PROPOSAL
1
APPROVAL
OF THE
VICAPSYS
LIFE SCIENCES, INC., 2022 OMNIBUS EQUITY INCENTIVE PLAN
Introduction
On
August 10, 2022, the Board adopted and approved the Company’s 2022 Omnibus Equity Incentive Plan (the “Plan”) in the
form set forth in Appendix A, On November 16, 2022 the Majority Stockholders adopted and approved the Plan.
The
following is a summary of the principal features of the Plan. This summary does not purport to be a complete description of all of the
provisions of the Plan. It is qualified in its entirety by reference to the full text of the 2022 Plan, which included as Appendix A
to this information statement.
The
Plan will provide an opportunity for any employee, officer, director or consultant of the Company, subject to limitations provided by
federal or state securities laws, to receive (i) incentive stock options (to eligible employees only); (ii) nonqualified stock options;
(iii) restricted stock; (iv) restricted stock units, (v) stock awards; (vi) shares in performance of services; (vii) other stock-based
awards; or (viii) any combination of the foregoing. In making such determinations, the Board of Directors may take into account the nature
of the services rendered by such person, his or her present and potential contribution to the Company’s success, and such other
factors as the Board in its discretion shall deem relevant.
Under
the Plan, 3,200,000 shares of Company common stock are initially available for grant.
Our
administrator may grant incentive stock options, non-statutory stock options, stock appreciation rights, restricted stock, restricted
stock units and other stock-based awards to participants to acquire shares of Company common stock under the Plan. It is anticipated
that the Plan will be administered by the Board, subject to the right of the Board to delegate administration of the Plan to a committee
of the Board. The closing price per share of Company common stock on October 31, 2022 was $1.00.
The
following table sets forth, as of October 31, 2022, the approximate number of each class of participants eligible to participate in the
Plan and the basis of such participation.
Class
and Basis of Participation |
|
Approximate
Number of
Class |
Employees |
|
2 |
Directors(1) |
|
5 |
Independent
Contractors |
|
— |
(1) |
Federico Pier of the board of directors is also an employee
of the Company. |
Rationale
for Adoption of the Plan
Grants
of options, stock appreciation rights, restricted shares of common stock, restricted stock units and other stock-based awards to our
employees, directors and independent contractors are an important part of our long-term incentive compensation program, which we use
in order to strengthen the commitment of such individuals to us, motivate them to faithfully and diligently perform their responsibilities
and attract and retain competent and dedicated individuals whose efforts are expected to result in our long-term growth and profitability.
The
number of shares proposed to be available for grant under the Plan is designed to enable the Company to properly incentivize its employees
and management teams over a number of years on a going-forward basis.
No
Vote Required
As
a majority of shareholders have already approved the Plan, no further shareholder consent is required.
Summary
of the Plan
Dilution
& Stock Available
3,200,000
shares of Company common stock will be reserved for issuance under the Plan as of August 10, 2022, which represents approximately
10% of our issued and outstanding shares of Company’s common stock. The Board believes that this number of shares of Company’s
common stock constitutes reasonable potential equity dilution and provides a significant incentive for employees to increase the value
of the Company for all stockholders. The closing trading price of each share of Company common stock as of the Record Date was $1.00.
As
of the Record Date, we had: (i) 31,242,728 shares of Company common stock outstanding; (ii) no stock options outstanding (vested and
unvested); and (iii) no shares of unvested restricted stock outstanding. The new shares of Company’s common stock available under
the Plan would represent an additional potential equity dilution of approximately 10%.
Shares
Available; Certain Limitations
The
maximum number of shares of common stock reserved and available for issuance under the Plan will be equal to the sum of (i) 3,200,000
shares of common stock, and (ii) to the extent the Company issues new shares of Common Stock other than under the terms of this Plan
or other than certain Inducement Awards, 3.1% of the shares of Common Stock issued by the Company in such issuance (or such lower amount
as determined by the Board); provided that shares of common stock issued under the Plan with respect to an Exempt Award will not count
against the share limit. We use the term “Exempt Award” to mean (i) an award granted in the assumption of, or in substitution
for, outstanding awards previously granted by another business entity acquired by us or any of our subsidiaries or with which we or any
of our subsidiaries merges, (ii) an award that a participant purchases at fair market value, or (iii) an award issued pursuant to NASDAQ
Listing Rule 5635(c), the New York Stock Exchange’s Listing Company Manual Rule 303A.08, or any such similar provision, as an inducement
to the applicable Participant’s accepting employment with the Company.
No
more than 3,200,000 shares of common stock shall be issued pursuant to the exercise of incentive stock options.
New
shares reserved for issuance under the Plan may be authorized but unissued shares of Company’s common stock or shares of Company’s
common stock that will have been or may be reacquired by us in the open market, in private transactions or otherwise. If any shares of
Company’s common stock subject to an award are forfeited, cancelled, exchanged or surrendered or if an award terminates or expires
without a distribution of shares to the participant, the shares of Company common stock with respect to such award will, to the extent
of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for awards under the Plan except
that (i) any shares of Company common stock reacquired by the Company on the open market or otherwise using cash proceeds from the exercise
of options, and (ii) any shares of Company common stock surrendered or withheld as payment of either the exercise price of an award and/or
withholding taxes in respect of an award will not again be available for awards under the Plan. If an award is denominated in shares
of Company’s common stock, but settled in cash, the number of shares of common stock previously subject to the award will again
be available for grants under the Plan. If an award can only be settled in cash, it will not be counted against the total number of shares
of common stock available for grant under the Plan. However, upon the exercise of any award granted in tandem with any other awards,
such related awards will be cancelled as to the number of shares as to which the award is exercised and such number of shares of Company’s
common stock will no longer be available for grant under the Plan.
As
exhibited by our responsible use of equity over the past several years and good corporate governance practices associated with equity
and executive compensation practices in general, the stock reserved under the Plan will provide us with the platform needed for our continued
growth, while managing program costs and share utilization levels within acceptable industry standards.
Types
of Awards
The
Plan provides for the issuance of incentive stock options, non-statutory stock options, stock appreciation rights (“SARs”),
restricted stock, restricted stock units (“RSUs”), and other stock-based awards. Items described above in the Section called
“Shares Available” are incorporated herein by reference.
Administration
The
Plan will be administered by our board of directors, or if our board of directors does not administer the Plan, any committee or subcommittee
of our board of directors that complies with the applicable requirements of Section 16 of the Exchange Act and any other applicable legal
or stock exchange listing requirements (each of our board of directors or such committee or subcommittee, the “plan administrator”).
The plan administrator may interpret the Plan and may prescribe, amend and rescind rules and make all other determinations necessary
or desirable for the administration of the Plan.
The
Plan permits the plan administrator to select the eligible recipients who will receive awards, to determine the terms and conditions
of those awards, including but not limited to the exercise price or other purchase price of an award, the number of shares of common
stock or cash or other property subject to an award, the term of an award and the vesting schedule applicable to an award, and to amend
the terms and conditions of outstanding awards. No participant who is a director, but is not also an employee or consultant, of the Company
shall receive awards under the Plan and be paid cash compensation during any calendar year that exceed, in the aggregate, $150,000 in
total value, increased to $195,000 in the calendar year of his or her initial service as a non-employee director.
Restricted
Stock and Restricted Stock Units
Restricted
stock and RSUs may be granted under the Plan. The plan administrator will determine the purchase price, vesting schedule and performance
goals, if any, and any other conditions that apply to a grant of restricted stock and RSUs. If the restrictions, performance goals or
other conditions determined by the plan administrator are not satisfied, the restricted stock and RSUs will be forfeited. Subject to
the provisions of the Plan and the applicable award agreement, the plan administrator has the sole discretion to provide for the lapse
of restrictions in installments.
Unless
the applicable award agreement provides otherwise, participants with restricted stock will generally have all of the rights of a stockholder;
provided that dividends will only be paid if and when the underlying restricted stock vests. RSUs will not be entitled to dividends prior
to vesting, but may be entitled to receive dividend equivalents if the award agreement provides for them. The rights of participants
granted restricted stock or RSUs upon the termination of employment or service to us will be set forth in the award agreement.
Options
Incentive
stock options and non-statutory stock options may be granted under the Plan. An “incentive stock option” means an option
intended to qualify for tax treatment applicable to incentive stock options under Section 422 of the Internal Revenue Code. A “non-statutory
stock option” is an option that is not subject to statutory requirements and limitations required for certain tax advantages that
are allowed under specific provisions of the Internal Revenue Code. A non-statutory stock option under the Plan is referred to for federal
income tax purposes as a “non-qualified” stock option. Each option granted under the Plan will be designated as a non-qualified
stock option or an incentive stock option. At the discretion of the administrator, incentive stock options may be granted only to our
employees, employees of our “parent corporation” (as such term is defined in Section 424(e) of the Code) or employees of
our subsidiaries.
The
exercise period of an option may not exceed ten years from the date of grant and the exercise price may not be less than 100% of the
fair market value of a share of common stock on the date the option is granted (110% of fair market value in the case of incentive stock
options granted to ten percent stockholders). The exercise price for shares of common stock subject to an option may be paid in cash,
or as determined by the administrator in its sole discretion, (i) through any cashless exercise procedure approved by the administrator
(including the withholding of shares of common stock otherwise issuable upon exercise), (ii) by tendering unrestricted shares of common
stock owned by the participant, (iii) with any other form of consideration approved by the administrator and permitted by applicable
law or (iv) by any combination of these methods. The option holder will have no rights to dividends or distributions or other rights
of a stockholder with respect to the shares of Common Stock subject to an option until the option holder has given written notice of
exercise and paid the exercise price and applicable withholding taxes.
In
the event of a participant’s termination of employment or service, the participant may exercise his or her option (to the extent
vested as of such date of termination) for such period of time as specified in his or her option agreement.
Stock
Appreciation Rights
SARs
may be granted either alone (a “free-standing SAR”) or in conjunction with all or part of any option granted under
the Plan (a “tandem SAR”). A free-standing SAR will entitle its holder to receive, at the time of exercise, an amount
per share up to the excess of the fair market value (at the date of exercise) of a share of common stock over the base price of the free-standing
SAR (which shall be no less than 100% of the fair market value of the related shares of common stock on the date of grant) multiplied
by the number of shares in respect of which the SAR is being exercised. A tandem SAR will entitle its holder to receive, at the time
of exercise of the SAR and surrender of the applicable portion of the related option, an amount per share up to the excess of the fair
market value (at the date of exercise) of a share of common stock over the exercise price of the related option multiplied by the number
of shares in respect of which the SAR is being exercised. The exercise period of a free-standing SAR may not exceed ten years from the
date of grant. The exercise period of a tandem SAR will also expire upon the expiration of its related option.
The
holder of a SAR will have no rights to dividends or any other rights of a stockholder with respect to the shares of Common Stock subject
to the SAR until the holder has given written notice of exercise and paid the exercise price and applicable withholding taxes.
In
the event of an participant’s termination of employment or service, the holder of a SAR may exercise his or her SAR (to the extent
vested as of such date of termination) for such period of time as specified in his or her SAR agreement.
Other
Stock-Based Awards.
The
administrator may grant other stock-based awards under the Plan, valued in whole or in part by reference to, or otherwise based on, shares
of common stock. The administrator will determine the terms and conditions of these awards, including the number of shares of common
stock to be granted pursuant to each award, the manner in which the award will be settled, and the conditions to the vesting and payment
of the award (including the achievement of performance goals). The rights of participants granted other stock-based awards upon the termination
of employment or service to us will be set forth in the applicable award agreement. In the event that a bonus is granted in the form
of shares of common stock, the shares of common stock constituting such bonus shall, as determined by the administrator, be evidenced
in uncertificated form or by a book entry record or a certificate issued in the name of the participant to whom such grant was made and
delivered to such participant as soon as practicable after the date on which such bonus is payable. Any dividend or dividend equivalent
award issued hereunder shall be subject to the same restrictions, conditions and risks of forfeiture as apply to the underlying award.
Equitable
Adjustment and Treatment of Outstanding Awards Upon a Change in Control
Equitable
Adjustments
In
the event of a merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase, reorganization, special or
extraordinary dividend or other extraordinary distribution (whether in the form of common shares, cash or other property), combination,
exchange of shares, or other change in corporate structure affecting our common stock, an equitable substitution or proportionate adjustment
shall be made in (i) the aggregate number and kind of securities reserved for issuance under the Plan, (ii) the kind and number of securities
subject to, and the exercise price of, any outstanding options and SARs granted under the Plan, (iii) the kind, number and purchase price
of shares of common stock, or the amount of cash or amount or type of property, subject to outstanding restricted stock, RSUs and other
stock-based awards granted under the Plan and (iv) the terms and conditions of any outstanding awards (including any applicable performance
targets). Equitable substitutions or adjustments other than those listed above may also be made as determined by the plan administrator.
In addition, the plan administrator may terminate all outstanding awards for the payment of cash or in-kind consideration having an aggregate
fair market value equal to the excess of the fair market value of the shares of common stock, cash or other property covered by such
awards over the aggregate exercise price, if any, of such awards, but if the exercise price of any outstanding award is equal to or greater
than the fair market value of the shares of common stock, cash or other property covered by such award, the plan administrator may cancel
the award without the payment of any consideration to the participant. With respect to awards subject to foreign laws, adjustments will
be made in compliance with applicable requirements. Except to the extent determined by the plan administrator, adjustments to incentive
stock options will be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3) of
the Code.
Change
in Control
The
Plan provides that, unless otherwise determined by the plan administrator and evidenced in an award agreement, if a “change in
control” (as defined below) occurs and a participant is employed by us or any of our affiliates immediately prior to the consummation
of the change in control, then the plan administrator, in its sole and absolute discretion, may (i) provide that any unvested or unexercisable
portion of an award carrying a right to exercise will become fully vested and exercisable; and (ii) cause the restrictions, deferral
limitations, payment conditions and forfeiture conditions applicable to any award granted under the Plan to lapse, and the awards will
be deemed fully vested and any performance conditions imposed with respect to such awards will be deemed to be fully achieved at target
performance levels. The administrator shall have discretion in connection with such change in control to provide that all outstanding
and unexercised options and SARs shall expire upon the consummation of such change in control.
For
purposes of the Plan, a “change in control” means, in summary, the first to occur of the following events: (i) a person or
entity becomes the beneficial owner of more than 50% of our voting power; (ii) any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation,
relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were
directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended cease
for any reason to constitute a majority of the number of directors serving on the Board; (iii) a merger or consolidation of us or any
of our subsidiaries, other than (A) a merger or consolidation that results in our voting securities continuing to represent 50% or more
of the combined voting power of the surviving entity or its parent and our board of directors immediately prior to the merger or consolidation
continuing to represent at least a majority of the board of directors of the surviving entity or its parent or (B) a merger or consolidation
effected to implement a recapitalization in which no person is or becomes the beneficial owner of our voting securities representing
more than 50% of our combined voting power; or (iv) stockholder approval of a plan of our complete liquidation or dissolution or the
consummation of an agreement for the sale or disposition of substantially all of our assets, other than (A) a sale or disposition to
an entity, more than 50% of the combined voting power of which is owned by our stockholders in substantially the same proportions as
their ownership of us immediately prior to such sale or (B) a sale or disposition to an entity controlled by our board of directors.
However, a change in control will not be deemed to have occurred as a result of any transaction or series of integrated transactions
following which our stockholders, immediately prior thereto, hold immediately afterward the same proportionate equity interests in the
entity that owns all or substantially all of our assets.
Tax
Withholding
Each
participant will be required to make arrangements satisfactory to the plan administrator regarding payment of up to the maximum statutory
tax rates in the participant’s applicable jurisdiction with respect to any award granted under the Plan, as determined by us. We
have the right, to the extent permitted by applicable law, to deduct any such taxes from any payment of any kind otherwise due to the
participant. With the approval of the plan administrator, the participant may satisfy the foregoing requirement by either electing to
have us withhold from delivery of shares of common stock, cash or other property, as applicable, or by delivering already owned unrestricted
shares of common stock, in each case, having a value not exceeding the applicable taxes to be withheld and applied to the tax obligations.
We may also use any other method of obtaining the necessary payment or proceeds, as permitted by applicable law, to satisfy our withholding
obligation with respect to any award.
Amendment
and Termination of the Plan
The
Plan provides our board of directors with authority to amend, alter or terminate the Plan, but no such action may impair the rights of
any participant with respect to outstanding awards without the participant’s consent. The plan administrator may amend an award,
prospectively or retroactively, but no such amendment may materially impair the rights of any participant without the participant’s
consent. Stockholder approval of any such action will be obtained if required to comply with applicable law. The Plan will terminate
on the tenth anniversary of the Effective Date (although awards granted before that time will remain outstanding in accordance with their
terms).
Clawback
If
we are required to prepare a financial restatement due to material non-compliance with any financial reporting requirement, then the
plan administrator may require any Section 16 officer to repay or forfeit to us that part of the cash or equity incentive compensation
received by that Section 16 officer during the preceding three years that the plan administrator determines was in excess of the amount
that such Section 16 officer would have received had such cash or equity incentive compensation been calculated based on the financial
results reported in the restated financial statement. The plan administrator may take into account any factors it deems reasonable in
determining whether to seek recoupment of previously paid cash or equity incentive compensation and how much of such compensation to
recoup from each Section 16 officer (which need not be the same amount or proportion for each Section 16 officer). The amount and form
of the incentive compensation to be recouped shall be determined by the administrator in its sole and absolute discretion.
US
Federal Income Tax Consequences
The
following is a summary of certain United States federal income tax consequences of awards under the Plan. It does not purport to be a
complete description of all applicable rules, and those rules (including those summarized here) are subject to change.
Non-Qualified
Stock Options
A
participant who has been granted a non-qualified stock option will not recognize taxable income upon the grant of a non-qualified stock
option. Rather, at the time of exercise of such non-qualified stock option, the participant will recognize ordinary income for income
tax purposes in an amount equal to the excess of the fair market value of the shares of common stock purchased over the exercise price.
We generally will be entitled to a tax deduction at such time and in the same amount that the participant recognizes ordinary income.
If shares of common stock acquired upon exercise of a non-qualified stock option are later sold or exchanged, then the difference between
the amount received upon such sale or exchange and the fair market value of such shares on the date of such exercise will generally be
taxable as long-term or short-term capital gain or loss (if the shares are a capital asset of the participant) depending upon the length
of time such shares were held by the participant.
Incentive
Stock Options (“ISO”)
In
general, no taxable income is realized by a participant upon the grant of an ISO. If shares of common stock are purchased by a participant,
or option shares, pursuant to the exercise of an ISO granted under the Plan and the participant does not dispose of the option shares
within the two-year period after the date of grant or within one year after the receipt of such option shares by the participant, such
disposition a disqualifying disposition, then, generally (1) the participant will not realize ordinary income upon exercise and (2) upon
sale of such option shares, any amount realized in excess of the exercise price paid for the option shares will be taxed to such participant
as capital gain (or loss). The amount by which the fair market value of the common stock on the exercise date of an ISO exceeds the purchase
price generally will constitute an item which increases the participant’s “alternative minimum taxable income.” If
option shares acquired upon the exercise of an ISO are disposed of in a disqualifying disposition, the participant generally would include
in ordinary income in the year of disposition an amount equal to the excess of the fair market value of the option shares at the time
of exercise (or, if less, the amount realized on the disposition of the option shares), over the exercise price paid for the option shares.
Subject to certain exceptions, an option generally will not be treated as an ISO if it is exercised more than three months following
termination of employment. If an ISO is exercised at a time when it no longer qualifies as an ISO, such option will be treated as a nonqualified
stock option as discussed above. In general, we will receive an income tax deduction at the same time and in the same amount as the participant
recognizes ordinary income.
Stock
Appreciation Rights
A
participant who is granted an SAR generally will not recognize ordinary income upon receipt of the SAR. Rather, at the time of exercise
of such SAR, the participant will recognize ordinary income for income tax purposes in an amount equal to the value of any cash received
and the fair market value on the date of exercise of any shares of common stock received. We generally will be entitled to a tax deduction
at such time and in the same amount, if any, that the participant recognizes as ordinary income. The participant’s tax basis in
any shares of common stock received upon exercise of an SAR will be the fair market value of the shares of common stock on the date of
exercise, and if the shares are later sold or exchanged, then the difference between the amount received upon such sale or exchange and
the fair market value of such shares on the date of exercise will generally be taxable as long-term or short-term capital gain or loss
(if the shares are a capital asset of the participant) depending upon the length of time such shares were held by the participant.
Restricted
Stock
A
participant generally will not be taxed upon the grant of restricted stock, but rather will recognize ordinary income in an amount equal
to the fair market value of the shares of common stock at the earlier of the time the shares become transferable or are no longer subject
to a substantial risk of forfeiture (within the meaning of the Code). We
generally will be entitled to a deduction at the time when, and in the amount that, the participant
recognizes ordinary income on account of the lapse of the restrictions. A participant’s tax basis in the shares of common stock
will equal their fair market value at the time the restrictions lapse, and the participant’s holding period for capital gains purposes
will begin at that time. Any cash dividends paid on the shares of common stock before the restrictions lapse will be taxable to the participant
as additional compensation and not as dividend income, unless the individual has made an election under Section 83(b) of the Code. Under
Section 83(b) of the Code, a participant may elect to recognize ordinary income at the time the restricted shares are awarded
in an amount equal to their fair market value at that time, notwithstanding the fact that
such stock is subject to restrictions or transfer and a substantial risk of forfeiture. If such an election is made, no additional taxable
income will be recognized by such participant at the time the restrictions lapse, the participant will have a tax basis in the shares
of common stock equal to their fair market value on the date of their award, and the participant’s holding period for capital gains
purposes will begin at that time. We generally will be entitled to a tax deduction at the
time when, and to the extent that, ordinary income is recognized by such participant.
Restricted
Stock Units
In
general, the grant of RSUs will not result in income for the participant or in a tax deduction for us. Upon the settlement of such an
award in cash or shares of common stock, the participant will recognize ordinary income equal to the aggregate value of the payment received,
and we generally will be entitled to a tax deduction at the same time and in the same amount.
Other
Awards
With
respect to other stock-based awards, generally when the participant receives payment in respect of the award, the amount of cash and/or
the fair market value of any shares of common stock or other property received will be ordinary income to the participant, and we
generally will be entitled to a tax deduction at the same time and in the same amount.
New
Plan Benefits
Future
grants under the Plan will be made at the discretion of the plan administrator and, accordingly, are not yet determinable. In addition,
benefits under the Plan will depend on a number of factors, including the fair market value of our common stock on future dates and the
exercise decisions made by participants. Consequently, at this time, it is not possible to determine the future benefits that might be
received by participants receiving discretionary grants under the Plan.
Equity
Compensation Plan Information
The
Company does not currently maintain any equity compensation plans. Stockholders have approved and adopted the Plan as described above.
The Board believes that the approval and adoption of the Plan will promote the interests of the Company and its stockholders and will
help the Company and its subsidiaries continue to be able to attract, retain and reward persons important to our success. All members
of the Board and all of the Company’s executive officers are eligible for awards under the Plan and thus have a personal interest
in the approval of the Plan.
2021
Summary Compensation Table
The
following table sets forth information regarding compensation earned in or with respect to our fiscal years 2021 and 2020 for the following
persons (collectively, the “named executive officers”):
|
(i) |
our
principal executive officer or other individual serving in a similar capacity during the fiscal year ended December 31, 2021; |
|
|
|
|
(ii) |
our
two most highly compensated executive officers other than our principal executive officers who were serving as executive officers
at December 31, 2021 whose compensation exceed $100,000; and |
|
|
|
|
(iii) |
up
to two additional individuals for whom disclosure would have been required but for the fact that the individual was not serving as
an executive officer at December 31, 2021. |
Name and Principal Position | |
Year | | |
Salary ($) | | |
Bonus ($) | | |
Stock Awards ($) | | |
Option Awards ($) | | |
Non-Equity Incentive Plan Compensation ($) | | |
All Other Compensation ($) | | |
Total ($) | |
Federico Pier, Chief Executive Officer and Executive Chairman (1) | |
| 2021 | | |
| 90,000 | (1) | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| 90,000 | |
| |
| 2020 | | |
| 90,000 | (1) | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| 90,000 | |
Jeffrey
Wright, Chief Financial Officer | |
| 2021 | | |
| 60,000 | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| 60,000 | |
| |
| 2020 | | |
| 60,000 | | |
| - | | |
| - | | |
| - | | |
| - | | |
| - | | |
| 60,000 | |
(1) |
In
February 2022, Mr. Pier was appointed as the Company’s Chief Executive Officer. Mr. Pier served as Interim Chief Executive
Officer of the Company from August 2020 to February 2022 and has served as Executive Chairman of the Board of Directors since May
2019. Mr. Pier receives $7,500 per month in his role of Executive Chairman of the Board of Directors of the Company, and did not
receive any additional compensation for his role as CEO. Mr. Pier received $30,000 and $15,000 of the amounts due him as Executive
Chairman in the fiscal years ending 2021 and 2020, respectively, and the remaining amounts due for these years of $60,000 and $75,0000,
respectively, will be paid in a year in which the payment of such amounts will not jeopardize the ability of the Company to continue
as a going concern. |
Narrative
Disclosure to Summary Compensation Table
Except
as otherwise described below, there are no compensatory plans or arrangements, including payments to be received from the Company with
respect to any named executive officer, that would result in payments to such person because of his or her resignation, retirement or
other termination of employment with the Company, or our subsidiaries, any change in control, or a change in the person’s responsibilities
following a change in control of the Company.
Other
Compensation
In
2021, the Company’s compensation program consisted primarily of the following elements: base salary, annual cash incentives, employee
benefit and perquisite programs.
Annual
Incentives
The
Company’s compensation program for named executive officers and other executive officers includes eligibility for annual cash bonuses.
Annual bonuses are determined in the sole discretion of the board of directors, based upon the Company meeting its business and financial
objectives generally and its annual financial performance targets in particular. For 2021, none of the named executive officers earned
a discretionary annual bonus.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth, as of the date of this information statement information regarding beneficial ownership of our capital stock
by:
|
● |
each
person, or group of affiliated persons, known by us to be the beneficial owner of 5% or more of any class of our voting securities; |
|
|
|
|
● |
each
of our current directors and nominees; |
|
|
|
|
● |
each
of our current named executive officers; and |
|
|
|
|
● |
all
current directors and named executive officers as a group. |
Beneficial
ownership is determined according to the rules of the SEC. Beneficial ownership means that a person has or shares voting or investment
power of a security and includes any securities that person or group has the right to acquire within 60 days after the measurement date.
This table is based on information supplied by officers, directors and principal stockholders. Except as otherwise indicated, we believe
that each of the beneficial owners of the Common Stock listed below, based on the information such beneficial owner has given to us,
has sole investment and voting power with respect to such beneficial owner’s shares, except where community property laws may apply.
Unless
otherwise indicated, the address of each of the following persons is c/o Vicapsys Life Sciences, Inc., 7778 Mcginnis Ferry Rd. #270,
Suwanee, GA 30024. Except as otherwise noted, the persons named in the table have sole voting and dispositive power with respect to all
shares beneficially owned, subject to community property laws where applicable.
Name and Address (1) | |
Number of Common Shares Beneficially Owned | | |
Percentage Owned (2) | |
5% Stockholders: | |
| | | |
| | |
Wildcat Partner Holdings, LP f/k/a Bonderman Family Limited Partnership (3) | |
| 7,070,588 | (4) | |
| 21.94 | % |
ADEC Private Equity Investments LLC (5) | |
| 3,735,294 | (6) | |
| 11.70 | % |
Massachusetts General Hospital (7) | |
| 3,582,880 | | |
| 11.47 | % |
YPH LLC (8) | |
| 3,320,000 | (9) | |
| 10.24 | % |
Steve Gorlin | |
| 2,146,324 | (10) | |
| 6.87 | % |
Deborah Gorlin | |
| 2,146,324 | (11) | |
| 6.87 | % |
Directors and Named Executive Officers: | |
| | | |
| | |
Jeffery Wright | |
| — | | |
| * | |
Federico Pier | |
| 855,785 | (12) | |
| 2.72 | % |
Dorothy Jordan | |
| 112,500 | | |
| * | |
Charles Farrahar | |
| 450,000 | | |
| 1.44 | % |
Colleen Delayney | |
| — | | |
| * | |
Richard Rosenblum | |
| — | | |
| * | |
All directors and officers as a group (6 persons) | |
| 1,418,285 | | |
| 4.50 | % |
*Less
than 1%
(1) |
Unless
otherwise stated, the address is 7778 Mcginnis Ferry Rd. #270, Suwanee, GA 30024. |
(2) |
Based
on 31,242,728 shares outstanding. |
(3) |
Wildcat
Capital Management, LLC (“Wildcat”) has voting and dispositive power over the shares and warrants held by Wildcat Partner
Holdings, LP (f/k/a Bonderman Family Limited Partnership) (“WPH”) pursuant to WPH’s limited partnership agreement
and an investment management agreement to which Wildcat and WPH are parties. Leonard A. Potter (“Potter”) is the sole
member of, and is an officer of, Wildcat. Brian J. Rosenblatt (“Rosenblatt”) is an officer of Wildcat. Each of Wildcat,
Potter and Rosenblatt may be deemed to beneficially own such securities held by WPH and each expressly disclaims beneficial ownership
of such securities except to the extent of any pecuniary interest therein. The address of WPH is 301 Commerce Street, Suite 3150,
Fort Worth, Texas 76102. The address of Wildcat, Potter and Rosenblatt is 888 Seventh Avenue, 37th Floor, New York, NY 10106. |
(4) |
Includes
1,000,000 shares of common stock issuable upon exercise of presently exercisable warrants. |
(5) |
E.
Burke Ross has voting and dispositive control over the ADEC Private Equity Investments, LLC. The address of ADEC Private Equity Investments,
LLC is 172 S. Ocean Blvd., Palm Beach, FL 32480 |
(6) |
Includes
600,000 shares of common stock issuable upon exercise of presently exercisable warrants. |
(7) |
Emile
Braun has voting control and dispositive control over Massachusetts General Hospital. The address of Massachusetts General Hospital
is 101 Huntington Ave., 4th Floor, Boston, MA 02199. |
(8) |
Michael
Yurkowsky has voting and dispositive control over YPH LLC. |
(9) |
Includes
1,200,000 shares of common stock issuable upon the exercise of presently exercisable warrants. |
(10) |
Includes
720,000 shares of common stock held by Mr. Gorlin’s wife. |
(11) |
Includes
1,426,324 shares of common stock held by Ms. Gorlin’s husband. |
(12) |
Includes
250,000 shares of common stock issuable upon the exercise of vested options. |
ADDITIONAL
INFORMATION
Householding
Matters
If
you and one or more stockholders share the same address, it is possible that only one Information Statement was delivered to your address.
Any registered stockholder who wishes to receive a separate copy of the Information Statement at the same address now or in the future
may mail a request to receive separate copies to the Company at 7778 Mcginnis Ferry Rd. #270, Suwanee, GA 30024, or call the Company
at (972) 891-8033, and the Company will promptly deliver the Information Statement to you upon your request. Stockholders who received
multiple copies of this Information Statement at a shared address and who wish to receive a single copy may direct their request to the
same address or phone number.
Available
Information
Please
read all the sections of this Information Statement carefully. The Company is subject to the reporting and informational requirements
of the Exchange Act and in accordance therewith, files reports, proxy statements and other information with the SEC. These reports, proxy
statements and other information filed by the Company with the SEC may be inspected without charge at the SEC’s Public Reference
Room at 100 F Street, N.E., Washington, DC 20549. Copies of this material also may be obtained from the SEC at prescribed rates. The
SEC’s EDGAR reporting system can also be accessed directly at www.sec.gov.
FORWARD-LOOKING
STATEMENTS
This
Information Statement may contain certain “forward-looking” statements as such term is defined by the SEC in its rules, regulations
and releases, which represent our expectations or beliefs, including but not limited to, statements concerning our operations, economic
performance, financial condition, growth and acquisition strategies, investments, and future operational plans. For this purpose, any
statements contained herein that are not statements of historical fact may be deemed to be forward-looking statements. Without limiting
the generality of the foregoing, words such as “may,” “will,” “expect,” “believe,” “anticipate,”
“intend,” “could,” “estimate,” “might,” or “continue” or the negative or
other variations thereof or comparable terminology are intended to identify forward-looking statements. These statements, by their nature,
involve substantial risks and uncertainties, certain of which are beyond our control, and actual results may differ materially depending
on a variety of important factors, including uncertainty related to acquisitions, governmental regulation, managing and maintaining growth,
volatility of stock prices and any other factors discussed in this and other of our filings with the SEC.
|
By
Order of the Board of Directors |
|
By: |
/s/
Federico Pier |
|
Name: |
Federico
Pier |
|
Title: |
Chief
Executive Officer |
|
Date: |
November
21, 2022 |
Appendix
A
VICAPSYS
LIFE SCIENCES, INC.
2022
OMNIBUS EQUITY INCENTIVE PLAN
Section
1. Purpose of Plan.
The
name of the Plan is the Vicapsys Life Sciences, Inc. 2022 Omnibus Equity Incentive Plan (the “Plan”). The purposes
of the Plan are to (i) provide an additional incentive to selected employees, directors, and independent contractors of the Company or
its Affiliates whose contributions are essential to the growth and success of the Company, (ii) strengthen the commitment of such individuals
to the Company and its Affiliates, (iii) motivate those individuals to faithfully and diligently perform their responsibilities and (iv)
attract and retain competent and dedicated individuals whose efforts will result in the long-term growth and profitability of the Company.
To accomplish these purposes, the Plan provides that the Company may grant Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Other Stock-Based Awards or any combination of the foregoing.
Section
2. Definitions.
For
purposes of the Plan, the following terms shall be defined as set forth below:
(a)
“Administrator” means the Committee, or, if and to the extent the Committee does not administer the Plan, the Board
in accordance with Section 3 hereof.
(b)
“Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with, the Person specified as of any date of determination.
(c)
“Applicable Laws” means the applicable requirements under U.S. federal and state corporate laws, U.S. federal and
state securities laws, including the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the
applicable laws of any other country or jurisdiction where Awards are granted under the Plan, as are in effect from time to time.
(d)
“Award” means any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit or Other Stock-Based Award
granted under the Plan.
(e)
“Award Agreement” means any written notice, agreement, contract or other instrument or document evidencing an Award,
including through electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall
determine, consistent with the Plan. Each Award Agreement shall be subject to the terms of the Plan.
(f)
“Beneficial Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.
(g)
“Board” means the Board of Directors of the Company.
(h)
“Bylaws” mean the bylaws of the Company, as may be amended and/or restated from time
to
time.
(i)
“Cause” has the meaning assigned to such term in any individual service, employment or severance agreement or Award
Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Cause,” then “Cause”
means (i) the indictment of, guilty plea or plea of “no contest” by the Participant to, or Participant being charged with,
any felony or a crime involving moral turpitude or the Participant’s commission of any other act or omission involving dishonesty
or fraud, (ii) the substantial and repeated failure of the Participant to perform duties of the office held by the Participant, (iii)
the Participant’s gross negligence, willful misconduct or breach of fiduciary duty with respect to the Company or any of its Subsidiaries
or Affiliates, (iv) any breach by the Participant of any restrictive covenants to which the Participant is subject, (v) material violation
of state or federal securities laws which causes a material harm to the Company or to any of its Affiliates; (vi) material violation
of the Company’s written policies or codes of conduct, including written policies related to discrimination, harassment, performance
of illegal or unethical activities, and ethical misconduct, and/or (vii) the Participant’s engagement in any conduct which is or
can reasonably be expected to be materially detrimental or injurious to the business or reputation of the Company or its Affiliates.
Any voluntary termination of employment or service by the Participant in anticipation of an involuntary termination of the Participant’s
employment or service, as applicable, for Cause shall be deemed to be a termination for Cause.
(j)
“Change in Capitalization” means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out,
repurchase or other reorganization or corporate transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution
(whether in the form of cash, Common Stock or other property), stock split, reverse stock split, share subdivision or consolidation,
(iii) combination or exchange of shares or (iv) other change in corporate structure, which, in any such case, the Administrator determines,
in its sole discretion, affects the Shares such that an adjustment pursuant to Section 5 hereof is appropriate.
(k)
“Change in Control” means the first occurrence of an event set forth in any one of the following paragraphs following
the Effective Date:
(1)
any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities
Beneficially Owned by such Person which were acquired directly from the Company or any Affiliate thereof) representing more than fifty
percent (50%) of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such
a Beneficial Owner in connection with a transaction described in clause (i) of paragraph (3) below; or
(2)
the date on which individuals who constitute the Board as of the Effective Date and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation,
relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were
directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended cease
for any reason to constitute a majority of the number of directors serving on the Board; or
(3)
there is consummated a merger or consolidation of the Company or any direct or indirect Subsidiary with any other corporation or other
entity, other than (i) a merger or consolidation (A) which results in the voting securities of the Company outstanding immediately prior
to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities
of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any Subsidiary, fifty percent (50%) or more of the combined voting power of the securities
of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and (B) following
which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the
Company, the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger or consolidation is
then a Subsidiary, the ultimate parent thereof, or (ii) a merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company
(not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliates)
representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities; or
(4)
the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated a sale or
disposition by the Company of all or substantially all of the Company’s assets, other than (A) a sale or disposition by the Company
of all or substantially all of the Company’s assets to an entity, more than fifty percent (50%) of the combined voting power of
the voting securities of which are owned by stockholders of the Company following the completion of such transaction in substantially
the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale or disposition of all or substantially
all of the Company’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute
at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary,
the ultimate parent thereof.
Notwithstanding
the foregoing, (i) a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series
of integrated transactions immediately following which the holders of Common Stock immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the
assets of the Company immediately following such transaction or series of transactions and (ii) to the extent required to avoid accelerated
taxation and/or tax penalties under Section 409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with
respect to any Award that constitutes deferred compensation under Section 409A of the Code only if a change in the ownership or effective
control of the Company or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred
under Section 409A of the Code. For purposes of this definition of Change in Control, the term “Person” shall not include
(i) the Company or any Subsidiary thereof, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the
Company or any Subsidiary thereof, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or
(iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership
of shares of the Company.
(l)
“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto.
(m)
“Committee” means any committee or subcommittee the Board may appoint to administer the Plan. The Committee shall
be composed entirely of two or more individuals who meet the qualifications of a “non- employee director” within the
meaning of Rule 16b-3 under the Exchange Act and any other qualifications required by the applicable stock exchange on which the
Common Stock is traded.
(n)
“Common Stock” means the common stock of the Company, par value $0.001.
(o)
“Company” means Vicapsys Life Sciences, Inc., a Florida corporation (or any successor company, except as the term
“Company” is used in the definition of “Change in Control” above).
(p)
“Disability” has the meaning assigned to such term in any individual service, employment or severance agreement or
Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Disability,” then
“Disability” means that a Participant, as determined by the Administrator in its sole discretion, (i) is unable to engage
in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result
in death or can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically
determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period
of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident
and health plan covering employees of the Company or an Affiliate thereof.
(q)
“Effective Date” has the meaning set forth in Section 17 hereof.
(r)
“Eligible Recipient” means an employee, director or independent contractor of the Company or any Affiliate of the
Company who has been selected as an eligible participant by the Administrator; provided, however, to the extent required
to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation
Right means an employee, non-employee director or independent contractor of the Company or any Affiliate of the Company with respect
to whom the Company is an “eligible issuer of service recipient stock” within the meaning of Section 409A of the Code.
(s)
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
(t)
“Exempt Award” shall mean the following:
(1)
An Award granted in assumption of, or in substitution for, outstanding awards previously granted by a corporation or other entity acquired
by the Company or any of its Subsidiaries or with which the Company or any of its Subsidiaries combines by merger or otherwise. The terms
and conditions of any such Awards may vary from the terms and conditions set forth in the Plan to the extent the Administrator at the
time of grant may deem appropriate, subject to Applicable Laws.
(2)
An award that an Eligible Recipient purchases at Fair Market Value (including awards that an Eligible Recipient elects to receive in
lieu of fully vested compensation that is otherwise due) whether or not the Shares are delivered immediately or on a deferred basis.
(3)
An Inducement Award.
(u)
“Exercise Price” means, (i) with respect to any Option, the per share price at which a holder of such Option may purchase
Shares issuable upon exercise of such Award, and (ii) with respect to a Stock Appreciation Right, the base price per share of such Stock
Appreciation Right.
(v)
“Fair Market Value” of a share of Common Stock or another security as of a particular date shall mean the fair market
value as determined by the Committee; provided, that, (i) if the Common Stock or other security is admitted to trading on a national
securities exchange, including without limitation any market operated by Nasdaq, the fair market value on any date shall be the closing
sale price reported on such date, or if no shares were traded on such date, on the last preceding date for which there was a sale of
a share of Common Stock on such exchange, or (ii) if the Common Stock or other security is then traded in an over-the-counter market,
the fair market value on any date shall be the average of the closing bid and asked prices for such share in such over-the-counter market
for the last preceding date on which there was a sale of such share in such market.
(w)
“Free Standing Rights” has the meaning set forth in Section 8.
(x)
“Good Reason” has the meaning assigned to such term in any individual service, employment or severance agreement or
Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Good Reason,”
“Good Reason” and any provision of this Plan that refers to “Good Reason” shall not be applicable to such Participant.
(y)
“Incentive Compensation” means annual cash bonus and any Award.
(z)
“Inducement Award” means an Award issued pursuant to NASDAQ Listing Rule 5635(c), the New York Stock Exchange’s
Listing Company Manual Rule 303A.08, or any such similar provision, as an inducement to the applicable Participant’s accepting
employment with the Company.
(aa)
“ISO” means an Option intended to be and designated as an “incentive stock option” within the meaning
of Section 422 of the Code.
(bb)
“Nonqualified Stock Option” shall mean an Option that is not designated as an ISO.
(cc)
“Option” means an option to purchase shares of Common Stock granted pursuant to Section 7 hereof. The term “Option”
as used in the Plan includes the terms “Nonqualified Stock Option” and “ISO.”
(dd)
“Other Stock-Based Award” means a right or other interest granted pursuant to Section 10 hereof that may be denominated
or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Common Stock, including, but not limited
to, unrestricted Shares, dividend equivalents or performance units, each of which may be subject to the attainment of performance goals
or a period of continued provision of service or employment or other terms or conditions as permitted under the Plan.
(ee)
“Participant” means any Eligible Recipient selected by the Administrator, pursuant to the Administrator’s authority
provided for in Section 3 below, to receive grants of Awards, and, upon his or her death, his or her successors, heirs, executors and
administrators, as the case may be.
(ff)
“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d)
and 14(d) thereof.
(gg)
“Plan” means this 2022 Omnibus Equity Incentive Plan.
(hh)
“Related Rights” has the meaning set forth in Section 8.
(ii)
“Restricted Period” has the meaning set forth in Section 9.
(jj)
“Restricted Stock” means a Share granted pursuant to Section 9 below subject to certain restrictions that lapse at
the end of a specified period (or periods) of time and/or upon attainment of specified performance objectives.
(kk)
“Restricted Stock Unit” means the right granted pursuant to Section 9 hereof to receive a Share at the end of a specified
restricted period (or periods) of time and/or upon attainment of specified performance objectives.
(ll)
“Rule 16b-3” has the meaning set forth in Section 3.
(mm)
“Section 16 Officer” means any officer of the Company whom the Board has determined is subject to the reporting requirements
of Section 16 of the Exchange Act, whether or not such individual is a Section 16 Officer at the time the determination to recoup compensation
is made.
(nn)
“Shares” means Common Stock reserved for issuance under the Plan, as adjusted pursuant to the Plan, and any successor
(pursuant to a merger, consolidation or other reorganization) security.
(oo)
“Stock Appreciation Right” means a right granted pursuant to Section 8 hereof to receive, upon exercise or settlement,
an amount equal to the excess, if any, of (i) the aggregate Fair Market Value, as of the date such Award or portion thereof is surrendered,
of the Shares covered by such Award or such portion thereof, over (ii) the aggregate Exercise Price of such Award or such portion thereof.
(pp)
“Subsidiary” means, with respect to any Person, as of any date of determination, any other Person as to which such
first Person owns or otherwise controls, directly or indirectly, more than 50% of the voting shares or other similar interests or a sole
general partner interest or managing member or similar interest of such other Person.
(qq)
“Transfer” has the meaning set forth in Section 15.
Section
3. Administration.
(a)
The Plan shall be administered by the Administrator and shall be administered, to the extent applicable, in accordance with Rule 16b-3
under the Exchange Act (“Rule 16b-3”).
(b)
Pursuant to the terms of the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated
to it by the Board, shall have the power and authority, without limitation:
(1)
to select those Eligible Recipients who shall be Participants;
(2)
to determine whether and to what extent Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based
Awards or a combination of any of the foregoing, are to be granted hereunder to Participants;
(3)
to determine the number of Shares to be covered by each Award granted hereunder;
(4)
to determine the terms and conditions, not inconsistent with the terms of the Plan, of each Award granted hereunder (including, but not
limited to, (i) the restrictions applicable to Restricted Stock or Restricted Stock Units and the conditions under which restrictions
applicable to such Restricted Stock or Restricted Stock Units shall lapse, (ii) the performance goals and periods applicable to Awards,
(iii) the Exercise Price of each Option and each Stock Appreciation Right or the purchase price of any other Award, (iv) the vesting
schedule and terms applicable to each Award, (v) the number of Shares or amount of cash or other property subject to each Award and (vi)
subject to the requirements of Section 409A of the Code (to the extent applicable) any amendments to the terms and conditions of outstanding
Awards, including, but not limited to, extending the exercise period of such Awards and accelerating the payment schedules of such Awards
and/or, to the extent specifically permitted under the Plan, accelerating the vesting schedules of such Awards);
(5)
to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing
Awards;
(6)
to determine the Fair Market Value in accordance with the terms of the Plan;
(7)
to determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting termination of
the Participant’s service or employment for purposes of Awards granted under the Plan;
(8)
to adopt, alter and repeal such administrative rules, regulations, guidelines and practices governing the Plan as it shall from time
to time deem advisable;
(9)
to construe and interpret the terms and provisions of, and supply or correct omissions in, the Plan and any Award issued under the Plan
(and any Award Agreement relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and
authorities either specifically granted under the Plan or necessary and advisable in the administration of the Plan; and
(10)
to prescribe, amend and rescind rules and regulations relating to sub-plans established for the purpose of satisfying applicable non-United
States laws or for qualifying for favorable tax treatment under applicable non-United States laws, which rules and regulations may be
set forth in an appendix or appendixes to the Plan.
(c)
Subject to Section 5, neither the Board nor the Committee shall have the authority to reprice or cancel and regrant any Award at a lower
exercise, base or purchase price or cancel any Award with an exercise, base or purchase price in exchange for cash, property or other
Awards without first obtaining the approval of the Company’s stockholders.
(d)
All decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all Persons,
including the Company and the Participants.
(e)
The expenses of administering the Plan shall be borne by the Company and its Subsidiaries.
(f)
If at any time or to any extent the Committee shall not administer the Plan, then the functions of the Administrator specified in the
Plan shall be exercised by the Board. Except as otherwise provided in the Articles of Incorporation or Bylaws of the Company, any action
of the Committee with respect to the administration of the Plan shall be taken by a majority vote at a meeting at which a quorum is duly
constituted or unanimous written consent of the Committee’s members.
Section
4. Shares Reserved for Issuance Under the Plan.
(a)
Subject to Section 5 hereof, the number of shares of Common Stock that are reserved and available for issuance pursuant to Awards granted
under the Plan shall be equal to the sum of (i) 3,200,000 shares of Common Stock, plus (ii) to the extent the Company issues new shares
of Common Stock other than under the terms of this Plan or other than certain Inducement Awards, 3.1% of the shares of Common Stock issued
by the Company in such issuance (or such lower amount as determined by the Board).
(b)
Shares issued under the Plan may consist, in whole or in part, of authorized but unissued Shares or Shares that shall have been or may
be reacquired by the Company in the open market, in private transactions or in any other manner. If an Award entitles the Participant
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. If any Shares subject to
an Award are forfeited, cancelled, exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of
Shares to the Participant, the Shares with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange,
surrender, termination or expiration, again be available for granting Awards under the Plan. Notwithstanding the foregoing, (i) any Shares
reacquired by the Company on the open market or otherwise using cash proceeds from the exercise of Options; and (ii) Shares surrendered
or withheld as payment of either the Exercise Price of an Award (including Shares otherwise underlying a Stock Appreciation Right that
are retained by the Company to account for the Exercise Price of such Stock Appreciation Right) and/or withholding taxes in respect of
an Award shall no longer be available for grant under the Plan. Upon the exercise of any Award granted in tandem with any other Awards,
such related Awards shall be cancelled to the extent of the number of Shares as to which the Award is exercised and, notwithstanding
the foregoing, such number of Shares shall no longer be available for grant under the Plan.
(c)
No more than 3,200,000 Shares shall be issued pursuant to the exercise of ISOs.
(d)
Director Compensation Limits. Notwithstanding any provision to the contrary in the Plan, the sum of the grant date Fair Market
Value of equity-based Awards (determined as of the grant date in accordance with Financial Accounting Standards Board Accounting Standards
Codification Topic 718, or any successor thereto) plus any cash fees paid by the Company for serving as a non-employee director of the
Board during any calendar year shall not exceed $150,000, increased to $195,000 in the calendar year of his or her initial service as
a non-employee director.
Section
5. Equitable Adjustments.
In
the event of any Change in Capitalization, an equitable substitution or proportionate adjustment shall be made in (i) the aggregate number
and/or kind of securities reserved for issuance under the Plan pursuant to Section 4, (ii) the kind, number of securities subject to,
and the Exercise Price subject to outstanding Options and Stock Appreciation Rights granted under the Plan, (iii) the kind, number and
purchase price of Shares or other securities or the amount of cash or amount or type of other property subject to outstanding Restricted
Stock, Restricted Stock Units or Other Stock-Based Awards granted under the Plan; and/or (iv) the terms and conditions of any outstanding
Awards (including, without limitation, any applicable performance targets or criteria with respect thereto), in each case, to the extent
necessary to preserve the economic intent of such Award or of the Plan; provided, however, that any fractional shares resulting
from the adjustment shall be eliminated. To the extent necessary to preserve the economic intent of an Award or of the Plan, following
a Change in Capitalization, such other equitable substitutions or adjustments shall be made as may be determined by the Administrator,
in its sole discretion. Without limiting the generality of the foregoing, in connection with a Change in Capitalization, the Administrator
may provide, in its sole discretion, but subject in all events to the requirements of Section 409A of the Code, for the cancellation
of any outstanding Award granted hereunder in exchange for payment in cash or other property having an aggregate Fair Market Value equal
to the Fair Market Value of the Shares, cash or other property covered by such Award, reduced by the aggregate Exercise Price or purchase
price thereof, if any; provided, however, that if the Exercise Price or purchase price of any outstanding Award is equal
to or greater than the Fair Market Value of the shares of Common Stock, cash or other property covered by such Award, the Administrator
may cancel such Award without the payment of any consideration to the Participant. Further, without limiting the generality of the foregoing,
with respect to Awards subject to foreign laws, adjustments made hereunder shall be made in compliance with applicable requirements.
Except to the extent determined by the Administrator, any adjustments to ISOs under this Section 5 shall be made only to the extent not
constituting a “modification” within the meaning of Section 424(h)(3) of the Code. The Administrator’s determinations
pursuant to this Section 5 shall be final, binding and conclusive.
Section
6. Eligibility and Award Limits.
The
Participants in the Plan shall be selected from time to time by the Administrator, in its sole discretion, from those individuals that
qualify as Eligible Recipients.
Section
7. Options.
(a)
General. Options granted under the Plan shall be designated as Nonqualified Stock Options or ISOs. Each Participant who is granted
an Option shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine,
in its sole discretion, including, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding
exercisability of the Option, and whether the Option is intended to be an ISO or a Nonqualified Stock Option (and in the event the Award
Agreement has no such designation, the Option shall be a Nonqualified Stock Option). The provisions of each Option need not be the same
with respect to each Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder.
Options granted under the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable
Award Agreement.
(b)
Exercise Price. The Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole
discretion at the time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the
Fair Market Value of a share of Common Stock on the date of grant.
(c)
Option Term. The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than
ten (10) years after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable
provisions in the Plan and the Award Agreement. Notwithstanding the foregoing, subject to Section 4(d) of the Plan, the Administrator
shall have the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as the
Administrator, in its sole discretion, deems appropriate.
(d)
Exercisability. Each Option shall be exercisable at such time or times and subject to such terms and conditions, including the
attainment of performance goals, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator may
also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions
at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion.
(e)
Method of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying
the number of whole Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased
in cash or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect
to any Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless
exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in the
form of unrestricted Shares already owned by the Participant which have a Fair Market Value on the date of surrender equal to the aggregate
exercise price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved by the Administrator
and permitted by Applicable Laws or (iv) any combination of the foregoing.
(f)
ISOs. The terms and conditions of ISOs granted hereunder shall be subject to the provisions of Section 422 of the Code and the
terms, conditions, limitations and administrative procedures established by the Administrator from time to time in accordance with the
Plan. At the discretion of the Administrator, ISOs may be granted only to an employee of the Company, its “parent corporation”
(as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company.
(1)
ISO Grants to 10% Stockholders. Notwithstanding anything to the contrary in the Plan, if an ISO is granted to a Participant who
owns shares representing more than ten percent (10%) of the voting power of all classes of shares of the Company at the time of grant,
its “parent corporation” (as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company, the term
of the ISO shall not exceed five (5) years from the time of grant of such ISO and the Exercise Price shall be at least one hundred and
ten percent (110%) of the Fair Market Value of the Shares on the date of grant.
(2)
$100,000 Per Year Limitation For ISOs. To the extent the aggregate Fair Market Value (determined on the date of grant) of the
Shares for which ISOs are exercisable for the first time by any Participant during any calendar year (under all plans of the Company)
exceeds $100,000, such excess ISOs shall be treated as Nonqualified Stock Options.
(3)
Disqualifying Dispositions. Each Participant awarded an ISO under the Plan shall notify the Company in writing immediately after
the date the Participant makes a “disqualifying disposition” of any Share acquired pursuant to the exercise of such ISO.
A “disqualifying disposition” is any disposition (including any sale) of such Shares before the later of (i) two years after
the date of grant of the ISO and (ii) one year after the date the Participant acquired the Shares by exercising the ISO. The Company
may, if determined by the Administrator and in accordance with procedures established by it, retain possession of any Shares acquired
pursuant to the exercise of an ISO as agent for the applicable Participant until the end of the period described in the preceding sentence,
subject to complying with any instructions from such Participant as to the sale of such Shares.
(g)
Rights as Stockholder. A Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights
of a stockholder with respect to the Shares subject to an Option until the Participant has given written notice of the exercise thereof,
and has paid in full for such Shares and has satisfied the requirements of Section 15 hereof.
(h)
Termination of Employment or Service. Treatment of an Option upon termination of employment of a Participant shall be provided
for by the Administrator in the Award Agreement.
(i)
Other Change in Employment or Service Status. An Option shall be affected, both with regard to vesting schedule and termination,
by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability
or other changes in the employment status or service status of a Participant, in the discretion of the Administrator.
Section
8. Stock Appreciation Rights.
(a)
General. Stock Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with
all or part of any Option granted under the Plan (“Related Rights”). Related Rights may be granted either at or after
the time of the grant of such Option. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which,
grants of Stock Appreciation Rights shall be made. Each Participant who is granted a Stock Appreciation Right shall enter into an Award
Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including,
among other things, the number of Shares to be awarded, the Exercise Price per Share, and all other conditions of Stock Appreciation
Rights. Notwithstanding the foregoing, no Related Right may be granted for more Shares than are subject to the Option to which it relates.
The provisions of Stock Appreciation Rights need not be the same with respect to each Participant. Stock Appreciation Rights granted
under the Plan shall be subject to the following terms and conditions set forth in this Section 8 and shall contain such additional terms
and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable, as set forth in the applicable
Award Agreement.
(b)
Awards; Rights as Stockholder. A Participant shall have no rights to dividends or any other rights of a stockholder with respect
to the shares of Common Stock, if any, subject to a Stock Appreciation Right until the Participant has given written notice of the exercise
thereof and has satisfied the requirements of Section 15 hereof.
(c)
Exercise Price. The Exercise Price of Shares purchasable under a Stock Appreciation Right shall be determined by the Administrator
in its sole discretion at the time of grant, but in no event shall the exercise price of a Stock Appreciation Right be less than one
hundred percent (100%) of the Fair Market Value of a share of Common Stock on the date of grant.
(d)
Exercisability.
(1)
Stock Appreciation Rights that are Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions
as shall be determined by the Administrator in the applicable Award Agreement.
(2)
Stock Appreciation Rights that are Related Rights shall be exercisable only at such time or times and to the extent that the Options
to which they relate shall be exercisable in accordance with the provisions of Section 7 hereof and this Section 8 of the Plan.
(e)
Payment Upon Exercise.
(1)
Upon the exercise of a Free Standing Right, the Participant shall be entitled to receive up to, but not more than, that number of Shares
equal in value to the excess of the Fair Market Value as of the date of exercise over the Exercise Price per share specified in the Free
Standing Right multiplied by the number of Shares in respect of which the Free Standing Right is being exercised.
(2)
A Related Right may be exercised by a Participant by surrendering the applicable portion of the related Option. Upon such exercise and
surrender, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess
of the Fair Market Value as of the date of exercise over the Exercise Price specified in the related Option multiplied by the number
of Shares in respect of which the Related Right is being exercised. Options which have been so surrendered, in whole or in part, shall
no longer be exercisable to the extent the Related Rights have been so exercised.
(3)
Notwithstanding the foregoing, the Administrator may determine to settle the exercise of a Stock Appreciation Right in cash (or in any
combination of Shares and cash).
(f)
Termination of Employment or Service. Treatment of a Stock Appreciation Right upon termination of employment of a Participant
shall be provided for by the Administrator in the Award Agreement.
(g)
Term.
(1)
The term of each Free Standing Right shall be fixed by the Administrator, but no Free Standing Right shall be exercisable more than ten
(10) years after the date such right is granted.
(2)
The term of each Related Right shall be the term of the Option to which it relates, but no Related Right shall be exercisable more than
ten (10) years after the date such right is granted.
(h)
Other Change in Employment or Service Status. Stock Appreciation Rights shall be affected, both with regard to vesting schedule
and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment,
partial Disability or other changes in the employment or service status of a Participant, in the discretion of the Administrator.
Section
9. Restricted Stock and Restricted Stock Units.
(a)
General. Restricted Stock or Restricted Stock Units may be issued under the Plan. The Administrator shall determine the Eligible
Recipients to whom, and the time or times at which, Restricted Stock or Restricted Stock Units shall be made. Each Participant who is
granted Restricted Stock or Restricted Stock Units shall enter into an Award Agreement with the Company, containing such terms and conditions
as the Administrator shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded; the
price, if any, to be paid by the Participant for the acquisition of Restricted Stock or Restricted Stock Units; the period of time restrictions,
performance goals or other conditions that apply to Transferability, delivery or vesting of such Awards (the “Restricted Period”);
and all other conditions applicable to the Restricted Stock and Restricted Stock Units. If the restrictions, performance goals or conditions
established by the Administrator are not attained, a Participant shall forfeit his or her Restricted Stock or Restricted Stock Units,
in accordance with the terms of the grant. The provisions of the Restricted Stock or Restricted Stock Units need not be the same with
respect to each Participant.
(b)
Awards and Certificates. Except as otherwise provided below in Section 9(c), (i) each Participant who is granted an Award of Restricted
Stock may, in the Company’s sole discretion, be issued a share certificate in respect of such Restricted Stock; and (ii) any such
certificate so issued shall be registered in the name of the Participant, and shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to any such Award. The Company may require that the share certificates, if any, evidencing Restricted
Stock granted hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed, and that, as a condition
of any Award of Restricted Stock, the Participant shall have delivered a share transfer form, endorsed in blank, relating to the Shares
covered by such Award. Certificates for shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered
to the Participant only after the Restricted Period has expired without forfeiture in such Restricted Stock Award. With respect to Restricted
Stock Units to be settled in Shares, at the expiration of the Restricted Period, share certificates in respect of the shares of Common
Stock underlying such Restricted Stock Units may, in the Company’s sole discretion, be delivered to the Participant, or his or
her legal representative, in a number equal to the number of shares of Common Stock underlying the Restricted Stock Units Award. Notwithstanding
anything in the Plan to the contrary, any Restricted Stock or Restricted Stock Units to be settled in Shares (at the expiration of the
Restricted Period, and whether before or after any vesting conditions have been satisfied) may, in the Company’s sole discretion,
be issued in uncertificated form. Further, notwithstanding anything in the Plan to the contrary, with respect to Restricted Stock Units,
at the expiration of the Restricted Period, Shares, or cash, as applicable, shall promptly be issued (either in certificated or uncertificated
form) to the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section
409A of the Code, and such issuance or payment shall in any event be made within such period as is required to avoid the imposition of
a tax under Section 409A of the Code.
(c)
Restrictions and Conditions. The Restricted Stock or Restricted Stock Units granted pursuant to this Section 9 shall be subject
to the following restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the
time of grant or, subject to Section 409A of the Code where applicable, thereafter:
(1)
The Administrator may, in its sole discretion, provide for the lapse of restrictions in installments and may accelerate or waive such
restrictions in whole or in part based on such factors and such circumstances as the Administrator may determine, in its sole discretion,
including, but not limited to, the attainment of certain performance goals, the Participant’s termination of employment or service
with the Company or any Affiliate thereof, or the Participant’s death or Disability. Notwithstanding the foregoing, upon a Change
in Control, the outstanding Awards shall be subject to Section 11 hereof.
(2)
Except as provided in the applicable Award Agreement, the Participant shall generally have the rights of a stockholder of the Company
with respect to Restricted Stock during the Restricted Period; provided, however, that dividends declared during the Restricted
Period with respect to an Award, shall only become payable if (and to the extent) the underlying Restricted Stock vests. Except as provided
in the applicable Award Agreement, the Participant shall generally not have the rights of a stockholder with respect to Shares subject
to Restricted Stock Units during the Restricted Period; provided, however, that, subject to Section 409A of the Code, an
amount equal to dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock Units
shall, unless otherwise set forth in an Award Agreement, be paid to the Participant at the time (and to the extent) Shares in respect
of the related Restricted Stock Units are delivered to the Participant. Certificates for Shares of unrestricted Common Stock may, in
the Company’s sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture
in respect of such Restricted Stock or Restricted Stock Units, except as the Administrator, in its sole discretion, shall otherwise determine.
(3)
The rights of Participants granted Restricted Stock or Restricted Stock Units upon termination of employment or service as a director
or independent contractor to the Company or to any Affiliate thereof terminates for any reason during the Restricted Period shall be
set forth in the Award Agreement.
(d)
Form of Settlement. The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof)
that any Restricted Stock Unit represents the right to receive the amount of cash per unit that is determined by the Administrator in
connection with the Award.
Section
10. Other Stock-Based Awards.
Other
Stock-Based Awards may be issued under the Plan. Subject to the provisions of the Plan, the Administrator shall have sole and complete
authority to determine the individuals to whom and the time or times at which such Other Stock-Based Awards shall be granted. Each Participant
who is granted an Other Stock-Based Award shall enter into an Award Agreement with the Company, containing such terms and conditions
as the Administrator shall determine, in its sole discretion, including, among other things, the number of shares of Common Stock to
be granted pursuant to such Other Stock-Based Awards, or the manner in which such Other Stock-Based Awards shall be settled (e.g., in
shares of Common Stock, cash or other property), or the conditions to the vesting and/or payment or settlement of such Other Stock-Based
Awards (which may include, but not be limited to, achievement of performance criteria) and all other terms and conditions of such Other
Stock-Based Awards. In the event that the Administrator grants a bonus in the form of Shares, the Shares constituting such bonus shall,
as determined by the Administrator, be evidenced in uncertificated form or by a book entry record or a certificate issued in the name
of the Participant to whom such grant was made and delivered to such Participant as soon as practicable after the date on which such
bonus is payable. Notwithstanding anything set forth in the Plan to the contrary, any dividend or dividend equivalent Award issued hereunder
shall be subject to the same restrictions, conditions and risks of forfeiture as apply to the underlying Award.
Section
11. Change in Control.
Unless
otherwise determined by the Administrator and evidenced in an Award Agreement, in the event that (a) a Change in Control occurs, and
(b) the Participant is employed by the Company or any of its Affiliates immediately prior to the consummation of such Change in Control
then upon the consummation of such Change in Control, the Administrator, in its sole and absolute discretion, may:
(a)
provide that any unvested or unexercisable portion of any Award carrying a right to exercise become fully vested and exercisable; and
(b)
cause the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to an Award granted under the Plan
to lapse and such Awards shall be deemed fully vested and any performance conditions imposed with respect to such Awards shall be deemed
to be fully achieved at target performance levels.
If
the Administrator determines in its discretion pursuant to Section 3(b)(4) hereof to accelerate the vesting of Options and/or Share Appreciation
Rights in connection with a Change in Control, the Administrator shall also have discretion in connection with such action to provide
that all Options and/or Stock Appreciation Rights outstanding immediately prior to such Change in Control shall expire on the effective
date of such Change in Control.
Section
12. Amendment and Termination.
The
Board may amend, alter or terminate the Plan at any time, but no amendment, alteration or termination shall be made that would impair
the rights of a Participant under any Award theretofore granted without such Participant’s consent. The Board shall obtain approval
of the Company’s stockholders for any amendment that would require such approval in order to satisfy the requirements of any rules
of the stock exchange on which the Common Stock is traded or other Applicable Law. Subject to Section 3(c), the Administrator may amend
the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Section 5 of the Plan and the immediately
preceding sentence, no such amendment shall materially impair the rights of any Participant without his or her consent.
Section
13. Unfunded Status of Plan.
The
Plan is intended to constitute an “unfunded” plan for incentive compensation. With respect to any payments not yet made to
a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general
creditor of the Company.
Section
14. Withholding Taxes.
Each
Participant shall, no later than the date as of which the value of an Award first becomes includible in the gross income of such Participant
for purposes of applicable taxes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of an
amount up to the maximum statutory tax rates in the Participant’s applicable jurisdiction with respect to the Award, as determined
by the Company. The obligations of the Company under the Plan shall be conditional on the making of such payments or arrangements, and
the Company shall, to the extent permitted by Applicable Laws, have the right to deduct any such taxes from any payment of any kind otherwise
due to such Participant. Whenever cash is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount
sufficient to satisfy any applicable withholding tax requirements related thereto. Whenever Shares or property other than cash are to
be delivered pursuant to an Award, the Company shall have the right to require the Participant to remit to the Company in cash an amount
sufficient to satisfy any related taxes to be withheld and applied to the tax obligations; provided, that, with the approval
of the Administrator, a Participant may satisfy the foregoing requirement by either (i) electing to have the Company withhold from delivery
of Shares or other property, as applicable, or (ii) delivering already owned unrestricted shares of Common Stock, in each case, having
a value not exceeding the applicable taxes to be withheld and applied to the tax obligations. Such already owned and unrestricted shares
of Common Stock shall be valued at their Fair Market Value on the date on which the amount of tax to be withheld is determined and any
fractional share amounts resulting therefrom shall be settled in cash. Such an election may be made with respect to all or any portion
of the Shares to be delivered pursuant to an award. The Company may also use any other method of obtaining the necessary payment or proceeds,
as permitted by Applicable Laws, to satisfy its withholding obligation with respect to any Award.
Section
15. Transfer of Awards.
Until
such time as the Awards are fully vested and/or exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment,
mortgage, hypothecation, transfer, charge, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or
creation of a security interest in or lien on, any Award or any agreement or commitment to do any of the foregoing (each, a “Transfer”)
by any holder thereof in violation of the provisions of the Plan or an Award Agreement will be valid, except with the prior written consent
of the Administrator, which consent may be granted or withheld in the sole discretion of the Administrator. Any purported Transfer of
an Award or any economic benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio
and shall not create any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit
or interest therein transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of
such Shares or other property underlying such Award. Unless otherwise determined by the Administrator in accordance with the provisions
of the immediately preceding sentence, an Option or a Stock Appreciation Right may be exercised, during the lifetime of the Participant,
only by the Participant or, during any period during which the Participant is under a legal Disability, by the Participant’s guardian
or legal representative.
Section
16. Continued Employment or Service.
Neither
the adoption of the Plan nor the grant of an Award shall confer upon any Eligible Recipient any right to continued employment or service
with the Company or any Affiliate thereof, as the case may be, nor shall it interfere in any way with the right of the Company or any
Affiliate thereof to terminate the employment or service of any of its Eligible Recipients at any time.
Section
17. Effective Date.
The
Plan was approved by the Board on August 10, 2022 and shall be adopted and become effective on the date that it is approved by the Company’s
stockholders (the “Effective Date”).
Section
18. Electronic Signature.
Participant’s
electronic signature of an Award Agreement shall have the same validity and effect as a signature affixed by hand.
Section
19. Term of Plan.
No
Award shall be granted pursuant to the Plan on or after the tenth anniversary of the Effective Date, but Awards theretofore granted may
extend beyond that date.
Section
20. Securities Matters and Regulations.
(a)
Notwithstanding anything herein to the contrary, the obligation of the Company to sell or deliver Shares with respect to any Award granted
under the Plan shall be subject to all Applicable Laws, rules and regulations, including all applicable federal and state securities
laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Administrator.
The Administrator may require, as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant
to the terms hereof, that the recipient of such shares make such agreements and representations, and that such certificates bear such
legends, as the Administrator, in its sole discretion, deems necessary or advisable.
(b)
Each Award is subject to the requirement that, if at any time the Administrator determines that the listing, registration or qualification
of Shares is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory
body is necessary or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Shares, no such Award
shall be granted or payment made or Shares issued, in whole or in part, unless listing, registration, qualification, consent or approval
has been effected or obtained free of any conditions not acceptable to the Administrator.
(c)
In the event that the disposition of Shares acquired pursuant to the Plan is not covered by a then current registration statement under
the Securities Act and is not otherwise exempt from such registration, such Shares shall be restricted against transfer to the extent
required by the Securities Act or regulations thereunder, and the Administrator may require a Participant receiving Common Stock pursuant
to the Plan, as a condition precedent to receipt of such Common Stock, to represent to the Company in writing that the Common Stock acquired
by such Participant is acquired for investment only and not with a view to distribution.
Section
21. Section 409A of the Code.
The
Plan as well as payments and benefits under the Plan are intended to be exempt from, or to the extent subject thereto, to comply with
Section 409A of the Code, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding
anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section
409A of the Code, the Participant shall not be considered to have terminated employment or service with the Company for purposes of the
Plan and no payment shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred
a “separation from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. Any payments
described in the Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not
be treated as deferred compensation unless Applicable Law requires otherwise. Notwithstanding anything to the contrary in the Plan, to
the extent that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates)
are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest
charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on
the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount
to be paid or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A
of the Code. The Company makes no representation that any or all of the payments or benefits described in this Plan will be exempt from
or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment.
The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.
Section
22. Notification of Election Under Section 83(b) of the Code.
If
any Participant shall, in connection with the acquisition of shares of Common Stock under the Plan, make the election permitted under
Section 83(b) of the Code, such Participant shall notify the Company of such election within ten (10) days after filing notice of the
election with the Internal Revenue Service.
Section
23. No Fractional Shares.
No
fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Administrator shall determine whether cash,
other Awards, or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights
thereto shall be forfeited or otherwise eliminated.
Section
24. Beneficiary.
A
Participant may file with the Administrator a written designation of a beneficiary on such form as may be prescribed by the Administrator
and may, from time to time, amend or revoke such designation. If no designated beneficiary survives the Participant, the executor or
administrator of the Participant’s estate shall be deemed to be the Participant’s beneficiary.
Section
25. Paperless Administration.
In
the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation,
granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation,
granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.
Section
26. Severability.
If
any provision of the Plan is held to be invalid or unenforceable, the other provisions of the Plan shall not be affected but shall be
applied as if the invalid or unenforceable provision had not been included in the Plan.
Section
27. Clawback.
(a)
If the Company is required to prepare a financial restatement due to the material non-compliance of the Company with any financial reporting
requirement, then the Committee may require any Section 16 Officer to repay or forfeit to the Company, and each Section 16 Officer agrees
to so repay or forfeit, that part of the Incentive Compensation received by that Section 16 Officer during the three-year period preceding
the publication of the restated financial statement that the Committee determines was in excess of the amount that such Section 16 Officer
would have received had such Incentive Compensation been calculated based on the financial results reported in the restated financial
statement. The Committee may take into account any factors it deems reasonable in determining whether to seek recoupment of previously
paid Incentive Compensation and how much Incentive Compensation to recoup from each Section 16 Officer (which need not be the same amount
or proportion for each Section 16 Officer), including any determination by the Committee that a Section 16 Officer engaged in fraud,
willful misconduct or committed grossly negligent acts or omissions which materially contributed to the events that led to the financial
restatement. The amount and form of the Incentive Compensation to be recouped shall be determined by the Committee in its sole and absolute
discretion, and recoupment of Incentive Compensation may be made, in the Committee’s sole and absolute discretion, through the
cancellation of vested or unvested Awards, cash repayment or both.
(b)
Notwithstanding any other provisions in this Plan, any Award which is subject to recovery under any Applicable Laws, government regulation
or stock exchange listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to such
Applicable Law, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such
law, government regulation or stock exchange listing requirement).
Section
28. Governing Law.
The
Plan shall be governed by, and construed in accordance with, the laws of the State of Florida, without giving effect to principles of
conflicts of law of such state.
Section
29. Indemnification.
To
the extent allowable pursuant to applicable law, each member of the Board and the Administrator and any officer or other employee to
whom authority to administer any component of the Plan is designated shall be indemnified and held harmless by the Company from any loss,
cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim,
action, suit, or proceeding to which he or she may be a party or in which he or she may be a party or in which he or she may be involved
by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction
of judgment in such action, suit, or proceeding against him or her; provided, however, that he or she gives the Company an opportunity,
at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing
right of indemnification shall not be exclusive of any other rights of indemnification to which such individuals may be entitled pursuant
to the Company’s Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have
to indemnify them or hold them harmless.
Section
30. Titles and Headings, References to Sections of the Code or Exchange Act.
The
titles and headings of the sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of
the Plan, rather than such titles or headings, shall control. References to sections of the Code or the Exchange Act shall include any
amendment or successor thereto.
Section
31. Successors.
The
obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger,
consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all
of the assets and business of the Company.
Section
32. Relationship to other Benefits.
No
payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing,
group insurance, welfare, or other benefit plan of the Company or any Affiliate except to the extent otherwise expressly provided in
writing in such other plan or an agreement thereunder.