UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
(RULE
14a-101)
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
Check
the appropriate box:
☐ |
Preliminary
Proxy Statement |
☐ |
Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
☐ |
Definitive
Proxy Statement |
☒ |
Definitive
Additional Materials |
☐ |
Soliciting
Material Under § 240.14a-12 |
LIPOCINE
INC.
(Name
of Registrant as Specified In Its Charter)
(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
☒ |
No
fee required. |
☐ |
Fee
paid previously with preliminary materials. |
☐ |
Fee
computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11. |
![](https://www.sec.gov/Archives/edgar/data/1535955/000149315224022409/defa-14a_001.jpg)
SUPPLEMENT
TO PROXY STATEMENT DATED APRIL 23, 2024
FOR
THE ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD ON JUNE 5, 2024
The
date of this Supplement is June 3, 2024
On
April 23, 2024, Lipocine Inc. (the “Company”) filed a definitive proxy statement (the “Proxy Statement”) relating
to the Company’s 2024 Annual Meeting of Stockholders (the “2024 Annual Meeting”). The Company has set June 5, 2024
as the date for the 2024 Annual Meeting. The 2024 Annual Meeting will be held at the Company’s offices located at 675 Arapeen Drive,
Suite 202, Salt Lake City, Utah 84108 at 10:00 a.m. Mountain Daylight Time. As previously disclosed, the record date for determining
the Company’s stockholders entitled to vote at the 2024 Annual Meeting has been fixed as the close of business on April 8, 2024.
This supplement (“Supplement”) supplements and amends the information set forth in the Proxy Statement. Capitalized terms
not defined in this Supplement have the meanings set forth in the Proxy Statement.
The
2024 Annual Meeting is being held for the following purposes:
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1. |
To
elect six (6) directors to the Company’s Board of Directors, to serve until the next annual meeting or until their successors
are duly elected and qualified; |
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2. |
To
ratify the appointment of Tanner LLC as the independent registered public accounting firm of the Company for the year ending December
31, 2024; |
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3. |
To
adopt, on an advisory basis, a non-binding resolution approving the compensation of the Company’s named executive officers,
as described in the Proxy Statement under “Executive Compensation”; |
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4. |
To
vote, on an advisory basis, on the frequency of future advisory votes to approve the compensation
of the Company’s named executive officers;
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5. |
To
approve an amendment and restatement of our Fourth Amended and Restated 2014 Stock and Incentive
Plan (the “Plan”) to increase the authorized number of shares of common stock
issuable under all awards granted under such plan from 336,582 shares to 600,000 shares;
and
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6. |
To
conduct any other business properly brought before the Annual Meeting and any adjournment or postponement thereof. |
After
consideration by the Board of Directors in response to recent stockholder feedback, the Company is further amending the Plan to prohibit
the repricing of options or stock appreciation rights without stockholder approval. Accordingly, on June 3, 2024, the Board of Directors
approved a further amended and restated version of the Plan (the “Revised Plan”) to prohibit the repricing of options or
stock appreciation rights without stockholder approval. As a result, Proposal 5 of the Proxy Statement is hereby amended to remove all
reference to repricing of options or stock appreciation rights without stockholder approval.
The
full text of the Revised Plan is attached hereto as Appendix I to this Supplement.
The
Board of Directors recommends that stockholders vote “FOR” the approval of the Revised Plan.
The
description of the Revised Plan set forth in Proposal 5 is qualified in its entirety by reference to the copy of the Revised Plan (as
set forth in Appendix I of this Supplement), which is incorporated by reference into Proposal 5. Except as specifically stated herein,
this Supplement does not otherwise modify or update any other disclosures presented in the Proxy Statement. This Supplement should be
read with the Proxy Statement and, from and after the date of this Supplement, any references to the “Proxy Statement” shall
be deemed to include the Proxy Statement as amended and supplemented by this Supplement.
Any
vote “FOR” or “AGAINST” or “ABSTAIN” that has been previously made will be counted,
respectively, as a vote “FOR” or “AGAINST” or “ABSTAIN” with regard to the Revised
Plan, as described in the Proxy Statement and as revised as set forth in this Supplement. If any stockholder of the Company has previously
voted and would like to change his, her or its vote on any matter, such stockholder may revoke his, her or its proxy before it is voted
at the 2024 Annual Meeting by submission of a proxy bearing a later date in the manner set forth in the Proxy Statement.
Appendix
I
FIFTH
AMENDED AND RESTATED LIPOCINE INC.
2014
STOCK AND INCENTIVE PLAN
Section
1. Purpose
The
purpose of the Plan is to promote the interests of the Company and its stockholders by aiding the Company in attracting and retaining
employees, officers, consultants, advisors and non-employee Directors capable of assuring the future success of the Company, to offer
such persons incentives to put forth maximum efforts for the success of the Company’s business and to compensate such persons through
various stock-based arrangements and provide them with opportunities for stock ownership in the Company, thereby aligning the interests
of such persons with the Company’s stockholders.
Section
2. Definitions
As
used in the Plan, the following terms shall have the meanings set forth below:
(a)
“Affiliate” shall mean any entity that, directly or indirectly through one or more intermediaries, is controlled by
the Company.
(b)
“Award” shall mean any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit or Dividend Equivalent
granted under the Plan.
(c)
“Award Agreement” shall mean any written agreement, contract or other instrument or document evidencing an Award granted
under the Plan (including a document in an electronic medium) executed in accordance with the requirements of Section 9(b).
(d)
“Board” shall mean the Board of Directors of the Company.
(e)
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and any regulations promulgated
thereunder.
(f)
“Change-in-Control Event” shall mean the occurrence, in a single transaction or in a series of related transactions,
of any one or more of the following events:
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(i) |
any
Exchange Act Person becomes the Owner, 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 other than by virtue of a merger, consolidation
or similar transaction. Notwithstanding the foregoing, a Change-in-Control Event shall not be deemed to occur (A) on account of the
acquisition of securities of the Company by an investor, any affiliate thereof or any other Exchange Act Person that acquires the
Company’s securities in a transaction or series of related transactions the primary purpose of which is to obtain financing
for the Company through the issuance of equity securities or (B) solely because the level of Ownership held by any Exchange Act Person
(the “Subject Person”) exceeds the designated percentage threshold of the outstanding voting securities as a result of
a repurchase or other acquisition of voting securities by the Company reducing the number of shares outstanding, provided that if
a Change-in-Control Event would occur (but for the operation of this sentence) as a result of the acquisition of voting securities
by the Company, and after such share acquisition, the Subject Person becomes the Owner of any additional voting securities that,
assuming the repurchase or other acquisition had not occurred, increases the percentage of the then outstanding voting securities
Owned by the Subject Person over the designated percentage threshold, then a Change-in-Control Event shall be deemed to occur; |
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(ii) |
there
is consummated a merger, consolidation or similar transaction involving (directly or indirectly) the Company and, immediately after
the consummation of such merger, consolidation or similar transaction, the stockholders of the Company immediately prior thereto
do not Own, directly or indirectly, either (A) outstanding voting securities representing more than fifty percent (50%) of the combined
outstanding voting power of the surviving Entity in such merger, consolidation or similar transaction or (B) more than fifty percent
(50%) of the combined outstanding voting power of the parent of the surviving Entity in such merger, consolidation or similar transaction,
in each case in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately
prior to such transaction; |
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(iii) |
there
is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the consolidated assets of the
Company and its Subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated
assets of the Company and its Subsidiaries to an Entity, more than fifty percent (50%) of the combined voting power of the voting
securities of which are Owned by stockholders of the Company in substantially the same proportions as their Ownership of the outstanding
voting securities of the Company immediately prior to such sale, lease, license or other disposition; or |
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(iv) |
individuals
who, on the date this Plan is adopted by the Board, are members of the Board (the “Incumbent Board”) cease for any reason
to constitute at least a majority of the members of the Board; provided, however, that if the appointment or election (or nomination
for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still
in office, such new member shall, for purposes of this Plan, be considered as a member of the Incumbent Board. |
Notwithstanding
the foregoing definition or any other provision of this Plan, (A) the term Change-in-Control Event shall not include a sale of assets,
merger or other transaction effected exclusively for the purpose of changing the domicile of the Company, and (B) the definition of Change-in-Control
Event (or any analogous term) in an individual written agreement between the Company or any Affiliate and the Participant shall supersede
the foregoing definition with respect to Awards subject to such agreement; provided, however, that if no definition of Change-in-Control
Event or any analogous term is set forth in such an individual written agreement, the foregoing definition shall apply.
(g)
“Committee” shall mean the Compensation Committee of the Board or such other committee designated by the Board to
administer the Plan. The Committee shall be comprised of not less than such number of Directors as shall be required to permit Awards
granted under the Plan to qualify under Rule 16b-3.
(h)
“Company” shall mean Lipocine Inc., a Delaware corporation, and any successor corporation.
(i)
“Director” shall mean a member of the Board.
(j)
“Dividend Equivalent” shall mean any right granted under Section 6(e) of the Plan.
(k)
“Eligible Person” shall mean any employee, officer, non-employee Director, consultant, independent contractor or advisor
providing services to the Company or any Affiliate, or any such person to whom an offer of employment or engagement with the Company
or any Affiliate is extended.
(l)
“Entity” means a corporation, partnership, limited liability company or other entity.
(m)
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(n)
“Exchange Act Person” means any natural person, Entity or “group” (within the meaning of Section 13(d)
or 14(d) of the Exchange Act), except that “Exchange Act Person” shall not include (i) the Company or any Subsidiary of the
Company, (ii) any employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any Subsidiary of the Company, (iii) an underwriter temporarily holding securities pursuant
to a registered public offering of such securities, (iv) an Entity Owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their Ownership of stock of the Company; or (v) any natural person, Entity or “group”
(within the meaning of Section 13(d) or 14(d) of the Exchange Act) that, as of the Effective Date, is the Owner, 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.
(o)
“Fair Market Value” with respect to one Share as of any date shall mean (a) if the Share is listed on any established
stock exchange, the price of one Share at the close of the regular trading session of such market or exchange on such date, as reported
by The Wall Street Journal or a comparable reporting service, or, if no sale of Shares shall have occurred on such date, on the preceding
date on which there was a sale of Shares; (b) if the Shares are not so listed on any established stock exchange, the average of the closing
“bid” and “asked” prices quoted by the OTC Bulletin Board, the National Quotation Bureau, or any comparable reporting
service on such date or, if there are no quoted “bid” and “asked” prices on such date, on the next preceding
date for which there are such quotes for a Share; or (c) if the Shares are not publicly traded as of such date, the per share value of
a Share, as determined by the Board, or any duly authorized Committee of the Board, in its sole discretion, by applying principles of
valuation with respect thereto.
(p)
“Incentive Stock Option” shall mean an option granted under Section 6(a) of the Plan that is intended to meet the
requirements of Section 422 of the Code or any successor provision.
(q)
“Non-Qualified Stock Option” shall mean an option granted under Section 6(a) of the Plan that is not intended to be
an Incentive Stock Option.
(r)
“Option” shall mean an Incentive Stock Option or a Non-Qualified Stock Option to purchase shares of the Company.
(s)
“Own,” “Owned,” “Owner,” “Ownership” a person or Entity shall
be deemed to “Own,” to have “Owned,” to be the “Owner” of, or to have acquired “Ownership”
of securities if such person or Entity, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise,
has or shares voting power, which includes the power to vote or to direct the voting, with respect to such securities.
(t)
“Participant” shall mean an Eligible Person designated to be granted an Award under the Plan.
(u)
“Person” shall mean any individual or entity, including a corporation, partnership, limited liability company, association,
joint venture or trust.
(v)
“Plan” shall mean the Fifth Amended and Restated Lipocine Inc. 2014 Stock and Incentive Plan, as amended from time
to time.
(w)
“Prior Stock Plan” shall mean the Lipocine Inc. 2011 Equity Incentive Plan, as amended from time to time.
(x)
“Restricted Stock” shall mean any Share granted under Section 6(c) of the Plan.
(y)
“Restricted Stock Unit” shall mean any unit granted under Section 6(c) of the Plan evidencing the right to receive
a Share (or a cash payment equal to the Fair Market Value of a Share) at some future date.
(z)
“Rule 16b-3” shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended, or any successor rule or regulation.
(aa)
“Section 409A” shall mean Section 409A of the Code, or any successor provision, and applicable Treasury Regulations
and other applicable guidance thereunder.
(bb)
“Securities Act” shall mean the Securities Act of 1933, as amended.
(cc)
“Share” or “Shares” shall mean the common stock of the Company (or such other securities or property
as may become subject to Awards pursuant to an adjustment made under Section 4(c) of the Plan).
(dd)
“Specified Employee” shall mean a specified employee as defined in Section 409A(a)(2)(B) of the Code or applicable
proposed or final regulations under Section 409A, determined in accordance with procedures established by the Company and applied uniformly
with respect to all plans maintained by the Company that are subject to Section 409A.
(ee)
“Stock Appreciation Right” shall mean any right granted under Section 6(b) of the Plan.
(ff)
“Subsidiary” means, with respect to the Company, (i) any corporation of which more than fifty percent (50%) of the
outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective
of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or indirectly, Owned by the Company, and (ii) any partnership, limited liability
company or other entity in which the Company has a direct or indirect interest (whether in the form of voting or participation in profits
or capital contribution) of more than fifty percent (50%).
Section
3. Administration
(a)
Power and Authority of the Committee. The Plan shall be administered by the Committee. Subject to the express provisions of the
Plan and to applicable law, the Committee shall have full power and authority to: (i) designate Participants; (ii) determine the type
or types of Awards to be granted to each Participant under the Plan; (iii) determine the number of Shares to be covered by (or the method
by which payments or other rights are to be calculated in connection with) each Award; (iv) determine the terms and conditions of any
Award or Award Agreement, including any terms relating to the forfeiture of any Award and the forfeiture, recapture or disgorgement of
any cash, Shares or other amounts payable with respect to any Award; (v) amend the terms and conditions of any Award or Award Agreement,
subject to the limitations under Section 7; (vi) accelerate the exercisability of any Award or the lapse of any restrictions relating
to any Award, subject to the limitations in Section 7, (vii) determine whether, to what extent and under what circumstances Awards may
be exercised in cash, Shares, other securities, other Awards or other property (excluding promissory notes), or canceled, forfeited or
suspended, subject to the limitations in Section 7; (viii) determine whether, to what extent and under what circumstances amounts payable
with respect to an Award under the Plan shall be deferred either automatically or at the election of the holder thereof or the Committee,
subject to the requirements of Section 409A; (ix) interpret and administer the Plan and any instrument or agreement, including an Award
Agreement, relating to the Plan; (x) establish, amend, suspend or waive such rules and regulations and appoint such agents as it shall
deem appropriate for the proper administration of the Plan; (xi) make any other determination and take any other action that the Committee
deems necessary or desirable for the administration of the Plan; and (xii) adopt such modifications, rules, procedures and subplans as
may be necessary or desirable to comply with provisions of the laws of non-U.S. jurisdictions in which the Company or an Affiliate may
operate, including, without limitation, establishing any special rules for Affiliates, Eligible Persons or Participants located in any
particular country, in order to meet the objectives of the Plan and to ensure the viability of the intended benefits of Awards granted
to Participants located in such non-United States jurisdictions. Unless otherwise expressly provided in the Plan, all designations, determinations,
interpretations and other decisions under or with respect to the Plan or any Award or Award Agreement shall be within the sole discretion
of the Committee, may be made at any time and shall be final, conclusive and binding upon any Participant, any holder or beneficiary
of any Award or Award Agreement, and any employee of the Company or any Affiliate.
(b)
Delegation. The Committee shall have the right, from time to time, to delegate to one or more officers of the Company the authority
of the Committee to grant and determine the terms and conditions of Awards granted under the Plan, subject to the requirements of Section
157(c) of the Delaware General Corporation Law (or any successor provision) and such other limitations under applicable exchange rules.
In no event shall any such delegation of authority be permitted with respect to Awards to any members of the Board or to any Eligible
Person who is subject to Rule 16b-3 under the Exchange Act or in such a manner as would cause the Plan not to comply with the requirements
of applicable exchange rules or applicable law. The Committee shall also be permitted to delegate, to any appropriate officer or employee
of the Company, responsibility for performing certain ministerial functions under the Plan. In the event that the Committee’s authority
is delegated to officers or employees in accordance with the foregoing, all provisions of the Plan relating to the Committee shall be
interpreted in a manner consistent with the foregoing by treating any such reference as a reference to such officer or employee for such
purpose. Any action undertaken in accordance with the Committee’s delegation of authority hereunder shall have the same force and
effect as if such action were undertaken directly by the Committee and shall be deemed for all purposes of the Plan to have been taken
by the Committee.
(c)
Power and Authority of the Board. Notwithstanding anything to the contrary contained herein, (i) the Board may, at any time and
from time to time, without any further action of the Committee, exercise the powers and duties of the Committee under the Plan, unless
the exercise of such powers and duties by the Board would cause the Plan not to comply with the requirements of Rule 16b-3; and (ii)
only the Committee (or another committee of the Board comprised of directors who qualify as independent directors, within the meaning
of independence rules of any applicable securities exchange where the Shares are then listed) may grant Awards to Directors who are not
also employees of the Company or an Affiliate
(d)
Indemnification. To the full extent permitted by law, (i) no member of the Board, the Committee or any person to whom the Committee
delegates authority under the Plan shall be liable for any action or determination taken or made in good faith with respect to the Plan
or any Award made under the Plan, and (ii) the members of the Board, the Committee and each person to whom the Committee delegates authority
under the Plan shall be entitled to indemnification by the Company with regard to such actions and determinations. The provisions of
this paragraph shall be in addition to such other rights of indemnification as a member of the Board, the Committee or any other person
may have by virtue of such person’s position with the Company.
Section
4. Shares Available for Awards
(a)
Shares Available. Subject to adjustment as provided in Section 4(c) of the Plan, the aggregate number of Shares that may be issued
under all Awards under the Plan shall be the sum of (i) 600,000 (which includes the authorized net increase of Shares in connection with
the adoption of the Fifth Amended and Restated Plan amendment plus previously approved Plan Shares, as well as all Shares rolled over
from the Prior Stock Plan upon initial approval of the Plan) and (ii) any Shares subject to any outstanding award under the Prior Stock
Plan that, since the initial approval of the Plan, are not purchased or are forfeited or reacquired by the Company, or otherwise not
delivered to the Participant due to termination or cancellation of such award. The aggregate number of Shares that may be issued under
all Awards under the Plan shall be reduced by Shares subject to awards issued under the Plan in accordance with the share counting rules
described in Section 4(b) below. Upon the initial stockholder approval of this Plan, future issuances under the Prior Stock Plan were
discontinued, but all outstanding awards previously granted under the Prior Stock Plan remained outstanding and subject to the terms
of the Prior Stock Plan.
(b)
Counting Shares. For purposes of this Section 4, if an Award entitles the holder thereof to receive or purchase Shares, the number
of Shares covered by such Award or to which such Award relates shall be counted on the date of grant of such Award against the aggregate
number of Shares available for granting Awards under the Plan. For purposes of determining the number of Shares covered on the date of
grant by an Option or a Stock Appreciation Right, the aggregate number of Shares with respect to which the Option or Stock Appreciation
Right is to be exercised shall be counted against the number of Shares available for Awards under the Plan (without regard to the number
of actual Shares issued upon exercise or settlement). If any Shares covered by an Award or to which an Award relates are not purchased
or are forfeited or are reacquired by the Company (including shares of Restricted Stock and Restricted Stock Units, whether or not dividends
have been paid on such shares), or if an Award otherwise terminates or is cancelled without delivery of any Shares, then the number of
Shares counted pursuant to Section 4(b) of the Plan against the aggregate number of Shares available under the Plan with respect to such
Award, to the extent of any such forfeiture, reacquisition by the Company, termination or cancellation, shall again be available for
granting Awards under the Plan. Notwithstanding anything to the contrary in this Section 4, the following Shares will not again become
available for issuance under the Plan: (i) any Shares which would have been issued upon any exercise of an Option but for the fact that
the exercise price was paid by a “net exercise” pursuant to Section 6(a)(iii)(B) or any Shares tendered in payment of the
exercise price of an Option; (ii) any Shares withheld by the Company or Shares tendered to satisfy any tax withholding obligation with
respect to an Option or Stock Appreciation Right; (iii) Shares covered by a Stock Appreciation Right issued under the Plan that are not
issued in connection with settlement in Shares upon exercise; or (iv) Shares that are repurchased by the Company using Option exercise
proceeds.
(c)
Adjustments. In the event that any dividend (other than regular cash dividends) or other distribution (whether in the form of
cash, Shares, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase or exchange of Shares or other securities of the Company, issuance of warrants or other rights
to purchase Shares or other securities of the Company or other similar corporate transaction or event affects the Shares such that an
adjustment is necessary in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available
under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number and type of Shares
(or other securities or other property) that thereafter may be made the subject of Awards, (ii) the number and type of Shares (or other
securities or other property) subject to outstanding Awards, (iii) the purchase price or exercise price with respect to any Award and
(iv) the limitations contained in Section 4(d)(i) below; provided, however, that the number of Shares covered by any Award
or to which such Award relates shall always be a whole number. Such adjustment shall be made by the Committee or the Board, whose determination
in that respect shall be final, binding and conclusive.
(d)
Award Limitations Under the Plan.
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(i)
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Calculation
of Award Limitations. On May 10, 2023, the Board approved a reverse stock split of 1-for-17. The par value of the common stock
and preferred stock was not adjusted as a result of the reverse stock split. The limitations on awards under this Plan listed below
have been adjusted to give effect to the reverse stock split and rounded for convenience. |
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(ii) |
Annual
Limitation on Individual Awards. No Eligible Person may be granted any Award or Awards for more than 25,000 Shares (subject to
adjustment as provided for in Section 4(c) of the Plan), in the aggregate in any calendar year. |
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(iii) |
Limit
on Awards to Non-Employee Directors. Notwithstanding the foregoing limit in (d)(i) above, Directors who are not also employees
of the Company or an Affiliate may not be granted and Award or Awards in the aggregate in any calendar year of more than 2,000 Shares,
subject to adjustment as provided in Section 4(c) of the Plan. |
Section
5. Eligibility
Any
Eligible Person shall be eligible to be designated as a Participant. In determining which Eligible Persons shall receive an Award and
the terms of any Award, the Committee may take into account the nature of the services rendered by the respective Eligible Persons, their
present and potential contributions to the success of the Company or such other factors as the Committee, in its discretion, shall deem
relevant. Notwithstanding the foregoing, an Incentive Stock Option may only be granted to full-time or part-time employees (which term
as used herein includes, without limitation, officers and Directors who are also employees), and an Incentive Stock Option shall not
be granted to an employee of an Affiliate unless such Affiliate is also a “subsidiary corporation” of the Company within
the meaning of Section 424(f) of the Code or any successor provision.
Section
6. Awards
(a)
Options. The Committee is hereby authorized to grant Options to Eligible Persons with the following terms and conditions and with
such additional terms and conditions not inconsistent with the provisions of the Plan as the Committee shall determine:
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(i) |
Exercise
Price. The purchase price per Share purchasable under an Option shall be determined by the Committee and shall not be less than
100% of the Fair Market Value of a Share on the date of grant of such Option; provided, however, that the Committee may designate
a purchase price below Fair Market Value on the date of grant if the Option is granted in substitution for a stock option previously
granted by an entity that is acquired by or merged with the Company or an Affiliate. |
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(ii) |
Option
Term. The term of each Option shall be fixed by the Committee at the time but shall not be longer than 10 years from the date
of grant. |
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(iii) |
Time
and Method of Exercise. The Committee shall determine the time or times at which an Option may be exercised in whole or in part
and the method or methods by which, and the form or forms, including, but not limited to, cash, Shares (actually or by attestation),
other securities, other Awards or other property, or any combination thereof, having a Fair Market Value on the exercise date equal
to the applicable exercise price, in which, payment of the exercise price with respect thereto may be made or deemed to have been
made. |
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(A) |
Promissory
Notes. Notwithstanding the foregoing, the Committee may not accept a promissory note as consideration. |
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(B) |
Net
Exercises. The Committee may, in its discretion, permit an Option to be exercised by delivering to the Participant a number of
Shares having an aggregate Fair Market Value (determined as of the date of exercise) equal to the excess, if positive, of the Fair
Market Value of the Shares underlying the Option being exercised on the date of exercise, over the exercise price of the Option for
such Shares. |
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(iv) |
Incentive
Stock Options. Notwithstanding anything in the Plan to the contrary, the following additional provisions shall apply to the grant
of stock options which are intended to qualify as Incentive Stock Options: |
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(A) |
To
the extent that the aggregate Fair Market Value (determined at the time of grant) of the Shares with respect to which Incentive Stock
Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company and any Affiliates)
exceeds $100,000 (or such other limit established in the Code) or otherwise does not comply with the rules governing Incentive Stock
Options, the Options or portions thereof that exceed such limit (according to the order in which they were granted) or otherwise
do not comply with such rules will be treated as Non-Qualified Stock Options, notwithstanding any contrary provision of the applicable
Award Agreement(s). |
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(B) |
All
Incentive Stock Options must be granted within ten years from the earlier of the date on which this Plan was adopted by the Board
or the date this Plan was approved by the stockholders of the Company. |
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(C) |
Unless
sooner exercised, all Incentive Stock Options shall expire and no longer be exercisable no later than 10 years after the date of
grant; provided, however, that in the case of a grant of an Incentive Stock Option to a Participant who, at the time
such Option is granted, owns (within the meaning of Section 422 of the Code) stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or of its Affiliates, such Incentive Stock Option shall expire and no longer
be exercisable no later than five years from the date of grant. |
|
(D) |
The
purchase price per Share for an Incentive Stock Option shall be not less than 100% of the Fair Market Value of a Share on the date
of grant of the Incentive Stock Option; provided, however, that, in the case of the grant of an Incentive Stock Option
to a Participant who, at the time such Option is granted, owns (within the meaning of Section 422 of the Code) stock possessing more
than 10% of the total combined voting power of all classes of stock of the Company or of its Affiliates, the purchase price per Share
purchasable under an Incentive Stock Option shall be not less than 110% of the Fair Market Value of a Share on the date of grant
of the Incentive Stock Option. |
|
(E) |
Any
Incentive Stock Option authorized under the Plan shall contain such other provisions as the Committee shall deem advisable but shall
in all events be consistent with and contain all provisions required in order to qualify the Option as an Incentive Stock Option. |
(b)
Stock Appreciation Rights. The Committee is hereby authorized to grant Stock Appreciation Rights to Eligible Persons subject to
the terms of the Plan and any applicable Award Agreement. A Stock Appreciation Right granted under the Plan shall confer on the holder
thereof a right to receive upon exercise thereof the excess of (i) the Fair Market Value of one Share on the date of exercise over (ii)
the grant price of the Stock Appreciation Right as specified by the Committee, which price shall not be less than 100% of the Fair Market
Value of one Share on the date of grant of the Stock Appreciation Right; provided, however, that the Committee may designate a
grant price below Fair Market Value on the date of grant if the Stock Appreciation Right is granted in substitution for a stock appreciation
right previously granted by an entity that is acquired by or merged with the Company or an Affiliate. Subject to the terms of the Plan
and any applicable Award Agreement, the grant price, term, methods of exercise, dates of exercise, methods of settlement and any other
terms and conditions of any Stock Appreciation Right shall be as determined by the Committee (except that the term of each Stock Appreciation
Right shall be subject to the term limitation in Section 6(a)(ii) applicable to Options). The Committee may impose such conditions or
restrictions on the exercise of any Stock Appreciation Right as it may deem appropriate.
(c)
Restricted Stock and Restricted Stock Units. The Committee is hereby authorized to grant an Award of Restricted Stock and Restricted
Stock Units to Eligible Persons with the following terms and conditions and with such additional terms and conditions not inconsistent
with the provisions of the Plan as the Committee shall determine:
|
(i) |
Restrictions.
Shares of Restricted Stock and Restricted Stock Units shall be subject to such restrictions as the Committee may impose (including,
without limitation, any limitation on the right to vote a Share of Restricted Stock or the right to receive any dividend or other
right or property with respect thereto), which restrictions may lapse separately or in combination at such time or times, in such
installments or otherwise as the Committee may deem appropriate. Notwithstanding the foregoing, rights to dividend or Dividend Equivalent
payments shall be subject to the limitations described in Section 6(e). Awards may, at the Committee’s discretion, be conditioned
upon a Participant’s completion of a specified period of service, or upon the achievement of one or more performance goals
established by the Compensation, or upon any combination of service-based and performance-based conditions. |
|
(ii) |
Issuance
and Delivery of Shares. Any Restricted Stock granted under the Plan shall be issued at the time such Awards are granted and may
be evidenced in such manner as the Committee may deem appropriate, including book-entry registration or issuance of a stock certificate
or certificates, which certificate or certificates shall be held by the Company or held in nominee name by the stock transfer agent
or brokerage service selected by the Company to provide such services for the Plan. Such certificate or certificates shall be registered
in the name of the Participant and shall bear an appropriate legend referring to the restrictions applicable to such Restricted Stock.
Shares representing Restricted Stock that are no longer subject to restrictions shall be delivered (including by updating the book-entry
registration) to the Participant promptly after the applicable restrictions lapse or are waived. In the case of Restricted Stock
Units, no Shares shall be issued at the time such Awards are granted. Upon the lapse or waiver of restrictions and the restricted
period relating to Restricted Stock Units evidencing the right to receive Shares, such Shares shall be issued and delivered to the
holder of the Restricted Stock Units. |
(e)
Dividend Equivalents. The Committee is hereby authorized to grant Dividend Equivalents to Eligible Persons under which the Participant
shall be entitled to receive payments (in cash, Shares, other securities, other Awards or other property as determined in the discretion
of the Committee) equivalent to the amount of cash dividends paid by the Company to holders of Shares with respect to a number of Shares
determined by the Committee. Subject to the terms of the Plan and any applicable Award Agreement, such Dividend Equivalents may have
such terms and conditions as the Committee shall determine. Notwithstanding the foregoing, (i) the Committee may not grant Dividend Equivalents
to Eligible Persons in connection with grants of Options or Stock Appreciation Rights to such Eligible Persons, and (ii) no dividend
or Dividend Equivalent payments shall be made to a Participant with respect to any other Award prior to the date on which all conditions
or restrictions relating to such Award (or portion thereof to which the dividend or Dividend Equivalent relates) have been satisfied,
waived or lapsed.
(f)
General.
|
(i) |
Consideration
for Awards. Awards may be granted for no cash consideration or for any cash or other consideration as may be determined by the
Committee or required by applicable law. |
|
(ii) |
Awards
May Be Granted Separately or Together. Awards may, in the discretion of the Committee, be granted either alone or in addition
to, in tandem with or in substitution for any other Award or any award granted under any other plan of the Company or any Affiliate.
Awards granted in addition to or in tandem with other Awards or in addition to or in tandem with awards granted under any other plan
of the Company or any Affiliate may be granted either at the same time as or at a different time from the grant of such other Awards
or awards. |
|
(iii) |
Forms
of Payment under Awards. Subject to the terms of the Plan and of any applicable Award Agreement, payments or transfers to be
made by the Company or an Affiliate upon the grant, exercise or payment of an Award may be made in such form or forms as the Committee
shall determine (including, without limitation, cash, Shares, other securities (but excluding promissory notes), other Awards or
other property or any combination thereof), and may be made in a single payment or transfer, in installments or on a deferred basis,
in each case in accordance with rules and procedures established by the Committee. Such rules and procedures may include, without
limitation, provisions for the payment or crediting of reasonable interest on installment or deferred payments or the grant or crediting
of Dividend Equivalents with respect to installment or deferred payments. |
|
(iv) |
Limits
on Transfer of Awards. Except as otherwise provided by the Committee in its discretion and subject to such additional terms and
conditions as it determines, no Award (other than fully vested and unrestricted Shares issued pursuant to any Award) and no right
under any such Award shall be transferable by a Participant other than by will or by the laws of descent and distribution, and no
Award (other than fully vested and unrestricted Shares issued pursuant to any Award) or right under any such Award may be pledged,
alienated, attached or otherwise encumbered, and any purported pledge, alienation, attachment or encumbrance thereof shall be void
and unenforceable against the Company or any Affiliate. If the Committee does permit the transfer of an Award other than a fully
vested and unrestricted Share, such transfer shall be for no value and in accordance with the rules of Form S-8. The Committee may
establish procedures as it deems appropriate for a Participant to designate a person or persons, as beneficiary or beneficiaries,
to exercise the rights of the Participant and receive any property distributable with respect to any Award in the event of the Participant’s
death. |
|
(v) |
Restrictions;
Securities Exchange Listing. All Shares or other securities delivered under the Plan pursuant to any Award or the exercise thereof
shall be subject to such restrictions as the Committee may deem advisable under the Plan, applicable federal or state securities
laws and regulatory requirements, and the Committee may cause appropriate entries to be made with respect to, or legends to be placed
on the certificates for, such Shares or other securities to reflect such restrictions. The Company shall not be required to deliver
any Shares or other securities covered by an Award unless and until the requirements of any federal or state securities or other
laws, rules or regulations (including the rules of any securities exchange) as may be determined by the Company to be applicable
are satisfied. |
|
(vi) |
Option
and Stock Appreciation Right Repricing. Except as provided in Section 4(c) hereof, the Committee may not, without prior approval
of the Company’s stockholders, seek to effect any repricing of any previously granted “underwater” Option or Stock
Appreciation Right by: (i) amending or modifying the terms of the Option or Stock Appreciation Right to lower the exercise price;
(ii) canceling the underwater Option or Stock Appreciation Right and granting either (A) replacement Options or Stock Appreciation
Rights having a lower exercise price; or (B) Restricted Stock, Restricted Stock Units, or Other Stock-Based Award in exchange; or
(iii) repurchasing the underwater Option or Stock Appreciation Right. An Option or Stock Appreciation Right will be deemed to be
“underwater” at any time when the Fair Market Value of the Shares covered by such Option or Stock Appreciation Right
is less than the exercise price. |
|
(vii) |
Section
409A Provisions. Notwithstanding anything in the Plan or any Award Agreement to the contrary, to the extent that any amount or
benefit that constitutes “deferred compensation” to a Participant under Section 409A and applicable guidance thereunder
is otherwise payable or distributable to a Participant under the Plan or any Award Agreement solely by reason of the occurrence of
a change in control or due to the Participant’s disability or “separation from service” (as such term is defined
under Section 409A), such amount or benefit will not be payable or distributable to the Participant by reason of such circumstance
unless the Committee determines in good faith that (i) the circumstances giving rise to such change in control, disability or separation
from service meet the definition of a change in ownership or effective control, disability, or separation from service, as the case
may be, in Section 409A(a)(2)(A) of the Code and applicable proposed or final regulations, or (ii) the payment or distribution of
such amount or benefit would be exempt from the application of Section 409A by reason of the short-term deferral exemption or otherwise.
Any payment or distribution that otherwise would be made to a Participant who is a Specified Employee (as determined by the Committee
in good faith) on account of separation from service may not be made before the date which is six months after the date of the Specified
Employee’s separation from service (or if earlier, upon the Specified Employee’s death) unless the payment or distribution
is exempt from the application of Section 409A by reason of the short-term deferral exemption or otherwise.. |
Section
7. Amendment and Termination; Corrections
(a)
Amendments to the Plan and Awards. The Board may from time to time amend, suspend or terminate this Plan, and the Committee may
amend the terms of any previously granted Award, provided that no amendment to the terms of any previously granted Award may, (except
as expressly provided in the Plan) materially and adversely alter or impair the terms or conditions of the Award previously granted to
a Participant under this Plan without the written consent of the Participant or holder thereof. Any amendment to this Plan, or to the
terms of any Award previously granted, is subject to compliance with all applicable laws, rules, regulations and policies of any applicable
governmental entity or securities exchange, including receipt of any required approval from the governmental entity or stock exchange.
For greater certainty and without limiting the foregoing, the Board may amend, suspend, terminate or discontinue the Plan, and the Committee
may amend or alter any previously granted Award, as applicable, without obtaining the approval of stockholders of the Company in order
to:
|
(i) |
amend
the eligibility for, and limitations or conditions imposed upon, participation in the Plan; |
|
(ii) |
amend
any terms relating to the granting or exercise of Awards, including but not limited to terms relating to the amount and payment of
the exercise price, or the vesting, expiry, assignment or adjustment of Awards, or otherwise waive any conditions of or rights of
the Company under any outstanding Award, prospectively or retroactively; |
|
(iii) |
make
changes that are necessary or desirable to comply with applicable laws, rules, regulations and policies of any applicable governmental
entity or stock exchange (including amendments to Awards necessary or desirable to maximize any available tax deduction or to avoid
any adverse tax results, and no action taken to comply with such laws, rules, regulations and policies shall be deemed to impair
or otherwise adversely alter or impair the rights of any holder of an Award or beneficiary thereof); or |
|
(iv) |
amend
any terms relating to the administration of the Plan, including the terms of any administrative guidelines or other rules related
to the Plan. |
For
greater certainty, prior approval of the stockholders of the Company shall be required for any amendment to the Plan or an Award that
would:
|
(i) |
require
stockholder approval under the rules or regulations of the Securities and Exchange Commission, the NASDAQ Stock Market or any other
securities exchange that are applicable to the Company; |
|
(ii) |
increase
the number of shares authorized under the Plan as specified in Section 4(a) of the Plan; |
|
(iii) |
increase
the number of shares or value subject to the limitations contained in Section 4(d) of the Plan; |
|
(iv) |
permit
repricing of Options or Stock Appreciation Rights, which is currently prohibited by Section 6(f)(vi) of the Plan, or permit the award
of Options or Stock Appreciation Rights at a price less than 100% of the Fair Market Value of a Share on the date of grant of such
Option or Stock Appreciation Right, contrary to the provisions of Section 6(a)(i) and Section 6(b) of the Plan; or |
|
(v) |
increase
the maximum term permitted for Options and Stock Appreciation Rights as specified in Section 6(a)(ii) and Section 6(b). |
(b)
Corporate Transactions. In the event of any Change in Control Event, reorganization, merger, consolidation, split-up, spin-off,
combination, plan of arrangement, take-over bid or tender offer, repurchase or exchange of Shares or other securities of the Company
or any other similar corporate transaction or event involving the Company (or the Company shall enter into a written agreement to undergo
such a transaction or event), any such event defined herein as a “Corporate Transaction”, the Committee or the Board may,
in its sole discretion, provide for one or more of the following to be effective upon the consummation of the event (or effective immediately
prior to the consummation of the event, provided that the consummation of the event subsequently occurs), and no action taken under this
Section 7(b) shall be deemed to impair or otherwise adversely alter or impair the rights of any holder of an Award or beneficiary thereof:
|
(i) |
either
(A) termination of any Award, whether or not vested, in exchange for an amount of cash and/or other property, if any, equal to the
gain that would have been attained upon the exercise of the Award or realization of the Participant’s rights or (B) the replacement
of the Award with other rights or property selected by the Committee or the Board, in its sole discretion; |
|
(ii) |
that
the Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by
similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices; |
|
(iii) |
that
the Award shall be exercisable or payable or fully vested with respect to all Shares covered thereby, notwithstanding anything to
the contrary in the applicable Award Agreement; or |
|
(iv) |
that
the Award cannot vest, be exercised or become payable after a date certain in the future, which may be the effective date of the
event. |
Notwithstanding
the foregoing, with respect to any Award, or any portion thereof, that is neither assumed by the successor or survivor corporation nor
substituted as provided in (b)(ii) above, then the portion of the Award that is not assumed or substituted shall become fully vested,
exercisable and payable with respect to all shares covered thereby. Furthermore, in the event the Committee or the Board uses its discretion
under Section 7(b)(i)(A) above to terminate an unexercised Option or Stock Appreciation Right held by a Participant who has not terminated
employment or otherwise separated from service with the Company and its Affiliates, and if the Black-Scholes value of the Option or Stock
Appreciation Right (determined at the time the Award is terminated) exceeds the gain that would have been realized upon exercise of the
Option or Stock Appreciation Right, the Company shall pay an additional cash bonus equal to the excess of the Black-Scholes value over
the gain (if any) that would have been realized upon exercise. In such event where the Black-Scholes value exceeds the gain that would
have been realized upon exercise of the Option or Stock Appreciation Right, the excess shall be treated as a short-term deferral for
purposes of Section 409A, payable upon the Corporate Transaction to Participants who are then in employment or service with the Company
and its Affiliates and solely in connection with the termination of the Option or Stock Appreciation Right as described in Section 7(b)(i)(A)
above, and not in connection with any exercise of the Option or Stock Appreciation Right.
(c)
Correction of Defects, Omissions and Inconsistencies. The Committee may, without prior approval of the stockholders of the Company,
correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any Award or Award Agreement in the manner and
to the extent it shall deem desirable to implement or maintain the effectiveness of the Plan.
Section
8. Income Tax Withholding
In
order to comply with all applicable federal, state, local or foreign income tax laws or regulations, the Company may take such action
as it deems appropriate to ensure that all applicable federal, state, local or foreign payroll, withholding, income or other taxes, which
are the sole and absolute responsibility of a Participant, are withheld or collected from such Participant. In order to assist a Participant
in paying all or a portion of the applicable taxes incurred upon exercise or receipt of (or the lapse of restrictions relating to) an
Award, the Committee, in its discretion and subject to such additional terms and conditions as it may adopt, may permit the Participant
to satisfy such tax obligation by (a) electing to have the Company withhold a portion of the Shares otherwise to be delivered upon exercise
or receipt of (or the lapse of restrictions relating to) such Award with a Fair Market Value equal to the amount of such taxes (but only
to the extent necessary to satisfy minimum statutory withholding requirements) or (b) delivering to the Company Shares other than Shares
issuable upon exercise or receipt of (or the lapse of restrictions relating to) such Award with a Fair Market Value equal to the amount
of such taxes. The election, if any, must be made on or before the date that the amount of tax to be withheld is determined.
Section
9. General Provisions
(a)
No Rights to Awards. No Eligible Person, Participant or other person shall have any claim to be granted any Award under the Plan,
and there is no obligation for uniformity of treatment of Eligible Persons, Participants or holders or beneficiaries of Awards under
the Plan. The terms and conditions of Awards need not be the same with respect to any Participant or with respect to different Participants.
(b)
Award Agreements. No Participant shall have rights under an Award granted to such Participant unless and until an Award Agreement
shall have been signed by the Participant (if requested by the Company), or until such Award Agreement is delivered and accepted through
an electronic medium in accordance with procedures established by the Company. An Award Agreement need not be signed by a representative
of the Company unless required by the Committee. Each Award Agreement shall be subject to the applicable terms and conditions of the
Plan and any other terms and conditions (not inconsistent with the Plan) determined by the Committee.
(c)
Plan Provisions Control. In the event that any provision of an Award Agreement conflicts with or is inconsistent in any respect
with the terms of the Plan as set forth herein or subsequently amended, the terms of the Plan shall control.
(d)
No Rights of Stockholders. Except with respect to Shares issued under Awards (and subject to such conditions as the Committee
may impose on such Awards pursuant to Section 6(c)(i) or Section 6(e)), neither a Participant nor the Participant’s legal representative
shall be, or have any of the rights and privileges of, a stockholder of the Company with respect to any Shares issuable upon the exercise
or payment of any Award, in whole or in part, unless and until such Shares have been issued.
(e)
No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall prevent the Company or any Affiliate from adopting
or continuing in effect other or additional compensation plans or arrangements, and such plans or arrangements may be either generally
applicable or applicable only in specific cases.
(f)
No Right to Employment. The grant of an Award shall not be construed as giving a Participant the right to be retained as an employee
of the Company or any Affiliate, , nor will it affect in any way the right of the Company or an Affiliate to terminate a Participant’s
employment at any time, with or without cause, in accordance with applicable law. In addition, the Company or an Affiliate may at any
time dismiss a Participant from employment, free from any liability or any claim under the Plan or any Award, unless otherwise expressly
provided in the Plan or in any Award Agreement. Nothing in this Plan shall confer on any person any legal or equitable right against
the Company or any Affiliate, directly or indirectly, or give rise to any cause of action at law or in equity against the Company or
an Affiliate. Under no circumstances shall any person ceasing to be an employee of the Company or any Affiliate be entitled to any compensation
for any loss of any right or benefit under the Plan which such employee or Director might otherwise have enjoyed but for termination
of employment, whether such compensation is claimed by way of damages for wrongful or unfair dismissal, breach of contract or otherwise.
By participating in the Plan, each Participant shall be deemed to have accepted all the conditions of the Plan and the terms and conditions
of any rules and regulations adopted by the Committee and shall be fully bound thereby.
(g)
Governing Law. The internal law, and not the law of conflicts, of the State of Delaware shall govern all questions concerning
the validity, construction and effect of the Plan or any Award, and any rules and regulations relating to the Plan or any Award.
(h)
Severability. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal or unenforceable in
any jurisdiction or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination
of the Committee, materially altering the purpose or intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction
or Award, and the remainder of the Plan or any such Award shall remain in full force and effect.
(i)
No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any
kind or a fiduciary relationship between the Company or any Affiliate and a Participant or any other person. To the extent that any person
acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no greater than the
right of any unsecured general creditor of the Company or any Affiliate.
(j)
Other Benefits. No compensation or benefit awarded to or realized by any Participant under the Plan shall be included for the
purpose of computing such Participant’s compensation or benefits under any pension, retirement, savings, profit sharing, group
insurance, disability, severance, termination pay, welfare or other benefit plan of the Company, unless required by law or otherwise
provided by such other plan.
(k)
No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash shall be paid in lieu of any fractional Share or whether such fractional Share or any rights thereto shall be
canceled, terminated or otherwise eliminated.
(l)
Headings. Headings are given to the sections and subsections of the Plan solely as a convenience to facilitate reference. Such
headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof.
Section
10. Clawback or Recoupment
All
Awards under this Plan shall be subject to forfeiture or other penalties pursuant to (i) any Company clawback policy, as may be adopted
or amended from time to time, (ii) such forfeiture and/or penalty conditions or provisions as determined by the Committee, and (iii)
any applicable law, rule, or regulation or applicable stock exchange rule, including, without limitation, Section 304 of the Sarbanes-Oxley
Act of 2002, Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any applicable stock exchange listing rule
adopted pursuant thereto.
Section
11. Effective Date of the Plan
The
Plan was initially adopted by the Board on April 15, 2014 and approved by stockholders on June 10, 2014. The Plan has since been amended
and restated on several occasions. This Fifth Amended and Restated Plan was adopted by the Board on February 13, 2024, as further amended
on June 3, 2024. The Plan shall be subject to approval by the stockholders of the Company at the annual meeting of stockholders of the
Company to be held on June 5, 2024, and such amendment shall be effective as of the date of such stockholder approval (the “Effective
Date”).
Section
12. Term of the Plan
No
Award shall be granted under the Plan, and the Plan shall terminate, on February 13, 2034, or any earlier date of discontinuation or
termination established pursuant to Section 7(a) of the Plan. Unless otherwise expressly provided in the Plan or in an applicable Award
Agreement, any Award theretofore granted may extend beyond such dates, and the authority of the Committee provided for hereunder with
respect to the Plan and any Awards, and the authority of the Board to amend the Plan, shall extend beyond the termination of the Plan.
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