We are writing to advise
you that our Board of Directors and the holders of a majority of our outstanding common stock have approved:
• the Amended
and Restated Mimvi, Inc. 2010 Stock Incentive Plan;
• an amendment
to our Articles of Incorporation to change the name of the Company to Adaptive Media, Inc.; and
• the ratification
of the appointment of GBH CPAs, PC, as independent auditor of the Company’s financial statements for the fiscal year ended
December 31, 2013.
This action was approved
on September 16, 2013 by our Board of Directors. In addition, this action was approved by a majority of our stockholders by written
consent in lieu of a special meeting effective September 16, 2013 in accordance with the relevant sections of the Nevada Revised
Statutes.
WE ARE NOT ASKING YOU
FOR A PROXY, AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
No action is required
by you. The accompanying Information Statement is furnished only to inform stockholders of the action taken by written
consent described above before they take effect in accordance with Rule 14c-2, promulgated under the Securities Exchange Act of
1934, as amended. The Information Statement is first being mailed to you on or about October 7, 2013.
The Information Statement
is for information purposes only and explains the action taken by written consent. Please read the accompanying Information
Statement carefully.
INFORMATION STATEMENT REGARDING ACTION
TO BE TAKEN BY WRITTEN CONSENT OF MAJORITY STOCKHOLDERS IN LIEU OF A SPECIAL MEETING
WE ARE NOT ASKING YOU FOR A PROXY,
AND YOU ARE REQUESTED NOT TO SEND US
A PROXY.
This Information
Statement is being sent by first class mail to all record and beneficial owners of the common stock, $0.001 par value, of
Mimvi, Inc., a Nevada corporation, which we refer to herein as “Company,” “we,” “our,” or
“us.” The mailing date of this Information Statement is on or about October 7, 2013. The
Information Statement has been filed with the Securities and Exchange Commission (the “SEC”) and is being
furnished, pursuant to Section 14C of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to
notify our stockholders of an action we are taking pursuant to written consents of a majority of our stockholders in lieu of
a meeting of stockholders.
On September 13,
2013, the record date for determining the identity of stockholders who are entitled to receive this Information Statement, we
had 123,050,383 shares of common stock issued and outstanding. The common stock constitutes the sole outstanding
class of voting securities. Each share of common stock entitles the holder thereof to one vote on all matters
submitted to stockholders.
NO VOTE OR OTHER CONSENT OF OUR STOCKHOLDERS
IS SOLICITED IN CONNECTION WITH THIS INFORMATION STATEMENT. WE ARE NOT ASKING YOU FOR A PROXY, AND YOU ARE REQUESTED
NOT TO SEND US A PROXY.
On or around October
5, 2012, July 1, 2013, August 16, 2013, and September 16, 2013, respectively, our Board of Directors approved:
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•
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the Amended and Restated Mimvi, Inc. 2010 Stock Incentive Plan;
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|
•
|
the election
Qayed Shareef as the sole director of the Company;
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|
•
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an amendment to our Articles of Incorporation to change the name of the Company to Adaptive Media, Inc. and
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•
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the ratification
of the appointment of GBH CPAs, PC, as independent auditor of the Company’s financial statements for the fiscal year ended
December 31, 2013.
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On September 16, 2013, thirty-seven (37)
stockholders who beneficially own in the aggregate 71,171,751 shares, or approximately 57.84% of our issued and outstanding common
stock, consented in writing to the above action in accordance with the Nevada Revised Statutes.
The elimination of
the need for a meeting of stockholders to approve this action is made possible by Section 78.320 of the Nevada Revised Statutes,
which provides that any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting
if, before or after the action, a written consent thereto is signed by stockholders holding at least a majority of the voting power.
In order to eliminate the costs involved in holding a special meeting, our Board of Directors voted to utilize the written consent
of the holders of a majority in interest of our voting securities. In the ordinary course, future issuances of shares, up to the
authorized number of shares provided for in our Articles of Incorporation, will not require the approval of our stockholders under
Nevada law.
The entire cost of
furnishing this Information Statement will be borne by us. We will request brokerage houses, nominees, custodians, fiduciaries,
and other like parties to forward this Information Statement to the beneficial owners of our voting securities held of record by
them, and we will reimburse such persons for out-of-pocket expenses incurred in forwarding such material.
FORWARD-LOOKING INFORMATION
This Information Statement
and other reports that we file with the SEC contain certain forward-looking statements relating to future events performance. In
some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,”
“expect,” “intend,” “plan,” “anticipate,” “believe, ” “estimate,”
“predict,” “potential,” “continue,” or similar terms, variations of such terms or the negative
of such terms. These statements are only predictions and involve known and unknown risks, uncertainties and other factors,
including those risks discussed elsewhere herein. Although forward-looking statements, and any assumptions upon which
they are based, are made in good faith and reflect our current judgment, actual results could differ materially from those anticipated
in such statements. Except as required by applicable law, including the securities laws of the United States, we do
not intend to update any of the forward-looking statements to conform these statements to actual results.
OUTSTANDING VOTING SECURITIES
AND CONSENTING STOCKHOLDERS
As of the date of the consent by the majority
stockholders on September 16, 2013, we had issued and outstanding 123,050,383 shares of common stock and had not issued any preferred
stock. Each share of common stock is entitled to one vote on matters submitted for stockholder approval.
On September 16, 2013,
the holders of 71,171,751 shares (or approximately 57.84% of the shares of common stock then outstanding) executed and delivered
to the Board of Directors written consents approving the action. Because the action was approved by stockholders holding
a majority of our outstanding shares, no proxies are being solicited with this Information Statement.
The consenting stockholders are set forth
below:
Name
|
Number of Shares
|
Percent
|
Qayed
Shareef
|
18,628,900
|
15.14%
|
|
Kasian Franks
|
7,050,000
|
5.73%
|
|
Benjamin Padnos
|
6,909,297
|
5.62%
|
|
John B. Strong
|
3,925,000
|
3.19%
|
|
Richard A. Gates
|
3,833,334
|
3.12%
|
|
Stephen L. Elliott
|
3,083,334
|
2.51%
|
|
Kim Reed Perell
|
2,790,550
|
2.27%
|
|
Jeff Morgan
|
2,790,550
|
2.27%
|
|
Ventana Capital Partners
|
2,200,000
|
1.79%
|
|
|
|
|
|
Elliott Management
Company 401(K)
|
2,166,667
|
1.76%
|
|
Michael Poutre
|
2,000,000
|
1.63%
|
|
Elliott-Hall Company
Limited Partnership
|
2,000,000
|
1.63%
|
|
Bret Krogman
|
1,116,667
|
0.91%
|
|
NUWA Group, LLC
|
1,000,000
|
0.81%
|
|
Hoomaun Ataei
|
980,000
|
0.80%
|
|
Omar Akram
|
980,000
|
0.80%
|
|
Sulaiman Aziz
|
980,000
|
0.80%
|
|
Kevin Conner
|
914,544
|
0.74%
|
|
Ignite Capital Partners,
Inc.
|
912,410
|
0.74%
|
|
|
|
|
|
Roland L. Montagnino
|
885,865
|
0.72%
|
|
Uptick Capital, LLC
|
800,000
|
0.65%
|
|
Matthew Hamilton
|
620,000
|
0.50%
|
|
Steve Trager
|
514,500
|
0.42%
|
|
James W. Harris
|
500,100
|
0.41%
|
|
Harry A. Harris
|
500,000
|
0.41%
|
|
Gati Family Trust
Dated October 8, 2009
|
500,000
|
0.41%
|
|
Alisande Rozynko
|
458,333
|
0.37%
|
|
|
|
|
|
RP Capital, LLC
|
350,000
|
0.28%
|
|
Mark Monnares
|
350,000
|
0.28%
|
|
Mark Cohen
|
280,000
|
0.23%
|
|
Eddie Uri Gati
|
250,000
|
0.20%
|
|
Leonard Pall
|
250,000
|
0.20%
|
|
Jud A. Hogan
|
200,000
|
0.16%
|
|
Alfie Trust d/o/e
5/10/12
|
150,000
|
0.12%
|
|
|
|
|
|
Matthew Shandy
|
101,700
|
0.08%
|
|
Alan A. Lanis, Jr.
|
100,000
|
0.08%
|
|
Julia Ferro
|
100,000
|
0.08%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
71,171,751
|
57.84%
|
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SECURITIES OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table
sets forth certain information as of September 16, 2013 with respect to the beneficial ownership of our common stock:
● each
stockholder believed to be the beneficial owner of more than 5% of our common stock;
● by
each of our directors and executive officers; and
● all
of our directors and executive officers as a group.
Beneficial ownership
is determined in accordance with the rules of the SEC. A person is deemed to be the beneficial owner of securities that
can be acquired by such a person within 60 days from September 13, 2013, upon exercise of options, warrants, or convertible securities.
Each beneficial owner’s percentage ownership is determined by assuming that options, warrants, and convertible securities
that are held by such a person (but not those held by any other person) and are exercisable within 60 days from that date have
been exercised.
Unless otherwise indicated,
the persons and entities named in the table have sole voting and sole investment power with respect to the shares set forth opposite
the stockholder’s name.
The percentage of class beneficially owned
set forth below is based on 123,050,383 shares of common stock outstanding on September 13, 2013.
Name and Address
|
Number of Shares
of Common Stock
Beneficially Owned
|
Percent
of Class
(1)
|
Directors and Executive Officers:
|
|
|
|
|
|
Qayed Shareef, CEO and Director (2)
|
18,628,900
|
15.14%
|
Abdul Parmach, Principal Accounting Officer (2)
|
-
|
-
|
|
|
|
All directors and officers as a group (2 persons)
|
|
|
|
|
|
5% Stockholders:
|
|
|
|
|
|
Qayed Shareef (2)
|
18,628,900
|
15.14%
|
Kasian Franks (3)
|
7,050,000
|
5.73%
|
Benjamin Padnos (4)
|
6,909,297
|
5.62%
|
|
(1)
|
The percent of class is based on 123,050,383 shares of our common stock issued and outstanding as of September 13, 2013
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(2)
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The address for these persons is 23 Mauchly, Suite 106, Irvine, CA 92618
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|
(3)
|
The address for this person is 1331 7
th
St., Berkeley, CA
94710
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|
(4)
|
The address for this person is 221 34
th
Street, Manhattan Beach, CA 90266
|
DISSENTERS’ RIGHTS
There is no provision
in the Nevada Revised Statutes or in our Articles of Incorporation or By-laws, providing our shareholders with dissenters' rights
of appraisal to demand payment in cash for their shares of common stock in connection with the implementation of any of the actions
described in this Information Statement.
DELIVERY OF DOCUMENTS TO
SECURITY HOLDERS SHARING AN ADDRESS
Only one Information
Statement will be delivered to multiple stockholders sharing an address, unless contrary instructions are received from one or
more of such stockholders. Upon receipt of a written request at the address noted above, the Company will deliver a single copy
of this Information Statement and future stockholders communication documents to any stockholders sharing an address to which multiple
copies are now delivered.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly,
and current reports and other information with the SEC that contain additional information about the Company. You can inspect
and copy these materials at the public reference facilities of the SEC’s office located at 100 F Street, NE, Washington,
D.C. 20549 and on its web site at http://www.sec.gov. You may also obtain copies of the documents at prescribed rates by writing
to the Public Reference Section. Those persons in the United States may also call 1-202-551-8090 for further information.
Exhibit A
AMENDED AND RESTATED MIMVI, INC.
2010
Stock Incentive Plan
MIMVI, INC.
2010 STOCK INCENTIVE PLAN
(Amended and Restated Effective October
5, 2012)
1.
Purposes of the Plan
. The purposes of the Mimvi, Inc. 2010 Stock Incentive Plan are to attract and retain the best available
personnel for positions of substantial responsibility, to provide additional incentive to persons who are selected to be participants
in the Plan, and to promote the success of the Company’s business. This Plan permits the grant of Non-qualified Stock Options,
Incentive Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, and Other Stock-Based Awards, each
of which shall be subject to such conditions based upon continued employment with or service to the Company or its Subsidiaries,
passage of time or satisfaction of performance criteria as shall be specified pursuant to the Plan.
2.
Definitions
. In addition to the terms defined elsewhere in this Plan, as used herein, the following terms shall have
the following meanings:
(a) “
Administrator
”
means the Board or any of its Committees as shall be administering the Plan, in accordance with
Section 4
of the Plan.
(b) “
Award
” means
a Stock Option, Stock Appreciation Right, Restricted Stock or Restricted Stock Unit, or Other Stock-Based Award granted to a Participant
pursuant to the Plan, as such terms are defined in
Section 7(a)
herein.
(c) “
Board
” means
the Board of Directors of the Company.
(d) “
Code
” means
the Internal Revenue Code of 1986, and the regulations promulgated thereunder, as such is amended from time to time, and any reference
to a section of the Code shall include any successor provision of the Code.
(e) “
Committee
”
means a committee appointed by the Board from among its members to administer the Plan in accordance with
Section 4
.
(f) “
Common Stock
”
means the common stock, par value $0.001 per share, of the Company.
(g) “
Company
” means
Mimvi, Inc., a Nevada corporation.
(h) “
Consultant
”
means any person, including an advisor, engaged by the Company or a Subsidiary to render services and who is compensated for such
services; provided such services are not in connection with the offer or sale of securities in a capital-raising transaction and
do not directly or indirectly promote or maintain a market for the Company’s securities; and provided further that the term
“Consultant” shall not include Directors who are paid only a director’s fee by the Company or who are not otherwise
compensated by the Company for their services as Directors.
(i) “
Director
” means
a member of the Board.
(j) “
Employee
” means
any person, including Officers and Directors, employed by the Company or any Subsidiary of the Company. Neither service as a Director
nor payment of a director’s fee by the Company shall be sufficient to constitute “employment” by the Company.
(k) “
Exchange Act
”
means the Securities Exchange Act of 1934, as amended.
(l) “
Officer
” means
a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder.
(m) “
Participant
”
means any Employee, Director or Consultant selected by the Administrator to receive Awards.
(n) “
Plan
” means
this 2010 Stock Incentive Plan, as amended from time to time.
(o) “
Rule 16b-3
”
means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect
to the Plan.
(p) “
Section 162(m)
”
means Section 162(m) of the Code and the regulations thereunder, as amended.
(q) “
Share
” means
a share of Common Stock, as adjusted in accordance with
Section 10
of the Plan.
(r) “
Subsidiary
”
means any corporation or entity in which the Company owns or controls, directly or indirectly, fifty percent (50%) or more of the
voting power or economic interests of such corporation or entity.
3.
Shares Subject to the Plan
.
(a)
Aggregate Limits
. Subject to the
provisions of
Section 10
of the Plan, the maximum aggregate number of Shares which may be issued pursuant to Awards granted
under the Plan is Fifteen Million (15,000,000) Shares (the “
Fungible Pool Limit
”). The Shares subject
to the Plan may be either Shares reacquired by the Company, including Shares purchased in the open market, or authorized but unissued
Shares. Any Shares subject to an Award which for any reason expires or terminates unexercised or is not earned in full shall be
added back to the Fungible Pool Limit and may again be made subject to an Award under the Plan. The following Shares shall not
be added back to the Fungible Pool Limit and shall not again be made available for issuance as Awards under the Plan: (i) Shares
not issued or delivered as a result of the net settlement of an outstanding Stock Appreciation Right, (ii) Shares used to pay the
exercise price or withholding taxes related to an outstanding Award, or (iii) Shares repurchased on the open market with the exercise
price proceeds received by the Company upon the exercise of an Award.
(b)
Treatment of Awards
. Each Share
issued or to be issued in connection with any Award shall be counted against the Fungible Pool Limit as one (1) Share. For these
purposes, the number of Shares taken into account with respect to a SAR shall be the number of Shares underlying the SAR at grant,
and not the final number of Shares delivered upon exercise of the SAR. Any Shares previously the subject of an Award that again
become available for grant pursuant to
Section 3(a)
shall be added back to the Fungible Pool Limit in the same proportion,
and using the same multiplier, pursuant to which such Awards reduced the Shares in the Fungible Pool Limit. The Administrator shall
determine the appropriate methodology for calculating the number of Shares issued pursuant to the Plan.
4.
Administration of the Plan
.
(a)
Procedure
.
(i)
Multiple
Administrative Bodies
. If permitted by Rule 16b-3, the Plan may be administered by different bodies with respect to Directors,
Officers who are not Directors, and Employees who are neither Directors nor Officers.
(ii)
Administration
with Respect to Directors and Officers Subject to Section 16(b)
. With respect to Awards granted to Directors or to Employees
who are also Officers or Directors subject to Section 16(b) of the Exchange Act, the Plan shall be administered by (A) the Board,
if the Board may administer the Plan in compliance with the requirements for grants under the Plan to be exempt acquisitions under
Rule 16b-3, or (B) a committee designated by the Board to administer the Plan, which committee shall consist of “Non-Employee
Directors” within the meaning of Rule 16b-3. Once appointed, such Committee shall continue to serve in its designated capacity
until otherwise directed by the Board. From time to time the Board may increase the size of the Committee and appoint additional
members, remove members (with or without cause) and substitute new members, fill vacancies (however caused), and remove all members
of the Committee and thereafter directly administer the Plan, all to the extent permitted by the requirements for grants under
the Plan to be exempt acquisitions under Rule 16b-3.
(iii)
Administration with Respect to
Covered Employees Subject to Section 162(m) of the Code
. With respect to Awards granted to Employees who are also “covered
employees” within the meaning of Section 162(m) of the Code and the regulations thereunder, as amended, the Plan shall be
administered by a committee designated by the Board to administer the Plan, which committee shall be constituted to satisfy the
requirements applicable to Awards intended to qualify as “performance-based compensation” under Section 162(m). Once
appointed, such Committee shall continue to serve in its designated capacity until otherwise directed by the Board. From time to
time the Board may increase the size of the Committee and appoint additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove all members of the Committee and thereafter directly administer
the Plan, all to the extent permitted by the rules applicable to Awards intended to qualify as “performance-based compensation”
under Section 162(m).
(iv)
Administration with Respect to Other
Persons
. With respect to Awards granted to Employees or Consultants who are neither Directors nor Officers of the Company,
the Plan shall be administered by (A) the Board or (B) a committee designated by the Board, which committee may be constituted
to satisfy the legal requirements relating to the administration of stock option plans under state corporate and securities laws
and the Code. Once appointed, such Committee shall serve in its designated capacity until otherwise directed by the Board. The
Board may increase the size of the Committee and appoint additional members, remove members (with or without cause) and substitute
new members, fill vacancies (however caused), and remove all members of the Committee and thereafter directly administer the Plan,
all to the extent permitted by applicable laws.
(b)
Powers
of the Administrator
. Subject to the express provisions and limitations set forth in this Plan, and in the case of a Committee,
subject to the specific duties delegated by the Board to such Committee, the Administrator shall be authorized and empowered to
do all things necessary or desirable, in its sole discretion, in connection with the administration of this Plan, including, without
limitation, the following:
(i) to prescribe, amend and rescind rules
and regulations relating to this Plan and to define terms not otherwise defined herein;
(ii) to determine which persons are eligible
to be Participants, to which of such persons, if any, Awards shall be granted hereunder and the timing of any such Awards, and
to grant Awards;
(iii) to grant Awards to Participants and
determine the terms and conditions thereof, including the number of Shares subject to Awards and the exercise or purchase price
of such Shares and the circumstances under which Awards become exercisable or vested or are forfeited or expire, which terms may
but need not be conditioned upon the passage of time, continued employment, the satisfaction of performance criteria, the occurrence
of certain events, or other factors;
(iv) to establish or verify the extent of
satisfaction of any performance goals or other conditions applicable to the grant, issuance, exercisability, vesting and/or ability
to retain any Award;
(v) to prescribe and amend the terms of
the agreements or other documents evidencing Awards made under this Plan (which need not be identical);
(vi) to determine whether, and the extent
to which, adjustments are required pursuant to
Section 10
;
(vii) to interpret and construe this Plan,
any rules and regulations under this Plan and the terms and conditions of any Award granted hereunder, and to make exceptions to
any such provisions in good faith and for the benefit of the Corporation; and
(viii) to make all other determinations
deemed necessary or advisable for the administration of this Plan.
(c)
Delegation
and Administration
. The Administrator may delegate to one or more separate committees (any such committee a “
Subcommittee
”)
composed of one or more directors of the Company (who may but need not be members of any Committee comprising the Administrator)
the ability to grant Awards and take the other actions described in
Section 4(b)
with respect to Participants who are not
Officers, and such actions shall be treated for all purposes as if taken by the Administrator. The Administrator may delegate to
a Subcommittee of one or more officers of the Company the ability to grant Awards and take the other actions described in
Section
4(b)
with respect to Participants (other than any such officers themselves) who are not directors or Officers,
provided
,
however
, that the resolution so authorizing such officer(s) shall specify the total number of rights or options such Subcommittee
may so award, and such actions shall be treated for all purposes as if taken by the Administrator. Any action by any such Subcommittee
within the scope of such delegation shall be deemed for all purposes to have been taken by the Administrator, and references in
this Plan to the Administrator shall include any such Subcommittee. The Administrator may delegate the administration of the Plan
to an officer or officers of the Company, and such administrator(s) may have the authority to execute and distribute agreements
or other documents evidencing or relating to Awards granted by the Administrator under this Plan, to maintain records relating
to the grant, vesting, exercise, forfeiture or expiration of Awards, to process or oversee the issuance of Shares upon the exercise,
vesting and/or settlement of an Award, to interpret the terms of Awards and to take such other actions as the Administrator may
specify. Any action by any such administrator within the scope of its delegation shall be deemed for all purposes to have been
taken by the Administrator and references in this Plan to the Administrator shall include any such administrator, provided that
the actions and interpretations of any such administrator shall be subject to review and approval, disapproval or modification
by the Administrator.
(d)
Effect of Change in Status
. The
Committee shall have the discretion to determine the effect upon an Award and upon an individual’s status as an employee
under the Plan (including whether a Participant shall be deemed to have experienced a termination of employment or other change
in status) and upon the vesting, expiration or forfeiture of an Award in the case of (i) any individual who is employed by an entity
that ceases to be a Subsidiary of the Corporation, (ii) any leave of absence approved by the Corporation or a Subsidiary, (iii)
any transfer between locations of employment with the Corporation or a Subsidiary or between the Corporation and any Subsidiary
or between any Subsidiaries, (iv) any change in the Participant’s status from an employee to a consultant or member of the
Board, or vice versa, and (v) any employee who becomes employed by any partnership, joint venture, corporation or other entity
not meeting the requirements of a Subsidiary.
(e)
Determinations of the Administrator
.
All decisions, determinations and interpretations by the Administrator regarding this Plan shall be final and binding on all Participants
or other persons claiming rights under the Plan or any Award, unless any such decision, determination or interpretation is otherwise
determined by the Board in which case the Board's determination shall be final and binding. The Administrator shall consider such
factors as it deems relevant to making such decisions, determinations and interpretations including, without limitation, the recommendations
or advice of any director, officer or employee of the Company and such attorneys, consultants and accountants as it may select.
A Participant or other holder of an Award may contest a decision or action by the Administrator with respect to such person or
Award only on the grounds that such decision or action was arbitrary or capricious or was unlawful, and any review of such decision
or action shall be limited to determining whether the Administrator’s decision or action was arbitrary or capricious or was
unlawful.
5.
Eligibility
. Awards may be granted to any person who is a Participant under this Plan; provided that ISOs may be granted
only to employees eligible under applicable Code provisions. If otherwise eligible, a Participant who has been granted an Award
may be granted additional Awards.
6.
Term of the Plan
. The Plan was approved by the Board and became effective on November 2, 2010, and was approved by the
Company's stockholders on November 2, 2010. The Plan shall remain available for the grant of Awards until November 2, 2020 or such
earlier date as the Board may determine. The expiration of the Administrator’s authority to grant Awards under the Plan will
not affect the operation of the terms of the Plan or the Company’s and Participants’ rights and obligations with respect
to Awards granted on or prior to the expiration date of the Plan.
7.
Plan Awards
.
(a)
Award Types
. The Administrator,
on behalf of the Company, is authorized under this Plan to grant, award and enter into the following arrangements or benefits under
the Plan provided that their terms and conditions are not inconsistent with the provisions of the Plan: Stock Options, Stock Appreciation
Rights, Restricted Stock, Restricted Stock Units, and Other Stock-Based Awards. The Administrator, in its discretion, may determine
that any Award granted hereunder shall be a performance Award the grant, issuance, retention, vesting and/or settlement of which
is subject to satisfaction of one or more of the Qualifying Performance Criteria specified in
Section 8(e)
.
(i)
Stock Options
. A “
Stock
Option
” is a right to purchase a number of Shares at such exercise price, at such times, and on such other terms
and conditions as are specified in or determined pursuant to the document(s) evidencing the Award (the “
Option Agreement
”).
The Committee may grant Stock Options intended to be eligible to qualify as incentive stock options (“
ISOs
”)
pursuant to Section 422 of the Code and Stock Options that are not intended to qualify as ISOs (“
Non-qualified Stock
Options
”), as it, in its sole discretion, shall determine.
(ii)
Stock Appreciation Rights
. A
“
Stock Appreciation Right
” or “
SAR
” is a right to receive, in cash or stock
(as determined by the Administrator), value with respect to a specific number of Shares equal to or otherwise based on the excess
of (i) the market value of a Share at the time of exercise over (ii) the exercise price of the right, subject to such terms and
conditions as are expressed in the document(s) evidencing the Award (the “
SAR Agreement
”).
(iii)
Restricted Stock
. A “
Restricted
Stock
” Award is an award of Shares, the grant, issuance, retention and/or vesting of which is subject to such conditions
as are expressed in the document(s) evidencing the Award (the “
Restricted Stock Agreement
”).
(iv)
Restricted Stock Unit
. A “
Restricted
Stock Unit
” Award is an award of a right to receive, in cash or stock (as determined by the Administrator) the market
value of one Share, the grant, issuance, retention and/or vesting of which is subject to such conditions as are expressed in the
document(s) evidencing the Award (the “
Restricted Stock Unit Agreement
”).
(v)
Other Stock-Based Awards
. An
“
Other Stock-Based Award
” is an award other than those described in subsections (i) – (iv) above,
that is denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Common Stock
or factors that may influence the value of Common Stock, including, without limitation, convertible or exchangeable debt securities,
other rights convertible or exchangeable into Common Stock, purchase rights for Common Stock, Awards with value and payment contingent
upon performance of the Company or business units thereof or any other factors designated by the Administrator, and Awards valued
by reference to the book value of Common Stock or the value of securities of or the performance of specified Subsidiaries or other
business units. The Administrator shall determine the terms and conditions of such Awards, which shall be expressed in the document(s)
evidencing the Award (the “
Other Stock-Based Award Agreement
”).
(b)
Grants of Awards
. An Award may
consist of one of the foregoing arrangements or benefits or two or more of them in tandem or in the alternative.
8.
Terms of Awards
.
(a)
Grant, Terms and Conditions of Stock
Options and SARs
. The Administrator may grant Stock Options or SARs at any time and from time to time prior to the expiration
of the Plan to eligible Participants selected by the Administrator. No Participant shall have any rights as a stockholder with
respect to any Shares subject to Stock Options or SARs hereunder until said Shares have been issued. Each Stock Option or SAR shall
be evidenced only by such agreements, notices and/or terms or conditions documented in such form (including by electronic communications)
as may be approved by the Administrator. Each Stock Option grant will expressly identify the Stock Option as an ISO or as a Non-qualified
Stock Option. In the absence of a designation, a Stock Option shall be treated as a Non-qualified Stock Option. Stock Options or
SARs granted pursuant to the Plan need not be identical but each must contain or be subject to the following terms and conditions:
(i)
Price
.
The purchase price (also referred to as the exercise price) under each Stock Option or SAR granted hereunder shall be established
by the Administrator. The purchase price per Share shall not be less than 100% of the market value of a Share on the date of grant.
For purposes of the Plan, “
market value
” shall mean the fair market value of the Company’s common
stock determined in good faith by the Administrator in a manner consistent with the requirements of Section 409A of the Code. The
exercise price of a Stock Option shall be paid in cash or in such other form if and to the extent permitted by the Administrator,
including without limitation by delivery of already owned Shares, withholding (either actually or by attestation) of Shares otherwise
issuable under such Stock Option and/or by payment under a broker-assisted sale and remittance program acceptable to the Administrator.
(ii)
Duration, Exercise and Termination
of Stock Options and SARs
. Each Stock Option or SAR shall be exercisable at such time and in such installments during the period
prior to the expiration of the Stock Option or SAR as determined by the Administrator. The Administrator shall have the right to
make the timing of the ability to exercise any Stock Option or SAR subject to continued employment, the passage of time and/or
such performance requirements as deemed appropriate by the Administrator. At any time after the grant of a Stock Option, the Administrator
may reduce or eliminate any restrictions on the Participant’s right to exercise all or part of the Stock Option. Each Stock
Option or SAR must expire within a period of not more than ten (10) years from the grant date. The Option Agreement or SAR Agreement
may provide for expiration prior to the end of the stated term of the Award in the event of the termination of employment or service
of the Participant to whom it was granted.
(iii)
Conditions and Restrictions Upon
Securities Subject to Stock Options or SARs
. Subject to the express provisions of the Plan, the Administrator may provide that
the Shares issued upon exercise of a Stock Option or SAR shall be subject to such further conditions or agreements as the Administrator
in its discretion may specify prior to the exercise of such Stock Option or SAR, including, without limitation, conditions on vesting
or transferability, forfeiture or repurchase provisions. The obligation to make payments with respect to SARs may be satisfied
through cash payments or the delivery of Shares, or a combination thereof as the Administrator shall determine. The Administrator
may establish rules for the deferred delivery of Common Stock upon exercise of a Stock Option or SAR with the deferral evidenced
by use of Restricted Stock Units equal in number to the number of Shares whose delivery is so deferred.
(iv)
Other Terms and Conditions
.
Stock Options and SARs may also contain such other provisions, which shall not be inconsistent with any of the foregoing terms,
as the Administrator shall deem appropriate.
(v)
ISOs
. Stock Options intending
to qualify as ISOs may only be granted to employees of the Company or its related entities as who are eligible under applicable
Code provisions, as determined by the Administrator. If then required by the Code for ISO treatment, an ISO granted to an Employee
who, at the time the ISO is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or of its parent or subsidiary corporation, must have an exercise price that is not less than 110% of the
market value of the Shares subject to the ISO, determined as of the date of grant and a term not exceeding five (5) years. To the
extent that the Option Agreement specifies that a Stock Option is intended to be treated as an ISO, the Stock Option is intended
to qualify to the greatest extent possible as an “incentive stock option” within the meaning of Section 422 of the
Code, and shall be so construed;
provided
,
however
, that any such designation shall not be interpreted as a representation,
guarantee or other undertaking on the part of the Company that the Stock Option is or will be determined to qualify as an ISO.
If and to the extent that any Shares are issued under a portion of any Stock Option that exceeds the $100,000 limitation of Section
422 of the Code, such Shares shall not be treated as issued under an ISO notwithstanding any designation otherwise. Certain decisions,
amendments, interpretations and actions by the Administrator and certain actions by a Participant may cause a Stock Option to cease
to qualify for the tax treatment applicable to ISOs pursuant to the Code and by accepting a Stock Option the Participant agrees
in advance to such disqualifying action.
(b)
Grant, Terms and Conditions of Restricted
Stock and Restricted Stock Units
. The Administrator may grant Restricted Stock or Restricted Stock Units at any time and from
time to time prior to the expiration of the Plan to eligible Participants selected by the Administrator. A Participant shall have
rights as a stockholder with respect to any Shares subject to a Restricted Stock Award hereunder only to the extent specified in
this Plan or the Restricted Stock Agreement evidencing such Award. Awards of Restricted Stock or Restricted Stock Units shall be
evidenced only by such agreements, notices and/or terms or conditions documented in such form (including by electronic communications)
as may be approved by the Administrator. Awards of Restricted Stock or Restricted Stock Units granted pursuant to the Plan need
not be identical but each must contain or be subject to the following terms and conditions:
(i)
Terms and Conditions
. Each Restricted
Stock Agreement and each Restricted Stock Unit Agreement shall contain provisions regarding (a) the number of Shares subject to
such Award or a formula for determining such, (b) the purchase price of the Shares, if any, and the means of payment for the Shares,
(c) the performance criteria, if any, and level of achievement versus these criteria that shall determine the number of Shares
granted, issued, retainable and/or vested, (d) such terms and conditions on the grant, issuance, vesting and/or forfeiture of the
Shares as may be determined from time to time by the Administrator, (e) restrictions on the transferability of the Shares and (f)
such further terms and conditions as may be determined from time to time by the Administrator, in each case not inconsistent with
this Plan.
(ii)
Sale Price
. Subject to the requirements
of applicable law, the Administrator shall determine the price, if any, at which Shares of Restricted Stock or Restricted Stock
Units shall be sold or awarded to a Participant, which may vary from time to time and among Participants and which may be below
the market value of such Shares at the date of grant or issuance.
(iii)
Share Vesting
. The grant, issuance,
retention and/or vesting of Shares under Restricted Stock or Restricted Stock Unit Awards shall be at such time and in such installments
as determined by the Administrator or under criteria established by the Administrator. The Administrator shall have the right to
make the timing of the grant and/or the issuance, ability to retain and/or vesting of Shares under Restricted Stock or Restricted
Stock Unit Awards subject to continued employment, passage of time and/or such performance criteria and level of achievement versus
these criteria as deemed appropriate by the Administrator, which criteria may be based on financial performance and/or personal
performance evaluations. Notwithstanding anything to the contrary herein, the performance criteria for any Restricted Stock or
Restricted Stock Unit that is intended to satisfy the requirements for “performance-based compensation” under Section
162(m) of the Code shall be a measure based on one or more Qualifying Performance Criteria selected by the Administrator and specified
at the time the Restricted Stock or Restricted Stock Unit Award is granted.
(iv)
Termination of Employment
. The
Restricted Stock or Restricted Stock Unit Agreement may provide for the forfeiture or cancellation of the Restricted Stock or Restricted
Stock Unit Award, in whole or in part, in the event of the termination of employment or service of the Participant to whom it was
granted.
(v)
Restricted Stock Units
. Except
to the extent this Plan or the Administrator specifies otherwise, Restricted Stock Units represent an unfunded and unsecured obligation
of the Company and do not confer any of the rights of a stockholder until Shares are issued thereunder. Settlement of Restricted
Stock Units upon expiration of the deferral or vesting period shall be made in Shares or otherwise as determined by the Administrator.
Dividends or dividend equivalent rights shall be payable in cash or in additional shares with respect to Restricted Stock Units
only to the extent specifically provided for by the Administrator. Until a Restricted Stock Unit is settled, the number of Shares
represented by a Restricted Stock Unit shall be subject to adjustment pursuant to
Section 10
. Any Restricted Stock Units
that are settled after the Participant’s death shall be distributed to the Participant’s designated beneficiary(ies)
or, if none was designated, the Participant’s estate.
(c)
Suspension or Termination of Awards
.
If at any time (including with respect to Stock Options or SARs after a notice of exercise has been delivered) the Administrator
reasonably believes that a Participant has committed an act of misconduct as described in this Section, the Administrator may suspend
the Participant’s right to exercise any Stock Option or SAR or suspend the vesting of Shares under the Participant’s
Restricted Stock or Restricted Stock Unit Awards, as the case may be, pending a determination of whether an act of misconduct has
been committed. If the Administrator determines a Participant has committed an act of embezzlement, fraud, dishonesty, nonpayment
of any obligation owed to the Company, breach of fiduciary duty or deliberate disregard of Company rules resulting in loss, damage
or injury to the Company, or if a Participant makes an unauthorized disclosure of any Company trade secret or confidential information,
engages in any conduct constituting unfair competition, induces any customer to breach a contract with the Company or induces any
principal for whom the Company acts as agent to terminate such agency relationship, the Administrator may prohibit or restrict
the Participant and his or her successor(s) in interest from exercising any Stock Option or SAR and may cause the Participant’s
Restricted Stock or Restricted Stock Unit Agreement to be restricted or forfeited and cancelled. Any determination by the Administrator
with respect to the foregoing shall be final, conclusive and binding on all interested parties, unless any such determination is
otherwise determined by the Board in which case the Board's determination shall be final and binding.
(d)
Transferability
. Unless the agreement
or other document evidencing an Award (or an amendment thereto authorized by the Administrator) expressly states that the Award
is otherwise transferable as provided hereunder, no Award granted under this Plan, nor any interest in such Award, may be sold,
assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner, other than by will or the laws of descent
and distribution. The Administrator may grant an Award that is, or amend an outstanding Award to provide that the Award is, transferable
or assignable to the extent that, following a transfer or assignment, exercise of the Award or resale of underlying securities
by the transferee could be registered under the Securities Act of 1933, as amended (the "
Securities Act
") on Form
S-8 (or any successor form used for employee benefit plan registrations) under the Securities Act, as such form may be amended
from time to time,
provided
that following any such transfer or assignment the Award will remain subject to substantially
the same terms applicable to the Award while held by the Participant to whom it was granted, as modified as the Administrator shall
determine appropriate, and as a condition to such transfer the transferee shall execute an agreement agreeing to be bound by such
terms;
provided
,
further
, that an ISO may be transferred or assigned only to the extent consistent with Section 422
of the Code. Any purported assignment, transfer or encumbrance that does not qualify under this
Section 8(d)
shall be void
and unenforceable against the Company.
(e)
Qualifying Performance Criteria
.
For purposes of this Plan, the term “
Qualifying Performance Criteria
” shall mean any one or more of the
following performance criteria, either individually, alternatively or in any combination, applied to either the Company as a whole
or to a business unit or Subsidiary, either individually, alternatively or in any combination, and measured either annually or
cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous years’ results
or to a designated comparison group, in each case as specified by the Administrator in the Award: (a) cash flow, (b) earnings per
share, (c) earnings before interest, taxes and amortization, (d) return on equity, (e) total stockholder return, (f) share price
performance, (g) return on capital, (h) return on assets or net assets, (i) revenue, (j) income or net income, (k) operating income
or net operating income, (l) operating profit or net operating profit, (m) operating margin or profit margin, (n) return on operating
revenue, (o) return on invested capital, (p) market segment share, (q) product release schedules, (r) new product innovation, (s)
product cost reduction through advanced technology, (t) brand recognition/acceptance, (u) product ship targets, (v) customer satisfaction,
(w) strategic initiatives, or (x) acquisitions. The Administrator may appropriately adjust any evaluation of performance under
a Qualifying Performance Criteria to exclude any of the following events that occurs during a performance period: (i) asset write-downs,
(ii) litigation or claim judgments or settlements, (iii) the effect of changes in or provisions under tax law, accounting principles
or other such laws or provisions affecting reported results, (iv) accruals for reorganization and restructuring programs, and (v)
any extraordinary non-recurring items as described in Accounting Principles Board Opinion No. 30 and/or in management’s discussion
and analysis of financial condition and results of operations appearing in the Company’s annual report to stockholders for
the applicable year. Notwithstanding satisfaction of any completion of any Qualifying Performance Criteria, to the extent specified
at the time of grant of an Award, the number of Shares, Stock Options, SARs, Restricted Stock Units or other benefits granted,
issued, retainable and/or vested under an Award on account of satisfaction of such Qualifying Performance Criteria may be reduced
by the Administrator on the basis of such further considerations as the Administrator in its sole discretion shall determine.
(f)
Dividends
. Unless otherwise provided
by the Administrator, no adjustment shall be made in Shares issuable under Awards on account of cash dividends that may be paid
or other rights that may be issued to the holders of Shares prior to their issuance under any Award. The Administrator shall specify
whether dividends or dividend equivalent amounts shall be paid to any Participant with respect to the Shares subject to any Award
that have not vested or been issued or that are subject to any restrictions or conditions on the record date for dividends.
(g)
Documents Evidencing Awards
. The
Administrator shall, subject to applicable law, determine the date an Award is deemed to be granted. The Administrator or, except
to the extent prohibited under applicable law, its delegate(s) may establish the terms of agreements or other documents evidencing
Awards under this Plan and may, but need not, require as a condition to any such agreement’s or document’s effectiveness
that such agreement or document be executed by the Participant, including by electronic signature or other electronic indication
of acceptance, and that such Participant agree to such further terms and conditions as specified in such agreement or document.
The grant of an Award under this Plan shall not confer any rights upon the Participant holding such Award other than such terms,
and subject to such conditions, as are specified in this Plan as being applicable to such type of Award (or to all Awards) or as
are expressly set forth in the agreement or other document evidencing such Award.
(h)
Additional Restrictions on Awards
.
Either at the time an Award is granted or by subsequent action, the Administrator may, but need not, impose such restrictions,
conditions or limitations as it determines appropriate as to the timing and manner of any resales by a Participant or other subsequent
transfers by a Participant of any Shares issued under an Award, including without limitation (a) restrictions under an insider
trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner of sales by the Participant or Participants,
and (c) restrictions as to the use of a specified brokerage firm for receipt, resales or other transfers of such Shares.
(i)
Subsidiary Awards
. In the case
of a grant of an Award to any Participant employed by a Subsidiary, such grant may, if the Administrator so directs, be implemented
by the Company issuing any subject Shares to the Subsidiary, for such lawful consideration as the Administrator may determine,
upon the condition or understanding that the Subsidiary will transfer the Shares to the Participant in accordance with the terms
of the Award specified by the Administrator pursuant to the provisions of the Plan. Notwithstanding any other provision hereof,
such Award may be issued by and in the name of the Subsidiary and shall be deemed granted on such date as the Administrator shall
determine.
9.
Withholding Taxes
. To the extent required by applicable federal, state, local or foreign law, the Administrator may
and/or a Participant shall make arrangements satisfactory to the Company for the satisfaction of any withholding tax obligations
that arise with respect to any Stock Option, SAR, Restricted Stock or Restricted Stock Unit Award, or any sale of Shares. The Company
shall not be required to issue Shares or to recognize the disposition of such Shares until such obligations are satisfied. To the
extent permitted or required by the Administrator, these obligations may or shall be satisfied by having the Company withhold a
portion of the Shares of stock that otherwise would be issued to a Participant under such Award or by tendering Shares previously
acquired by the Participant.
10.
Adjustments of and Changes in the Common Stock
.
(a) The existence of outstanding Awards shall
not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations, exchanges, or other changes in the Company’s capital structure or its business, or any merger or consolidation
of the Company or any issuance of Shares or other securities or subscription rights thereto, or any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Shares or other securities of the Company or the rights thereof,
or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise. Further, except as expressly provided herein or
by the Administrator, (i) the issuance by the Company of shares of stock or any class of securities convertible into shares of
stock of any class, for cash, property, labor or services, upon direct sale, upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, (ii) the
payment of a dividend in property other than Shares, or (iii) the occurrence of any similar transaction, and in any case whether
or not for fair value, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of Shares
subject to Stock Options or other Awards theretofore granted or the purchase price per Share, unless the Administrator shall determine,
in its sole discretion, that an adjustment is necessary or appropriate.
(b) If the number of outstanding Shares or
other securities of the Company, or both, for which Awards are then exercisable or as to which Awards may be granted or settled
shall at any time be increased or decreased by declaration of a stock dividend, a stock split, a reverse stock split, a combination
of shares or a similar transaction, or if the outstanding Shares or other such securities are changed or exchanged for a different
kind of securities of the Company by a recapitalization, reorganization or any similar equity restructuring transaction affecting
the Shares or such other securities of the Company, the Administrator shall make appropriate adjustments to the number and kind
of Shares or other securities that are subject to this Plan and that are subject to or issuable upon exercises of any Awards theretofore
granted, and to the exercise or settlement prices of such Awards. Any such adjustments shall appropriately maintain the proportionate
numbers of Shares or other securities subject to this Plan or outstanding Awards. Any such adjustment to an outstanding Award generally
shall be made without changing the aggregate exercise or settlement price, if any.
(c) As used in this paragraph, an “
Acquisition
”
shall mean (i) a reorganization, merger or consolidation (not covered by
Section 10(b)
) as a result of which the Company
is not the surviving entity or as a result of which the outstanding Shares are changed into or exchanged for cash, property or
securities not of the Company's issue, or a combination thereof, except for a merger or consolidation with a wholly-owned subsidiary
of the Company or a transaction effected primarily to change the state of the Company's incorporation, or (ii) a sale or exchange,
or series of related sales or exchanges, by the Company of all or substantially all of its assets, or by one or more of the Company’s
Subsidiaries of all or substantially all of the consolidated assets of the Company and its Subsidiaries, or (iii) the acquisition
in a single transaction (including without limitation a merger, sale or exchange), or series of related transactions, of outstanding
Shares representing more than 80% in voting power of the then outstanding Shares (assuming full conversion of all then convertible
securities of the Company and full cashless exercises of all warrants or options which can then be exercised by cashless exercises).
Subject to the following sentence, upon the closing of such an Acquisition, or upon the dissolution and liquidation of the Company,
each outstanding Stock Option or SAR shall terminate and each holder of an outstanding Stock Option or SAR shall, notwithstanding
any unfulfilled vesting requirement, be entitled prior to such closing or liquidation to exercise the unexercised portion of such
Stock Option or SAR. The preceding sentence shall be subject to any different terms contained in the grant of or agreement governing
such Award and shall not be applicable with respect to a Stock Option or SAR if provision shall be made in connection with such
Acquisition for the assumption of the Stock Option or SAR by, or the substitution for such Stock Option or SAR of a new option
or stock appreciation right covering the stock of the surviving, successor or purchasing corporation or a parent or subsidiary
thereof with appropriate adjustments as to the number and kind of shares or other property to be issued upon exercise of the Stock
Option or SAR and the exercise price, provided that with respect to an Incentive Option such assumption or substitution is permitted
(to preserve the applicability to the Incentive Option of Section 421(a) of the Code) by Sections 422 and 424 of the Code. The
grant or instrument evidencing any Option, SAR or other Award may also provide for other accelerations of vesting requirements
or its exercise or settlement.
(d) Subject to the requirements of Section
155 of the Nevada General Corporation Law, unless otherwise determined by the Administrator, no right to purchase or receive fractional
Shares shall result from any adjustment in a Stock Option, SAR or other Award pursuant to this
Section 10
and, in case of
any such adjustment, the Shares subject to the Stock Option, SAR or Award shall be rounded down to the nearest whole share.
11.
Amendment and Termination of the Plan
. The Board may amend, alter or discontinue the Plan and
the Administrator may to the extent permitted by the Plan amend any agreement or other document evidencing an Award made under
this Plan;
provided
,
however
, that the Company shall submit for stockholder approval any amendment (other than an
amendment pursuant to the adjustment provisions of
Section 10
) that otherwise would:
(a) Increase the maximum number of Shares
for which Awards may be granted under this Plan;
(b) Reduce the price at which Stock Options
may be granted below the price provided for in
Section 8(a)
;
(c) Extend the term of this Plan; or
(d) Change the class of persons eligible to
be Participants.
In addition, no such amendment or alteration
shall be made which would impair the rights of any Participant, without such Participant’s consent, under any Award theretofore
granted;
provided
that no such consent shall be required with respect to any amendment or alteration if the Administrator
reasonably determines that such amendment or alteration is not reasonably likely to significantly diminish the benefits provided
under such Award, or that any such diminishment has been adequately compensated.
12.
Compliance
with Applicable Law
. This Plan, the grant and exercise of Awards hereunder, and the obligation of the Company to sell, issue
or deliver Shares under such Awards, shall be subject to all applicable federal, state and local laws, rules and regulations and
to such approvals by any governmental or regulatory agency as may be required. If the Company shall use reasonable efforts to satisfy
such related requirements: the Company shall not be required to register in a Participant’s name or deliver any Shares prior
to the completion of any registration or qualification of such Shares under any federal, state or local law or any ruling or regulation
of any government body which shall be necessary; to the extent the Company is unable to or the Administrator reasonably deems it
infeasible to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel
to be necessary or advisable for the lawful issuance and sale of any Shares hereunder, the Company shall be relieved of any liability
with respect to the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained; and
no Stock Option shall be exercisable and no Shares shall be issued and/or transferable under any other Award unless a registration
statement with respect to the Shares underlying such Stock Option is effective and current or the Company has determined that such
registration is unnecessary.
13.
Liability of Company
. The Company shall not be liable to a Participant or other persons as to: (a) the non-issuance
or sale of Shares as to which the Company, despite its reasonably efforts, has been unable to obtain from any regulatory body having
jurisdiction the authority deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares
hereunder; and (b) any tax consequence expected, but not realized, by any Participant or other person due to the receipt, exercise
or settlement of any Stock Option or other Award granted hereunder.
14.
Non-Exclusivity
of Plan
. Neither the adoption of this Plan by the Board nor the submission of this Plan to the stockholders of the Company
for approval shall be construed as creating any limitations on the power of the Board or the Administrator to adopt such other
incentive arrangements as either may deem desirable, including, without limitation, the granting of Stock Options, Stock Appreciation
Rights, Restricted Stock or Restricted Stock Units otherwise than under this Plan, and such arrangements may be either generally
applicable or applicable only in specific cases.
15.
Unfunded
Plan
. Insofar as it provides for Awards, the Plan shall be unfunded. Although bookkeeping accounts may be established with
respect to Participants who are granted Awards under this Plan, any such accounts will be used merely as a bookkeeping convenience.
The Company shall not be required to segregate any assets which may at any time be represented by Awards, nor shall this Plan be
construed as providing for such segregation, nor shall the Company or the Administrator be deemed to be a trustee of stock or cash
to be awarded under the Plan.
16.
Reservation
of Shares
. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
17.
Governing Law
. This Plan shall be governed by and construed in accordance with the laws of the State of Nevada (without
giving effect to conflicts of law principles).
18.
Section 409A of the Code
. To the extent applicable, the Plan is intended to comply with Section 409A of the Code. Unless
the Administrator determines otherwise, the Administrator shall interpret and administer the Plan in accordance with Section 409A.
The Administrator shall have the authority unilaterally to accelerate or delay a payment to which the holder of any Award may be
entitled to the extent necessary or desirable to comply with, or avoid adverse consequences under, Section 409A.
Exhibit B
AMENDMENT TO
ARTICLES OF INCORPORATION OF MIMVI, INC.