As filed with the Securities and Exchange Commission on June 7, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AMC ENTERTAINMENT HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware |
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26-0303916 |
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(State or other jurisdiction |
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(I.R.S. Employer |
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of incorporation or organization) |
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Identification No.) |
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One AMC Way
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11500 Ash Street |
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Leawood, Kansas |
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66211 |
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(Address of principal executive offices) |
(Zip Code) |
AMC Entertainment Holdings, Inc. 2024
Equity Incentive Plan
(Full title of the Plan)
Kevin M. Connor, Esq.
Senior Vice President, General Counsel &
Secretary
One AMC Way
11500 Ash Street
Leawood, Kansas 66211
(Name and address of agent for service)
(913) 213-2000
(Telephone number, including area code, of agent
for service)
Copy to:
Kirstin P. Salzman, Esq.
Andrew Spector, Esq.
Husch Blackwell LLP
4801 Main Street, Suite 1000
Kansas City, Missouri 64112
(816) 983-8316
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer x |
Accelerated filer ¨ |
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Non-accelerated filer ¨ |
Smaller reporting company ¨ |
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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 filed by AMC Entertainment Holdings, Inc. (the “Registrant”),
for the purpose of registering 25,000,000 shares of Class A common stock, $0.01 par value per share (the “Common Stock”),
of the Registrant under the AMC Entertainment Holdings, Inc. 2024 Equity Incentive Plan (the “Plan”), which became
effective on February 22, 2024, subject to stockholder approval at the Registrant’s 2024 Annual Meeting of Stockholders. On
June 5, 2024, the stockholders approved the Plan. Shares of Common Stock reserved for use under the Plan cannot be used for other
purposes.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the
information in Items 1 and 2 of Part I of this Registration Statement relating to the Plan will be sent or given to participants
in the Plan as specified by Rule 428(b)(1) promulgated under the Securities Act. In accordance with the instructions to Part I
of Form S-8, such documents will not be filed with the SEC either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 promulgated under the Securities Act of 1933, as amended (the “Securities Act”).
These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute the prospectus as required by Section 10(a) of the Securities Act in respect of future issuances under the Plan.
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), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and, in accordance therewith, files reports, proxy statements and other information with
the SEC. The following documents, which are on file with the SEC, are incorporated into this Registration Statement by reference (other
than portions of these documents that are either (1) described in paragraphs (d)(1), (d)(2), (d)(3) or (e)(5) of Item 407
of Regulation S-K promulgated by the SEC or (2) furnished under applicable Commission rules rather than filed and exhibits furnished
in connection with such items):
| 3. | the Registrant’s Current Reports on Form 8-K filed with the SEC on January 2, 2024, March 1, 2024, March 12, 2024, March 28, 2024, April 19, 2024, April 26, 2024, May 14, 2024, May 15, 2024 and June 7, 2024; and |
All reports and other documents
filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the effective
date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have
been sold or that deregisters all securities then remaining unsold, will be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to
have been furnished and not filed in accordance with the rules of the SEC shall not be deemed incorporated by reference in this Registration
Statement.
Any statement contained in
any document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded
will not be deemed, except as 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 145 of the Delaware
General Corporation Law (“DGCL”) permits each corporation organized thereunder the power to indemnify any person who
is or was a director, officer, employee or agent of a corporation or enterprise, against expenses, including attorneys’ fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation
to procure a judgment in its favor, by reason of being or having been in any such capacity, if such person acted in good faith in a manner
reasonably believed by such person to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 of the DGCL further provides that
a corporation may indemnify any person who is or was a director, officer, employee or agent of a corporation or enterprise, against expenses,
including attorneys’ fees, actually and reasonably incurred by such person in connection with the defense or settlement of any threatened,
pending or completed action, suit or proceeding by or in the right of the corporation to procure a judgment in its favor, by reason of
being or having been in any such capacity, if such person acted in good faith in a manner reasonably believed by such person to be in,
or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of 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 the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper. Section 145 of the DGCL also allows a corporation to provide contractual indemnification to its directors,
and we have entered into indemnification agreements with each of our directors whereby we are contractually obligated to indemnify the
director and advance expenses to the full extent permitted by the DGCL.
Section 102(b)(7) of
the DGCL enables a corporation in its certificate of incorporation to eliminate or limit the personal liability of a director or officer
to the corporation or its stockholders for monetary damages for breach of a fiduciary duty as a director or officer, except (i) for
any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions
of a director or officer that are not in good faith or that involve intentional misconduct or a knowing violation of the law, (iii) for
liability of a director under Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions), (iv) for any transaction from which a director or officer derived an improper personal
benefit, or (v) for liability of an officer in any action by or in right of the corporation.
The third amended and restated certificate of incorporation
of the Registrant provides for indemnification of any person made party to or threatened to be made party to any proceeding by reason
of the fact that such person is or was a director or officer of the company, or a person of whom such person is the legal representative,
or is or was serving at the request of the corporation as a director or officer of another corporation, or as its representative in a
partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, to the fullest extent
permitted by the DGCL, against any expenses, liability and loss (including attorneys’ fees, judgments, fines Employee Retirement
Income Security Act of 1974 excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith. The third amended and restated certificate of incorporation of the Registrant also provides that
the personal liability of its directors for monetary damages for breach of fiduciary duty as a director of the corporation is eliminated
to the fullest extent permitted by the DGCL. Expenses incurred in defending any such proceeding in advance of its final disposition may
be paid by the Registrant in advance of its final disposition, provided that if the DGCL so requires, the payment of such expenses shall
only be made upon delivery to the Registrant of an undertaking, by or on behalf of such person, to repay all amounts so advanced if it
should be determined ultimately that such person is not entitled to be indemnified by the corporation. Neither the failure of the Registrant
to have made a determination prior to the commencement of such action that indemnification of the claimant is proper because such person
has met the applicable standard of conduct set forth in the DGCL nor an actual determination that such person has failed to meet such
standard of conduct shall be a defense to an action brought by a claimant whom the Registrant has failed to pay in full within 30 days
of having received a written claim.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit
Number |
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Description |
| 4.1 |
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Third
Amended and Restated Certificate of Incorporation of AMC Entertainment Holdings,Inc. (incorporated by reference from Exhibit 3.1 to
the Registrant’s Current Report on Form 8-K filed on December 23, 2013) |
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| 4.2 |
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Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation of AMC Entertainment Holdings,Inc., dated as of July 29,
2020 (incorporated by reference from Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on July 31,
2020) |
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| 4.3 |
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Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation of AMC Entertainment Holdings,Inc., effective as of
January 25, 2021 (incorporated by reference from Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on
January 25, 2021) |
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| 4.4 |
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Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation of AMC Entertainment Holdings,Inc. (incorporated by
reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No.1-33892) filed on August 14, 2023) |
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| 4.5 |
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Certificate
of Retirement of 24,057,143 Shares of Class B Common Stock of AMC Entertainment Holdings,Inc., dated as of November 1, 2018
(incorporated by reference from Exhibit 3.1 to Registrant’s Quarterly Report on Form 10-Q filed on November 8, 2018) |
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| 4.6 |
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Certificate
of Retirement of 51,769,784 Shares of Class B Common Stock of AMC Entertainment Holdings,Inc., dated as of February 24, 2021
(incorporated by reference from Exhibit 4.32 to the Registrant’s Annual Report on Form 10-K filed on March 12, 2021) |
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| 4.7 |
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Certificate
of Designations for the Series A Convertible Participating Preferred Stock (incorporated herein by reference from Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K filed on August 4, 2022) |
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| 4.8 |
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Certificate
of Elimination of Series A Convertible Participating Preferred Stock, dated August 25, 2023 (incorporated by reference from
Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on August 25, 2023) |
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| 4.7 |
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Fourth
Amended and Restated Bylaws of AMC Entertainment Holdings,Inc. effective February 22, 2024 (incorporated by reference from
Exhibit 3.2 to the Registrant’s Annual Report Form 10-K (File No.1-33892) filed on February 28, 2024) |
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| 5.1* |
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Opinion of Husch Blackwell LLP |
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| 23.1* |
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Consent of Ernst& Young LLP,Independent Registered Public Accounting Firm |
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| 23.2* |
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Consent of Husch Blackwell LLP (contained in opinion filed as
Exhibit 5.1 to this Registration Statement) |
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| 24.1* |
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Power of Attorney (Included on the signature page to this Registration
Statement) |
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| 99.1* |
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AMC Entertainment Holdings,Inc. 2024 Equity Incentive Plan |
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| 107* |
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Filing Fee Table |
* Filed herewith
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period
in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table
in the effective Registration Statement;
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information
in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) 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 SEC by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all 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 Leawood, State of Kansas, on the 7th day of June, 2024.
| AMC ENTERTAINMENT HOLDINGS, INC. |
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| By: |
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/s/ Kevin M. Connor |
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Name: Kevin M. Connor,Esq. |
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Title: Senior Vice President, General Counsel and Secretary |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Kevin M. Connor and Sean D. Goodman
and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him or
her and in his or her name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments)
to the Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite or necessary fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorney-in-fact and agents or any of them or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated
on June 7, 2024.
| Signature |
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Title |
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| /s/ Adam M. Aron |
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Chief Executive Officer, President and Chairman of the Board |
| Adam M. Aron |
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(Principal Executive Officer) |
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| /s/ Sean D. Goodman |
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Executive Vice President,International Operations Chief Financial Officer and Treasurer |
| Sean D. Goodman |
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(Principal Financial Officer and Treasurer) |
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| /s/ Chris A. Cox |
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Senior Vice President and Chief Accounting Officer |
| Chris A. Cox |
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(Principal Accounting Officer) |
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| /s/ Denise Clark |
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Director |
| Denise Clark |
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| /s/ Sonia Jain |
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Director |
| Sonia Jain |
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| /s/ Howard Koch, Jr. |
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Director |
| Howard Koch, Jr. |
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| /s/ Philip Lader |
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Director |
| Philip Lader |
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| /s/ Gary F. Locke |
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Director |
| Gary F. Locke |
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| /s/ Kathleen M. Pawlus |
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Director |
| Kathleen M. Pawlus |
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| /s/ Keri Putnam |
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Director |
| Keri Putnam |
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| /s/ Anthony J. Saich |
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Director |
| Anthony J. Saich |
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| /s/ Adam J. Sussman |
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Director |
| Adam J. Sussman |
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Exhibit 5.1
4801 Main Street, Suite 1000
Kansas City, MO 64112
Main: 816-983-8000
Fax: 816-983-8080
www.huschblackwell.com |
June 7, 2024
AMC Entertainment Holdings, Inc.
One AMC Way
11500 Ash Street
Leawood, Kansas 66211
Re: AMC Entertainment Holdings, Inc. Registration
Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to AMC Entertainment
Holdings, Inc., a Delaware corporation (the “Company”), in connection with the preparation of the Registration
Statement on Form S-8 (the “Registration Statement”) being filed by the Company concurrently herewith with the
Securities and Exchange Commission. The Registration Statement relates to the registration under the Securities Act of 1933, as
amended (the “Act”), of 25,000,000 shares of the Company’s Class A common stock, par value $0.01 per share
(the “Shares”), reserved for issuance pursuant to the Company’s 2024 Equity Incentive Plan (the “Plan”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
As counsel, we have reviewed a Good Standing Certificate
with respect to the Company issued by the Secretary of State of Delaware dated as of a recent date. We have also reviewed the organizational
documents of the Company, including (i) the Third Amended and Restated Certificate of Incorporation of the Company, as amended to
the date hereof (the “Certificate of Incorporation”), (ii) the Fourth Amended and Restated Bylaws of the Company,
as amended to the date hereof (the “Bylaws”). We have also examined copies of (i) resolutions certified by the
Secretary of the Company and adopted at a meeting of the Board of Directors of the Company held on February 22, 2024; and (ii) the
duly certified results of the vote by the shareholders of the Company approving the adoption of the Plan at the Company’s Annual
Meeting of Shareholders held on June 5, 2024. We have relied, as to these and other factual matters which affect our opinion, on
the Certificate of the Secretary of the Company dated as of June 7, 2024.
We have assumed that (i) valid book-entry
notations for the issuance of the Shares in uncertificated form will have been duly made in the share register of the Company, (ii) each
award agreement setting forth the terms of each award granted pursuant to the Plan is consistent with the Plan and has been or will be
duly authorized and validly executed and delivered by the parties thereto, and (iii) at the time of each issuance of Shares, there
will be sufficient shares of Common Stock authorized for issuance under the Company’s Certificate of Incorporation that have not
otherwise been issued or reserved or committed for issuance, and (iv) the price per share paid for Shares issued pursuant to the
Plan is not less than the par value of the Shares. As to factual matters material to the opinions set forth below we have relied, without
investigation, upon the representations and statements of the Company in the Registration Statement and in such certificates of government
officials and officers of the Company as we have deemed necessary for the purpose of the opinions expressed herein. We have also assumed
the genuineness of all signatures and the authenticity of all items submitted to us as originals and the conformity with the originals
of all items submitted to us as copies.
Based upon the foregoing and subject to the qualifications and limitations
stated herein, we are of the opinion that, when the Registration Statement has become effective under the Act and the Shares have been
issued and delivered upon payment therefor in accordance with the Plan and any applicable award agreement, the Shares will be duly authorized,
legally and validly issued, fully paid and non-assessable shares of capital stock of the Company.
This opinion is limited to matters governed by
the General Corporation Law of the State of Delaware (the “Delaware Act”). We express no opinion as to either the applicability
or effect of the laws of any other jurisdiction. This opinion letter is limited to the matters expressly stated herein and no opinion
is to be inferred or implied beyond the opinion expressly set forth herein. This opinion letter is rendered as of the date hereof, and
we undertake no, and hereby disclaim, any obligation to make any inquiry after the date hereof or to advise you of any facts, circumstances,
events or developments that hereafter may be brought to our attention and that may alter, affect or modify the opinions expressed herein.
We hereby consent to the filing of this opinion
as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Act, or under the rules and regulations of the Securities and Exchange
Commission relating thereto.
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Very truly yours,
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/s/ Husch Blackwell LLP |
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Husch Blackwell LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference
in the Registration Statement (Form S-8) pertaining to the AMC Entertainment Holdings, Inc. 2024 Equity Incentive Plan of
our reports dated February 28, 2024, with respect to the consolidated financial statements of AMC Entertainment
Holdings, Inc. and the effectiveness of internal control over financial reporting of AMC Entertainment Holdings, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Kansas City, Missouri
June 7, 2024
Exhibit 99.1
AMC ENTERTAINMENT HOLDINGS, INC.
2024 EQUITY INCENTIVE PLAN
1. Introduction.
1.1 General
Purpose. The name of this plan is the AMC Entertainment Holdings, Inc. 2024 Equity Incentive Plan (the “Plan”).
The purposes of the Plan are to: (a) enable AMC Entertainment Holdings, Inc., a Delaware corporation (the “Company”),
and any Affiliate to attract and retain the types of Employees, Consultants and Directors who will contribute to the Company’s long-range
success; (b) provide incentives that align the interests of Employees, Consultants and Directors with those of the shareholders of
the Company; and (c) promote the success of the Company’s business.
1.2 Eligible
Award Recipients. The persons eligible to receive Awards are the Employees, Consultants and Directors of the Company and its Affiliates.
1.3 Available
Awards. Awards that may be granted under the Plan include: (a) Options; (b) Stock Appreciation Rights; (c) Restricted
Stock Awards; (d) Restricted Stock Units; (e) Cash Awards; and (f) Other Equity-Based Awards (including but not limited
to phantom awards and fully vested Stock awards).
1.4 Effective
Date of Plan. The Plan shall become effective as
of the Effective Date, but no Award shall be settled in shares of Common Stock unless and until the Plan has been approved by the shareholders
of the Company.
1.5 Termination
or Suspension of the Plan. The Plan will be unlimited in duration and, in the event of Plan termination,
will remain in effect as long as any shares of Awards awarded under it are outstanding and not fully vested. The Committee may suspend
or terminate the Plan at any earlier date pursuant to Section 13.1. No Awards may be granted under the Plan while the Plan is suspended
or after it is terminated.
1.6 Capitalized
Words. Capitalized terms used throughout this document shall have the meaning set forth in Section 16 unless the context clearly
requires a different meaning.
2. Shares
Subject to the Plan.
2.1 Subject
to adjustment in accordance with Section 11, no more than 25,000,000 shares of Common Stock shall be available for the grant of
Awards under the Plan (the “Total Share Reserve”).
2.2 Shares
of Common Stock available for distribution under the Plan may consist, in whole or in part, of authorized and unissued shares, treasury
shares or shares reacquired by the Company in any manner.
2.3 The
aggregate Grant Date value of all Awards granted to a Non-Employee Director during any calendar year shall not exceed $500,000.
2.4 Any
shares of Common Stock subject to an Award that expire or are canceled, forfeited, terminated, or settled in cash, in each case without
issuance of the full number of shares of Common Stock to which the Award related, will again be available for issuance under the Plan.
Notwithstanding anything to the contrary contained in this Plan: shares subject to an Award under the Plan shall not again be made available
for issuance or delivery under the Plan if such shares are (a) shares tendered in payment of a Stock Option, (b) shares delivered
or withheld by the Company to satisfy any tax withholding obligation, or (c) shares covered by a stock-settled Stock Appreciation
Right or other Awards that were not issued upon the settlement of the Award.
2.5 Awards
may, in the sole discretion of the Committee, be granted under the Plan in assumption of, or in substitution for, outstanding awards previously
granted by an entity acquired by the Company or with which the Company combines (“Substitute Awards”). Substitute Awards
shall not be counted against the Total Share Reserve.
3. Stock
Option. Each Option granted under the Plan shall
be evidenced by an Award Agreement. Each Option so granted shall be subject to the conditions set forth in this Section 3, and to
such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. Notwithstanding the foregoing,
the Company shall have no liability to any Participant or any other person if a Stock Option is determined to be subject to Code Section 409A
and the terms of such Option fail to satisfy the requirements of Code Section 409A. The provisions of separate Options need not be
identical, but each Option shall include (through incorporation in the Option Award Agreement or otherwise) the substance of each of the
following provisions:
3.1 Term.
The Committee will determine the term of a Stock Option granted under the Plan; provided, however, no Option shall be exercisable
after the expiration of ten years from the Grant Date unless an earlier or later expiration date is set forth in the Award Agreement.
3.2 Exercise
Price. The Exercise Price of each Option may never be less than 100% of the Fair Market Value of the Common Stock subject to the Option
on the Grant Date. Notwithstanding the foregoing, a Stock Option may be granted with an Exercise Price lower than that set forth in the
preceding sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions
of Code Section 409A or Code Section 424(a), as applicable.
3.3 Consideration.
The Exercise Price of Common Stock acquired pursuant to a Stock Option shall be paid, to the extent permitted by Applicable Laws, either
(a) in cash or by certified or bank check at the time the Option is exercised or (b) in the discretion of the Committee, upon
such terms as the Committee shall approve, the Exercise Price may be paid: (i) by delivery to the Company of other Common Stock,
duly endorsed for transfer to the Company, with a Fair Market Value on the date of delivery equal to the Exercise Price (or portion thereof)
due for the number of shares being acquired, or by means of attestation whereby the Participant identifies for delivery specific shares
of Common Stock that have an aggregate Fair Market Value on the date of attestation equal to the Exercise Price (or portion thereof) and
receives a number of shares of Common Stock equal to the difference between the number of shares purchased and the number of identified
attestation shares of Common Stock (a “Stock for Stock Exchange”); (ii) a “cashless” exercise program
established with a broker; (iii) by reduction in the number of shares of Common Stock otherwise deliverable upon exercise of such
Option with a Fair Market Value equal to the aggregate Exercise Price at the time of exercise; (iv) by any combination of the foregoing
methods; or (v) in any other form of legal consideration that may be acceptable to the Committee. Unless otherwise specifically provided
in the Option, the exercise price of Common Stock acquired pursuant to a Stock Option that is paid by delivery (or attestation) to the
Company of other Common Stock acquired, directly or indirectly from the Company, shall be paid only by shares of the Common Stock of the
Company that have been held for more than six months (or such longer or shorter period of time required to avoid a charge to earnings
for financial accounting purposes). Notwithstanding the foregoing, during any period for which the Common Stock is publicly traded (i.e.,
the Common Stock is listed on any established stock exchange or a national market system) an exercise by a Director or Officer that involves
or may involve a direct or indirect extension of credit or arrangement of an extension of credit by the Company, directly or indirectly,
in violation of Section 402(a) of the Sarbanes-Oxley Act of 2002 shall be prohibited with respect to any Award under this Plan.
3.4 Transferability
of a Stock Option. An Option may, in the sole discretion of the Committee, be transferable to a Permitted Transferee, upon written
approval by the Committee to the extent provided in the Award Agreement. If the Option does not provide for transferability, then the
Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime
of the Optionee only by the Optionee. Notwithstanding the foregoing, the Optionee may, by delivering written notice to the Company, in
a manner satisfactory to the Company, designate a third party who, in the event of the death of the Optionee, shall be entitled to exercise
the Option.
3.5 Vesting
of Options. Each Option may, but need not, vest and become exercisable in periodic installments that may, but need not, be equal.
The Option may be subject to such other terms and conditions on the time or times when it may be exercised (which may be based on performance
or other criteria) as the Committee may deem appropriate. The vesting provisions of individual Options may vary. The Committee may, but
shall not be required to, provide for an acceleration of vesting and exercisability in the terms of any Award Agreement upon the occurrence
of a specified event.
3.6 Termination
of Continuous Service. Unless otherwise provided in an Award Agreement or in an employment agreement, in the event a Stock Optionee’s
Continuous Service terminates (other than upon the Optionee’s death or Disability), the Optionee may exercise the Optionee’s
Option (to the extent that the Optionee was entitled to exercise such Option as of the date of termination) but only within such period
of time ending on the earlier of (a) the date 90 days following the termination of the Optionee’s Continuous Service or (b) the
expiration of the term of the Option as set forth in the Award Agreement; provided that, if the termination of Continuous Service
is by the Company for Cause, all outstanding Options (whether or not vested) shall immediately terminate and cease to be exercisable.
If, after termination, the Optionee does not exercise the Optionee’s Option within the time specified in the Award Agreement or
this Section 3.6, the Option shall terminate.
3.7 Extension
of Termination Date. An Optionee’s Award Agreement may also provide that if the exercise of the Option following the termination
of the Optionee’s Continuous Service for any reason would be prohibited at any time because the issuance of shares of Common Stock
would violate the registration requirements under the Securities Act or any other state or federal securities law or the rules of
any securities exchange or interdealer quotation system, then the Option shall terminate on the earlier of (a) the expiration of
the term of the Option in accordance with Section 3.1 or (b) the expiration of a period after termination of the Participant’s
Continuous Service that is 90 days after the end of the period during which the exercise of the Option would be in violation of such registration
or other securities law requirements.
3.8 Disability
of Optionee. Unless otherwise provided in an Award Agreement, in the event that a Stock Optionee’s Continuous Service terminates
as a result of the Optionee’s Disability, the Optionee may exercise his or her Option (to the extent that the Optionee was entitled
to exercise such Option as of the date of termination), but only within such period of time ending on the earlier of (a) the date
12 months following such termination or (b) the expiration of the term of the Option as set forth in the Award Agreement. If, after
termination, the Optionee does not exercise his or her Option within the time specified in this Plan or in the Award Agreement, the Option
shall terminate.
3.9 Death
of Optionee. Unless otherwise provided in an Award Agreement, in the event a Stock Optionee’s Continuous Service terminates
as a result of the Optionee’s death, then the Option may be exercised (to the extent the Optionee was entitled to exercise such
Option as of the date of death) by the Optionee’s estate, by a person who acquired the right to exercise the Option by bequest or
inheritance or by a person designated to exercise the Option upon the Optionee’s death, but only within the period ending on the
earlier of (a) the date 12 months following the date of death or (b) the expiration of the term of such Option as set forth
in the Award Agreement. If, after the Optionee’s death, the Option is not exercised within the time specified in this Plan or in
the Award Agreement, the Option shall terminate.
4. Stock
Appreciation Rights. Each Stock Appreciation Right granted under the Plan shall be evidenced
by an Award Agreement. Each Stock Appreciation Right so granted shall be subject to the conditions set forth in this Section 4, and
to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. Stock Appreciation Rights
may be granted alone (“Free Standing Rights”) or in tandem with a Stock Option granted under the Plan (“Related
Rights”).
4.1 Grant
Requirements for Related Rights. Any Related Right that relates to a Stock Option may be granted at the same time the Option
is granted or at any time thereafter but before the exercise or expiration of the Option.
4.2 Term.
The term of a Stock Appreciation Right granted under the Plan shall be determined by the Committee; provided, however, no Stock
Appreciation Right shall be exercisable later than the tenth anniversary of the Grant Date unless an earlier or later expiration date
is set forth in the Award Agreement.
4.3 Vesting.
Each Stock Appreciation Right may, but need not, vest and become exercisable in periodic installments that may, but need not, be equal.
The Stock Appreciation Right may be subject to such other terms and conditions on the time or times when it may be exercised as the Committee
may deem appropriate. The vesting provisions of individual Stock Appreciation Rights may vary. The Committee may, but shall not be required
to, provide for an acceleration of vesting and exercisability in the terms of any Stock Appreciation Right upon the occurrence of a specified
event.
4.4 Exercise
and Payment. Upon exercise of a Stock Appreciation Right, the holder shall be entitled to receive from the Company an amount equal
to the number of shares of Common Stock subject to the Stock Appreciation Right that is being exercised multiplied by the excess of (i) the
Fair Market Value of a share of Common Stock on the date the Award is exercised, over (ii) the exercise price specified in the Stock
Appreciation Right or related Option. Payment with respect to the exercise of a Stock Appreciation Right shall be made on the date of
exercise. Payment shall be made in the form of shares of Common Stock (with or without restrictions as to substantial risk of forfeiture
and transferability, as determined by the Committee in its sole discretion), cash or a combination thereof, as determined by the Committee.
4.5 Exercise
Price. The Committee will determine the exercise price of a Free Standing Right; provided, however, the exercise price of a
Free Standing Right intended to be exempt from Code Section 409A may never be less than 100% of the Fair Market Value of one share
of Common Stock on the Grant Date of such Free Standing Right. A Related Right granted simultaneously with or in conjunction with a Stock
Option shall have the same exercise price as the related Option, shall be transferable only upon the same terms and conditions as the
related Option, and shall be exercisable only to the same extent as the related Option. Notwithstanding the foregoing, a Stock Appreciation
Right, by its terms, shall be exercisable only when the Fair Market Value per share of Common Stock subject to the Stock Appreciation
Right exceeds the exercise price of the Stock Appreciation Right and no Related Rights may be granted in tandem with a Stock Option unless
the Committee determines that the requirements of Section 4.1 are satisfied.
4.6 Reduction
in the Underlying Option Shares. Upon any exercise of a Related Right, the number of shares of Common Stock for which any related
Option shall be exercisable shall be reduced by the number of shares for which the Stock Appreciation Right has been exercised. The number
of shares of Common Stock for which a Related Right shall be exercisable shall be reduced upon any exercise of any related Option by the
number of shares of Common Stock for which such Option has been exercised.
5. Restricted
Awards. A Restricted Award may, but need not, provide that it may not be sold, assigned, transferred
or otherwise disposed of, pledged or hypothecated as collateral for a loan or as security for the performance of any obligation or for
any other purpose for such period (the “Restricted Period”) as the Committee shall determine. Each Restricted Award
so granted shall be subject to the conditions set forth in this Section 5, and to such other conditions not inconsistent with the
Plan as may be reflected in the applicable Award Agreement.
5.1 Restricted
Stock and Restricted Stock Units.
(a) Each
Participant granted Restricted Stock shall acknowledge receipt of the Participant’s Award Agreement, in the manner acceptable to
the Committee. If the Committee determines that the Restricted Stock shall be held by the Company or in escrow rather than delivered to
the Participant pending the release of the applicable restrictions, the Committee may require the Participant to additionally deliver
to the Company (A) an escrow agreement satisfactory to the Committee, if applicable and (B) the appropriate blank stock power
with respect to the Restricted Stock covered by such agreement. If a Participant fails to acknowledge receipt of an Award Agreement in
the manner acceptable to the Committee and, if applicable, to deliver an escrow agreement and stock power, the Award shall be null and
void. Subject to the restrictions set forth in the Award Agreement, the Participant generally has the rights and privileges of a shareholder
as to such Restricted Stock, including the right to vote such Restricted Stock and the right to receive dividends; provided that,
any cash dividends and stock dividends with respect to the Restricted Stock shall be withheld by the Company for the Participant’s
account, and interest may be credited on the amount of the cash dividends withheld at a rate and subject to such terms as determined by
the Committee. The cash dividends or stock dividends so withheld by the Committee and attributable to any particular share of Restricted
Stock (and applicable earnings, if any) shall be distributed to the Participant in cash or, at the discretion of the Committee, in shares
of Common Stock having a Fair Market Value equal to the amount of such dividends, if applicable, upon the release of restrictions on such
share and, if such share is forfeited, the Participant has no right to such dividends.
(b) The
terms and conditions of a grant of Restricted Stock Units shall be reflected in an Award Agreement. No shares of Common Stock shall be
issued at the time a Restricted Stock Unit is granted, and the Company will not be required to set aside funds for the payment of any
such Award. A Participant has no voting rights with respect to any Restricted Stock Units granted hereunder. The Committee may also grant
Restricted Stock Units with a deferral feature, whereby settlement is deferred beyond the vesting date until the occurrence of a future
payment date or event set forth in an Award Agreement (“Deferred Stock Units”). At the discretion of the Committee,
each Restricted Stock Unit or Deferred Stock Unit (representing one share of Common Stock) may be credited with an amount equal to the
cash and stock dividends paid by the Company in respect of one share of Common Stock (“Dividend Equivalents”). Dividend
Equivalents shall be withheld by the Company and credited to the Participant’s account, and interest may be credited on the amount
of cash Dividend Equivalents credited to the Participant’s account at a rate and subject to such terms as determined by the Committee.
Dividend Equivalents credited to a Participant’s account and attributable to any particular Restricted Stock Unit or Deferred Stock
Unit (and applicable earnings, if any) shall be distributed in cash or, at the discretion of the Committee, in shares of Common Stock
having a Fair Market Value equal to the amount of such Dividend Equivalents and earnings, if applicable, to the Participant upon settlement
of such Restricted Stock Unit or Deferred Stock Unit and, if such Restricted Stock Unit or Deferred Stock Unit is forfeited, the Participant
has no right to such Dividend Equivalents.
5.2 Restrictions
(a) Restricted
Stock awarded to a Participant shall be subject to the following restrictions until the expiration of the Restricted Period, and to such
other terms and conditions as may be set forth in the applicable Award Agreement: (A) if an escrow arrangement is used, the Participant
shall not be entitled to delivery of the stock; (B) the shares shall be subject to the restrictions on transferability set forth
in the Award Agreement; (C) the shares shall be subject to forfeiture to the extent provided in the applicable Award Agreement; and
(D) to the extent such shares are forfeited, all rights of the Participant to such shares and as a shareholder with respect to such
shares shall terminate without further obligation on the part of the Company.
(b) Restricted
Stock Units and Deferred Stock Units awarded to any Participant shall be subject to (A) forfeiture until the expiration of the Restricted
Period, and satisfaction of any applicable Performance Goals during such period, to the extent provided in the applicable Award Agreement,
and to the extent such Restricted Stock Units or Deferred Stock Units are forfeited, all rights of the Participant to such Restricted
Stock Units or Deferred Stock Units shall terminate without further obligation on the part of the Company and (B) such other terms
and conditions as may be set forth in the applicable Award Agreement.
(c) The
Committee has the authority to remove any or all of the restrictions on the Restricted Stock, Restricted Stock Units and Deferred Stock
Units whenever it may determine that, by reason of changes in Applicable Laws or other changes in circumstances arising after the date
the Restricted Stock or Restricted Stock Units or Deferred Stock Units are granted, such action is appropriate.
5.3 Restricted
Period. With respect to Restricted Awards, the Restricted Period shall commence on the Grant Date and end at the time or times set
forth on a schedule established by the Committee in the applicable Award Agreement.
5.4 Section 83(b) Election.
If a Participant makes an election pursuant to Section 83(b) of the Code with respect to a Restricted Stock Award, the Participant
shall file, within thirty (30) days following the Date of Grant, a copy of such election with the Company and with the Internal Revenue
Service, in accordance with the regulations under Section 83(b) of the Code. The Committee may provide in an Award Agreement
that the Restricted Stock Award is conditioned upon the Participant’s making or refraining from making an election with respect
to the Award under Section 83(b) of the Code.
5.5 Delivery
of Restricted Stock and Settlement of Restricted Stock Units.
(a) Upon
the expiration of the Restricted Period with respect to any shares of Restricted Stock, the restrictions set forth in Section 5.2
and the applicable Award Agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable
Award Agreement.
(b) Within
30 days following the expiration of the Restricted Period with respect to any outstanding Restricted Stock Units, or at the expiration
of the deferral period with respect to any outstanding Deferred Stock Units, the Company shall deliver to the Participant, or the Participant’s
beneficiary, without charge, one share of Common Stock for each such outstanding vested Restricted Stock Unit or Deferred Stock Unit (“Vested
Unit”) and cash equal to any Dividend Equivalents credited with respect to each such Vested Unit in accordance with Section 5.1(b) and
the applicable interest, if any, or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to
such Dividend Equivalents and the applicable interest, if any; provided, however, that, if explicitly provided in the applicable
Award Agreement, the Committee may, in its sole discretion, elect to pay cash or part cash and part Common Stock in lieu of delivering
only shares of Common Stock for Vested Units. If a cash payment is made in lieu of delivering shares of Common Stock, the amount of such
payment shall be equal to the Fair Market Value of the Common Stock as of the date on which the Restricted Period lapsed in the case of
Restricted Stock Units, or the delivery date in the case of Deferred Stock Units, with respect to each Vested Unit.
5.6 Stock
Restrictions. Each book-entry representing Restricted Stock awarded under the Plan shall bear a legend in such form as the Company
deems appropriate.
5.7 Performance
Goals. Any Restricted Award granted under the Plan
may be conditioned upon satisfaction of one or more Performance Goals as determined by the Committee in its discretion and set forth in
the Participant’s Award Agreement.
6. Other
Equity-Based Awards and Cash Awards. The Committee may grant Other Equity-Based Awards, either
alone or in tandem with other Awards, in such amounts and subject to such conditions as the Committee shall determine in its sole discretion.
Each Equity-Based Award shall be evidenced by an Award Agreement and shall be subject to such conditions, not inconsistent with the Plan,
as may be reflected in the applicable Award Agreement. The Committee may grant Cash Awards in such amounts and subject to such Performance
Goals, other vesting conditions, and such other terms as the Committee determines in its discretion. Cash Awards shall be evidenced in
such form as the Committee may determine.
7. Securities
Law Compliance. Each Award Agreement shall provide that no shares of Common Stock shall be purchased
or sold unless and until (a) any then applicable requirements of state or federal laws and regulatory agencies have been fully complied
with to the satisfaction of the Company and its counsel and (b) if required to do so by the Company, the Participant has delivered
to the Company a letter of investment intent in such manner and containing such provisions as the Committee may require. The Company shall
use reasonable efforts to seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as
may be required to grant Awards and to issue and sell shares of Common Stock upon exercise of the Awards; provided, however, that
this undertaking shall not require the Company to register under the Securities Act the Plan, any Award or any Common Stock issued or
issuable pursuant to any such Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission
or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale of Common Stock under the Plan,
the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such Awards unless and until
such authority is obtained.
8. Use
of Proceeds from Common Stock. Proceeds from the sale of Common Stock pursuant to Awards, or
upon exercise of Options, shall constitute general funds of the Company.
9. Administration.
9.1 Authority
of Committee. The Plan shall be administered by the Committee. Subject to the terms of the Plan, the Committee’s charter and
Applicable Laws, and in addition to other express powers and authorization conferred by the Plan, the Committee has the authority:
(a) to
construe and interpret the Plan and apply its provisions;
(b) to
promulgate, amend, and rescind rules and regulations relating to the administration of the Plan;
(c) to
authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan;
(d) in
accordance with Applicable Laws, to delegate its authority to one or more Officers of the Company with respect to Awards that do not involve
“insiders” within the meaning of Section 16 of the Exchange Act;
(e) to
determine when Awards are to be granted under the Plan and the applicable Grant Date;
(f) from
time to time to select, subject to the limitations set forth in this Plan, those eligible Award recipients to whom Awards shall be granted;
(g) to
determine the number of shares of Common Stock to be made subject to each Award;
(h) to
prescribe the terms and conditions of each Award, including, without limitation, the exercise price and medium of payment and vesting
provisions, and to specify the provisions of the Award Agreement relating to such grant;
(i) to
determine the target number of Performance Shares to be granted pursuant to a Performance Share Award, the performance measures that will
be used to establish the Performance Goals, the Performance Period and the number of Performance Shares earned by a Participant;
(j) to
amend any outstanding Awards, including for the purpose of modifying the time or manner of vesting, or the term of any outstanding Award;
provided, however, that if any such amendment impairs a Participant’s rights or increases a Participant’s obligations
under the Participant’s Award or creates or increases a Participant’s federal income tax liability with respect to an Award,
such amendment shall also be subject to the Participant’s consent;
(k) to
accelerate the time at which an Award may first be exercised or the time during which an Award or any part of an Award vests in accordance
with the Plan, notwithstanding the provisions in the Award stating the time at which it may first be exercised or the time during which
it will vest, and only if such acceleration complies with all Applicable Laws;
(l) to
determine the duration and purpose of leaves of absences which may be granted to a Participant without constituting termination of the
Participant’s employment for purposes of the Plan, which periods shall be no shorter than the periods generally applicable to Employees
under the Company’s employment policies;
(m) to
make decisions with respect to outstanding Awards that may become necessary upon a change in corporate control or an event that triggers
anti-dilution adjustments;
(n) to
interpret, administer, reconcile any inconsistency in, correct any defect in or supply any omission in the Plan and any instrument or
agreement relating to, or Award granted under, the Plan; and
(o) to
exercise discretion to make any and all other determinations which it determines to be necessary or advisable for the administration of
the Plan.
9.2 Committee
Decisions Final. All decisions made by the Committee pursuant to the provisions of the Plan shall be final and binding on the Company
and the Participants, unless such decisions are determined by a court having jurisdiction to be arbitrary and capricious.
9.3 Delegation.
The Committee or, if no Committee has been appointed, the Board may delegate administration of the Plan to a committee or committees of
one or more members of the Board, and the term “Committee” shall apply to any person or persons to whom such authority
has been delegated. The Committee has the power to delegate to a subcommittee any of the administrative powers the Committee is authorized
to exercise (and references in this Plan to the Board or the Committee shall be to the committee or subcommittee), subject, however, to
such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish
the Committee at any time and revest in the Board the administration of the Plan. The members of the Committee shall be appointed by and
serve at the pleasure of the Board. From time to time, the Board may increase or decrease the size of the Committee, add additional members
to, remove members (with or without cause) from, appoint new members in substitution, and fill vacancies, however caused, in the Committee.
The Committee shall act pursuant to a vote of the majority of its members or, in the case of a Committee comprised of only two members,
the unanimous consent of its members, whether present or not, or by the written consent of the majority of its members and minutes shall
be kept of all of its meetings and copies of the minutes shall be provided to the Board. Subject to the limitations prescribed by the
Plan and the Board, the Committee may establish and follow such rules and regulations for the conduct of its business as it may determine
to be advisable.
9.4 Committee
Composition. Except as otherwise determined by the Board, the Committee shall consist solely of two or more Non-Employee Directors.
The Board has discretion to determine whether or not it intends to comply with the exemption requirements of Rule 16b-3. However,
if the Board intends to satisfy such exemption requirements, with respect to any insider subject to Section 16 of the Exchange Act,
the Committee shall be a compensation committee of the Board that at all times consists solely of two or more Non-Employee Directors.
Within the scope of such authority, the Board or the Committee may delegate to a committee of one or more members of the Board who are
not Non-Employee Directors the authority to grant Awards to eligible persons who are not then subject to Section 16 of the Exchange
Act. Nothing in this Plan shall create an inference that an Award is not validly granted under the Plan in the event Awards are granted
under the Plan by a compensation committee of the Board that does not at all times consist solely of two or more Non-Employee Directors.
9.5 Indemnification.
In addition to such other rights of indemnification as they may have as Directors or members of the Committee, and to the extent allowed
by Applicable Laws, the Company shall indemnify the Committee against the reasonable expenses, including attorney’s fees, actually
incurred in connection with any action, suit or proceeding or in connection with any appeal, to which the Committee may be party by reason
of any action taken or failure to act under or in connection with the Plan or any Award granted under the Plan, and against all amounts
paid by the Committee in settlement of any such action, suit or proceeding (provided, however, that the settlement has been approved
by the Company, which approval shall not be unreasonably withheld) or paid by the Committee in satisfaction of a judgment in any such
action, suit or proceeding, except in relation to matters as to which it is adjudged in such action, suit or proceeding that such Committee
did not act in good faith and in a manner which such person reasonably believed to be in the best interests of the Company, or in the
case of a criminal proceeding, had no reason to believe that the conduct complained of was unlawful; provided, however, that within
60 days after the institution of any such action, suit or proceeding, such Committee shall, in writing, offer the Company the opportunity
at its own expense to handle and defend such action, suit or proceeding.
10. Miscellaneous.
10.1 Repricing
Prohibited; Dividend Equivalent Rights. Subject to the adjustment provisions contained in Section 11 hereof, without the prior
approval of the Company’s shareholders, neither the Committee nor the Board shall cancel a Stock Option or Stock Appreciation Right
when the exercise price per share exceeds the Fair Market Value of one share of Common Stock in exchange for cash or another Award (other
than in connection with a Change in Control) or cause the cancellation, substitution or amendment of a Stock Option or Stock Appreciation
Right that would have the effect of reducing the exercise price of such a Stock Option or Stock Appreciation Right previously granted
under the Plan or otherwise approve any modification to such a Stock Option or Stock Appreciation Right, that would be treated as a “repricing”
under the applicable rules, regulations or listing requirements adopted by the New York Stock Exchange or other principal exchange on
which the Common Stock is then listed. Dividends may not be paid with respect to Stock Options or Stock Appreciation Rights and dividend
equivalent rights may not be granted with respect to the shares of Common Stock subject to Stock Options or Stock Appreciation Rights.
10.2 Shareholder
Rights. Except as provided in the Plan or an Award Agreement, no Participant shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares of Common Stock subject to such Award unless and until such Participant satisfies all
requirements for exercise of the Award pursuant to its terms and no adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions of other rights for which the record date is prior to the date such Common
Stock is issued, except as provided in Section 11.
10.3 No
Employment or Other Service Rights. Nothing in the Plan, any Award Agreement or any other instrument granted pursuant to the Plan
shall confer upon any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the
Award was granted or shall affect the right of the Company or an Affiliate to terminate (a) the employment of an Employee or Consultant
with or without notice and with or without Cause or (b) the service of a Director pursuant to the by-laws of the Company or an Affiliate,
and any applicable provisions of the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may
be.
10.4 Transfer;
Approved Leave of Absence. For purposes of the Plan, no termination of employment by an Employee shall be deemed to result from either
(a) a transfer of employment to the Company from an Affiliate or from the Company to an Affiliate, or from one Affiliate to another,
or (b) an approved leave of absence for military service or sickness, or for any other purpose approved by the Company, if the Employee’s
right to reemployment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was
granted or if the Committee otherwise so provides in writing, in either case, except to the extent inconsistent with Code Section 409A
if the applicable Award is subject Code Section 409A.
10.5 Withholding
Obligations. Each Participant shall, no later than the date as of which the value of an Award first becomes includible in the gross
income of such Participant for federal, state or local income tax purposes, pay to the Company, or make arrangements satisfactory to the
Committee regarding payment of, any federal, state, or local taxes of any kind, domestic or foreign, required by Applicable Laws to be
withheld with respect to the Award. The obligations of the Company under the Plan are conditional on the making of such payments or arrangements,
and the Company shall, to the extent permitted by Applicable Laws, have the right to deduct any such taxes from any payment of any kind
otherwise due to such Participant. Whenever cash is paid pursuant to an Award, the Company has the right to deduct from the cash payment
an amount sufficient to satisfy any applicable federal, state and local withholding tax requirements. Subject to the discretion of the
Committee, the Participant may satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition
of Common Stock under an Award by any of the following means (in addition to the Company’s right to withhold from any compensation
paid to the Participant by the Company) or by a combination of such means: (a) tendering a cash payment; (b) authorizing the
Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise
or acquisition of Common Stock under the Award; provided, however, that no shares of Common Stock are withheld with a value exceeding
the maximum amount of tax required to be withheld by law; (c) delivering to the Company previously owned and unencumbered shares
of Common Stock of the Company; (d) permitting a Participant to irrevocably authorize a third party to sell shares of Common Stock
(or a sufficient portion of the shares) acquired upon the settlement of the Award and to remit to the Company a sufficient portion of
the sale proceeds to pay the withholding taxes resulting from such settlement; or (e) any other method of payment approved by the
Committee.
11. Adjustments
Upon Changes in Common Stock. In the event of changes in the outstanding Common Stock or in the capital structure of the Company by
reason of any stock or extraordinary cash dividend, stock split, reverse stock split, an extraordinary corporate transaction such as any
recapitalization, reorganization, merger, consolidation, combination, exchange, or other relevant change in capitalization occurring after
the Grant Date of any Award, the outstanding Awards granted under the Plan (including the exercise price of Options and Stock Appreciation
Rights and the Performance Goals to which Awards are subject) will be equitably adjusted or substituted, as to the number, price or kind
of a share of Common Stock or other consideration subject to such Awards to the extent necessary to preserve the economic intent of such
Awards. In the case of adjustments made pursuant to this Section 11, unless the Committee specifically determines that such adjustment
is in the best interests of the Company or its Affiliates, the Committee shall ensure that any adjustments under this Section 11
will not constitute a modification of such Options within the meaning of Code Section 409A. Any adjustments made under this Section 11
shall be made in a manner which does not adversely affect the exemption provided pursuant to Rule 16b-3 under the Exchange Act. The
Company shall give each Participant notice of an adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding
for all purposes.
12. Effect
of Change in Control.
12.1 Upon
the occurrence of a Change in Control, the vesting of all outstanding Awards may be accelerated (together with all performance-based vesting
conditions deemed satisfied at the greater of 100% of target or actual performance) to the extent provided under (i) the Participant’s
Award Agreement, (ii) the terms of any employment agreement or other contract between the Company and a Participant, or (iii) any
change in control policy adopted by the Committee and in effect at the time of such Change in Control.
12.2 In
addition, in the event of a Change in Control, the Committee may in its discretion and upon at least ten days’ advance notice to
the affected persons, cancel any outstanding Awards and pay to the holders such Awards, in cash or stock, or any combination cash or stock,
the value of such Awards based upon the price per share of Common Stock received or to be received by other shareholders of the Company
in the event. In the case of any Option or Stock Appreciation Right with an exercise price that equals or exceeds the price paid for a
share of Common Stock in connection with the Change in Control, the Committee may cancel the Option or Stock Appreciation Right without
the payment of consideration.
12.3 If
the Company is a party to an agreement that is reasonably likely to result in a Change in Control, such agreement may provide for: (i) the
continuation of any Award by the Company, if the Company is the surviving corporation; (ii) the assumption of any Award by the surviving
corporation or its Affiliate; or (iii) the substitution by the surviving corporation or its Affiliate of equivalent awards for any
Award, provided, however, that any such substitution with respect to Options and Stock Appreciation Rights shall occur in accordance with
the requirements of Code Section 409A. The obligations of the Company under the Plan shall be binding upon any successor corporation
or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or
organization succeeding to all or substantially all of the assets and business of the Company and its Affiliates, taken as a whole.
13. Amendment
of the Plan and Awards.
13.1 Amendment
of Plan. The Committee at any time, and from time to time, may amend or terminate the Plan; provided, the Committee shall obtain
shareholder approval of any amendment to the extent required by Applicable Law.
13.2 Contemplated
Amendments. It is expressly contemplated that the Committee may amend the Plan in any respect the Committee deems necessary or advisable
to provide eligible Employees, Consultants and Directors with the maximum benefits provided or to be provided under the provisions of
the Code relating to the nonqualified deferred compensation provisions of Code Section 409A and to bring the Plan and Awards granted
under it into compliance with the applicable provisions of the Code.
13.3 No
Impairment of Rights. Rights under any Award granted before amendment of the Plan shall not be impaired by any amendment of the Plan
unless (a) the Company requests the consent of the Participant and (b) the Participant consents in writing.
13.4 Amendment
of Awards. The Committee at any time, and from time to time, may amend the terms of any one or more Awards; provided, however,
that the Committee may not affect any amendment which would otherwise constitute an impairment of the rights under any Award unless (a) the
Company requests the consent of the Participant and (b) the Participant consents in writing.
14. General
Provisions.
14.1 Forfeiture
Events. The Committee may specify in an Award Agreement that the Participant’s rights, payments and benefits with respect to
an Award shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain events, in addition to applicable
vesting conditions of an Award. Such events may include, without limitation, breach of non-competition, non-solicitation, confidentiality,
or other restrictive covenants that are contained in the Award Agreement or otherwise applicable to the Participant, a termination of
the Participant’s Continuous Service for Cause, or other conduct by the Participant that is detrimental to the business or reputation
of the Company or its Affiliates.
14.2 Clawback.
Notwithstanding any other provisions in this Plan, the Company may cancel any Award, require reimbursement of any Award by a Participant,
and effect any other right of recoupment of equity or other compensation provided under the Plan in accordance with any Company policies
to comply with Applicable Laws, including the Company’s Executive Compensation Clawback Policy (the “Clawback Policy”),
or to comport with good corporate governance practices, as such policies may be amended from time to time. In addition, a Participant
may be required to repay to the Company previously paid compensation, whether provided pursuant to the Plan or an Award Agreement, in
accordance with the Clawback Policy. By accepting an Award, the Participant is agreeing to be bound by the Clawback Policy, as in effect
or as may be adopted or modified from time to time by the Company in its discretion (including, without limitation, to comply with Applicable
Laws or stock exchange listing requirements). No recovery of compensation under such Clawback Policy will be an event giving rise to a
right to resign for “good reason” or “constructive termination” (or similar term) under any agreement with the
Company or an Affiliate.
14.3 Other
Compensation Arrangements. Nothing contained in this Plan shall prevent the Committee from adopting other or additional compensation
arrangements, subject to shareholder approval if such approval is required; and such arrangements may be either generally applicable or
applicable only in specific cases.
14.4 Sub-Plans.
The Committee may from time to time establish sub-plans under the Plan for purposes of satisfying securities, tax or other laws of various
jurisdictions in which the Company intends to grant Awards. Any sub-plans shall contain such limitations and other terms and conditions
as the Committee determines are necessary or desirable. All sub-plans shall be deemed a part of the Plan, but each sub-plan shall apply
only to the Participants in the jurisdiction for which the sub-plan was designed.
14.5 Deferral
of Awards. The Committee may establish one or more programs under the Plan to permit selected Participants the opportunity to elect
to defer receipt of consideration upon exercise of an Award, satisfaction of performance criteria, or other event that absent the election
would entitle the Participant to payment or receipt of shares of Common Stock or other consideration under an Award. The Committee may
establish the election procedures, the timing of such elections, the mechanisms for payments of, and accrual of interest or other earnings,
if any, on amounts, shares or other consideration so deferred, and such other terms, conditions, rules and procedures that the Committee
deems advisable for the administration of any such deferral program.
14.6 Unfunded
Plan. The Plan shall be unfunded. Neither the Company, the Board nor the Committee is required to establish any special or separate
fund or to segregate any assets to assure the performance of its obligations under the Plan.
14.7 Other
Compensation and Benefit Plans. The adoption of the Plan shall not affect any other share incentive or other compensation plans in
effect for the Company or any Affiliate, nor shall the Plan preclude the Company from establishing any other forms of share incentive
or other compensation or benefit program for employees of the Company or any Affiliate. The amount of any compensation deemed to be received
by a Participant pursuant to an Award shall not constitute includable compensation for purposes of determining the amount of benefits
to which a Participant is entitled under any other compensation or benefit plan or program or the Company or an Affiliate, including,
without limitation, under any pension or severance benefits plan, except to the extent specifically provided by the terms of any such
plan.
14.8 Plan
Binding on Transferees. The Plan shall be binding upon the Company, its transferees and assigns, and the Participant, the Participant’s
executor, administrator and permitted transferees and beneficiaries.
14.9 Delivery.
Upon exercise of a right granted under this Plan, the Company shall issue Common Stock or pay any amounts due within a reasonable period
of time after exercise of the right. Subject to any obligations the Company may otherwise have pursuant to Applicable Laws, for purposes
of this Plan, 60 days is considered a reasonable period of time.
14.10 No
Fractional Shares. No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Committee shall determine
whether cash, additional Awards or other securities or property shall be issued or paid in lieu of fractional shares of Common Stock or
whether any fractional shares should be rounded, forfeited or otherwise eliminated.
14.11 Other
Provisions. The Award Agreements authorized under the Plan may contain such other provisions not inconsistent with this Plan, including,
without limitation, restrictions upon the exercise of Awards, as the Committee may deem advisable.
14.12 Code
Section 409A. The Plan is intended to either be exempt from Code Section 409A or comply with Code Section 409A to the
extent the Plan is subject Code Section 409A, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted and
administered consistent with such intent. Any payments described in the Plan that are due within the “short-term deferral period”
as defined in Code Section 409A shall not be treated as deferred compensation unless Applicable Laws require otherwise. Notwithstanding
anything to the contrary in the Plan, to the extent required to avoid accelerated taxation and tax penalties under Code Section 409A,
amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to the Plan upon a “separation from
service” to a Participant who is a “specified employee” shall be paid on the first payroll date after the six-month
anniversary of the Participant’s separation from service (or the Participant’s death, if earlier). Notwithstanding the foregoing,
neither the Company nor the Committee guarantees that any Awards provided under the Plan will be exempt from or in compliance with the
provisions of Code Section 409A, and in no event does either the Company or the Committee have any obligation to take any action
to prevent the assessment of any additional tax or penalty on any Participant under Code Section 409A and neither the Company nor
the Committee will have any liability to any Participant for such tax or penalty.
14.13 Securities
Law Compliance. No shares of Common Stock will be issued or transferred pursuant to an Award unless and until all then applicable
requirements imposed by Federal and state securities and other laws, rules and regulations and by any regulatory agencies having
jurisdiction, and by any exchanges upon which the shares of Common Stock may be listed, have been fully met. As a condition precedent
to the issuance of shares pursuant to the grant or exercise of an Award, the Company may require the Participant to take any reasonable
action to meet such requirements. The Committee may impose such conditions on any shares of Common Stock issuable under the Plan as it
may deem advisable, including, without limitation, restrictions under the Securities Act of 1933, as amended, under the requirements of
any exchange upon which such shares of the same class are then listed, and under any blue sky or other securities laws applicable to such
shares. The Committee may also require the Participant to represent and warrant at the time of issuance or transfer that the shares of
Common Stock are being acquired only for investment purposes and without any current intention to sell or distribute such shares.
14.14 Section 16.
It is the intent of the Company that the Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements of Rule 16b-3
as promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the benefit of Rule 16b-3, or any
other rule promulgated under Section 16 of the Exchange Act and will not be subject to short-swing liability under Section 16
of the Exchange Act. Accordingly, if the operation of any provision of the Plan would conflict with the intent expressed in this Section 14.14,
such provision to the extent possible shall be interpreted or deemed amended so as to avoid such conflict.
14.15 Beneficiary
Designation. Each Participant under the Plan may from time-to-time name any beneficiary or beneficiaries by whom any right under the
Plan is to be exercised in case of such Participant’s death. Each designation will revoke all prior designations by the same Participant,
shall be in a form reasonably prescribed by the Committee and shall be effective only when filed by the Participant in writing with the
Company during the Participant’s lifetime.
14.16 Data
Protection.
(a) To
the satisfaction and on the direction of the Committee, all operations of the Plan shall include or be supported by appropriate agreements,
notifications and arrangements in respect of Personal Data and its use and processing under the Plan, in order to secure: (a) the
reasonable freedom of the Company and its Affiliates to operate the Plan and for connected purposes; and (b) compliance with the
data protection requirements applicable from time to time, including under the Data Protection Legislation and the policies and practices
of the Company and its Affiliates. A Participant shall be made aware of applicable provisions in respect of Personal Data made and any
related information or disclosure, as may be required or appropriate. As necessary, this shall be accomplished by way of data privacy
notice or an alternative form approved by the Committee, or by such other communications and measures as may be decided, if necessary
with the agreement of any independent joint data controller that will be party to those communications and measures.
(b) For
purposes of the foregoing: (i) "Data Protection Legislation" means any law, statute, declaration, decree, directive, legislative
enactment, order, ordinance, regulation, rule or other binding provision or restriction (as amended, consolidated or re-enacted from
time to time) in any jurisdiction which relates to the protection of individuals with regards to the processing of personal data, including
but not limited to (as applicable) Regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016 and any
code of practice or guidance published by the UK Information Commissioner's Office (or any successor body) from time to time; and (ii) "Personal
Data" has the meaning set out in the applicable Data Protection Legislation.
14.17 Expenses.
The costs of administering the Plan shall be paid by the Company.
14.18 Severability.
If any of the provisions of the Plan or any Award Agreement is held to be invalid, illegal or unenforceable, whether in whole or in part,
such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and
the remaining provisions shall not be affected thereby.
14.19 Plan
Headings. The headings in the Plan are for purposes of convenience only and are not intended to define or limit the construction of
the provisions of this Plan.
14.20 Non-Uniform
Treatment. The Committee’s determinations under the Plan need not be uniform and may be made by it selectively among persons
who are eligible to receive, or actually receive, Awards. Without limiting the generality of the foregoing, the Committee shall be entitled
to make non-uniform and selective determinations, amendments and adjustments, and to enter into non-uniform and selective Award Agreements.
14.21 Choice
of Law. The law of the State of Delaware shall govern all questions concerning the construction,
validity and interpretation of this Plan, without regard to such state’s conflict of law rules.
15. Awards
to Non-U.S. Employee, Non-Employee, Directors or Consultants. To comply with the laws in countries other than the United States in
which the Company or any of its subsidiaries or affiliates operates or has employees, Non-Employee Directors or consultants, the Committee,
in its sole discretion, shall have the power and authority to:
15.1 Determine
which subsidiaries or affiliates shall be covered by the Plan;
15.2 Determine
which employees, Non-Employee Directors or consultants outside the United States are eligible to participate in the Plan;
15.3 Modify
the terms and conditions of any Award granted to Employees, Non-Employee Directors or consultants outside the United States to comply
with applicable foreign laws;
15.4 Take
any action, before or after an Award is made, that it deems advisable to obtain approval or comply with any necessary local government
regulatory exemptions or approvals; and
15.5 Establish
subplans and modify terms and procedures, to the extent such actions may be necessary or advisable.
16. Definitions.
“Affiliate” means
any corporation or other entity that, directly or through one or more intermediaries, controls, is controlled by or is under common control
with, the Company.
“Applicable Laws”
means the requirements related to or implicated by the administration of the Plan under applicable state corporate law, United States
federal and state securities laws, the Code, any stock exchange or quotation system on which the shares of Common Stock are listed or
quoted, and the applicable laws of any foreign country or jurisdiction where Awards are granted under the Plan.
“Award” means any
right granted under the Plan, including a Stock Option, a Stock Appreciation Right, a Restricted Award, a Performance Share Award, a Cash
Award, or an Other Equity-Based Award.
“Award Agreement”
means a written agreement, contract, certificate or other instrument or document evidencing the terms and conditions of an individual
Award granted under the Plan which may, in the discretion of the Company, be transmitted electronically to any Participant. Each Award
Agreement shall be subject to the terms and conditions of the Plan.
“Board” means the
Board of Directors of the Company, as constituted at any time.
“Cash Award” means
an Award denominated in cash that is granted under Section 6 of the Plan.
“Cause” means:
(a) the definition of “cause”
or similar term used in the employment or service agreement between the Company or Affiliate and Participant; or
(b) if (a) above does not
apply, the definition set forth in the applicable Award Agreement; or
(c) if neither (a) nor (b) above
applies, then (i) the commission of, or plea of guilty or no contest to, a felony or a crime involving moral turpitude or the commission
of any other act involving willful malfeasance or material fiduciary breach with respect to the Company or an Affiliate; (ii) conduct
that brings or is reasonably likely to bring the Company or an Affiliate negative publicity or into public disgrace, embarrassment, or
disrepute; (iii) gross negligence or willful misconduct with respect to the Company or an Affiliate; (iv) material violation
of state or federal securities laws; or (v) material violation of the Company’s written policies or codes of conduct, including
written policies related to discrimination, harassment, performance of illegal or unethical activities, and ethical misconduct.
The Committee, in its absolute discretion,
shall determine the effect of all matters and questions relating to whether a Participant has been discharged for Cause.
“Change in Control” means:
(a) the
definition of “change of control” or similar term used in the employment or service agreement between the Company or Affiliate
and Participant or any “change in control policy” adopted by the Committee;
(b) if
(a) above does not apply, the definition set forth in the applicable Award Agreement; or
(c) if
neither (a) nor (b) applies, then:
(A) Any
Person becomes the Beneficial Owner, directly or indirectly, of more than thirty-five percent (35%) of the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in the election of its directors (the “Outstanding
Company Voting Securities”) including by way of merger, consolidation or otherwise; provided, however, that for purposes of this
definition, the following acquisitions shall not constitute a Change in Control: (i) any acquisition of voting securities of the
Company directly from the Company, including without limitation, a public offering of securities or (ii) any acquisition by the Company
or any of its Subsidiaries of Outstanding Company Voting Securities, including an acquisition by any employee benefit plan or related
trust sponsored or maintained by the Company or any of its Subsidiaries.
(B) During any period of two consecutive
years, individuals who constitute the Board as of the beginning of such period (the “Incumbent Directors”) cease for any reason
to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the beginning
of such period whose election to the Board, or nomination for election by the Company’s stockholders, was approved by a vote of
at least a majority of the Incumbent Directors (including directors whose election or nomination was previously so approved), shall be
considered as though such individual were a member of the Board as of the beginning of such two-year period, but excluding, for this purpose,
any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the
election or removal of any members of the Board or other actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board.
(C) Consummation of a reorganization,
merger, or consolidation to which the Company is a party or a sale or other disposition of all or substantially all of the assets of the
Company (a “Business Combination”), unless, following such Business Combination: (i) any individuals and entities who
were the Beneficial Owners of Outstanding Company Voting Securities immediately prior to such Business Combination are the Beneficial
Owners, directly or indirectly, of more than fifty percent (50%) of the combined voting power of the outstanding voting securities entitled
to vote generally in the election of directors (or election of members of a comparable governing body) of the entity resulting from the
Business Combination (including, without limitation, an entity which as a result of such transaction owns all or substantially all of
the Company or all or substantially all of the Company’s assets either directly or through one or more Subsidiaries) (the “Successor
Entity”) in substantially the same proportions as their ownership immediately prior to such Business Combination; (ii) no Person
(excluding any Successor Entity or any employee benefit plan or related trust of the Company, such Successor Entity, or any of their Subsidiaries)
is the Beneficial Owner, directly or indirectly, of more than fifty percent (50%) of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors (or comparable governing body) of the Successor Entity, except
to the extent that such ownership existed prior to the Business Combination; and (iii) at least a majority of the members of the
board of directors (or comparable governing body) of the Successor Entity were Incumbent Directors (including persons deemed to be Incumbent
Directors) at the time of the execution of the initial agreement or of the action of the Board providing for such Business Combination.
Notwithstanding the foregoing, to the
extent necessary to comply with Section 409A of the Code with respect to the payment of “nonqualified deferred compensation”,
“Change of Control” shall be limited to a “change in control event” as defined under Section 409A of the
Code.
“Code” means the
Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to the Code shall be deemed to include a reference
to any applicable regulations promulgated thereunder.
“Committee” means
the Compensation Committee of the Company, or any other committee of one or more members of the Board appointed by the Board to administer
the Plan in accordance with Section 9.
“Common Stock” means
the Class A Common Stock, par value $0.01, of the Company, or such other substituted securities of the Company as may be designated
by the Committee from time to time.
“Company” means AMC
Entertainment Holdings, Inc., a Delaware corporation, and any successor.
“Consultant” means
any person who performs bona fide services to the Company or an Affiliate, other than as an Employee or Director, and who may be offered
securities registerable pursuant to a registration statement on Form S-8 under the Securities Act.
“Continuous Service”
means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Consultant or Director, is not interrupted
or terminated. The Participant’s Continuous Service shall not be deemed to have terminated merely because of a change in the capacity
in which the Participant renders service to the Company or an Affiliate as an Employee, Consultant or Director or a change in the entity
for which the Participant renders such service, provided that there is no interruption or termination of the Participant’s
Continuous Service; provided further that if any Award is subject to Code Section 409A, this sentence shall only be given
effect to the extent consistent with Code Section 409A. The Committee or its delegate, in its sole discretion, may determine whether
Continuous Service shall be considered interrupted in the case of any approved leave of absence, including sick leave, military leave
or any other personal or family leave of absence. The Committee or its delegate, in its sole discretion, may determine whether a Company
transaction, such as a sale or spin-off of a division or Affiliate that employs a Participant, shall be deemed to result in a termination
of Continuous Service for purposes of affected Awards, and such decision shall be final, conclusive and binding.
“Deferred Stock Units (DSUs)”
has the meaning set forth in Section 5.1(b).
“Director” means
a member of the Board.
“Disability” means,
unless the applicable Award Agreement says otherwise, that the Participant is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment. The determination of whether an individual has a Disability shall
be determined under procedures established by the Committee. The Committee may rely on any determination that a Participant is disabled
for purposes of benefits under any long-term disability plan maintained by the Company or any Affiliate in which a Participant participates.
“Effective Date”
shall mean the date as of which this Plan is adopted by the Board.
“Employee” means
any person, including an Officer or Director, employed by the Company or an Affiliate. Mere service as a Director or payment of a director’s
fee by the Company or an Affiliate shall not be sufficient to constitute “employment” by the Company or an Affiliate.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Exercise Price”
means the price at which a share of Common Stock may be purchased upon the exercise of a Stock Option.
“Fair Market Value”
as of any date means: (i) if the Common Stock is listed on any established stock exchange or a national market system, including
without limitation, the New York Stock Exchange or the Nasdaq Stock Market, the Fair Market Value shall be the closing price of a share
of Common Stock (or if no sales were reported the closing price on the date immediately preceding such date) as quoted on such exchange
or system on the day of determination; or (ii) if the Common Stock is not then listed on an established stock exchange or a national
market system, the average of the highest reported bid and lowest reported asked prices for a share of Common Stock as reported by the
National Association of Securities Dealers, Inc. Automated Quotations System for the last preceding date on which there was a sale
of the Common Stock in such market. In the absence of an established market for the Common Stock, the Fair Market Value shall be determined
in good faith in a manner consistent with Code Section 409A by the Committee and such determination shall be conclusive and binding
on all persons.
“Fiscal Year” means
the Company’s fiscal year.
“Free Standing Rights”
has the meaning set forth in Section 4.
“Good Reason” means:
(a) the
definition of “good reason” or similar term used in the employment or service agreement between the Company or Affiliate and
Participant or any policy adopted by the Committee;
(b) if
(a) above does not apply, the definition set forth in the applicable Award Agreement; or
(c) if
neither (a) nor (b) applies, then:
(A) If an Employee or Consultant is
a party to an employment or service agreement with the Company or its Affiliates and such agreement provides for a definition of Good
Reason, the definition contained in such agreement; or
(B) If no such agreement exists or
if such agreement does not define Good Reason, the occurrence of one or more of the following without the Participant’s express
written consent, which circumstances are not remedied by the Company within 30 days of its receipt of a written notice from the Participant
describing the applicable circumstances (which notice must be provided by the Participant within 90 days of the Participant’s knowledge
of the applicable circumstances): (i) any material, adverse change in the Participant’s duties, responsibilities, authority,
title, status or reporting structure; (ii) a material reduction in the Participant’s base salary or bonus opportunity; or (iii) a
geographical relocation of the Participant’s principal office location by more than 50 miles.
“Grant Date” means
the date on which the Committee adopts a resolution, or takes other appropriate action, expressly granting an Award to a Participant that
specifies the key terms and conditions of the Award or, if a later date is set forth in such resolution, then such date as is set forth
in such resolution.
“Non-Employee Director”
means a Director who is a “non-employee director” within the meaning of Rule 16b-3.
“Officer” means a
person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder.
“Optionee” means
a person to whom a Stock Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Option.
“Other Equity-Based Award”
means an Award that is not a Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, or Performance Share Award
that is granted under Section 6 and is payable by delivery of Common Stock and/or which is measured by reference to the value of
Common Stock. Other Equity-Based Awards include, but are not limited to, phantom equity and immediately vested bonus shares.
“Participant” means
an eligible person to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Award.
“Performance Goals”
means, with respect to a Restricted Award or Cash Award, the business criteria or other performance measures determined by the Committee
in its discretion that must be satisfied as a condition of determining a Participant’s right to payment or settlement of such Award.
“Permitted Transferee”
means: (a) a member of the Optionee’s immediate family (child, stepchild, grandchild, parent, stepparent, grandparent, spouse,
former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships), any person sharing the Optionee’s household (other than a tenant or employee), a trust in which these persons
have more than 50% of the beneficial interest, a foundation in which these persons (or the Optionee) control the management of assets,
and any other entity in which these persons (or the Optionee) own more than 50% of the voting interests; (b) third parties designated
by the Committee in connection with a program established and approved by the Committee pursuant to which Participants may receive a cash
payment or other consideration in consideration for the transfer of a Stock Option; and (c) such other transferees as may be permitted
by the Committee in its sole discretion.
“Person” means a
person as defined in Section 13(d)(3) of the Exchange Act.
“Plan” means this
AMC Entertainment Holdings, Inc. 2024 Equity Incentive Plan, as amended and restated from time to time.
“Related Rights”
has the meaning set forth in Section 4.
“Restricted Award”
means an Award of Restricted Stock or Restricted Stock Unit granted pursuant to Section 5.
“Restricted Period”
has the meaning set forth in Section 5.
“Restricted Stock”
means Common Stock, subject to certain specified restrictions (including, without limitation, a requirement that the Participant provide
Continuous Service for a specified period of time).
“Restricted Stock Unit”
means an unfunded and unsecured promise to deliver shares of Common Stock, cash, other securities or other property, subject to certain
restrictions (including, without limitation, a requirement that the Participant provide Continuous Service for a specified period of time).
“Rule 16b-3”
means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time.
“Securities Act”
means the Securities Act of 1933, as amended.
“Stock Appreciation Right”
means the right pursuant to an Award granted under Section 4 to receive, upon exercise, an amount payable in cash or shares equal
to the number of shares subject to the Stock Appreciation Right that is being exercised multiplied by the excess of (a) the Fair
Market Value of a share of Common Stock on the date the Award is exercised, over (b) the exercise price specified in the Stock Appreciation
Right Award Agreement.
“Stock for Stock Exchange”
has the meaning set forth in Section 3.3.
“Stock Option” means
an option to acquire Common Stock that by its terms does not qualify or is not intended to qualify as an incentive stock option under
Code Section 422.
“Substitute Award” has
the meaning set forth in Section 2.5.
“Total Share Reserve”
has the meaning set forth in Section 2.1.
*******
As adopted by the Board of Directors of AMC Entertainment
Holdings, Inc. effective February 22, 2024.
As approved by the shareholders of AMC Entertainment
Holdings, Inc. on June 5, 2024.
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
AMC Entertainment Holdings, Inc.
(Exact name of registrant as specified in its charter)
Table 1 – Newly Registered Securities
| Security Type |
Security
Class Title |
Fee
Calculation Rule |
Amount
Registered (1) |
Proposed
Maximum Offering Price Per Unit |
Maximum
Aggregate Offering Price |
Fee
Rate |
Amount
of Registration Fee |
|
| |
|
Rule 457(c) and |
25,000,000(2) |
$4.74(3) |
$118,500,000 |
$147.60 per |
$17,490.60 |
|
| Equity |
Class A Common Stock |
Rule 457(h) |
|
$1,000,000 |
|
|
| |
|
|
| Total Offering Amounts |
$118,500,000 |
|
$17,490.60 |
|
| Total Fee Offsets |
|
|
$0 |
|
| Net Fee Due |
|
|
$17,490.60 |
|
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933 (the "Securities Act"),
this Registration Statement on Form S-8 (the “Registration Statement”) also covers an indeterminate number of
additional shares of Class A Common Stock (“Common Stock”), of AMC Entertainment Holdings, Inc. (the
“Company”) that may be offered and issued under the Company’s 2024 Equity Incentive Plan (the “Plan”)
to prevent dilution resulting from stock splits, stock distributions or similar transactions. |
| (2) | Represents shares of Common Stock issuable pursuant to the Plan. |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) of
the Securities Act, based upon the average of the high and low prices of the Common Stock of the Company on the New York Stock Exchange
on June 4, 2024. |
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