Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
GameSquare
Holdings, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
| Delaware |
|
99-1946435 |
(State
or Other Jurisdiction of
Incorporation
or Organization) |
|
(I.R.S.
Employer
Identification
No.) |
| |
|
|
6775
Cowboys Way, Ste. 1335
Frisco,
Texas |
|
75034 |
| (Address
of Principal Executive Offices) |
|
(Zip
Code) |
GameSquare
Holdings, Inc. 2024 Stock Incentive Plan
Engine
Media Holdings, Inc. Amended and Restated Omnibus Equity Incentive Plan
FaZe
Holdings, Inc. 2022 Omnibus Incentive Plan
Faze
Clan Inc. Amended and Restated 2019 Equity Incentive Plan
(Full
Title of the Plans)
Justin
Kenna
Chief
Executive Officer
GameSquare
Holdings, Inc.
6775
Cowboys Way, Ste. 1335
Frisco,
TX 75034
(216)
464-6400
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
copies to:
Alan
A. Lanis, Jr.
Baker
& Hostetler LLP
1900
Avenue of the Stars, Suite 2700
Los
Angeles, CA 90067
Tel:
(310) 442-8850
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.
| Large
accelerated filer |
☐ |
|
Accelerated
filer |
☐ |
| Non-accelerated
filer |
☒ |
|
Smaller
reporting company |
☒ |
| |
|
|
Emerging
growth company |
☒ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 (this “Registration Statement”) is being filed by GameSquare Holdings, Inc., a Delaware
corporation (“GameSquare”, “Company” or the “Registrant”), for purposes of registering: (i) 5,897,913
shares of common stock of GameSquare, par value $0.0001 per share (“Common Stock”), that may be issued pursuant
to the GameSquare 2024 Stock Incentive Plan (the “2024 Plan”), (ii) 1,331,037 shares of Common Stock issuable pursuant to
outstanding equity awards granted under the Engine Media Holdings, Inc. Amended and Restated Omnibus Equity Plan, which GameSquare previously
assumed as successor in interest to Engine Media Holdings, Inc. (the “Prior Plan”); and (iii) 1,791,934 shares of
Common Stock issuable pursuant to outstanding equity awards granted under the FaZe Plans (as defined below) with respect to shares (“FaZe
Stock”) of FaZe Holdings, Inc., a Delaware corporation (“FaZe”), which were assumed by the Company and converted into
equity awards in respect of shares of GameSquare Common Stock in connection with GameSquare’s acquisition of FaZe, as described
below.
On
March 7, 2024, pursuant to the Agreement and Plan of Merger, dated October 19, 2023 (as amended, the “Merger Agreement”),
by and among GameSquare, FaZe and GameSquare Merger Sub I, Inc., a Delaware corporation and wholly owned subsidiary of GameSquare (“Merger
Sub”), Merger Sub merged with and into FaZe (the “Merger”), with FaZe continuing as the surviving corporation and as
a wholly owned subsidiary of GameSquare.
As
a result of the Merger, in accordance with the terms of the Merger Agreement, GameSquare assumed certain FaZe outstanding equity awards
with respect to shares of FaZe Stock that were granted under the FaZe Holdings, Inc. 2022 Omnibus Incentive Plan (the “2022 FaZe
Plan”) and the FaZe Clan Inc. Amended and Restated 2019 Equity Incentive Plan (the “2019 FaZe Plan” and together with
the 2022 FaZe Plan, the “FaZe Plans”) and that were outstanding immediately prior to the effective time of the Merger (the
“FaZe Awards”). The FaZe Awards were converted, in accordance with the terms of the Merger Agreement, into awards relating
to GameSquare Common Stock.
On
May 21, 2024, the Company adopted the 2024 Plan. In connection with the adoption of the 2024 Plan, no further awards will be made under
the Prior Plan.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information.
The
information called for by Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration Statement”)
and has been or will be sent or given to participating service providers in accordance with Rule 428 of the Securities Act of 1933, as
amended (the “Securities Act”), and the instructions to Form S-8. In accordance with the rules and regulations of the Securities
and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act.
Item
2. Registrant Information and Employee Plan Annual Information
GameSquare
Holdings, Inc. (the “Company”) will furnish without charge to each person to whom the prospectus is delivered, upon the written
or oral request of such person, a copy of any and all of the documents incorporated by reference into this Registration Statement pursuant
to Item 3 of Part II hereof, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference in
such documents that are incorporated), and the other documents required to be delivered to eligible participants in the Plan pursuant
to Rule 428(b) under the Securities Act. Those documents are incorporated by reference in the Section 10(a) prospectus. Requests should
be directed to:
GameSquare
Holdings, Inc.
6775
Cowboys Way, Ste. 1335
Frisco,
TX 75034
Attention:
General Counsel
Tel:
(216) 464-6400
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Exchange Act, and in accordance
therewith files reports, proxy statements and other information with the Commission. The following documents, which have been filed with
the Commission, are incorporated in this Registration Statement by reference:
| (a) | The
prospectus of the Registrant constituting part of the Registrant’s registration statement
on Form F-4 (File No. 333-275994) filed with the Commission on January 17, 2024, which contains
the Registrant’s audited financial statements for the latest fiscal year for which
such statements have been filed. |
| (b) | The
Registrant’s Quarterly Report on Form 10-Q (File No. 001-39389) for the quarterly period
ended March 31, 2024 filed with the Commission on May 20, 2024; |
| (c) | The
Registrant’s Annual Report on Form 10-K (File No. 001-39389) for the fiscal year ended
December 31, 2023 filed with the SEC on April 16, 2024, as amended by the Form 10-K/A (File
No. 001-39389) filed with the Commission on April 30, 2024; |
| (d) | The
Registrant’s Current Reports on Form 8-K filed on January 4, 2024, February 1, 2024,
February 14, 2024, February 29, 2024, March 4, 2024, March 13, 2024, April 22, 2024, and
May 16, 2024 (except for any portions of such Current Reports on Form 8-K furnished pursuant
to Item 2.02 and/or Item 7.01 thereof and any corresponding exhibits thereto not filed with
the Commission). |
| (e) | The
description of the securities contained in the Registrant’s Registration Statement
on Form 8-A (File No. 001-39389) filed with the Commission on June 14, 2021, including any
amendment or report filed for the purposes of updating such description. |
All
documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and
to be part hereof from the date of the filing of such documents (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).
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for the 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 statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Section
102 of the General Corporation Law of the State of Delaware (the “DGCL”) permits a corporation to eliminate the personal
liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as
a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or
knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit. The Company has adopted provisions in its certificate of incorporation (“Certificate
of Incorporation”) and its bylaws (“Bylaws”) provide that no director of the Registrant shall be personally liable
to it or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing
such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of
fiduciary duty.
Section
145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation, or
a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in
related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party
to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation,
no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the
adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other court shall deem proper.
The
Certificate of Incorporation and the Bylaws provide that the Company will indemnify each person who was or is a party or threatened to
be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the Company)
by reason of the fact that he or she is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to
serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership,
joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action
alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom,
if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests,
and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.
The Certificate of Incorporation and the Bylaws, each as currently in effect, provide that the Company will indemnify any Indemnitee
who was or is a party to an action or suit by or in the right of the Company to procure a judgment in the Company’s favor by reason
of the fact that the Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve,
at the Company’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, our best interests, except that no indemnification shall be made with
respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless a court determines
that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding
the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the
Company against all expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith. Expenses must
be advanced to an Indemnitee under certain circumstances
The
Company maintains a general liability insurance policy that covers certain liabilities of the Company’s directors and officers
arising out of claims based on acts or omissions in their capacities as directors or officers.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
following exhibits are incorporated herein by reference:
Item
9. Undertakings.
(a)
The undersigned Registrant hereby undertakes:
(1)
to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that Paragraphs (a)(1)(i) and (a)(1)(ii) of this section shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in
the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Frisco, State of Texas, on this 22nd day of May, 2024.
| |
GAMESQUARE HOLDINGS, INC. |
| |
|
|
| |
By: |
/s/
Justin Kenna |
| |
|
Justin
Kenna |
| |
|
Chief
Executive Officer and Director; Principal Executive Officer |
POWER
OF ATTORNEY AND SIGNATURES
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Justin Kenna, Michael Munoz
and John Wilk, and each of them singly, as the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution,
for the undersigned in any and all capacities, to sign any or all amendments to this Registration Statement (including post-effective
amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully for all intents and purposes as the undersigned might or could do in person,
hereby and about the premises hereby ratifying and confirming all that said attorneys-in-fact and agent, proxy and agent, or their substitute,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, the following persons in the capacities and on the dates indicated have
signed this Registration Statement below.
| Name |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Justin Kenna |
|
Chief
Executive Officer and Director |
|
May
22, 2024 |
| Justin
Kenna |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Michael Munoz |
|
Chief
Financial Officer |
|
May
22, 2024 |
| Michael
Munoz |
|
(Principal
Financial Officer) |
|
|
| |
|
|
|
|
| /s/
Lou Schwartz |
|
President
and Director |
|
May
22, 2024 |
| Lou
Schwartz |
|
|
|
|
| |
|
|
|
|
| /s/
Stuart Porter |
|
Director |
|
May
22, 2024 |
| Stuart
Porter |
|
|
|
|
| |
|
|
|
|
| /s/
Tom Walker |
|
Director |
|
May
22, 2024 |
| Tom
Walker |
|
|
|
|
| |
|
|
|
|
| /s/
Travis Goff |
|
Director |
|
May
22, 2024 |
| Travis
Goff |
|
|
|
|
| |
|
|
|
|
| /s/
Jeremi Gorman |
|
Director |
|
May
22, 2024 |
| Jeremi
Gorman |
|
|
|
|
| |
|
|
|
|
| /s/
Paul Hamilton |
|
Director |
|
May
22, 2024 |
| Paul
Hamilton |
|
|
|
|
| |
|
|
|
|
| /s/
Nick Lewin |
|
Director |
|
May
22, 2024 |
| Nick
Lewin |
|
|
|
|
Exhibit
4.7
GAMESQUARE
HOLDINGS, INC.
2024
STOCK INCENTIVE PLAN
ARTICLE
1
PURPOSE
The
Plan’s purpose is to enhance the Company’s ability to attract, retain and motivate persons who make (or are expected to make)
important contributions to the Company by providing these individuals with equity ownership opportunities and/or equity-linked compensatory
opportunities. Capitalized terms used in the Plan are defined in Article 11.
ARTICLE
2
ELIGIBILITY
Service
Providers are eligible to be granted Awards under the Plan, subject to the limitations described herein.
ARTICLE
3
ADMINISTRATION AND DELEGATION
3.1 Administration.
The Plan is administered by the Administrator. The Administrator has authority to determine which Service Providers receive Awards, grant
Awards, and set Award terms and conditions, subject to the conditions and limitations in the Plan. The Administrator also has the authority
to take all actions and make all determinations under the Plan, to interpret the Plan and Award Agreements and to adopt, amend and repeal
Plan administrative rules, guidelines, and practices as it deems advisable. The Administrator may correct defects and ambiguities, supply
omissions and reconcile inconsistencies in the Plan or any Award Agreement as it deems necessary or appropriate to administer the Plan
and any Awards. The Administrator’s determinations under the Plan are in its sole discretion and will be final and binding on all
persons having or claiming any interest in the Plan or any Award.
3.2 Appointment
of Committees. To the extent Applicable Laws permit, the Board or the Administrator may delegate any or all of its powers under the
Plan to one or more Committees or committees of officers of the Company or any of its Subsidiaries. The Board or the Administrator, as
applicable, may rescind any such delegation, abolish any such committee or Committee and/or re-vest in itself any previously delegated
authority at any time.
ARTICLE
4
STOCK AVAILABLE FOR AWARDS
4.1 Number
of Shares. Subject to adjustment under Article 8 and the terms of this Article 4, Awards may be made under the Plan covering up to
the Overall Share Limit. As of the Plan’s effective date, the Company will cease granting awards under the Prior Plan; however,
the Prior Plan Awards will remain subject to the terms of the applicable Prior Plan, other than those terms required by TSX Venture Exchange
rules. Shares issued under the Plan may consist of authorized but unissued Shares, Shares purchased on the open market or treasury Shares.
4.2 Share
Recycling. If all or any part of an Award, FaZe Plan Award or a Prior Plan Award expires, lapses or is terminated, exchanged for
or settled in cash, surrendered, repurchased, canceled without having been fully exercised or forfeited, in any case, in a manner that
results in the Company acquiring Shares covered by the Award, FaZe Plan Award, or Prior Plan Award at a price not greater than the price
(as adjusted to reflect any Equity Restructuring) paid by the Participant for such Shares or not issuing any Shares covered by the Award
or Prior Plan Award, the unused Shares covered by the Award, FaZe Plan Award, or Prior Plan Award will, as applicable, become or again
be available for Award grants under the Plan. Shares delivered (either by actual delivery or attestation) to the Company by a Participant
to satisfy the applicable exercise or purchase price of an Award, FaZe Plan Award, or Prior Plan Award and/or to satisfy any applicable
tax withholding obligation with respect to an Award, FaZe Plan Award, or Prior Plan Award (including Shares retained by the Company from
the Award, FaZe Plan Award, or Prior Plan Award being exercised or purchased and/or creating the tax obligation) shall not again be made
available for issuance or delivery under the Plan. The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards
shall not count against the Overall Share Limit.
4.3 No
Incentive Stock Option Limitations. Notwithstanding anything to the contrary herein, all Shares under the Plan are eligible to be
issued pursuant to the exercise of Incentive Stock Options.
4.4 Substitute
Awards. In connection with an entity’s merger or consolidation with the Company or the Company’s acquisition of an entity’s
property or stock, the Administrator may grant Awards in substitution for any options or other stock, or stock-based awards granted before
such merger or consolidation by such entity or its affiliate. Substitute Awards may be granted on such terms as the Administrator deems
appropriate, notwithstanding limitations on Awards in the Plan. Substitute Awards will not count against the Overall Share Limit (nor
shall Shares subject to a Substitute Award be added to the Shares available for Awards under the Plan as provided above), except that
Shares acquired by exercise of substitute Incentive Stock Options will count against the maximum number of Shares that may be issued
pursuant to the exercise of Incentive Stock Options under the Plan. Additionally, in the event that a company acquired by the Company
or any Subsidiary or with which the Company or any Subsidiary combines has shares available under a pre-existing plan approved by stockholders
and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing
plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such
acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition
or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan (and Shares
subject to such Awards shall not be added to the Shares available for Awards under the Plan as provided above); provided that Awards
using such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing
plan, absent the acquisition or combination, and shall only be made to individuals who were not Employees, Consultants or Directors prior
to such acquisition or combination.
4.5 Non-Employee
Director Compensation. Notwithstanding any provision to the contrary in the Plan, the Administrator may establish compensation for
non-employee Directors from time to time, subject to the limitations in the Plan.
ARTICLE
5
STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
5.1 General.
The Administrator may grant Options or Stock Appreciation Rights to Service Providers subject to the limitations in the Plan, including
any limitations in the Plan that apply to Incentive Stock Options. A Stock Appreciation Right will entitle the Participant (or other
person entitled to exercise the Stock Appreciation Right) to receive from the Company upon exercise of the exercisable portion of the
Stock Appreciation Right an amount determined by multiplying the excess, if any, of the Fair Market Value of one Share on the date of
exercise over the exercise price per Share of the Stock Appreciation Right by the number of Shares with respect to which the Stock Appreciation
Right is exercised, subject to any limitations of the Plan or that the Administrator may impose and payable in cash, Shares valued at
Fair Market Value or a combination of the two as the Administrator may determine or provide in the Award Agreement.
5.2 Exercise
Price. The Administrator will establish each Option’s and Stock Appreciation Right’s exercise price and specify the exercise
price in the Award Agreement. The exercise price will not be less than 100% of the Fair Market Value on the grant date of the Option
(subject to Section 5.6) or Stock Appreciation Right. Notwithstanding the foregoing, in the case of an Option or a Stock Appreciation
Right that is a Substitute Award, the exercise price per share of the Shares subject to such Option or Stock Appreciation Right, as applicable,
may be less than the Fair Market Value per share on the date of grant; provided that the exercise price of any Substitute Award shall
be determined in accordance with the applicable requirements of Sections 424 and 409A of the Code.
5.3 Duration.
Each Option or Stock Appreciation Right will be exercisable at such times and as specified in the Award Agreement, provided that, subject
to Section 5.6, the term of an Option or Stock Appreciation Right will not exceed ten (10) years. Notwithstanding the foregoing and unless
determined otherwise by the Company, to the extent permitted under Applicable Laws, if the Participant, prior to the end of the term
of an Option or Stock Appreciation Right, violates the non-competition, non-solicitation, confidentiality or other similar restrictive
covenant provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant
and the Company or any of its Subsidiaries, the right of the Participant and the Participant’s transferees to exercise any Option
or Stock Appreciation Right issued to the Participant shall terminate immediately upon such violation, unless the Company otherwise determines.
5.4 Exercise.
Options and Stock Appreciation Rights may be exercised by delivering to the Company a written notice of exercise, in a form the Administrator
approves (which may be electronic), signed by the person authorized to exercise the Option or Stock Appreciation Right, together with,
as applicable, payment in full (i) as specified in Section 5.5 for the number of Shares for which the Award is exercised and (ii) as
specified in Section 9.5 for any applicable taxes. Unless the Administrator otherwise determines, an Option or Stock Appreciation Right
may not be exercised for a fraction of a Share.
5.5 Payment
Upon Exercise. Subject to Section 10.8, any Company insider trading policy (including blackout periods) and Applicable Laws, the
exercise price of an Option must be paid by:
(a) cash,
wire transfer of immediately available funds or by check payable to the order of the Company, provided that the Company may limit the
use of one of the foregoing payment forms if one or more of the payment forms below is permitted;
(b) if
there is a public market for Shares at the time of exercise, unless the Company otherwise determines, (A) delivery (including electronically
or telephonically to the extent permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the
Company to deliver promptly to the Company sufficient funds to pay the exercise price, or (B) the Participant’s delivery to the
Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company
cash or a check sufficient to pay the exercise price; provided that such amount is paid to the Company at such time as may be required
by the Administrator;
(c) to
the extent permitted by the Administrator, delivery (either by actual delivery or attestation) of Shares owned by the Participant valued
at their fair market value;
(d) to
the extent permitted by the Administrator, surrendering Shares then issuable upon the Option’s exercise valued at their fair market
value on the exercise date;
(e) to
the extent permitted by the Administrator, delivery of a promissory note or any other property that the Administrator determines is good
and valuable consideration; or
(f) to
the extent permitted by the Company, any combination of the above payment forms approved by the Administrator.
5.6 Additional
Terms of Incentive Stock Options. The Administrator may grant Incentive Stock Options only to employees of the Company, any of its
present or future parent or subsidiary corporations, as defined in Sections 424(e) or (f) of the Code, respectively, and any other entities
the employees of which are eligible to receive Incentive Stock Options under the Code. If an Incentive Stock Option is granted to a Greater
Than 10% Stockholder, the exercise price will not be less than 110% of the Fair Market Value on the Option’s grant date, and the
term of the Option will not exceed five (5) years. All Incentive Stock Options will be subject to and construed consistently with Section
422 of the Code. By accepting an Incentive Stock Option, the Participant agrees to give prompt notice to the Company of dispositions
or other transfers (other than in connection with a Change in Control) of Shares acquired under the Option made within (i) two (2) years
from the grant date of the Option or (ii) one (1) year after the transfer of such Shares to the Participant, specifying the date of the
disposition or other transfer and the amount the Participant realized, in cash, other property, assumption of indebtedness or other consideration,
in such disposition or other transfer. Neither the Company nor the Administrator will be liable to a Participant, or any other party,
if an Incentive Stock Option fails or ceases to qualify as an “incentive stock option” under Section 422 of the Code. Any
Incentive Stock Option or portion thereof that fails to qualify as an “incentive stock option” under Section 422 of the Code
for any reason, including becoming exercisable with respect to Shares having a fair market value exceeding the $100,000 limitation under
Treasury Regulation Section 1.422-4, will be a Non-Qualified Stock Option. The foregoing terms shall be incorporated into any Award Agreement
evidencing an Option intended to be an Incentive Stock Option to the extent necessary to cause such Award to so qualify.
ARTICLE
6
RESTRICTED STOCK; RESTRICTED STOCK UNITS
6.1 General.
The Administrator may grant Restricted Stock, or the right to purchase Restricted Stock, to any Service Provider, subject to the Company’s
right to repurchase all or part of such Shares at their issue price or other stated or formula price from the Participant (or to require
forfeiture of such Shares) if conditions the Administrator specifies in the Award Agreement are not satisfied before the end of the applicable
restriction period or periods that the Administrator establishes for such Award. In addition, the Administrator may grant to Service
Providers Restricted Stock Units, which may be subject to vesting and forfeiture conditions during the applicable restriction period
or periods, as set forth in an Award Agreement.
6.2 Restricted
Stock.
(a) Dividends.
Participants holding Shares of Restricted Stock will be entitled to all ordinary cash dividends paid with respect to such Shares, unless
the Administrator provides otherwise in the Award Agreement. In addition, unless the Administrator provides otherwise, if any dividends
or distributions are paid in Shares, or consist of a dividend or distribution to holders of Common Stock of property other than an ordinary
cash dividend, the Shares or other property will be subject to the same restrictions on transferability and forfeitability as the Shares
of Restricted Stock with respect to which they were paid. Notwithstanding anything to the contrary herein, unless otherwise determined
by the Administrator, with respect to any award of Restricted Stock, dividends which are paid to holders of Common Stock prior to vesting
shall only be paid out to a Participant holding such Restricted Stock to the extent that the vesting conditions are subsequently satisfied.
All such dividend payments will be made no later than March 15 of the calendar year following the calendar year in which the right to
the dividend payment becomes nonforfeitable.
(b) Stock
Certificates. The Company may require that the Participant deposit in escrow with the Company (or its designee) any stock certificates
issued in respect of Shares of Restricted Stock, together with a stock power endorsed in blank.
6.3 Restricted
Stock Units.
(a) Settlement.
The Administrator may provide that settlement of Restricted Stock Units will occur upon or as soon as reasonably practicable after the
Restricted Stock Units vest or will instead be deferred, on a mandatory basis or at the Participant’s election, in a manner intended
to comply with Section 409A.
(b) Stockholder
Rights. A Participant will have no rights of a stockholder with respect to Shares subject to any Restricted Stock Unit unless and
until the Shares are delivered in settlement of the Restricted Stock Unit.
ARTICLE
7
OTHER STOCK OR CASH BASED AWARDS; DIVIDEND EQUIVALENTS
7.1 Other
Stock or Cash Based Awards. Other Stock or Cash Based Awards may be granted to Participants, including Awards entitling Participants
to receive Shares to be delivered in the future and including annual or other periodic or long-term cash bonus awards (whether based
on specified Performance Criteria or otherwise), in each case subject to any conditions and limitations in the Plan. Such Other Stock
or Cash Based Awards will also be available as a payment form in the settlement of other Awards, as standalone payments and as payment
in lieu of compensation to which a Participant is otherwise entitled. Other Stock or Cash Based Awards may be paid in Shares, cash, or
other property, as the Administrator determines.
7.2 Dividend
Equivalents. A grant of Restricted Stock Units or Other Stock or Cash Based Award may provide a Participant with the right to receive
Dividend Equivalents, and no Dividend Equivalents shall be payable with respect to Options or Stock Appreciation Rights. Dividend Equivalents
may be paid currently or credited to an account for the Participant, settled in cash or Shares and subject to the same restrictions on
transferability and forfeitability as the Award with to which the Dividend Equivalents are paid and subject to other terms and conditions
as set forth in the Award Agreement. Notwithstanding anything to the contrary herein, unless otherwise determined by the Administrator,
Dividend Equivalents with respect to an Award shall only be paid to a Participant to the extent that the vesting conditions are subsequently
satisfied. All such Dividend Equivalent payments will be made no later than March 15 of the calendar year following the calendar year
in which the right to the Dividend Equivalent payment becomes nonforfeitable, unless determined otherwise by the Administrator or unless
deferred in a manner intended to comply with Section 409A.
ARTICLE
8
ADJUSTMENTS FOR CHANGES IN COMMON STOCK AND CERTAIN OTHER EVENTS
8.1 Equity
Restructuring. In connection with any Equity Restructuring, notwithstanding anything to the contrary in this Article 8, the Administrator
will equitably adjust each outstanding Award as it deems appropriate to reflect the Equity Restructuring, which may include adjusting
the number and type of securities subject to each outstanding Award and/or the Award’s exercise price or grant price (if applicable),
granting new Awards to Participants, and making a cash payment to Participants. The adjustments provided under this Section 8.1 will
be nondiscretionary and final and binding on the affected Participant and the Company; provided that the Administrator will determine
whether an adjustment is equitable.
8.2 Corporate
Transactions. In the event of any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or
other property), reorganization, merger, consolidation, combination, amalgamation, repurchase, recapitalization, liquidation, dissolution,
or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or sale or exchange of Common
Stock or other securities of the Company, Change in Control, issuance of warrants or other rights to purchase Common Stock or other securities
of the Company, other similar corporate transaction or event, other unusual or nonrecurring transaction or event affecting the Company
or its financial statements or any change in any Applicable Laws or accounting principles, the Administrator, on such terms and conditions
as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction or event (except
that action to give effect to a change in Applicable Law or accounting principles may be made within a reasonable period of time after
such change), is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action
is appropriate in order to (x) prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made
available under the Plan or with respect to any Award granted or issued under the Plan, (y) to facilitate such transaction or event or
(z) give effect to such changes in Applicable Laws or accounting principles:
(a) To
provide for the cancellation of any such Award in exchange for either an amount of cash or other property with a value equal to the amount
that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s
rights under the vested portion of such Award, as applicable; provided that, if the amount that could have been obtained upon the exercise
or settlement of the vested portion of such Award or realization of the Participant’s rights, in any case, is equal to or less
than zero, then the Award may be terminated without payment; provided, further, that Awards held by members of the Board will be settled
in Shares on or immediately prior to the applicable event if the Administrator takes action under this clause (a);
(b) To
provide that such Award shall vest and, to the extent applicable, be exercisable as to all Shares covered thereby, notwithstanding anything
to the contrary in the Plan or the provisions of such Award;
(c) To
provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted
for by awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments
as to the number and kind of shares and/or applicable exercise or purchase price, in all cases, as determined by the Administrator;
(d) To
make adjustments in the number and type of Shares (or other securities or property) subject to outstanding Awards and/or with respect
to which Awards may be granted under the Plan (including, but not limited to, adjustments of the limitations in Article 4 on the maximum
number and kind of shares which may be issued) and/or in the terms and conditions of (including the grant or exercise price or applicable
performance goals), and the criteria included in, outstanding Awards;
(e) To
replace such Award with other rights or property selected by the Administrator; and/or
(f) To
provide that the Award will terminate and cannot vest, be exercised or become payable after the applicable event.
8.3 Effect
of Non-Assumption in a Change in Control. Notwithstanding the provisions of Section 8.2, if a Change in Control occurs and a Participant’s
Awards are not continued, converted, assumed, or replaced with a substantially similar award by (a) the Company, or (b) a successor entity
or its parent or subsidiary (an “Assumption”), and provided that the Participant has not had a Termination
of Service, then the Administrator may provide that, immediately prior to the Change in Control, such Awards shall become fully vested,
exercisable and/or payable, as applicable, and all forfeiture, repurchase and other restrictions on such Awards shall lapse, in which
case, such Awards shall be canceled upon the consummation of the Change in Control in exchange for the right to receive the Change in
Control consideration payable to other holders of Common Stock (i) which may be on such terms and conditions as apply generally to holders
of Common Stock under the Change in Control documents (including, without limitation, any escrow, earn-out or other deferred consideration
provisions) or such other terms and conditions as the Administrator may provide, and (ii) determined by reference to the number of Shares
subject to such Awards and net of any applicable exercise price; provided that to the extent that any Awards constitute “nonqualified
deferred compensation” that may not be paid upon the Change in Control under Section 409A without the imposition of taxes thereon
under Section 409A, the timing of such payments shall be governed by the applicable Award Agreement (subject to any deferred consideration
provisions applicable under the Change in Control documents); and provided, further, that if the amount to which a Participant
would be entitled upon the settlement or exercise of such Award at the time of the Change in Control is equal to or less than zero, then
such Award may be terminated without payment. An Award will be considered replaced with a comparable award if the Award is exchanged
for an amount of cash or other property with a value equal to the amount that could have been obtained upon the settlement of such Award
in such Change in Control (as determined by the Administrator), even if such cash or other property payable with respect to the unvested
portion of such Award remains subject to similar vesting provisions following such Change in Control. Notwithstanding the foregoing,
the Administrator will have full and final authority to determine whether an Assumption of an Award has occurred in connection with a
Change in Control.
8.4 Administrative
Stand Still. In the event of any pending stock dividend, stock split, combination or exchange of shares, merger, consolidation or
other distribution (other than normal cash dividends) of Company assets to stockholders, or any other extraordinary transaction or change
affecting the Shares or the Share price, including any Equity Restructuring or any securities offering or other similar transaction,
for administrative convenience, the Administrator may refuse to permit the exercise of any Award for up to sixty (60) days before or
after such transaction.
8.5 General.
Except as expressly provided in the Plan or the Administrator’s action under the Plan, no Participant will have any rights due
to any subdivision or consolidation of Shares of any class, dividend payment, increase or decrease in the number of Shares of any class
or dissolution, liquidation, merger, or consolidation of the Company or other corporation. Except as expressly provided with respect
to an Equity Restructuring under Section 8.1 or the Administrator’s action under the Plan, no issuance by the Company of Shares
of any class, or securities convertible into Shares of any class, will affect, and no adjustment will be made regarding, the number of
Shares subject to an Award or the Award’s grant or exercise price. The existence of the Plan, any Award Agreements and the Awards
granted hereunder will not affect or restrict in any way the Company’s right or power to make or authorize (i) any adjustment,
recapitalization, reorganization or other change in the Company’s capital structure or its business, (ii) any merger, consolidation
dissolution or liquidation of the Company or sale of Company assets or (iii) any sale or issuance of securities, including securities
with rights superior to those of the Shares or securities convertible into or exchangeable for Shares. The Administrator may treat Participants
and Awards (or portions thereof) differently under this Article 8.
ARTICLE
9
GENERAL PROVISIONS APPLICABLE TO AWARDS
9.1 Transferability.
Except as the Administrator may determine or provide in an Award Agreement or otherwise for Awards other than Incentive Stock Options,
Awards may not be sold, assigned, transferred, pledged or otherwise encumbered, either voluntarily or by operation of law, except for
certain Designated Beneficiary designations, by will or the laws of descent and distribution, or, subject to the Administrator’s
consent, pursuant to a domestic relations order, and, during the life of the Participant, will be exercisable only by the Participant.
Any permitted transfer of an Award hereunder shall be without consideration, except as required by Applicable Law. References to a Participant,
to the extent relevant in the context, will include references to a Participant’s authorized transferee that the Administrator
specifically approves.
9.2 Documentation.
Each Award will be evidenced in an Award Agreement, which may be written or electronic, as the Administrator determines. Each Award may
contain terms and conditions in addition to those set forth in the Plan.
9.3 Discretion.
Except as the Plan otherwise provides, each Award may be made alone or in addition or in relation to any other Award. The terms of each
Award to a Participant need not be identical, and the Administrator need not treat Participants or Awards (or portions thereof) uniformly.
9.4 Termination
of Status. The Administrator will determine how the disability, death, retirement, an authorized leave of absence or any other change
or purported change in a Participant’s Service Provider status affects an Award and the extent to which, and the period during
which, the Participant, the Participant’s legal representative, conservator, guardian or Designated Beneficiary may exercise rights
under the Award, if applicable.
9.5 Withholding.
Each Participant must pay the Company or make provision satisfactory to the Administrator for payment of, any taxes required by Applicable
Law to be withheld in connection with such Participant’s Awards by the date of the event creating the tax liability. The Company
may deduct an amount sufficient to satisfy such tax obligations based on the applicable statutory withholding rates (or such other rate
as may be determined by the Company after considering any accounting consequences or costs) from any payment of any kind otherwise due
to a Participant. In the absence of a contrary determination by the Company (or, with respect to withholding pursuant to clause (ii)
below with respect to Awards held by individuals subject to Section 16 of the Exchange Act, a contrary determination by the Administrator),
all tax withholding obligations will be calculated based on the minimum applicable statutory withholding rates. Subject to Section 10.8
and any Company insider trading policy (including blackout periods), Participants may satisfy such tax obligations (i) in cash, by wire
transfer of immediately available funds, by check made payable to the order of the Company, provided that the Company may limit the use
of the foregoing payment forms if one or more of the payment forms below is permitted, (ii) to the extent permitted by the Administrator,
in whole or in part by delivery of Shares, including Shares delivered by attestation and Shares retained from the Award creating the
tax obligation, valued at their fair market value on the date of delivery, (iii) if there is a public market for Shares at the time the
tax obligations are satisfied, unless the Company otherwise determines, (A) delivery (including electronically or telephonically to the
extent permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the Company to deliver promptly
to the Company sufficient funds to satisfy the tax obligations, or (B) delivery by the Participant to the Company of a copy of irrevocable
and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company cash or a check sufficient to
satisfy the tax withholding; provided that such amount is paid to the Company at such time as may be required by the Administrator, or
(iv) to the extent permitted by the Company, any combination of the foregoing payment forms approved by the Administrator. Notwithstanding
any other provision of the Plan, the number of Shares which may be so delivered or retained pursuant to clause (ii) of the immediately
preceding sentence shall be limited to the number of Shares which have a fair market value on the date of delivery or retention no greater
than the aggregate amount of such liabilities based on the maximum individual statutory tax rate in the applicable jurisdiction at the
time of such withholding (or such other rate as may be required to avoid the liability classification of the applicable award under generally
accepted accounting principles in the United States of America); provided, however, to the extent such Shares were acquired by Participant
from the Company as compensation, the Shares must have been held for the minimum period required by applicable accounting rules to avoid
a charge to the Company’s earnings for financial reporting purposes; provided, further, that, any such Shares delivered or retained
shall be rounded up to the nearest whole Share to the extent rounding up to the nearest whole Share does not result in the liability
classification of the applicable Award under generally accepted accounting principles in the United States of America. If any tax withholding
obligation will be satisfied under clause (ii) above by the Company’s retention of Shares from the Award creating the tax obligation
and there is a public market for Shares at the time the tax obligation is satisfied, the Company may elect to instruct any brokerage
firm determined acceptable to the Company for such purpose to sell on the applicable Participant’s behalf some or all of the Shares
retained and to remit the proceeds of the sale to the Company or its designee, and each Participant’s acceptance of an Award under
the Plan will constitute the Participant’s authorization to the Company and instruction and authorization to such brokerage firm
to complete the transactions described in this sentence.
9.6 Amendment
of Award; Repricing; Backdating. The Administrator may amend, modify, or terminate any outstanding Award, including by substituting
another Award of the same or a different type, changing the exercise or settlement date, and converting an Incentive Stock Option to
a Non-Qualified Stock Option. The Participant’s consent to such action will be required unless (i) the action, taking into account
any related action, does not materially and adversely affect the Participant’s rights under the Award, or (ii) the change is permitted
under Article 8 or pursuant to Section 10.6. Notwithstanding anything in this Plan to the contrary, except as provided under Article
8, the Administrator may not (i) amend the terms of outstanding Options or Stock Appreciation Rights to reduce the exercise or grant
price of such outstanding Options or Stock Appreciation Rights; (ii) cancel outstanding Options or Stock Appreciation Rights in exchange
for Options or Stock Appreciation Rights with an exercise or grant price that is less than the exercise price of the original Options
or Stock Appreciation Rights; or (iii) cancel outstanding Options or Stock Appreciation Rights with an exercise or grant price above
the current Fair Market Value in exchange for cash or other securities. In addition, the Administrator may not make a grant of an Option
or Stock Appreciation Right with a grant date that is effective prior to the date the Administrator takes action to approve such Award.
9.7 Conditions
on Delivery of Stock. The Company will not be obligated to deliver any Shares under the Plan or remove restrictions from Shares previously
delivered under the Plan until (i) all Award conditions have been met or removed to the Company’s satisfaction, (ii) as determined
by the Company, all other legal matters regarding the issuance and delivery of such Shares have been satisfied, including any applicable
securities laws and stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the
Company such representations or agreements as the Administrator deems necessary or appropriate to satisfy any Applicable Laws. The Company’s
inability to obtain authority from any regulatory body having jurisdiction, which the Administrator determines is necessary to the lawful
issuance and sale of any securities, will relieve the Company of any liability for failing to issue or sell such Shares as to which such
requisite authority has not been obtained.
9.8 Minimum
Vesting; Acceleration. Notwithstanding any other provision of the Plan to the contrary, Awards granted under the Plan (other than
Cash Based Awards) shall vest no earlier than the first anniversary of the date on which the Award is granted; provided, that the following
Awards shall not be subject to the foregoing minimum vesting requirement: any (i) Substitute Awards, (ii) Shares delivered in lieu of
fully vested cash obligations, and (iii) Awards to Directors who are not Employees that vest on the earlier of the one-year anniversary
of the date of grant and the next annual meeting of stockholders which is at least 50 weeks after the immediately preceding year’s
annual meeting. The Administrator may at any time provide that any Award will become immediately vested and fully or partially exercisable,
free of some or all restrictions or conditions, or otherwise fully or partially realizable.
9.9 Cash
Settlement. Without limiting the generality of any other provision of the Plan, the Administrator may provide, in an Award Agreement
or subsequent to the grant of an Award, at its discretion, that any Award may be settled in cash, Shares or a combination thereof.
9.10 Broker-Assisted
Sales. In the event of a broker-assisted sale of Shares in connection with the payment of amounts owed by a Participant under or
with respect to the Plan or Awards, including amounts to be paid under the final sentence of Section 9.5: (a) any Shares to be sold through
the broker-assisted sale will be sold on the day the payment first becomes due, or as soon thereafter as practicable; (b) such Shares
may be sold as part of a block trade with other Participants in the Plan in which all Participants receive an average price; (c) the
applicable Participant will be responsible for all broker’s fees and other costs of sale, and by accepting an Award, each Participant
agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale; (d) to the
extent the Company or its designee receives proceeds of such sale that exceed the amount owed, the Company will pay such excess in cash
to the applicable Participant as soon as reasonably practicable; (e) the Company and its designees are under no obligation to arrange
for such sale at any particular price; and (f) in the event the proceeds of such sale are insufficient to satisfy the Participant’s
applicable obligation, the Participant may be required to pay immediately upon demand to the Company or its designee an amount in cash
sufficient to satisfy any remaining portion of the Participant’s obligation.
ARTICLE
10
MISCELLANEOUS
10.1 No
Right to Employment or Other Status. No person will have any claim or right to be granted an Award, and the grant of an Award will
not be construed as giving a Participant the right to continued employment or any other relationship with the Company or any of its Subsidiaries.
The Company and its Subsidiaries expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a Participant
free from any liability or claim under the Plan or any Award, except as expressly provided in an Award Agreement or in the Plan.
10.2 No
Rights as Stockholder; Certificates. Subject to the Award Agreement, no Participant or Designated Beneficiary will have any rights
as a stockholder with respect to any Shares to be distributed under an Award until becoming the record holder of such Shares. Notwithstanding
any other provision of the Plan, unless the Administrator otherwise determines or Applicable Laws require, the Company will not be required
to deliver to any Participant certificates evidencing Shares issued in connection with any Award and instead such Shares may be recorded
in the books of the Company (or, as applicable, its transfer agent or stock plan administrator). The Company may place legends on stock
certificates issued under the Plan that the Administrator deems necessary or appropriate to comply with Applicable Laws.
10.3 Effective
Date and Term of Plan. Unless earlier terminated by the Board, the Plan will become effective on May 22, 2024, and will remain in
effect until the tenth anniversary of the earlier of (i) the date the Board adopted the Plan or (ii) the date the Company’s stockholders
approved the Plan, but Awards previously granted may extend beyond that date in accordance with the Plan. The Plan will be submitted
for the approval of the Company’s stockholders within twelve (12) months after the date of the Board’s adoption of the Plan.
10.4 Amendment
and Termination of Plan. The Administrator may amend, suspend, or terminate the Plan at any time; provided that no amendment, other
than an increase to the Overall Share Limit, may materially and adversely affect any Award outstanding at the time of such amendment
without the affected Participant’s consent. No Awards may be granted under the Plan during any suspension period or after the Plan’s
termination. Awards outstanding at the time of any Plan suspension or termination will continue to be governed by the Plan and the Award
Agreement, as in effect before such suspension or termination. The Board will obtain stockholder approval of any Plan amendment to the
extent necessary to comply with Applicable Laws.
10.5 Provisions
for Foreign Participants. The Administrator may modify Awards granted to Participants who are foreign nationals or employed outside
the United States or establish subplans or procedures under the Plan to address differences in laws, rules, regulations, or customs of
such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters.
10.6 Section
409A.
(a) General.
The Company intends that all Awards be structured to comply with, or be exempt from, Section 409A, such that no adverse tax consequences,
interest, or penalties under Section 409A apply. Notwithstanding anything in the Plan or any Award Agreement to the contrary, the Administrator
may, without a Participant’s consent, amend this Plan or Awards, adopt policies and procedures, or take any other actions (including
amendments, policies, procedures and retroactive actions) as are necessary or appropriate to preserve the intended tax treatment of Awards,
including any such actions intended to (A) exempt this Plan or any Award from Section 409A, or (B) comply with Section 409A, including
regulations, guidance, compliance programs and other interpretative authority that may be issued after an Award’s grant date. The
Company makes no representations or warranties as to an Award’s tax treatment under Section 409A or otherwise. The Company will
have no obligation under this Section 10.6 or otherwise to avoid the taxes, penalties, or interest under Section 409A with respect to
any Award and will have no liability to any Participant or any other person if any Award, compensation or other benefits under the Plan
are determined to constitute noncompliant “nonqualified deferred compensation” subject to taxes, penalties or interest under
Section 409A.
(b) Separation
from Service. If an Award constitutes “nonqualified deferred compensation” under Section 409A, any payment or settlement
of such Award upon a termination of a Participant’s Service Provider relationship will, to the extent necessary to avoid taxes
under Section 409A, be made only upon the Participant’s “separation from service” (within the meaning of Section 409A),
whether such “separation from service” occurs upon or after the termination of the Participant’s Service Provider relationship.
For purposes of this Plan or any Award Agreement relating to any such payments or benefits, references to a “termination,”
“termination of employment” or like terms means a “separation from service.”
(c) Payments
to Specified Employees. Notwithstanding any contrary provision in the Plan or any Award Agreement, any payment(s) of “nonqualified
deferred compensation” required to be made under an Award to a “specified employee” (as defined under Section 409A
and as the Administrator determines) due to his or her “separation from service” will, to the extent necessary to avoid taxes
under Section 409A(a)(2)(B)(i) of the Code, be delayed for the six (6)-month period immediately following such “separation from
service” (or, if earlier, until the specified employee’s death) and will instead be paid (as set forth in the Award Agreement)
on the day immediately following such six (6)-month period or as soon as administratively practicable thereafter (without interest).
Any payments of “nonqualified deferred compensation” under such Award payable more than six (6) months following the Participant’s
“separation from service” will be paid at the time or times the payments are otherwise scheduled to be made. Furthermore,
notwithstanding any contrary provision of the Plan or any Award Agreement, any payment of “nonqualified deferred compensation”
under the Plan that may be made in installments shall be treated as a right to receive a series of separate and distinct payments.
10.7 Limitations
on Liability. Notwithstanding any other provisions of the Plan, no individual acting as a director, officer, other employee or agent
of the Company or any Subsidiary will be liable to any Participant, former Participant, spouse, beneficiary, or any other person for
any claim, loss, liability, or expense incurred in connection with the Plan or any Award, and such individual will not be personally
liable with respect to the Plan because of any contract or other instrument executed in his or her capacity as an Administrator, director,
officer, other employee or agent of the Company or any Subsidiary. The Company will indemnify and hold harmless each director, officer,
other employee and agent of the Company or any Subsidiary that has been or will be granted or delegated any duty or power relating to
the Plan’s administration or interpretation, against any cost or expense (including attorneys’ fees) or liability (including
any sum paid in settlement of a claim with the Administrator’s approval) arising from any act or omission concerning this Plan
unless arising from such person’s own fraud or bad faith.
10.8 Lock-Up
Period. The Company may, at the request of any underwriter representative or otherwise, in connection with registering the offering
of any Company securities under the Securities Act, prohibit Participants from, directly or indirectly, selling or otherwise transferring
any Shares or other Company securities during a period of up to one hundred eighty (180) days following the effective date of a Company
registration statement filed under the Securities Act, or such longer period as determined by the underwriter.
10.9 Data
Privacy. As a condition for receiving any Award, each Participant explicitly and unambiguously consents to the collection, use and
transfer, in electronic or other form, of personal data as described in this section by and among the Company and its Subsidiaries and
affiliates exclusively for implementing, administering, and managing the Participant’s participation in the Plan. The Company and
its Subsidiaries and affiliates may hold certain personal information about a Participant, including the Participant’s name, address,
and telephone number; birthdate; social security number, insurance number or other identification number; salary; nationality; job title(s);
any Shares held in the Company or its Subsidiaries and affiliates; and Award details, to implement, manage and administer the Plan and
Awards (the “Data”). The Company and its Subsidiaries and affiliates may transfer the Data amongst themselves
as necessary to implement, administer and manage a Participant’s participation in the Plan, and the Company and its Subsidiaries
and affiliates may transfer the Data to third parties assisting the Company with Plan implementation, administration, and management.
These recipients may be located in the Participant’s country, or elsewhere, and the Participant’s country may have different
data privacy laws and protections than the recipients’ country. By accepting an Award, each Participant authorizes such recipients
to receive, possess, use, retain and transfer the Data, in electronic or other form, to implement, administer and manage the Participant’s
participation in the Plan, including any required Data transfer to a broker or other third party with whom the Company or the Participant
may elect to deposit any Shares. The Data related to a Participant will be held only as long as necessary to implement, administer, and
manage the Participant’s participation in the Plan. A Participant may, at any time, view the Data that the Company holds regarding
such Participant, request additional information about the storage and processing of the Data regarding such Participant, recommend any
necessary corrections to the Data regarding the Participant or refuse or withdraw the consents in this Section 10.9 in writing, without
cost, by contacting the local human resources representative. If the Participant refuses or withdraws the consents in this Section 10.9,
the Company may cancel Participant’s ability to participate in the Plan and, in the Administrator’s discretion, the Participant
may forfeit any outstanding Awards. For more information on the consequences of refusing or withdrawing consent, Participants may contact
their local human resources representative.
10.10 Severability.
If any portion of the Plan or any action taken under it is held illegal or invalid for any reason, the illegality or invalidity will
not affect the remaining parts of the Plan, and the Plan will be construed and enforced as if the illegal or invalid provisions had been
excluded, and the illegal or invalid action will be null and void.
10.11 Governing
Documents. If any contradiction occurs between the Plan and any Award Agreement or other written agreement between a Participant
and the Company (or any Subsidiary) that the Administrator has approved, the Plan will govern, unless it is expressly specified in such
Award Agreement or other written document that a specific provision of the Plan will not apply.
10.12 Governing
Law; Venue; Waiver of Jury Trial. The Plan and all Awards will be governed by and interpreted in accordance with the laws of the
State of Delaware, disregarding any state’s choice-of-law principles requiring the application of a jurisdiction’s laws other
than the State of Delaware. By accepting an Award, each Participant irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of Delaware and of the United States of America, in each case located in the State of Delaware,
for any action arising out of or relating to the Plan (and agrees not to commence any litigation relating thereto except in such courts),
and further agrees that service of any process, summons, notice or document by U.S. registered mail to the address contained in the records
of the Company shall be effective service of process for any litigation brought against it in any such court. By accepting an Award,
each Participant irrevocably and unconditionally waives any objection to the laying of venue of any litigation arising out of the Plan
or any Award hereunder in the courts of the State of Delaware or the United States of America, in each case located in the State of Delaware,
and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such litigation brought
in any such court has been brought in an inconvenient forum. By accepting an Award, each Participant irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any and all rights to trial by jury in connection with any litigation arising
out of or relating to the Plan or any Award hereunder.
10.13 Clawback
Provisions. All compensation received by Participants, including pursuant to Awards (including, without limitation, any proceeds,
gains or other economic benefit actually or constructively received by Participant upon any receipt or exercise of any Award or upon
the receipt or resale of any Shares underlying the Award) shall be subject to reduction, cancellation, forfeiture and/or recoupment to
the extent necessary to comply with (a) any clawback, forfeiture or other similar policy adopted by the Company (each, a “Policy”),
and (b) any other clawback, recoupment, forfeiture or similar policies or provisions applicable to a Participant or required under Applicable
Law (collectively, the “Recovery Arrangements”), notwithstanding any other agreement to the contrary. No recovery
of compensation under any Recovery Arrangements will be an event that triggers or contributes to any right of a Participant to resign
for “good reason” (or similar term) under the Plan or any Award Agreement or any other agreement with the Company or a Subsidiary
or affiliate. By accepting an Award, each Participant will be deemed to have agreed that he or she is not entitled to indemnification
in connection with any enforcement of the Recovery Arrangements and to have waived any rights to such indemnification under the Company’s
organizational documents or otherwise. By accepting an Award, each Participant agrees to take all required action in a reasonably prompt
manner, as applicable, to enable the enforcement of the Recovery Arrangements. The Administrator may condition a Participant’s
receipt of an Award on such Participant’s execution of an acknowledgment pursuant to which such Participant will agree to be bound
by the terms of, and comply with, the Recovery Arrangements and this Section 10.13.
10.14 Titles
and Headings. The titles and headings in the Plan are for convenience of reference only and, if there is any conflict, the Plan’s
text, rather than such titles or headings, will control.
10.15 Conformity
to Securities Laws. Participant acknowledges that the Plan is intended to conform to the extent necessary with Applicable Laws. Notwithstanding
anything herein to the contrary, the Plan and all Awards will be administered only in conformance with Applicable Laws. To the extent
Applicable Laws permit, the Plan and all Award Agreements will be deemed amended as necessary to conform to Applicable Laws.
10.16 Relationship
to Other Benefits. No payment under the Plan will be taken into account in determining any benefits under any pension, retirement,
savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary except as expressly provided
in writing in such other plan or an agreement thereunder.
10.17 Plan
Language. The official language of the Plan shall be English. To the extent that the Plan or any Award Agreements are translated
from English into another language, the English version of the Plan and Award Agreements will always govern, in the event that there
are inconsistencies or ambiguities which may arise due to such translation.
10.18 Applicable
Currency. The Award Agreement shall specify the currency applicable to such Award. The Administrator may determine, in its sole discretion,
that an Award denominated in one currency may be paid in any other currency based on the prevailing exchange rate as the Administrator
deems appropriate. A Participant may be required to provide evidence that any currency used to pay the exercise price of any Award were
acquired and taken out of the jurisdiction in which the Participant resides in accordance with Applicable Laws, including foreign exchange
control laws and regulations. In the absence of a designation in an Award Agreement, the currency applicable to an Award shall be U.S.
Dollars.
ARTICLE
11
DEFINITIONS
As
used in the Plan, the following words and phrases will have the following meanings:
11.1 “Administrator”
means the Board or a Committee to the extent that the Board’s powers or authority under the Plan have been delegated to such Committee.
11.2 “Applicable
Laws” means the requirements relating to the administration of equity incentive plans under U.S. federal and state securities,
tax and other applicable laws, rules and regulations, the applicable rules of any stock exchange or quotation system on which the Common
Stock is listed or quoted and the applicable laws and rules of any foreign country or other jurisdiction where Awards are granted.
11.3 “Award”
means, individually or collectively, a grant under the Plan of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock
Units, Dividend Equivalents, or Other Stock or Cash Based Awards.
11.4 “Award
Agreement” means a written agreement evidencing an Award, which may be electronic, that contains such terms and conditions
as the Administrator determines, consistent with and subject to the terms and conditions of the Plan.
11.5 “Board”
means the Board of Directors of the Company.
11.6 “Cause”
means the termination of a Participant’s service with the Company or a Subsidiary as a result of the occurrence of one or more
of the following events, except as otherwise expressly provided in the applicable Award Agreement: misconduct, negligence, dishonesty,
violence or threat of violence (including any violation of federal securities laws) that is injurious to the Company or any of its Subsidiaries;
disclosure of trade secrets, client information or other confidential information; breach of the provisions of an agreement, covenant
or other obligation with the Company or a Subsidiary, including without limitation an employment agreement or a non-disclosure or confidentiality
agreement; material mismanagement in the performance of his or her duties; willful failure to execute or comply with the major policies
of the Company or a Subsidiary or his or her stated duties; any other willful misconduct which is materially injurious to the financial
condition or business reputation of the Company or any of its Subsidiaries; material breach of a written policy of the Company or a Subsidiary
or the laws or rules of any governmental or regulatory body applicable to the Company or a Subsidiary; and conviction of, or plea of
nolo contendere to, any felony or another crime involving dishonesty or moral turpitude or which could reflect negatively upon the Company
or a Subsidiary or otherwise impair or impede its operations. If Participant is a party to an employment or service agreement with the
Company or its Subsidiaries and such agreement provides for a definition of Cause, the definition therein contained shall constitute
“Cause” for purposes of this Plan in addition to the above definition. The determination of a Participant’s termination
for “Cause” shall be made in the sole and absolute discretion of the Board.
11.7 “Change
in Control” means the occurrence of (i) a sale, lease or other disposition of all or substantially all of the assets of
the Company, (ii) a merger or consolidation in which the Company is not the surviving corporation (except for a merger or consolidation
with an entity controlled by the stockholders of the Company), (iii) a reverse merger in which the Company is the surviving corporation
but the Shares outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the
form of securities, cash or otherwise or (iv) the adoption of a plan of dissolution or liquidation of the Company.
Notwithstanding
the foregoing, if a Change in Control constitutes a payment event with respect to any Award (or portion of any Award) that provides for
the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under
Section 409A, the transaction or event described above with respect to such Award (or portion thereof) shall only constitute a Change
in Control for purposes of the payment timing of such Award if such transaction also constitutes a “change in control event,”
as defined in Treasury Regulation Section 1.409A-3(i)(5).
The
Administrator shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change
in Control has occurred pursuant to the above definition, the date of the occurrence of such Change in Control and any incidental matters
relating thereto; provided that any exercise of authority in conjunction with a determination of whether a Change in Control is a “change
in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such regulation.
11.8 “Code”
means the U.S. Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
11.9 “Committee”
means one or more committees or subcommittees of the Board, which may include one or more Company directors or executive officers, to
the extent Applicable Laws permit. To the extent required to comply with the provisions of Rule 16b-3, it is intended that each member
of the Committee will be, at the time the Committee takes any action with respect to an Award that is subject to Rule 16b-3, a “non-employee
director” within the meaning of Rule 16b-3; however, a Committee member’s failure to qualify as a “non-employee director”
within the meaning of Rule 16b-3 will not invalidate any Award granted by the Committee that is otherwise validly granted under the Plan.
11.10 “Common
Stock” means the common stock of the Company.
11.11 “Company”
means GameSquare Holdings, Inc., a corporation organized under the laws of the State of Delaware, and any successor thereto.
11.12 “Consultant”
means any consultant or advisor engaged by the Company or any of its Subsidiaries to render services to such entity, in each case that
can be granted an Award that is eligible to be registered on a Form S-8 Registration Statement.
11.13 “Designated
Beneficiary” means the beneficiary or beneficiaries the Participant designates, in a manner the Administrator determines,
to receive amounts due or exercise the Participant’s rights if the Participant dies or becomes incapacitated. Without a Participant’s
effective designation, “Designated Beneficiary” will mean the Participant’s estate.
11.14 “Director”
means a Board member.
11.15 “Disability”
means a permanent and total disability under Section 22(e)(3) of the Code, as amended.
11.16 “Dividend
Equivalents” means a right granted to a Participant under the Plan to receive the equivalent value (in cash or Shares)
of dividends paid on Shares.
11.17 “Employee”
means any employee of the Company or its Subsidiaries.
11.18 “Equity
Restructuring” means a non-reciprocal transaction between the Company and its stockholders, such as a stock dividend, stock
split, spin-off or recapitalization through a large, nonrecurring cash dividend that affects the number or kind of Shares (or other securities
of the Company) or the share price of Common Stock (or other securities of the Company) and causes a change in the per share value of
the Common Stock underlying outstanding Awards.
11.19 “Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
11.20 “Fair
Market Value” means, as of any date, the value of a Share of Common Stock determined as follows: (a) if the Common Stock
is listed on any established stock exchange, its Fair Market Value will be the closing sales price for such Common Stock as quoted on
such exchange for such date, or if no sale occurred on such date, the last day preceding such date during which a sale occurred, as reported
in The Wall Street Journal or another source the Administrator deems reliable; (b) if the Common Stock is not traded on a stock
exchange but is quoted on a national market or other quotation system, the closing sales price on such date, or if no sales occurred
on such date, then on the last date preceding such date during which a sale occurred, as reported in The Wall Street Journal or
another source the Administrator deems reliable; or (c) in the absence of an established market for the Common Stock, the Administrator
may determine the Fair Market Value in its discretion.
11.21 “FaZe
Plan” collectively, the FaZe Holdings, Inc. 2022 Omnibus Incentive Plan and the FaZe Clan Inc. Amended and Restated 2019 Equity
Incentive Plan, under which GameSquare assumed certain FaZe outstanding equity awards pursuant to the Agreement and Plan of Merger, dated
October 19, 2023 (the “Merger Agreement”).
11.22 “FaZe
Plan Award” means an award outstanding under the FaZe Plan, which were converted, in accordance with the terms of the Merger
Agreement, into awards relating to GameSquare Common Stock.
11.23 “Greater
Than 10% Stockholder” means an individual then owning (within the meaning of Section 424(d) of the Code) more than 10%
of the total combined voting power of all classes of stock of the Company or its parent or subsidiary corporation, as defined in Section
424(e) and (f) of the Code, respectively.
11.24 “Incentive
Stock Option” means an Option intended to qualify as an “incentive stock option” as defined in Section 422
of the Code.
11.25 “Non-Qualified
Stock Option” means an Option, or portion thereof, not intended or not qualifying as an Incentive Stock Option.
11.26 “Option”
means an option to purchase Shares, which will either be an Incentive Stock Option or a Non-Qualified Stock Option.
11.27 “Other
Stock or Cash Based Awards” means cash awards, awards of Shares, and other awards valued wholly or partially by referring
to, or are otherwise based on, Shares or other property awarded to a Participant under Article 7.
11.28 “Overall
Share Limit” 2,861,658 Shares plus 10% of the Company’s Shares outstanding at
any given time.
11.29 “Participant”
means a Service Provider who has been granted an Award.
11.30 “Performance
Criteria” mean the criteria (and adjustments) that the Administrator may select for an Award to establish performance goals
for a performance period, which may include the following: net earnings or losses (either before or after one or more of interest, taxes,
depreciation, amortization, and non-cash equity-based compensation expense); gross or net sales or revenue or sales or revenue growth;
net income (either before or after taxes) or adjusted net income; profits (including but not limited to gross profits, net profits, profit
growth, net operation profit or economic profit), profit return ratios or operating margin; budget or operating earnings (either before
or after taxes or before or after allocation of corporate overhead and bonus); cash flow (including operating cash flow and free cash
flow or cash flow return on capital); return on assets; return on capital or invested capital; cost of capital; return on stockholders’
equity; total stockholder return; return on sales; costs, reductions in costs and cost control measures; expenses; working capital; earnings
or loss per share; adjusted earnings or loss per share; price per share or dividends per share (or appreciation in or maintenance of
such price or dividends); regulatory achievements or compliance; implementation, completion or attainment of objectives relating to research,
development, regulatory, commercial, or strategic milestones or developments; market share; economic value or economic value added models;
division, group or corporate financial goals; customer satisfaction/growth; customer service; employee satisfaction; recruitment and
maintenance of personnel; human capital management (including diversity and inclusion); supervision of litigation and other legal matters;
strategic partnerships and transactions; financial ratios (including those measuring liquidity, activity, profitability or leverage);
debt levels or reductions; sales-related goals; financing and other capital raising transactions; cash on hand; acquisition activity;
investment sourcing activity; and marketing initiatives, any of which may be measured in absolute terms or as compared to any incremental
increase or decrease. Such performance goals also may be based solely by reference to the Company’s performance or the performance
of a Subsidiary, division, business segment or business unit of the Company or a Subsidiary, or based upon performance relative to performance
of other companies or upon comparisons of any of the indicators of performance relative to performance of other companies.
11.31 “Plan”
means this 2024 Stock Incentive Plan.
11.32 “Prior
Plan” means the Engine Media Holdings, Inc. Amended and Restated Omnibus Equity Plan, which GameSquare previously assumed
as successor in interest to Engine Media Holdings, Inc.
11.33 “Prior
Plan Award” means an award outstanding under the Prior Plan.
11.34 “Restricted
Stock” means Shares awarded to a Participant under Article 6 subject to certain vesting conditions and other restrictions.
11.35 “Restricted
Stock Unit” means an unfunded, unsecured right to receive, on the applicable settlement date, one Share or an amount in
cash or other consideration determined by the Administrator to be of equal value as of such settlement date awarded to a Participant
under Article 6 subject to certain vesting conditions and other restrictions.
11.36 “Rule
16b-3” means Rule 16b-3 promulgated under the Exchange Act.
11.37 “Section
409A” means Section 409A of the Code and all regulations, guidance, compliance programs and other interpretative authority
thereunder.
11.38 “Securities
Act” means the U.S. Securities Act of 1933, as amended.
11.39 “Service
Provider” means an Employee, Consultant or Director.
11.40 “Shares”
means shares of Common Stock.
11.41 “Stock
Appreciation Right” means a stock appreciation right granted under Article 5.
11.42 “Subsidiary”
means any entity (other than the Company), whether domestic or foreign, in an unbroken chain of entities beginning with the Company if
each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities
or interests representing at least 50% of the total combined voting power of all classes of securities or interests in one of the other
entities in such chain.
11.43 “Substitute
Awards” means Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, awards
previously granted, or the right or obligation to make future awards, in each case by a company acquired by the Company or any Subsidiary
or with which the Company or any Subsidiary combines.
11.44 “Termination
of Service” means the date the Participant ceases to be a Service Provider. A Participant’s status as a Service Provider
shall not be deemed to have terminated merely because of a change in the capacity in which Participant renders service to the Company
or any Affiliate as an Employee, Consultant or Director or a change in the entity for which Participant renders such service, provided
there is no interruption or termination of Participant’s continuous status as a Service Provider. The Administrator, in its sole
discretion, may determine whether continuous service as a Service Provider shall be considered interrupted in the case of any leave of
absence approved by the Company, including sick leave, military leave or any other personal leave.
*
* * * *
Exhibit
5.1
May
22, 2024
GameSquare
Holdings, Inc.
|
| 6775 Cowboys Way, Ste. 1335 |
| Frisco,
Texas 75034 |
To
whom it may concern:
We
have acted as counsel to GameSquare Holdings, Inc., a Delaware corporation (the “Company”), in connection with its Registration
Statement on Form S-8 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended, relating to the offering of (i) 5,897,913 shares of common stock of GameSquare, par value
$0.0001 per share (“Common Stock”), that may be issued pursuant to the GameSquare 2024 Stock Incentive Plan (the “2024
Plan”), (ii) 1,331,037 shares of Common Stock issuable pursuant to outstanding equity awards granted under the Engine Media Holdings,
Inc. Amended and Restated Omnibus Equity Plan, which GameSquare previously assumed as successor in interest to Engine Media Holdings,
Inc. (the “Prior Plan”); and (iii) 1,791,934 shares of Common Stock issuable pursuant to outstanding equity awards granted
under the FaZe Holdings, Inc. 2022 Omnibus Incentive Plan (the “2022 FaZe Plan”) and the FaZe Clan Inc. Amended and Restated
2019 Equity Incentive Plan (the “2019 FaZe Plan” and together with the 2022 FaZe Plan, the “FaZe Plans”) with
respect to shares of common stock, par value $0.0001 per share of FaZe Holdings, Inc., a Delaware corporation (“FaZe”), which
were assumed by the Company and converted into equity awards in respect of shares of GameSquare Common Stock in connection with GameSquare’s
acquisition of FaZe (collectively, all such shares of Common Stock, the “Shares”).
We
have examined such documents and such matters of fact and law as we deem necessary to render the opinions contained herein. In our examination,
we have assumed, but have not independently verified, the genuineness of all signatures, the conformity to original documents of all
documents submitted to us as certified, facsimile or other copies, and the authenticity of all such documents. As to questions of fact
material to this opinion, we have relied on certificates or comparable documents of public officials and of officers and representatives
of the Company.
Based
on the foregoing, and subject to the qualifications stated herein, we are of the opinion that the Shares to be issued by the Company
under the 2024 Plan, Prior Plan, and FaZe Plans, when issued and sold in accordance with the terms of the respective 2024 Plan, Prior
Plan, or FaZe Plans, will be validly issued, fully paid and non-assessable.
The
opinions expressed herein are limited to the General Corporation Law of the State of Delaware and we express no opinion as to the effect
on the matters covered by this letter of the laws of any other jurisdiction.
We
hereby consent to the filing of this letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit
that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
| |
Very truly yours, |
| |
|
| |
/s/ Baker & Hostetler LLP |
Exhibit 23.2
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-8
(Form
Type)
GameSquare
Holdings, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| | |
Security
Type | |
Security
Class
Title | |
Fee
Calculation | |
Amount
Registered(1) | | |
Proposed
Maximum
Offering
Price
Per
Share
(2) | | |
Maximum
Aggregate
Offering
Price | | |
Fee
Rate | | |
Amount
of
Registration
Fee | |
| Newly
Registered Securities | |
| Fees
to Be Paid | |
Equity | |
Common
Stock, par value $0.0001 per share | |
Other | |
| 5,897,913 | | |
$ | 1.38 | | |
$ | 8,139,119.94 | | |
| 0.00014760 | | |
$ | 1,201.33 | |
| Fees
to Be Paid | |
Equity | |
Common
Stock, par value $0.0001 per share | |
Other | |
| 1,331,037 | | |
$ | 1.38 | | |
$ | 1,836,831.06 | | |
| 0.00014760 | | |
$ | 271.12 | |
| Fees
to Be Paid | |
Equity | |
Common
Stock, par value $0.0001 per share | |
Other | |
| 1,791,934 | | |
$ | 1.38 | | |
$ | 2,472,868.92 | | |
| 0.00014760 | | |
$ | 365.00 | |
| Total
Offering Amounts | |
| |
| |
| |
| | | |
| | | |
$ | 12,448,819.92 | | |
| | | |
$ | 1,837.45 | |
| Total
Fee Offsets | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| — | |
| Net
Fees Due | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
$ | 1,837.45 | |
(1)
Represents: (i) 5,897,913 shares of common stock of GameSquare Holding, Inc. (“GameSquare”), par value $0.0001 per share
(“Common Stock”), that may be issued pursuant to the GameSquare 2024 Stock Incentive Plan (the “2024 Plan”),
(ii) 1,331,037 shares of Common Stock issuable pursuant to outstanding equity awards granted under the Engine Media Holdings, Inc. Amended
and Restated Omnibus Equity Plan, which GameSquare previously assumed as successor in interest to Engine Media Holdings, Inc. (the “Prior
Plan”); and (iii) 1,791,934 shares of Common Stock issuable pursuant to outstanding equity awards granted under the FaZe Holdings,
Inc. 2022 Omnibus Incentive Plan (the “2022 FaZe Plan”) and the FaZe Clan Inc. Amended and Restated 2019 Equity Incentive
Plan (the “2019 FaZe Plan” and together with the 2022 FaZe Plan, the “FaZe Plans”) with respect to shares (“FaZe
Stock”) of FaZe Holdings, Inc., a Delaware corporation (“FaZe”), which were assumed by GameSquare and converted into
equity awards in respect of shares of GameSquare Common Stock in connection with GameSquare’s acquisition of FaZe. Pursuant to
Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also register
an indeterminate number of shares that may become issuable under the 2024 Plan, Prior Plan, or the FaZe Plans by reason of any stock
dividend, stock split or similar transaction effected without the receipt of consideration that results in an increase in the number
of the outstanding shares of Common Stock.
(2)
Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) of the Securities Act. The proposed
maximum aggregate offering price is calculated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act based on the average
of the high and low sale prices of the Registrant’s common stock as reported on The Nasdaq Stock Market LLC on May 21, 2024.
GameSquare (NASDAQ:GAME)
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