As
filed with the Securities and Exchange Commission on November 2, 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
THARIMMUNE,
INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
84-2642541 |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification No.) |
| |
|
|
1200
Route 22 East, Suite 2000
Bridgewater,
NJ |
|
08807 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
Tharimmune,
Inc. 2023 Omnibus Equity Incentive Plan
(Full
title of the plan)
Randy
Milby
Chief Executive Officer
Tharimmune, Inc.
1200
Route 22 East, Suite 2000
Bridgewater,
NJ 08807
(Name
and address of agent for service)
(908)
955-3140
(Telephone
number, including area code, of agent for service)
With
a copy to:
Jeffrey
Fessler, Esq.
Nazia
J. Khan, Esq.
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, NY 10112-0015
Phone:
(212) 653-8700
Fax:
(212) 653-8701
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 definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer ☐ |
|
Accelerated
filer ☐ |
|
Non-accelerated
filer ☒ |
| |
|
Smaller
reporting company ☒ |
|
Emerging
growth company ☒ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM
1. PLAN INFORMATION.
Tharimmune,
Inc. (the “Company”) will provide each recipient (the “Recipients”) of a grant under the Tharimmune, Inc. 2023
Omnibus Equity Incentive Plan (the “Plan”) with documents that contain information related to the Plan, and other information
including, but not limited to, the disclosure required by Item 1 of Form S-8, which information is not required to be and is not being
filed as a part of this Registration Statement on Form S-8 (the “Registration Statement”) or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act of 1933, as amended (the “Securities Act”). The foregoing information
and the documents incorporated by reference in response to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act. A Section 10(a) prospectus will be given to each Recipient
who receives common stock covered by this Registration Statement, in accordance with Rule 428(b)(1) under the Securities Act.
ITEM
2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
We
will provide to each Recipient a written statement advising of the availability of documents incorporated by reference in Item 3 of Part
II of this Registration Statement (which documents are incorporated by reference in this Section 10(a) prospectus) and of documents required
to be delivered pursuant to Rule 428(b) under the Securities Act without charge and upon written or oral request by contacting:
Randy
Milby
Chief Executive Officer
Tharimmune, Inc.
1200
Route 22 East, Suite 2000
Bridgewater,
NJ 08807
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The
following documents filed by the Company with the Securities and Exchange Commission (“SEC”) pursuant to the Securities Act
and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:
| |
● |
The Company’s Annual Report on Form
10-K/A for the year ended December 31, 2022 filed with the SEC on May 22, 2023; |
| |
|
|
| |
● |
The Company’s Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2023 and June 30, 2023 filed with the SEC on May 22, 2023 and August 11, 2023, respectively; |
| |
|
|
| |
● |
The Company’s Current Reports on Form 8-K filed with the SEC
on February 14, 2023, May 1, 2023, May 15, 2023, May 22, 2023, June 16, 2023, June 20, 2023, July 11, 2023, July 17, 2023, September 25, 2023 and October 24, 2023 (except for any portions of such Current Reports on Form 8-K furnished pursuant to Item 2.02 and/or
Item 7.01 thereof and any corresponding exhibits thereto not filed with the SEC); |
| |
|
|
| |
● |
The Company’s definitive proxy statement on Schedule 14A for
the Company’s 2023 annual meeting of stockholders filed with the SEC on August 30, 2023; |
| |
|
|
| |
● |
The description of the Company’s common stock contained in its Registration Statement on Form 8-A (File No. 001-41210) filed with the SEC on January 10, 2022, under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description. |
| |
|
|
| |
● |
All other reports and documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement herein or in any subsequently filed document that 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 constitute a part of this Registration Statement, except as so modified or superseded. |
ITEM
4. DESCRIPTION OF SECURITIES.
Not
applicable.
ITEM
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not
applicable.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section
102 of the Delaware General Corporation Law (the “DGCL”) permits a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal
benefit. Our Certificate of Incorporation, as amended (“Certificate of Incorporation”), provides that no director of our
Company shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding
any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability
of directors for breaches of fiduciary duty.
Section
145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or
a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in
related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party
to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation,
no indemnification shall be made with respect to 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 other adjudicating court determines that, despite the
adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other court shall deem proper.
Our
Certificate of Incorporation and Bylaws provide indemnification for our directors and officers to the fullest extent permitted by the
DGCL. We will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become,
a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee
of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being
referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable
cause to believe his or her conduct was unlawful. Our Certificate of Incorporation and Bylaws provide that we will indemnify any Indemnitee
who was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the
Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as
a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or who was an employee or agent
of a predecessor corporation or another enterprise at the request of such predecessor corporation, against all expenses (including attorneys’
fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action,
suit or proceeding, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to us, unless a court determines that, despite such adjudication but in view of all of the circumstances,
he or she is entitled to indemnification of such expenses. Expenses must be advanced to an Indemnitee under certain circumstances.
We
have entered into separate indemnification agreements with each of our directors and executive officers. Each indemnification agreement
provides, among other things, for indemnification to the fullest extent permitted by law and our Certificate of Incorporation and Bylaws
against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements
provide for the advancement or payment of all expenses to the indemnitee and for the reimbursement to us if it is found that such indemnitee
is not entitled to such indemnification.
In
addition, we maintain a general liability insurance policy that covers certain liabilities of directors and officers of our Company arising
out of claims based on acts or omissions in their capacities as directors or officers.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM
8. EXHIBITS.
See
the attached Exhibit Index on the page immediately following the signature pages hereto, which is incorporated herein by reference.
ITEM
9. UNDERTAKINGS.
A.
The undersigned Registrant hereby undertakes:
1.
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective Registration Statement.
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided,
however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section
15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
2.
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
3.
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
B.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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 Bridgewater, New Jersey, on the 2nd day of November, 2023.
| |
THARIMMUNE,
INC. |
| |
|
|
| |
By:
|
/s/
Randy Milby |
| |
|
Randy
Milby |
| |
|
Chief
Executive Officer (Principal Executive Officer) and Chairman of the Board of Directors |
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Randy Milby as his or her true and
lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in their name, place and stead,
in any and all capacities, to sign any and all amendments (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 attorney-in-fact
and agent, 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 to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
and on the date indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Randy Milby |
|
Chief
Executive Officer (Principal Executive Officer) |
|
November
2, 2023 |
| Randy
Milby |
|
and
Chairman of the Board of Directors |
|
|
| |
|
|
|
|
| /s/
Thomas Hess |
|
Chief
Financial Officer |
|
November
2, 2023 |
| Thomas
Hess |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Lynne Bui |
|
Director |
|
November
2, 2023 |
| Lynne
Bui |
|
|
|
|
| |
|
|
|
|
| /s/
Leonard Mazur |
|
Director |
|
November
2, 2023 |
| Leonard
Mazur |
|
|
|
|
| |
|
|
|
|
| /s/
Sireesh Appajosyula |
|
Director |
|
November
2, 2023 |
| Sireesh
Appajosyula |
|
|
|
|
| |
|
|
|
|
| /s/
Kelly Anderson |
|
Director |
|
November
2, 2023 |
| Kelly
Anderson |
|
|
|
|
EXHIBIT
INDEX
Exhibit
5.1
 |
|
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, New York 10112-0015
212.653.8700
main
212.653.8701
fax
www.sheppardmullin.com |
November
2, 2023
VIA
ELECTRONIC MAIL
Tharimmune,
Inc.
1200
Route 22 East, Suite 2000
Bridgewater,
NJ 08807
| |
Re:
Registration Statement on Form S-8 |
Ladies
and Gentlemen:
You
have requested our opinion with respect to certain matters in connection with the filing by Tharimmune, Inc., a Delaware corporation
(the “Company”), of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities
Act of 1933, as amended (the “Securities Act”), with the Securities and Exchange Commission, covering 3,500,000 shares
(the “Shares”) of common stock, par value $0.0001 per share (the “Common Stock”), reserved for future issuance
under the Tharimmune, Inc. 2023 Omnibus Equity Incentive Plan (the “Plan”).
This
Opinion is being furnished 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 this opinion, we have reviewed and relied upon the Registration Statement, the Company’s Certificate of Incorporation
as amended and in effect on the date hereof (the “Certificate of Incorporation”), the Company’s Bylaws as in effect
on the date hereof (the “Bylaws” and together with the Certificate of Incorporation, the “Charter Documents”),
the proceedings taken by the Company with respect to the authorization and adoption of the Plan, resolutions adopted by the board of
directors of the Company, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a
basis for this opinion. With respect to the foregoing documents, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity to original of all documents submitted to us as certified or reproduced
copies. We have also assumed that the Shares will be uncertificated in accordance with Section 158 of the Delaware General Corporation
Law, and the transfer agent therefor will register the purchaser thereof as the registered owner of any uncertificated Shares on its
stock transfer books and records. We have further assumed that (a) shares of the Common Stock currently reserved for issuance under the
Plan will remain available for the issuance of the Shares, and (b) neither the Company’s Charter Documents nor any of the proceedings
relating to either the Plan or any of the award agreements relating to the Shares will be rescinded, amended or otherwise modified prior
to the issuance of the Shares. We have also obtained from public officials and officers of the Company certificates or comparable documents
as to certain factual matters and, insofar as this opinion is based on matters of fact, we have relied on such certificates and comparable
documents without independent investigation. We have made such other investigations as we have deemed relevant and necessary in connection
with the opinions hereinafter set forth.
On
the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred
to in the Plan and against proper payment and consideration thereof and pursuant to the agreements that accompany the Plan, will be legally
and validly issued, fully paid and nonassessable.
We
consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby
admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
We
express no opinion as to matters governed by any laws other than the Delaware General Corporation Law and reported decisions of the Delaware
courts interpreting such law.
This
opinion letter is rendered as of the date first written above, and we disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein.
Our opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to
any other matters relating to the Company, the Shares, the Plan, the award agreements related to the Shares or the Registration Statement.
| |
Respectfully
Submitted, |
| |
|
| |
/s/
Sheppard, Mullin, Richter & Hampton LLP |
| |
|
| |
SHEPPARD,
MULLIN, RICHTER & HAMPTON LLP |
Exhibit 10.1
THARIMMUNE,
INC.
2023
OMNIBUS EQUITY INCENTIVE PLAN
| Section 1. |
Purpose of Plan. |
The
name of the Plan is the Tharimmune, Inc. 2023 Omnibus Equity Incentive Plan. The purposes of the Plan are to (i) provide an additional
incentive to selected employees, directors, and independent contractors of the Company or its Affiliates whose contributions are essential
to the growth and success of the Company, (ii) strengthen the commitment of such individuals to the Company and its Affiliates, (iii)
motivate those individuals to faithfully and diligently perform their responsibilities and (iv) attract and retain competent and dedicated
individuals whose efforts will result in the long-term growth and profitability of the Company. To accomplish these purposes, the Plan
provides that the Company may grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards
or any combination of the foregoing.
For
purposes of the Plan, the following terms shall be defined as set forth below:
(a) “Administrator”
means the Board, or, if and to the extent the Board does not administer the Plan, the Committee in accordance with Section 3 hereof.
(b) “Affiliate”
means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified as of any date of determination.
(c) “Applicable
Laws” means the applicable requirements under U.S. federal and state corporate laws, U.S. federal and state securities laws,
including the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any
other country or jurisdiction where Awards are granted under the Plan, as are in effect from time to time.
(d) “Award”
means any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit or Other Stock-Based Awards granted under the Plan.
(e) “Award
Agreement” means any written notice, agreement, contract or other instrument or document evidencing an Award or Prior Plan
Award, as applicable, including through electronic medium, which shall contain such terms and conditions with respect to an Award or
Prior Plan Award, as applicable, as the Administrator shall determine, consistent with the Plan or Prior Plans.
(f) “Beneficial
Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.
(g) “Board”
means the Board of Directors of the Company.
(h) “Bylaws”
mean the bylaws of the Company, as may be amended and/or restated from time to time.
(i) “Cause”
has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant
or, if no such agreement exists or if such agreement does not define “Cause,” then “Cause” means (i) the conviction,
guilty plea or plea of “no contest” by the Participant to any felony or a crime involving moral turpitude or the Participant’s
commission of any other act or omission involving dishonesty or fraud, (ii) the substantial and repeated failure of the Participant to
perform duties of the office held by the Participant, (iii) the Participant’s gross negligence, willful misconduct or breach of
fiduciary duty with respect to the Company or any of its Subsidiaries or Affiliates, (iv) any breach by the Participant of any restrictive
covenants to which the Participant is subject, and/or (v) the Participant’s engagement in any conduct which is or can reasonably
be expected to be materially detrimental or injurious to the business or reputation of the Company or its Affiliates. Any voluntary termination
of employment or service by the Participant in anticipation of an involuntary termination of the Participant’s employment or service,
as applicable, for Cause shall be deemed to be a termination for Cause.
(j) “Change
in Capitalization” means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase
or other reorganization or corporate transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution
(whether in the form of cash, Common Stock or other property), stock split, reverse stock split, share subdivision or consolidation,
(iii) combination or exchange of shares or (iv) other change in corporate structure, which, in any such case, the Administrator determines,
in its sole discretion, affects the Common Stock such that an adjustment pursuant to Section 5 hereof is appropriate.
(k) “Change
in Control” means the first occurrence of an event set forth in any one of the following paragraphs following the Effective
Date:
(1) any
Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially
Owned by such Person which were acquired directly from the Company or any Affiliate thereof) representing more than fifty percent (50%)
of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner
in connection with a transaction described in clause (i) of paragraph (3) below; or
(2) the
date on which individuals who constitute the Board as of the Effective Date and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation,
relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were
directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended cease
for any reason to constitute a majority of the number of directors serving on the Board; or
(3) there
is consummated a merger or consolidation of the Company or any direct or indirect Subsidiary with any other corporation or other entity,
other than (i) a merger or consolidation (A) which results in the voting securities of the Company outstanding immediately prior to such
merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any Subsidiary, fifty percent (50%) or more of the combined voting power of the securities
of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and (B) following
which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the
Company, the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger or consolidation is
then a Subsidiary, the ultimate parent thereof, or (ii) a merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company
(not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliates)
representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities; or
(4) the
stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement
for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than (A) a sale or disposition
by the Company of all or substantially all of the Company’s assets to an entity, more than fifty percent (50%) of the combined
voting power of the voting securities of which are owned by stockholders of the Company following the completion of such transaction
in substantially the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale or disposition of
all or substantially all of the Company’s assets immediately following which the individuals who comprise the Board immediately
prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if
such entity is a subsidiary, the ultimate parent thereof.
Notwithstanding
the foregoing, (i) a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series
of integrated transactions immediately following which the holders of Common Stock immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the
assets of the Company immediately following such transaction or series of transactions and (ii) to the extent required to avoid accelerated
taxation and/or tax penalties under Section 409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with
respect to any Award that constitutes deferred compensation under Section 409A of the Code only if a change in the ownership or effective
control of the Company or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred
under Section 409A of the Code. For purposes of this definition of Change in Control, the term “Person” shall not include
(i) the Company or any Subsidiary thereof, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the
Company or any Subsidiary thereof, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or
(iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership
of shares of the Company.
(l) “Code”
means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto.
(m) “Committee”
means any committee or subcommittee the Board (including, but not limited to the Compensation Committee) may appoint to administer the
Plan. Subject to the discretion of the Board, the Committee shall be composed entirely of individuals who meet the qualifications of
a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act and any other qualifications required by
the applicable stock exchange on which the Common Stock is traded.
(n) “Common
Stock” means shares of common stock of the Company, par value $0.0001 per share.
(o) “Company”
means Tharimmune, Inc., a Delaware corporation (or any successor company, except as the term “Company” is used in the definition
of “Change in Control” above).
(p) “Covered
Executive” means any Executive Officer that (1) has received Incentive Compensation (A) during the Look-Back Period (as defined
in Section 27) and (B) after beginning service as an Executive Officer; and (2) served as an Executive Officer at any time during the
performance period for the applicable Incentive Compensation.
(q) “Disability”
has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant
or, if no such agreement exists or if such agreement does not define “Disability,” then “Disability” shall mean
the inability of the Participant to perform the essential functions of the Participant’s job by reason of a physical or mental
infirmity, for a period of three (3) consecutive months or for an aggregate of six (6) months in any twelve (12) consecutive month period.
(r) “Effective
Date” has the meaning set forth in Section 17 hereof.
(s) “Eligible
Recipient” means an employee, director or independent contractor of the Company or any Affiliate of the Company who has been
selected as an eligible participant by the Administrator; provided, however, to the extent required to avoid accelerated
taxation and/or tax penalties under Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation Right means
an employee, non-employee director or independent contractor of the Company or any Affiliate of the Company with respect to whom the
Company is an “eligible issuer of service recipient stock” within the meaning of Section 409A of the Code.
(t) “Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to time.
(u) “Executive
Officer” means “any executive officer” as defined in Section 10D-1(d) of the Exchange Act whom the Board (or the
Committee, as applicable) has determined is subject to the reporting requirements of Section 10D of the Exchange Act, and includes any
person who is the Company’s president, principal financial officer, principal accounting officer (or if there is no such accounting
officer, the controller), any vice-president of the issuer in charge of a principal business unit, division, or function (such as sales,
administration, or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making
functions for the Company (with any executive officers of the Company’s parent(s) or subsidiaries being deemed Executive Officers
of the Company if they perform such policy making functions for the Company). All Executive Officers of the Company identified by the
Board (or the Committee, as applicable) pursuant to 17 CFR 229.401(b) shall be deemed an “Executive Officer.”
(v) “Exempt
Award” shall mean the following:
(1) An
Award granted in assumption of, or in substitution for, outstanding awards previously granted by a corporation or other entity acquired
by the Company or any of its Subsidiaries or with which the Company or any of its Subsidiaries combines by merger or otherwise. The terms
and conditions of any such Awards may vary from the terms and conditions set forth in the Plan to the extent the Administrator at the
time of grant may deem appropriate, subject to Applicable Laws.
(2) An
“employment inducement” award as described in the applicable stock exchange listing manual or rules may be granted under
the Plan from time to time. The terms and conditions of any “employment inducement” award may vary from the terms and conditions
set forth in the Plan to such extent as the Administrator at the time of grant may deem appropriate, subject to Applicable Laws.
(3) An
Award that an Eligible Recipient purchases at Fair Market Value (including Awards that an Eligible Recipient elects to receive in lieu
of fully vested compensation that is otherwise due) whether or not the Common Stock are delivered immediately or on a deferred basis.
(w) “Exercise
Price” means, (i) with respect to any Option, the per share price at which a holder of such Option may purchase Shares issuable
upon exercise of such Award, and (ii) with respect to a Stock Appreciation Right, the base price per share of such Stock Appreciation
Right.
(x) “Fair
Market Value” of a share of Common Stock or another security as of a particular date shall mean the fair market value as determined
by the Administrator in its sole discretion; provided, that, (i) if the Common Stock or other security is admitted to trading on a national
securities exchange, the fair market value on any date shall be the closing sale price reported on such date, or if no shares were traded
on such date, on the last preceding date for which there was a sale of a share of Common Stock on such exchange, or (ii) if the Common
Stock or other security is then traded in an over-the-counter market, the fair market value on any date shall be the average of the closing
bid and asked prices for such share in such over-the-counter market for the last preceding date on which there was a sale of such share
in such market.
(y) “Free
Standing Rights” has the meaning set forth in Section 8.
(z) “Good
Reason” has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement
with the Participant or, if no such agreement exists or if such agreement does not define “Good Reason,” “Good Reason”
and any provision of this Plan that refers to “Good Reason” shall not be applicable to such Participant.
(aa)
“Grandfathered Arrangement” means an Award which is provided pursuant to a written binding contract in effect on
November 2, 2017, and which was not modified in any material respect on or after November 2, 2017, within the meaning of Section
13601(e)(2) of P.L. 115.97, as may be amended from time to time (including any rules and regulations promulgated
thereunder).
(bb)
“Incentive Compensation” shall be deemed to be any compensation (including any Award or any other short-term or
long-term cash or equity incentive award or any other payment) that is granted, earned, or vested based wholly or in part upon the
attainment of any financial reporting measure (i.e., any measures that are determined and presented in accordance with the
accounting principles used in preparing the Company’s financial statements, and any measure that is derived wholly or in part
from such measures, including stock price and total shareholder return). For avoidance of doubt, financial reporting measures
include “non-GAAP financial measures” for purposes of Exchange Act Regulation G and 17 CFR 229.10, as well as other
measures, metrics and ratios that are not non-GAAP measures, like same store sales. Financial reporting measures may or may not be
included in a filing with the Securities and Exchange Commission, and may be presented outside the Company’s financial
statements, such as in Management’s Discussion and Analysis of Financial Conditions and Results of Operations or the
performance graph.
(cc)
“ISO” means an Option intended to be and designated as an “incentive stock option” within the meaning
of Section 422 of the Code.
(dd)
“Nonqualified Stock Option” shall mean an Option that is not designated as an ISO.
(ee)
“Option” means an option to purchase shares of Common Stock granted pursuant to Section 7 hereof. The term
“Option” as used in the Plan includes the terms “Nonqualified Stock Option” and
“ISO.”
(ff)
“Other Stock-Based Award” means a right or other interest granted pursuant to Section 10 hereof that may be
denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Common Stock, including,
but not limited to, unrestricted Shares, dividend equivalents or performance units, each of which may be subject to the attainment
of performance goals or a period of continued provision of service or employment or other terms or conditions as permitted under the
Plan.
(gg)
“Participant” means any Eligible Recipient selected by the Administrator, pursuant to the Administrator’s
authority provided for in Section 3 below, to receive grants of Awards, and, upon a Participant’s death, the
Participant’s successors, heirs, executors and administrators, as the case may be.
(hh)
“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections
13(d) and 14(d) thereof.
(ii) “Plan”
means this 2023 Omnibus Equity Incentive Plan.
(jj)
“Prior Plans” means the Company’s 2019 Stock Incentive Plan and 2017 Stock Incentive Plan, as in effect
immediately prior to the Effective Date.
(kk)
“Prior Plan Award” means an award outstanding under the Prior Plans as of the Effective Date hereof.
(ll)
“Related Rights” has the meaning set forth in Section 8.
(mm)
“Restricted Period” has the meaning set forth in Section 9.
(nn)
“Restricted Stock” means Common Stock granted pursuant to Section 9 below subject to certain restrictions that
lapse at the end of a specified period (or periods) of time and/or upon attainment of specified performance objectives.
(oo) “Restricted
Stock Unit” means the right granted pursuant to Section 9 hereof to receive Common Stock at the end of a specified restricted
period (or periods) of time and/or upon attainment of specified performance objectives.
(pp)
“Rule 16b-3” has the meaning set forth in Section 3.
(qq)
“Stock Appreciation Right” means a right granted pursuant to Section 8 hereof to receive an amount equal to the
excess, if any, of (i) the aggregate Fair Market Value, as of the date such Award or portion thereof is surrendered, of the Shares
covered by such Award or such portion thereof, over (ii) the aggregate Exercise Price of such Award or such portion
thereof.
(rr)
“Subsidiary” means, with respect to any Person, as of any date of determination, any other Person as to which
such first Person owns or otherwise controls, directly or indirectly, more than 50% of the voting shares or other similar interests
or a sole general partner interest or managing member or similar interest of such other Person.
(ss)
“Transfer” has the meaning set forth in Section 15.
| Section 3. |
Administration. |
(a) The
Plan shall be administered by the Administrator and shall be administered, to the extent applicable, in accordance with Rule 16b-3 under
the Exchange Act (“Rule 16b-3”).
(b) Pursuant
to the terms of the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated to
it by the Board, shall have the power and authority, without limitation:
(1) to
select those Eligible Recipients who shall be Participants;
(2) to
determine whether and to what extent Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based
Awards or a combination of any of the foregoing, are to be granted hereunder to Participants;
(3) to
determine the number of Shares to be covered by each Award granted hereunder;
(4) to
determine the terms and conditions, not inconsistent with the terms of the Plan, of each Award granted hereunder (including, but not
limited to, (i) the restrictions applicable to Restricted Stock or Restricted Stock Units and the conditions under which restrictions
applicable to such Restricted Stock or Restricted Stock Units shall lapse, (ii) the performance goals and periods applicable to Awards,
(iii) the Exercise Price of each Option and each Stock Appreciation Right or the purchase price of any other Award, (iv) the vesting
schedule and terms applicable to each Award; (v) the number of Shares or amount of cash or other property subject to each Award and (vi)
subject to the requirements of Section 409A of the Code (to the extent applicable) any amendments to the terms and conditions of outstanding
Awards, including, but not limited to, extending the exercise period of such Awards and accelerating the payment schedules of such Awards
and/or, to the extent specifically permitted under the Plan, accelerating the vesting schedules of such Awards);
(5) to
determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing
Awards;
(6) to
determine the Fair Market Value in accordance with the terms of the Plan;
(7) to
determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting termination of the
Participant’s service or employment for purposes of Awards granted under the Plan;
(8) to
adopt, alter and repeal such administrative rules, regulations, guidelines and practices governing the Plan as it shall from time to
time deem advisable;
(9) to
construe and interpret the terms and provisions of, and supply or correct omissions in, the Plan and any Award issued under the Plan
(and any Award Agreement relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and
authorities either specifically granted under the Plan or necessary and advisable in the administration of the Plan; and
(10) to
prescribe, amend and rescind rules and regulations relating to sub-plans established for the purpose of satisfying applicable non-United
States laws or for qualifying for favorable tax treatment under applicable non-United States laws, which rules and regulations may be
set forth in an appendix or appendixes to the Plan.
(c) Subject
to Section 5, neither the Board nor the Committee shall have the authority to reprice or cancel and regrant any Award at a lower exercise,
base or purchase price or cancel any Award with an exercise, base or purchase price in exchange for cash, property or other Awards without
first obtaining the approval of the Company’s stockholders.
(d) All
decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all Persons, including
the Company and the Participants.
(e) The
expenses of administering the Plan (which for the avoidance of doubt does not include the costs of any Participant) shall be borne by
the Company and its Affiliates.
(f) If
at any time or to any extent the Board shall not administer the Plan, then the functions of the Administrator specified in the Plan shall
be exercised by the Committee. Except as otherwise provided in the Articles of Incorporation or Bylaws of the Company, any action of
the Committee with respect to the administration of the Plan shall be taken by a majority vote at a meeting at which a quorum is duly
constituted or unanimous written consent of the Committee’s members.
| Section 4. |
Shares Reserved for Issuance Under the Plan. |
(a) Subject
to Section 5 hereof, the number of Common Stock that are reserved and available for issuance pursuant to Awards granted under the Plan
shall be equal to the sum of (i) 2,600,000 shares, plus (ii) the number of Common Stock underlying forfeited awards under the Prior Plans,
as provided in Section 4(b) below; provided, that, Common Stock issued under the Plan with respect to an Exempt Award shall
not count against such share limit. Following the Effective Date, no further awards shall be issued under the Prior Plans, but all Prior
Plan Awards which are outstanding as of the Effective Date (including any Grandfathered Arrangement) shall continue to be governed by
the terms, conditions and procedures set forth in the Prior Plans and any applicable Award Agreement.
(b) Common
Stock issued under the Plan may, in whole or in part, be authorized but unissued Common Stock or Common Stock that shall have been or
may be reacquired by the Company in the open market, in private transactions or otherwise. If an Award entitles the Participant to receive
or purchase Common Stock, the number of Common Stock covered by such Award or to which such Award relates shall be counted on the date
of grant of such Award against the aggregate number of Common Stock available for granting Awards under the Plan. If any Award or Prior
Plan Award expires, lapses or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or
in part (including as the result of Common Stock subject to such Award or Prior Plan Award being repurchased by the Company at or below
the original issuance price), in any case in a manner that results in any Common Stock covered by such Award or Prior Plan Award not
being issued or being so reacquired by the Company, the unused Common Stock covered by such Award or Prior Plan Award shall again be
available for the grant of Awards under the Plan. In addition, (i) to the extent an Award is denominated in Common Stock, but paid or
settled in cash, the number of Common Stock with respect to which such payment or settlement is made shall again be available for grants
of Awards pursuant to the Plan and (ii) Common Stock underlying Awards that can only be settled in cash shall not be counted against
the aggregate number of Common Stock available for Awards under the Plan. Upon the exercise of any Award granted in tandem with any other
Awards, such related Awards shall be cancelled to the extent of the number of Common Stock as to which the Award is exercised and, notwithstanding
the foregoing, such number of Common Stock shall no longer be available for grant under the Plan.
(c)
No more than 1,550,000 Common Stock shall be issued pursuant to the exercise of ISOs.
| Section 5. |
Equitable Adjustments. |
In
the event of any Change in Capitalization, an equitable substitution or proportionate adjustment shall be made in (i) the aggregate number
and kind of securities reserved for issuance under the Plan pursuant to Section 4, (ii) the kind, number of securities subject to, and
the Exercise Price subject to outstanding Options and Stock Appreciation Rights granted under the Plan, (iii) the kind, number and purchase
price of Shares or other securities or the amount of cash or amount or type of other property subject to outstanding Restricted Stock,
Restricted Stock Units or Other Stock-Based Awards granted under the Plan; and/or (iv) the terms and conditions of any outstanding Awards
(including, without limitation, any applicable performance targets or criteria with respect thereto); provided, however,
that any fractional shares resulting from the adjustment shall be eliminated. Such other equitable substitutions or adjustments shall
be made as may be determined by the Administrator, in its sole discretion. Without limiting the generality of the foregoing, in connection
with a Change in Capitalization, the Administrator may provide, in its sole discretion, but subject in all events to the requirements
of Section 409A of the Code, for the cancellation of any outstanding Award granted hereunder in exchange for payment in cash or other
property having an aggregate Fair Market Value equal to the Fair Market Value of the Shares, cash or other property covered by such Award,
reduced by the aggregate Exercise Price or purchase price thereof, if any; provided, however, that if the Exercise Price
or purchase price of any outstanding Award is equal to or greater than the Fair Market Value of the shares of Common Stock, cash or other
property covered by such Award, the Administrator may cancel such Award without the payment of any consideration to the Participant.
Further, without limiting the generality of the foregoing, with respect to Awards subject to foreign laws, adjustments made hereunder
shall be made in compliance with applicable requirements. Except to the extent determined by the Administrator, any adjustments to ISOs
under this Section 5 shall be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3)
of the Code. The Administrator’s determinations pursuant to this Section 5 shall be final, binding and conclusive.
The
Participants in the Plan shall be selected from time to time by the Administrator, in its sole discretion, from those individuals that
qualify as Eligible Recipients.
(a) General.
Options granted under the Plan shall be designated as Nonqualified Stock Options or ISOs. Each Participant who is granted an Option shall
enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole
discretion, including, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability
of the Option, and whether the Option is intended to be an ISO or a Nonqualified Stock Option (and in the event the Award Agreement has
no such designation, the Option shall be a Nonqualified Stock Option). The provisions of each Option need not be the same with respect
to each Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted
under the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional terms and conditions,
not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award Agreement.
(b) Exercise
Price. The Exercise Price of Common Stock purchasable under an Option shall be determined by the Administrator in its sole discretion
at the time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the Fair Market
Value of Common Stock on the date of grant.
(c) Option
Term. The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten (10)
years after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable provisions
in the Plan and the Award Agreement. Notwithstanding the foregoing, subject to Section 4(d) of the Plan, the Administrator shall have
the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as the Administrator,
in its sole discretion, deems appropriate.
(d) Exercisability.
Each Option shall be subject to vesting or becoming exercisable at such time or times and subject to such terms and conditions, including
the attainment of performance goals, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator
may also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise
provisions at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion.
(e) Method
of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number
of whole Common Stock to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Common Stock so purchased
in cash or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect
to any Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless
exercise procedure approved by the Administrator (including the withholding of Common Stock otherwise issuable upon exercise), (ii) in
the form of unrestricted Common Stock already owned by the Participant which have a Fair Market Value on the date of surrender equal
to the aggregate exercise price of the Common Stock as to which such Option shall be exercised, (iii) any other form of consideration
approved by the Administrator and permitted by Applicable Laws or (iv) any combination of the foregoing.
(f) ISOs.
The terms and conditions of ISOs granted hereunder shall be subject to the provisions of Section 422 of the Code and the terms, conditions,
limitations and administrative procedures established by the Administrator from time to time in accordance with the Plan. At the discretion
of the Administrator, ISOs may be granted only to an employee of the Company, its “parent corporation” (as such term is defined
in Section 424(e) of the Code) or a Subsidiary of the Company.
(1) ISO
Grants to 10% Stockholders. Notwithstanding anything to the contrary in the Plan, if an ISO is granted to a Participant who owns
shares representing more than ten percent (10%) of the voting power of all classes of shares of the Company, its “parent corporation”
(as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company, the term of the ISO shall not exceed five (5)
years from the time of grant of such ISO and the Exercise Price shall be at least one hundred and ten percent (110%) of the Fair Market
Value of the Common Stock on the date of grant.
(2) $100,000
Per Year Limitation For ISOs. To the extent the aggregate Fair Market Value (determined on the date of grant) of the Common Stock
for which ISOs are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds
$100,000, such excess ISOs shall be treated as Nonqualified Stock Options.
(3) Disqualifying
Dispositions. Each Participant awarded an ISO under the Plan shall notify the Company in writing immediately after the date the Participant
makes a “disqualifying disposition” of any Common Stock acquired pursuant to the exercise of such ISO. A “disqualifying
disposition” is any disposition (including any sale) of such Common Stock before the later of (i) two years after the date of grant
of the ISO and (ii) one year after the date the Participant acquired the Common Stock by exercising the ISO. The Company may, if determined
by the Administrator and in accordance with procedures established by it, retain possession of any Common Stock acquired pursuant to
the exercise of an ISO as agent for the applicable Participant until the end of the period described in the preceding sentence, subject
to complying with any instructions from such Participant as to the sale of such Common Stock.
(g) Rights
as Stockholder. A Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights of a stockholder
with respect to the Common Stock subject to an Option until the Participant has given written notice of the exercise thereof, and has
paid in full for such Common Stock and has satisfied the requirements of Section 15 hereof.
(h) Termination
of Employment or Service. Treatment of an Option upon termination of employment of a Participant shall be provided for by the Administrator
in the Award Agreement.
(i) Other
Change in Employment or Service Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves
of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or
other changes in the employment status or service status of a Participant, in the discretion of the Administrator.
| Section 8. |
Stock Appreciation Rights. |
(a) General.
Stock Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part
of any Option granted under the Plan (“Related Rights”). Related Rights may be granted either at or after the time
of the grant of such Option. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants
of Stock Appreciation Rights shall be made. Each Participant who is granted a Stock Appreciation Right shall enter into an Award Agreement
with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among
other things, the number of Common Stock to be awarded, the Exercise Price per Common Stock, and all other conditions of Stock Appreciation
Rights. Notwithstanding the foregoing, no Related Right may be granted for more Common Stock than are subject to the Option to which
it relates. The provisions of Stock Appreciation Rights need not be the same with respect to each Participant. Stock Appreciation Rights
granted under the Plan shall be subject to the following terms and conditions set forth in this Section 8 and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable, as set forth in the applicable
Award Agreement.
(b) Awards;
Rights as Stockholder. A Participant shall have no rights to dividends or any other rights of a stockholder with respect to Common
Stock, if any, subject to a Stock Appreciation Right until the Participant has given written notice of the exercise thereof and has satisfied
the requirements of Section 15 hereof.
(c) Exercise
Price. The Exercise Price of Common Stock purchasable under a Stock Appreciation Right shall be determined by the Administrator in
its sole discretion at the time of grant, but in no event shall the exercise price of a Stock Appreciation Right be less than one hundred
percent (100%) of the Fair Market Value of a Common Stock on the date of grant.
(d) Exercisability.
(1) Stock
Appreciation Rights that are Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions
as shall be determined by the Administrator in the applicable Award Agreement.
(2) Stock
Appreciation Rights that are Related Rights shall be exercisable only at such time or times and to the extent that the Options to which
they relate shall be exercisable in accordance with the provisions of Section 7 hereof and this Section 8 of the Plan.
(e) Payment
Upon Exercise.
(1) Upon
the exercise of a Free Standing Right, the Participant shall be entitled to receive up to, but not more than, that number of Common Stock
equal in value to the excess of the Fair Market Value as of the date of exercise over the Exercise Price per share specified in the Free
Standing Right multiplied by the number of Common Stock in respect of which the Free Standing Right is being exercised.
(2) A
Related Right may be exercised by a Participant by surrendering the applicable portion of the related Option. Upon such exercise and
surrender, the Participant shall be entitled to receive up to, but not more than, that number of Common Stock equal in value to the excess
of the Fair Market Value as of the date of exercise over the Exercise Price specified in the related Option multiplied by the number
of Common Stock in respect of which the Related Right is being exercised. Options which have been so surrendered, in whole or in part,
shall no longer be exercisable to the extent the Related Rights have been so exercised.
(3) Notwithstanding
the foregoing, the Administrator may determine to settle the exercise of a Stock Appreciation Right in cash (or in any combination of
Shares and cash).
(f) Termination
of Employment or Service. Treatment of a Stock Appreciation Right upon termination of employment of a Participant shall be provided
for by the Administrator in the Award Agreement.
(g) Term.
(1) The
term of each Free Standing Right shall be fixed by the Administrator, but no Free Standing Right shall be exercisable more than ten (10)
years after the date such right is granted.
(2) The
term of each Related Right shall be the term of the Option to which it relates, but no Related Right shall be exercisable more than ten
(10) years after the date such right is granted.
(h) Other
Change in Employment or Service Status. Stock Appreciation Rights shall be affected, both with regard to vesting schedule and termination,
by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability
or other changes in the employment or service status of a Participant, in the discretion of the Administrator.
| Section 9. |
Restricted Stock and Restricted Stock Units. |
(a) General.
Restricted Stock or Restricted Stock Units may be issued under the Plan. The Administrator shall determine the Eligible Recipients to
whom, and the time or times at which, Restricted Stock or Restricted Stock Units shall be made. Each Participant who is granted Restricted
Stock or Restricted Stock Units shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator
shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded; the price, if any, to be
paid by the Participant for the acquisition of Restricted Stock or Restricted Stock Units; the period of time restrictions, performance
goals or other conditions that apply to Transferability, delivery or vesting of such Awards (the “Restricted Period”);
and all other conditions applicable to the Restricted Stock and Restricted Stock Units. If the restrictions, performance goals or conditions
established by the Administrator are not attained, a Participant shall forfeit his or her Restricted Stock or Restricted Stock Units,
in accordance with the terms of the grant. The provisions of the Restricted Stock or Restricted Stock Units need not be the same with
respect to each Participant.
(b) Awards
and Certificates. Except as otherwise provided below in Section 9(c), (i) each Participant who is granted an Award of Restricted
Stock may, in the Company’s sole discretion, be issued a share certificate in respect of such Restricted Stock; and (ii) any such
certificate so issued shall be registered in the name of the Participant, and shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to any such Award. The Company may require that the share certificates, if any, evidencing Restricted
Stock granted hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed, and that, as a condition
of any Award of Restricted Stock, the Participant shall have delivered a share transfer form, endorsed in blank, relating to the Shares
covered by such Award. Certificates for unrestricted Common Stock may, in the Company’s sole discretion, be delivered to the Participant
only after the Restricted Period has expired without forfeiture in such Restricted Stock Award. With respect to Restricted Stock Units
to be settled in Common Stock, at the expiration of the Restricted Period, share certificates in respect of Common Stock underlying such
Restricted Stock Units may, in the Company’s sole discretion, be delivered to the Participant, or Participant’s legal representative,
in a number equal to the number of Common Stock underlying the Restricted Stock Units Award. Notwithstanding anything in the Plan to
the contrary, any Restricted Stock or Restricted Stock Units to be settled in Common Stock (at the expiration of the Restricted Period,
and whether before or after any vesting conditions have been satisfied) may, in the Company’s sole discretion, be issued in uncertificated
form. Further, notwithstanding anything in the Plan to the contrary, with respect to Restricted Stock Units, at the expiration of the
Restricted Period, Common Stock, or cash, as applicable, shall promptly be issued (either in certificated or uncertificated form) to
the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section 409A of
the Code, and such issuance or payment shall in any event be made within such period as is required to avoid the imposition of a tax
under Section 409A of the Code.
(c) Restrictions
and Conditions. The Restricted Stock or Restricted Stock Units granted pursuant to this Section 9 shall be subject to the following
restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the time of grant or,
subject to Section 409A of the Code where applicable, thereafter:
(1) The
Administrator may, in its sole discretion, provide for the lapse of restrictions in installments and may accelerate or waive such restrictions
in whole or in part based on such factors and such circumstances as the Administrator may determine, in its sole discretion, including,
but not limited to, the attainment of certain performance goals, the Participant’s termination of employment or service with the
Company or any Affiliate thereof, or the Participant’s death or Disability. Notwithstanding the foregoing, upon a Change in Control,
the outstanding Awards shall be subject to Section 11 hereof.
(2) Except
as provided in the applicable Award Agreement, the Participant shall generally have the rights of a stockholder of the Company with respect
to Restricted Stock during the Restricted Period; provided, however, that dividends declared during the Restricted Period
with respect to an Award, shall only become payable if (and to the extent) the underlying Restricted Stock vests. Except as provided
in the applicable Award Agreement, the Participant shall generally not have the rights of a stockholder with respect to Shares subject
to Restricted Stock Units during the Restricted Period; provided, however, that, subject to Section 409A of the Code, an
amount equal to dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock Units
shall, unless otherwise set forth in an Award Agreement, be paid to the Participant at the time (and to the extent) Shares in respect
of the related Restricted Stock Units are delivered to the Participant. Certificates for unrestricted Common Stock may, in the Company’s
sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture in respect of such Restricted
Stock or Restricted Stock Units, except as the Administrator, in its sole discretion, shall otherwise determine.
(3) The
rights of Participants granted Restricted Stock or Restricted Stock Units upon termination of employment or service as a director or
independent contractor to the Company or to any Affiliate thereof terminates for any reason during the Restricted Period shall be set
forth in the Award Agreement.
(d) Form
of Settlement. The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof) that
any Restricted Stock Unit represents the right to receive the amount of cash per unit that is determined by the Administrator in connection
with the Award.
| Section 10. |
Other Stock-Based Awards. |
Other
Stock-Based Awards may be issued under the Plan. Subject to the provisions of the Plan, the Administrator shall have sole and complete
authority to determine the individuals to whom and the time or times at which such Other Stock-Based Awards shall be granted. Each Participant
who is granted an Other Stock-Based Award shall enter into an Award Agreement with the Company, containing such terms and conditions
as the Administrator shall determine, in its sole discretion, including, among other things, the number of Common Stock to be granted
pursuant to such Other Stock-Based Awards, or the manner in which such Other Stock-Based Awards shall be settled (e.g., in shares of
Common Stock, cash or other property), or the conditions to the vesting and/or payment or settlement of such Other Stock-Based Awards
(which may include, but not be limited to, achievement of performance criteria) and all other terms and conditions of such Other Stock-Based
Awards. In the event that the Administrator grants a bonus in the form of Common Stock, the Common Stock constituting such bonus shall,
as determined by the Administrator, be evidenced in uncertificated form or by a book entry record or a certificate issued in the name
of the Participant to whom such grant was made and delivered to such Participant as soon as practicable after the date on which such
bonus is payable. Notwithstanding anything set forth in the Plan to the contrary, any dividend or dividend equivalent Award issued hereunder
shall be subject to the same restrictions, conditions and risks of forfeiture as apply to the underlying Award.
| Section 11. |
Change in Control. |
Unless
otherwise determined by the Administrator and evidenced in an Award Agreement, in the event that (a) a Change in Control occurs, and
(b) the Participant is employed by, or otherwise providing services to, the Company or any of its Affiliates immediately prior to the
consummation of such Change in Control then upon the consummation of such Change in Control, the Administrator, in its sole and absolute
discretion, may:
(a) provide
that any unvested or unexercisable portion of any Award carrying a right to exercise to become fully vested and exercisable; and
(b) cause
the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to an Award granted under the Plan to
lapse and such Awards shall be deemed fully vested and any performance conditions imposed with respect to such Awards shall be deemed
to be fully achieved at target performance levels.
If
the Administrator determines in its discretion pursuant to Section 3(b)(4) hereof to accelerate the vesting of Options and/or Share Appreciation
Rights in connection with a Change in Control, the Administrator shall also have discretion in connection with such action to provide
that all Options and/or Stock Appreciation Rights outstanding immediately prior to such Change in Control shall expire on the effective
date of such Change in Control. Notwithstanding the foregoing, in the event that a Participant’s employment or service is terminated
without Cause within twenty-four (24) months following a Change in Control, the time-vesting portion of any Award granted to such Participant
shall accelerate and vest in full, and the performance-vesting portion of any such Award shall vest at target level, in each case upon
the date of termination of employment or service of such Participant.
| Section 12. |
Amendment and Termination. |
The
Board may amend, alter or terminate the Plan at any time, but no amendment, alteration or termination shall be made that would impair
the rights of a Participant under any Award theretofore granted without such Participant’s consent. The Board shall obtain approval
of the Company’s stockholders for any amendment that would require such approval in order to satisfy the requirements of any rules
of the stock exchange on which the Common Stock is traded or other Applicable Law. Subject to Section 3(c), the Administrator may amend
the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Section 5 of the Plan and the immediately
preceding sentence, no such amendment shall materially impair the rights of any Participant without his or her consent.
| Section 13. |
Unfunded Status of Plan. |
The
Plan is intended to constitute an “unfunded” plan for incentive compensation. With respect to any payments not yet made to
a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general
creditor of the Company.
| Section 14. |
Withholding Taxes. |
Each
Participant shall, no later than the date as of which the value of an Award first becomes includible in the gross income of such Participant
for purposes of applicable taxes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of an
amount up to the maximum statutory tax rates in the Participant’s applicable jurisdiction with respect to the Award, as determined
by the Company. The obligations of the Company under the Plan shall be conditional on the making of such payments or arrangements, and
the Company shall, to the extent permitted by Applicable Laws, have the right to deduct any such taxes from any payment of any kind otherwise
due to such Participant. Whenever cash is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount
sufficient to satisfy any applicable withholding tax requirements related thereto. Whenever Shares or property other than cash are to
be delivered pursuant to an Award, the Company shall have the right to require the Participant to remit to the Company in cash an amount
sufficient to satisfy any related taxes to be withheld and applied to the tax obligations; provided, that, with the approval
of the Administrator, a Participant may satisfy the foregoing requirement by either (i) electing to have the Company withhold from delivery
of Shares or other property, as applicable, or (ii) delivering already owned unrestricted shares of Common Stock, in each case, having
a value not exceeding the applicable taxes to be withheld and applied to the tax obligations. Such already owned and unrestricted shares
of Common Stock shall be valued at their Fair Market Value on the date on which the amount of tax to be withheld is determined and any
fractional share amounts resulting therefrom shall be settled in cash. Such an election may be made with respect to all or any portion
of Common Stock to be delivered pursuant to an award. The Company may also use any other method of obtaining the necessary payment or
proceeds, as permitted by Applicable Laws, to satisfy its withholding obligation with respect to any Award.
| Section 15. |
Transfer of Awards. |
Until
such time as the Awards are fully vested and/or exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment,
mortgage, hypothecation, transfer, charge, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or
creation of a security interest in or lien on, any Award or any agreement or commitment to do any of the foregoing (each, a “Transfer”)
by any holder thereof in violation of the provisions of the Plan or an Award Agreement will be valid, except with the prior written consent
of the Administrator, which consent may be granted or withheld in the sole discretion of the Administrator. Any purported Transfer of
an Award or any economic benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio
and shall not create any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit
or interest therein transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of
such Shares or other property underlying such Award. Unless otherwise determined by the Administrator in accordance with the provisions
of the immediately preceding sentence, an Option or a Stock Appreciation Right may be exercised, during the lifetime of the Participant,
only by the Participant or, during any period during which the Participant is under a legal Disability, by the Participant’s guardian
or legal representative.
| Section 16. |
Continued Employment or Service. |
Neither
the adoption of the Plan nor the grant of an Award shall confer upon any Eligible Recipient any right to continued employment or service
with the Company or any Affiliate thereof, as the case may be, nor shall it interfere in any way with the right of the Company or any
Affiliate thereof to terminate the employment or service of any of its Eligible Recipients at any time.
| Section 17. |
Effective Date. |
The
Plan was approved by the Board on August 17, 2023, and shall be adopted and become effective on the date that it is approved by the Company’s
stockholders (the “Effective Date”).
| Section 18. |
Electronic Signature. |
Participant’s
electronic signature of an Award Agreement shall have the same validity and effect as a signature affixed by hand.
| Section 19. |
Term of Plan. |
No
Award shall be granted pursuant to the Plan on or after the tenth anniversary of the Effective Date, but Awards theretofore granted may
extend beyond that date.
| Section 20. |
Securities Matters and Regulations. |
(a) Notwithstanding
anything herein to the contrary, the obligation of the Company to sell or deliver Common Stock with respect to any Award granted under
the Plan shall be subject to all Applicable Laws, rules and regulations, including all applicable federal and state securities laws,
and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Administrator. The
Administrator may require, as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to
the terms hereof, that the recipient of such shares make such agreements and representations, and that such certificates bear such legends,
as the Administrator, in its sole discretion, deems necessary or advisable.
(b) Each
Award is subject to the requirement that, if at any time the Administrator determines that the listing, registration or qualification
of Common Stock is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Common Stock,
no such Award shall be granted or payment made or Common Stock issued, in whole or in part, unless listing, registration, qualification,
consent or approval has been effected or obtained free of any conditions not acceptable to the Administrator.
(c) In
the event that the disposition of Common Stock acquired pursuant to the Plan is not covered by a then current registration statement
under the Exchange Act and is not otherwise exempt from such registration, such Common Stock shall be restricted against transfer to
the extent required by the Exchange Act or regulations thereunder, and the Administrator may require a Participant receiving Common Stock
pursuant to the Plan, as a condition precedent to receipt of such Common Stock, to represent to the Company in writing that the Common
Stock acquired by such Participant is acquired for investment only and not with a view to distribution.
| Section 21. |
Section 409A of the Code. |
The
Plan as well as payments and benefits under the Plan are intended to be exempt from, or to the extent subject thereto, to comply with
Section 409A of the Code, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding
anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section
409A of the Code, the Participant shall not be considered to have terminated employment or service with the Company for purposes of the
Plan and no payment shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred
a “separation from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. Any payments
described in the Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not
be treated as deferred compensation unless Applicable Law requires otherwise. Notwithstanding anything to the contrary in the Plan, to
the extent that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates)
are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest
charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on
the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount
to be paid or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A
of the Code. The Company makes no representation that any or all of the payments or benefits described in this Plan will be exempt from
or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment.
The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.
| Section 22. |
Notification of Election Under Section 83(b) of the Code. |
If
any Participant shall, in connection with the acquisition of shares of Common Stock under the Plan, make the election permitted under
Section 83(b) of the Code, such Participant shall notify the Company of such election within ten (10) days after filing notice of the
election with the Internal Revenue Service.
| Section 23. |
No Fractional Shares. |
No
fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Administrator shall determine whether cash,
other Awards, or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights
thereto shall be forfeited or otherwise eliminated.
A
Participant may file with the Administrator a written designation of a beneficiary on such form as may be prescribed by the Administrator
and may, from time to time, amend or revoke such designation. If no designated beneficiary survives the Participant, the executor or
administrator of the Participant’s estate shall be deemed to be the Participant’s beneficiary.
| Section 25. |
Paperless Administration. |
In
the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation,
granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation,
granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.
| Section 26. |
Severability. |
If
any provision of the Plan is held to be invalid or unenforceable, the other provisions of the Plan shall not be affected but shall be
applied as if the invalid or unenforceable provision had not been included in the Plan.
(a) If
the Company is required to prepare an accounting restatement of its financial statements due to the Company’s material noncompliance
(whether one occurrence or a series of occurrences of noncompliance) with any financial reporting requirement under the securities laws
(including if the Company is required to prepare an accounting restatement to correct an error (or a series of errors)) (a “Covered
Accounting Restatement”), and if such Covered Accounting Restatement includes (i) restatements that correct errors that are
material to previously issued financial statements (commonly referred to as “Big R” restatements), and (ii) restatements
that correct errors that are not material to previously issued financial statements, but would result in a material misstatement if (a)
the errors were left uncorrected in the current report, or (b) the error correction was recognized in the current period (commonly referred
to as “little r” restatements), then the Committee may require any Covered Executive to repay (in which event, such Covered
Executive shall, within thirty (30) days of the notice by the Company, repay to the Company) or forfeit (in which case, such Covered
Executive shall immediately forfeit to the Company) to the Company, and each Covered Executive hereby agrees to so repay or forfeit,
that portion of the Incentive Compensation received by such Covered Executive during the period comprised of the Company’s three
(3) completed fiscal years (together with any intermittent stub fiscal year period(s) of less than nine (9) months resulting from Company’s
transition to different fiscal year measurement dates) immediately preceding the date the Company is deemed (as described below) to be
required to prepare a Covered Accounting Restatement (such period, the “Look-Back Period”), that the Committee determines
was in excess of the amount of Incentive Compensation that such Covered Executive would have received during such Look-Back Period, had
such Incentive Compensation been calculated based on the restated amounts, and irrespective of any fault, misconduct or responsibility
of such Covered Executive for the Covered Accounting Restatement. It is specifically understood that, to the extent that the impact of
the Covered Accounting Restatement on the amount of Incentive Compensation received cannot be calculated directly from the information
therein (e.g., if such restatement’s impact on the Company’s stock price is not clear), such excess amount of Incentive Compensation
shall be determined based on a reasonable estimate by the Committee of the effect of the Covered Accounting Restatement on the applicable
financial measure (including the stock price or total shareholder return) based upon which the Incentive Compensation was received. The
amount of the Incentive Compensation to be recouped shall be determined by the Committee in its sole and absolute discretion and calculated
on a pre-tax basis, and the form of such recoupment of Incentive Compensation may be made, in the Committee’s sole and absolute
discretion, through the forfeiture or cancellation of vested or unvested Awards, cash repayment or both. Incentive Compensation shall
be deemed received, either wholly or in part, in the fiscal year during which the financial reporting measure specified in such Incentive
Compensation Award is attained (or with respect to, or based on, the achievement of any financial reporting measure which such Incentive
Compensation was granted, earned or vested, as applicable), even if the payment, vesting or grant of such Incentive Compensation occurs
after the end of such fiscal year. For purposes of this Section 27, the Company is deemed to be required to prepare a Covered Accounting
Restatement on the earlier of (A) the date upon which the Board or an applicable committee thereof, or the officer or officers of the
Company authorized to take such action if Board action is not required, concludes, or reasonably should have concluded, that the Company
is required to prepare a Covered Accounting Restatement; or (B) the date a court, regulator, or other legally authorized body directs
the Company to prepare a Covered Accounting Restatement.
(b) Notwithstanding
any other provisions in this Plan, any Award or any other compensation received by a Participant which is subject to recovery under any
Applicable Laws, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such
Applicable Law, government regulation or stock exchange listing requirement), will be subject to such deductions and clawback as may
be required to be made pursuant to such Applicable Law, government regulation or stock exchange listing requirement (or any policy adopted
by the Company pursuant to any such law, government regulation or stock exchange listing requirement on or following the Effective Date).
| Section 28. |
Governing Law. |
The
Plan shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles of
conflicts of law of such state.
| Section 29. |
Indemnification. |
To
the extent allowable pursuant to Applicable Law, each member of the Board and the Administrator and any officer or other employee to
whom authority to administer any component of the Plan is designated shall be indemnified and held harmless by the Company from any loss,
cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim,
action, suit, or proceeding to which he or she may be a party or in which he or she may be a party or in which he or she may be involved
by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction
of judgment in such action, suit, or proceeding against him or her; provided, however, that he or she gives the Company an opportunity,
at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing
right of indemnification shall not be exclusive of any other rights of indemnification to which such individuals may be entitled pursuant
to the Company’s Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have
to indemnify them or hold them harmless.
| Section 30. |
Titles and Headings, References to Sections of the Code or
Exchange Act. |
The
titles and headings of the sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of
the Plan, rather than such titles or headings, shall control. References to sections of the Code or the Exchange Act shall include any
amendment or successor thereto.
The
obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger,
consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all
of the assets and business of the Company.
| Section 32. |
Relationship to other Benefits. |
No
payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing,
group insurance, welfare, or other benefit plan of the Company or any Affiliate except to the extent otherwise expressly provided in
writing in such other plan or an agreement thereunder.
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-8, of our report dated May 19, 2023, with respect
to the consolidated financial statements of Tharimmune, Inc. (formerly Hillstream Biopharma, Inc.) (Company) as of December 31, 2022
and 2021 and for the years then ended (which report includes an explanatory paragraph relating to the existence of substantial doubt
about the Company’s ability to continue as a going concern), included in the Company’s Annual Report on Form 10-K/A for the
year ended December 31, 2022.
/s/
Mayer Hoffman McCann P.C.
Los
Angeles, California
November
2, 2023
Exhibit
107
Calculation
of Filing Fee Tables
FORM
S-8
(Form
Type)
THARIMMUNE,
INC.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| | |
Security Type | |
Security Class Title | |
Fee Calculation Rule | | |
Amount Registered (1) | | |
Proposed Maximum Offering Price Per Share | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | |
| Fees to Be Paid | |
Equity | |
Common Stock, par value $0.0001 per share | |
| Other | (2) | |
| 3,500,000 | (3) | |
$ | 0.16 | (2) | |
$ | 560,000 | | |
$ | 0.00014760 | | |
$ | 82.66 | |
| Fees Previously Paid | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Total Offering Amounts | | |
| | | |
| | | |
| | | |
$ | 82.66 | |
| | |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| - | |
| | |
Total Fee Offsets (4) | | |
| | | |
| | | |
| | | |
| - | |
| | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 82.66 | |
(1)
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall
also cover any additional shares of common stock, par value $0.0001 per share (“Common Stock”), of Tharimmune, Inc. (the
“Registrant”) that become issuable under the Registrant’s 2023 Omnibus Equity Incentive Plan (the “Plan”),
by reason of any stock dividend, stock split, recapitalization or other similar transaction that increases the number of the outstanding
shares of the Registrant’s common stock. In addition, pursuant to Rule 416(c) under the Securities Act, this Registration Statement
shall also cover an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein.
(2)
Estimated solely for purposes of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act by averaging
the high and low sales prices of the Registrant’s Common Stock reported on The Nasdaq Capital Market on October 30, 2023, which
date is within five business days prior to the filing of this Registration Statement.
(3)
Represents the sum of 2,600,000 shares of Common Stock reserved for issuance under the Plan plus 900,000 shares of Common Stock underlying
outstanding awards granted under the Registrant’s 2017 Stock Incentive Plan (the “2017 Plan”) and 2019 Stock Incentive
Plan (the “2019 Plan” and together with the 2017 Plan, the “Prior Plans”), which if cancelled, forfeited or terminated
for any reason prior to exercise, delivery or becoming vested in full, would otherwise have been returned to the share reserve under
the Prior Plans, but which instead will now be available for future grant under the Plan. No further grants will be made under the Prior
Plans.
(4)
The Registrant does not have any fee offsets.
Tharimmune (NASDAQ:THAR)
Historical Stock Chart
From Apr 2024 to May 2024
Tharimmune (NASDAQ:THAR)
Historical Stock Chart
From May 2023 to May 2024
