As
filed with the Securities and Exchange Commission on July 15, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
DIH
HOLDING US, INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
98-1624542 |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification Number) |
77
Accord Park Drive; Suite D-1,
Norwell, MA 02061
(Address
of principal executive offices, Zip Code)
DIH
Holding US, Inc. Equity Incentive Plan
(Full
title of the plan)
Jason
Chen
Chairman and Chief Executive Officer
DIH Holding US, Inc.
77 Accord Park Drive; Suite D-1,
Norwell, MA 02061
(Name
and address of agent for service)
(617)
871-2101
(Telephone
number, including area code, of agent for service)
Copies
to:
Mitchell
Nussbaum, Esq.
Ronelle
Porter, Esq.
Loeb
& Loeb LLP
345
Park Avenue
New
York, NY 10154
(212)
407-4000 |
|
Joan
Guilfoyle, Esq.
Loeb & Loeb LLP
901 New York Avenue NW
Suite 300 East
Washington,
DC 20001
(202) 618-5000 |
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 to Section 7(a)(2)(B) of the Securities Act. ☐
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration
Statement”) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”),
and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered
to the participants of the DIH Holding US, Inc. Equity Incentive Plan. Such
documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”) either
as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The
following documents filed with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
are incorporated into this Registration Statement by reference:
(1)
The Registrant’s Annual Report on Form 10-K for the fiscal year ended March 31, 2024, filed with the Commission on July 15, 2024;
(2)
The Registrant’s Current Report on Form 8-K filed with the Commission on June 27, 2024;
(3)
The Registrant’s Current Report on Form 8-K filed with the Commission on June 7, 2024;
(4)
The Registrant’s Current Report on Form 8-K filed with the Commission on April 30, 2024;
(5)
The Registrant’s Current Report on Form 8-K filed with the Commission on April 30, 2024;
(6)
The Registrant’s Current Report on Form 8-K filed with the Commission on April 23, 2024;
(7)
The Registrant’s Current Report on Form 8-K filed with the Commission on March 18, 2024;
(8)
The Registrant’s Current Report on Form 8-K filed with the Commission on February 20, 2024;
(9)
All other filings made by the Registrant with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of
the fiscal year covered by the Registrant’s Annual Report referred to in (a) above; and
(10)
The description of the Registrant’s Class A Common Stock as set forth in its Form 8-A filed on January 25, 2022 as updated by Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K/A for the fiscal year ended December 31, 2023.
In
addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof,
but 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 such securities then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such documents. Notwithstanding the foregoing, unless specifically
stated to the contrary in such filing, none of the information that the Registrant discloses under Items 2.02 or 7.01 of any Current
Report on Form 8-K that it may from time to time furnish to the Commission will be incorporated by reference into, or otherwise be included
in or deemed to be a part of, this Registration Statement.
For
purposes of this Registration Statement, any document or any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained
herein or in any other subsequently filed document that also is or is deemed to be incorporated herein by reference modifies or supersedes
such document or such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement. Subject to the foregoing, all information in this Registration Statement
is so qualified in its entirety by the information appearing in the documents incorporated herein by reference.
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 General Corporation Law of the State of Delaware 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 restated certificate of incorporation provides that no director of the Registrant 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 General Corporation Law of the State of Delaware prohibits the elimination or limitation of
liability of directors for breaches of fiduciary duty.
Section
145 of the General Corporation Law of the State of Delaware 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
restated certificate of incorporation provides that 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 restated certificate
of incorporation provides 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, officer, partner, employee or trustee of, or in a similar
capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, 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, and any appeal therefrom, if
the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, 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. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits
or otherwise, he or she will be indemnified by us against all expenses (including attorneys’ fees) actually and reasonably incurred
in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.
We
have entered into indemnification agreements with each of our directors and officers. These indemnification agreements may require us,
among other things, to indemnify our directors and officers for some expenses, including attorneys’ fees, judgments, fines and
settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service as one of our directors
or officers, or any of our subsidiaries or any other company or enterprise to which the person provides services at our request.
We
maintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation 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.
The
following Exhibits are filed as part of this Registration Statement:
*
Filed herewith.
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 therein, 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 therein, 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 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, 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 Norwell, Massachusetts, on July 15, 2024.
| |
DIH
HOLDING US, INC. |
| |
|
|
| |
By: |
/s/
Jason Chen |
| |
Name: |
Jason
Chen |
| |
Title: |
Chairman
and Chief Executive Officer |
POWER
OF ATTORNEY
We,
the undersigned officers and directors of DIH Holding US, Inc. (the “Company”), hereby constitute and appoint Jason Chen
and Lynden Bass, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective
amendments, to this Registration Statement, and any registration statement relating to the offering covered by this Registration Statement
and filed pursuant to Rule 462 under the Securities Act, and to file the same, with exhibits thereto and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may
lawfully so 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/
Jason Chen |
|
Chairman
and Chief Executive Officer |
|
July
15, 2024 |
| Jason
Chen |
|
(principal
executive officer) |
|
|
| |
|
|
|
|
| /s/
Lynden Bass |
|
Chief
Financial Officer |
|
July
15, 2024 |
| Lynden
Bass |
|
(principal
financial and accounting officer) |
|
|
| |
|
|
|
|
| /s/
Dr. Patrick Bruno |
|
Director |
|
July
15, 2024 |
| Dr.
Patrick Bruno |
|
|
|
|
| |
|
|
|
|
| /s/
Max Baucus |
|
Director |
|
July
15, 2024 |
| Max
Baucus |
|
|
|
|
| |
|
|
|
|
| /s/
Cathryn Chen |
|
Director |
|
July
15, 2024 |
| Cathryn
Chen |
|
|
|
|
| |
|
|
|
|
| /s/
F. Samuel Eberts III |
|
Director |
|
July
15, 2024 |
| F.
Samuel Eberts III |
|
|
|
|
Exhibit
5.1
 |
|
345 Park Avenue
New York, NY 10154
|
Direct
Main
Fax |
212.407.4000
212.407.4000
212.407.4000 |
July
15, 2024
DIH Holding US, Inc.
77 Accord Park Drive; Suite D-1
Norwell, MA 02061
Ladies
and Gentlemen:
We
have served as counsel to DIH Holding US, Inc., a Delaware corporation (the “Company”), in connection with the
preparation of the Company’s Registration Statement on Form S-8 (the “Registration Statement”) to be filed with
the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), registering the
issuance of 4,300,000 shares of Class A common stock, par value $0.0001 per share (the “Equity Incentive Plan
Shares”), of the Company issuable pursuant to the DIH Holding US, Inc. Equity Incentive Plan (the “Equity Incentive
Plan”).
We
have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records of the Company and
other certificates and documents of officials of the Company, and others as we have deemed appropriate for purposes of this letter. We
have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to
authentic original documents of all copies submitted to us as conformed and certified or reproduced copies.
Based
upon the foregoing, it is our opinion that the Shares, when issued and delivered pursuant to and in accordance with the terms of the
Equity Incentive Plan, and the awards granted under the Equity Incentive Plan, will be validly issued, fully paid and non-assessable.
We
are furnishing this opinion in connection with the filing of the Registration Statement, and this opinion is not to be relied upon for
any other purpose without our prior written consent. We consent to the reference made to our firm in the Registration Statement and to
the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we are in
the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations promulgated thereunder.
Sincerely,
/s/
Loeb & Loeb LLP
Loeb
& Loeb LLP
Los
Angeles New York Chicago
Nashville Washington, DC San
Francisco Beijing Hong Kong www.loeb.com
For
the United States offices, a limited liability partnership including professional corporations.
For Hong Kong office, a limited liability partnership. |
Exhibit
10.1
DIH
HOLDING US, INC.
EQUITY
INCENTIVE PLAN
Article
I
PURPOSE
The
purpose of this DIH Holding US, Inc. Equity Incentive Plan (the “Plan”) is to benefit DIH Holding US, Inc., a Delaware
corporation (the “Company”) and its stockholders, by assisting the Company and its subsidiaries to attract, retain
and provide incentives to key management employees, directors, and consultants of the Company and its Affiliates, and to align the interests
of such service providers with those of the Company’s stockholders. Accordingly, the Plan provides for the granting of Non-qualified
Stock Options, Incentive Stock Options, Restricted Stock Awards, Restricted Stock Unit Awards, Stock Appreciation Rights, Performance
Stock Awards, Performance Unit Awards, Unrestricted Stock Awards, Distribution Equivalent Rights or any combination of the foregoing.
Article
II
DEFINITIONS
The
following definitions shall be applicable throughout the Plan unless the context otherwise requires:
2.1 “Affiliate”
shall mean (i) any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company
and/or (ii) to the extent provided by the Committee, any person or entity in which the Company has a significant interest. The term “control”
(including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied
to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of such person or entity, whether through the ownership of voting or other securities, by contract or otherwise..
2.2 “Award”
shall mean, individually or collectively, any Option, Restricted Stock Award, Restricted Stock Unit Award, Performance Stock Award, Performance
Unit Award, Stock Appreciation Right, Distribution Equivalent Right or Unrestricted Stock Award.
2.3 “Award
Agreement” shall mean a written agreement between the Company and the Holder with respect to an Award, setting forth the terms
and conditions of the Award, as amended.
2.4 “Board”
shall mean the Board of Directors of the Company.
2.5 “Base
Value” shall have the meaning given to such term in Section 14.2.
2.6 “Cause”
shall mean (i) if the Holder is a party to an employment or service agreement with the Company or an Affiliate which agreement defines
“Cause” (or a similar term), “Cause” shall have the same meaning as provided for in such agreement, or
(ii) for a Holder who is not a party to such an agreement, “Cause” shall mean termination by the Company or an Affiliate
of the employment (or other service relationship) of the Holder by reason of the Holder’s (A) intentional failure to perform reasonably
assigned duties, (B) dishonesty or willful misconduct in the performance of the Holder’s duties, (C) involvement in a transaction
which is materially adverse to the Company or an Affiliate, (D) breach of fiduciary duty involving personal profit, (E) willful violation
of any law, rule, regulation or court order (other than misdemeanor traffic violations and misdemeanors not involving misuse or misappropriation
of money or property), (F) commission of an act of fraud or intentional misappropriation or conversion of any asset or opportunity of
the Company or an Affiliate, or (G) material breach of any provision of the Plan or the Holder’s Award Agreement or any other written
agreement between the Holder and the Company or an Affiliate, in each case as determined in good faith by the Board, the determination
of which shall be final, conclusive and binding on all parties.
2.7 “Change
of Control” shall mean, except as otherwise provided in an Award Agreement, (i) for a Holder who is a party to an employment
or consulting agreement with the Company or an Affiliate which agreement defines “Change of Control” (or a similar term),
“Change of Control” shall have the same meaning as provided for in such agreement, or (ii) for a Holder who is not
a party to such an agreement, “Change of Control” shall mean the satisfaction of any one or more of the following
conditions (and the “Change of Control” shall be deemed to have occurred as of the first day that any one or more of the
following conditions shall have been satisfied):
(a) Any
person (as such term is used in paragraphs 13(d) and 14(d)(2) of the Exchange Act, hereinafter in this definition, “Person”),
other than the Company or an Affiliate or an employee benefit plan of the Company or an Affiliate, becomes the beneficial owner (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%)
of the combined voting power of the Company’s then outstanding securities;
(b) The
closing of a merger, consolidation or other business combination (a “Business Combination”) other than a Business
Combination in which holders of the Shares immediately prior to the Business Combination have substantially the same proportionate ownership
of the common stock or ordinary shares, as applicable, of the surviving corporation immediately after the Business Combination as immediately
before;
(c) The
closing of an agreement for the sale or disposition of all or substantially all of the Company’s assets to any entity that is not
an Affiliate;
(d) The
approval by the holders of shares of Shares of a plan of complete liquidation of the Company, other than a merger of the Company into
any subsidiary or a liquidation as a result of which persons who were stockholders of the Company immediately prior to such liquidation
have substantially the same proportionate ownership of shares of common stock or ordinary shares, as applicable, of the surviving corporation
immediately after such liquidation as immediately before; or
(e) Within
any twenty-four (24) month period, the Incumbent Directors shall cease to constitute at least a majority of the Board or the board of
directors of any successor to the Company; provided, however, that any director elected to the Board, or nominated for
election, by a majority of the Incumbent Directors then still in office, shall be deemed to be an Incumbent Director for purposes of
this paragraph (e), but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of an individual, entity or “group” other than the Board (including, but not limited
to, any such assumption that results from paragraphs (a), (b), (c), or (d) of this definition).
Notwithstanding
the foregoing, solely for the purpose of determining the timing of any payments pursuant to any Award constituting a “deferral
of compensation” subject to Code Section 409A, a Change of Control shall be limited to a “change in the ownership of the
Company,” a “change in the effective control of the Company,” or a “change in the ownership of a substantial
portion of the assets of the Company” as such terms are defined in Section 1.409A-3(i)(5) of the U.S. Treasury Regulations.
2.8 “Code”
shall mean the Internal Revenue Code of 1986, as amended, and any successor thereto. Reference in the Plan to any section of the Code
shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions
to such section, regulations or guidance.
2.9 “Committee”
shall mean a committee comprised of two (2) or more members of the Board who are selected by the Board as provided in Section 4.1.
2.10
“Company” shall have the meaning given to such term in the introductory paragraph, including any successor thereto.
2.11 “Consultant”
shall mean any person, including an advisor, who is (i) engaged by the Company or an Affiliate to render consulting or advisory services
and is compensated for such services, or (ii) serving as a member of the board of directors of an Affiliate and is compensated for such
services. However, service solely as a Director, or payment of a fee for such service, will not cause a Director to be considered a “Consultant”
for purposes of the Plan. Notwithstanding the foregoing, a person is treated as a Consultant under this Plan only if a Form S-8 Registration
Statement under the Securities Act is available to register either the offer or the sale of the Company’s securities to such person.
2.12 “Director”
shall mean a member of the Board or a member of the board of directors of an Affiliate, in either case, who is not an Employee.
2.13 “Distribution
Equivalent Right” shall mean an Award granted under Article XIII of the Plan which entitles the Holder to receive bookkeeping
credits, cash payments and/or Share distributions equal in amount to the distributions that would have been made to the Holder had the
Holder held a specified number of Shares during the period the Holder held the Distribution Equivalent Right.
2.14 “Distribution
Equivalent Right Award Agreement” shall mean a written agreement between the Company and a Holder with respect to a Distribution
Equivalent Right Award.
2.15
“Effective Date” shall mean February 7, 2024.
2.16 “Employee”
shall mean any employee, including any officer, of the Company or an Affiliate.
2.17 “Exchange
Act” shall mean the United States of America Securities Exchange Act of 1934, as amended.
2.18 “Fair
Market Value” shall mean, as of any date, the value of a share of Stock determined as follows:
(a) If
the Stock is listed on any established stock exchange or a national market system, the per share closing sales price for shares of Stock
(or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in The
Wall Street Journal or such other source as the Committee deems reliable;
(b) If
the Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a share
of Stock will be the mean between the high bid and low asked per share prices for the Stock on the day of determination, as reported
in The Wall Street Journal or such other source as the Committee deems reliable; or
(c) In
the absence of an established market for the Stock, the Fair Market Value will be determined in good faith by the Committee (acting on
the advice of an Independent Third Party, should the Committee elect in its sole discretion to utilize an Independent Third Party for
this purpose).
(d) Notwithstanding
the foregoing, the determination of Fair Market Value in all cases shall be in accordance with the requirements set forth under Section
409A of the Code to the extent necessary for an Award to comply with, or be exempt from, Section 409A of the Code.
2.19 “Family
Member” of an individual shall mean any child, stepchild, grandchild, parent, stepparent, spouse, former spouse, sibling, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive relationships,
any person sharing the Holder’s household (other than a tenant or employee of the Holder), a trust in which such persons have more
than fifty percent (50%) of the beneficial interest, a foundation in which such persons (or the Holder) control the management of assets,
and any other entity in which such persons (or the Holder) own more than fifty percent (50%) of the voting interests.
2.20 “Holder”
shall mean an Employee, Director or Consultant who has been granted an Award or any such individual’s beneficiary, estate or representative,
who has acquired such Award in accordance with the terms of the Plan, as applicable.
2.21
“Incentive Stock Option” shall mean an Option which is designated by the Committee as an “incentive stock option”
and conforms to the applicable provisions of Section 422 of the Code.
2.22 “Incumbent
Director” shall mean, with respect to any period of time specified under the Plan for purposes of determining whether or not
a Change of Control has occurred, the individuals who were members of the Board at the beginning of such period.
2.23 “Independent
Third Party” means an individual or entity independent of the Company having experience in providing investment banking or
similar appraisal or valuation services and with expertise generally in the valuation of securities or other property for purposes of
this Plan. The Committee may utilize one or more Independent Third Parties.
2.24 “Non-qualified
Stock Option” shall mean an Option which is not designated by the Committee as an Incentive Stock Option.
2.25 “Option”
shall mean an Award granted under Article VII of the Plan of an option to purchase Shares and shall include both Incentive Stock Options
and Non-qualified Stock Options.
2.26 “Option
Agreement” shall mean a written agreement between the Company and a Holder with respect to an Option.
2.27 “Performance
Criteria” shall mean the criteria selected by the Committee for purposes of establishing the Performance Goal(s) for a Holder
for a Performance Period.
2.28 “Performance
Goals” shall mean, for a Performance Period, the written goal or goals established by the Committee for the Performance Period
based upon the Performance Criteria, which may be related to the performance of the Holder, the Company or an Affiliate.
2.29 “Performance
Period” shall mean one or more periods of time, which may be of varying and overlapping durations, selected by the Committee,
over which the attainment of the Performance Goals shall be measured for purposes of determining a Holder’s right to, and the payment
of, a Performance Stock Award or a Performance Unit Award.
2.30 “Performance
Stock Award” or “Performance Stock” shall mean an Award granted under Article XII of the Plan under which,
upon the satisfaction of predetermined Performance Goals, Shares are paid to the Holder.
2.31 “Performance
Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to a Performance Stock Award.
2.32
“Performance Unit Award” or “Performance Unit” shall mean an Award granted under Article XI of
the Plan under which, upon the satisfaction of predetermined Performance Goals, a cash payment shall be made to the Holder, based on
the number of Units awarded to the Holder.
2.33 “Performance
Unit Agreement” shall mean a written agreement between the Company and a Holder with respect to a Performance Unit Award.
2.34 “Plan”
shall mean this DIH Holding US, Inc. Equity Incentive Plan, as amended from time to time, together with each of the Award Agreements
utilized hereunder.
2.35 “Restricted
Stock Award” and “Restricted Stock” shall mean an Award granted under Article VIII of the Plan of Shares,
the transferability of which by the Holder is subject to Restrictions.
2.36 “Restricted
Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to a Restricted Stock Award.
2.37 “Restricted
Stock Unit Award” and “RSUs” shall refer to an Award granted under Article X of the Plan under which, upon
the satisfaction of predetermined individual service-related vesting requirements, a payment in cash or Shares shall be made to the Holder,
based on the number of Units awarded to the Holder.
2.38 “Restricted
Stock Unit Agreement” shall mean a written agreement between the Company and a Holder with respect to a Restricted Stock Award.
2.39
“Restriction Period” shall mean the period of time for which Shares subject to a Restricted Stock Award shall be subject
to Restrictions, as set forth in the applicable Restricted Stock Agreement.
2.40 “Restrictions”
shall mean the forfeiture, transfer and/or other restrictions applicable to Shares awarded to an Employee, Director or Consultant under
the Plan pursuant to a Restricted Stock Award and set forth in a Restricted Stock Agreement.
2.41 “Rule
16b-3” shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act, as such may be amended
from time to time, and any successor rule, regulation or statute fulfilling the same or a substantially similar function.
2.42 “Shares”
or “Stock” shall mean the common stock of the Company, par value $0.001 per share.
2.43 “Stock
Appreciation Right” or “SAR” shall mean an Award granted under Article XIV of the Plan of a right, granted
alone or in connection with a related Option, to receive a payment equal to the increase in value of a specified number of Shares between
the date of Award and the date of exercise.
2.44 “Stock
Appreciation Right Agreement” shall mean a written agreement between the Company and a Holder with respect to a Stock Appreciation
Right.
2.45 “Tandem
Stock Appreciation Right” shall mean a Stock Appreciation Right granted in connection with a related Option, the exercise of
some or all of which results in termination of the entitlement to purchase some or all of the Shares under the related Option, all as
set forth in Article XIV.
2.46
“Ten Percent Stockholder” shall mean an Employee who, at the time an Option is granted to him or her, owns shares
possessing more than ten percent (10%) of the total combined voting power of all classes of shares of the Company or of any parent corporation
or subsidiary corporation thereof (both as defined in Section 424 of the Code), within the meaning of Section 422(b)(6) of the Code.
2.47 “Termination
of Service” shall mean a termination of a Holder’s employment with, or status as a Director or Consultant of, the Company
or an Affiliate, as applicable, for any reason, including, without limitation, Total and Permanent Disability or death, except as provided
in Section 6.4. In the event Termination of Service shall constitute a payment event with respect to any Award subject to Code Section
409A, Termination of Service shall only be deemed to occur upon a “separation from service” as such term is defined under
Code Section 409A and applicable authorities.
2.48 “Total
and Permanent Disability” of an individual shall mean the inability of such individual to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve (12) months, within the meaning of Section 22(e)(3)
of the Code.
2.49 “Unit”
shall mean a bookkeeping unit, which represents such monetary amount as shall be designated by the Committee in each Performance Unit
Agreement, or represents one Share for purposes of each Restricted Stock Unit Award.
2.50 “Unrestricted
Stock Award” shall mean an Award granted under Article IX of the Plan of Shares which are not subject to Restrictions.
2.51 “Unrestricted
Stock Agreement” shall mean a written agreement between the Company and a Holder with respect to an Unrestricted Stock Award.
Article
III
EFFECTIVE
DATE OF PLAN
The
Plan shall be effective as of the Effective Date, provided that the Plan is approved by the stockholders of the Company within twelve
(12) months of such date.
Article
IV
ADMINISTRATION
4.1
Composition of Committee. The Plan shall be administered by the Committee, which shall be appointed by the Board. If necessary,
in the Board’s discretion, to comply with Rule 16b-3 under the Exchange Act or relevant securities exchange or inter-dealer quotation
service, the Committee shall consist solely of two (2) or more Directors who are each (i) “non-employee directors” within
the meaning of Rule 16b-3 and (ii) “independent” for purposes of any applicable listing requirements;. If a member of the
Committee shall be eligible to receive an Award under the Plan, such Committee member shall have no authority hereunder with respect
to his or her own Award.
4.2
Powers. Subject to the other provisions of the Plan, the Committee shall have the sole authority, in its discretion, to make all
determinations under the Plan, including but not limited to (i) determining which Employees, Directors or Consultants shall receive an
Award, (ii) the time or times when an Award shall be made (the date of grant of an Award shall be the date on which the Award is awarded
by the Committee), (iii) what type of Award shall be granted, (iv) the term of an Award, (v) the date or dates on which an Award vests,
(vi) the form of any payment to be made pursuant to an Award, (vii) the terms and conditions of an Award (including the forfeiture of
the Award, and/or any financial gain, if the Holder of the Award violates any applicable restrictive covenant thereof), (viii) the Restrictions
under a Restricted Stock Award, (ix) the number of Shares which may be issued under an Award, (x) Performance Goals applicable to any
Award and certification of the achievement of such goals, and (xi) the waiver of any Restrictions or Performance Goals, subject in all
cases to compliance with applicable laws. In making such determinations the Committee may take into account the nature of the services
rendered by the respective Employees, Directors and Consultants, their present and potential contribution to the Company’s (or
the Affiliate’s) success and such other factors as the Committee in its discretion may deem relevant.
4.3
Additional Powers. The Committee shall have such additional powers as are delegated to it under the other provisions of the Plan.
Subject to the express provisions of the Plan, the Committee is authorized to construe the Plan and the respective Award Agreements executed
hereunder, to prescribe such rules and regulations relating to the Plan as it may deem advisable to carry out the intent of the Plan,
to determine the terms, restrictions and provisions of each Award and to make all other determinations necessary or advisable for administering
the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in any Award Agreement in the manner
and to the extent the Committee shall deem necessary, appropriate or expedient to carry it into effect. The determinations of the Committee
on the matters referred to in this Article IV shall be conclusive and binding on the Company and all Holders.
4.4
Committee Action. Subject to compliance with all applicable laws, action by the Committee shall require the consent of
a majority of the members of the Committee, expressed either orally at a meeting of the Committee or in writing in the absence of a meeting.
No member of the Committee shall have any liability for any good faith action, inaction or determination in connection with the Plan.
Article
V
SHARES
SUBJECT TO PLAN AND LIMITATIONS THEREON
5.1 Authorized
Shares. The Committee may from time to time grant Awards to one or more Employees, Directors and/or Consultants determined by it
to be eligible for participation in the Plan in accordance with the provisions of Article VI. Subject to any adjustments as necessary
pursuant to Article XV, the aggregate number of shares of Stock reserved and available for grant and issuance under the Plan is 4,300,000
In the event that (i) any Option or other Award granted hereunder is exercised through the tendering of Stock (either actually or by
attestation) or by the withholding of Stock by the Company, or (ii) tax or deduction liabilities arising from such Option or other Award
are satisfied by the tendering of Stock (either actually or by attestation) or by the withholding of Stock by the Company, then in each
such case the shares of Stock so tendered or withheld shall not be added back to the shares of Stock available for grant under the Plan.
Only Shares underlying Awards under this Plan that are forfeited, canceled, or expire unexercised, shall be available again for issuance
under the Plan.
5.2 Types
of Shares. The Shares to be issued pursuant to the grant or exercise of an Award may consist of authorized but unissued Shares, Shares
purchased on the open market or Shares previously issued and outstanding and reacquired by the Company.
5.3 Aggregate
Incentive Stock Option Limit. Notwithstanding anything to the contrary in Section 5.1, and subject to Article XV, the aggregate maximum
number of shares of Stock that may be issued pursuant to the exercise of Incentive Stock Options is 4,300,000 shares.
Article
VI
ELIGIBILITY
AND TERMINATION OF SERVICE
6.1
Eligibility. Awards made under the Plan may be granted solely to individuals who, at the time of grant, are Employees, Directors
or Consultants. An Award may be granted on more than one occasion to the same Employee, Director or Consultant, and, subject to the limitations
set forth in the Plan, such Award may include, a Non-qualified Stock Option, a Restricted Stock Award, a Restricted Stock Unit Award,
an Unrestricted Stock Award, a Distribution Equivalent Right Award, a Performance Stock Award, a Performance Unit Award, a Stock Appreciation
Right, a Tandem Stock Appreciation Right, or any combination thereof, and solely for Employees, an Incentive Stock Option.
6.2
Termination of Service. Except to the extent inconsistent with the terms of the applicable Award Agreement and/or the provisions
of Section 6.3 or 6.4, the following terms and conditions shall apply with respect to a Holder’s Termination of Service with the
Company or an Affiliate, as applicable:
(a) The
Holder’s rights, if any, to exercise any then exercisable Options and/or Stock Appreciation Rights shall terminate:
(i) If
such termination is for a reason other than the Holder’s Total and Permanent Disability or death, ninety (90) days after the date
of such Termination of Service;
(ii) If
such termination is on account of the Holder’s Total and Permanent Disability, one (1) year after the date of such Termination
of Service; or
(iii) If
such termination is on account of the Holder’s death, one (1) year after the date of the Holder’s death.
Upon
such applicable date the Holder (and such Holder’s estate, designated beneficiary or other legal representative) shall forfeit
any rights or interests in or with respect to any such Options and Stock Appreciation Rights. Notwithstanding the foregoing, the Committee,
in its sole discretion, may provide for a different time period in the Award Agreement, or may extend the time period, following a Termination
of Service, during which the Holder has the right to exercise any vested Non-qualified Stock Option or Stock Appreciation Right, which
time period may not extend beyond the expiration date of the Award term.
(b) In
the event of a Holder’s Termination of Service for any reason prior to the actual or deemed satisfaction and/or lapse of the Restrictions,
vesting requirements, terms and conditions applicable to a Restricted Stock Award and/or Restricted Stock Unit Award, such Restricted
Stock and/or RSUs shall immediately be canceled, and the Holder (and such Holder’s estate, designated beneficiary or other legal
representative) shall forfeit any rights or interests in and with respect to any such Restricted Stock and/or RSUs.
6.3 Special
Termination Rule. Except to the extent inconsistent with the terms of the applicable Award Agreement, and
notwithstanding anything to the contrary contained in this Article VI, if a Holder’s employment with, or status as a Director
of, the Company or an Affiliate shall terminate, and if, within ninety (90) days of such termination, such Holder shall become a
Consultant, such Holder’s rights with respect to any Award or portion thereof granted thereto prior to the date of such
termination may be preserved, if and to the extent determined by the Committee in its sole discretion, as if such Holder had been a
Consultant for the entire period during which such Award or portion thereof had been outstanding. Should the Committee effect such
determination with respect to such Holder, for all purposes of the Plan, such Holder shall not be treated as if his or her
employment or Director status had terminated until such time as his or her Consultant status shall terminate, in which case his or
her Award, as it may have been reduced in connection with the Holder’s becoming a Consultant, shall be treated pursuant to the
provisions of Section 6.2, provided, however, that any such Award which is intended to be an Incentive Stock Option
shall, upon the Holder’s no longer being an Employee, automatically convert to a Non-qualified Stock Option. Should a
Holder’s status as a Consultant terminate, and if, within ninety (90) days of such termination, such Holder shall become an
Employee or a Director, such Holder’s rights with respect to any Award or portion thereof granted thereto prior to the date of
such termination may be preserved, if and to the extent determined by the Committee in its sole discretion, as if such Holder had
been an Employee or a Director, as applicable, for the entire period during which such Award or portion thereof had been
outstanding, and, should the Committee effect such determination with respect to such Holder, for all purposes of the Plan, such
Holder shall not be treated as if his or her Consultant status had terminated until such time as his or her employment with the
Company or an Affiliate, or his or her Director status, as applicable, shall terminate, in which case his or her Award shall be
treated pursuant to the provisions of Section 6.2.
6.4
Termination of Service for Cause. Notwithstanding anything in this Article VI or elsewhere in the Plan to the contrary, and unless
a Holder’s Award Agreement specifically provides otherwise, in the event of a Holder’s Termination of Service for Cause,
all of such Holder’s then outstanding Awards shall expire immediately and be forfeited in their entirety upon such Termination
of Service.
Article
VII
OPTIONS
7.1 Option
Period. The term of each Option shall be as specified in the Option Agreement; provided, however, that except as set
forth in Section 7.3, no Option shall be exercisable after the expiration of ten (10) years from the date of its grant. If the Option
would expire at a time when the exercise of the Option would violate applicable securities laws, the expiration date applicable to the
Option will be automatically extended to a date that is 30 calendar days following the date such exercise would no longer violate applicable
securities laws (so long as such extension shall not violate Section 409A of the Code); provided, that in no event shall such expiration
date be extended beyond the expiration of the option period.
7.2 Limitations
on Exercise of Option. An Option shall be exercisable in whole or in such installments and at such times as specified in the Option
Agreement
7.3 Special
Limitations on Incentive Stock Options. To the extent that the aggregate Fair Market Value (determined at the time the respective
Incentive Stock Option is granted) of Shares with respect to which Incentive Stock Options are exercisable for the first time by an individual
during any calendar year under all plans of the Company and any parent corporation or subsidiary corporation thereof (both as defined
in Section 424 of the Code) which provide for the grant of Incentive Stock Options exceeds One Hundred Thousand Dollars ($100,000) (or
such other individual limit as may be in effect under the Code on the date of grant), the portion of such Incentive Stock Options that
exceeds such threshold shall be treated as Non-qualified Stock Options. The Committee shall determine, in accordance with applicable
provisions of the Code, Treasury Regulations and other administrative pronouncements, which of a Holder’s Options, which were intended
by the Committee to be Incentive Stock Options when granted to the Holder, will not constitute Incentive Stock Options because of such
limitation, and shall notify the Holder of such determination as soon as practicable after such determination. No Incentive Stock Option
shall be granted to an Employee if, at the time the Incentive Stock Option is granted, such Employee is a Ten Percent Stockholder, unless
(i) at the time such Incentive Stock Option is granted the Option price is at least one hundred ten percent (110%) of the Fair Market
Value of the Shares subject to the Incentive Stock Option, and (ii) such Incentive Stock Option by its terms is not exercisable after
the expiration of five (5) years from the date of grant. No Incentive Stock Option shall be granted more than ten (10) years from the
earlier of the Effective Date or date on which the Plan is approved by the Company’s stockholders. The designation by the Committee
of an Option as an Incentive Stock Option shall not guarantee the Holder that the Option will satisfy the applicable requirements for
“incentive stock option” status under Section 422 of the Code.
7.4 Option
Agreement. Each Option shall be evidenced by an Option Agreement in such form and containing such provisions not inconsistent with
the other provisions of the Plan as the Committee from time to time shall approve, including, but not limited to, provisions intended
to qualify an Option as an Incentive Stock Option. An Option Agreement may provide for the payment of the Option price, in whole or in
part, by the delivery of a number of Shares (plus cash if necessary) that have been owned by the Holder for at least six (6) months and
having a Fair Market Value equal to such Option price, or such other forms or methods as the Committee may determine from time to time,
in each case, subject to such rules and regulations as may be adopted by the Committee. Each Option Agreement shall, solely to the extent
inconsistent with the provisions of Sections 6.2, 6.3, and 6.4, as applicable, specify the effect of Termination of Service on the exercisability
of the Option. Moreover, without limiting the generality of the foregoing, a Non-qualified Stock Option Agreement may provide for a “cashless
exercise” of the Option, in whole or in part, by (a) establishing procedures whereby the Holder, by a properly-executed written
notice, directs (i) an immediate market sale or margin loan as to all or a part of Shares to which he is entitled to receive upon exercise
of the Option, pursuant to an extension of credit by the Company to the Holder of the Option price, (ii) the delivery of the Shares from
the Company directly to a brokerage firm and (iii) the delivery of the Option price from sale or margin loan proceeds from the brokerage
firm directly to the Company, or (b) reducing the number of Shares to be issued upon exercise of the Option by the number of such Shares
having an aggregate Fair Market Value equal to the Option price (or portion thereof to be so paid) as of the date of the Option’s
exercise. An Option Agreement may also include provisions relating to: (i) subject to the provisions hereof, accelerated vesting of Options,
including but not limited to, upon the occurrence of a Change of Control, (ii) tax matters (including provisions covering any applicable
Employee wage withholding requirements) and (iii) any other matters not inconsistent with the terms and provisions of the Plan that the
Committee shall in its sole discretion determine. The terms and conditions of the respective Option Agreements need not be identical.
7.5
Option Price and Payment. The price at which a Share may be purchased upon exercise of an Option shall be determined by the Committee;
provided, however, that such Option price (i) shall not be less than the Fair Market Value of a Share on the date such
Option is granted (or 110% of Fair Market Value for an Incentive Stock Option held by Ten Percent Stockholder, as provided in Section
7.3), and (ii) shall be subject to adjustment as provided in Article XV. The Option or portion thereof may be exercised by delivery of
an irrevocable notice of exercise to the Company. The Option price for the Option or portion thereof shall be paid in full in the manner
prescribed by the Committee as set forth in the Plan and the applicable Option Agreement, which manner, with the consent of the Committee,
may include the withholding of Shares otherwise issuable in connection with the exercise of the Option. Separate share certificates shall
be issued by the Company for those Shares acquired pursuant to the exercise of an Incentive Stock Option and for those Shares acquired
pursuant to the exercise of a Non-qualified Stock Option.
7.6 Stockholder
Rights and Privileges. The Holder of an Option shall be entitled to all the privileges and rights of a stockholder of
the Company solely with respect to such Shares as have been purchased under the Option and for which share certificates have been
registered in the Holder’s name.
7.7
Options and Rights in Substitution for Stock or Options Granted by Other Corporations. Options may be granted under the
Plan from time to time in substitution for stock options held by individuals employed by entities who become Employees, Directors or
Consultants as a result of a merger or consolidation of the employing entity with the Company or any Affiliate, or the acquisition by
the Company or an Affiliate of the assets of the employing entity, or the acquisition by the Company or an Affiliate of stock or shares
of the employing entity with the result that such employing entity becomes an Affiliate. Any substitute Awards granted under this Plan
shall not reduce the number of Shares authorized for grant under the Plan.
7.8
Prohibition Against Repricing. Except to the extent (i) approved in advance by holders of a majority of the shares of the
Company entitled to vote generally in the election of directors, or (ii) as a result of any Change of Control or any adjustment as provided
in Article XV, the Committee shall not have the power or authority to reduce, whether through amendment or otherwise, the exercise price
under any outstanding Option or Stock Appreciation Right, or to grant any new Award or make any payment of cash in substitution for or
upon the cancellation of Options and/or Stock Appreciation Rights previously granted.
Article
VIII
RESTRICTED
STOCK AWARDS
8.1 Award.
A Restricted Stock Award shall constitute an Award of Shares to the Holder as of the date of the Award which are subject to a
“substantial risk of forfeiture” as defined under Section 83 of the Code during the specified Restriction Period. At the
time a Restricted Stock Award is made, the Committee shall establish the Restriction Period applicable to such Award. Each
Restricted Stock Award may have a different Restriction Period, in the discretion of the Committee. The Restriction Period
applicable to a particular Restricted Stock Award shall not be changed except as permitted by Section 8.2.
8.2
Terms and Conditions. At the time any Award is made under this Article VIII, the Company and the Holder shall enter into a Restricted
Stock Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to be appropriate.
The Company shall cause the Shares to be issued in the name of Holder, either by book-entry registration or issuance of one or more stock
certificates evidencing the Shares, which Shares or certificates shall be held by the Company or the stock transfer agent or brokerage
service selected by the Company to provide services for the Plan. The Shares shall be restricted from transfer and shall be subject to
an appropriate stop-transfer order, and if any certificate is issued, such certificate shall bear an appropriate legend referring to
the restrictions applicable to the Shares. After any Shares vest, the Company shall deliver the vested Shares, in book-entry or certificated
form in the Company’s sole discretion, registered in the name of Holder or his or her legal representatives, beneficiaries or heirs,
as the case may be, less any Shares withheld to pay withholding taxes. If provided for under the Restricted Stock Agreement, the Holder
shall have the right to vote Shares subject thereto and to enjoy all other stockholder rights, including the entitlement to receive dividends
on the Shares during the Restriction Period. At the time of such Award, the Committee may, in its sole discretion, prescribe additional
terms and conditions or restrictions relating to Restricted Stock Awards, including, but not limited to, rules pertaining to the effect
of Termination of Service prior to expiration of the Restriction Period. Such additional terms, conditions or restrictions shall, to
the extent inconsistent with the provisions of Sections 6.2, 6.3 and 6.4, as applicable, be set forth in a Restricted Stock Agreement
made in conjunction with the Award. Such Restricted Stock Agreement may also include provisions relating to: (i) subject to the provisions
hereof, accelerated vesting of Awards, including but not limited to accelerated vesting upon the occurrence of a Change of Control, (ii)
tax matters (including provisions covering any applicable Employee wage withholding requirements) and (iii) any other matters not inconsistent
with the terms and provisions of the Plan that the Committee shall in its sole discretion determine. The terms and conditions of the
respective Restricted Stock Agreements need not be identical. All Shares delivered to a Holder as part of a Restricted Stock Award shall
be delivered and reported by the Company or the Affiliate, as applicable, to the Holder at the time of vesting.
8.3
Payment for Restricted Stock. The Committee shall determine the amount and form of any payment from a Holder for Shares received
pursuant to a Restricted Stock Award, if any, provided that in the absence of such a determination, a Holder shall not be required to
make any payment for Shares received pursuant to a Restricted Stock Award, except to the extent otherwise required by law.
Article
IX
UNRESTRICTED
STOCK AWARDS
9.1
Award. Shares may be awarded (or sold) to Employees, Directors or Consultants under the Plan which are not subject to Restrictions
of any kind, in consideration for past services rendered thereby to the Company or an Affiliate or for other valid consideration.
9.2
Terms and Conditions. At the time any Award is made under this Article IX, the Company and the Holder shall enter into an Unrestricted
Stock Agreement setting forth each of the matters contemplated hereby and such other matters as the Committee may determine to be appropriate.
9.3 Payment
for Unrestricted Stock. The Committee shall determine the amount and form of any payment from a Holder for Shares
received pursuant to an Unrestricted Stock Award, if any, provided that in the absence of such a determination, a Holder shall not
be required to make any payment for Shares received pursuant to an Unrestricted Stock Award, except to the extent otherwise required
by law.
Article
X
RESTRICTED
STOCK UNIT AWARDS
10.1
Award. A Restricted Stock Unit Award shall constitute a promise to grant Shares (or cash equal to the Fair Market Value of Shares)
to the Holder at the end of a specified vesting schedule. At the time a Restricted Stock Unit Award is made, the Committee shall establish
the vesting schedule applicable to such Award. Each Restricted Stock Unit Award may have a different vesting schedule, in the discretion
of the Committee. A Restricted Stock Unit shall not constitute an equity interest in the Company and shall not entitle the Holder to
voting rights, dividends or any other rights associated with ownership of Shares prior to the time the Holder shall receive a distribution
of Shares pursuant to Section 10.3.
10.2
Terms and Conditions. At the time any Award is made under this Article X, the Company and the Holder shall enter into a Restricted
Stock Unit Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine to
be appropriate. The Restricted Stock Unit Agreement shall set forth the individual service-based vesting requirement which the Holder
would be required to satisfy before the Holder would become entitled to distribution pursuant to Section 10.3 and the number of Units
awarded to the Holder. Such conditions shall be sufficient to constitute a “substantial risk of forfeiture” as such term
is defined under Section 409A of the Code. At the time of such Award, the Committee may, in its sole discretion, prescribe additional
terms and conditions or restrictions relating to Restricted Stock Unit Awards in the Restricted Stock Unit Agreement, including, but
not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the applicable vesting period. The terms
and conditions of the respective Restricted Stock Unit Agreements need not be identical.
10.3
Distributions of Shares. The Holder of a Restricted Stock Unit shall be entitled to receive Shares or a cash payment equal
to the Fair Market Value of a Share, or one Share, as determined in the sole discretion of the Committee and as set forth in the Restricted
Stock Unit Agreement, for each Restricted Stock Unit subject to such Restricted Stock Unit Award, if the Holder satisfies the applicable
vesting requirement. Such distribution shall be made no later than by the fifteenth (15th) day of the third (3rd)
calendar month next following the end of the calendar year in which the Restricted Stock Unit first becomes vested (i.e., no longer subject
to a “substantial risk of forfeiture”).
Article
XI
PERFORMANCE
UNIT AWARDS
11.1
Award. A Performance Unit Award shall constitute an Award under which, upon the satisfaction of predetermined individual
and/or Company (and/or Affiliate) Performance Goals based on selected Performance Criteria, a cash payment shall be made to the Holder,
based on the number of Units awarded to the Holder. At the time a Performance Unit Award is made, the Committee shall establish the Performance
Period and applicable Performance Goals. Each Performance Unit Award may have different Performance Goals, in the discretion of the Committee.
A Performance Unit Award shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends
or any other rights associated with ownership of Shares.
11.2
Terms and Conditions. At the time any Award is made under this Article XI, the Company and the Holder shall enter into
a Performance Unit Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine
to be appropriate. The Committee shall set forth in the applicable Performance Unit Agreement the Performance Period, Performance Criteria
and Performance Goals which the Holder and/or the Company would be required to satisfy before the Holder would become entitled to payment
pursuant to Section 11.3, the number of Units awarded to the Holder and the dollar value or formula assigned to each such Unit. Such
payment shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code. At the time of such Award,
the Committee may, in its sole discretion, prescribe additional terms and conditions or restrictions relating to Performance Unit Awards,
including, but not limited to, rules pertaining to the effect of Termination of Service prior to expiration of the applicable performance
period. The terms and conditions of the respective Performance Unit Agreements need not be identical.
11.3
Payments. The Holder of a Performance Unit shall be entitled to receive a cash payment equal to the dollar value assigned
to such Unit under the applicable Performance Unit Agreement if the Holder and/or the Company satisfy (or partially satisfy, if applicable
under the applicable Performance Unit Agreement) the Performance Goals set forth in such Performance Unit Agreement. All payments shall
be made no later than by the fifteenth (15th) day of the third (3rd) calendar month next following the end of the
Company’s fiscal year to which such performance goals and objectives relate.
Article
XII
PERFORMANCE
STOCK AWARDS
12.1
Award. A Performance Stock Award shall constitute a promise to grant Shares (or cash equal to the Fair Market Value of
Shares) to the Holder at the end of a specified Performance Period subject to achievement of specified Performance Goals. At the time
a Performance Stock Award is made, the Committee shall establish the Performance Period and applicable Performance Goals based on selected
Performance Criteria. Each Performance Stock Award may have different Performance Goals, in the discretion of the Committee. A Performance
Stock Award shall not constitute an equity interest in the Company and shall not entitle the Holder to voting rights, dividends or any
other rights associated with ownership of Shares unless and until the Holder shall receive a distribution of Shares pursuant to Section
12.3.
12.2
Terms and Conditions. At the time any Award is made under this Article XII, the Company and the Holder shall enter into
a Performance Stock Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine
to be appropriate. The Committee shall set forth in the applicable Performance Stock Agreement the Performance Period, selected Performance
Criteria and Performance Goals which the Holder and/or the Company would be required to satisfy before the Holder would become entitled
to the receipt of Shares pursuant to such Holder’s Performance Stock Award and the number of Shares subject to such Performance
Stock Award. Such distribution shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code. If
such Performance Goals are achieved, the distribution of Shares (or the payment of cash, as determined in the sole discretion of the
Committee), shall be made in accordance with Section 12.3, below. At the time of such Award, the Committee may, in its sole discretion,
prescribe additional terms and conditions or restrictions relating to Performance Stock Awards, including, but not limited to, rules
pertaining to the effect of the Holder’s Termination of Service prior to the expiration of the applicable performance period. The
terms and conditions of the respective Performance Stock Agreements need not be identical.
12.3
Distributions of Shares. The Holder of a Performance Stock Award shall be entitled to receive a cash payment equal to the
Fair Market Value of a Share, or one Share, as determined in the sole discretion of the Committee, for each Performance Stock Award subject
to such Performance Stock Agreement, if the Holder satisfies the applicable vesting requirement. Such distribution shall be made no later
than by the fifteenth (15th) day of the third (3rd) calendar month next following the end of the Company’s
fiscal year to which such performance goals and objectives relate.
Article
XIII
DISTRIBUTION
EQUIVALENT RIGHTS
13.1
Award. A Distribution Equivalent Right shall entitle the Holder to receive bookkeeping credits, cash payments and/or Share
distributions equal in amount to the distributions that would have been made to the Holder had the Holder held a specified number of
Shares during the specified period of the Award.
13.2
Terms and Conditions. At the time any Award is made under this Article XIII, the Company and the Holder shall enter into
a Distribution Equivalent Rights Award Agreement setting forth each of the matters contemplated thereby and such other matters as the
Committee may determine to be appropriate. The Committee shall set forth in the applicable Distribution Equivalent Rights Award Agreement
the terms and conditions, if any, including whether the Holder is to receive credits currently in cash, is to have such credits reinvested
(at Fair Market Value determined as of the date of reinvestment) in additional Shares or is to be entitled to choose among such alternatives.
Such receipt shall be subject to a “substantial risk of forfeiture” under Section 409A of the Code and, if such Award becomes
vested, the distribution of such cash or Shares shall be made no later than by the fifteenth (15th) day of the third (3rd)
calendar month next following the end of the Company’s fiscal year in which the Holder’s interest in the Award vests. Distribution
Equivalent Rights Awards may be settled in cash or in Shares, as set forth in the applicable Distribution Equivalent Rights Award Agreement.
A Distribution Equivalent Rights Award may, but need not be, awarded in tandem with another Award (other than an Option or a SAR), whereby,
if so awarded, such Distribution Equivalent Rights Award shall expire, terminate or be forfeited by the Holder, as applicable, under
the same conditions as under such other Award.
13.3
Interest Equivalents. The Distribution Equivalent Rights Award Agreement for a Distribution Equivalent Rights Award may provide
for the crediting of interest on a Distribution Rights Award to be settled in cash at a future date (but in no event later than by the
fifteenth (15th) day of the third (3rd) calendar month next following the end of the Company’s fiscal year
in which such interest is credited and vested), at a rate set forth in the applicable Distribution Equivalent Rights Award Agreement,
on the amount of cash payable thereunder.
Article
XIV
STOCK
APPRECIATION RIGHTS
14.1
Award. A Stock Appreciation Right shall constitute a right, granted alone or in connection with a related Option, to receive a
payment equal to the increase in value of a specified number of Shares between the date of Award and the date of exercise.
14.2
Terms and Conditions. At the time any Award is made under this Article XIV, the Company and the Holder shall enter into a Stock
Appreciation Right Agreement setting forth each of the matters contemplated thereby and such other matters as the Committee may determine
to be appropriate. The Committee shall set forth in the applicable Stock Appreciation Right Agreement the terms and conditions of the
Stock Appreciation Right, including (i) the base value (the “Base Value”) for the Stock Appreciation Right, which
shall be not less than the Fair Market Value of a Share on the date of grant of the Stock Appreciation Right, (ii) the number of Shares
subject to the Stock Appreciation Right, (iii) the period during which the Stock Appreciation Right may be exercised; provided,
however, that no Stock Appreciation Right shall be exercisable after the expiration of ten (10) years from the date of its grant,
and (iv) any other special rules and/or requirements which the Committee imposes upon the Stock Appreciation Right. Upon the exercise
of some or all of the portion of a Stock Appreciation Right, the Holder shall receive a payment from the Company, in cash or in the form
of Shares having an equivalent Fair Market Value or in a combination of both, as determined in the sole discretion of the Committee,
equal to the product of:
(a) The
excess of (i) the Fair Market Value of a Share on the date of exercise, over (ii) the Base Value, multiplied by,
(b) The
number of Shares with respect to which the Stock Appreciation Right is exercised.
14.3
Tandem Stock Appreciation Rights. If the Committee grants a Stock Appreciation Right which is intended to be a Tandem Stock
Appreciation Right, the Tandem Stock Appreciation Right shall be granted at the same time as the related Option, and the following special
rules shall apply:
(a) The
Base Value shall be equal to or greater than the per Share exercise price under the related Option;
(b) The
Tandem Stock Appreciation Right may be exercised for all or part of the Shares which are subject to the related Option, but solely upon
the surrender by the Holder of the Holder’s right to exercise the equivalent portion of the related Option (and when a Share is
purchased under the related Option, an equivalent portion of the related Tandem Stock Appreciation Right shall be canceled);
(c) The
Tandem Stock Appreciation Right shall expire no later than the date of the expiration of the related Option;
(d) The
value of the payment with respect to the Tandem Stock Appreciation Right may be no more than one hundred percent (100%) of the difference
between the per Share exercise price under the related Option and the Fair Market Value of the Shares subject to the related Option at
the time the Tandem Stock Appreciation Right is exercised, multiplied by the number of the Shares with respect to which the Tandem Stock
Appreciation Right is exercised; and
(e) The
Tandem Stock Appreciation Right may be exercised solely when the Fair Market Value of the Shares subject to the related Option exceeds
the per Share exercise price under the related Option.
Article
XV
RECAPITALIZATION
OR REORGANIZATION
15.1
Adjustments to Shares. The shares with respect to which Awards may be granted under the Plan are Shares as presently constituted;
provided, however, that if, and whenever, prior to the expiration or distribution to the Holder of Shares underlying an
Award theretofore granted, the Company shall effect a subdivision or consolidation of the Shares or the payment of an Share dividend
on Shares without receipt of consideration by the Company, the number of Shares with respect to which such Award may thereafter be exercised
or satisfied, as applicable, (i) in the event of an increase in the number of outstanding Shares, shall be proportionately increased,
and the purchase price per Share shall be proportionately reduced, and (ii) in the event of a reduction in the number of outstanding
Shares, shall be proportionately reduced, and the purchase price per Share shall be proportionately increased. Notwithstanding the foregoing
or any other provision of this Article XV, any adjustment made with respect to an Award (x) which is an Incentive Stock Option, shall
comply with the requirements of Section 424(a) of the Code, and in no event shall any adjustment be made which would render any Incentive
Stock Option granted under the Plan to be other than an “incentive stock option” for purposes of Section 422 of the Code,
and (y) which is a Non-qualified Stock Option, shall comply with the requirements of Section 409A of the Code, and in no event shall
any adjustment be made which would render any Non-qualified Stock Option granted under the Plan to become subject to Section 409A of
the Code.
15.2
Recapitalization. If the Company recapitalizes or otherwise changes its capital structure, thereafter upon any exercise
or satisfaction, as applicable, of a previously granted Award, the Holder shall be entitled to receive (or entitled to purchase, if applicable)
under such Award, in lieu of the number of Shares then covered by such Award, the number and class of shares and securities to which
the Holder would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the
Holder had been the holder of record of the number of Shares then covered by such Award.
15.3
Other Events. In the event of changes to the outstanding Shares by reason of an extraordinary cash dividend, reorganization,
merger, consolidation, combination, split-up, spin-off, exchange or other relevant change in capitalization occurring after the date
of the grant of any Award and not otherwise provided for under this Article XV, any outstanding Awards and any Award Agreements evidencing
such Awards shall be adjusted by the Board in its discretion in such manner as the Board shall deem equitable or appropriate taking into
consideration the applicable accounting and tax consequences, as to the number and price of Shares or other consideration subject to
such Awards. In the event of any adjustment pursuant to Sections 15.1, 15.2 or this Section 15.3, the aggregate number of Shares available
under the Plan pursuant to Section 5.1 may be appropriately adjusted by the Board, the determination of which shall be conclusive. In
addition, the Committee may make provision for a cash payment to a Holder or a person who has an outstanding Award.
15.4
Change of Control. The Committee may, in its sole discretion, at the time an Award is made or at any time prior to, coincident
with or after the time of a Change of Control, cause any Award either (i) to be canceled in consideration of a payment in cash or other
consideration in amount per share equal to the excess, if any, of the price or implied price per Share in the Change of Control over
the per Share exercise, base or purchase price of such Award, which may be paid immediately or over the vesting schedule of the Award;
(ii) to be assumed, or new rights substituted therefore, by the surviving corporation or a parent or subsidiary of such surviving corporation
following such Change of Control; (iii) accelerate any time periods, or waive any other conditions, relating to the vesting, exercise,
payment or distribution of an Award so that any Award to a Holder whose employment has been terminated as a result of a Change of Control
may be vested, exercised, paid or distributed in full on or before a date fixed by the Committee; (iv) to be purchased from a Holder
whose employment has been terminated as a result of a Change of Control, upon the Holder’s request, for an amount of cash equal
to the amount that could have been obtained upon the exercise, payment or distribution of such rights had such Award been currently exercisable
or payable; or (v) terminate any then outstanding Award or make any other adjustment to the Awards then outstanding as the Committee
deems necessary or appropriate to reflect such transaction or change. The number of Shares subject to any Award shall be rounded to the
nearest whole number.
15.5
Powers Not Affected. The existence of the Plan and the Awards granted hereunder shall not affect in any way the right or power
of the Board or of the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change
of the Company’s capital structure or business, any merger or consolidation of the Company, any issue of debt or equity securities
ahead of or affecting Shares or the rights thereof, the dissolution or liquidation of the Company or any sale, lease, exchange or other
disposition of all or any part of its assets or business or any other corporate act or proceeding.
15.6
No Adjustment for Certain Awards. Except as hereinabove expressly provided, the issuance by the Company of shares of any class
or securities convertible into shares of any class, for cash, property, labor or services, upon direct sale, upon the exercise of rights
or warrants to subscribe therefor or upon conversion of shares or obligations of the Company convertible into such shares or other securities,
and in any case whether or not for fair value, shall not affect previously granted Awards, and no adjustment by reason thereof shall
be made with respect to the number of Shares subject to Awards theretofore granted or the purchase price per Share, if applicable.
Article
XVI
AMENDMENT
AND TERMINATION OF PLAN
The
Plan shall continue in effect, unless sooner terminated pursuant to this Article XVI, until the tenth (10th) anniversary of
the date on which it is adopted by the Board (except as to Awards outstanding on that date). The Board may amend, alter, suspend, discontinue,
or terminate the Plan or any portion thereof at any time; provided that (i) no amendment to Section 7.8 (repricing prohibitions)
shall be made without stockholder approval and (ii) no such amendment, alteration, suspension, discontinuation or termination shall be
made without stockholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable to the Plan
(including, without limitation, as necessary to comply with any rules or requirements of any securities exchange or inter-dealer quotation
system on which the Stock may be listed or quoted); provided, further, that any such amendment, alteration, suspension,
discontinuance or termination that would materially and adversely affect the rights of any Holder or beneficiary of any Award theretofore
granted shall not to that extent be effective without the consent of the affected Holder or beneficiary (unless such change is required
in order to exempt the Plan or any Award from Section 409A of the Code).
Article
XVII
MISCELLANEOUS
17.1
No Right to Award. Neither the adoption of the Plan by the Company nor any action of the Board or the Committee shall be deemed
to give an Employee, Director or Consultant any right to an Award except as may be evidenced by an Award Agreement duly executed on behalf
of the Company, and then solely to the extent and on the terms and conditions expressly set forth therein.
17.2
No Rights Conferred. Nothing contained in the Plan shall (i) confer upon any Employee any right with respect to continuation of
employment with the Company or any Affiliate, (ii) interfere in any way with any right of the Company or any Affiliate to terminate the
employment of an Employee at any time, (iii) confer upon any Director any right with respect to continuation of such Director’s
membership on the Board, (iv) interfere in any way with any right of the Company or an Affiliate to terminate a Director’s membership
on the Board at any time, (v) confer upon any Consultant any right with respect to continuation of his or her consulting engagement with
the Company or any Affiliate, or (vi) interfere in any way with any right of the Company or an Affiliate to terminate a Consultant’s
consulting engagement with the Company or an Affiliate at any time.
17.3
Other Laws; No Fractional Shares; Withholding. The Company shall not be obligated by virtue of any provision of the Plan
to recognize the exercise of any Award or to otherwise sell or issue Shares in violation of any laws, rules or regulations, and any postponement
of the exercise or settlement of any Award under this provision shall not extend the term of such Award. Neither the Company nor its
directors or officers shall have any obligation or liability to a Holder with respect to any Award (or Shares issuable thereunder) (i)
that shall lapse because of such postponement, or (ii) for any failure to comply with the requirements of any applicable law, rules or
regulations, including but not limited to any failure to comply with the requirements of Section 409A of this Code. No fractional Shares
shall be delivered, nor shall any cash in lieu of fractional Shares be paid. The Company shall have the right to deduct in cash (whether
under this Plan or otherwise) in connection with all Awards any taxes required by law to be withheld and to require any payments required
to enable it to satisfy its withholding obligations. In the case of any Award satisfied in the form of Shares, no Shares shall be issued
unless and until arrangements satisfactory to the Company shall have been made to satisfy any tax withholding obligations applicable
with respect to such Award. Subject to such terms and conditions as the Committee may impose, the Company shall have the right to retain,
or the Committee may, subject to such terms and conditions as it may establish from time to time, permit Holders to elect to tender,
Shares (including Shares issuable in respect of an Award) to satisfy, in whole or in part, the amount required to be withheld.
17.4
No Restriction on Corporate Action. Nothing contained in the Plan shall be construed to prevent the Company or any Affiliate from
taking any corporate action which is deemed by the Company or such Affiliate to be appropriate or in its best interest, whether or not
such action would have an adverse effect on the Plan or any Award made under the Plan. No Employee, Director, Consultant, beneficiary
or other person shall have any claim against the Company or any Affiliate as a result of any such action.
17.5
Restrictions on Transfer. No Award under the Plan or any Award Agreement and no rights or interests herein or therein, shall or
may be assigned, transferred, sold, exchanged, encumbered, pledged or otherwise hypothecated or disposed of by a Holder except (i) by
will or by the laws of descent and distribution, or (ii) where permitted under applicable tax rules, by gift to any Family Member of
the Holder, subject to compliance with applicable laws. An Award may be exercisable during the lifetime of the Holder only by such Holder
or by the Holder’s guardian or legal representative unless it has been transferred by gift to a Family Member of the Holder, in
which case it shall be exercisable solely by such transferee. Notwithstanding any such transfer, the Holder shall continue to be subject
to the withholding requirements provided for under Section 17.3 hereof.
17.6
Beneficiary Designations. Each Holder may, from time to time, name a beneficiary or beneficiaries (who may be contingent
or successive beneficiaries) for purposes of receiving any amount which is payable in connection with an Award under the Plan upon or
subsequent to the Holder’s death. Each such beneficiary designation shall serve to revoke all prior beneficiary designations, be
in a form prescribed by the Company and be effective solely when filed by the Holder in writing with the Company during the Holder’s
lifetime. In the absence of any such written beneficiary designation, for purposes of the Plan, a Holder’s beneficiary shall be
the Holder’s estate.
17.7
Rule 16b-3. It is intended that the Plan and any Award made to a person subject to Section 16 of the Exchange Act shall meet all
of the requirements of Rule 16b-3. If any provision of the Plan or of any such Award would disqualify the Plan or such Award under, or
would otherwise not comply with the requirements of, Rule 16b-3, such provision or Award shall be construed or deemed to have been amended
as necessary to conform to the requirements of Rule 16b-3.
17.8 Clawback
Policy. All Awards (including on a retroactive basis) granted under the Plan are subject to the terms of any Company forfeiture,
incentive compensation recoupment, clawback or similar policy as it may be in effect from time to time, as well as any similar provisions
of applicable laws, as well as any other policy of the Company that may apply to the Awards, such as anti-hedging or pledging policies,
as they may be in effect from time to time. In particular, these policies and/or provisions shall include, without limitation, (i) any
Company policy established to comply with applicable laws (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section
954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act), and/or (ii) the rules and regulations of the applicable securities
exchange or inter-dealer quotation system on which the shares of Stock or other securities are listed or quoted, and these requirements
shall be deemed incorporated by reference into all outstanding Award Agreements.
17.9 No
Obligation to Notify or Minimize Taxes. The Company shall have no duty or obligation to any Holder to advise such Holder as to the
time or manner of exercising any Award. Furthermore, the Company shall have no duty or obligation to warn or otherwise advise such Holder
of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised. The Company has no duty
or obligation to minimize the tax consequences of an Award to any person.
17.10 Section
409A of the Code.
(a) Notwithstanding
any provision of this Plan to the contrary, all Awards made under this Plan are intended to be exempt from or, in the alternative, comply
with Section 409A of the Code and the authoritative guidance thereunder, including the exceptions for stock rights and short-term deferrals.
The Plan shall be construed and interpreted in accordance with such intent. Each payment under an Award shall be treated as a separate
payment for purposes of Section 409A of the Code.
(b) If
a Holder is a “specified employee” (as such term is defined for purposes of Section 409A of the Code) at the time of his
termination of service, no amount that is nonqualified deferred compensation subject to Section 409A of the Code and that becomes payable
by reason of such termination of service shall be paid to the Holder (or in the event of the Holder’s death, the Holder’s
representative or estate) before the earlier of (x) the first business day after the date that is six months following the date
of the Holder’s termination of service, and (y) within 30 days following the date of the Holder’s death. For purposes of
Section 409A of the Code, a termination of service shall be deemed to occur only if it is a “separation from service” within
the meaning of Section 409A of the Code, and references in the Plan and any Award Agreement to “termination of service” or
similar terms shall mean a “separation from service.” If any Award is or becomes subject to Section 409A of the Code, unless
the applicable Award Agreement provides otherwise, such Award shall be payable upon the Holder’s “separation from service”
within the meaning of Section 409A of the Code. If any Award is or becomes subject to Section 409A of the Code and if payment of such
Award would be accelerated or otherwise triggered under a Change of Control, then the definition of Change of Control shall be deemed
modified, only to the extent necessary to avoid the imposition of any additional tax under Section 409A of the Code, to mean a “change
in control event” as such term is defined for purposes of Section 409A of the Code.
(c) Any
adjustments made pursuant to Article XV to Awards that are subject to Section 409A of the Code shall be made in compliance with the requirements
of Section 409A of the Code, and any adjustments made pursuant to Article XV to Awards that are not subject to Section 409A of the Code
shall be made in such a manner as to ensure that after such adjustment, the Awards either (x) continue not to be subject to Section 409A
of the Code or (y) comply with the requirements of Section 409A of the Code.
17.11
Indemnification. Each person who is or shall have been a member of the Committee or of the Board shall be indemnified and held
harmless by the Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred thereby
in connection with or resulting from any claim, action, suit, or proceeding to which such person may be made a party or may be involved
by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid thereby in settlement thereof,
with the Company’s approval, or paid thereby in satisfaction of any judgment in any such action, suit, or proceeding against such
person; provided, however, that such person shall give 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 and shall be independent of any other rights of indemnification to which such persons may be entitled under the Company’s
Articles of Incorporation or By-laws, by contract, as a matter of law, or otherwise.
17.12
Other Benefit Plans. No Award, payment or amount received hereunder shall be taken into account in computing an Employee’s
salary or compensation for the purposes of determining any benefits under any pension, retirement, life insurance or other benefit plan
of the Company or any Affiliate, unless such other plan specifically provides for the inclusion of such Award, payment or amount received.
Nothing in the Plan shall be construed to limit the right of the Company to establish other plans or to pay compensation to its employees,
in cash or property, in a manner which is not expressly authorized under the Plan.
17.13
Limits of Liability. Any liability of the Company with respect to an Award shall be based solely upon the contractual obligations
created under the Plan and the Award Agreement. None of the Company, any member of the Board nor any member of the Committee shall have
any liability to any party for any action taken or not taken, in good faith, in connection with or under the Plan.
17.14
Governing Law. Except as otherwise provided herein, the Plan shall be governed by and construed in accordance with the
internal laws of the State of Nevada applicable to contracts made and performed wholly within the State of Nevada, without giving effect
to the conflict of law provisions thereof.
17.15 Subplans.
The Board may from time to time establish one or more sub-plans under the Plan for purposes of satisfying applicable blue sky, securities
or tax laws of various jurisdictions. The Board shall establish such sub-plans by adopting supplements to the Plan setting forth (i)
such limitations on the Committee’s discretion under the Plan as the Board deems necessary or desirable and (ii) such additional
terms and conditions not otherwise inconsistent with the Plan as the Board shall deem necessary or desirable. All supplements adopted
by the Board shall be deemed to be part of the Plan, but each supplement shall apply only to Holders within the affected jurisdiction
and the Company shall not be required to provide copies of any supplement to Holders in any jurisdiction that is not affected.
17.16 Notification
of Election Under Section 83(b) of the Code. If any Holder, in connection with the acquisition of Stock under an Award, makes the
election permitted under Section 83(b) of the Code, if applicable, the Holder shall notify the Company of the election within ten days
of filing notice of the election with the Internal Revenue Service.
17.17 Paperless
Administration. If 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 Holder may be permitted through the use of such an automated system.
17.18 Broker-Assisted
Sales. In the event of a broker-assisted sale of Stock in connection with the payment of amounts owed by a Holder under or with respect
to the Plan or Awards: (a) any Stock to be sold through the broker-assisted sale will be sold on the day the payment first becomes due,
or as soon thereafter as practicable; (b) the Stock may be sold as part of a block trade with other Holders in the Plan in which
all participants receive an average price; (c) the applicable Holder will be responsible for all broker’s fees and other costs
of sale, and by accepting an Award, each Holder agrees to indemnify and hold the Company harmless from any losses, costs, damages, or
expenses relating to any such sale; (d) to the extent the Company or its designee receives proceeds of the sale that exceed the
amount owed, the Company will pay the excess in cash to the applicable Holder as soon as reasonably practicable; (e) the Company
and its designees are under no obligation to arrange for the sale at any particular price; and (f) if the proceeds of the sale are
insufficient to satisfy the Holder’s applicable obligation, the Holder may be required to pay immediately upon demand to the Company
or its designee an amount in cash sufficient to satisfy any remaining portion of the Holder’s obligation.
17.19 Data
Privacy. As a condition for receiving any Award, each Holder explicitly and unambiguously consents to the collection, use and transfer,
in electronic or other form, of personal data as described in this Section 17.19 by and among the Company and its subsidiaries and Affiliates
exclusively for implementing, administering and managing the Holder’s participation in the Plan. The Company and its subsidiaries
and Affiliates may hold certain personal information about a Holder, including the Holder’s name, address and telephone number;
birthdate; social security, insurance number or other identification number; salary; nationality; job title(s);
any Stock held in the Company or its subsidiaries and Affiliates; and Award details, to implement, manage and administer the Plan
and Awards (the “Data”). The Company and its subsidiaries and Affiliates may transfer the Data amongst themselves
as necessary to implement, administer and manage a Holder’s participation in the Plan, and the Company and its subsidiaries and
Affiliates may transfer the Data to third parties assisting the Company with Plan implementation, administration and management. These
recipients may be located in the Holder’s country, or elsewhere, and the Holder’s country may have different data privacy
laws and protections than the recipients’ country. By accepting an Award, each Holder authorizes the recipients to receive, possess,
use, retain and transfer the Data, in electronic or other form, to implement, administer and manage the Holder’s participation
in the Plan, including any required Data transfer to a broker or other third party with whom the Company or the Holder may elect to deposit
any Stock. The Data related to a Holder will be held only as long as necessary to implement, administer, and manage the Holder’s
participation in the Plan. A Holder may, at any time, view the Data that the Company holds regarding the Holder, request additional information
about the storage and processing of the Data regarding the Holder, recommend any necessary corrections to the Data regarding the Holder
or refuse or withdraw the consents in this Section 17.19 in writing, without cost, by contacting the local human resources representative.
The Company may cancel Holder’s ability to participate in the Plan and, in the Committee’s discretion, the Holder may forfeit
any outstanding Awards if the Holder refuses or withdraws the consents in this Section 17.19.
17.20
Severability of Provisions. If any provision of the Plan is held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision of the Plan, and the Plan shall be construed and enforced as if such invalid or unenforceable provision
had not been included in the Plan.
17.21
No Funding. The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make
any other segregation of funds or assets to ensure the payment of any Award. Prior to receipt of Shares or a cash distribution pursuant
to the terms of an Award, such Award shall represent an unfunded unsecured contractual obligation of the Company and the Holder shall
have no greater claim to the Shares underlying such Award or any other assets of the Company or Affiliate than any other unsecured general
creditor.
17.22
Headings. Headings used throughout the Plan are for convenience only and shall not be given legal significance.
Exhibit
23.1
 |
Phone +41 44 444 35 55
www.bdo.ch
zurich@bdo.ch |
BDO Ltd
Schiffbaustrasse 2
8031 Zurich |
Consent
of Independent Registered Public Accounting Firm
We
hereby consent to the incorporation by reference in this Registration Statement of our report dated July 15, 2024, relating to the consolidated
financial statements of DIH Holding US, Inc. (the Company) appearing in the Company’s Annual Report on Form 10-K for the year ended
March 31, 2024.
BDO
AG
| /s/
Christoph Tschumi |
|
/s/
Philipp Kegele |
| Christoph
Tschumi |
|
Philipp
Kegele |
Zurich,
Switzerland
July
15, 2024
BDO
Ltd, a limited company under Swiss law, incorporated in Zurich, forms part of the international BDO Network of independent member firms.
Exhibit
107
Calculation
of Filing Fee Table
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
FORM
S-8
(Form
Type)
DIH
Holding US, 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 | |
| Newly
Registered Securities |
| Fees
to Be Paid | |
Equity | |
Common
Stock, $0.0001 par value per share | |
457(c)
and 457(h) | |
| 4,300,000 | | |
$ | 3.25 | (2) | |
$ | 13,975,500 | | |
| 0.0001476 | | |
$ | 2,062.71 | |
| | |
| |
| |
Total
Offering Amounts | | |
| | | |
$ | | | |
| 0.0001476 | | |
$ | 2,062.71 | |
| | |
| |
| |
Total
Fees Previously Paid | | |
| | | |
| | | |
| | | |
| 0 | |
| | |
| |
| |
Total
Fee Offsets | | |
| | | |
| | | |
| | | |
| 0 | |
| | |
| |
| |
Net Fees Due | |
| | | |
| | | |
| | | |
$ | 2,062.71 | |
| (1) | Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”),
this registration statement also covers an indeterminate amount of interests to be offered
or sold pursuant to the registrant’s Equity Incentive Plan (the “Plan”). |
| (2) | Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule
457(h) under the Securities Act based on the average of the high and low prices of the registrant’s
common stock as reported by The Nasdaq Stock Market on July 12, 2024. |
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