As filed with the Securities and Exchange Commission
on July 17, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARCTURUS THERAPEUTICS HOLDINGS INC.
(Exact name of Registrant as specified in its
charter)
| Delaware |
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32-0595345 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
10628 Science Center Drive, Suite 250
San Diego, California 92121
(858) 900-2660
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
ARCTURUS THERAPEUTICS HOLDINGS INC. 2019 OMNIBUS
EQUITY INCENTIVE PLAN, as amended
(Full title of the plan)
Joseph E. Payne
Chief Executive Officer
Arcturus Therapeutics Holdings Inc.
10628 Science Center Drive, Suite 250
San Diego, California 92121
(Name and address of agent for service)
(858) 900-2660
(Telephone number, including area code, of agent
for service)
Copies to:
Dentons US LLP
1221 Avenue of the Americas
New York, New York 10020
Jeffrey A. Baumel, Esq.
Grant Levine, Esq.
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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Accelerated filer |
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| Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act ☐
EXPLANATORY NOTE
Arcturus
Therapeutics Holdings Inc., a Delaware corporation (the “Registrant”) is filing
this Registration Statement on Form S-8 for the purpose of registering an additional 2,000,000
shares of its common stock, issuable to eligible persons under the Amended and Restated 2019
Omnibus Equity Incentive Plan (as amended, the “2019 Plan”), which shares are
in addition to the shares registered on the Registrant’s registration statement on
Form S-8 filed with the Securities and Exchange Commission (the “Commission”)
on June 21, 2019 (File No. 333-232272), the registration statement on Form S-8
filed with the Commission on August 5, 2020 (File No. 333-240397), and the registration
statement on Form S-8 filed with the Commission on June 30, 2022 (File No. 333-265925)
(together, the “Prior Registration Statements”).
This Registration Statement relates to securities of the same class
as that to which the Prior Registration Statements relate, and is submitted in accordance with General Instruction E (“General Instruction
E”) to Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), regarding Registration of Additional
Securities. Pursuant to General Instruction E, the contents of the Prior Registration Statements, to the extent relating to the registration
of common stock issuable under the 2019 Plan, are incorporated herein by reference and made part of this Registration Statement, except
to the extent supplemented, amended and superseded by the information set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The following documents filed with the Commission by the Registrant
pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated
by reference in this registration statement:
| (a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the Commission on March 14,
2024; |
| (b) | The Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2024 filed with the Commission on May 8, 2024; |
| (c) | The Registrant’s Current Reports on Form 8-K filed with the Commission on February 23, 2024, April 5, 2024, June 14, 2024, and June 24, 2024;
and |
| (d) | The description of the Registrant’s common stock in the Current Report on Form 8-K12B filed with the SEC on June 14, 2019. |
All documents that the Registrant subsequently files pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this registration statement (except for any portions of the Registrant’s
current reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof and any corresponding exhibits thereto not filed with
the Commission) and prior to the filing of a post-effective amendment to this registration statement indicating that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration
statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent
that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 8. Exhibits
* Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego,
State of California, on July 17, 2024.
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ARCTURUS THERAPEUTICS HOLDINGS INC. |
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By: |
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/s/ Joseph E. Payne |
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Joseph E. Payne |
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Title: |
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Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned officers and directors of Arcturus Therapeutics
Holdings Inc., hereby severally constitute and appoint Joseph E. Payne and Dr. Padmanabh Chivukula, and each of them individually, our
true and lawful attorney to sign for us and in our names in the capacities indicated below any and all amendments or supplements, including
any post-effective amendments, to this Registration Statement on Form S-8 and to file the same, with exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorney full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming our signatures to said amendments to this Registration Statement signed by our
said attorney and all else that said attorney may lawfully do and cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and on the dates indicated:
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/s/ Joseph E. Payne
Joseph E. Payne |
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President, Chief Executive Officer and Director
(Principal Executive Officer) |
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July 17, 2024 |
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/s/ Dr. Padmanabh Chivukula
Dr. Padmanabh Chivukula |
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Chief Scientific Officer
Chief Operating Officer and Secretary |
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July 17, 2024 |
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/s/ Dr. Peter Farrell
Dr. Peter Farrell |
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Chairman of the Board |
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July 17, 2024 |
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/s/ Andy Sassine
Andy Sassine |
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Chief Financial Officer, Director
(principal financial officer) |
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July 17, 2024 |
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/s/ Dr. Magda Marquet
Dr. Magda Marquet |
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Director |
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July 17, 2024 |
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/s/ James Barlow
James Barlow |
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Director |
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July 17, 2024 |
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/s/ Dr. Edward Holmes
Dr. Edward Holmes |
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Director |
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July 17, 2024 |
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/s/ Dr. Jing L. Marantz |
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Director |
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July 17, 2024 |
| Dr. Jing L. Marantz |
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/s/ Dr. John Markels
Dr. John Markels |
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Director |
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July 17, 2024 |
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| /s/ Dr. Moncef Slaoui |
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Director |
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July 17, 2024 |
| Dr. Moncef Slaoui |
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July 17, 2024
Page 1 |
dentons.com |
July 17, 2024
Arcturus Therapeutics Holdings Inc.
10628 Science Center Drive, Suite 250
San Diego, CA 92121
Re: Arcturus Therapeutics Holdings Inc. Registration Statement on
Form S-8
Ladies and Gentlemen:
In our capacity as counsel to Arcturus Therapeutics Holdings Inc.,
a Delaware corporation (the “Company”), we have been asked to render this opinion in connection with a registration
statement on Form S-8 (the “Registration Statement”), being filed contemporaneously herewith by the Company with the
Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities
Act”), covering an aggregate of 2,000,000 shares (the “Shares”) of common stock, par value $0.001 per share
(“Common Stock”), of the Company issuable pursuant to the terms of the Company’s Amended and Restated 2019 Omnibus
Equity Incentive Plan, as amended (the “2019 Plan”).
We are delivering this opinion to you in accordance with your request
and in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
In connection with rendering this opinion, we have examined (i) the
Company’s Certificate of Incorporation, as amended, (ii) the Company’s Bylaws, (iii) the 2019 Plan, (iv) the Registration
Statement, (v) corporate proceedings of the Company relating to the 2019 Plan, and (vi) such other instruments and documents as we have
deemed relevant under the circumstances.
In making the aforesaid examinations, we have assumed the genuineness
of all signatures, the authority of the persons who executed such documents, the authenticity of all documents submitted to us as originals,
the conformity to the original documents of all documents submitted to us as copies, and the due execution and delivery of all documents
by any persons or entities where due execution and delivery by such persons or entities is a prerequisite to the effectiveness of such
documents. As to various factual matters that are material to this opinion, we have relied upon certificates of public officials and certificates,
resolutions, documents, statements and other information of the Company or its representatives. In addition, for purposes of this opinion,
we have assumed that a sufficient number of authorized but unissued shares of Common Stock, will be available for issuance when the Shares
are issued. We have not independently verified or investigated, nor do we assume any responsibility for, the factual accuracy or completeness
of such factual statements. We have also assumed that the corporate records furnished to us by the Company include all corporate proceedings
taken by the Company to date.
Based upon the foregoing and subject to the assumptions and qualifications
set forth herein, we are of the opinion that the Shares have been duly and validly authorized and, when issued and paid for in accordance
with the terms of the 2019 Plan, will be duly and validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the laws of the United States of
America and Delaware corporate law (which includes the Delaware General Corporation Law and applicable provisions of the Delaware constitution,
as well as reported judicial opinions interpreting same), as now in effect and that, in the exercise of reasonable professional judgment,
are normally considered in transactions such as the issuance of the Shares, and the foregoing opinion does not purport to express any
opinion on the laws of any other jurisdiction. This opinion is provided for use solely in connection with the sale of the Shares, and
except for its use in connection with such sale, may not be furnished to, quoted from or relied upon by any other person, firm, or corporation
without our express written consent. No opinion may be implied or inferred beyond the opinion expressly stated in the paragraph immediately
above. The opinion expressed herein is as of the date hereof, and we undertake no obligation to advise you of any changes in applicable
law or any other matters that may come to our attention after the date hereof that may affect our opinions expressed herein.
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July 17, 2024
Page 2 |
dentons.com |
We hereby consent to the use of our opinion as an exhibit to the Registration
Statement. In giving such consent, we do not hereby admit that we come within the category of persons whose consent is required under
Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.
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Very truly yours, |
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/s/ Dentons US LLP |
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Dentons US LLP |
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Arcturus Therapeutics Holdings Inc. 2019 Omnibus Equity Incentive Plan, as amended, of our reports dated
March 14, 2024, with respect to the consolidated financial statements of Arcturus Therapeutics Holdings Inc. and its Subsidiaries and
the effectiveness of internal control over financial reporting of Arcturus Therapeutics Holdings Inc. and its Subsidiaries included in
its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
San Diego, California
July 17, 2024
ARCTURUS THERAPEUTICS HOLDINGS INC.
AMENDED & RESTATED 2019 OMNIBUS EQUITY INCENTIVE
PLAN
(Originally Effective June 10, 2019; Amended
& Restated Effective June 5, 2020; Amended Effective June 21, 2022; Amended Effective June 14, 2024)
ARTICLE 1.
EFFECTIVE DATE, OBJECTIVES AND DURATION
1.1 Effective Date of the Plan. The
Board of Directors of ARCTURUS THERAPEUTICS HOLDINGS INC., a Delaware corporation (the “Company”), originally adopted the
2019 OMNIBUS EQUITY INCENTIVE PLAN, as amended and restated to date (the “Plan”) effective as of June 10, 2019. An amendment
and restatement of the Plan was adopted by the Board on April 26, 2020 and became effective June 5, 2020 upon approval by the Company’s
stockholders. An amendment to the amended and restated Plan became effective on June 21, 2022 upon approval by the Company’s stockholders.
The most recent amendment of the Plan was adopted by the Board on February 20, 2024 and became effective on June 14, 2024, upon approval
by the Company’s stockholder (the “Effective Date”).
1.2 Objectives of the Plan. The
Plan is intended (a) to allow selected employees of and consultants to the Company and its Affiliates to acquire or increase
equity ownership in the Company, thereby strengthening their commitment to the success of the Company and stimulating their efforts
on behalf of the Company, and to assist the Company and its Affiliates in attracting new employees, officers and consultants and
retaining existing employees and consultants, (b) to optimize the profitability and growth of the Company and its Affiliates
through incentives which are consistent with the Company’s goals, (d) to provide Grantees with an incentive for
excellence in individual performance, (e) to promote teamwork among employees, consultants
and Non-Employee Directors, and (f) to attract and retain highly qualified persons to serve
as Non-Employee Directors and to promote ownership by such Non-Employee Directors of a greater proprietary
interest in the Company, thereby aligning such Non-Employee Directors’ interests more closely with the interests of
the Company’s stockholders.
1.3 Duration of the Plan. The Plan
shall commence on the Effective Date and shall remain in effect, subject to the right of the Board to amend or terminate the Plan at any
time pursuant to Article 15 hereof, until the earlier of the tenth anniversary of the Effective Date, or the date all Shares subject to
the Plan shall have been purchased or acquired and the restrictions on all Restricted Shares granted under the Plan shall have lapsed,
according to the Plan’s provisions; provided, however, in no event may an Incentive Stock Option be granted more than ten years
after the earlier of (i) the date of the most recent adoption of the Plan by the Board or (ii) the Effective Date.
ARTICLE 2.
DEFINITIONS
Whenever used in the Plan, the following terms
shall have the meanings set forth below:
2.1 “Affiliate” means any corporation
or other entity, including but not limited to partnerships, limited liability companies and joint ventures, with respect to which the
Company, directly or indirectly, owns as applicable (a) stock possessing more than fifty percent (50%) of the total combined voting
power of all classes of stock entitled to vote, or more than fifty percent (50%) of the total value of all shares of all classes of stock
of such corporation, or (b) an aggregate of more than fifty percent (50%) of the profits interest or capital interest of a non-corporate entity.
2.2 “Award” means Options (including non-qualified options
and Incentive Stock Options), SARs, Restricted Shares, Performance Units (which may be paid in cash), Performance Shares, Deferred Stock,
Restricted Stock Units, Dividend Equivalents, Bonus Shares or Other Stock-Based Awards granted under the Plan.
2.3 “Award Agreement” means
either (a) a written agreement entered into by the Company and a Grantee setting forth the terms and provisions applicable to an
Award granted under this Plan, or (b) a written statement issued by the Company to a Grantee describing the terms and provisions
of such Award, including any amendment or modification thereof. The Committee may provide for the use of electronic, internet or other non-paper Award
Agreements and the use of electronic, internet or other non-paper means for the acceptance thereof and actions thereunder by
the Grantee.
2.4 “Board” means the Board
of Directors of the Company.
2.5 “Bonus Shares” means Shares
that are awarded to a Grantee with or without cost and without restrictions either in recognition of past performance (whether determined
by reference to another employee benefit plan of the Company or otherwise), as an inducement to become an Eligible Person or, with the
consent of the Grantee, as payment in lieu of any cash remuneration otherwise payable to the Grantee.
2.6 “Cause” means, except as
otherwise defined in an Award Agreement:
(a) the commission of any act by a Grantee constituting
a felony or crime of moral turpitude (or their equivalent in a non-United States jurisdiction);
(b) an act of dishonesty, fraud, intentional
misrepresentation, or harassment which, as determined in good faith by the Committee, would: (i) materially adversely affect the
business or the reputation of the Company or any of its Affiliates with their respective current or prospective customers, suppliers,
lenders and/or other third parties with whom such entity does or might do business; or (ii) expose the Company or any of its Affiliates
to a risk of civil or criminal legal damages, liabilities or penalties;
(c) any material misconduct in violation of the
Company’s or an Affiliate’s written policies; or
(d) willful and deliberate non-performance of
the Grantee’s duties in connection with the business affairs of the Company or its Affiliates;
provided, however, that if the Grantee
has a written employment or consulting agreement with the Company or any of its Affiliates or participates in any severance plan established
by the Company that includes a definition of “cause,” Cause shall have the meaning set forth in such employment or consulting
agreement or severance plan.
2.7 “CEO” means the Chief Executive
Officer of the Company.
2.8 “Change in Control” shall
have the meaning set forth in Section 16.4(e).
2.9 “Code” means the Internal
Revenue Code of 1986, as amended from time to time. References to a particular section of the Code include references to regulations and
rulings thereunder and to successor provisions.
2.10 “Committee” or “Incentive
Plan Committee” has the meaning set forth in Section 3.1(a).
2.11 “Compensation Committee”
means the compensation committee of the Board.
2.12 “Common Stock” means the
common stock, $0.001 par value, of the Company.
2.13 “Corporate Transaction”
shall have the meaning set forth in Section 4.2(b).
2.14 “Deferred Stock” means
a right, granted under Article 10, to receive Shares at the end of a specified deferral period.
2.15 “Disability” or “Disabled”
means, unless otherwise defined in an Award Agreement, or as otherwise determined under procedures established by the Committee for purposes
of the Plan:
(a) Except as provided in (b) below, a disability
within the meaning of Section 22(e)(3) of the Code; and
(b) In the case of any Award that constitutes
deferred compensation within the meaning of Section 409A of the Code, a disability as defined in regulations under Code Section 409A.
For purpose of Code Section 409A, a Grantee will be considered Disabled if:
(i) the Grantee 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) the Grantee 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 Grantee’s employer.
2.16 “Dividend Equivalent”
means a right to receive payments equal to dividends or property, if and when paid or distributed, on a specified number of Shares.
2.17 “Effective Date” has the
meaning set forth in Section 1.1.
2.18 “Eligible Person” means
any individual who is an employee (including any officer) of, a non-employee consultant to, or a Non-Employee Director
of, the Company or any Affiliate; provided, however, that solely with respect to the grant of an Incentive Stock Option, an Eligible Person
shall be any employee (including any officer) of the Company or any Subsidiary Corporation. Notwithstanding the foregoing, an Eligible
Person shall also include an individual who is expected to become an employee to, non-employee consultant of or Non-Employee Director
of the Company or any Affiliate within a reasonable period of time after the grant of an Award (other than an Incentive Stock Option);
provided that any Award granted to any such individual shall be automatically terminated and cancelled without consideration if the individual
does not begin performing services for the Company or any Affiliate within twelve (12) months after the Grant Date. Solely for purposes
of Section 5.6(b), current or former employees or non-employee directors of, or consultants to, of an Acquired Entity who
receive Substitute Awards in substitution for Acquired Entity Awards shall be considered Eligible Persons under this Plan with respect
to such Substitute Awards.
2.19 “Exchange Act” means the
Securities Exchange Act of 1934, as amended from time to time. References to a particular section of the Exchange Act include references
to successor provisions.
2.20 “Exercise Price” means
(a) with respect to an Option, the price at which a Share may be purchased by a Grantee pursuant to such Option or (b) with
respect to an SAR, the price established at the time an SAR is granted pursuant to Article 7, which is used to determine the amount, if
any, of the payment due to a Grantee upon exercise of the SAR.
2.21 “Fair Market Value” of
a Share means a price that is based on the opening, closing, actual, high, low, or the arithmetic mean of selling prices of a Share reported
on an established stock exchange which is the principal exchange upon which the Shares are traded on the applicable date or the preceding
trading day. Unless the Committee determines otherwise, if the Shares are traded over the counter at the time a determination of its Fair
Market Value is required to be made hereunder, Fair Market Value shall be deemed to be equal to the arithmetic mean between the reported
high and low or closing bid and asked prices of a Share on the applicable date, or if no such trades were made that day then the most
recent date on which Shares were publicly traded. In the event Shares are not publicly traded at the time a determination of their value
is required to be made hereunder, the determination of their Fair Market Value shall be made by the Committee in such manner as it deems
appropriate provided such manner is consistent with Treasury Regulation Section 1.409A-1(b)(5)(iv)(B).
2.22 “Grant Date” means the
date on which an Award is granted or such later date as specified in advance by the Committee.
2.23 “Grantee” means a person
who has been granted an Award.
2.24 “Incentive Stock Option”
means an Option that is intended to meet the requirements of Section 422 of the Code.
2.25 “Including” or “includes”
means “including, without limitation,” or “includes, without limitation,” respectively.
2.26 “Lead Independent Director”
means a Non-Employee Director who has been appointed as lead independent director by the Board, in accord with the policies and procedures
of the Company, the Board and the committees thereof.
2.27 “Management Committee”
has the meaning set forth in Section 3.1(b).
2.28 “Non-Employee Director”
means a member of the Board who is not an employee of the Company or any Affiliate.
2.29 “Non-Employee Director Chair”
means a Non-Employee Director who has been appointed to act as chair of one or more committees of the Board, in accord with the policies
and procedures of the Company, the Board and the committees thereof.
2.30 “Option” means an option
granted under Article 6 of the Plan.
2.31 “Other Stock-Based Award”
means a right, granted under Article 13 hereof, that relates to or is valued by reference to Shares or other Awards relating to Shares.
2.32 “Performance Period” means,
with respect to an Award of Performance Shares or Performance Units, the period of time during which the performance vesting conditions
applicable to such Award must be satisfied.
2.33 “Performance Share” and
“Performance Unit” have the respective meanings set forth in Article 9.
2.34 “Period of Restriction”
means the period during which Restricted Shares are subject to forfeiture if the conditions specified in the Award Agreement are not satisfied.
2.35 “Person” means any individual,
sole proprietorship, partnership, joint venture, limited liability company, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government instrumentality, division, agency, body or department.
2.36 “Restricted Shares” means
Shares, granted under Article 8, that are both subject to forfeiture and are nontransferable if the Grantee does not satisfy the conditions
specified in the Award Agreement applicable to such Shares.
2.37 “Restricted Stock Units”
are rights, granted under Article 10, to receive Shares (or cash in lieu thereof) if the Grantee satisfies the conditions specified in
the Award Agreement applicable to such rights.
2.38 “Rule 16b-3” means
Rule 16b-3 promulgated by the SEC under the Exchange Act, as amended from time to time, together with any successor rule.
2.39 “SEC” means the United
States Securities and Exchange Commission, or any successor thereto.
2.40 “Section 16 Non-Employee Director”
means a member of the Board who satisfies the requirements to qualify as a “non-employee director” under Rule 16b-3.
2.41 “Section 16 Person”
means a person who is subject to potential liability under Section 16(b) of the Exchange Act with respect to transactions involving
equity securities of the Company.
2.42 “Separation from Service”
means, with respect to any Award that constitutes deferred compensation within the meaning of Code Section 409A, a “separation
from service” as defined in Treasury Regulation Section 1.409A-1(h). For this purpose, a “separation from service”
is deemed to occur on the date that the Company and the Grantee reasonably anticipate that the level of bona fide services the Grantee
would perform for the Company and/or any Affiliates after that date (whether as an employee, Non-Employee Director or consultant
or independent contractor) would permanently decrease to a level that, based on the facts and circumstances, would constitute a separation
from service; provided that a decrease to a level that is 50% or more of the average level of bona fide services provided over the prior
36 months shall not be a separation from service, and a decrease to a level that is 20% or less of the average level of such bona fide
services shall be a separation from service. The Committee retains the right and discretion to specify, and may specify, whether a separation
from service occurs with respect to those individuals who are performing services for the Company or an Affiliate immediately prior to
an asset purchase transaction in which the Company or an Affiliate is the seller and who continue to perform services for the buyer (or
an affiliate thereof) immediately following such asset purchase transaction; provided, such specification is made in accordance with the
requirements of Treasury Regulation Section 1.409A-1(h)(4).
2.43 “Share” means a share
of Common Stock, and such other securities of the Company, as may be substituted or resubstituted for Shares pursuant to Section 4.2
hereof.
2.44 “Stock Appreciation Right”
or “SAR” means an Award granted under Article 7 of the Plan.
2.45 “Subsidiary Corporation”
means a corporation other than the Company in an unbroken chain of corporations beginning with the Company if, at the time of granting
the Option, each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations in such chain.
2.46 “Surviving Company” means
(a) the surviving corporation in any merger, consolidation or similar transaction, involving the Company (including the Company if
the Company is the surviving corporation), (b) or the direct or indirect parent company of such surviving corporation or (c) the
direct or indirect parent company of the Company following a sale of substantially all of the outstanding stock of the Company.
2.47 “Term” of any Option or
SAR means the period beginning on the Grant Date of an Option or SAR and ending on the date such Option or SAR expires, terminates or
is cancelled. No Option or SAR granted under this Plan shall have a Term exceeding 10 years.
2.48 “Termination of Affiliation”
occurs on the first day on which an individual is for any reason no longer performing services for the Company or any Affiliate in the
capacity of an employee of, a non-employee consultant to, or a Non-Employee Director of, the Company or any Affiliate
or with respect to an individual who is an employee of, a non-employee consultant to or a Non-Employee Director of
an Affiliate, the first day on which such entity ceases to be an Affiliate of the Company unless such individual continues to perform
Services for the Company or another Affiliate without interruption after such entity ceases to be an Affiliate. Notwithstanding the foregoing,
if an Award constitutes deferred compensation within the meaning of Code Section 409A, Termination of Affiliation with respect to
such Award shall mean the Grantee’s Separation from Service.
ARTICLE 3.
ADMINISTRATION
3.1 Committee.
(a) Subject to Article 14, and to Section 3.2,
the Plan shall be administered by a Committee (the “Incentive Plan Committee” or the “Committee”) of directors
of the Company appointed by the Board from time to time. Notwithstanding the foregoing, either the Board or the Compensation Committee
may at any time and in one or more instances reserve administrative powers to itself as the Committee or exercise any of the administrative
powers of the Committee. The number of members of the Committee may from time to time be increased or decreased as the Board or Compensation
Committee deems appropriate. To the extent the Board or Compensation Committee considers it desirable to comply with Rule 16b-3, the
Committee shall consist of two or more directors of the Company, all of whom qualify as Section 16 Non-Employee Directors.
(b) The Board or the Compensation Committee may
appoint and delegate to another committee (“Management Committee”), or to the CEO, any or all of the authority of the Board
or the Committee, as applicable, with respect to Awards to Grantees other than Grantees who are executive officers, Non-Employee Directors,
or Section 16 Persons at the time any such delegated authority is exercised.
(c) Unless the context requires otherwise, any
references herein to “Committee” include references to the Incentive Plan Committee, the Board or the Compensation Committee
to the extent Incentive Plan Committee, the Board or the Compensation Committee, as applicable, has assumed or exercises administrative
powers itself as the Committee pursuant to subsection (a), and to the Management Committee or the CEO to the extent either has been delegated
authority pursuant to subsection (b), as applicable; provided that (i) for purposes of Awards to Non-Employee Directors,
“Committee” shall include only the full Board, and (ii) for purposes of Awards intended to comply with Rule 16b-3, the
“Committee” shall include only the Incentive Plan Committee or the Compensation Committee.
3.2 Powers of Committee. Subject to
and consistent with the provisions of the Plan (including Article 14), the Committee has full and final authority and sole discretion
as follows; provided that any such authority or discretion exercised with respect to a specific Non-Employee Director shall
be approved by the affirmative vote of a majority of the members of the Board, even if not a quorum, but excluding the Non-Employee Director
with respect to whom such authority or discretion is exercised:
(a) to determine when, to whom and in what types
and amounts Awards should be granted;
(b) to grant Awards to Eligible Persons in any
number and to determine the terms and conditions applicable to each Award (including the number of Shares or the amount of cash or other
property to which an Award will relate, any Exercise Price or purchase price, any limitation or restriction, any schedule for or performance
conditions relating to the earning of the Award or the lapse of limitations, forfeiture restrictions, restrictions on exercisability or
transferability, any performance goals including those relating to the Company and/or an Affiliate and/or any division thereof and/or
an individual, and/or vesting based on the passage of time, based in each case on such considerations as the Committee shall determine);
(c) to determine the benefit payable under any
Performance Unit, Performance Share, Dividend Equivalent, Other Stock-Based Award or Cash Incentive Award and to determine whether any
performance or vesting conditions have been satisfied;
(d) to determine whether or not specific Awards
shall be granted in connection with other specific Awards, and if so, whether they shall be exercisable cumulatively with, or alternatively
to, such other specific Awards and all other matters to be determined in connection with an Award;
(e) to determine the Term of any Option or SAR;
(f) to determine the amount, if any, that a Grantee
shall pay for Restricted Shares, whether to permit or require the payment of cash dividends thereon to be deferred and the terms related
thereto, when Restricted Shares (including Restricted Shares acquired upon the exercise of an Option) shall be forfeited and whether such
shares shall be held in escrow;
(g) to determine whether, to what extent and
under what circumstances an Award may be settled in, or the exercise price of an Award may be paid in, cash, Shares, other Awards or other
property, or an Award may be accelerated, vested, canceled, forfeited or surrendered or any terms of the Award may be waived, and to accelerate
the exercisability of, and to accelerate or waive any or all of the terms and conditions applicable to, any Award or any group of Awards
for any reason and at any time;
(h) to determine with respect to Awards granted
to Eligible Persons whether, to what extent and under what circumstances cash, Shares, other Awards, other property and other amounts
payable with respect to an Award will be deferred, either at the election of the Grantee or automatically pursuant to the terms of the
Award Agreement;
(i) to offer to exchange or buy out any previously
granted Award for a payment in cash, Shares or other Award;
(j) to construe and interpret the Plan and to
make all determinations, including factual determinations, necessary or advisable for the administration of the Plan;
(k) to make, amend, suspend, waive and rescind
rules and regulations relating to the Plan;
(l) to appoint such agents as the Committee may
deem necessary or advisable to administer the Plan;
(m) to determine the terms and conditions of
all Award Agreements applicable to Eligible Persons (which need not be identical) and, with the consent of the Grantee, to amend any such
Award Agreement at any time, among other things, to permit transfers of such Awards to the extent permitted by the Plan; provided that
the consent of the Grantee shall not be required for any amendment (i) which does not adversely affect the rights of the Grantee,
or (ii) which is necessary or advisable (as determined by the Committee) to carry out the purpose of the Award as a result of any
new applicable law or change in an existing applicable law, or (iii) to the extent the Award Agreement specifically permits amendment
without consent;
(n) to cancel, with the consent of the Grantee,
outstanding Awards and to grant new Awards in substitution therefor;
(o) to impose such additional terms and conditions
upon the grant, exercise or retention of Awards as the Committee may, before or concurrently with the grant thereof, deem appropriate,
including limiting the percentage of Awards which may from time to time be exercised by a Grantee;
(p) to make adjustments in the terms and conditions
of, and the criteria in, Awards in recognition of unusual or nonrecurring events (including events described in Section 4.2) affecting
the Company or an Affiliate or the financial statements of the Company or an Affiliate, or in response to changes in applicable laws,
regulations or accounting principles;
(q) to correct any defect or supply any omission
or reconcile any inconsistency, and to construe and interpret the Plan, the rules and regulations, and Award Agreement or any other instrument
entered into or relating to an Award under the Plan; and
(r) to take any other action with respect to
any matters relating to the Plan for which it is responsible and to make all other decisions and determinations as may be required under
the terms of the Plan or as the Committee may deem necessary or advisable for the administration of the Plan.
Any action of the Committee with respect to the
Plan shall be final, conclusive and binding on all persons, including the Company, its Affiliates, any Grantee, any person claiming any
rights under the Plan from or through any Grantee, and stockholders, except to the extent the Committee may subsequently modify, or take
further action not consistent with, its prior action. If not specified in the Plan, the time at which the Committee must or may make any
determination shall be determined by the Committee, and any such determination may thereafter be modified by the Committee. The express
grant of any specific power to the Committee, and the taking of any action by the Committee, shall not be construed as limiting any power
or authority of the Committee. Subject to Section 3.1(b), the Committee may delegate to officers of the Company or any Affiliate
the authority, subject to such terms as the Committee shall determine, to perform specified functions under the Plan.
3.3 No Repricings. Notwithstanding
any provision in Section 3.2 to the contrary, the terms of any outstanding Option or SAR may not be amended: (i) to reduce the Exercise
Price of such Option or SAR, (ii) cancel any outstanding Option or SAR in exchange for other Options or SARs with an Exercise Price that
is less than the Exercise Price of the cancelled Option or SAR or for any cash payment (or Shares having with a Fair Market Value) in
an amount that exceeds the excess of the Fair Market Value of the Shares underlying such cancelled Option or SAR over the aggregate Exercise
Price of such Option or SAR or for any other Award, or (iii) take any other action with respect to an Option or SAR that would be treated
as a repricing under the rules and regulations on the principal securities exchange on which the Shares are traded, in each case without
stockholder approval; provided, however, that the restrictions set forth in this Section 3.3, shall not apply (i) unless the
Company has a class of stock that is registered under Section 12 of the Exchange Act or (ii) to any adjustment allowed under
to Section 4.2.
ARTICLE 4.
SHARES SUBJECT TO THE PLAN
4.1 Number of Shares Available for
Grants. Subject to adjustment as provided in Section 4.2 and the share counting provisions in this Section 4.1, and except
as provided in Section 5.6(b), as of the Effective Date, the maximum number of Shares hereby reserved for delivery pursuant to
Awards granted under the Plan shall be 10,750,000 Shares. Up to a maximum of 10,750,000 Shares may be delivered pursuant to the
exercise of Incentive Stock Options granted hereunder.
If any Shares subject to an Award granted hereunder
(other than a Substitute Award granted pursuant to Section 5.6(b)) are forfeited or such Award otherwise terminates without payment
or delivery of all or a portion of such Shares (including on payment in Shares on exercise of a SAR), the Shares subject to such Award,
to the extent of any such forfeiture or termination, shall again be available for grant under the Plan. In the event that any Shares subject
to an Award granted hereunder are withheld or applied as payment (either actually or by attestation) in connection with the exercise of
an Award or the withholding or payment of taxes related thereto (“Returned Shares”), such Returned Shares will not be treated
as having been delivered for purposes of determining the maximum number of Shares available for grant under the Plan and shall again be
treated as available for grant under the Plan.
Shares delivered pursuant to the Plan may be,
in whole or in part, authorized and unissued Shares, or treasury Shares, including Shares repurchased by the Company for purposes of the
Plan.
4.2 Adjustments in Authorized Shares and
Awards; Corporate Transaction, Liquidation or Dissolution.
(a) Adjustment in Authorized Shares and
Awards. In the event that the Committee determines that any dividend or other distribution (whether in the form of cash, Shares, or
other property), recapitalization, forward or reverse stock split, subdivision, consolidation or reduction of capital, reorganization,
merger, consolidation, scheme of arrangement, split-up, spin-off or combination involving the Company or repurchase or
exchange of Shares or other securities of the Company or other rights to purchase Shares or other securities of the Company, or other
similar corporate transaction or event affects the Shares such that any adjustment is determined by the Committee to be appropriate in
order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number and type of Shares (or other securities
or property) with respect to which Awards may be granted, (ii) the number and type of Shares (or other securities or property) subject
to outstanding Awards, (iii) the Exercise Price with respect to any Option or SAR or, if deemed appropriate, make provision for a
cash payment to the holder of an outstanding Award, and (iv) the number and kind of Shares of outstanding Restricted Shares, or the
Shares underlying any other form of Award. Notwithstanding the foregoing, no such adjustment shall be authorized with respect to any Options
or SARs to the extent that such adjustment would cause the Option or SAR to violate Section 424(a) of the Code or otherwise subject
any Grantee to taxation under Section 409A of the Code; and provided further that the number of Shares subject to
any Award denominated in Shares shall always be a whole number.
(b) Merger, Consolidation or Similar
Corporate Transaction. In the event of a merger or consolidation of the Company with or into another corporation or a sale of substantially
all of the stock of the Company (a “Corporate Transaction”), unless an outstanding Award is assumed by the Surviving Company
or replaced with an equivalent Award granted by the Surviving Company in substitution for such outstanding Award, the Committee shall
cancel any outstanding Awards that are not vested and nonforfeitable as of the consummation of such Corporate Transaction (unless the
Committee accelerates the vesting of any such Awards) and with respect to any vested and nonforfeitable Awards, the Committee may either
(i) allow all Grantees to exercise such Awards of Options and SARs within a reasonable period prior to the consummation of the Corporate
Transaction and cancel any outstanding Options or SARs that remain unexercised upon consummation of the Corporate Transaction, or (ii) cancel
any or all of such outstanding Awards in exchange for a payment (in cash, or in securities or other property) in an amount equal to the
amount that the Grantee would have received (net of the Exercise Price with respect to any Options or SARs) if such vested Awards were
settled or distributed or such vested Options and SARs were exercised immediately prior to the consummation of the Corporate Transaction.
Notwithstanding the foregoing, if an Option or SAR is not assumed by the Surviving Company or replaced with an equivalent Award issued
by the Surviving Company and the Exercise Price with respect to any outstanding Option or SAR exceeds the Fair Market Value of the Shares
immediately prior to the consummation of the Corporation Transaction, such Awards shall be cancelled without any payment to the Grantee.
(c) Liquidation or Dissolution of the
Company. In the event of the proposed dissolution or liquidation of the Company, each Award will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the Committee. Additionally, the Committee may, in the exercise of
its sole discretion, cause Awards to be vested and non-forfeitable and cause any conditions on any such Award to lapse, as to
all or any part of such Award, including Shares as to which the Award would not otherwise be exercisable or non-forfeitable and
allow all Grantees to exercise such Awards of Options and SARs within a reasonable period prior to the consummation of such proposed action.
Any Awards that remain unexercised upon consummation of such proposed action shall be cancelled.
(d) Deferred Compensation. Notwithstanding
the forgoing provisions of this Section 4.2, if an Award constitutes deferred compensation within the meaning of Code Section 409A,
no payment or settlement of such Award shall be made pursuant to Section 4.2(b) or (c), unless the Corporate Transaction or the dissolution
or liquidation of the Company, as applicable, constitutes a Change in Control.
ARTICLE 5.
ELIGIBILITY AND GENERAL CONDITIONS OF AWARDS
5.1 Eligibility. The Committee may
in its discretion grant Awards to any Eligible Person, whether or not he or she has previously received an Award; provided, however, that
all Awards made to Non-Employee Directors shall be determined by the Board in its sole discretion.
5.2 Award Agreement. To the extent
not set forth in the Plan, the terms and conditions of each Award shall be set forth in an Award Agreement.
5.3 General Terms and Termination of Affiliation.
The Committee may impose on any Award or the exercise or settlement thereof, at the date of grant or, subject to the provisions of Section 15.2,
thereafter, such additional terms and conditions not inconsistent with the provisions of the Plan as the Committee shall determine, including
terms requiring forfeiture, acceleration or pro-rata acceleration of Awards in the event of a Termination of Affiliation by
the Grantee. Except as may be required under the Delaware General Corporation Law, Awards may be granted for no consideration other than
prior and future services. Except as set forth in an Award Agreement or as otherwise determined by the Committee, (a) all Options
and SARs that are not vested and exercisable at the time of a Grantee’s Termination of Affiliation, and any other Awards that remain
subject to a risk of forfeiture or which are not otherwise vested at the time of the Grantee’s Termination of Affiliation shall
be forfeited to the Company and (b) all outstanding Options and SARs not previously exercised shall expire three months after the
Grantee’s Termination of Affiliation.
5.4 Nontransferability of Awards.
(a) Each Award and each right under any Award
shall be exercisable only by the Grantee during the Grantee’s lifetime, or, if permissible under applicable law, by the Grantee’s
guardian or legal representative or by a transferee receiving such Award pursuant to a qualified domestic relations order (a “QDRO”)
as defined in the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder.
(b) No Award (prior to the time, if applicable,
Shares are delivered in respect of such Award), and no right under any Award, may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Grantee otherwise than by will or by the laws of descent and distribution (or in the case of Restricted
Shares, to the Company) or pursuant to a QDRO, and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance
shall be void and unenforceable against the Company or any Affiliate; provided that the designation of a beneficiary to receive benefits
in the event of the Grantee’s death shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(c) Notwithstanding subsections (a) and
(b) above, to the extent provided in the Award Agreement or as otherwise approved by the Committee, Options (other than Incentive Stock
Options) and Restricted Shares, may be transferred, without consideration, to a Permitted Transferee. For this purpose, a “Permitted
Transferee” in respect of any Grantee means any member of the Immediate Family of such Grantee, any trust of which all of the primary
beneficiaries are such Grantee or members of his or her Immediate Family, or any partnership (including limited liability companies and
similar entities) of which all of the partners or members are such Grantee or members of his or her Immediate Family; and the “Immediate
Family” of a Grantee means the Grantee’s spouse, children, stepchildren, grandchildren, parents, stepparents, siblings, grandparents,
nieces and nephews. Such Option may be exercised by such transferee in accordance with the terms of the Award Agreement. If so determined
by the Committee, a Grantee may, in the manner established by the Committee, designate a beneficiary or beneficiaries to exercise the
rights of the Grantee, and to receive any distribution with respect to any Award upon the death of the Grantee. A transferee, beneficiary,
guardian, legal representative or other person claiming any rights under the Plan from or through any Grantee shall be subject to and
consistent with the provisions of the Plan and any applicable Award Agreement, except to the extent the Plan and Award Agreement otherwise
provide with respect to such persons, and to any additional restrictions or limitations deemed necessary or appropriate by the Committee.
(d) Nothing herein shall be construed as requiring
the Committee to honor a QDRO except to the extent required under applicable law.
5.5 Cancellation and Rescission of Awards.
Unless the Award Agreement specifies otherwise, the Committee may cancel, rescind, suspend, withhold, or otherwise limit or restrict any
unexercised Award at any time if the Grantee is not in compliance with all applicable provisions of the Award Agreement and the Plan or
if the Grantee has a Termination of Affiliation.
5.6 Stand-Alone, Tandem and Substitute
Awards.
(a) Awards granted under the Plan may, in the
discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution for, any other Award granted
under the Plan unless such tandem or substitution Award would subject the Grantee to tax penalties imposed under Section 409A of
the Code. If an Award is granted in substitution for another Award or any non-Plan award or benefit, the Committee shall require
the surrender of such other Award or non-Plan award or benefit in consideration for the grant of the new Award. Awards granted
in addition to or in tandem with other Awards or non-Plan awards or benefits may be granted either at the same time as or at
a different time from the grant of such other Awards or non-Plan awards or benefits; provided, however, that if any SAR is granted
in tandem with an Incentive Stock Option, such SAR and Incentive Stock Option must have the same Grant Date, Term and the Exercise Price
of the SAR may not be less than the Exercise Price of the Incentive Stock Option.
(b) The Committee may, in its discretion and
on such terms and conditions as the Committee considers appropriate in the circumstances, grant Awards under the Plan (“Substitute
Awards”) in substitution for stock and stock-based awards (“Acquired Entity Awards”) held by current or former employees
or non-employee directors of, or consultants to, another corporation or entity who become Eligible Persons as the result of
a merger or consolidation of the employing corporation or other entity (the “Acquired Entity”) with the Company or an Affiliate
or the acquisition by the Company or an Affiliate of property or stock of the Acquired Entity immediately prior to such merger, consolidation
or acquisition in order to preserve for the Grantee the economic value of all or a portion of such Acquired Entity Award at such price
as the Committee determines necessary to achieve preservation of economic value. The limitations in Section 4.1 on the number of
Shares reserved or available for grants shall not apply to Substitute Awards granted under this Section 5.6(b).
5.7 Compliance with Rule 16b-3.
The provisions of this Section 5.7will not apply unless and until the Company has a class of stock that is registered under Section 12
of the Exchange Act.
(a) Six-Month Holding Period Advice.
Unless a Grantee could otherwise dispose of or exercise a derivative security or dispose of Shares delivered under the Plan without incurring
liability under Section 16(b) of the Exchange Act, the Committee may advise or require a Grantee to comply with the following in
order to avoid incurring liability under Section 16(b) of the Exchange Act: (i) at least six months must elapse from the date
of acquisition of a derivative security under the Plan to the date of disposition of the derivative security (other than upon exercise
or conversion) or its underlying equity security, and (ii) Shares granted or awarded under the Plan other than upon exercise or conversion
of a derivative security must be held for at least six months from the date of grant of an Award.
(b) Reformation to Comply with Exchange
Act Rules. To the extent the Committee determines that a grant or other transaction by a Section 16 Person should comply with
applicable provisions of Rule 16b-3 (except for transactions exempted under alternative Exchange Act rules), the Committee shall
take such actions as necessary to make such grant or other transaction so comply, and if any provision of this Plan or any Award Agreement
relating to a given Award does not comply with the requirements of Rule 16b-3 as then applicable to any such grant or transaction,
such provision will be construed or deemed amended, if the Committee so determines, to the extent necessary to conform to the then applicable
requirements of Rule 16b-3.
(c) Rule 16b-3 Administration.
Any function relating to a Section 16 Person shall be performed solely by the Committee or the Board if necessary to ensure compliance
with applicable requirements of Rule 16b-3, to the extent the Committee determines that such compliance is desired. Each member
of the Committee or person acting on behalf of the Committee shall be entitled to, in good faith, rely or act upon any report or other
information furnished to him by any officer, manager or other employee of the Company or any Affiliate, the Company’s independent
certified public accountants or any executive compensation consultant or attorney or other professional retained by the Company to assist
in the administration of the Plan.
5.8 Deferral of Award Payouts. The
Committee may permit a Grantee to defer, or if and to the extent specified in an Award Agreement require the Grantee to defer, receipt
of the payment of cash or the delivery of Shares that would otherwise be due by virtue of the lapse or waiver of restrictions with respect
to Restricted Stock Units, the satisfaction of any requirements or goals with respect to Performance Units or Performance Shares, the
lapse or waiver of the deferral period for Deferred Stock, or the lapse or waiver of restrictions with respect to Other Stock-Based Awards
or Cash Incentive Awards. If the Committee permits such deferrals, the Committee shall establish rules and procedures for making such
deferral elections and for the payment of such deferrals, which shall conform in form and substance with applicable regulations promulgated
under Section 409A of the Code and Article 16 to ensure that the Grantee is not subjected to tax penalties under Section 409A
of the Code with respect to such deferrals. Except as otherwise provided in an Award Agreement, any payment or any Shares that are subject
to such deferral shall be made or delivered to the Grantee as specified in the Award Agreement or pursuant to the Grantee’s deferral
election.
ARTICLE 6.
STOCK OPTIONS
6.1 Grant of Options. Subject to and
consistent with the provisions of the Plan, Options may be granted to any Eligible Person in such number, and upon such terms, and at
any time and from time to time as shall be determined by the Committee.
6.2 Award Agreement. Each Option grant
shall be evidenced by an Award Agreement that shall specify the Exercise Price, the Term of the Option, the number of Shares to which
the Option pertains, the time or times at which such Option shall be exercisable and such other provisions as the Committee shall determine.
6.3 Option Exercise Price. The Exercise
Price of an Option under this Plan shall be determined in the sole discretion of the Committee but may not be less than 100% of the Fair
Market Value of a Share on the Grant Date (other than in the case of Substitute Awards).
6.4 Grant of Incentive Stock Options.
At the time of the grant of any Option, the Committee may in its discretion designate that such Option shall be made subject to additional
restrictions to permit it to qualify as an Incentive Stock Option. Any Option designated as an Incentive Stock Option:
(a) shall be granted only to an employee of the
Company or a Subsidiary Corporation;
(b) shall have an Exercise Price of not less
than 100% of the Fair Market Value of a Share on the Grant Date, and, if granted to a person who owns capital stock (including stock treated
as owned under Section 424(d) of the Code) possessing more than 10% of the total combined voting power of all classes of capital
stock of the Company or any Subsidiary Corporation (a “More Than 10% Owner”), have an Exercise Price not less than 110% of
the Fair Market Value of a Share on its Grant Date;
(c) shall be for a period of not more than 10
years (five years if the Grantee is a More Than 10% Owner) from its Grant Date, and shall be subject to earlier termination as provided
herein or in the applicable Award Agreement;
(d) shall not have an aggregate Fair Market Value
(as of the Grant Date) of the Shares with respect to which Incentive Stock Options (whether granted under the Plan or any other stock
option plan of the Grantee’s employer or any parent or Subsidiary Corporation (“Other Plans”)) are exercisable for the
first time by such Grantee during any calendar year (“Current Grant”), determined in accordance with the provisions of Section 422
of the Code, which exceeds $100,000 (the “$100,000 Limit”);
(e) shall, if the aggregate Fair Market Value
of the Shares (determined on the Grant Date) with respect to the Current Grant and all Incentive Stock Options previously granted under
the Plan and any Other Plans which are exercisable for the first time during a calendar year (“Prior Grants”) would exceed
the $100,000 Limit, be, as to the portion in excess of the $100,000 Limit, exercisable as a separate option that is not an Incentive Stock
Option at such date or dates as are provided in the Current Grant;
(f) shall require the Grantee to notify the Committee
of any disposition of any Shares delivered pursuant to the exercise of the Incentive Stock Option under the circumstances described in
Section 421(b) of the Code (relating to holding periods and certain disqualifying dispositions) (“Disqualifying Disposition”)
within 10 days of such a Disqualifying Disposition;
(g) shall by its terms not be assignable or transferable
other than by will or the laws of descent and distribution and may be exercised, during the Grantee’s lifetime, only by the Grantee;
provided, however, that the Grantee may, to the extent provided in the Plan in any manner specified by the Committee, designate in writing
a beneficiary to exercise his or her Incentive Stock Option after the Grantee’s death; and
(h) shall, if such Option nevertheless fails
to meet the foregoing requirements, or otherwise fails to meet the requirements of Section 422 of the Code for an Incentive Stock
Option, be treated for all purposes of this Plan, except as otherwise provided in subsections (d) and (e) above, as an Option that
is not an Incentive Stock Option.
Notwithstanding the foregoing and Section 3.2,
the Committee may, without the consent of the Grantee, at any time before the exercise of an Option (whether or not an Incentive Stock
Option), take any action necessary to prevent such Option from being treated as an Incentive Stock Option.
6.5 Payment of Exercise Price. Except
as otherwise provided in an Award Agreement, Options shall be exercised by the delivery of a written notice of exercise to the Company,
setting forth the number of Shares with respect to which the Option is to be exercised, accompanied by full payment for the Shares made
by any one or more of the following means:
(a) cash, personal check or wire transfer;
(b) with the approval of the Committee, delivery
of Common Stock owned by the Grantee prior to exercise, valued at Fair Market Value on the date of exercise;
(c) with the approval of the Committee, Shares
acquired upon the exercise of such Option, such Shares valued at Fair Market Value on the date of exercise;
(d) with the approval of the Committee, Restricted
Shares held by the Grantee prior to the exercise of the Option, valued at Fair Market Value on the date of exercise; or
(e) subject to applicable law (including the
prohibited loan provisions of Section 402 of the Sarbanes Oxley Act of 2002), through the sale of the Shares acquired on exercise
of the Option through a broker-dealer to whom the Grantee has submitted an irrevocable notice of exercise and irrevocable instructions
to deliver promptly to the Company the amount of sale proceeds sufficient to pay for such Shares, together with, if requested by the Company,
the amount of federal, state, local or foreign withholding taxes payable by Grantee by reason of such exercise.
The Committee may in its discretion specify that,
if any Restricted Shares (“Tendered Restricted Shares”) are used to pay the Exercise Price, (x) all the Shares acquired
on exercise of the Option shall be subject to the same restrictions as the Tendered Restricted Shares, determined as of the date of exercise
of the Option, or (y) a number of Shares acquired on exercise of the Option equal to the number of Tendered Restricted Shares shall
be subject to the same restrictions as the Tendered Restricted Shares, determined as of the date of exercise of the Option.
ARTICLE 7.
STOCK APPRECIATION RIGHTS
7.1 Issuance. Subject to and consistent
with the provisions of the Plan, the Committee, at any time and from time to time, may grant SARs to any Eligible Person either alone
or in addition to other Awards granted under the Plan. Such SARs may, but need not, be granted in connection with a specific Option granted
under Article 6. The Committee may impose such conditions or restrictions on the exercise of any SAR as it shall deem appropriate.
7.2 Award Agreements. Each SAR grant
shall be evidenced by an Award Agreement in such form as the Committee may approve and shall contain such terms and conditions not inconsistent
with other provisions of the Plan as shall be determined from time to time by the Committee.
7.3 SAR Exercise Price. The Exercise
Price of a SAR shall be determined by the Committee in its sole discretion; provided that the Exercise Price shall not be less than 100%
of the Fair Market Value of a Share on the date of the grant of the SAR (other than in the case of Substitute Awards).
7.4 Exercise and Payment. Upon the
exercise of an SAR, a Grantee shall be entitled to receive payment from the Company in an amount determined by multiplying:
(a) The excess of the Fair Market Value of a
Share on the date of exercise over the Exercise Price; by
(b) The number of Shares with respect to which
the SAR is exercised.
SARs shall be deemed exercised on the date written
notice of exercise in a form acceptable to the Committee is received by the Secretary of the Company. The Company shall make payment in
respect of any SAR within five (5) days of the date the SAR is exercised. Any payment by the Company in respect of a SAR may be made
in cash, Shares, other property, or any combination thereof, as the Committee, in its sole discretion, shall determine or, to the extent
permitted under the terms of the applicable Award Agreement, at the election of the Grantee.
ARTICLE 8.
RESTRICTED SHARES
8.1 Grant of Restricted Shares. Subject
to and consistent with the provisions of the Plan, the Committee, at any time and from time to time, may grant Restricted Shares to any
Eligible Person in such amounts as the Committee shall determine.
8.2 Award Agreement. Each grant of
Restricted Shares shall be evidenced by an Award Agreement that shall specify the Period(s) of Restriction, the number of Restricted Shares
granted, and such other provisions as the Committee shall determine. The Committee may impose such conditions and/or restrictions on any
Restricted Shares granted pursuant to the Plan as it may deem advisable, including restrictions based upon the achievement of specific
performance goals, time-based restrictions on vesting following the attainment of the performance goals, and/or restrictions under applicable
securities laws; provided that such conditions and/or restrictions may lapse, if so determined by the Committee, in the event of the Grantee’s
Termination of Affiliation due to death, Disability, or involuntary termination by the Company or an Affiliate without Cause.
8.3 Consideration for Restricted Shares.
The Committee shall determine the amount, if any, that a Grantee shall pay for Restricted Shares.
8.4 Effect of Forfeiture. If Restricted
Shares are forfeited, and if the Grantee was required to pay for such shares or acquired such Restricted Shares upon the exercise of an
Option, the Grantee shall be deemed to have resold such Restricted Shares to the Company at a price equal to the lesser of (x) the
amount paid by the Grantee for such Restricted Shares, or (y) the Fair Market Value of a Share on the date of such forfeiture. The
Company shall pay to the Grantee the deemed sale price as soon as is administratively practical. Such Restricted Shares shall cease to
be outstanding and shall no longer confer on the Grantee thereof any rights as a stockholder of the Company, from and after the date of
the event causing the forfeiture, whether or not the Grantee accepts the Company’s tender of payment for such Restricted Shares.
8.5 Escrow; Legends. The Committee
may provide that the certificates for any Restricted Shares (x) shall be held (together with a stock power executed in blank by the
Grantee) in escrow by the Secretary of the Company until such Restricted Shares become nonforfeitable or are forfeited and/or (y) shall
bear an appropriate legend restricting the transfer of such Restricted Shares under the Plan. If any Restricted Shares become nonforfeitable,
the Company shall cause certificates for such shares to be delivered without such legend.
ARTICLE 9.
PERFORMANCE UNITS AND PERFORMANCE SHARES
9.1 Grant of Performance Units and Performance
Shares. Subject to and consistent with the provisions of the Plan, Performance Units or Performance Shares may be granted to any Eligible
Person in such amounts and upon such terms, and at any time and from time to time, as shall be determined by the Committee.
9.2 Value/Performance Goals. The Committee
shall set performance goals in its discretion which, depending on the extent to which they are met, will determine the number or value
of Performance Units or Performance Shares that will be paid to the Grantee.
(a) Performance Unit. Each Performance
Unit shall have an initial value that is established by the Committee at the time of grant.
(b) Performance Share. Each Performance
Share shall have an initial value equal to the Fair Market Value of a Share on the date of grant.
9.3 Earning of Performance Units and Performance
Shares. After the applicable Performance Period has ended, the holder of Performance Units or Performance Shares shall be entitled
to payment based on the level of achievement of performance goals set by the Committee. At the discretion of the Committee, the settlement
of Performance Units or Performance Shares may be in cash, Shares of equivalent value, or in some combination thereof, as set forth in
the Award Agreement.
If a Grantee is promoted, demoted or transferred
to a different business unit of the Company during a Performance Period, then, to the extent the Committee determines that the Award,
the performance goals, or the Performance Period are no longer appropriate, the Committee may adjust, change, eliminate or cancel the
Award, the performance goals, or the applicable Performance Period, as it deems appropriate in order to make them appropriate and comparable
to the initial Award, the performance goals, or the Performance Period.
Subject to Article 11 and Section 18.6, at the
discretion of the Committee, a Grantee may be entitled to receive any dividends or Dividend Equivalents declared with respect to Shares
deliverable in connection with vested Performance Shares which have been earned, but not yet delivered to the Grantee.
ARTICLE 10.
DEFERRED STOCK AND RESTRICTED STOCK UNITS
10.1 Grant of Deferred Stock and Restricted
Stock Units. Subject to and consistent with the provisions of the Plan, the Committee, at any time and from time to time, may grant
Deferred Stock and/or Restricted Stock Units to any Eligible Person, in such amount and upon such terms as the Committee shall determine.
Deferred Stock must conform in form and substance with applicable regulations promulgated under Section 409A of the Code and with
Article 16 to ensure that the Grantee is not subjected to tax penalties under Section 409A of the Code with respect to such Deferred
Stock.
10.2 Vesting and Delivery.
(a) Delivery with Respect to Deferred
Stock. Delivery of Shares subject to a Deferred Stock grant will occur upon expiration of the deferral period or upon the occurrence
of one or more of the distribution events described in Section 409A(a)(2) of the Code as specified by the Committee in the Grantee’s
Award Agreement for the Award of Deferred Stock. An Award of Deferred Stock may be subject to such substantial risk of forfeiture conditions
as the Committee may impose, which conditions may lapse at such times or upon the achievement of such objectives as the Committee shall
determine at the time of grant or thereafter. Unless otherwise determined by the Committee, to the extent that the Grantee has a Termination
of Affiliation while the Deferred Stock remains subject to a substantial risk of forfeiture, such Deferred Shares shall be forfeited,
unless the Committee determines that such substantial risk of forfeiture shall lapse in the event of the Grantee’s Termination of
Affiliation due to death, Disability, or involuntary termination by the Company or an Affiliate without “cause.”
(b) Delivery with Respect to Restricted
Stock Units. Delivery of Shares subject to a grant of Restricted Stock Units shall occur no later than the 15th day
of the third month following the end of the taxable year of the Grantee or the fiscal year of the Company in which the Grantee’s
rights under such Restricted Stock Units are no longer subject to a substantial risk of forfeiture as defined in final regulations under
Section 409A of the Code. Unless otherwise determined by the Committee, to the extent that the Grantee has a Termination of Affiliation
while the Restricted Stock Units remains subject to a substantial risk of forfeiture, such Restricted Stock Units shall be forfeited,
unless the Committee determines that such substantial risk of forfeiture shall lapse in the event of the Grantee’s Termination of
Affiliation due to death, Disability, or involuntary termination by the Company or an Affiliate without “cause.”
10.3 Voting and Dividend Equivalent Rights
Attributable to Deferred Stock and Restricted Stock Units. A Grantee awarded Deferred Stock or Restricted Stock Units will have no
voting rights with respect to such Deferred Stock or Restricted Stock Units prior to the delivery of Shares in settlement of such Deferred
Stock and/or Restricted Stock Units. Unless otherwise determined by the Committee, a Grantee will have the rights to receive Dividend
Equivalents in respect of Deferred Stock and/or Restricted Stock Units, which Dividend Equivalents shall be deemed reinvested in additional
Shares of Deferred Stock or Restricted Stock Units, as applicable, which shall remain subject to the same forfeiture conditions applicable
to the Deferred Stock or Restricted Stock Units to which such Dividend Equivalents relate.
ARTICLE 11.
DIVIDEND EQUIVALENTS
The Committee is authorized to grant Awards of
Dividend Equivalents alone or in conjunction with other Awards. The Committee may provide that Dividend Equivalents shall be paid or distributed
when accrued or shall be deemed to have been reinvested in additional Shares or additional Awards or otherwise reinvested subject to distribution
at the same time and subject to the same conditions as the Award to which it relates; provided, however, that any Dividend Equivalents
granted in conjunction with any Award that is subject to forfeiture conditions shall remain subject to the same forfeiture conditions
applicable to the Award to which such Dividend Equivalents relate and no Dividend Equivalents shall be granted in conjunction with any
Options or SARs. The timing of payment or distribution of Dividend Equivalents must comply with the requirements of Section 409A
of the Code.
ARTICLE 12.
BONUS SHARES
Subject to the terms of the Plan, the Committee
may grant Bonus Shares to any Eligible Person, in such amount and upon such terms and at any time and from time to time as shall be determined
by the Committee.
ARTICLE 13.
OTHER STOCK-BASED AWARDS
The Committee is authorized, subject to limitations
under applicable law, to grant such other Awards that are denominated or payable in, valued in whole or in part by reference to, or otherwise
based on, or related to, Shares, as deemed by the Committee to be consistent with the purposes of the Plan, including Shares awarded which
are not subject to any restrictions or conditions, convertible or exchangeable debt securities or other rights convertible or exchangeable
into Shares, and Awards valued by reference to the value of securities of or the performance of specified Affiliates. Subject to and consistent
with the provisions of the Plan, the Committee shall determine the terms and conditions of such Awards. Except as provided by the Committee,
Shares delivered pursuant to a purchase right granted under this Article 13 shall be purchased for such consideration, paid for by such
methods and in such forms, including cash, Shares, outstanding Awards or other property, as the Committee shall determine.
ARTICLE 14.
NON-EMPLOYEE DIRECTOR AWARDS
14.1 Non-Employee Director Awards.
Subject to the terms of the Plan, the Board may grant Awards to any Non-Employee Director, in such amount and upon such terms
and at any time and from time to time as shall be determined by the full Board in its sole discretion. Except as otherwise provided in
Section 5.6(b) and in this Article 14, a Non-Employee Director may not be granted Awards for cash or Shares that together with
any awards made outside of the Plan have a Fair Market Value (determined as of the date of grant) in excess of (i) $1,000,000 in a single
calendar year or (ii) $2,000,000 in the calendar year during which the Non-Employee Director was appointed to the Board.
14.2 Lead Independent Director and Non-Employee
Director Chair Awards. Except as otherwise provided in Section 5.6(b), a Lead Independent Director or Non-Employee Director Chair
may not be granted Awards for cash or Shares that together with any awards made outside of the Plan have a Fair Market Value (determined
as of the date of grant) in excess of $2,000,000 in a single calendar year.
ARTICLE 15.
AMENDMENT, MODIFICATION, AND TERMINATION
15.1 Amendment, Modification, and Termination.
Subject to Section 15.2, the Board may, at any time and from time to time, alter, amend, suspend, discontinue or terminate the Plan
in whole or in part without the approval of the Company’s stockholders, except that (a) any amendment or alteration shall be
subject to the approval of the Company’s stockholders if such stockholder approval is required by any federal or state law or regulation
or the rules of any stock exchange or automated quotation system on which the Shares may then be listed or quoted, and (b) the Board
may otherwise, in its discretion, determine to submit other such amendments or alterations to stockholders for approval.
15.2 Awards Previously Granted. Except
as otherwise specifically permitted in the Plan or an Award Agreement, no termination, amendment, or modification of the Plan shall adversely
affect in any material way any Award previously granted under the Plan, without the written consent of the Grantee of such Award.
ARTICLE 16.
COMPLIANCE WITH CODE SECTION 409A
16.1 Awards Subject to Code Section 409A.
The provisions of this Article 16 shall apply to any Award or portion thereof that is or becomes deferred compensation subject to Code
Section 409A (a “409A Award”), notwithstanding any provision to the contrary contained in the Plan or the Award Agreement
applicable to such Award.
16.2 Deferral and/or Distribution Elections.
Except as otherwise permitted or required by Code Section 409A, the following rules shall apply to any deferral and/or elections
as to the form or timing of distributions (each, an “Election”) that may be permitted or required by the Committee with respect
to a 409A Award:
(a) Any Election must be in writing and specify
the amount being deferred, and the time and form of distribution (i.e., lump sum or installments) as permitted by this Plan. An Election
may but need not specify whether payment will be made in cash, Shares or other property.
(b) Any Election shall become irrevocable as
of the deadline specified by the Committee, which shall not be later than December 31 of the year preceding the year in which services
relating to the Award commence; provided, however, that if the Award qualifies as “performance-based compensation” for purposes
of Code Section 409A and is based on services performed over a period of at least twelve (12) months, then the deadline may
be no later than six (6) months prior to the end of such Performance Period.
(c) Unless otherwise provided by the Committee,
an Election shall continue in effect until a written election to revoke or change such Election is received by the Committee, prior to
the last day for making an Election for the subsequent year.
16.3 Subsequent Elections. Except
as otherwise permitted or required by Code Section 409A, any 409A Award which permits a subsequent Election to further defer the
distribution or change the form of distribution shall comply with the following requirements:
(a) No subsequent Election may take effect until
at least twelve (12) months after the date on which the subsequent Election is made;
(b) Each subsequent Election related to a distribution
upon separation from service, a specified time, or a Change in Control must result in a delay of the distribution for a period of not
less than five (5) years from the date such distribution would otherwise have been made; and
(c) No subsequent Election related to a distribution
to be made at a specified time or pursuant to a fixed schedule shall be made less than twelve (12) months prior to the date the first
scheduled payment would otherwise be made.
16.4 Distributions Pursuant to Deferral
Elections. Except as otherwise permitted or required by Code Section 409A, no distribution in settlement of a 409A Award may
commence earlier than:
(a) Separation from Service;
(b) The date the Participant becomes Disabled
(as defined in Section 2.15(b);
(c) The Participant’s death;
(d) A specified time (or pursuant to a fixed
schedule) that is either (i) specified by the Committee upon the grant of the Award and set forth in the Award Agreement or (ii) specified
by the Grantee in an Election complying with the requirements of Section 16.2 and/or 16.3, as applicable; or
(e) A change in ownership of the Company or a
substantial portion of its assets within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(v) or (vii) or
a change in effective control of the Company within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(vi) (a “Change
in Control”).
16.5 Six Month Delay. Notwithstanding
anything herein or in any Award Agreement or Election to the contrary, to the extent that distribution of a 409A Award is triggered by
a Grantee’s Separation from Service, if the Grantee is then a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(i)), no
distribution may be made before the date which is six (6) months after such Grantee’s Separation from Service, or, if earlier,
the date of the Grantee’s death.
16.6 Death or Disability. Unless the
Award Agreement otherwise provides, if a Grantee dies or becomes Disabled before complete distribution of amounts payable upon settlement
of a 409A Award, such undistributed amounts, to the extent vested, shall be distributed as provided in the Participants Election. If the
Participant has made no Election with respect to distributions upon death or Disability, all such distributions shall be paid in a lump
sum within 90 days following the date of the Participant’s death or Disability.
16.7 No Acceleration of Distributions.
This Plan does not permit the acceleration of the time or schedule of any distribution under a 409A Award, except as provided by Code
Section 409A and/or applicable regulations or rulings issued thereunder.
ARTICLE 17.
WITHHOLDING
17.1 Required Withholding.
(a) The Committee in its sole discretion may
provide that when taxes are to be withheld in connection with the exercise of an Option or SAR, or upon the lapse of restrictions on Restricted
Shares, or upon the transfer of Shares, or upon payment of any other benefit or right under this Plan (the date on which such exercise
occurs or such restrictions lapse or such payment of any other benefit or right occurs hereinafter referred to as the “Tax Date”),
the Grantee may elect to make payment for the withholding of federal, state and local taxes, including Social Security and Medicare (“FICA”)
taxes by one or a combination of the following methods:
(i) payment of an amount in cash equal
to the amount to be withheld (including cash obtained through the sale of the Shares acquired on exercise of an Option or SAR, upon the
lapse of restrictions on Restricted Shares, or upon the transfer of Shares, through a broker-dealer to whom the Grantee has submitted
an irrevocable instructions to deliver promptly to the Company, the amount to be withheld);
(ii) delivering part or all of the
amount to be withheld in the form of Common Stock valued at its Fair Market Value on the Tax Date;
(iii) requesting the Company to withhold
from those Shares that would otherwise be received upon exercise of the Option or SAR, upon the lapse of restrictions on Restricted Stock,
or upon the transfer of Shares, a number of Shares having a Fair Market Value on the Tax Date equal to the amount to be withheld; or
(iv) withholding from any compensation
otherwise due to the Grantee.
The Committee in its sole discretion
may provide that the maximum amount of tax withholding upon exercise of an Option or SARs, upon the lapse of restrictions on Restricted
Shares, or upon the transfer of Shares, to be satisfied by withholding Shares upon exercise of such Option or SAR, upon the lapse of restrictions
on Restricted Shares, or upon the transfer of Shares, pursuant to clause (iii) above shall not exceed the minimum amount of taxes,
including FICA taxes, required to be withheld under federal, state and local law. An election by Grantee under this subsection is irrevocable.
Any fractional share amount and any additional withholding not paid by the withholding or surrender of Shares must be paid in cash. If
no timely election is made, the Grantee must deliver cash to satisfy all tax withholding requirements.
(b) Any Grantee who makes a Disqualifying Disposition
(as defined in Section 6.4(f)) or an election under Section 83(b) of the Code shall remit to the Company an amount sufficient
to satisfy all resulting tax withholding requirements in the same manner as set forth in subsection (a).
17.2 Notification under Code Section 83(b).
If the Grantee, in connection with the exercise of any Option, or the grant of Restricted Shares, makes the election permitted under Section 83(b)
of the Code to include in such Grantee’s gross income in the year of transfer the amounts specified in Section 83(b) of the
Code, then such Grantee shall notify the Company of such election within 10 days of filing the notice of the election with the Internal
Revenue Service, in addition to any filing and notification required pursuant to regulations issued under Section 83(b) of the Code.
The Committee may, in connection with the grant of an Award or at any time thereafter, prohibit a Grantee from making the election described
above.
ARTICLE 18.
ADDITIONAL PROVISIONS
18.1 Successors. Subject to Section 4.2(b),
all obligations of the Company under the Plan with respect to Awards granted hereunder shall be binding on any successor to the Company,
whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise of all or
substantially all of the business and/or assets of the Company.
18.2 Severability. If any part of
the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate
any other part of the Plan. Any Section or part of a Section so declared to be unlawful or invalid shall, if possible, be construed in
a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful
and valid.
18.3 Requirements of Law. The granting
of Awards and the delivery of Shares under the Plan shall be subject to all applicable laws, rules, and regulations, and to such approvals
by any governmental agencies or national securities exchanges as may be required. Notwithstanding any provision of the Plan or any Award,
Grantees shall not be entitled to exercise, or receive benefits under, any Award, and the Company (and any Affiliate) shall not be obligated
to deliver any Shares or deliver benefits to a Grantee, if such exercise or delivery would constitute a violation by the Grantee or the
Company of any applicable law or regulation.
18.4 Securities Law Compliance.
(a) If the Committee deems it necessary to comply
with any applicable securities law, or the requirements of any stock exchange upon which Shares may be listed, the Committee may impose
any restriction on Awards or Shares acquired pursuant to Awards under the Plan as it may deem advisable. In addition, if requested by
the Company and any underwriter engaged by the Company, Shares acquired pursuant to Awards may not be sold or otherwise transferred or
disposed of for such period following the effective date of any registration statement of the Company filed under the Securities Act as
the Company or such underwriter shall specify reasonably and in good faith, not to exceed 180 days in the case of the Company’s
initial public offering or 90 days in the case of any other public offering. All certificates for Shares delivered under the Plan pursuant
to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable
under the rules, regulations and other requirements of the SEC, any stock exchange upon which Shares are then listed, any applicable securities
law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
If so requested by the Company, the Grantee shall make a written representation to the Company that he or she will not sell or offer to
sell any Shares unless a registration statement shall be in effect with respect to such Shares under the Securities Act of 1933, as amended,
and any applicable state securities law or unless he or she shall have furnished to the Company, in form and substance satisfactory to
the Company, that such registration is not required.
(b) If the Committee determines that the exercise
or nonforfeitability of, or delivery of benefits pursuant to, any Award would violate any applicable provision of securities laws or the
listing requirements of any national securities exchange or national market system on which are listed any of the Company’s equity
securities, then the Committee may postpone any such exercise, nonforfeitability or delivery, as applicable, but the Company shall use
all reasonable efforts to cause such exercise, nonforfeitability or delivery to comply with all such provisions at the earliest practicable
date.
18.5 Forfeiture Events. Notwithstanding
any provisions herein to the contrary, the Committee shall have the authority to determine (and may so provide in any Award Agreement)
that a Grantee’s (including his or her estate’s, beneficiary’s or transferee’s) rights (including the right to
exercise any Option or SAR), payments and benefits with respect to any Award shall be subject to reduction, cancellation, forfeiture or
recoupment (to the extent permitted by applicable law) in the event of the Participant’s termination for Cause; serious misconduct;
violation of the Company’s or an Affiliate’s policies; breach of fiduciary duty; unauthorized disclosure of any trade secret
or confidential information of the Company or an Affiliate; breach of applicable noncompetition, nonsolicitation, confidentiality or other
restrictive covenants; or other conduct or activity that is in competition with the business of the Company or an Affiliate, or otherwise
detrimental to the business, reputation or interests of the Company and/or an Affiliate; or upon the occurrence of certain events specified
in the applicable Award Agreement (in any such case, whether or not the Grantee is then an Employee or Non-Employee Director).
The determination of whether a Grantee’s conduct, activities or circumstances are described in the immediately preceding sentence
shall be made by the Committee in its discretion, and pending any such determination, the Committee shall have the authority to suspend
the exercise, payment, delivery or settlement of all or any portion of such Grantee’s outstanding Awards pending any investigation
of the matter.
18.6 No Rights as a Stockholder. No
Grantee shall have any rights as a stockholder of the Company with respect to the Shares (other than Restricted Shares) which may be deliverable
upon exercise or payment of such Award until such Shares have been delivered to him or her. Restricted Shares, whether held by a Grantee
or in escrow by the Secretary of the Company, shall confer on the Grantee all rights of a stockholder of the Company, except as otherwise
provided in the Plan or Award Agreement. At the time of a grant of Restricted Shares, the Committee may require the payment of cash dividends
thereon to be deferred and, if the Committee so determines, reinvested in additional Restricted Shares. Stock dividends and deferred cash
dividends issued with respect to Restricted Shares shall be subject to the same restrictions and other terms as apply to the Restricted
Shares with respect to which such dividends are issued. The Committee may in its discretion provide for payment of interest on deferred
cash dividends.
18.7 Nature of Payments. Unless otherwise
specified in the Award Agreement, Awards shall be special incentive payments to the Grantee and shall not be taken into account in computing
the amount of salary or compensation of the Grantee for purposes of determining any pension, retirement, death or other benefit under
(a) any pension, retirement, profit sharing, bonus, insurance or other employee benefit plan of the Company or any Affiliate, except
as such plan shall otherwise expressly provide, or (b) any agreement between (i) the Company or any Affiliate and (ii) the
Grantee, except as such agreement shall otherwise expressly provide.
18.8 Non-Exclusivity of Plan.
Neither the adoption of the Plan by the Board nor its submission to the stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other compensatory arrangements for employees or Non-Employee Directors
as it may deem desirable.
18.9 Governing Law. The Plan, and
all agreements hereunder, shall be construed in accordance with and governed by the laws of the State of Delaware, other than its laws
respecting choice or conflicts of law rule or principles that might otherwise refer construction or interpretation of the Plan to the
substantive law of another jurisdiction. Unless otherwise provided in the Award Agreement, Participants are deemed to submit to the exclusive
jurisdiction and venue of the federal or state courts of the State of Delaware, to resolve any and all issues that may arise out of or
relate to the Plan or any related Award Agreement.
18.10 Unfunded Status of Awards; Creation
of Trusts. The Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation. With respect
to any payments not yet made to a Grantee pursuant to an Award, nothing contained in the Plan or any Award Agreement shall give any such
Grantee any rights that are greater than those of a general creditor of the Company; provided, however, that the Committee may authorize
the creation of trusts or make other arrangements to meet the Company’s obligations under the Plan to deliver cash, Shares or other
property pursuant to any Award which trusts or other arrangements shall be consistent with the “unfunded” status of the Plan
unless the Committee otherwise determines.
18.11 Affiliation. Nothing in the
Plan or an Award Agreement shall interfere with or limit in any way the right of the Company or any Affiliate to terminate any Grantee’s
employment or consulting contract at any time, nor confer upon any Grantee the right to continue in the employ of or as an officer of
or as a consultant to or Non-Employee Director of the Company or any Affiliate.
18.12 Participation. No employee or
officer shall have the right to be selected to receive an Award under this Plan or, having been so selected, to be selected to receive
a future Award.
18.13 Military Service. Awards shall
be administered in accordance with Section 414(u) of the Code and the Uniformed Services Employment and Reemployment Rights Act of
1994.
18.14 Construction. The following
rules of construction will apply to the Plan: (a) the word “or” is disjunctive but not necessarily exclusive, and (b) words
in the singular include the plural, words in the plural include the singular, and words in the neuter gender include the masculine and
feminine genders and words in the masculine or feminine gender include the other neuter genders.
18.15 Headings. The headings of articles
and sections are included solely for convenience of reference, and if there is any conflict between such headings and the text of this
Plan, the text shall control.
18.16 Obligations. Unless otherwise
specified in the Award Agreement, the obligation to deliver, pay or transfer any amount of money or other property pursuant to Awards
under this Plan shall be the sole obligation of a Grantee’s employer; provided that the obligation to deliver or transfer any Shares
pursuant to Awards under this Plan shall be the sole obligation of the Company.
18.17 No Right to Continue as Director.
Nothing in the Plan or any Award Agreement shall confer upon any Non-Employee Director the right to continue to serve as a director
of the Company.
18.18 Stockholder Approval. All Incentive
Stock Options granted on or after the Effective Date and prior to the date the Company’s stockholders approve the Plan are expressly
conditioned upon and subject to approval of the Plan by the Company’s stockholders.
CALCULATION OF FILING FEE TABLES
Form S-8
(Form Type)
Arcturus Therapeutics Holdings Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type |
|
Security
Class
Title |
|
Fee
Calculation
Rule |
|
Amount
Registered(1) |
|
|
Proposed
Maximum
Offering
Price per
Unit |
|
|
Maximum
Aggregate
Offering Price |
|
|
Fee Rate |
|
Amount of
Registration
Fee |
| Equity |
|
Common Stock, par value $0.001 |
|
457(c) and 457(h) |
|
|
2,000,000 |
|
|
$ |
23.27 |
(2) |
|
$46,540,000.00 |
(2) |
|
0.00014760 |
|
$ |
6,869.30 |
| |
| Total Offering Amounts |
|
|
|
|
|
|
|
|
|
$46,540,000.00 |
|
|
|
|
$ |
6,869.30 |
| Total Fee Offsets (3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
--- |
| Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
6,869.30 |
| (1) |
This Registration Statement covers an additional 2,000,000 shares of common stock of the Registrant authorized to be offered and sold under the Arcturus Therapeutics Holdings Inc. Amended and Restated 2019 Omnibus Equity Incentive Plan (as amended, the “2019 Plan”). In addition, pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the 2019 Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock. |
| (2) |
This estimate is made pursuant to Rule
457(h)(1) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee. The price per share and
aggregate offering price of the Registrant’s common stock are based upon the average of the high and low prices of the common
stock on July 11, 2024, as reported on the Nasdaq Stock Market, which date is within five business days prior to the filing of this
Registration Statement. |
| (3) |
The Registrant does not have any fee offsets. |
Arcturus Therapeutics (NASDAQ:ARCT)
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Arcturus Therapeutics (NASDAQ:ARCT)
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