
2.30 |
“Parent
Corporation” |
4 |
2.31 |
“Performance
Period” |
4 |
2.32 |
“Performance
Share” and “Performance Unit” |
4 |
2.33 |
“Period
of Restriction” |
4 |
2.34 |
“Person” |
4 |
2.35 |
“Restricted
Shares” |
4 |
2.36 |
“Restricted
Stock Units” |
5 |
2.37 |
“Rule
16b-3” |
5 |
2.38 |
“SEC” |
5 |
2.39 |
“Section
16 Non-Employee Director” |
5 |
2.40 |
“Section
16 Person” |
5 |
2.41 |
“Separation
from Service” |
5 |
2.42 |
“Share” |
5 |
2.43 |
“Stock
Appreciation Right” or “SAR” |
5 |
TABLE
OF CONTENTS
|
|
Page |
2.44 |
“Subsidiary
Corporation” |
5 |
2.45 |
“Surviving
Company” |
5 |
2.46 |
“Term” |
5 |
2.47 |
“Termination
of Affiliation” |
5 |
|
|
|
Article
3. Administration |
6 |
|
|
|
3.1 |
Committee |
6 |
3.2 |
Powers
of Committee |
6 |
3.3 |
No
Repricings |
8 |
3.4 |
Minimum
Vesting Requirement |
8 |
|
|
|
Article 4. Shares Subject to the Plan |
8 |
|
|
|
4.1 |
Number
of Shares Available for Grants |
9 |
4.2 |
Adjustments
in Authorized Shares and Awards; Corporate Transaction, Liquidation or Dissolution |
|
|
|
9 |
Article
5. Eligibility and General Conditions of Awards |
10 |
|
|
|
5.1 |
Eligibility |
10 |
5.2 |
Award
Agreement |
10 |
5.3 |
General
Terms and Termination of Affiliation |
10 |
5.4 |
Nontransferability
of Awards |
10 |
5.5 |
Cancellation
and Rescission of Awards |
11 |
5.6 |
Stand-Alone,
Tandem and Substitute Awards |
11 |
5.7 |
Compliance
with Rule 16b-3 |
12 |
5.8 |
Deferral
of Award Payouts |
12 |
|
|
|
Article
6. Stock Options |
13 |
|
|
|
6.1 |
Grant
of Options |
13 |
6.2 |
Award
Agreement |
13 |
6.3 |
Option
Exercise Price |
13 |
6.4 |
Grant
of Incentive Stock Options |
13 |
6.5 |
Payment
of Exercise Price |
14 |
|
|
|
Article
7. Stock Appreciation Rights |
15 |
|
|
|
7.1 |
Issuance |
15 |
7.2 |
Award
Agreements |
15 |
7.3 |
SAR
Exercise Price |
15 |
7.4 |
Exercise
and Payment |
15 |
|
|
|
Article
8. Restricted Shares |
15 |
|
|
|
8.1 |
Grant
of Restricted Shares |
15 |
8.2 |
Award
Agreement |
15 |
8.3 |
Consideration
for Restricted Shares |
15 |
8.4 |
Effect
of Forfeiture |
16 |
8.5 |
Escrow;
Legends |
16 |
|
|
|
Article
9. Performance Units and Performance Shares |
16 |
|
|
|
9.1 |
Grant
of Performance Units and Performance Shares |
16 |
9.2 |
Value/Performance
Goals |
16 |
9.3 |
Earning
of Performance Units and Performance Shares |
16 |
|
|
|
Article
10. Deferred Stock and Restricted Stock Units |
17 |
|
|
|
10.1 |
Grant
of Deferred Stock and Restricted Stock Units |
17 |
TABLE OF CONTENTS
|
|
Page |
10.2 |
Vesting
and Delivery |
17 |
10.3 |
Voting
and Dividend Equivalent Rights Attributable to Deferred Stock and Restricted Stock Units |
17 |
|
|
|
Article
11. Dividend Equivalents |
18 |
|
|
Article
12. Bonus Shares |
18 |
|
|
Article
13. Other Stock-Based Awards |
18 |
|
|
Article
14. Non-Employee Director Awards |
18 |
|
|
|
Article
15. Amendment, Modification, and Termination |
18 |
|
|
|
15.1 |
Amendment,
Modification, and Termination |
18 |
15.2 |
Awards
Previously Granted |
18 |
|
|
|
Article
16. Compliance with Code Section 409A |
19 |
|
|
|
16.1 |
Awards
Subject to Code Section 409A |
19 |
16.2 |
Deferral
and/or Distribution Elections |
19 |
16.3 |
Subsequent
Elections |
19 |
16.4 |
Distributions
Pursuant to Deferral Elections |
19 |
16.5 |
Six
Month Delay |
20 |
16.6 |
Death
or Disability |
20 |
16.7 |
No
Acceleration of Distributions |
20 |
|
|
|
Article
17. Withholding |
20 |
|
|
|
17.1 |
Required
Withholding |
20 |
17.2 |
Notification
under Code Section 83(b) |
21 |
|
|
|
Article
18. Additional Provisions |
21 |
|
|
|
18.1 |
Successors |
21 |
18.2 |
Severability |
21 |
18.3 |
Requirements
of Law |
21 |
18.4 |
Securities
Law Compliance |
22 |
18.5 |
Awards
Subject to Claw-Back Policies |
22 |
18.6 |
Forfeiture
Events |
22 |
18.7 |
No
Rights as a Stockholder |
23 |
18.8 |
Nature
of Payments |
23 |
18.9 |
Non-Exclusivity
of Plan |
23 |
18.10 |
Governing
Law |
23 |
18.11 |
Unfunded
Status of Awards; Creation of Trusts |
23 |
18.12 |
Affiliation |
23 |
18.13 |
Participation |
23 |
18.14 |
Military
Service |
23 |
18.15 |
Construction |
23 |
18.16 |
Headings |
23 |
18.17 |
Obligations |
23 |
18.18 |
No
Right to Continue as Director |
23 |
18.19 |
Stockholder
Approval |
23 |
VISLINK
TECHNOLOGIES, INC.
2023
OMNIBUS EQUITY INCENTIVE PLAN
Article
1.
Effective
Date, Objectives and Duration
1.1
Effective Date of the Plan. The Board of Directors of Vislink Technologies, Inc., a Delaware corporation (the “Company”),
adopted the 2023 Omnibus Equity Incentive Plan (the “Plan”) effective as of August 23, 2023 (the “Effective
Date”), as set forth herein, subject to approval by the Company’s stockholders.
1.2
Objectives of the Plan. The Plan is intended (a) to allow selected employees of and consultants to the Company and its Affiliates
to acquire or increase equity ownership in the Company, thereby strengthening their commitment to the success of the Company and stimulating
their efforts on behalf of the Company, and to assist the Company and its Affiliates in attracting new employees, officers and consultants
and retaining existing employees and consultants, (b) to optimize the profitability and growth of the Company and its Affiliates through
incentives which are consistent with the Company’s goals, (c) to provide Grantees with an incentive for excellence in individual
performance, (d) to promote teamwork among employees, consultants and Non-Employee Directors, and (e) to attract and retain highly qualified
persons to serve as Non-Employee Directors and to promote ownership by such Non-Employee Directors of a greater proprietary interest
in the Company, thereby aligning such Non-Employee Directors’ interests more closely with the interests of the Company’s
stockholders.
1.3
Duration of the Plan. The Plan shall commence on the Effective Date and shall remain in effect, subject to the right of the Board
to amend or terminate the Plan at any time pursuant to Article 15 hereof, until the earlier of the tenth anniversary of the Effective
Date, or the date all Shares subject to the Plan shall have been purchased or acquired and the restrictions on all Restricted Shares
granted under the Plan shall have lapsed, according to the Plan’s provisions.
Article
2.
Definitions
Whenever
used in the Plan, the following terms shall have the meanings set forth below:
2.1
“Affiliate” means any corporation or other entity, including but not limited to partnerships, limited liability companies
and joint ventures, with respect to which the Company, directly or indirectly, owns as applicable (a) stock possessing more than fifty
percent (50%) of the total combined voting power of all classes of stock entitled to vote, or more than fifty percent (50%) of the total
value of all shares of all classes of stock of such corporation, or (b) an aggregate of more than fifty percent (50%) of the profits
interest or capital interest of a non-corporate entity.
2.2
“Award” means Options (including non-qualified options and Incentive Stock Options), SARs, Restricted Shares, Performance
Shares, Deferred Stock, Restricted Stock Units, Dividend Equivalents, Bonus Shares or Other Stock-Based Awards granted under the Plan.
2.3
“Award Agreement” means either (a) a written agreement entered into by the Company and a Grantee setting forth the
terms and provisions applicable to an Award granted under this Plan, or (b) a written statement issued by the Company to a Grantee describing
the terms and provisions of such Award, including any amendment or modification thereof. The Committee may provide for the use of electronic,
internet or other non-paper Award Agreements and the use of electronic, internet or other non-paper means for the acceptance thereof
and actions thereunder by the Grantee.
2.4
“Board” means the Board of Directors of the Company.
2.5
“Bonus Shares” means Shares that are awarded to a Grantee with or without cost and without restrictions either in
recognition of past performance (whether determined by reference to another employee benefit plan of the Company or otherwise), as an
inducement to become an Eligible Person or, with the consent of the Grantee, as payment in lieu of any cash remuneration otherwise payable
to the Grantee.
2.6
“Cause” means, except as otherwise defined in an Award Agreement:
(a)
the failure by the Grantee to perform, in a reasonable manner, his or her duties as assigned by the Company or an Affiliate;
(b)
any material violation or breach by the Grantee of his or her employment, consulting or other similar agreement with the Company or an
Affiliate, if any;
(c)
any violation or breach by the Grantee of any non-competition, non-solicitation, non-disclosure and/or other similar agreement with the
Company or an Affiliate;
(d)
any act by the Grantee of dishonesty or bad faith with respect to the Company or an Affiliate;
(e)
use of alcohol, drugs or other similar substances in a manner that adversely affects the Grantee’s work performance;
(f)
the commission by the Grantee of any felony or crime involving moral turpitude; or
(g)
any material misconduct in violation of the Company’s or an Affiliate’s written policies regarding ethical standards, conduct
in the workplace or safety;
provided,
however, that if the Grantee has a written employment or consulting agreement with the Company or any of its Affiliates or participates
in any severance plan established by the Company that includes a definition of “cause,” Cause shall have the meaning set
forth in such employment or consulting agreement or severance plan.
2.7
“CEO” means the Chief Executive Officer of the Company.
2.8
“Change in Control” shall have the meaning set forth in Section 16.4(e).
2.9
“Code” means the Internal Revenue Code of 1986, as amended from time to time. References to a particular section of
the Code include references to regulations and rulings thereunder and to successor provisions.
2.10
“Committee” or “Incentive Plan Committee” has the meaning set forth in Section 3.1(a).
2.11
“Compensation Committee” means the compensation committee of the Board.
2.12
“Common Stock” means the common stock, $0.00001 par value, of the Company.
2.13
“Corporate Transaction” shall have the meaning set forth in Section 4.2(b).
2.14
“Deferred Stock” means a right, granted under Article 10, to receive Shares at the end of a specified deferral period.
2.15
“Disability” or “Disabled” means, unless otherwise defined in an Award Agreement, or as otherwise
determined under procedures established by the Committee for purposes of the Plan:
(a)
Except as provided in (b) below, a disability within the meaning of Section 22(e)(3) of the Code; and
(b)
In the case of any Award that constitutes deferred compensation within the meaning of Section 409A of the Code, a disability as defined
in regulations under Code Section 409A. For purpose of Code Section 409A, a Grantee will be considered Disabled if:
(i)
the Grantee is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or
(ii)
the Grantee is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of
not less than three (3) months under an accident and health plan covering employees of the Grantee’s employer.
2.16
“Dividend Equivalent” means a right to receive payments equal to dividends or property, if and when paid or distributed,
on a specified number of Shares.
2.17
“Effective Date” has the meaning set forth in Section 1.1.
2.18
“Eligible Person” means any individual who is an employee (including any officer) of, a non-employee consultant to,
or a Non-Employee Director of, the Company or any Affiliate; provided, however, that solely with respect to the grant of an Incentive
Stock Option, an Eligible Person shall be any employee (including any officer) of the Company or any Subsidiary Corporation. Notwithstanding
the foregoing, an Eligible Person shall also include an individual who is expected to become an employee of, non-employee consultant
to or Non-Employee Director of the Company or any Affiliate within a reasonable period of time after the grant of an Award (other than
an Incentive Stock Option); provided that any Award granted to any such individual shall be automatically terminated and cancelled without
consideration if the individual does not begin performing services for the Company or any Affiliate within twelve (12) months after the
Grant Date. Solely for purposes of Section 5.6(b), current or former employees or non-employee directors of, or consultants to, an Acquired
Entity who receive Substitute Awards in substitution for Acquired Entity Awards shall be considered Eligible Persons under this Plan
with respect to such Substitute Awards.
2.19
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. References to a particular
section of the Exchange Act include references to successor provisions.
2.20
“Exercise Price” means (a) with respect to an Option, the price at which a Share may be purchased by a Grantee pursuant
to such Option or (b) with respect to an SAR, the price established at the time an SAR is granted pursuant to Article 7, which is used
to determine the amount, if any, of the payment due to a Grantee upon exercise of the SAR.
2.21
“Fair Market Value” of a Share means a price that is based on the opening, closing, actual, high, low, or the arithmetic
mean of selling prices of a Share reported on an established stock exchange which is the principal exchange upon which the Shares are
traded on the applicable date or the preceding trading day. Unless the Committee determines otherwise, if the Shares are traded over
the counter at the time a determination of its Fair Market Value is required to be made hereunder, Fair Market Value shall be deemed
to be equal to the arithmetic mean between the reported high and low or closing bid and asked prices of a Share on the applicable date,
or if no such trades were made that day then the most recent date on which Shares were publicly traded. In the event Shares are not publicly
traded at the time a determination of their value is required to be made hereunder, the determination of their Fair Market Value shall
be made by the Committee in such manner as it deems appropriate provided such manner is consistent with Treasury Regulation Section 1.409A-1(b)(5)(iv)(B).
2.22
“Grant Date” means the date on which an Award is granted or such later date as specified in advance by the Committee.
2.23
“Grantee” means a person who has been granted an Award.
2.24
“Incentive Stock Option” means an Option that is intended to meet the requirements of Section 422 of the Code.
2.25
“Including” or “includes” means “including, without limitation,” or “includes,
without limitation,” respectively.
2.26
“Management Committee” has the meaning set forth in Section 3.1(b).
2.27
“Non-Employee Director” means a member of the Board who is not an employee of the Company or any Affiliate.
2.28
“Option” means an option granted under Article 6 of the Plan.
2.29
“Other Stock-Based Award” means a right, granted under Article 13 hereof, that relates to or is valued by reference
to Shares or other Awards relating to Shares.
2.30
“Parent Corporation” means a corporation other than the Company in an unbroken chain of corporations ending with the
Company if, at the time of granting the Option, each of the corporations other than the Company in the unbroken chain owns stock possessing
50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
2.31
“Performance Period” means, with respect to an Award of Performance Shares or Performance Units, the period of time
during which the performance vesting conditions applicable to such Award must be satisfied.
2.32
“Performance Share” and “Performance Unit” have the respective meanings set forth in Article 9.
2.33
“Period of Restriction” means the period during which Restricted Shares are subject to forfeiture if the conditions
specified in the Award Agreement are not satisfied.
2.34
“Person” means any individual, sole proprietorship, partnership, joint venture, limited liability company, trust,
unincorporated organization, association, corporation, institution, public benefit corporation, entity or government instrumentality,
division, agency, body or department.
2.35
“Restricted Shares” means Shares, granted under Article 8, that are both subject to forfeiture and are nontransferable
if the Grantee does not satisfy the conditions specified in the Award Agreement applicable to such Shares.
2.36
“Restricted Stock Units” are rights, granted under Article 10, to receive Shares if the Grantee satisfies the conditions
specified in the Award Agreement applicable to such rights.
2.37
“Rule 16b-3” means Rule 16b-3 promulgated by the SEC under the Exchange Act, as amended from time to time, together
with any successor rule.
2.38
“SEC” means the Securities and Exchange Commission, or any successor thereto.
2.39
“Section 16 Non-Employee Director” means a member of the Board who satisfies the requirements to qualify as a “non-employee
director” under Rule 16b-3.
2.40
“Section 16 Person” means a person who is subject to potential liability under Section 16(b) of the Exchange Act with
respect to transactions involving equity securities of the Company.
2.41
“Separation from Service” means, with respect to any Award that constitutes deferred compensation within the meaning
of Code Section 409A, a “separation from service” as defined in Treasury Regulation Section 1.409A-1(h). For this purpose,
a “separation from service” is deemed to occur on the date that the Company and the Grantee reasonably anticipate that the
level of bona fide services the Grantee would perform for the Company and/or any Affiliates after that date (whether as an employee,
Non-Employee Director or consultant or independent contractor) would permanently decrease to a level that, based on the facts and circumstances,
would constitute a separation from service; provided that a decrease to a level that is 50% or more of the average level of bona fide
services provided over the prior 36 months shall not be a separation from service, and a decrease to a level that is 20% or less of the
average level of such bona fide services shall be a separation from service. The Committee retains the right and discretion to specify,
and may specify, whether a separation from service occurs with respect to those individuals who are performing services for the Company
or an Affiliate immediately prior to an asset purchase transaction in which the Company or an Affiliate is the seller and who continue
to perform services for the buyer (or an affiliate thereof) immediately following such asset purchase transaction; provided, such specification
is made in accordance with the requirements of Treasury Regulation Section 1.409A-1(h)(4).
2.42
“Share” means a share of Common Stock, and such other securities of the Company, as may be substituted or resubstituted
for Shares pursuant to Section 4.2 hereof.
2.43
“Stock Appreciation Right” or “SAR” means an Award granted under Article 7 of the Plan.
2.44
“Subsidiary Corporation” means a corporation other than the Company in an unbroken chain of corporations beginning
with the Company if, at the time of granting the Option, each of the corporations other than the last corporation in the unbroken chain
owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such
chain.
2.45
“Surviving Company” means (a) the surviving corporation in any merger, consolidation or similar transaction, involving
the Company (including the Company if the Company is the surviving corporation), (b) the direct or indirect parent company of such surviving
corporation or (c) the direct or indirect parent company of the Company following a sale of substantially all of the outstanding stock
of the Company.
2.46
“Term” of any Option or SAR means the period beginning on the Grant Date of an Option or SAR and ending on the date
such Option or SAR expires, terminates or is cancelled. No Option or SAR granted under this Plan shall have a Term exceeding 10 years
2.47
“Termination of Affiliation” occurs on the first day on which an individual is for any reason no longer performing
services for the Company or any Affiliate in the capacity of an employee of, a non-employee consultant to, or a Non-Employee Director
of, the Company or any Affiliate or with respect to an individual who is an employee of, a non-employee consultant to or a Non-Employee
Director of an Affiliate, the first day on which such entity ceases to be an Affiliate of the Company unless such individual continues
to perform Services for the Company or another Affiliate without interruption after such entity ceases to be an Affiliate. Notwithstanding
the foregoing, if an Award constitutes deferred compensation within the meaning of Code Section 409A, Termination of Affiliation with
respect to such Award shall mean the Grantee’s Separation from Service.
Article
3.
Administration
3.1
Committee.
(a)
Subject to Article 14, and to Section 3.2, the Plan shall be administered by a Committee (the “Incentive Plan Committee”
or the “Committee”) of directors of the Company appointed by the Board from time to time. Notwithstanding the foregoing,
either the Board or the Compensation Committee may at any time and in one or more instances reserve administrative powers to itself as
the Committee or exercise any of the administrative powers of the Committee. The number of members of the Committee may from time to
time be increased or decreased as the Board or Compensation Committee deems appropriate. To the extent the Board or Compensation Committee
considers it desirable to comply with Rule 16b-3, the Committee shall consist of two or more directors of the Company, all of whom qualify
as Section 16 Non-Employee Directors.
(b)
The Board or the Compensation Committee may appoint and delegate to another committee (“Management Committee”), or to the
CEO, any or all of the authority of the Board or the Committee, as applicable, with respect to Awards to Grantees other than Grantees
who are executive officers, Non-Employee Directors, or Section 16 Persons at the time any such delegated authority is exercised.
(c)
Unless the context requires otherwise, any references herein to “Committee” include references to the Incentive Plan Committee,
the Board or the Compensation Committee to the extent Incentive Plan Committee, the Board or the Compensation Committee, as applicable,
has assumed or exercises administrative powers itself as the Committee pursuant to subsection (a), and to the Management Committee or
the CEO to the extent either has been delegated authority pursuant to subsection (b), as applicable; provided that (i) for purposes of
Awards to Non-Employee Directors, “Committee” shall include only the full Board, and (ii) for purposes of Awards intended
to comply with Rule 16b-3, the “Committee” shall include only the Incentive Plan Committee or the Compensation Committee.
3.2
Powers of Committee. Subject to and consistent with the provisions of the Plan (including Article 14), the Committee has full
and final authority and sole discretion as follows; provided that any such authority or discretion exercised with respect to a specific
Non-Employee Director shall be approved by the affirmative vote of a majority of the members of the Board, even if not a quorum, but
excluding the Non-Employee Director with respect to whom such authority or discretion is exercised:
(a)
to determine when, to whom and in what types and amounts Awards should be granted;
(b)
to grant Awards to Eligible Persons in any number and to determine the terms and conditions applicable to each Award (including the number
of Shares or the amount of cash or other property to which an Award will relate, any Exercise Price or purchase price, any limitation
or restriction, any schedule for or performance conditions relating to the earning of the Award or the lapse of limitations, forfeiture
restrictions, restrictions on exercisability or transferability, any performance goals including those relating to the Company and/or
an Affiliate and/or any division thereof and/or an individual, and/or vesting based on the passage of time, based in each case on such
considerations as the Committee shall determine);
(c)
to determine the benefit payable under any Performance Unit, Performance Share, Dividend Equivalent or Other Stock-Based Award and to
determine whether any performance or vesting conditions have been satisfied;
(d)
to determine whether or not specific Awards shall be granted in connection with other specific Awards, and if so, whether they shall
be exercisable cumulatively with, or alternatively to, such other specific Awards and all other matters to be determined in connection
with an Award;
(e)
to determine the Term of any Option or SAR;
(f)
to determine the amount, if any, that a Grantee shall pay for Restricted Shares, whether to permit or require the payment of cash dividends
thereon to be deferred and the terms related thereto, when Restricted Shares (including Restricted Shares acquired upon the exercise
of an Option) shall be forfeited and whether such shares shall be held in escrow;
(g)
to determine whether, to what extent and under what circumstances an Award may be settled in, or the exercise price of an Award may be
paid in, cash, Shares, other Awards or other property, or an Award may be accelerated, vested, canceled, forfeited or surrendered or
any terms of the Award may be waived, and to accelerate the exercisability of, and to accelerate or waive any or all of the terms and
conditions applicable to, any Award or any group of Awards for any reason and at any time;
(h)
to determine with respect to Awards granted to Eligible Persons whether, to what extent and under what circumstances cash, Shares, other
Awards, other property and other amounts payable with respect to an Award will be deferred, either at the election of the Grantee or
automatically pursuant to the terms of the Award Agreement;
(i)
to offer to exchange or buy out any previously granted Award for a payment in cash, Shares or other Award;
(j)
to construe and interpret the Plan and to make all determinations, including factual determinations, necessary or advisable for the administration
of the Plan;
(k)
to make, amend, suspend, waive and rescind rules and regulations relating to the Plan;
(l)
to appoint such agents as the Committee may deem necessary or advisable to administer the Plan;
(m)
to determine the terms and conditions of all Award Agreements applicable to Eligible Persons (which need not be identical) and, with
the consent of the Grantee, to amend any such Award Agreement at any time, among other things, to permit transfers of such Awards to
the extent permitted by the Plan; provided that the consent of the Grantee shall not be required for any amendment (i) which does not
adversely affect the rights of the Grantee, or (ii) which is necessary or advisable (as determined by the Committee) to carry out the
purpose of the Award as a result of any new applicable law or change in an existing applicable law, or (iii) to the extent the Award
Agreement specifically permits amendment without consent;
(n)
to cancel, with the consent of the Grantee, outstanding Awards and to grant new Awards in substitution therefor;
(o)
to impose such additional terms and conditions upon the grant, exercise or retention of Awards as the Committee may, before or concurrently
with the grant thereof, deem appropriate, including limiting the percentage of Awards which may from time to time be exercised by a Grantee;
(p)
to make adjustments in the terms and conditions of, and the criteria in, Awards in recognition of unusual or nonrecurring events (including
events described in Section 4.2) affecting the Company or an Affiliate or the financial statements of the Company or an Affiliate, or
in response to changes in applicable laws, regulations or accounting principles;
(q)
to correct any defect or supply any omission or reconcile any inconsistency, and to construe and interpret the Plan, the rules and regulations,
and Award Agreement or any other instrument entered into or relating to an Award under the Plan; and
(r)
to take any other action with respect to any matters relating to the Plan for which it is responsible and to make all other decisions
and determinations as may be required under the terms of the Plan or as the Committee may deem necessary or advisable for the administration
of the Plan.
Any
action of the Committee with respect to the Plan shall be final, conclusive and binding on all persons, including the Company, its Affiliates,
any Grantee, any person claiming any rights under the Plan from or through any Grantee, and stockholders, except to the extent the Committee
may subsequently modify, or take further action not consistent with, its prior action. If not specified in the Plan, the time at which
the Committee must or may make any determination shall be determined by the Committee, and any such determination may thereafter be modified
by the Committee. The express grant of any specific power to the Committee, and the taking of any action by the Committee, shall not
be construed as limiting any power or authority of the Committee. Subject to Section 3.1(b), the Committee may delegate to officers of
the Company or any Affiliate the authority, subject to such terms as the Committee shall determine, to perform specified functions under
the Plan.
3.3
No Repricings. Notwithstanding any provision in Section 3.2 to the contrary, the terms of any outstanding Option or SAR may not
be amended to reduce the Exercise Price of such Option or SAR or cancel any outstanding Option or SAR in exchange for other Options or
SARs with an Exercise Price that is less than the Exercise Price of the cancelled Option or SAR or for any cash payment (or Shares having
with a Fair Market Value) in an amount that exceeds the excess of the Fair Market Value of the Shares underlying such cancelled Option
or SAR over the aggregate Exercise Price of such Option or SAR or for any other Award, without stockholder approval; provided, however,
that the restrictions set forth in this Section 3.3, shall not apply (i) unless the Company has a class of stock that is registered under
Section 12 of the Exchange Act or (ii) to any adjustment allowed under to Section 4.2.
3.4
Minimum Vesting Requirement. Notwithstanding any provision in the Plan to the contrary, except with respect to Substitute Awards
granted pursuant to Section 4.6(b) and with respect to Awards representing no more than five percent (5%) of the total number of Shares
reserved for issuance under the Plan, no Award may vest or become exercisable and no Period of Restriction with respect to any Award
shall lapse earlier than 12 months after the Grant Date of such Award.
Article
4.
Shares
Subject to the Plan
4.1
Number of Shares Available for Grants. Subject to adjustment as provided in Section 4.2 and except as provided in Section 5.6(b),
the maximum number of Shares hereby reserved for delivery under the Plan (including upon exercise of Incentive Stock Options granted
hereunder) shall be 166,415 Shares.
If
any Shares subject to an Award granted hereunder (other than a Substitute Award granted pursuant to Section 5.6(b)) are forfeited or
such Award otherwise terminates without payment or delivery of such Shares, the Shares subject to such Award, to the extent of any such
forfeiture or termination, shall again be available for grant under the Plan. For avoidance of doubt, however, if any Shares subject
to an Award granted hereunder are withheld or applied as payment in connection with the exercise of an Award or the withholding or payment
of taxes related thereto (“Returned Shares”), such Returned Shares will be treated as having been delivered for purposes
of determining the maximum number of Shares available for grant under the Plan and shall not again be treated as available for grant
under the Plan. The number of Shares underlying an SAR that has been exercised will be treated as having been delivered for purposes
of determining the maximum number of Shares available for grant under the Plan and such Shares shall not again be treated as available
for grant under the Plan. Moreover, the number of Shares available for issuance under the Plan may not be increased through the Company’s
purchase of Shares on the open market with the proceeds obtained from the exercise of any Options granted hereunder.
Shares
delivered pursuant to the Plan may be, in whole or in part, authorized and unissued Shares, or treasury Shares, including Shares repurchased
by the Company for purposes of the Plan.
4.2
Adjustments in Authorized Shares and Awards; Corporate Transaction, Liquidation or Dissolution.
(a)
Adjustment in Authorized Shares and Awards. In the event that the Committee determines that any dividend or other distribution
(whether in the form of cash, Shares, or other property), recapitalization, forward or reverse stock split, subdivision, consolidation
or reduction of capital, reorganization, merger, consolidation, scheme of arrangement, split-up, spin-off or combination involving the
Company or repurchase or exchange of Shares or other securities of the Company or other rights to purchase Shares or other securities
of the Company, or other similar corporate transaction or event affects the Shares such that any adjustment is determined by the Committee
to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under
the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number and type of Shares (or
other securities or property) with respect to which Awards may be granted, (ii) the number and type of Shares (or other securities or
property) subject to outstanding Awards, (iii) the Exercise Price with respect to any Option or SAR or, if deemed appropriate, make provision
for a cash payment to the holder of an outstanding Award, and (iv) the number and kind of Shares of outstanding Restricted Shares, or
the Shares underlying any other form of Award. Notwithstanding the foregoing, no such adjustment shall be authorized with respect to
any Options or SARs to the extent that such adjustment would cause the Option or SAR to violate Section 424(a) of the Code or otherwise
subject any Grantee to taxation under Section 409A of the Code; and provided further that the number of Shares subject to any
Award denominated in Shares shall always be a whole number.
(b)
Merger, Consolidation or Similar Corporate Transaction. In the event of a merger or consolidation of the Company with or into
another corporation or a sale of substantially all of the stock of the Company (a “Corporate Transaction”), unless an outstanding
Award is assumed by the Surviving Company or replaced with an equivalent Award granted by the Surviving Company in substitution for such
outstanding Award, the Committee shall cancel any outstanding Awards that are not vested and nonforfeitable as of the consummation of
such Corporate Transaction (unless the Committee accelerates the vesting of any such Awards) and with respect to any vested and nonforfeitable
Awards, the Committee may either (i) allow all Grantees to exercise such Awards of Options and SARs within a reasonable period prior
to the consummation of the Corporate Transaction and cancel any outstanding Options or SARs that remain unexercised upon consummation
of the Corporate Transaction, or (ii) cancel any or all of such outstanding Awards in exchange for a payment (in cash, or in securities
or other property) in an amount equal to the amount that the Grantee would have received (net of the Exercise Price with respect to any
Options or SARs) if such vested Awards were settled or distributed or such vested Options and SARs were exercised immediately prior to
the consummation of the Corporate Transaction. Notwithstanding the foregoing, if an Option or SAR is not assumed by the Surviving Company
or replaced with an equivalent Award issued by the Surviving Company and the Exercise Price with respect to any outstanding Option or
SAR exceeds the Fair Market Value of the Shares immediately prior to the consummation of the Corporation Transaction, such Awards shall
be cancelled without any payment to the Grantee.
(c)
Liquidation or Dissolution of the Company. In the event of the proposed dissolution or liquidation of the Company, each Award
will terminate immediately prior to the consummation of such proposed action, unless otherwise provided by the Committee. Additionally,
the Committee may, in the exercise of its sole discretion, cause Awards to be vested and non-forfeitable and cause any conditions on
any such Award to lapse, as to all or any part of such Award, including Shares as to which the Award would not otherwise be exercisable
or non-forfeitable and allow all Grantees to exercise such Awards of Options and SARs within a reasonable period prior to the consummation
of such proposed action. Any Awards that remain unexercised upon consummation of such proposed action shall be cancelled.
(d)
Deferred Compensation. Notwithstanding the forgoing provisions of this Section 4.2, if an Award constitutes deferred compensation
within the meaning of Code Section 409A, no payment or settlement of such Award shall be made pursuant to Section 4.2(b) or (c), unless
the Corporate Transaction or the dissolution or liquidation of the Company, as applicable, constitutes a Change in Control or the settlement
of such Awards meets the requirements set forth in Treasury Regulation Section 1.409A-3(j)(4)(xi).
Article
5.
Eligibility
and General Conditions of Awards
5.1
Eligibility. The Committee may in its discretion grant Awards to any Eligible Person, whether or not he or she has previously
received an Award; provided, however, that all Awards made to Non-Employee Directors shall be determined by the Board in its sole discretion.
5.2
Award Agreement. To the extent not set forth in the Plan, the terms and conditions of each Award shall be set forth in an Award
Agreement.
5.3
General Terms and Termination of Affiliation. The Committee may impose on any Award or the exercise or settlement thereof, at
the date of grant or, subject to the provisions of Section 15.2, thereafter, such additional terms and conditions not inconsistent with
the provisions of the Plan as the Committee shall determine, including terms requiring forfeiture, acceleration or pro-rata acceleration
of Awards in the event of a Termination of Affiliation by the Grantee. Except as may be required under the Delaware General Corporation
Law, Awards may be granted for no consideration other than prior and future services. Except as set forth in an Award Agreement or as
otherwise determined by the Committee, (a) all Options and SARs that are not vested and exercisable at the time of a Grantee’s
Termination of Affiliation, and any other Awards that remain subject to a risk of forfeiture or which are not otherwise vested at the
time of the Grantee’s Termination of Affiliation shall be forfeited to the Company and (b) all outstanding Options and SARs not
previously exercised shall expire three months after the Grantee’s Termination of Affiliation.
5.4
Nontransferability of Awards.
(a)
Each Award and each right under any Award shall be exercisable only by the Grantee during the Grantee’s lifetime, or, if permissible
under applicable law, by the Grantee’s guardian or legal representative or by a transferee receiving such Award pursuant to a qualified
domestic relations order (a “QDRO”) as defined in the Code or Title I of the Employee Retirement Income Security Act of 1974,
as amended, or the rules thereunder.
(b)
No Award (prior to the time, if applicable, Shares are delivered in respect of such Award), and no right under any Award, may be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered by a Grantee otherwise than by will or by the laws of descent
and distribution (or in the case of Restricted Shares, to the Company) or pursuant to a QDRO, and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate; provided that
the designation of a beneficiary to receive benefits in the event of the Grantee’s death shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance.
(c)
Notwithstanding subsections (a) and (b) above, to the extent provided in the Award Agreement or as otherwise approved by the Committee,
Options (other than Incentive Stock Options) and Restricted Shares, may be transferred, without consideration, to a Permitted Transferee.
For this purpose, a “Permitted Transferee” in respect of any Grantee means any member of the Immediate Family of such Grantee,
any trust of which all of the primary beneficiaries are such Grantee or members of his or her Immediate Family, or any partnership (including
limited liability companies and similar entities) of which all of the partners or members are such Grantee or members of his or her Immediate
Family; and the “Immediate Family” of a Grantee means the Grantee’s spouse, children, stepchildren, grandchildren,
parents, stepparents, siblings, grandparents, nieces and nephews. Such Option may be exercised by such transferee in accordance with
the terms of the Award Agreement. If so determined by the Committee, a Grantee may, in the manner established by the Committee, designate
a beneficiary or beneficiaries to exercise the rights of the Grantee, and to receive any distribution with respect to any Award upon
the death of the Grantee. A transferee, beneficiary, guardian, legal representative or other person claiming any rights under the Plan
from or through any Grantee shall be subject to and consistent with the provisions of the Plan and any applicable Award Agreement, except
to the extent the Plan and Award Agreement otherwise provide with respect to such persons, and to any additional restrictions or limitations
deemed necessary or appropriate by the Committee.
(d)
Nothing herein shall be construed as requiring the Committee to honor a QDRO except to the extent required under applicable law.
5.5
Cancellation and Rescission of Awards. Unless the Award Agreement specifies otherwise, the Committee may cancel, rescind, suspend,
withhold, or otherwise limit or restrict any unexercised Award at any time if the Grantee is not in compliance with all applicable provisions
of the Award Agreement and the Plan or if the Grantee has a Termination of Affiliation.
5.6
Stand-Alone, Tandem and Substitute Awards.
(a)
Awards granted under the Plan may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, or
in substitution for, any other Award granted under the Plan unless such tandem or substitution Award would subject the Grantee to tax
penalties imposed under Section 409A of the Code. If an Award is granted in substitution for another Award or any non-Plan award or benefit,
the Committee shall require the surrender of such other Award or non-Plan award or benefit in consideration for the grant of the new
Award. Awards granted in addition to or in tandem with other Awards or non-Plan awards or benefits may be granted either at the same
time as or at a different time from the grant of such other Awards or non-Plan awards or benefits; provided, however, that if any SAR
is granted in tandem with an Incentive Stock Option, such SAR and Incentive Stock Option must have the same Grant Date, Term and the
Exercise Price of the SAR may not be less than the Exercise Price of the Incentive Stock Option.
(b)
The Committee may, in its discretion and on such terms and conditions as the Committee considers appropriate in the circumstances, grant
Awards under the Plan (“Substitute Awards”) in substitution for stock and stock-based awards (“Acquired Entity Awards”)
held by current or former employees or non-employee directors of, or consultants to, another corporation or entity who become Eligible
Persons as the result of a merger or consolidation of the employing corporation or other entity (the “Acquired Entity”) with
the Company or an Affiliate or the acquisition by the Company or an Affiliate of property or stock of the Acquired Entity immediately
prior to such merger, consolidation or acquisition in order to preserve for the Grantee the economic value of all or a portion of such
Acquired Entity Award at such price as the Committee determines necessary to achieve preservation of economic value. The limitations
in Section 4.1 on the number of Shares reserved or available for grants shall not apply to Substitute Awards granted under this Section
5.6(b).
5.7
Compliance with Rule 16b-3. The provisions of this Section 5.7 will apply unless and until the Company no longer has a class of
stock that is registered under Section 12 of the Exchange Act.
(a)
Six-Month Holding Period Advice. Unless a Grantee could otherwise dispose of or exercise a derivative security or dispose of Shares
delivered under the Plan without incurring liability under Section 16(b) of the Exchange Act, the Committee may advise or require a Grantee
to comply with the following in order to avoid incurring liability under Section 16(b) of the Exchange Act: (i) at least six months must
elapse from the date of acquisition of a derivative security under the Plan to the date of disposition of the derivative security (other
than upon exercise or conversion) or its underlying equity security, and (ii) Shares granted or awarded under the Plan other than upon
exercise or conversion of a derivative security must be held for at least six months from the date of grant of an Award.
(b)
Reformation to Comply with Exchange Act Rules. To the extent the Committee determines that a grant or other transaction by a Section
16 Person should comply with applicable provisions of Rule 16b-3 (except for transactions exempted under alternative Exchange Act rules),
the Committee shall take such actions as necessary to make such grant or other transaction so comply, and if any provision of this Plan
or any Award Agreement relating to a given Award does not comply with the requirements of Rule 16b-3 as then applicable to any such grant
or transaction, such provision will be construed or deemed amended, if the Committee so determines, to the extent necessary to conform
to the then applicable requirements of Rule 16b-3.
(c)
Rule 16b-3 Administration. Any function relating to a Section 16 Person shall be performed solely by the Committee or the Board
if necessary to ensure compliance with applicable requirements of Rule 16b-3, to the extent the Committee determines that such compliance
is desired. Each member of the Committee or person acting on behalf of the Committee shall be entitled to, in good faith, rely or act
upon any report or other information furnished to him by any officer, manager or other employee of the Company or any Affiliate, the
Company’s independent certified public accountants or any executive compensation consultant or attorney or other professional retained
by the Company to assist in the administration of the Plan.
5.8
Deferral of Award Payouts. The Committee may permit a Grantee to defer, or if and to the extent specified in an Award Agreement
require the Grantee to defer, receipt of the payment of cash or the delivery of Shares that would otherwise be due by virtue of the lapse
or waiver of restrictions with respect to Restricted Stock Units, the satisfaction of any requirements or goals with respect to Performance
Units or Performance Shares, the lapse or waiver of the deferral period for Deferred Stock, or the lapse or waiver of restrictions with
respect to Other Stock-Based Awards. If the Committee permits such deferrals, the Committee shall establish rules and procedures for
making such deferral elections and for the payment of such deferrals, which shall conform in form and substance with applicable regulations
promulgated under Section 409A of the Code and Article 16 to ensure that the Grantee is not subjected to tax penalties under Section
409A of the Code with respect to such deferrals. Except as otherwise provided in an Award Agreement, any payment or any Shares that are
subject to such deferral shall be made or delivered to the Grantee as specified in the Award Agreement or pursuant to the Grantee’s
deferral election.
Article
6.
Stock
Options
6.1
Grant of Options. Subject to and consistent with the provisions of the Plan, Options may be granted to any Eligible Person in
such number, and upon such terms, and at any time and from time to time as shall be determined by the Committee.
6.2
Award Agreement. Each Option grant shall be evidenced by an Award Agreement that shall specify the Exercise Price, the Term of
the Option, the number of Shares to which the Option pertains, the time or times at which such Option shall be exercisable and such other
provisions as the Committee shall determine.
6.3
Option Exercise Price. The Exercise Price of an Option under this Plan shall be determined in the sole discretion of the Committee
but may not be less than 100% of the Fair Market Value of a Share on the Grant Date.
6.4
Grant of Incentive Stock Options. At the time of the grant of any Option, the Committee may in its discretion designate that such
Option shall be made subject to additional restrictions to permit it to qualify as an Incentive Stock Option. Any Option designated as
an Incentive Stock Option:
(a)
shall be granted only to an employee of the Company, a Parent Corporation or a Subsidiary Corporation;
(b)
shall have an Exercise Price of not less than 100% of the Fair Market Value of a Share on the Grant Date, and, if granted to a person
who owns capital stock (including stock treated as owned under Section 424(d) of the Code) possessing more than 10% of the total combined
voting power of all classes of capital stock of the Company or any Subsidiary Corporation (a “More Than 10% Owner”), have
an Exercise Price not less than 110% of the Fair Market Value of a Share on its Grant Date;
(c)
shall be for a period of not more than 10 years (five years if the Grantee is a More Than 10% Owner) from its Grant Date, and shall be
subject to earlier termination as provided herein or in the applicable Award Agreement;
(d)
shall not have an aggregate Fair Market Value (as of the Grant Date) of the Shares with respect to which Incentive Stock Options (whether
granted under the Plan or any other stock option plan of the Grantee’s employer or any parent or Subsidiary Corporation (“Other
Plans”)) are exercisable for the first time by such Grantee during any calendar year (“Current Grant”), determined
in accordance with the provisions of Section 422 of the Code, which exceeds $100,000 (the “$100,000 Limit”);
(e)
shall, if the aggregate Fair Market Value of the Shares (determined on the Grant Date) with respect to the Current Grant and all Incentive
Stock Options previously granted under the Plan and any Other Plans which are exercisable for the first time during a calendar year (“Prior
Grants”) would exceed the $100,000 Limit, be, as to the portion in excess of the $100,000 Limit, exercisable as a separate option
that is not an Incentive Stock Option at such date or dates as are provided in the Current Grant;
(f)
shall require the Grantee to notify the Committee of any disposition of any Shares delivered pursuant to the exercise of the Incentive
Stock Option under the circumstances described in Section 421(b) of the Code (relating to holding periods and certain disqualifying dispositions)
(“Disqualifying Disposition”) within 10 days of such a Disqualifying Disposition;
(g)
shall by its terms not be assignable or transferable other than by will or the laws of descent and distribution and may be exercised,
during the Grantee’s lifetime, only by the Grantee; provided, however, that the Grantee may, to the extent provided in the Plan
in any manner specified by the Committee, designate in writing a beneficiary to exercise his or her Incentive Stock Option after the
Grantee’s death; and
(h)
shall, if such Option nevertheless fails to meet the foregoing requirements, or otherwise fails to meet the requirements of Section 422
of the Code for an Incentive Stock Option, be treated for all purposes of this Plan, except as otherwise provided in subsections (d)
and (e) above, as an Option that is not an Incentive Stock Option.
Notwithstanding
the foregoing and Section 3.2, the Committee may, without the consent of the Grantee, at any time before the exercise of an Option (whether
or not an Incentive Stock Option), take any action necessary to prevent such Option from being treated as an Incentive Stock Option.
6.5
Payment of Exercise Price. Except as otherwise provided in an Award Agreement, Options shall be exercised by the delivery of a
written notice of exercise to the Company, setting forth the number of Shares with respect to which the Option is to be exercised, accompanied
by full payment for the Shares made by any one or more of the following means:
(a)
cash, personal check or wire transfer;
(b)
with the approval of the Committee, delivery of Common Stock owned by the Grantee prior to exercise (including by attestation), valued
at Fair Market Value on the date of exercise;
(c)
with the approval of the Committee, Shares acquired upon the exercise of such Option, such Shares valued at Fair Market Value on the
date of exercise;
(d)
with the approval of the Committee, Restricted Shares held by the Grantee prior to the exercise of the Option, valued at Fair Market
Value on the date of exercise; or
(e)
subject to applicable law (including the prohibited loan provisions of Section 402 of the Sarbanes Oxley Act of 2002), through the sale
of the Shares acquired on exercise of the Option through a broker-dealer to whom the Grantee has submitted an irrevocable notice of exercise
and irrevocable instructions to deliver promptly to the Company the amount of sale proceeds sufficient to pay for such Shares, together
with, if requested by the Company, the amount of federal, state, local or foreign withholding taxes payable by Grantee by reason of such
exercise.
The
Committee may in its discretion specify that, if any Restricted Shares (“Tendered Restricted Shares”) are used to pay the
Exercise Price, (x) all the Shares acquired on exercise of the Option shall be subject to the same restrictions as the Tendered Restricted
Shares, determined as of the date of exercise of the Option, or (y) a number of Shares acquired on exercise of the Option equal to the
number of Tendered Restricted Shares shall be subject to the same restrictions as the Tendered Restricted Shares, determined as of the
date of exercise of the Option.
Article
7.
Stock
Appreciation Rights
7.1
Issuance. Subject to and consistent with the provisions of the Plan, the Committee, at any time and from time to time, may grant
SARs to any Eligible Person either alone or in addition to other Awards granted under the Plan. Such SARs may, but need not, be granted
in connection with a specific Option granted under Article 6. The Committee may impose such conditions or restrictions on the exercise
of any SAR as it shall deem appropriate.
7.2
Award Agreements. Each SAR grant shall be evidenced by an Award Agreement in such form as the Committee may approve and shall
contain such terms and conditions not inconsistent with other provisions of the Plan as shall be determined from time to time by the
Committee.
7.3
SAR Exercise Price. The Exercise Price of a SAR shall be determined by the Committee in its sole discretion; provided that the
Exercise Price shall not be less than 100% of the Fair Market Value of a Share on the date of the grant of the SAR.
7.4
Exercise and Payment. Upon the exercise of an SAR, a Grantee shall be entitled to receive payment from the Company in an amount
determined by multiplying:
(a)
The excess of the Fair Market Value of a Share on the date of exercise over the Exercise Price; by
(b)
The number of Shares with respect to which the SAR is exercised.
SARs
shall be deemed exercised on the date written notice of exercise in a form acceptable to the Committee is received by the Secretary of
the Company. The Company shall make payment in respect of any SAR within five (5) days of the date the SAR is exercised. Any payment
by the Company in respect of a SAR may be made in cash, Shares, other property, or any combination thereof, as the Committee, in its
sole discretion, shall determine or, to the extent permitted under the terms of the applicable Award Agreement, at the election of the
Grantee.
Article
8.
Restricted
Shares
8.1
Grant of Restricted Shares. Subject to and consistent with the provisions of the Plan, the Committee, at any time and from time
to time, may grant Restricted Shares to any Eligible Person in such amounts as the Committee shall determine.
8.2
Award Agreement. Each grant of Restricted Shares shall be evidenced by an Award Agreement that shall specify the Period(s) of
Restriction, the number of Restricted Shares granted, and such other provisions as the Committee shall determine. The Committee may impose
such conditions and/or restrictions on any Restricted Shares granted pursuant to the Plan as it may deem advisable, including time-based
restrictions, restrictions based upon the achievement of specific performance goals, vesting based on time-based restrictions following
the attainment of the performance goals, and/or restrictions under applicable securities laws; provided that such conditions and/or restrictions
may lapse, if so determined by the Committee, in the event of the Grantee’s Termination of Affiliation due to death, Disability,
or involuntary termination by the Company or an Affiliate without Cause.
8.3
Consideration for Restricted Shares. The Committee shall determine the amount, if any, that a Grantee shall pay for Restricted
Shares.
8.4
Effect of Forfeiture. If Restricted Shares are forfeited, and if the Grantee was required to pay for such shares or acquired such
Restricted Shares upon the exercise of an Option, the Grantee shall be deemed to have resold such Restricted Shares to the Company at
a price equal to the lesser of (x) the amount paid by the Grantee for such Restricted Shares, or (y) the Fair Market Value of a Share
on the date of such forfeiture. The Company shall pay to the Grantee the deemed sale price as soon as is administratively practical.
Such Restricted Shares shall cease to be outstanding and shall no longer confer on the Grantee thereof any rights as a stockholder of
the Company, from and after the date of the event causing the forfeiture, whether or not the Grantee accepts the Company’s tender
of payment for such Restricted Shares.
8.5
Escrow; Legends. The Committee may provide that the certificates for any Restricted Shares (x) shall be held (together with a
stock power executed in blank by the Grantee) in escrow by the Secretary of the Company until such Restricted Shares become nonforfeitable
or are forfeited and/or (y) shall bear an appropriate legend restricting the transfer of such Restricted Shares under the Plan. If any
Restricted Shares become nonforfeitable, the Company shall cause certificates for such shares to be delivered without such legend.
Article
9.
Performance
Units and Performance Shares
9.1
Grant of Performance Units and Performance Shares. Subject to and consistent with the provisions of the Plan, Performance Units
or Performance Shares may be granted to any Eligible Person in such amounts and upon such terms, and at any time and from time to time,
as shall be determined by the Committee.
9.2
Value/Performance Goals. The Committee shall set performance goals in its discretion which, depending on the extent to which they
are met, will determine the number or value of Performance Units or Performance Shares that will be paid to the Grantee.
(a)
Performance Unit. Each Performance Unit shall have an initial value that is established by the Committee at the time of grant.
(b)
Performance Share. Each Performance Share shall have an initial value equal to the Fair Market Value of a Share on the date of
grant.
9.3
Earning of Performance Units and Performance Shares. After the applicable Performance Period has ended, the holder of Performance
Units or Performance Shares shall be entitled to payment based on the level of achievement of performance goals set by the Committee.
At
the discretion of the Committee, the settlement of Performance Units or Performance Shares may be in cash, Shares of equivalent value,
or in some combination thereof, as set forth in the Award Agreement.
If
a Grantee is promoted, demoted or transferred to a different business unit of the Company during a Performance Period, then, to the extent
the Committee determines that the Award, the performance goals, or the Performance Period are no longer appropriate, the Committee may
adjust, change, eliminate or cancel the Award, the performance goals, or the applicable Performance Period, as it deems appropriate in
order to make them appropriate and comparable to the initial Award, the performance goals, or the Performance Period.
At
the discretion of the Committee, a Grantee may be entitled to receive any dividends or Dividend Equivalents declared with respect to
Shares deliverable in connection with vested Performance Shares which have been earned, but not yet delivered to the Grantee.
Article
10.
Deferred
Stock and Restricted Stock Units
10.1
Grant of Deferred Stock and Restricted Stock Units. Subject to and consistent with the provisions of the Plan, the Committee,
at any time and from time to time, may grant Deferred Stock and/or Restricted Stock Units to any Eligible Person, in such amount and
upon such terms as the Committee shall determine. Deferred Stock must conform in form and substance with applicable regulations promulgated
under Section 409A of the Code and with Article 16 to ensure that the Grantee is not subjected to tax penalties under Section 409A of
the Code with respect to such Deferred Stock.
10.2
Vesting and Delivery.
(a)
Delivery with Respect to Deferred Stock. Delivery of Shares subject to a Deferred Stock grant will occur upon expiration of the
deferral period or upon the occurrence of one or more of the distribution events described in Section 409A(a)(2) of the Code as specified
by the Committee in the Grantee’s Award Agreement for the Award of Deferred Stock. An Award of Deferred Stock may be subject to
such substantial risk of forfeiture conditions as the Committee may impose, which conditions may lapse at such times or upon the achievement
of such objectives as the Committee shall determine at the time of grant or thereafter. Unless otherwise determined by the Committee,
to the extent that the Grantee has a Termination of Affiliation while the Deferred Stock remains subject to a substantial risk of forfeiture,
such Deferred Shares shall be forfeited, unless the Committee determines that such substantial risk of forfeiture shall lapse in the
event of the Grantee’s Termination of Affiliation due to death, Disability, or involuntary termination by the Company or an Affiliate
without “cause.”
(b)
Delivery with Respect to Restricted Stock Units. Delivery of Shares subject to a grant of Restricted Stock Units shall occur no
later than the 15th day of the third month following the end of the taxable year of the Grantee or the fiscal year of the
Company in which the Grantee’s rights under such Restricted Stock Units are no longer subject to a substantial risk of forfeiture
as defined in final regulations under Section 409A of the Code. Unless otherwise determined by the Committee, to the extent that the
Grantee has a Termination of Affiliation while the Restricted Stock Units remains subject to a substantial risk of forfeiture, such Restricted
Stock Units shall be forfeited, unless the Committee determines that such substantial risk of forfeiture shall lapse in the event of
the Grantee’s Termination of Affiliation due to death, Disability, or involuntary termination by the Company or an Affiliate without
“cause.”
10.3
Voting and Dividend Equivalent Rights Attributable to Deferred Stock and Restricted Stock Units. A Grantee awarded Deferred Stock
or Restricted Stock Units will have no voting rights with respect to such Deferred Stock or Restricted Stock Units prior to the delivery
of Shares in settlement of such Deferred Stock and/or Restricted Stock Units. Unless otherwise determined by the Committee, a Grantee
will have the rights to receive Dividend Equivalents in respect of Deferred Stock and/or Restricted Stock Units, which Dividend Equivalents
shall be deemed reinvested in additional Shares of Deferred Stock or Restricted Stock Units, as applicable, which shall remain subject
to the same forfeiture conditions applicable to the Deferred Stock or Restricted Stock Units to which such Dividend Equivalents relate.
Article
11.
Dividend
Equivalents
The
Committee is authorized to grant Awards of Dividend Equivalents alone or in conjunction with other Awards. The Committee may provide
that Dividend Equivalents shall be paid or distributed when accrued or shall be deemed to have been reinvested in additional Shares or
additional Awards or otherwise reinvested subject to distribution at the same time and subject to the same conditions as the Award to
which it relates; provided, however, that any Dividend Equivalents granted in conjunction with any Award that is subject to forfeiture
conditions shall remain subject to the same forfeiture conditions applicable to the Award to which such Dividend Equivalents relate and
any payments in respect of any Dividend Equivalents granted in conjunction with any Options or SARs may not be conditioned, directly
or indirectly, on the Grantee’s exercise of the Options or SARs or paid at the same time that the Options or SARs are exercised.
The timing of payment or distribution of Dividend Equivalents must comply with the requirements of Section 409A of the Code.
Article
12.
Bonus
Shares
Subject
to the terms of the Plan, the Committee may grant Bonus Shares to any Eligible Person, in such amount and upon such terms and at any
time and from time to time as shall be determined by the Committee.
Article
13.
Other
Stock-Based Awards
The
Committee is authorized, subject to limitations under applicable law, to grant such other Awards that are denominated or payable in,
valued in whole or in part by reference to, or otherwise based on, or related to, Shares, as deemed by the Committee to be consistent
with the purposes of the Plan, including Shares awarded which are not subject to any restrictions or conditions, convertible or exchangeable
debt securities or other rights convertible or exchangeable into Shares, and Awards valued by reference to the value of securities of
or the performance of specified Affiliates. Subject to and consistent with the provisions of the Plan, the Committee shall determine
the terms and conditions of such Awards. Except as provided by the Committee, Shares delivered pursuant to a purchase right granted under
this Article 13 shall be purchased for such consideration, paid for by such methods and in such forms, including cash, Shares, outstanding
Awards or other property, as the Committee shall determine.
Article
14.
Non-Employee
Director Awards
Subject
to the terms of the Plan, the Board may grant Awards to any Non-Employee Director, in such amount and upon such terms and at any time
and from time to time as shall be determined by the full Board in its sole discretion. Except as otherwise provided in Section 5.6(b),
a Non-Employee Director may not be granted Awards with respect to Shares that have a Fair Market Value (determined as of the date of
grant) in excess of $500,000 in a single calendar year.
Article
15.
Amendment,
Modification, and Termination
15.1
Amendment, Modification, and Termination. Subject to Section 15.2, the Board may, at any time and from time to time, alter, amend,
suspend, discontinue or terminate the Plan in whole or in part without the approval of the Company’s stockholders, except that
(a) any amendment or alteration shall be subject to the approval of the Company’s stockholders if such stockholder approval is
required by any federal or state law or regulation or the rules of any stock exchange or automated quotation system on which the Shares
may then be listed or quoted, and (b) the Board may otherwise, in its discretion, determine to submit other such amendments or alterations
to stockholders for approval.
15.2
Awards Previously Granted. Except as otherwise specifically permitted in the Plan or an Award Agreement, no termination, amendment,
or modification of the Plan shall adversely affect in any material way any Award previously granted under the Plan, without the written
consent of the Grantee of such Award.
Article
16.
Compliance
with Code Section 409A
16.1
Awards Subject to Code Section 409A. The provisions of this Article 16 shall apply to any Award or portion thereof that is or
becomes deferred compensation subject to Code Section 409A (a “409A Award”), notwithstanding any provision to the contrary
contained in the Plan or the Award Agreement applicable to such Award.
16.2
Deferral and/or Distribution Elections. Except as otherwise permitted or required by Code Section 409A, the following rules shall
apply to any deferral and/or elections as to the form or timing of distributions (each, an “Election”) that may be permitted
or required by the Committee with respect to a 409A Award:
(a)
Any Election must be in writing and specify the amount being deferred, and the time and form of distribution (i.e., lump sum or installments)
as permitted by this Plan. An Election may but need not specify whether payment will be made in cash, Shares or other property.
(b)
Any Election shall become irrevocable as of the deadline specified by the Committee, which shall not be later than December 31 of the
year preceding the year in which services relating to the Award commence; provided, however, that if the Award qualifies as “performance-based
compensation” for purposes of Code Section 409A and is based on services performed over a period of at least twelve (12) months,
then the deadline may be no later than six (6) months prior to the end of such performance period.
(c)
Unless otherwise provided by the Committee, an Election shall continue in effect until a written election to revoke or change such Election
is received by the Committee, prior to the last day for making an Election for the subsequent year.
16.3
Subsequent Elections. Except as otherwise permitted or required by Code Section 409A, any 409A Award which permits a subsequent
Election to further defer the distribution or change the form of distribution shall comply with the following requirements:
(a)
No subsequent Election may take effect until at least twelve (12) months after the date on which the subsequent Election is made;
(b)
Each subsequent Election related to a distribution upon separation from service, a specified time, or a Change in Control must result
in a delay of the distribution for a period of not less than five (5) years from the date such distribution would otherwise have been
made; and
(c)
No subsequent Election related to a distribution to be made at a specified time or pursuant to a fixed schedule shall be made less than
twelve (12) months prior to the date the scheduled payment would otherwise be made. In the event payments under any 409A Award are scheduled
to be made on a fixed schedule or in installments, each scheduled payment or installment shall be treated as a separate payment for purposes
of Section 409A of the Code.
16.4
Distributions Pursuant to Deferral Elections. Except as otherwise permitted or required by Code Section 409A, no distribution
in settlement of a 409A Award may commence earlier than:
(a)
Separation from Service;
(b)
The date the Grantee becomes Disabled (as defined in Section 2.15(b);
(c)
The Grantee’s death;
(d)
A specified time (or pursuant to a fixed schedule) that is either (i) specified by the Committee upon the grant of the Award and set
forth in the Award Agreement or (ii) specified by the Grantee in an Election complying with the requirements of Section 16.2 and/or 16.3,
as applicable; or
(e)
A change in ownership of the Company or a substantial portion of its assets within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(v)
or (vii) or a change in effective control of the Company within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(vi) (a “Change
in Control”).
16.5
Six Month Delay. Notwithstanding anything herein or in any Award Agreement or Election to the contrary, to the extent that distribution
of a 409A Award is triggered by a Grantee’s Separation from Service, if the Grantee is then a “specified employee”
(as defined in Treasury Regulation Section 1.409A-1(i)), no distribution may be made before the date which is six (6) months after such
Grantee’s Separation from Service, or, if earlier, the date of the Grantee’s death.
16.6
Death or Disability. Unless the Award Agreement otherwise provides, if a Grantee dies or becomes Disabled before complete distribution
of amounts payable upon settlement of a 409A Award, such undistributed amounts, to the extent vested, shall be distributed as provided
in the Grantee’s Election. If the Grantee has made no Election with respect to distributions upon death or Disability, all such
distributions shall be paid in a lump sum within 90 days following the date of the Grantee’s death or Disability.
16.7
No Acceleration of Distributions. This Plan does not permit the acceleration of the time or schedule of any distribution under
a 409A Award, except as provided by Code Section 409A and/or applicable regulations or rulings issued thereunder.
Article
17.
Withholding
17.1
Required Withholding.
(a)
The Committee in its sole discretion may provide that when taxes are to be withheld in connection with the exercise of an Option or SAR,
or upon the lapse of restrictions on Restricted Shares, or upon the transfer of Shares, or upon payment of any other benefit or right
under this Plan (the date on which such exercise occurs or such restrictions lapse or such payment of any other benefit or right occurs
hereinafter referred to as the “Tax Date”), the Grantee may elect to make payment for the withholding of federal, state and
local taxes, including Social Security and Medicare (“FICA”) taxes by one or a combination of the following methods:
(i)
payment of an amount in cash equal to the amount to be withheld (including cash obtained through the sale of the Shares acquired on exercise
of an Option or SAR, upon the lapse of restrictions on Restricted Shares, or upon the transfer of Shares, through a broker-dealer to
whom the Grantee has submitted an irrevocable instructions to deliver promptly to the Company, the amount to be withheld);
(ii)
delivering part or all of the amount to be withheld in the form of Common Stock valued at its Fair Market Value on the Tax Date;
(iii)
requesting the Company to withhold from those Shares that would otherwise be received upon exercise of the Option or SAR, upon the lapse
of restrictions on Restricted Stock, or upon the transfer of Shares, a number of Shares having a Fair Market Value on the Tax Date equal
to the amount to be withheld; or
(iv)
withholding from any compensation otherwise due to the Grantee.
The
Committee in its sole discretion may provide that the maximum amount of tax withholding upon exercise of an Option or SARs, upon the
lapse of restrictions on Restricted Shares, or upon the transfer of Shares, to be satisfied by withholding Shares upon exercise of such
Option or SAR, upon the lapse of restrictions on Restricted Shares, or upon the transfer of Shares, pursuant to clause (iii) above shall
not exceed the minimum amount of taxes, including FICA taxes, required to be withheld under federal, state and local law. An election
by Grantee under this subsection is irrevocable. Any fractional share amount and any additional withholding not paid by the withholding
or surrender of Shares must be paid in cash. If no timely election is made, the Grantee must deliver cash to satisfy all tax withholding
requirements.
(b)
Any Grantee who makes a Disqualifying Disposition (as defined in Section 6.4(f)) or an election under Section 83(b) of the Code shall
remit to the Company an amount sufficient to satisfy all resulting tax withholding requirements in the same manner as set forth in subsection
(a).
17.2
Notification under Code Section 83(b). If the Grantee, in connection with the exercise of any Option, or the grant of Restricted
Shares, makes the election permitted under Section 83(b) of the Code to include in such Grantee’s gross income in the year of transfer
the amounts specified in Section 83(b) of the Code, then such Grantee shall notify the Company of such election within 10 days of filing
the notice of the election with the Internal Revenue Service, in addition to any filing and notification required pursuant to regulations
issued under Section 83(b) of the Code. The Committee may, in connection with the grant of an Award or at any time thereafter, prohibit
a Grantee from making the election described above.
Article
18.
Additional
Provisions
18.1
Successors. Subject to Section 4.2(b), all obligations of the Company under the Plan with respect to Awards granted hereunder
shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise of all or substantially all of the business and/or assets of the Company.
18.2
Severability. If any part of the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness
or invalidity shall not invalidate any other part of the Plan. Any Section or part of a Section so declared to be unlawful or invalid
shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest
extent possible while remaining lawful and valid.
18.3
Requirements of Law. The granting of Awards and the delivery of Shares under the Plan shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required. Notwithstanding
any provision of the Plan or any Award, Grantees shall not be entitled to exercise, or receive benefits under, any Award, and the Company
(and any Affiliate) shall not be obligated to deliver any Shares or deliver benefits to a Grantee, if such exercise or delivery would
constitute a violation by the Grantee or the Company of any applicable law or regulation.
18.4
Securities Law Compliance.
(a)
If the Committee deems it necessary to comply with any applicable securities law, or the requirements of any stock exchange upon which
Shares may be listed, the Committee may impose any restriction on Awards or Shares acquired pursuant to Awards under the Plan as it may
deem advisable. In addition, if requested by the Company and any underwriter engaged by the Company, Shares acquired pursuant to Awards
may not be sold or otherwise transferred or disposed of for such period following the effective date of any registration statement of
the Company filed under the Securities Act as the Company or such underwriter shall specify reasonably and in good faith, not to exceed
180 days in the case of the Company’s initial public offering or 90 days in the case of any other public offering. All certificates
for Shares delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations and other requirements of the SEC, any stock exchange upon
which Shares are then listed, any applicable securities law, and the Committee may cause a legend or legends to be put on any such certificates
to make appropriate reference to such restrictions. If so requested by the Company, the Grantee shall make a written representation to
the Company that he or she will not sell or offer to sell any Shares unless a registration statement shall be in effect with respect
to such Shares under the Securities Act of 1933, as amended, and any applicable state securities law or unless he or she shall have furnished
to the Company, in form and substance satisfactory to the Company, that such registration is not required.
(b)
If the Committee determines that the exercise or nonforfeitability of, or delivery of benefits pursuant to, any Award would violate any
applicable provision of securities laws or the listing requirements of any national securities exchange or national market system on
which are listed any of the Company’s equity securities, then the Committee may postpone any such exercise, nonforfeitability or
delivery, as applicable, but the Company shall use all reasonable efforts to cause such exercise, nonforfeitability or delivery to comply
with all such provisions at the earliest practicable date.
18.5
Awards Subject to Claw-Back Policies. Notwithstanding any provisions herein to the contrary, if the Company has a class of stock
that is registered under Section 12 of the Exchange Act, all Awards granted hereunder shall be subject to the terms of any recoupment
policy currently in effect or subsequently adopted by the Board to implement Section 304 of the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley
Act”) or Section 10D of the Exchange Act (or with any amendment or modification of such recoupment policy adopted by the Board)
to the extent that such Award (whether or not previously exercised or settled) or the value of such Award is required to be returned
to the Company pursuant to the terms of such recoupment policy.
18.6
Forfeiture Events. Notwithstanding any provisions herein to the contrary, the Committee shall have the authority to determine
(and may so provide in any Award Agreement) that a Grantee’s (including his or her estate’s, beneficiary’s or transferee’s)
rights (including the right to exercise any Option or SAR), payments and benefits with respect to any Award shall be subject to reduction,
cancellation, forfeiture or recoupment (to the extent permitted by applicable law) in the event of the Grantee’s termination for
Cause; serious misconduct; violation of the Company’s or an Affiliate’s policies; breach of fiduciary duty; unauthorized
disclosure of any trade secret or confidential information of the Company or an Affiliate; breach of applicable noncompetition, nonsolicitation,
confidentiality or other restrictive covenants; or other conduct or activity that is in competition with the business of the Company
or an Affiliate, or otherwise detrimental to the business, reputation or interests of the Company and/or an Affiliate; or upon the occurrence
of certain events specified in the applicable Award Agreement (in any such case, whether or not the Grantee is then an Employee or Non-Employee
Director). The determination of whether a Grantee’s conduct, activities or circumstances are described in the immediately preceding
sentence shall be made by the Committee in its discretion, and pending any such determination, the Committee shall have the authority
to suspend the exercise, payment, delivery or settlement of all or any portion of such Grantee’s outstanding Awards pending any
investigation of the matter.
18.7
No Rights as a Stockholder. No Grantee shall have any rights as a stockholder of the Company with respect to the Shares (other
than Restricted Shares) which may be deliverable upon exercise or payment of such Award until such Shares have been delivered to him
or her. Restricted Shares, whether held by a Grantee or in escrow by the Secretary of the Company, shall confer on the Grantee all rights
of a stockholder of the Company, except as otherwise provided in the Plan or Award Agreement. At the time of a grant of Restricted Shares,
the Committee may require the payment of cash dividends thereon to be deferred and, if the Committee so determines, reinvested in additional
Restricted Shares. Stock dividends and deferred cash dividends issued with respect to Restricted Shares shall be subject to the same
restrictions and other terms as apply to the Restricted Shares with respect to which such dividends are issued. The Committee may in
its discretion provide for payment of interest on deferred cash dividends.
18.8
Nature of Payments. Unless otherwise specified in the Award Agreement, Awards shall be special incentive payments to the Grantee
and shall not be taken into account in computing the amount of salary or compensation of the Grantee for purposes of determining any
pension, retirement, death or other benefit under (a) any pension, retirement, profit sharing, bonus, insurance or other employee benefit
plan of the Company or any Affiliate, except as such plan shall otherwise expressly provide, or (b) any agreement between (i) the Company
or any Affiliate and (ii) the Grantee, except as such agreement shall otherwise expressly provide.
18.9
Non-Exclusivity of Plan. Neither the adoption of the Plan by the Board nor its submission to the stockholders of the Company for
approval shall be construed as creating any limitations on the power of the Board to adopt such other compensatory arrangements for employees
or Non-Employee Directors as it may deem desirable.
18.10
Governing Law. The Plan, and all agreements hereunder, shall be construed in accordance with and governed by the laws of the State
of Delaware, other than its laws respecting choice or conflicts of law rule or principles that might otherwise refer construction or
interpretation of the Plan to the substantive law of another jurisdiction. Unless otherwise provided in the Award Agreement, Grantees
are deemed to submit to the exclusive jurisdiction and venue of the federal or state courts of the State of Delaware, to resolve any
and all issues that may arise out of or relate to the Plan or any related Award Agreement.
18.11
Unfunded Status of Awards; Creation of Trusts. The Plan is intended to constitute an “unfunded” plan for incentive
and deferred compensation. With respect to any payments not yet made to a Grantee pursuant to an Award, nothing contained in the Plan
or any Award Agreement shall give any such Grantee any rights that are greater than those of a general creditor of the Company; provided,
however, that the Committee may authorize the creation of trusts or make other arrangements to meet the Company’s obligations under
the Plan to deliver cash, Shares or other property pursuant to any Award which trusts or other arrangements shall be consistent with
the “unfunded” status of the Plan unless the Committee otherwise determines.
18.12
Affiliation. Nothing in the Plan or an Award Agreement shall interfere with or limit in any way the right of the Company or any
Affiliate to terminate any Grantee’s employment or consulting contract at any time, nor confer upon any Grantee the right to continue
in the employ of or as an officer of or as a consultant to or Non-Employee Director of the Company or any Affiliate.
18.13
Participation. No employee or officer shall have the right to be selected to receive an Award under this Plan or, having been
so selected, to be selected to receive a future Award.
18.14
Military Service. Awards shall be administered in accordance with Section 414(u) of the Code and the Uniformed Services Employment
and Reemployment Rights Act of 1994.
18.15
Construction. The following rules of construction will apply to the Plan: (a) the word “or” is disjunctive but not
necessarily exclusive, and (b) words in the singular include the plural, words in the plural include the singular, and words in the neuter
gender include the masculine and feminine genders and words in the masculine or feminine gender include the other neuter genders.
18.16
Headings. The headings of articles and sections are included solely for convenience of reference, and if there is any conflict
between such headings and the text of this Plan, the text shall control.
18.17
Obligations. Unless otherwise specified in the Award Agreement, the obligation to deliver, pay or transfer any amount of money
or other property pursuant to Awards under this Plan shall be the sole obligation of a Grantee’s employer; provided that the obligation
to deliver or transfer any Shares pursuant to Awards under this Plan shall be the sole obligation of the Company.
18.18
No Right to Continue as Director. Nothing in the Plan or any Award Agreement shall confer upon any Non-Employee Director the right
to continue to serve as a director of the Company.
18.19
Stockholder Approval. All Awards granted on or after the Effective Date and prior to the date the Company’s stockholders
approve the Plan are expressly conditioned upon and subject to approval of the Plan by the Company’s stockholders and no Shares
shall be issued hereunder pursuant to the exercise or settlement of any Award granted hereunder unless and until the approval of the
Plan by the Company’s stockholders.
Exhibit
5.1
|
Dentons
US LLP
1221 Avenue of the Americas
New York, NY 10020-1089
United States
P +1 212 768 6700
F
+1 212 768 6800
dentons.com |
September
6, 2023
Vislink
Technologies, Inc.
350
Clark Drive, Suite 125
Mt.
Olive, NJ 07828
Re: |
Registration
Statement on Form S-8 |
Ladies
and Gentlemen:
We
have acted as counsel to Vislink Technologies, Inc., a corporation organized under the laws of the State of Delaware (the “Company”),
in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the issuance
of up to 166,415 shares (the “Shares”) of the Company’s common stock, par value $0.00001 per share (the “Common
Stock”), pursuant to the Company’s 2023 Omnibus Equity Incentive Plan (the “2023 Plan”), on a Registration
Statement on Form S-8 being filed on the date hereof by the Company with the U.S. Securities and Exchange Commission (the “Commission”)
under the Securities Act (such registration statement, as it may be amended, the “Registration Statement”).
We
are delivering this opinion to you in accordance with your request and in accordance with the requirements of Item 8 of Form S-8 and
Item 601(b)(5)(i) of Regulation S-K.
In
connection with rendering this opinion, we have examined originals, certified copies or copies otherwise identified as being true copies
of the following:
|
1. |
the
Registration Statement, together with the exhibits filed as a part thereof and including any documents incorporated by reference
therein; |
|
|
|
|
2. |
The Amended and Restated Certificate
of Incorporation of the Company; |
|
|
|
|
3. |
the Amended and Restated Bylaws
of the Company; |
|
|
|
|
4. |
the 2023 Plan; |
|
|
|
|
5. |
corporate resolutions and proceedings
of the Company relating to its proposed issuance of the Shares; and |
Bingham
Greenebaum ► Cohen & Grigsby ► Sayarh & Menjra ► Larraín Rencoret ► Hamilton Harrison &
Mathews ► Mardemootoo Balgobin ► HPRP ► Zain & Co. ► Delany Law ► Dinner Martin ► For more
on the firms that have joined Dentons, go to dentons.com/legacyfirms |
|
Vislink
Technologies, Inc.
September 6, 2023
Page
2
|
dentons.com |
|
6. |
such other instruments and documents
as we have deemed relevant or necessary in connection with our opinions set forth herein. |
We
have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of documents submitted to us
as originals, the conformity to the original documents of all documents submitted to us as certified, facsimile or photostatic copies,
and the authenticity of the originals of such copies. In addition, for purposes of this opinion, we have assumed that a sufficient number
of authorized but unissued shares of the Company’s Common Stock will be available for issuance when the Shares are issued.
Based
on the foregoing, and subject to the limitations, qualifications, exceptions and assumptions expressed herein, we are of the opinion,
assuming no change in the applicable law or pertinent facts and having due regard for such legal considerations as we deem relevant,
that the Shares, when issued and paid for in accordance with the terms of the 2023 Plan, will be validly issued, fully paid and non-assessable.
We
express no opinion as to the laws of any jurisdiction other than the State of New York (excluding local laws), Delaware corporate law
(which includes General Corporation Law of such State and applicable provisions of the Delaware Constitution, as well as reported judicial
opinions interpreting the same) and the federal laws of the United States of America.
This
opinion is solely for your benefit and may not be furnished to, or relied upon by, any other person or entity without the express prior
written consent of the undersigned, however, we hereby consent to the use of our opinion as herein set forth as an exhibit to the Registration
Statement. We do not, by giving such consent, admit that we are within the category of persons whose consent is required under Section
7 of the Securities Act, or the rules and regulations of the Commission thereunder.
|
Very
truly yours, |
|
|
|
/s/
Dentons US LLP |
Exhibit
23.1
Independent
Registered Public Accounting Firm’s Consent
We
consent to the incorporation by reference in this Registration Statement of Vislink Technologies, Inc. on Form S-8 of our report dated
March 31, 2023, with respect to our audits of the consolidated financial statements of Vislink Technologies, Inc. as of December
31, 2022 and 2021 and for the years ended appearing in the Annual Report on Form 10-K of Vislink Technologies, Inc for the year
ended December 31, 2022.
/s/
Marcum LLP
Marcum
LLP
New
York, NY
September
6, 2023
Exhibit
107
CALCULATION
OF FILING FEE TABLES
Form
S-8
(Form
Type)
Vislink
Technologies, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
Security Type | |
Security Class Title | |
Fee Calculation Rule (1) | |
Amount Registered(2) | | |
Proposed Maximum Offering Price per Unit | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee (3) | |
Equity | |
Common Stock, par value $0.00001 per share | |
457(c) and 457(h) | |
| 166,415 | (2) | |
$ | 4.485 | | |
$ | 746,371.28 | | |
| 0.00011020 | | |
$ | 82.25 | |
| |
Total Offering Amounts | |
| |
| | | |
| | | |
$ | 746,371.28 | | |
| | | |
$ | 82.25 | |
| |
Total Fee Offsets | |
| |
| | | |
| | | |
| | | |
| | | |
| — | |
| |
Net Fee Due | |
| |
| | | |
| | | |
| | | |
| | | |
$ | 82.25 | |
(1) |
This
estimate is made pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration
fee. The price per share and aggregate offering price of the Registrant’s common stock are based upon the average of the high
and low prices of the Common Stock on August 30, 2023, as reported on the Nasdaq Capital Market, which date is within five business
days prior to the filing of this Registration Statement. |
(2) |
Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrant’s
common stock that become issuable under the 2023 Omnibus Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding
shares of common stock. |
(3) |
The
Registrant does not have any fee offsets. |
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