As filed with the Securities and Exchange Commission
on August 21, 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
Immunic, Inc.
(Exact name of registrant as specified in its
charter)
Delaware |
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56-2358443 |
(State or Other Jurisdiction
of Incorporation) |
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(I.R.S. Employer
Identification Number) |
1200 Avenue of the Americas, Suite 200
New York, NY 10036
(Address, including zip code, of registrant’s
principal executive offices)
2019 Omnibus Equity Incentive Plan, as Amended
(Full title of the plan)
Daniel Vitt
Chief Executive Officer
Immunic, Inc.
1200 Avenue of the Americas, Suite 200
New York, NY 10036
(332) 255-9818
(Name and address, and telephone number, including
area code, of agent for service)
Copies to:
Ilan Katz, Esq.
Dentons US LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 632-5556
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 |
☒ |
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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. ☐
EXPLANATORY NOTE
On April 28, 2023, the Board of directors of Immunic, Inc. (the “Registrant”)
approved, subject to stockholder approval, amendments to the 2019 Omnibus Equity Incentive Plan (the “2019 Plan”) to (i) increase
the number of common stock authorized for issuance by 4,440,000 shares to a total of 10,348,871 shares, and (ii) remove the “evergreen”
provision pursuant to which the aggregate number of shares authorized for issuance automatically increases each year (the “Amendments”).
On June 28, 2023, the Registrant’s stockholders approved the Amendment. The Registrant is filing this Registration Statement on
Form S-8 for the purpose of registering an additional 4,440,000 shares of its common stock, par value $0.0001 per share (the “Common
Stock”), issuable to eligible persons under the 2019 Plan, as amended, which shares are in addition to the shares registered on
the Registrant’s registration statement on Form S-8 filed on September 20, 2019 (File No. 333-233864) (the “Prior Registration
Statement”).
This Registration Statement relates to additional securities of the
same class as that to which the Prior Registration Statement relates, and is submitted in accordance with General Instruction E to Form
S-8 regarding Registration of Additional Securities. Pursuant to General Instruction E of Form S-8, the contents of the Prior Registration
Statement, to the extent relating to the registration of Common Stock issuable under the 2019 Plan, are incorporated herein by reference
and made part of this Registration Statement, except as amended hereby.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents by Reference. |
The following documents filed with the Commission are hereby incorporated
by reference in this registration statement:
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a. |
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with SEC on February 23, 2023; |
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b. |
Our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023, filed with the SEC on May 11, 2023, and June 30, 2023, filed with the SEC on August 3, 2023; |
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c. |
The Current Reports on Form 8-K filed with the SEC on January 20, 2023, February 9, 2023, April 5, 2023, April 27, 2023, May 4, 2023, June 30, 2023 and May 4, 2023; and |
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d. |
The description of the registrant’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 November 13, 2013, including any amendments or reports filed for the purpose of updating such description. |
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. |
We are incorporated under the laws of the state of Delaware. Section
145(a) of the Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation may indemnify any person
who was or is a party or is threatened to be made a party 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 the corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection
with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party 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 to procure a judgment in its favor by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or was serving at the request of the corporation as a director, officer, employee or agent
of another corporation, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine that, despite
the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses which the court shall deem proper.
Further subsections of DGCL Section 145 provide that:
(1) to the extent a present or former director or officer of a corporation
has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b)
of Section 145 or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses, including attorneys’
fees, actually and reasonably incurred by such person in connection therewith;
(2) the indemnification and advancement of expenses provided
for pursuant to Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise; and
(3) the corporation shall have the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s
status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145
of the DGCL.
Section 145 of the DGCL makes provision for the indemnification of
officers and directors in terms sufficiently broad to indemnify our officers and directors under certain circumstances from liabilities
(including reimbursement for expenses incurred) arising under the Securities Act. Our bylaws provide, in effect, that, to the fullest
extent and under the circumstances permitted by Section 145 of the DGCL, we will indemnify any person (and the estate of any person) who
was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of our company or is or
was serving at our request as a director or officer of another corporation or enterprise. We may, in our discretion, similarly indemnify
its employees and agents.
We have entered into indemnification agreements with our officers and
directors.
Our certificate of incorporation relieves our directors from monetary
damages to us or our stockholders for breach of such director’s fiduciary duty as a director to the fullest extent permitted by
the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its directors from personal liability to such corporation or
its stockholders for monetary damages for any breach of their fiduciary duty as directors except (i) for a breach of the duty of loyalty,
(ii) for acts or omissions not in good faith, or which involve intentional misconduct or a knowing violation of law, (iii) for willful
or negligent violations of certain provisions in the DGCL imposing certain requirements with respect to stock repurchases, redemptions
and dividends, or (iv) for any transactions from which the director derived an improper personal benefit.
We currently maintain an insurance policy which, within the limits
and subject to the terms and conditions thereof, covers certain expenses and liabilities that may be incurred by directors and officers
in connection with proceedings that may be brought against them as a result of an act or omission committed or suffered while acting as
a director or officer of our company.
Item 7. |
Exemption from Registration Claimed. |
Not applicable.
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 New York, State of New
York, on this 21st day of August 2023.
IMMUNIC, INC. |
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(Registrant) |
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By: |
/s/ Daniel Vitt |
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Name: Daniel Vitt |
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Title: Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Daniel Vitt and Glenn Whaley, 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 Immunic,
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 |
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Title |
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Date |
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/s/ Daniel
Vitt |
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Chief Executive Officer and Director |
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August 21, 2023 |
Daniel Vitt |
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(Principal Executive Officer) |
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/s/ Glenn
Whaley
Glenn Whaley |
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Chief Financial Officer
(Principal Financial and Accounting Officer) |
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August 21, 2023 |
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/s/ Duane
D. Nash |
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Executive Chairman of the Board |
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August 21, 2023 |
Duane D. Nash |
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/s/ Tamar
Howson |
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Director |
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August 21, 2023 |
Tamar Howson |
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/s/ Joerg
Neermann |
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Director |
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August 21, 2023 |
Joerg Neermann |
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/s/ Barclay
A. Phillips |
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Director |
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August 21, 2023 |
Barclay A. Phillips |
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/s/ Richard
Rudick |
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Director |
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August 21, 2023 |
Richard Rudick |
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/s/ Maria
Tornsen |
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Director |
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August 21, 2023 |
Maria Tornsen |
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TABLE OF CONTENTS
PAGE
IMMUNIC, INC.
2019 OMNIBUS EQUITY INCENTIVE PLAN, AS AMENDED
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 |
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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” |
2 |
2.15 |
“Disability” or “Disabled” |
2 |
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” |
3 |
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 |
“Performance Period” |
4 |
2.31 |
“Performance Share” and “Performance Unit” |
4 |
2.32 |
“Period of Restriction” |
4 |
2.33 |
“Person” |
4 |
2.34 |
“Restricted Shares” |
4 |
2.35 |
“Restricted Stock Units” |
4 |
2.36 |
“Rule 16b-3” |
4 |
2.37 |
“SEC” |
4 |
2.38 |
“Section 16 Non-Employee Director” |
5 |
2.39 |
“Section 16 Person” |
5 |
2.40 |
“Separation from Service” |
5 |
2.41 |
“Share” |
5 |
2.42 |
“Stock Appreciation Right” or “SAR” |
5 |
2.43 |
“Subsidiary Corporation” |
5 |
2.44 |
“Surviving Company” |
5 |
TABLE OF CONTENTS
PAGE
2.45 |
“Term” |
5 |
2.46 |
“Termination of Affiliation” |
5 |
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Article 3. |
Administration |
6 |
3.1 |
Committee |
6 |
3.2 |
Powers of Committee |
6 |
3.3 |
No Repricings |
8 |
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Article 4. |
Shares Subject to the Plan |
8 |
4.1 |
Number of Shares Available for Grants |
8 |
4.2 |
Adjustments in Authorized Shares and Awards; Corporate Transaction, Liquidation or Dissolution |
9 |
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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 |
11 |
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 |
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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 |
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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 |
16 |
8.4 |
Effect of Forfeiture |
16 |
8.5 |
Escrow; Legends |
16 |
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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 |
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Article 10. |
Deferred Stock and Restricted Stock Units |
17 |
10.1 |
Grant of Deferred Stock and Restricted Stock Units |
17 |
10.2 |
Vesting and Delivery |
17 |
10.3 |
Voting and Dividend Equivalent Rights Attributable to Deferred Stock and Restricted Stock Units |
17 |
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Article 11. |
Dividend Equivalents |
18 |
TABLE OF CONTENTS
PAGE
Article 12. |
Bonus Shares |
18 |
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Article 13. |
Other Stock-Based Awards |
18 |
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Article 14. |
Non-Employee Director Awards |
18 |
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Article 15. |
Amendment, Modification, and Termination |
18 |
15.1 |
Amendment, Modification, and Termination |
18 |
15.2 |
Awards Previously Granted |
19 |
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Article 16. |
Compliance with Section 409A of the Code |
19 |
16.1 |
Awards Subject to Section 409A of the Code |
19 |
16.2 |
Deferral and/or Distribution Elections |
19 |
16.3 |
Subsequent Elections |
19 |
16.4 |
Distributions Pursuant to Deferral Elections |
20 |
16.5 |
Six Month Delay |
20 |
16.6 |
Death or Disability |
20 |
16.7 |
No Acceleration of Distributions |
20 |
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Article 17. |
Withholding |
20 |
17.1 |
Required Withholding |
20 |
17.2 |
Notification under Code Section 83(b) |
21 |
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Article 18. |
Additional Provisions |
21 |
18.1 |
Successors |
21 |
18.2 |
Severability |
21 |
18.3 |
Requirements of Law |
22 |
18.4 |
Securities Law Compliance |
22 |
18.5 |
Forfeiture Events |
22 |
18.6 |
No Rights as a Stockholder |
23 |
18.7 |
Nature of Payments |
23 |
18.8 |
Non-Exclusivity of Plan |
23 |
18.9 |
Governing Law |
23 |
18.10 |
Unfunded Status of Awards; Creation of Trusts |
23 |
18.11 |
Affiliation |
23 |
18.12 |
Participation |
24 |
18.13 |
Military Service |
24 |
18.14 |
Construction |
24 |
18.15 |
Headings |
24 |
18.16 |
Obligations |
24 |
18.17 |
No Right to Continue as Director |
24 |
18.18 |
Stockholder Approval |
24 |
IMMUNIC, INC.
2019 OMNIBUS EQUITY INCENTIVE PLAN, AS AMENDED
Article 1.
Effective Date, Objectives and Duration
1.1
Effective Date of the Plan. The Board of Directors of
Immunic, Inc., a Delaware corporation (the “Company”), adopted this 2019 Omnibus Equity Incentive Plan (the “Plan”)
effective as of June 14, 2019 (the “Effective Date”).
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 (10th) 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 Units (which may be paid in cash), 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 commission of any act by a Grantee constituting a felony or crime of moral turpitude (or their equivalent in a non-United States jurisdiction);
(b)
an act of dishonesty, fraud, intentional misrepresentation, or harassment which, as determined in good faith by the Committee, would:
(a) materially adversely affect the business or the reputation of the Company or any of its Affiliates with their respective current or
prospective customers, suppliers, lenders and/or other third parties with whom such entity does or might do business; or (b) expose the
Company or any of its Affiliates to a risk of civil or criminal legal damages, liabilities or penalties;
(c)
any material misconduct in violation of the Company’s or an Affiliate’s written policies; or
(d)
willful and deliberate non-performance of the Grantee’s duties in connection with the business affairs of the Company or its Affiliates;
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, $0.0001
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 Section 409A of the Code. For purpose of Section 409A of the Code, 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 or consultants of 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
“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.
2.31
“Performance Share” and “Performance Unit” have
the respective meanings set forth in Article 9.
2.32
“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.
2.33
“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.
2.34
“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.
2.35
“Restricted Stock Units” means rights, granted
under Article 10, to receive Shares if the Grantee satisfies the conditions specified in the Award Agreement applicable to such rights.
2.36
“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.
2.37
“SEC” means the United States Securities
and Exchange Commission, or any successor thereto.
2.38
“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.
2.39
“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.
2.40
“Separation from Service” means, with respect
to any Award that constitutes deferred compensation within the meaning of Section 409A of the Code, 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 fifty percent (50%) or more of the average level of bona fide services provided over the prior thirty-six
(36) months shall not be a separation from service, and a decrease to a level that is twenty percent (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).
2.41
“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.
2.42
“Stock Appreciation Right” or “SAR” means
an Award granted under Article 7 of the Plan.
2.43
“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 fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations in such chain.
2.44
“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) or 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.
2.45
“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 ten (10) years
2.46
“Termination of Affiliation” occurs on the
first day on which an individual is for any reason no longer performing services 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 Section 409A of
the Code, 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 (2) 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 the 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 (a) for purposes of
Awards to Non-Employee Directors, “Committee” shall include only the full Board, and (b) 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, Other Stock-Based Award or Cash Incentive
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 (a) which does not adversely affect
the rights of the Grantee, (b) 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 (c) 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 (a) unless the Company has a class of stock that is registered under Section 12 of the Exchange Act or (b) to any adjustment allowed
under to Section 4.2.
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 shall be 10,348,871 Shares.
Up to a maximum of 4.9 million Shares may be delivered pursuant to
the exercise of Incentive Stock Options granted hereunder.
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. 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. Upon settlement of an SAR, the number of Shares underlying the portion
of the SAR that is exercised 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 issuance under the Plan.
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 (a) the number and type of Shares (or
other securities or property) with respect to which Awards may be granted, (b) the number and type of Shares (or other securities or property)
subject to outstanding Awards, (c) 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 (d) 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 (a) 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 (b) 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 foregoing provisions of this Section 4.2, if an Award constitutes deferred compensation
within the meaning of Section 409A of the Code, 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.
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. Awards made to Eligible Persons who are principally employed outside
the United States shall be subject to the terms of this Plan, except as otherwise modified in an appendix to this Plan or in the Award
Agreement. Subject to Sections 15.1 and 15.2, the Board may amend the appendix to reflect changes in foreign law or the Company’s
or Affiliates’ workforce or operations.
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 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 and 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 not apply unless and until the Company 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: (a) at least six (6) 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 (b) Shares granted or awarded under the Plan other than upon exercise or conversion of a derivative security must
be held for at least six (6) 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 or Cash Incentive
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 one hundred percent (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 or a Subsidiary Corporation;
(b)
shall have an Exercise Price of not less than one hundred percent (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 ten
percent (10%) of the total combined voting power of all classes of capital stock of the Company or any Subsidiary Corporation (a “10%
Owner”), have an Exercise Price not less than one hundred and ten percent (110%) of the Fair Market Value of a Share on its
Grant Date;
(c)
shall be for a period of not more than ten (10) years (five (5) years if the Grantee is a 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 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 one hundred thousand dollars ($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 ten (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, such shares 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, (a) 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 (b) 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 one hundred percent (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 restrictions based upon the achievement of specific performance goals,
time-based restrictions on vesting 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 (a) the amount paid by the Grantee
for such Restricted Shares, or (b) 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 (a) 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 (b) 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 Grantee 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 fifteenth (15th) day of the third (3rd) 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 shall 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 shall 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 five
hundred thousand dollars ($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 Section 409A of the Code
16.1
Awards Subject to Section 409A of the Code. The provisions
of this Article 16 shall apply to any Award or portion thereof that is or becomes deferred compensation subject to Section 409A of the
Code (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 Section 409A of the Code, 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 Section 409A of the Code 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 Section 409A of the Code, 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 first scheduled payment would otherwise be made.
16.4
Distributions Pursuant to Deferral Elections. Except
as otherwise permitted or required by Section 409A of the Code, no distribution in settlement of a 409A Award may commence earlier than:
(a)
Separation from Service;
(b)
the date the Participant becomes Disabled (as defined in Section 2.15(b);
(c)
the Participant’s death;
(d)
a specified time (or pursuant to a fixed schedule) that is either (a) specified by the Committee upon the grant of the Award and set forth
in the Award Agreement or (b) 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 Participants Election. If the Participant has made
no Election with respect to distributions upon death or Disability, all such distributions shall be paid in a lump sum within ninety (90)
days following the date of the Participant’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 Section 409A of the Code
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)
paying 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 (a) upon exercise of an Option or SARs, (b) upon the lapse
of restrictions on Restricted Shares, (c) upon the transfer of Shares, (d) to be satisfied by withholding Shares upon exercise of such
Option or SAR, (e) upon the lapse of restrictions on Restricted Shares, or (f) upon the transfer of Shares, pursuant to clause (c) 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 ten (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
ninety (90) days in the case of any 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
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 Participant’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.
18.6
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.
18.7
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 (a) the Company or any Affiliate and (b) the Grantee, except as such agreement
shall otherwise expressly provide.
18.8
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.
18.9
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, Participants 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.
18.10
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.
18.11
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.
18.12
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.
18.13
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.
18.14
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.
18.15
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.
18.16
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.
18.17
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.
18.18
Stockholder Approval. All Incentive Stock Options 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.
Annex A
Notwithstanding anything to the contrary in the
Plan, the following provisions shall apply to Grantees who are German residents employed with an Affiliate of the Company operating a
business in Germany:
| 1. | Article 17 of the Plan shall read: |
“Required Withholding
(a)
The Committee in its sole discretion may provide that when taxes, including social security contributions (Sozialversicherungsbeiträge)
are to be withheld in connection with the exercise of an Option 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 transfer of Shares 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 German taxes,
e.g. wage tax including social security contributions (Sozialversicherungsbeiträge), by one or a combination of the following methods
to the Company or the appropriate Affiliate that employed the Grantee:
(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 upon the transfer of Shares, through a broker-dealer to whom the Grantee has submitted an irrevocable instructions to
deliver promptly to the Company or the appropriate Affiliate that employed the Grantee, the amount to be withheld);
(ii)
requesting the Company to withhold from those Shares that would otherwise be received upon exercise of the Option 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
(iii)
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 upon the transfer of Shares,
to be satisfied by withholding Shares upon exercise of such Option or upon the transfer of Shares, pursuant to clause (ii) above shall
not exceed the minimum amount of taxes, including social security contributions, required to be withheld under federal, state and local
law. An election by a 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.”
| 2. | Participation in the Plan and
the grant of Awards does not result in the establishment of an employment relationship with the Company. Irrespective of in the Plan,
the employing Affiliate, namely Immunic AG or Immunic GmbH, shall remain the sole employing entity (“Employing Entity”)
of the Grantee. Participation in the Plan does constitute a component of remuneration under employment with the Employing Entity. Any
actions undertaken by the Employing Entity or involvement of the Employing Entity in the administration of the Plan are performed in the
name of the Company and/or the Committee and shall not be deemed to establish any claim against the Employing Entity for performance of
the Plan. Thus, the Employing Entity shall not be held liable for proper performance of the Plan. Irrespective of any information provided
or support delivered by the Employing Entity, the Employing Entity does not assume any obligation in the context of the Plan. |
| 3. | Participation in the Plan is
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. Grantee submits to the exclusive
jurisdiction and venue of the federal or state courts of the State of Delaware. |
| 4. | Participation in the Plan is
granted on an exclusively voluntary basis. Even if there is a repeated grant of rights and without express notification that the grant
is paid voluntarily, no legal claim for future grants exists, and further grants remain in the complete discretion of the Company. |
| 5. | To the extent that participation
in the Plan is subject to mandatory German laws which cannot be circumvented by no. 2 above, the definition of “Cause” (as
set forth in Section 2.6) or any Award Agreement shall be interpreted to mean a serious cause as determined in section 626 of the German
Civil Code (“Bürgerliches Gesetzbuch”) as regards a material breach of the Grantee’s obligations deriving
from employment with the Employing Entity as well as determined in the Protection Against Unfair Dismissal Act (“Kündigungsschutzgesetz”)
for a dismissal based on the behavior of an employee (“verhaltensbedingter Kündigungsgrund”). To the extent that
participation in the Plan is subject to mandatory German laws that cannot be circumvented by Section 2 of this Annex A, “Disability”
or “Disabled” shall be interpreted pursuant to the German Social Security Code IX (“Sozialgesetzbuch IX”).
Termination of Affiliation shall occur on the expiration of the last day the Grantee is employed with the Employing Entity, thus, start
of a release from duties to work for whatever reason or any other paid or unpaid absence from work while the employment relationship with
the Employing Entity is continuing shall not be deemed a Termination of Affiliation. |
| 6. | Participation in the Plan requires
the processing of personal data of the Grantee as defined in and as may be subject to the provisions of Regulation (EU) 2016/679 of
the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing
of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation) and of
the Federal Data Protection Act (Bundesdatenschutzgesetz) and other data protection legislation of the Federal Republic of Germany
(together “Applicable Data Protection Laws”). The Company will process Grantee’s personal data in strict compliance
with Applicable Data Protection Laws. The Grantee acknowledges that its consent may be required for such processing under Applicable Data
Protection Laws and agrees that its participation in the Plan and the grant of any Awards or any other rights hereunder is subject to
the Grantee providing and not withdrawing such consent. |
* * * * * *
2
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 |
August 21, 2023
Immunic, Inc.
1200 Avenue of the Americas, Suite 200
New York, NY 10036
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Immunic, 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 4,440,000 shares (the “Shares”)
of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), pursuant to the Company’s
2019 Omnibus Equity Incentive Plan, as amended (the “2019 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; |
|
5. |
corporate resolutions and proceedings of the Company relating to its proposed issuance of the Shares; and |
|
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 2019 Plan, will be validly issued, fully paid and non-assessable.
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 |
|
Immunic,
Inc.
August 21, 2023
Page 2
|
dentons.com |
We express no opinion as to the laws of any jurisdiction
other than the State of New York (excluding local laws), Delaware corporate law 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
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Immunic, Inc. of our report dated February 23, 2023, relating to the consolidated financial statements of Immunic, Inc.,
which appears in this annual report on Form 10-K for the year ended December 31, 2022.
/s/ Baker Tilly US, LLP |
|
Minneapolis, Minnesota |
|
August 21, 2023 |
Exhibit 107
CALCULATION OF FILING FEE TABLES
Form S-8
(Form Type)
Immunic, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security Type | |
Security Class Title | |
Fee Calculation Rule (3) | |
Amount Registered(1) | |
Proposed Maximum Offering Price per Unit | |
Maximum Aggregate Offering Price | |
Fee Rate | |
Amount of Registration Fee (4) |
Equity | |
Common Stock, par value $0.0001 per share | |
457(c) and 457(h) | |
| 4,440,000 | (2) | |
$ | 1.6405 | (3) | |
$ | 7,283,820 | | |
| 0.00011020 | | |
$ | 802.68 | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | |
Total Offering Amounts | |
| | | |
| | | |
$ | 7,283,820 | | |
| | | |
$ | 802.68 | |
Total Fee Offsets | |
| | | |
| | | |
| | | |
| | | |
| — | |
Net Fee Due | |
| | | |
| | | |
| | | |
| | | |
$ | 802.68 | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | |
(1) |
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 2019 Omnibus Equity Incentive Plan, as amended, 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. |
(2) |
Four million, four hundred and forty thousand (4,440,000) shares represents an increase of approximately 10% of the total number of shares of the Registrant’s common stock outstanding on a fully-diluted basis on March 31, 2023, which increase is provided for in the 2019 Omnibus Equity Incentive Plan, as amended. |
(3) |
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 17, 2023, as reported on the Nasdaq Stock Market, which date is within five business days prior to the filing of this Registration Statement. |
(4) |
The Registrant does not have any fee offsets. |
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