false
0001575793
0001575793
2024-06-12
2024-06-12
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
June 12, 2024
ENERGOUS CORPORATION
(Exact name of registrant as specified in its
charter)
| Delaware |
|
001-36379 |
|
46-1318953 |
|
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
3590
North First Street, Suite
210
San Jose, California 95134
(Address, including zip code, of principal executive
offices)
Registrant’s telephone number, including
area code: (408) 963-0200
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of
the Act:
|
Title of each
class registered |
|
Trading symbol(s) |
|
Name of each
exchange on which registered |
| Common Stock, par value $0.00001 per share |
|
WATT |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. ¨
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers. |
2024 Equity Incentive Plan
On June 12, 2024, Energous Corporation (the “Company”)
held its 2024 Annual Meeting of Stockholders (the “Annual Meeting”) as a virtual meeting online via live audio webcast, at
which the Company’s stockholders approved the 2024 Equity Incentive Plan (the “2024 Plan”). The 2024 Plan replaces the
following plans of the Company: (i) 2013 Equity Incentive Plan, (ii) 2014 Non-Employee Equity Compensation Plan, (iii) Performance Share
Unit Plan, and (iv) 2017 Equity Inducement Plan. The 2024 Plan became effective immediately upon stockholder approval at the Annual Meeting.
A summary of the material terms of the 2024 Plan is set forth in the
Company’s definitive proxy statement for the Annual Meeting filed with the Securities and Exchange Commission on April 26, 2024
(the “Proxy Statement”). The summaries of the 2024 Plan set forth above and in the Proxy Statement are qualified in their
entirety by reference to the full text of the 2024 Plan, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K,
and incorporated herein by reference.
Amended and Restated Employee Stock Purchase Plan
At the Annual Meeting, the Company’s stockholders approved an
amendment and restatement of the Company’s Employee Stock Purchase Plan (the “A&R ESPP”) to increase the total number
of shares of common stock available for issuance thereunder by 6,200 shares. The A&R ESPP became effective immediately upon stockholder
approval at the Annual Meeting.
A summary of the material terms of the A&R ESPP is set forth in
the Proxy Statement. The summaries of the A&R ESPP set forth above and in the Proxy Statement are qualified in their entirety by reference
to the full text of the A&R ESPP, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K, and incorporated herein
by reference.
Severance and Change in Control Agreement
On June 12, 2024, the Company entered into a Severance and Change in
Control Agreement with Mallorie Burak, the Company’s Chief Financial Officer and Interim Principal Executive Officer (the “CIC
Agreement”), which provides certain benefits to Ms. Burak upon certain termination events with the Company.
In the event of a Qualifying Termination (as defined in the CIC Agreement)
not in connection with a Change in Control (as defined in the CIC Agreement), in addition to other accrued benefits, Ms. Burak would be
entitled to receive the following severance benefits, subject to execution of a general release of claims: (i) a cash lump sum payment
of 12 months of then-current base salary and 100% of the target bonus, (ii) accelerated vesting of 50% of unvested equity awards (other
than awards that vest upon satisfaction of performance criteria), and (iii) 12 months of continued COBRA health coverage (collectively,
the “Severance Benefits”). In the event of a CIC Qualifying Termination (as defined in the CIC Agreement), subject to execution
of a general release of claims, Ms. Burak would be entitled to receive the same Severance Benefits as in a Qualifying Termination, except
that the accelerated vesting of equity awards would apply to 100% of all unvested equity awards. The CIC Agreement also contains certain
customary post-separation cooperation, non-competition, and non-disparagement provisions applicable to Ms. Burak.
The foregoing description of the CIC Agreement does not purport to
be complete and is subject to and qualified in its entirety by reference to the full text of the CIC Agreement, a copy of which is filed
as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
The Annual Meeting was held on June 12, 2014, as a virtual meeting
online via live audio webcast. At the Annual Meeting, there were 3,198,098 votes represented either in person or by proxy, or 52.57% of
the votes entitled to be cast at the Annual Meeting, which represented a quorum. The Company’s stockholders voted on, and approved,
the following proposals at the Annual Meeting:
Proposal
1. Election of three directors to the Board of Directors to serve until the 2025 Annual Meeting of Stockholders and until
their respective successors are elected and qualified.
| Nominee | |
Votes For | | |
Votes Withheld | | |
Broker Non-Votes | |
| Rahul Patel | |
| 820,561 | | |
| 222,759 | | |
| 2,154,778 | |
| J. Michael Dodson | |
| 825,941 | | |
| 217,379 | | |
| 2,154,778 | |
| David Roberson | |
| 819,029 | | |
| 224,291 | | |
| 2,154,778 | |
Proposal
2. Ratification of the appointment of BPM LLP as the Company’s independent registered public accounting firm for
the fiscal year ending December 31, 2024.
| Votes For | | |
Votes Against | | |
Abstentions | | |
Broker Non-Votes | |
| | 2,725,131 | | |
| 265,359 | | |
| 207,608 | | |
| — | |
Proposal
3. Approval of the Energous Corporation 2024 Equity Incentive Plan.
| Votes For | | |
Votes Against | | |
Abstentions | | |
Broker Non-Votes | |
| | 861,662 | | |
| 168,087 | | |
| 13,571 | | |
| 2,154,778 | |
Proposal
4. Approval of an amendment and restatement of the Energous Corporation Employee Stock Purchase Plan to increase the
total number of shares of common stock available for issuance thereunder by 6,200 shares.
| Votes For | | |
Votes Against | | |
Abstentions | | |
Broker Non-Votes | |
| | 863,806 | | |
| 168,716 | | |
| 10,798 | | |
| 2,154,778 | |
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
ENERGOUS CORPORATION |
| |
|
|
| Date: June 14, 2024 |
By: |
/s/ Mallorie Burak |
| |
Name: |
Mallorie Burak |
| |
Title: |
Interim Principal Executive Officer and Chief Financial Officer |
Exhibit 10.1
ENERGOUS CORPORATION
2024 EQUITY INCENTIVE PLAN
(Effective June 12, 2024)
Energous Corporation sets
forth herein the terms and conditions of its 2024 Equity Incentive Plan, as follows:
| 1. | PURPOSE and establishment |
1.1 Purpose
The Plan is intended to enhance
the Company’s and its Affiliates’ ability to attract and retain highly qualified officers, Non-Employee Directors, employees
and Consultants, and to motivate such officers, Non-Employee Directors, employees and Consultants to serve the Company and its Affiliates
and to expend maximum effort to improve the business results and earnings of the Company, by providing to such persons an opportunity
to acquire or increase a direct proprietary interest in the operations and future success of the Company. To this end, the Plan provides
for the grant of stock options, stock appreciation rights, restricted stock, restricted stock units, unrestricted stock, performance share
units, other share-based awards and cash awards. Any of these awards may, but need not, be made as performance incentives to reward attainment
of performance goals in accordance with the terms and conditions hereof. Stock options granted under the Plan may be non-qualified stock
options or incentive stock options, as provided herein.
1.2 Replacement
Plan
The Plan replaces the following
plans of the Company: (i) the Company’s 2013 Equity Incentive Plan, (ii) the Company’s 2014 Non-Employee Equity
Compensation Plan, (iii) the Company’s Performance Share Unit Plan, and (iv) the Company’s 2017 Equity Inducement
Plan (the “Inducement Plan,” and collectively with the other plans in clauses (i) through (iii), the “Prior
Plans”). The Prior Plans shall be frozen, and no further awards may be made under the Prior Plans on or after the Effective
Date (as defined in Section 2). However, the Prior Plans shall continue to govern the terms and conditions of outstanding awards
granted pursuant to the Prior Plans.
For purposes of interpreting
the Plan and related documents (including Award Agreements), the following definitions shall apply:
2.1 “Acquiror”
shall have the meaning set forth in Section 15.2.
2.2 “Affiliate”
means any company or other trade or business that “controls,” is “controlled by” or is “under common
control with” the Company within the meaning of Rule 405 of Regulation C under the Securities Act, including any Subsidiary.
2.3 “Annual
Incentive Award” means a cash-based Performance Award with a performance period that is the Company’s fiscal year or other
12-month (or shorter) performance period as specified under the terms and conditions of the Award as approved by the Committee.
2.4 “Award”
means a grant of an Option, SAR, RSU, Restricted Stock, Stock Award, Performance Award (including a Performance Share Unit), Other
Share-based Award or cash award under the Plan.
2.5 “Award
Agreement” means a written (including electronic) agreement between the Company and a Grantee, or notice from the Company or
an Affiliate to a Grantee that evidences and sets out the terms and conditions of an Award.
2.6 “Board”
means the Board of Directors of the Company.
2.7 “Business
Combination” shall have the meaning set forth in Section 15.2.
2.8 “Cause”
shall be defined as that term is defined in the Grantee’s offer letter or other applicable employment agreement, or, if there
is no such definition, “Cause” means, unless otherwise provided in the applicable Award Agreement: (i) the commission
of any act by the Grantee constituting financial dishonesty against the Company or its Affiliates (which act would be chargeable as a
crime under applicable law); (ii) the Grantee’s engaging in any other act of dishonesty, fraud, intentional misrepresentation,
moral turpitude, illegality or harassment that would (a) materially adversely affect the business or the reputation of the Company
or any of its Affiliates with their respective current or prospective customers, suppliers, lenders or other third parties with whom such
entity does or might do business or (b) expose the Company or any of its Affiliates to a risk of civil or criminal legal damages,
liabilities or penalties or reputational harm; (iii) the repeated failure by the Grantee to follow the directives of the Chief Executive
Officer of the Company or any of its Affiliates or the Board or other person to whom the Grantee directly reports; or (iv) any material
misconduct, violation of the Company’s or Affiliates’ policies or agreement to which the Grantee is subject, or willful and
deliberate non-performance of duty by the Grantee in connection with the business affairs of the Company or its Affiliates.
2.9 “Change
in Control” shall have the meaning set forth in Section 15.2.
2.10 “Code”
means the United States Internal Revenue Code of 1986.
2.11 “Committee”
means the Compensation Committee of the Board or any committee or other person or persons designated by the Board to administer the
Plan. The Board will cause the Committee to satisfy the applicable requirements of any securities exchange on which the Common Stock may
then be listed. For purposes of Awards to Grantees who are subject to Section 16 of the Exchange Act, Committee means all of the
members of the Committee who are “non-employee directors” within the meaning of Rule 16b-3 adopted under the Exchange
Act.
2.12 “Company”
means Energous Corporation, a Delaware Corporation, or any successor corporation.
2.13 “Common
Stock” means the common stock of the Company.
2.14 “Consultant”
means a consultant or advisor that provides bona fide services to the Company or any Affiliate and who qualifies as a consultant or
advisor under Form S-8.
2.15 “Disability”
shall be defined as that term is defined in the Grantee’s offer letter or other applicable employment agreement, or, if there
is no such definition, “Disability” means, unless otherwise provided in the applicable Award Agreement, the Grantee is unable
to perform each of the essential duties of such Grantee’s position by reason of a medically determinable physical or mental impairment
that is potentially permanent in character or that can be expected to last for a continuous period of not less than 12 months; provided,
however, that, with respect to rules regarding expiration of an Incentive Stock Option following termination of the Grantee’s
Service, “Disability” means “permanent and total disability” as set forth in Code Section 22(e)(3).
2.16 “Effective
Date” means the date the Plan was most recently approved by the Stockholders.
2.17 “Eligible
Prior Plans” shall have the meaning set forth in Section 4.1.
2.18 “Exchange Act” means the United States Securities Exchange Act of 1934.
2.19 “Fair
Market Value” of a Share as of a particular date means (i) if the Common Stock is listed on a national securities exchange,
the closing or last price of the Common Stock on the composite tape or other comparable reporting system for the applicable date, or if
the applicable date is not a trading day, the trading day immediately preceding the applicable date, or (ii) if the Common Stock
is not then listed on a national securities exchange, the closing or last price of the Common Stock quoted by an established quotation
service for over-the-counter securities, or (iii) if the Common Stock is not then listed on a national securities exchange or quoted
by an established quotation service for over-the-counter securities, or the value of the Common Stock is not otherwise determinable, such
value as determined by the Committee.
2.20 “Family
Member” means a person who is a spouse, former spouse, child, stepchild, grandchild, parent, stepparent, grandparent, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother, sister, brother-in-law or sister-in-law, including adoptive
relationships, of the applicable individual, any person sharing the applicable individual’s household (other than a tenant or employee),
a trust in which any one or more of these persons have more than 50% of the beneficial interest, a foundation in which any one or more
of these persons (or the applicable individual) control the management of assets, and any other entity in which one or more of these persons
(or the applicable individual) own more than 50% of the voting interests.
2.21 “Grant
Date” means the latest to occur of (i) the date as of which the Committee approves an Award, (ii) the date on which
the recipient of an Award first becomes eligible to receive an Award under Section 6 or (iii) such other date as may be specified
by the Committee in the Award Agreement.
2.22 “Grantee”
means a person who receives or holds an Award.
2.23 “Incentive
Stock Option” means an “incentive stock option” within the meaning of Code Section 422.
2.24 “Incumbent
Directors” shall have the meaning set forth in Section 15.2.
2.25 “Inducement
Plan” shall have the meaning set forth in Section 1.2.
2.26 “Non-Employee
Director” means a member of the Board or the board of directors of an Affiliate, in each case who is not an officer or employee
of the Company or any Affiliate.
2.27 “Non-qualified
Stock Option” means an Option that is not an Incentive Stock Option.
2.28 “Option”
means an option to purchase one or more Shares pursuant to the Plan.
2.29 “Option
Price” means the exercise price for each Share subject to an Option.
2.30 “Other
Share-based Awards” means Awards consisting of Share units, or other Awards, valued in whole or in part by reference to, or
otherwise based on, Common Stock, other than Options, SARs, RSUs, Restricted Stock, Stock Awards, or Performance Share Units.
2.31 “Performance
Award” means an Award made subject to the attainment of performance goals (as described in Section 12) over a performance
period of at least one year established by the Committee, and includes an Annual Incentive Award and Performance Share Units.
2.32 “Performance
Share Unit” means a bookkeeping entry reflecting the right to receive Shares or their cash equivalent subject to the satisfaction
of specified terms and conditions, including performance terms, awarded to a Grantee pursuant to Section 12.
2.33 “Person”
means an individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act.
2.34 “Plan”
means this Energous Corporation 2024 Equity Incentive Plan.
2.35 “Prior
Plans” shall have the meaning set forth in Section 1.2.
2.36 “Purchase
Price” means the purchase price for each Share pursuant to a grant of Restricted Stock or a Stock Award.
2.37 “Restricted
Period” shall have the meaning set forth in Section 10.1.
2.38 “Restricted
Stock” means restricted Shares that are subject to specified terms and conditions, awarded to a Grantee pursuant to Section 10.
2.39 “Restricted
Stock Unit” or “RSU” means a bookkeeping entry representing the right to receive Shares or their cash equivalent
subject to the satisfaction of specified terms and conditions, awarded to a Grantee pursuant to Section 10.
2.40 “SAR
Exercise Price” means the per Share exercise price of a SAR granted to a Grantee under Section 9.
2.41 “SEC”
means the United States Securities and Exchange Commission.
2.42 “Section 409A”
means Code Section 409A.
2.43 “Securities
Act” means the United States Securities Act of 1933.
2.44 “Separation
from Service” means the termination of a Service Provider’s Service, whether initiated by the Service Provider or the
Company or an Affiliate; provided that if any Award governed by Section 409A is to be distributed on a Separation from Service,
then the definition of Separation from Service for such purposes shall comply with the definition provided in Section 409A.
2.45 “Service”
means service as a Service Provider to the Company or an Affiliate. Unless otherwise provided in the applicable Award Agreement, a
Grantee’s change in position or duties shall not result in interrupted or terminated Service, so long as such Grantee continues
to be a Service Provider to the Company or an Affiliate.
2.46 “Service
Provider” means an employee, officer, Non-Employee Director or Consultant of the Company or an Affiliate.
2.47 “Share”
means a share of Common Stock.
2.48 “Stock
Appreciation Right” or “SAR” means a right granted to a Grantee pursuant to Section 9.
2.49 “Stock
Award” means an Award of Shares of Common Stock granted to a Grantee pursuant to Section 10.
2.50 “Stockholder”
means a stockholder of the Company.
2.51 “Subsidiary”
means any “subsidiary corporation” of the Company within the meaning of Code Section 424(f).
2.52 “Substitute
Award” means any Award granted in assumption of or in substitution for an award of a company or business acquired by the Company
or an Affiliate or with which the Company or an Affiliate combines.
2.53 “Ten
Percent Stockholder” means an individual who owns more than 10% of the total combined voting power of all classes of outstanding
stock of the Company, its parent or any of its Subsidiaries. In determining stock ownership, the attribution rules of Code Section 424(d) shall
be applied.
2.54 “Termination
Date” means the tenth anniversary of the date of initial Board adoption of the Plan, unless the Plan is earlier terminated by
the Board under Section 5.2.
2.55 “Voting
Securities” shall have the meaning set forth in Section 15.2.
| 3. | ADMINISTRATION OF THE PLAN |
3.1 General
The Board shall have such
powers and authorities related to the administration of the Plan as are consistent with the Company’s certificate of incorporation
and bylaws and applicable law. The Board shall have the power and authority to delegate its responsibilities hereunder to the Committee,
which shall have full authority to act in accordance with its charter, and with respect to the power and authority of the Board to act
hereunder, all references to the Board shall be deemed to include a reference to the Committee, unless such power or authority is specifically
reserved by the Board. Except as specifically provided in Section 14 or as otherwise may be required by applicable law, regulatory
requirement or the certificate of incorporation or the bylaws of the Company, the Board shall have full power and authority to take all
actions and to make all determinations required or provided for under the Plan, any Award or any Award Agreement, and shall have full
power and authority to take all such other actions and make all such other determinations not inconsistent with the specific terms and
conditions of the Plan that the Board deems to be necessary or appropriate to the administration of the Plan. The Committee shall administer
the Plan; provided that, the Board shall retain the right to exercise the authority of the Committee to the extent consistent with
applicable law and the applicable requirements of any securities exchange on which the Common Stock may then be listed. All actions, determinations
and decisions by the Board or the Committee under the Plan, any Award or any Award Agreement shall be in the Board’s (or the Committee’s,
as applicable) sole discretion and shall be final, binding and conclusive. Without limitation, the Committee shall have full and final
power and authority, subject to the other terms and conditions of the Plan, to:
(i)
designate Grantees;
(ii)
determine the type or types of Awards to be made to Grantees;
(iii)
determine the number of Shares to be subject to an Award;
(iv)
establish the terms and conditions of each Award, including the
Option Price of any Option, the nature and duration of any restriction or condition (or provision for lapse thereof) relating to the
vesting, exercise, transfer or forfeiture of an Award or the Shares subject thereto and any terms or conditions that may be
necessary to qualify Options as Incentive Stock Options;
(v)
prescribe the form of each Award Agreement;
(vi)
amend, modify or supplement the terms or conditions of any
outstanding Award including the authority, in order to effectuate the purposes of the Plan, to modify Awards to foreign nationals or
individuals who are employed outside the United States to recognize differences in local law, tax policy or custom; and
(vii)
interpret and construe the Plan and any Award Agreement and establish such
rules and regulations as it shall determine appropriate for the proper administration of the Plan.
To the extent permitted by
applicable law, the Board or the Committee may delegate its authority as identified herein to any individual or committee of individuals
(who need not be directors), including the authority to make Awards to Grantees who are not subject to Section 16 of the Exchange
Act. To the extent that the Board or the Committee delegates its authority to make Awards as provided by this Section 3.1,
all references in the Plan to the Board’s or the Committee’s authority to make Awards and determinations with respect thereto
shall be deemed to include the Board’s or the Committee’s delegate. Any such delegate shall serve at the pleasure of, and
may be removed at any time by, the Board or the Committee.
3.2 No
Repricing
Notwithstanding any provision
herein to the contrary, the repricing of Options or SARs is prohibited without prior approval of the Stockholders. For this purpose, a
“repricing” means any of the following (or any other action that has the same effect as any of the following): (i) changing
the terms of an Option or SAR to lower its Option Price or SAR Exercise Price; (ii) any other action that is treated as a “repricing”
under generally accepted accounting principles; and (iii) repurchasing for cash or canceling an Option or SAR at a time when its
Option Price or SAR Exercise Price is greater than the Fair Market Value of the underlying Shares in exchange for another award, unless
the cancellation and exchange occurs in connection with a change in capitalization or similar change under Section 15. A cancellation
and exchange under clause (iii) would be considered a “repricing” regardless of whether it is treated as a “repricing”
under generally accepted accounting principles and regardless of whether it is voluntary on the part of the Grantee.
3.3 Award
Agreements; Clawbacks
The grant of any Award may
be contingent upon the Grantee executing the appropriate Award Agreement. The Company may retain the right in an Award Agreement to cause
a forfeiture of the gain realized by a Grantee on account of actions taken by the Grantee in violation or breach of or in conflict with
any employment agreement, non-competition agreement, any agreement prohibiting solicitation of employees or clients of the Company or
any Affiliate thereof or any confidentiality obligation with respect to the Company or any Affiliate thereof, or otherwise in competition
with the Company or any Affiliate thereof, to the extent specified in such Award Agreement applicable to the Grantee. Furthermore, the
Company may annul an Award if the Grantee is terminated for Cause.
All awards, amounts or benefits
received or outstanding under the Plan shall be subject to clawback, cancellation, recoupment, rescission, payback, reduction or other
similar action in accordance with the terms of any Company clawback or similar policy or any applicable law related to such actions, as
may be in effect from time to time. A Grantee’s acceptance of an Award shall be deemed to constitute (i) the Grantee’s
acknowledgement of and consent to the Company’s application, implementation and enforcement of any applicable Company clawback or
similar policy that may apply to the Grantee, whether adopted prior to or following the Effective Date, and any provision of applicable
law relating to clawback, cancellation, recoupment, rescission, payback or reduction of compensation, and (ii) the Grantee’s
agreement that the Company may take such actions as may be necessary to effectuate any such policy or applicable law, without further
consideration or action.
3.4 Trading
Policy and Other Restrictions
Transactions involving Awards
are subject to the Company’s insider trading policy and other restrictions, terms, conditions and policies, as may be established
by the Company (including the Board or a committee of the Board) from time to time or as may be required by applicable law.
3.5 Deferral
Arrangement
The Committee may permit or
require the deferral of any Award payment into a deferred compensation arrangement, subject to such rules and procedures as it may
establish and in accordance with Section 409A, which may include provisions for the payment or crediting of interest or dividend
equivalents, including converting such credits into deferred Share units.
3.6 Change
in Service; Leave of Absence
Subject to applicable law,
the Company’s chief human resources officer or other person performing that function shall be authorized to determine the effect
on Awards of a Grantee’s leave of absence or change in hours of employment or service. Notwithstanding the foregoing, any such determinations
made with respect to individuals subject to reporting with the SEC under Section 16 of the Exchange Act shall be made by the Committee.
3.7 No
Liability
No member of the Board or
of the Committee shall be liable for any action or determination made in good faith with respect to the Plan, any Award or Award Agreement.
3.8 Book
Entry
Notwithstanding any other
provision of the Plan to the contrary, the Company may elect to satisfy any requirement under the Plan for the delivery of stock certificates
through the use of book entry.
| 4. | STOCK SUBJECT TO THE PLAN |
4.1 Authorized
Number of Shares
Subject to adjustment under
Section 15, the aggregate number of Shares authorized to be issued under the Plan is:
(i) 456,000
shares; plus
(ii) any
shares previously authorized under the Prior Plans, other than any shares authorized under the Inducement Plan (such Prior Plans, excluding
the Inducement Plan, the “Eligible Prior Plans”) that, on the Effective Date, have not been granted under the Eligible
Prior Plans and are not, as of the Effective Date, subject to outstanding awards thereunder; plus
(iii) any Shares subject to outstanding awards under the Eligible Prior Plans that, on or after the Effective Date, subsequently
lapse, expire, terminate or are canceled prior to the issuance of Shares thereunder, which shares shall cease to set aside or
reserved for issuance pursuant to the applicable Eligible Prior Plan on the date on which they cease to be subject to such awards
and shall instead be set aside and reserved for issuance pursuant to Awards under the Plan; the aggregate maximum number of Shares
that may become available for grant from the Eligible Prior Plans pursuant to clauses (ii) and (iii) of this Section 4.1
is 289,687.
Shares issued under the Plan
may consist in whole or in part of authorized but unissued Shares, treasury Shares or Shares purchased on the open market or otherwise,
all as may be determined by the Board from time to time.
4.2 Share
Counting
4.2.1. General
Each Share granted in connection
with an Award shall be counted as one Share against the limit in Section 4.1, subject to the provisions of this Section 4.2.
4.2.2. Cash-Settled
Awards
Any Award paid or settled
in cash shall not be counted as issued Shares for any purpose under the Plan.
4.2.3. Expired
or Terminated Awards
If any Award expires, or is
terminated, surrendered or forfeited, in whole or in part, the unissued Shares covered by such Award shall again be available for the
grant of Awards. Any Shares under a Restricted Stock Award that are repurchased or forfeited to the Company shall similarly again be available
for the grant of Awards.
4.2.4. Payment
of Option Price or Tax Withholding in Shares
If Shares issuable upon exercise,
vesting or settlement of an Award, or Shares owned by a Grantee (which are not subject to any pledge or other security interest) are surrendered
or tendered to the Company in payment of the Option Price or Purchase Price of an Award or any taxes required to be withheld in respect
of an Award, in each case, in accordance with the terms and conditions of the Plan and any applicable Award Agreement, such surrendered
or tendered Shares shall not again be available for the grant of Awards. For a stock-settled SAR, the gross number of Shares for which
the SAR is exercised shall be counted against the limit in Section 4.1.
4.2.5. Substitute
Awards
Substitute Awards shall not
be counted against the number of Shares reserved under the Plan.
4.3 Award
Limits
4.3.1. Incentive
Stock Options
Subject to adjustment under
Section 15, 456,000 Shares available for issuance under the Plan shall be available for issuance as Incentive Stock Options.
4.3.2. Individual
Award Limits for Share-Based Awards
Subject to adjustment under
Section 15, the maximum number of Shares subject to each type of Award (other than cash-based Performance Awards) that may
be granted to any Grantee in any calendar year shall not exceed the following number of Shares: (i) Options and SARs: 75,000 Shares;
and (ii) all other share-based Awards (including Restricted Stock, RSUs, Stock Awards, Performance Share Units and Other Share-based
Awards): 75,000 Shares, each limit to apply independently of the other.
4.3.3. Individual
Award Limits for Cash-Based Awards
The maximum amount of cash-based
Performance Awards that may be granted to any Grantee in any calendar year shall not exceed the following: (i) Annual Incentive Awards:
$1.0 million; and (ii) all other cash-based Performance Awards: $1.0 million.
4.3.4. Limits
on Awards to Non-Employee Directors
The maximum value of Awards
granted during any calendar year to any Non-Employee Director, taken together with any cash fees paid to such Non-Employee Director during
the calendar year and the value of awards granted to the Non-Employee Director under any other equity compensation plan of the Company
or an Affiliate during the calendar year, shall not exceed the following in total value: (i) $500,000 for the Chair of the Board
and (ii) $300,000 for each Non-Employee Director other than the Chair of the Board; provided, however, that awards
granted to Non-Employee Directors upon their initial election to the Board or the board of directors of an Affiliate shall not be counted
towards the limit under this Section 4.3.4. Any Awards or other equity compensation plan awards that are scheduled to vest
over a period of more than one calendar year shall be applied pro rata for purposes of the limit under this Section 4.3.4
based on the number of years over which such awards are scheduled to vest. For purposes of this Section 4.3.4, the value of
any Awards shall be calculated based on the average of the closing trading prices of the Common Stock on the principal stock exchange
for such Common Stock during the 30 consecutive trading days immediately preceding the date the Award is granted.
| 5. | EFFECTIVE DATE, DURATION AND AMENDMENTS |
5.1 Term
The Plan shall be effective
as of the Effective Date, provided that it has been approved by the Stockholders. The Plan shall terminate automatically on the
Termination Date and may be terminated on any earlier date as provided in Section 5.2.
5.2 Amendment
and Termination of the Plan
The Board may, at any time
and from time to time, amend, suspend or terminate the Plan as to any Awards that have not been made. An amendment shall be contingent
on approval of the Stockholders to the extent stated by the Board, required by applicable law or required by applicable securities exchange
listing requirements. No Awards shall be made after the Termination Date. The applicable terms and conditions of the Plan, and any terms
and conditions applicable to Awards granted prior to the Termination Date shall survive the termination of the Plan and continue to apply
to such Awards. No amendment, suspension or termination of the Plan shall, without the consent of the Grantee, materially impair rights
or obligations under any Award theretofore awarded; provided that the Awards may be amended without the consent of the Grantee to comply
with applicable law or to clarify the manner of exemption from, or to bring an Award into compliance with, Section 409A.
| 6. | AWARD ELIGIBILITY AND LIMITATIONS |
6.1 Service
Providers
Subject to this Section 6.1,
Awards may be made to any Service Provider as the Committee may determine and designate from time to time.
6.2 Successive
Awards
An eligible person may receive
more than one Award, subject to such restrictions as are provided herein.
6.3 Stand-Alone,
Additional, Tandem, and Substitute Awards
Awards may be granted either
alone or in addition to, in tandem with or in substitution or exchange for, any other Award or any award granted under another plan of
the Company, any Affiliate or any business entity to be acquired by the Company or an Affiliate, or any other right of a Grantee to receive
payment from the Company or any Affiliate. Such additional, tandem or substitute or exchange Awards may be granted at any time. If an
Award is granted in substitution or exchange for another award, the Committee shall have the right to require the surrender of such other
award in consideration for the grant of the new Award. Subject to the requirements of applicable law, the Committee may make Awards in
substitution or exchange for any other award under another plan of the Company, any Affiliate or any business entity to be acquired by
the Company or an Affiliate. In addition, Awards may be granted in lieu of cash compensation, including in lieu of cash amounts payable
under other plans of the Company or any Affiliate, in which the value of Shares subject to the Award is equivalent in value to the cash
compensation (for example, RSUs or Restricted Stock).
The grant of any Award may
be contingent upon the Grantee executing an appropriate Award Agreement, in such form or forms as the Committee shall from time to time
determine. Without limiting the foregoing, an Award Agreement may be provided in the form of a notice that provides that acceptance of
the Award constitutes acceptance of all terms and conditions of the Plan and the notice. Award Agreements granted from time to time or
at the same time need not contain similar provisions but shall be consistent with the terms and conditions of the Plan. The Company has
no obligation for uniformity of treatment of Grantees under the Plan. Each Award Agreement evidencing an Award of Options shall specify
whether such Options are intended to be Non-qualified Stock Options or Incentive Stock Options, and in the absence of such specification
such options shall be deemed Non-qualified Stock Options.
| 8. | TERMS AND CONDITIONS OF OPTIONS |
8.1 Option
Price
The Option Price of each Option
shall be fixed by the Committee and stated in the related Award Agreement. The Option Price of each Option (except those that constitute
Substitute Awards) shall be at least the Fair Market Value on the Grant Date; provided, however, that in the event that
a Grantee is a Ten Percent Stockholder as of the Grant Date, the Option Price of an Option granted to such Grantee that is intended to
be an Incentive Stock Option shall be not less than 110% of the Fair Market Value on the Grant Date. In no case shall the Option Price
of any Option be less than the par value of a Share.
8.2 Vesting
Subject to Section 8.3,
each Option shall become exercisable at such times and under such conditions (including performance requirements) as stated in the Award
Agreement.
8.3 Term
Each Option shall terminate,
and all rights to purchase Shares thereunder shall cease 10 years from the Grant Date, or under such circumstances and on such date
prior thereto as is set forth in the Plan or as may be fixed by the Committee and stated in the related Award Agreement; provided,
however, that in the event that the Grantee is a Ten Percent Stockholder, an Option granted to such Grantee that is intended to
be an Incentive Stock Option at the Grant Date shall not be exercisable after the expiration of five years from its Grant Date.
8.4 Limitations
on Exercise of Option
Notwithstanding any other
provision of the Plan, in no event may any Option be exercised, in whole or in part, (i) prior to the date the Plan is approved by
the Stockholders as provided herein or (ii) after the occurrence of an event that results in termination of the Option.
8.5 Method
of Exercise
An Option that is exercisable
may be exercised by the Grantee’s delivery of a notice of exercise to the Company, setting forth the number of Shares with respect
to which the Option is to be exercised, accompanied by full payment for the Shares. To be effective, notice of exercise must be made in
accordance with procedures established by the Company from time to time.
8.6 Rights
of Holders of Options
Unless otherwise provided
in the applicable Award Agreement, an individual holding or exercising an Option shall have none of the rights of a Stockholder (for example,
the right to receive cash or dividend payments or distributions attributable to the subject Shares or to direct the voting of the subject
Shares) until the Shares covered thereby are fully paid and issued to him. Except as provided in Section 15 or the related
Award Agreement, no adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date
of such issuance.
8.7 Delivery
of Stock Certificates
Subject to Section 3.6,
promptly after the exercise of an Option by a Grantee and the payment in full of the Option Price and applicable tax withholding, such
Grantee shall be entitled to the issuance of a stock certificate or certificates evidencing his or her ownership of the Shares subject
to the Option.
8.8 Limitations
on Incentive Stock Options
An Option shall constitute
an Incentive Stock Option only (i) if the Grantee is an employee of the Company or any Subsidiary as of the Grant Date, (ii) to
the extent specifically provided in the related Award Agreement and (iii) to the extent that the aggregate Fair Market Value (determined
at the time the Option is granted) with respect to which all Incentive Stock Options held by such Grantee become exercisable for the first
time during any calendar year (under the Plan and all other plans of the Grantee’s employer and its Affiliates) does not exceed
$100,000. This limitation shall be applied by taking Options into account in the order in which they were granted.
| 9. | TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS |
9.1 Right
to Payment
A SAR shall confer on the
Grantee a right to receive, upon exercise thereof, the excess of (i) the Fair Market Value on the date of exercise over (ii) the
SAR Exercise Price, as determined by the Committee. The Award Agreement for a SAR (except those that constitute Substitute Awards) shall
specify the SAR Exercise Price, which shall be fixed on the Grant Date as not less than the Fair Market Value on that date. SARs may be
granted alone or in conjunction with all or part of an Option or at any subsequent time during the term of such Option or in conjunction
with all or part of any other Award. A SAR granted in tandem with an outstanding Option following the Grant Date of such Option shall
have a grant price that is equal to the Option Price; provided, however, that the SAR’s grant price may not be less
than the Fair Market Value on the Grant Date of the SAR to the extent required by Section 409A.
9.2 Other
Terms
The Committee shall determine
the time or times at which and the circumstances under which a SAR may be exercised in whole or in part (including based on achievement
of performance goals and/or future service requirements), the time or times at which SARs shall cease to be or become exercisable following
Separation from Service or upon other conditions, the method of exercise, whether or not a SAR shall be in tandem or in combination with
any other Award and any other terms and conditions of any SAR.
9.3 Term
of SARs
The term of a SAR shall be
determined by the Committee; provided, however, that such term shall not exceed 10 years.
9.4 Payment
of SAR Amount
Upon exercise of a SAR, a
Grantee shall be entitled to receive payment from the Company (in cash or Shares, as determined by the Committee) in an amount determined
by multiplying (i) the difference between the Fair Market Value on the date of exercise over the SAR Exercise Price; by (ii) the
number of Shares with respect to which the SAR is exercised.
| 10. | TERMS AND CONDITIONS OF STOCK AWARDS, RESTRICTED STOCK AND
RESTRICTED STOCK UNITS |
10.1 Restrictions
The Committee may grant Stock
Awards, Restricted Stock and Restricted Stock Units on such terms and conditions as the Committee shall determine in its sole discretion.
At the time of grant, the Committee may establish a period of time (a “Restricted Period”) and any additional restrictions
including the satisfaction of corporate or individual performance objectives applicable to an Award of Restricted Stock or RSUs. Each
Award of Restricted Stock or RSUs may be subject to a different Restricted Period and additional restrictions. Neither Restricted Stock
nor RSUs may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of during the Restricted Period or prior to the
satisfaction of any other applicable restrictions.
10.2 Restricted
Stock Certificates
The Company shall issue Shares,
in the name of each Grantee to whom a Stock Award or Restricted Stock has been granted, stock certificates or other evidence of ownership
representing the total number of Shares under the Award granted to the Grantee, as soon as reasonably practicable after the Grant Date.
The Committee may provide in an Award Agreement that either (i) the Secretary of the Company shall hold such certificates for the
Grantee’s benefit until such time as the Restricted Stock is forfeited to the Company or the restrictions lapse, or (ii) such
certificates shall be delivered to the Grantee; provided, however, that such certificates shall bear a legend or legends
that comply with the applicable securities laws and regulations and make appropriate reference to the restrictions imposed under the Plan
and the Award Agreement.
10.3 Rights
of Holders of Restricted Stock
Unless the otherwise provided
in the applicable Award Agreement, holders of Stock Awards and Restricted Stock shall have rights as Stockholders, including voting and
dividend rights.
10.4 Rights
of Holders of RSUs
10.4.1. Settlement
of RSUs
RSUs may be settled in cash,
in Shares or in a combination thereof, as determined by the Committee and set forth in the Award Agreement. The Award Agreement shall
also set forth whether the RSUs shall be settled (i) within the time period specified for “short term deferrals” under
Section 409A or (ii) otherwise within the requirements of Section 409A, in which case the Award Agreement shall specify
upon which events such RSUs shall be settled.
10.4.2. Voting
and Dividend Rights
Unless otherwise provided
in the applicable Award Agreement, holders of RSUs shall not have rights as Stockholders, including voting or dividend or dividend equivalents
rights.
10.5 Purchase
of Restricted Stock
The Grantee shall be required,
to the extent required by applicable law, to purchase Shares under a Stock Award or an Award of Restricted Stock from the Company at a
Purchase Price equal to the greater of (i) the aggregate par value of the Shares subject to such Award or (ii) the Purchase
Price, if any, specified in the related Award Agreement. If specified in the Award Agreement, the Purchase Price may be deemed paid by
Services already rendered. The Purchase Price shall be payable in a form described in Section 11 or, if so determined by the
Committee, in consideration for past Services rendered.
10.6 Delivery
of Shares
Upon the expiration or termination
of any Restricted Period and the satisfaction of any other conditions prescribed by the Committee, the restrictions applicable to Shares
of Restricted Stock or RSUs settled in Shares shall lapse, and, unless otherwise provided in the applicable Award Agreement, a stock certificate
for such Shares shall be delivered, free of all such restrictions, to the Grantee or the Grantee’s beneficiary or estate, as the
case may be.
| 11. | FORM OF PAYMENT FOR OPTIONS, STOCK AWARDS AND RESTRICTED
STOCK |
11.1 General
Rule
Payment of the Option Price
for the Shares purchased pursuant to the exercise of an Option or the Purchase Price for a Stock Award or Restricted Stock shall be made
in cash or in cash equivalents acceptable to the Company, except as provided in this Section 11.
11.2 Surrender
of Shares
To the extent the Award Agreement
so provides, payment of the Option Price for Shares purchased pursuant to the exercise of an Option or the Purchase Price for a Stock
Award or Restricted Stock may be made all or in part through the tender to the Company of Shares, which Shares shall be valued, for purposes
of determining the extent to which the Option Price or the Purchase Price for a Stock Award or Restricted Stock has been paid, at their
Fair Market Value on the date of exercise or surrender. Notwithstanding the foregoing, in the case of an Incentive Stock Option, the right
to make payment in the form of already-owned Shares may be authorized only at the time of grant.
11.3 Cashless
Exercise
With respect to an Option
only (and not with respect to Restricted Stock), to the extent permitted by law and to the extent the Award Agreement so provides, payment
of the Option Price may be made all or in part by delivery (on a form acceptable to the Company) of an irrevocable direction to a licensed
securities broker acceptable to the Company to sell Shares and to deliver all or part of the sales proceeds to the Company in payment
of the Option Price and any withholding taxes described in Section 17.3.
11.4 Other
Forms of Payment
To the extent the Award Agreement
so provides, payment of the Option Price or the Purchase Price for Restricted Stock may be made in any other form that is consistent with
applicable laws, regulations and rules, including the Company’s withholding of Shares otherwise due to the exercising Grantee.
| 12. | TERMS AND CONDITIONS PERFORMANCE SHARE UNITS and other performance
awards |
12.1 Performance
Conditions
The right of a Grantee to
exercise or receive a grant or settlement of any Award, and the timing thereof, may be subject to such performance conditions during a
prescribed performance period as may be specified by the Committee. The Committee may use such business criteria and other measures of
performance as it may deem appropriate in establishing any performance conditions.
12.2 Performance
Goals Generally
The performance goals for
Performance Share Units and other Performance Awards shall consist of one or more business criteria and a targeted level or levels of
performance with respect to each of such criteria, as specified by the Committee consistent with this Section 12.2. The Committee
may determine that Performance Awards shall be granted, exercised and/or settled upon achievement of any one performance goal or that
two or more of the performance goals must be achieved as a condition to grant, exercise and/or settlement of the Performance Share Awards
and other Performance Awards. Performance goals may be established on a Company-wide basis, or with respect to one or more business units,
divisions, Affiliates or business segments, as applicable. Performance goals may be absolute or relative (to the performance of one or
more comparable companies or indices). The Committee may determine at the time that goals under this Section 12 are established
the extent to which measurement of performance goals may exclude the impact of charges for restructuring, discontinued operations, extraordinary
items, debt redemption or retirement, asset write downs, litigation or claim judgments or settlements, acquisitions or divestitures, foreign
exchange gains and losses and other extraordinary, unusual, infrequently occurring or non-recurring items, and the cumulative effects
of tax or accounting changes (each as defined by generally accepted accounting principles and as identified in the Company’s financial
statements or other SEC filings). Performance goals may differ for Performance Awards granted to any one Grantee or to different Grantees.
12.3 Business
Criteria
One or more of the following
business criteria for the Company, on a consolidated basis, and/or specified Affiliates or business units of the Company (except with
respect to the total stockholder return and earnings per share criteria), may be used by the Committee in establishing performance goals
for Performance Awards: (i) cash flow; (ii) earnings per share, as adjusted for any stock split, stock dividend or other recapitalization;
(iii) earnings measures (including EBIT and EBITDA)); (iv) return on equity; (v) total stockholder return; (vi) share
price performance, as adjusted for any stock split, stock dividend or other recapitalization; (vii) return on capital; (viii) revenue;
(ix) income; (x) profit margin; (xi) return on operating revenue; (xii) brand recognition or acceptance; (xiii) customer
metrics (including customer satisfaction, customer retention, customer profitability or customer contract terms); (xiv) productivity;
(xv) expense targets; (xvi) market share; (xvii) cost control measures; (xviii) balance sheet metrics; (xix) strategic
initiatives; (xx) implementation, completion or attainment of measurable objectives with respect to recruitment or retention of personnel
or employee satisfaction; (xxi) return on assets; (xxii) growth in net sales; (xxiii) the ratio of net sales to net working
capital; (xxiv) stockholder value added; (xxv) improvement in management of working capital items (inventory, accounts receivable
or accounts payable); (xxvi) sales from newly-introduced products; (xxvii) successful completion of, or achievement of milestones
or objectives related to, financing or capital raising transactions, strategic acquisitions or divestitures, joint ventures, partnerships,
collaborations or other transactions; (xxviii) product quality, safety, productivity, yield or reliability (on time and complete
orders); (xxix) funds from operations; (xxx) regulatory body approval for commercialization of a product; (xxxi) debt levels
or reduction or debt ratios; (xxxii) economic value; (xxxiii) operating efficiency; (xxxiv) research and development achievements;
(xxxvi) any other metric that is capable of measurement by the Committee; or (xxxv) any combination of the forgoing business
criteria; provided, however, that such business criteria shall include any derivations of business criteria listed above
(e.g., income shall include pre-tax income, net income and operating income).
12.4 Settlement
of Performance Awards; Other Terms
Settlement of Performance
Awards may be in cash, Shares, other Awards or other property, as determined by the Committee. The Committee may reduce the amount of
a settlement otherwise to be made in connection with Performance Awards.
12.5 Written
Determinations
Following the completion of
a performance period applicable to a Performance Award, the Committee shall determine whether, and to what extent, the performance goals
for the performance period have been achieved and, if so, calculate the amount of the Performance Awards earned for the performance period.
All determinations by the Committee as to the establishment of performance goals, the amount of any Performance Award pool or individual
Performance Awards and as to the achievement of performance goals relating to Performance Awards, shall be made in writing.
| 13. | OTHER SHARE-BASED AWARDS |
13.1 Grant
of Other Share-based Awards
Other Share-based Awards may
be granted either alone or in addition to or in conjunction with other Awards. Other Share-based Awards may be granted in lieu of other
cash or other compensation to which a Service Provider is entitled from the Company or may be used in the settlement of amounts payable
in Shares under any other compensation plan or arrangement of the Company. Subject to the provisions of the Plan, the Committee shall
have the authority to determine the persons to whom and the time or times at which such Awards will be made, the number of Shares to be
granted pursuant to such Awards, and all other terms and conditions of such Awards. Unless the Committee determines otherwise, any such
Award shall be confirmed by an Award Agreement, which shall contain such provisions as the Committee determines to be necessary or appropriate
to carry out the intent of the Plan with respect to such Award.
13.2 Terms
of Other Share-based Awards
Any Common Stock subject to
Awards made under this Section 13 may not be sold, assigned, transferred, pledged or otherwise encumbered prior to the date
on which the Shares are issued, or, if later, the date on which any applicable restriction, performance or deferral period lapses.
14.1 General
The Company shall not be required
to sell or issue any Shares under any Award if the sale or issuance of such Shares would constitute a violation by the Grantee, any other
person or the Company of any provision of any law or regulation of any governmental authority, including any federal or state securities
laws or regulations. If at any time the Committee determines that the listing, registration or qualification of any Shares subject to
an Award upon any securities exchange or under any governmental regulatory body is necessary or desirable as a condition of, or in connection
with, the issuance or purchase of Shares hereunder, no Shares may be issued or sold to the Grantee or any other individual under an Award,
including pursuant to an Option exercise, unless such listing, registration, qualification, consent or approval shall have been effected
or obtained free of any conditions not acceptable to the Company, and any delay caused thereby shall in no way affect the date of termination
of the Award. Specifically, in connection with the Securities Act, upon the exercise of any Option or the delivery of any Shares underlying
an Award, unless a registration statement under such Act is in effect with respect to the Shares covered by such Award, the Company shall
not be required to sell or issue such Shares unless the Committee has received evidence satisfactory to it that the Grantee or any other
individual exercising an Option may acquire such Shares pursuant to an exemption from registration under the Securities Act. The Company
may, but shall in no event be obligated to, register any securities covered hereby pursuant to the Securities Act. The Company shall not
be obligated to take any affirmative action in order to cause the exercise of an Option or the issuance of Shares pursuant to the Plan
to comply with any law or regulation of any governmental authority. As to any jurisdiction that expressly imposes the requirement that
an Option shall not be exercisable until the Shares covered by such Option are registered or are exempt from registration, the exercise
of such Option (under circumstances in which the laws of such jurisdiction apply) shall be deemed conditioned upon the effectiveness of
such registration or the availability of such an exemption.
14.2 Rule 16b-3
During any time when the Company
has a class of equity security registered under Section 12 of the Exchange Act, it is the intent of the Company that Awards and the
exercise of Options granted hereunder will qualify for the exemption provided by Rule 16b-3 under the Exchange Act. To the extent
that any provision of the Plan or action by the Board or Committee does not comply with the requirements of Rule 16b-3, it shall
be deemed inoperative to the extent permitted by law and deemed advisable by the Committee, and shall not affect the validity of the Plan.
In the event that Rule 16b-3 is revised or replaced, the Committee may modify the Plan in any respect necessary to satisfy the requirements
of, or to take advantage of any features of, the revised exemption or its replacement.
| 15. | EFFECT OF CHANGES IN CAPITALIZATION |
15.1 Adjustments
for Changes in Capital Structure
Subject to any required action
by the Stockholders, in the event of any change in the Shares effected without receipt of consideration by the Company, whether through
merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock
split, split-up, split-off, spin-off, combination of shares, exchange of shares or similar change in the capital structure of the Company,
or in the event of payment of a dividend or distribution to the Stockholders in a form other than Shares (excepting normal cash dividends)
that has a material effect on the Fair Market Value of Shares, appropriate and proportionate adjustments shall be made in the number and
class of shares subject to the Plan and to any outstanding Awards, and in the Option Price, SAR Exercise Price or Purchase Price per Share
of any outstanding Awards in order to prevent dilution or enlargement of Grantees’ rights under the Plan. For purposes of the foregoing,
conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the
Company.” If a majority of the shares which are of the same class as the shares that are subject to outstanding Awards are exchanged
for, converted into, or otherwise become (whether or not pursuant to a Change in Control) shares of another corporation (the “New
Shares”), the Committee may unilaterally amend the outstanding Awards to provide that such Awards are for New Shares. In the
event of any such amendment, the number of Shares subject to, and the Option Price, SAR Exercise Price or Purchase Price per Share of,
the outstanding Awards shall be adjusted in a fair and equitable manner as determined by the Committee. Any fractional share resulting
from an adjustment pursuant to this Section 15.1 shall be rounded down to the nearest whole number and the Option Price, SAR
Exercise Price or Purchase Price per share shall be rounded up to the nearest whole cent. In no event may the exercise or purchase price
of any Award be decreased to an amount less than the par value, if any, of the stock subject to the Award. The Committee may also make
such adjustments in the terms of any Award to reflect, or related to, such changes in the capital structure of the Company or distributions
as it deems appropriate. Adjustments determined by the Committee pursuant to this Section 15.1 shall be made in accordance
with Section 409A to the extent applicable.
15.2 Change
in Control
15.2.1.
Consequences of a Change in Control
Subject to the requirements
and limitations of Section 409A if applicable, the Committee may provide for any one or more of the following in connection with
a Change in Control:
(i) Accelerated
Vesting; Cancellation of Unvested Awards. The Committee may provide in any Award Agreement or, in the event of a Change in Control,
may take such actions as it deems appropriate to provide for the acceleration of the exercisability, vesting and/or settlement in connection
with such Change in Control of each or any outstanding Award or portion thereof and Shares acquired pursuant thereto upon such conditions,
including termination of the Grantee’s Service prior to, upon, or following such Change in Control, to such extent as the Committee
shall determine. Unless otherwise provided in an Award Agreement, any Awards that are unvested or not exercised prior to the effective
time of a Change in Control may be terminated for no consideration.
(ii) Assumption,
Continuation or Substitution. In the event of a Change in Control, the surviving, continuing, successor or purchasing corporation
or other business entity or parent thereof, as the case may be (the “Acquiror”), may, without the consent of any Grantee,
either assume or continue the Company’s rights and obligations under each or any Award or portion thereof outstanding immediately
prior to the Change in Control or substitute for each or any such outstanding Award or portion thereof a substantially equivalent award
with respect to the Acquiror’s stock, as applicable. For purposes of this Section 15.2, if so determined by the Committee,
an Award denominated in Shares shall be deemed assumed if, following the Change in Control, the Award confers the right to receive, subject
to the terms and conditions of the Plan and the applicable Award Agreement, for each Share subject to the Award immediately prior to the
Change in Control, the consideration (whether stock, cash, other securities or property or a combination thereof) to which a holder of
a Share on the effective date of the Change in Control was entitled; provided, however, that if such consideration is not
solely common stock of the Acquiror, the Committee may, with the consent of the Acquiror, provide for the consideration to be received
upon the exercise or settlement of the Award, for each Share subject to the Award, to consist solely of common stock of the Acquiror equal
in Fair Market Value to the per share consideration received by Stockholders pursuant to the Change in Control. If any portion of such
consideration may be received by Stockholders pursuant to the Change in Control on a contingent or delayed basis, the Committee may determine
such Fair Market Value as of the time of the Change in Control on the basis of the Committee’s good faith estimate of the present
value of the probable future payment of such consideration. Any Award or portion thereof which is neither assumed or continued by the
Acquiror in connection with the Change in Control nor exercised or settled as of the time of consummation of the Change in Control shall
terminate and cease to be outstanding effective as of the time of consummation of the Change in Control.
(iii) Cash-Out
of Awards. The Committee may, in its discretion and without the consent of any Grantee, determine that, upon the occurrence of a Change
in Control, each or any Award or a portion thereof outstanding immediately prior to the Change in Control and not previously exercised
or settled shall be canceled in exchange for a payment with respect to each vested Share (and each unvested Share, if so determined by
the Committee) subject to such canceled Award in (i) cash, (ii) stock of the Company or of a corporation or other business entity
a party to the Change in Control or (iii) other property which, in any such case, shall be in an amount having a Fair Market Value
equal to the Fair Market Value of the consideration to be paid per Share in the Change in Control, reduced by the exercise or purchase
price per share, if any, under such Award. If any portion of such consideration may be received by Stockholders pursuant to the Change
in Control on a contingent or delayed basis, the Committee may determine such Fair Market Value as of the time of the Change in Control
on the basis of the Committee’s good faith estimate of the present value of the probable future payment of such consideration. In
the event such determination is made by the Committee, the amount of such payment (reduced by applicable withholding taxes, if any) shall
be paid to Grantees in respect of the vested portions of their canceled Awards as soon as practicable following the date of the Change
in Control and in respect of the unvested portions of their canceled Awards in accordance with the vesting schedules applicable to such
Awards. For avoidance of doubt, if the amount determined pursuant to this Section 15.2 for an Option or SAR is zero or less,
the affected Option or SAR may be cancelled without any payment therefore.
The Committee need not take
the same action in connection with the Change in Control with respect to all Awards or portions thereof, all Grantees, or the vested and
unvested portions of an Award. The Committee may provide that payments may be subject to the same terms and conditions as the payment
of consideration to the Stockholders in connection with the Change in Control, including any delay as a result of escrows, earn outs,
holdbacks or other contingencies. The Committee may also provide that payments made over time will remain subject to substantially the
same vesting schedule as the Award, including any performance-based vesting metrics that applied to the Award immediately prior to the
closing of the Change in Control.
15.2.2. Payment
Conditions
By accepting an Award under
the Plan, each Grantee agrees that if an Award is to be terminated in connection with a Change in Control in exchange for a payment in
cash, securities or other property, the Committee may require, as condition to receipt of any such payment, that the Grantee execute an
Award termination agreement providing for, among other things, (i) the Grantee’s agreement and consent to (x) the amount
of such consideration to be paid in respect of the Award and (y) the termination of the Award in exchange for such consideration,
(ii) the Grantee’s agreement to be bound by any applicable provisions contained in the definitive agreements relating to the
Change inf Control that are applicable to Stockholders generally, (iii) a customary release of any and all claims the Grantee may
have, whether known, unknown or otherwise, arising from or relating to the Award and ownership of Company securities, (iv) the Grantee’s
agreement to keep all non-public information provided in connection with the Change in Control transaction confidential, and (v) other
customary provisions.
15.2.3. Change
in Control Defined
Unless otherwise provided
in the applicable Award Agreement, a “Change in Control” means the consummation of any of the following events:
(i) The
acquisition, other than from the Company, by any individual, entity or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act), other than the Company or any subsidiary, affiliate (within the meaning of Rule 144 promulgated under the Securities
Act) or employee benefit plan of the Company, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of more than 50% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally
in the election of directors (the “Voting Securities”);
(ii) A
reorganization, merger, consolidation or recapitalization of the Company (a “Business Combination”), other than a Business
Combination in which more than 50% of the combined voting power of the outstanding voting securities of the surviving or resulting entity
immediately following the Business Combination is held by the Persons who, immediately prior to the Business Combination, were the holders
of the Voting Securities; or
(iii) A
complete liquidation or dissolution of the Company, or a sale of all or substantially all of the assets of the Company; or
(iv) During
any period of 24 consecutive months, the Incumbent Directors cease to constitute a majority of the Board; “Incumbent Directors”
means individuals who were members of the Board at the beginning of such period or individuals whose election or nomination for election
to the Board by the Stockholders was approved by a vote of at least a majority of the then Incumbent Directors (but excluding any individual
whose initial election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors).
Notwithstanding the foregoing,
if it is determined that an Award is subject to the requirements of Section 409A and payable upon a Change in Control, the Company
will not be deemed to have undergone a Change in Control for purposes of the Plan unless the Company is deemed to have undergone a “change
in control event” pursuant to the definition of such term in Section 409A.
15.3 Adjustments
Adjustments under this Section 15
related to Shares or securities of the Company shall be made by the Committee. No fractional Shares or other securities shall be issued
pursuant to any such adjustment, and any fractions resulting from any such adjustment shall be eliminated in each case by rounding downward
to the nearest whole Share.
| 16. | NO LIMITATIONS ON COMPANY |
The making of Awards shall
not affect or limit in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of
its capital or business structure or to merge, consolidate, dissolve or liquidate, or to sell or transfer all or any part of its business
or assets.
| 17. | TERMS APPLICABLE GENERALLY TO AWARDS |
17.1 Disclaimer
of Rights
No provision in the Plan or
in any Award Agreement shall be construed to confer upon any individual the right to remain in the employ or service of the Company or
any Affiliate, or to interfere in any way with any contractual or other right or authority of the Company or any Affiliate either to increase
or decrease the compensation or other payments to any individual at any time, or to terminate any employment or other relationship between
any individual and the Company or any Affiliate. The obligation of the Company to pay any benefits pursuant to the Plan shall be interpreted
as a contractual obligation to pay only those amounts described herein, in the manner and under the conditions prescribed herein. The
Plan shall in no way be interpreted to require the Company to transfer any amounts to a third party trustee or otherwise hold any amounts
in trust or escrow for payment to any Grantee or beneficiary under the terms and conditions of the Plan.
17.2 Nonexclusivity
of the Plan
Neither the adoption of the
Plan nor the submission of the Plan to the Stockholders for approval shall be construed as creating any limitations upon the right and
authority of the Board or its delegate to adopt such other compensation arrangements as the Board or its delegate determines desirable.
17.3 Withholding
Taxes
The Company or an Affiliate,
as the case may be, shall have the right to deduct from payments of any kind otherwise due to a Grantee any federal, state or local taxes
of any kind required by law to be withheld (i) with respect to the vesting of or other lapse of restrictions applicable to an Award,
(ii) upon the issuance of any Shares upon the exercise of an Option or SAR or (iii) otherwise due in connection with an Award.
At the time of such vesting, lapse or exercise, the Grantee shall pay to the Company or the Affiliate, as the case may be, any amount
that the Company or the Affiliate may reasonably determine to be necessary to satisfy such withholding obligation. Subject to the prior
approval of the Committee, the Grantee may elect to satisfy such obligations, or the Company may require such obligations to be satisfied,
in whole or in part, (i) by causing the Company or the Affiliate to withhold the minimum required number of Shares otherwise issuable
to the Grantee as may be necessary to satisfy such withholding obligation or (ii) by delivering to the Company or the Affiliate Shares
already owned by the Grantee. The Shares so delivered or withheld shall have an aggregate Fair Market Value equal to such withholding
obligations. The Fair Market Value used to satisfy such withholding obligation shall be determined by the Company or the Affiliate as
of the date that the amount of tax to be withheld is to be determined. A Grantee who has made an election pursuant to this Section 17.3
may satisfy his or her withholding obligation only with Shares that are not subject to any repurchase, forfeiture, unfulfilled vesting
or other similar requirements.
17.4 Other
Provisions
Each Award Agreement may contain
such other terms and conditions not inconsistent with the Plan as may be determined by the Committee.
17.5 Severability
If any provision of the Plan
or any Award Agreement shall be determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions
hereof and thereof shall be severable and enforceable in accordance with their terms and conditions, and all provisions shall remain enforceable
in any other jurisdiction.
17.6 Governing
Law
The Plan shall be governed
by and construed in accordance with the laws of the State of Delaware without giving effect to the principles of conflicts of law.
17.7 Section 409A
The Company intends that the
Plan and Awards granted under the Plan (unless otherwise expressly provided for in the Award Agreement or Committee resolutions approving
the Award) are exempt from the requirements of Section 409A to the maximum extent possible, whether pursuant to the short-term deferral
exception described in Treasury Regulation Section 1.409A-1(b)(4), the exclusion applicable to share options, share appreciation
rights and certain other equity-based compensation under Treasury Regulation Section 1.409A-1(b)(5) or 1.409A-1(b)(6), or otherwise.
The Committee shall use best efforts to interpret, operate and administer the Plan and any Award granted under the Plan in a manner consistent
with this intention. However, the Committee makes no representations that Awards granted under the Plan shall be exempt from or comply
with Section 409A and makes no undertaking to preclude Section 409A from applying to Awards granted under the Plan.
17.7.1. If
Section 409A is applicable to any Award granted under the Plan (that is, to the extent not so exempt), the Committee intends that
the non-exempt Award will comply with the deferral, payout, plan termination and other limitations and restrictions imposed under Section 409A.
17.7.2. If
necessary for exemption from, or compliance with, Section 409A:
(i) All
references in the Plan or any Award granted under the Plan to the termination of the Grantee’s employment or service are intended
to mean the Grantee’s “separation from service,” within the meaning of Section 409A(a)(2)(A)(i).
(ii) The
Committee shall treat each installment that vests or is delivered under an Award in a series of payments or installments as a separate
and distinct payment for purposes of Section 409A, unless expressly set forth in the Award Agreement that each installment is not
a separate payment.
(iii) If
the Grantee is a “specified employee,” within the meaning of Section 409A, then if necessary to avoid subjecting the
Grantee to the imposition of any additional tax under Section 409A, amounts that would otherwise be payable under the Plan or any
Award granted under the Plan during the six-month period immediately following the Grantee’s “separation from service”
will not be paid to the Grantee during such period, but will instead be accumulated and paid to the Grantee (or, in the event of the Grantee’s
death, the Grantee’s estate) in a lump sum on the first business day after the earlier of the date that is six months following
the Grantee’s separation from service or the Grantee’s death, unless the amounts can be paid in another manner that complies
with Section 409A.
(iv) If,
after the Grant Date of an Award, the Committee determines that an Award is reasonably likely to fail to be either exempt from or compliant
with Section 409A, the Committee reserves the right, but shall not be required, to unilaterally (and without the affected Grantee’s
consent) amend or modify the Plan and any Award granted under the Plan so that the Award qualifies for exemption from or complies with
Section 409A. Any such amendment or modification made to avoid the imposition of adverse taxation under Section 409A shall be
deemed not to materially impair a Grantee’s rights or obligations under any Award.
17.8 Separation
from Service
The Committee shall determine
the effect of a Separation from Service upon Awards, and such effect shall be set forth in the applicable Award Agreement. Without limiting
the foregoing, the Committee may provide in the Award Agreements at the time of grant, or any time thereafter with the consent of the
Grantee, the actions that will be taken upon the occurrence of a Separation from Service, including accelerated vesting or termination,
depending upon the circumstances surrounding the Separation from Service.
17.9 Transferability
of Awards
17.9.1. Transfers
in General
Except as provided in Section 17.9.2,
no Award shall be assignable or transferable by the Grantee, other than by will or the laws of descent and distribution, and, during the
lifetime of the Grantee, only the Grantee personally (or the Grantee’s personal representative) may exercise rights under the Plan.
17.9.2. Family
Transfers
If authorized in the applicable
Award Agreement, a Grantee may transfer, not for value, all or part of an Award (other than Incentive Stock Options) to any Family Member.
For the purpose of this Section 17.9.2, a “not for value” transfer is a transfer that is (i) a gift, (ii) a
transfer under a domestic relations order in settlement of marital property rights or (iii) a transfer to an entity in which more
than 50% of the voting interests are owned by Family Members (or the Grantee) in exchange for an interest in that entity. Following a
transfer under this Section 17.9.2, any such Award shall continue to be subject to the same terms and conditions as were applicable
immediately prior to transfer. Subsequent transfers of transferred Awards are prohibited except to Family Members of the original Grantee
in accordance with this Section 17.9.2 or by will or the laws of descent and distribution.
17.9.3. Dividends
and Dividend Equivalent Rights
If specified in the Award
Agreement, the recipient of an Award may be entitled to receive, currently or on a deferred basis, dividends or dividend equivalents with
respect to the Common Stock or other securities covered by an Award. The terms and conditions of a dividend equivalent right may be set
forth in the Award Agreement. Dividend equivalents credited to a Grantee may be paid currently or may be deemed to be reinvested in additional
Shares or other securities of the Company at a price per unit equal to the Fair Market Value on the date that such dividend was paid to
Stockholders, as determined by the Committee. Notwithstanding the foregoing, in no event will dividends or dividend equivalents on any
Award that is subject to the achievement of performance criteria be payable before the Award has become earned and payable.
17.10 No
Trust of Fund.
The Plan is intended to constitute
an “unfunded” plan. Nothing contained herein shall require the Company to segregate any monies or other property, or Shares,
or to create any trusts, or to make any special deposits for any immediate or deferred amounts payable to any Grantee, and no Grantee
shall have any rights that are greater than those of a general unsecured creditor of the Company.
17.11 Plan
Construction
In the Plan, unless otherwise
stated, the following uses apply: (i) references to a statute or law refer to the statute or law and any amendments and any successor
statutes or laws, and to all valid and binding governmental regulations, court decisions and other regulatory and judicial authority issued
or rendered thereunder, as amended, or their successors, as in effect at the relevant time; (ii) in computing periods from a specified
date to a later specified date, the words “from” and “commencing on” (and the like) mean “from and including,”
and the words “to,” “until” and “ending on” (and the like) mean “to and including”; (iii) indications
of time of day shall be based upon the time applicable to the location of the principal headquarters of the Company; (iv) the words
“include,” “includes” and “including” (and the like) mean “include, without limitation,”
“includes, without limitation” and “including, without limitation” (and the like), respectively; (v) all
references to articles and sections are to articles and sections in the Plan; (vi) all words used shall be construed to be of such
gender or number as the circumstances and context require; (vii) the captions and headings of articles and sections have been inserted
solely for convenience of reference and shall not be considered a part of the Plan, nor shall any of them affect the meaning or interpretation
of the Plan or any of its provisions; (viii) any reference to an agreement, plan, policy, form, document or set of documents, and
the rights and obligations of the parties under any such agreement, plan, policy, form, document or set of documents, shall mean such
agreement, plan, policy, form, document or set of documents as amended from time to time, and any and all modifications, extensions, renewals,
substitutions or replacements thereof; and (ix) all accounting terms not specifically defined shall be construed in accordance with
generally accepted accounting principles.
Exhibit 10.2
ENERGOUS CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(As amended and restated effective June 12,
2024)
This Energous Corporation Employee Stock Purchase
Plan is intended to provide employees of the Company and its Participating Subsidiaries with an opportunity to acquire a proprietary interest
in the Company through the purchase of shares of Common Stock. The Company intends that this Plan qualify as an “employee stock
purchase plan” under Code Section 423 and this Plan shall be interpreted in a manner that is consistent with that intent.
“Board” means the Board of Directors
of the Company.
“Code” means the U.S. Internal
Revenue Code of 1986.
“Committee” means the committee
appointed by the Board to administer this Plan from time to time. As of the Effective Date, the Compensation Committee of the Board shall
be the Committee.
“Common Stock” means the common
stock of the Company, par value $0.00001 per share.
“Company” means Energous Corporation,
a Delaware corporation.
“Compensation” means base salary,
wages, annual and recurring bonuses, and commissions paid to an Eligible Employee by the Company or a Participating Subsidiary as compensation
for services to the Company or Participating Subsidiary, before deduction for any salary deferral contributions made by the Eligible Employee
to any tax-qualified or nonqualified deferred compensation plan, including overtime, vacation pay, holiday pay, jury duty pay, and funeral
leave pay, but excluding education or tuition reimbursements, imputed income arising under any group insurance or benefit program, travel
expenses, business and relocation expenses, and income received in connection with stock options or other equity-based awards.
“Corporate Transaction” means
a merger, consolidation, acquisition of property or stock, separation, reorganization, or other corporate event described in Code Section 424.
“Designated Broker” means the
financial services firm or other agent designated by the Company to maintain ESPP Share Accounts on behalf of Participants who have purchased
shares of Common Stock under this Plan.
“Disability” means the Participant
is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve (12) months.
“Effective Date” means the date
as of which this Plan is adopted by the Board, subject to this Plan obtaining stockholder approval in accordance with Section 19.11
(Stockholder Approval).
“Employee” means any person
who renders services to the Company or a Participating Subsidiary as an employee pursuant to an employment relationship with such employer.
For purposes of this Plan, the employment relationship shall be treated as continuing intact while the individual is on military leave,
sick leave, or other leave of absence approved by the Company or a Participating Subsidiary that meets the requirements of Treasury Regulation
Section 1.421-1(h)(2). Where the period of leave exceeds three (3) months, or such other period of time specified in Treasury
Regulation Section 1.421-1(h)(2), and the individual’s right to reemployment is not guaranteed by statute or contract, the
employment relationship shall be deemed to have terminated on the first day immediately after such three (3)-month period, or such other
period specified in Treasury Regulation Section 1.421-1(h)(2).
“Eligible Employee” means each
Employee; provided, however, that the Committee may exclude from participation in this Plan or any Offering any Employee who (i) has
been employed by the Company or a Participating Subsidiary for less than two (2) years, (ii) is customarily employed by the
Company or a Participating Subsidiary for twenty (20) hours per week or less, (iii) is customarily employed by the Company or a Participating
Subsidiary for not more than five (5) months per calendar year, or (iv) is a “highly compensated employee” of the
Company or a Participating Subsidiary (within the meaning of Code Section 414(q)).
“Enrollment Form” means an agreement
authorized by the Committee (which may be electronic) pursuant to which an Eligible Employee may elect to enroll in this Plan, to authorize
a new level of payroll deductions, or to stop payroll deductions and withdraw from an Offering Period.
“ESPP Share Account” means an
account into which Common Stock purchased with accumulated payroll deductions at the end of an Offering Period are held on behalf of a
Participant.
“Exchange Act” means the U.S.
Securities Exchange Act of 1934.
“Fair Market Value” means, as
of any date, the value of the shares of Common Stock as determined in the immediately following sentences. If the shares are listed on
any established stock exchange or a national market system, the Fair Market Value shall be the closing price of a share (or if no sales
were reported, the closing price on the Trading Day immediately preceding such date) as quoted on such exchange or system on the day of
determination, as reported in The Wall Street Journal. In the absence of an established market for the shares, the Fair Market
Value shall be determined in good faith by the Committee and such determination shall be conclusive and binding on all persons.
“Grant Date” means the first
Trading Day of each Offering Period as designated by the Committee.
“Offering” or “Offering
Period” means a period of six (6) months beginning January 1 and July 1 of each year; provided, however, that,
pursuant to Section 5, the Committee may change the duration of future Offering Periods (subject to a maximum Offering Period of
twenty-seven (27) months) and/or the start and end dates of future Offering Periods.
“Participant” means an Eligible
Employee who is actively participating in this Plan.
“Participating Subsidiaries”
means the Subsidiaries that have been designated as eligible to participate in this Plan, and such other Subsidiaries that may be designated
by the Committee from time to time in its sole discretion.
“Plan” means this Energous Corporation
Employee Stock Purchase Plan.
“Purchase Date” means the last
Trading Day of each Offering Period.
“Purchase Price” means an amount
equal to the lesser of (i) eighty-five percent (85%) (or such greater percentage as designated by the Committee for an Offering Period)
of the Fair Market Value of a share of Common Stock on the Grant Date or (ii) eighty-five percent (85%) (or such greater percentage
as designated by the Committee for an Offering Period) of the Fair Market Value of a share of Common Stock on the Purchase Date; provided,
however, that, the Purchase Price per share of Common Stock shall in no event be less than the par value of the Common Stock.
“Retirement” means the Participant’s
voluntary termination of employment from the Company and each Participating Subsidiary after having attained age sixty-five (65).
“Securities Act” means the U.S.
Securities Act of 1933.
“Subsidiary” means any corporation,
domestic or foreign, of which not less than fifty percent (50%) of the combined voting power is held by the Company or a Subsidiary, whether
or not such corporation exists now or is hereafter organized or acquired by the Company or a Subsidiary. In all cases, the determination
of whether an entity is a Subsidiary shall be made in accordance with Code Section 424(f).
“Trading Day” means any day
on which the established stock exchange or national market system upon which the Common Stock is listed is open for trading or, if the
Common Stock is not listed on an established stock exchange or national market system, a business day, as determined by the Committee
in good faith.
| 3.1. | General. This Plan shall be administered by the Committee, which shall have the authority to construe and interpret this Plan,
prescribe, amend, and rescind rules relating to this Plan’s administration, and take any other actions necessary or desirable
for the administration of this Plan, including adopting sub-plans applicable to particular Participating Subsidiaries or locations, which
sub-plans may be designed to be outside the scope of Code Section 423. The Committee may correct any defect or supply any omission
or reconcile any inconsistency or ambiguity in this Plan. All decisions of the Committee in connection with the administration of this
Plan shall be in the Committee’s sole discretion, and such decisions shall be final and binding on all persons. All expenses of
administering this Plan shall be borne by the Company. The Board may take any action under this Plan that would otherwise be the responsibility
of the Committee. |
| 3.2. | Delegation. To the extent necessary or appropriate, the Committee may delegate any of its duties or responsibilities under
the Plan as they pertain to a Participating Subsidiary to such Participating Subsidiary. The Committee (or any Participating Subsidiary
with the consent of the Committee) may appoint or engage any person or persons as a third party administrator to perform ministerial functions
pertaining to the issuance, accounting, recordkeeping, forfeiture, exercise, communication, transfer, or any other functions or activities
necessary or appropriate to administer and operate this Plan. |
| 4.1. | General. Unless otherwise determined by the Committee in a manner that is consistent with Code Section 423, any individual
who is an Eligible Employee as of the first day of the enrollment period designated by the Committee for a particular Offering Period
shall be eligible to participate in such Offering Period, subject to the requirements of Code Section 423. |
| 4.2. | Eligibility Restrictions. Notwithstanding any provision of this Plan to the contrary, no Eligible Employee shall be granted
an option under this Plan if (i) immediately after the grant of the option, such Eligible Employee (or any other person whose stock
would be attributed to such Eligible Employee pursuant to Code Section 424(d)) would own capital stock of the Company or hold outstanding
options to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of
the Company or any Subsidiary or (ii) such option would permit his or her rights to purchase stock under all employee stock purchase
plans (described in Code Section 423) of the Company and its Subsidiaries to accrue at a rate that exceeds twenty-five thousand dollars
($25,000) of the Fair Market Value of such stock (determined at the time the option is granted) for each calendar year in which such option
is outstanding. |
This Plan shall be implemented by a series of Offering
Periods, each of which shall be six (6) months in duration, with new Offering Periods commencing on or about January 1 and July 1
of each year (or such other times as determined by the Committee). The Committee shall have the authority to change the duration, frequency,
start date, and end date of Offering Periods.
| 6.1. | Enrollment; Payroll Deductions. An Eligible Employee may elect to participate in this Plan by properly completing an Enrollment
Form, which may be electronic, and submitting it to the Company, in accordance with the enrollment procedures established by the Committee.
Participation in this Plan is entirely voluntary. By submitting an Enrollment Form, the Eligible Employee authorizes payroll deductions
from his or her paycheck in an amount equal to at least one percent (1%), but not more than ten percent (10%) (or such other maximum percentage
as the Committee may establish from time to time before an Offering Period begins), of his or her Compensation on each pay day occurring
during an Offering Period. Payroll deductions shall commence on the first payroll date after the Grant Date and end on the last payroll
date on or before the Purchase Date. The Company shall maintain records of all payroll deductions but shall have no obligation to pay
interest on payroll deductions or to hold such amounts in a trust or in any segregated account. Unless expressly permitted by the Committee,
a Participant may not make any separate contributions or payments to this Plan. |
| 6.2. | Election Changes. During an Offering Period, a Participant may decrease or increase his or her rate of payroll deductions applicable
to such Offering Period only one (1) time. To make such a change, the Participant must submit a new Enrollment Form authorizing
the new rate of payroll deductions at least fifteen (15) days before the Purchase Date, with any permitted change to take effect as soon
as administratively practicable. A Participant may decrease or increase his or her rate of payroll deductions for future Offering Periods
by submitting a new Enrollment Form authorizing the new rate of payroll deductions at least fifteen (15) days before the start of
the next Offering Period. |
| 6.3. | Automatic Re-enrollment. The deduction rate selected in the Enrollment Form shall remain in effect for subsequent Offering
Periods unless the Participant (i) submits a new Enrollment Form authorizing a new level of payroll deductions in accordance
with Section 6.2 (Election Changes), (ii) withdraws from this Plan in accordance with Section 10, or (iii) terminates
employment or otherwise becomes ineligible to participate in this Plan. |
On each Grant Date, each Participant in the applicable
Offering Period shall be granted an option to purchase, on the Purchase Date, a number of shares of Common Stock determined by dividing
the Participant’s accumulated payroll deductions by the applicable Purchase Price; provided, however, that in no event shall any
Participant purchase more than three hundred seventy-five (375) shares of Common Stock during an Offering Period, subject to adjustment
by the Committee for a future Offering Period (subject to adjustment in accordance with Section 18 and the limitations set forth
in Sections 4.2 (Eligibility Restrictions) and 13).
| 8. | EXERCISE OF OPTION/PURCHASE OF SHARES |
A Participant’s option to purchase shares
of Common Stock shall be exercised automatically on the Purchase Date of each Offering Period. The Participant’s accumulated payroll
deductions shall be used to purchase the maximum number of whole shares that can be purchased with the amounts in the Participant’s
notional account, subject to the limitations set forth in this Plan. No fractional shares may be purchased and any accumulated payroll
deductions that are not sufficient to purchase a whole share of Common Stock shall be retained in the Participant’s notional account
for the subsequent Offering Period, subject to earlier withdrawal by the Participant in accordance with Section 10 or termination
of employment in accordance with Section 11. Any accumulated payroll deductions that remain in a Participant’s notional account
after applying the limitations of Section 4.2 (Eligibility Restrictions) and Section 7 shall be returned to the Participant
as soon as administratively practicable.
As soon as reasonably practicable after each Purchase
Date, the Company shall arrange for the delivery to each Participant of the shares of Common Stock purchased upon exercise of his or her
option. The Committee may permit or require that the shares be deposited directly into an ESPP Share Account established in the name of
the Participant with a Designated Broker and may require that the shares of Common Stock be retained with such Designated Broker for a
specified period of time. Participants shall not have any voting, dividend, or other rights of a stockholder with respect to the shares
of Common Stock subject to any option granted hereunder until such shares have been delivered pursuant to this Section 9.
| 10.1. | Withdrawal Procedure. A Participant may withdraw from an Offering by submitting to the Company a revised Enrollment Form indicating
his or her election to withdraw at least fifteen (15) days before the Purchase Date. The accumulated payroll deductions held on behalf
of a Participant in his or her notional account (that have not been used to purchase shares of Common Stock) shall be paid to the Participant
promptly after receipt of the Participant’s Enrollment Form indicating his or her election to withdraw and the Participant’s
option shall be automatically terminated. If a Participant withdraws from an Offering Period, no payroll deductions shall be made during
any succeeding Offering Period, unless the Participant re-enrolls in accordance with Section 6.1 (Enrollment; Payroll Deductions). |
| 10.2. | Effect on Succeeding Offering Periods. A Participant’s election to withdraw from an Offering Period shall not have any
effect upon his or her eligibility to participate in succeeding Offering Periods that commence after the completion of the Offering Period
from which the Participant withdraws. |
| 11. | TERMINATION OF EMPLOYMENT; CHANGE IN EMPLOYMENT STATUS |
In the event of a Participant’s termination
of employment from the Company and the Participating Subsidiaries due to the Participant’s Retirement, Disability, or death within
three (3) months before a Purchase Date, such Participant’s accumulated payroll deductions shall be used to purchase shares
on the Purchase Date. Upon termination of a Participant’s employment from the Company and the Participating Subsidiaries for any
other reason or at any other time, or a change in the Participant’s employment status after which the Participant is no longer an
Eligible Employee, the Participant shall be deemed to have withdrawn from this Plan and the payroll deductions in the Participant’s
notional account (that have not been used to purchase shares of Common Stock) shall be returned to the Participant, or in the case of
the Participant’s death, to the person(s) entitled to such amounts under Section 17, and the Participant’s option
shall be automatically terminated.
No interest shall accrue on or be payable with
respect to the payroll deductions of a Participant in this Plan.
| 13. | SHARES RESERVED FOR PLAN |
| 13.1. | Number of Shares. A total of one hundred and eight thousand and seven hundred (108,700) shares of Common Stock have been reserved
as authorized for the grant of options under this Plan. The shares of Common Stock may be newly issued shares, treasury shares, or shares
acquired on the open market. If an option under this Plan expires or is terminated unexercised for any reason, the shares as to which
such option so expired or terminated again may be made subject to an option under this Plan. |
| 13.2. | Oversubscribed Offerings. The number of shares of Common Stock that a Participant may purchase in an Offering under this Plan
may be reduced if the Offering is oversubscribed. No option granted under this Plan shall permit a Participant to purchase shares of Common
Stock that, if added together with the total number of shares of Common Stock purchased by all other Participants in such Offering, would
exceed the total number of shares of Common Stock remaining available under this Plan. If the Committee determines that, on a particular
Purchase Date, the number of shares of Common Stock with respect to which options are to be exercised exceeds the number of shares of
Common Stock then available under this Plan, the Company shall make a pro rata allocation of the shares of Common Stock remaining available
for purchase in as uniform a manner as practicable and as the Committee determines to be equitable. |
No payroll deductions credited to a Participant,
nor any rights with respect to the exercise of an option or any rights to receive Common Stock hereunder, may be assigned, transferred,
pledged, or otherwise disposed of in any way (other than by will, the laws of descent and distribution, or as provided in Section 17)
by the Participant. Any attempt to assign, transfer, pledge, or otherwise dispose of such rights or amounts shall be without effect.
All payroll deductions received or held by the
Company under this Plan may be used by the Company for any corporate purpose to the extent permitted by applicable law, and the Company
shall not be required to segregate such payroll deductions or contributions.
Participants shall be provided with statements
at least annually that shall set forth the contributions made by the Participant to this Plan, the Purchase Price of any shares of Common
Stock purchased with accumulated funds, the number of shares of Common Stock purchased, and any payroll deduction amounts remaining in
the Participant’s notional account.
| 17. | DESIGNATION OF BENEFICIARY |
A Participant may file, on forms supplied by the
Committee, a written designation of beneficiary who is to receive any shares of Common Stock and cash in respect of any fractional shares
of Common Stock, if any, from the Participant’s ESPP Share Account under this Plan in the event of such Participant’s death.
In addition, a Participant may file, on forms supplied by the Committee, a written designation of beneficiary who is to receive any cash
withheld through payroll deductions and credited to the Participant’s notional account in the event of the Participant’s death
before the Purchase Date of an Offering Period.
| 18. | ADJUSTMENTS FOR CHANGES IN CAPITALIZATION; DISSOLUTION OR LIQUIDATION; CORPORATE TRANSACTIONS |
| 18.1. | Adjustments. In the event that any dividend or other distribution (whether in the form of cash, Common Stock, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase,
or exchange of Common Stock or other securities of the Company, or other change in the Company’s structure affecting the Common
Stock occurs, then in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under
this Plan, the Committee shall, in such manner as it deems equitable, adjust the number of shares and class of Common Stock that may be
delivered under this Plan, the Purchase Price per share, and the number of shares of Common Stock covered by each outstanding option under
this Plan, and the numerical limits of Section 7 and Section 13. |
| 18.2. | Dissolution or Liquidation. Unless otherwise determined by the Committee, in the event of a proposed dissolution or liquidation
of the Company, any Offering Period then in progress shall be shortened by setting a new Purchase Date and the Offering Period shall end
immediately before the proposed dissolution or liquidation. The new Purchase Date shall be before the date of the Company’s proposed
dissolution or liquidation. Before the new Purchase Date, the Committee shall provide each Participant with written notice, which may
be electronic, of the new Purchase Date and that the Participant’s option shall be exercised automatically on such date, unless
before such time, the Participant has withdrawn from the Offering in accordance with Section 10. |
| 18.3. | Corporate Transactions. In the event of a Corporate Transaction, the then-current Offering Period shall be shortened by setting
a new Purchase Date on which the Offering Period shall end. The new Purchase Date shall occur before the date of the Corporate Transaction.
Before the new Purchase Date, the Committee shall provide each Participant with written notice, which may be electronic, of the new Purchase
Date and that the Participant’s option shall be exercised automatically on such date, unless before such time, the Participant has
withdrawn from the Offering in accordance with Section 10. |
| 19.1. | Equal Rights and Privileges. Notwithstanding any provision of this Plan to the contrary and in accordance with Code Section 423,
all Eligible Employees who are granted options under this Plan shall have the same rights and privileges. |
| 19.2. | No Right to Continued Service. Neither this Plan nor any compensation paid hereunder shall confer on any Participant the right
to continue as an Employee or in any other capacity. |
| 19.3. | Rights as Stockholder. A Participant shall become a stockholder with respect to the shares of Common Stock that are purchased
pursuant to options granted under this Plan when the shares are transferred to the Participant’s ESPP Share Account. A Participant
shall have no rights as a stockholder with respect to shares of Common Stock for which an election to participate in an Offering Period
has been made until such Participant becomes a stockholder as provided above. |
| 19.4. | Successors and Assigns. This Plan shall be binding on the Company and its successors and assigns. |
| 19.5. | Entire Plan. This Plan constitutes the entire plan with respect to the subject matter hereof and supersedes all prior plans
with respect to the subject matter hereof. |
| 19.6. | Compliance with Law. The obligations of the Company with respect to payments under this Plan are subject to compliance with
all applicable laws and regulations. Common Stock shall not be issued with respect to an option granted under this Plan unless the exercise
of such option and the issuance and delivery of the shares of Common Stock pursuant thereto shall comply with all applicable provisions
of law, including the Securities Act, the Exchange Act, and the requirements of any stock exchange upon which the shares may then be listed. |
| 19.7. | Notice of Disqualifying Dispositions. Each Participant shall give the Company prompt written notice of any disposition or other
transfer of shares of Common Stock acquired pursuant to the exercise of an option acquired under this Plan, if such disposition or transfer
is made within two (2) years after the applicable Grant Date or within one (1) year after the applicable Purchase Date. |
| 19.8. | Term of Plan. This Plan shall become effective on the Effective Date and, unless terminated earlier pursuant to Section 19.9
(Amendment or Termination), shall terminate on June 16, 2031. |
| 19.9. | Amendment or Termination. The Committee may, in its sole discretion, amend, suspend, or terminate this Plan at any time and
for any reason. If this Plan is terminated, the Committee may elect to terminate all outstanding Offering Periods either immediately or
once shares of Common Stock have been purchased on the next Purchase Date (which may, in the discretion of the Committee, be accelerated)
or permit Offering Periods to expire in accordance with their terms (and subject to any adjustment in accordance with Section 18).
If any Offering Period is terminated before its scheduled expiration, all amounts that have not been used to purchase shares of Common
Stock shall be returned to Participants (without interest, except as otherwise required by law) as soon as administratively practicable. |
| 19.10. | Applicable Law. The laws 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. |
| 19.11. | Stockholder Approval. This Plan shall be subject to approval by the stockholders of the Company within twelve (12) months before
or after the date this Plan is adopted by the Board. |
| 19.12. | Code Section 423. This Plan is intended to qualify as an “employee stock purchase plan” under Code Section 423.
Any provision of this Plan that is inconsistent with Code Section 423 shall be reformed to comply with Code Section 423. |
| 19.13. | Withholding. To the extent required by applicable Federal, state, or local law, a Participant must make arrangements satisfactory
to the Company for the payment of any withholding or similar tax obligations that arise in connection with this Plan. |
| 19.14. | Severability. If any provision of this Plan shall for any reason be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof, and this Plan shall be construed as if such invalid or unenforceable provision
were omitted. |
| 19.15. | Plan Construction. In this Plan, unless otherwise stated, the following uses apply: (i) references to a statute or law
shall refer to the statute or law and any amendments and any successor statutes or laws, and to all regulations promulgated under or implementing
the statute or law, as amended, or its successors, as in effect at the relevant time; (ii) in computing periods from a specified
date to a later specified date, the words “from” and “commencing on” (and the like) mean “from and including,”
and the words “to,” “until” and “ending on” (and the like) mean “to and including”; (iii) indications
of time of day shall be based upon the time applicable to the location of the principal headquarters of the Company; (iv) the words
“include,” “includes” and “including” mean “include, without limitation,” “includes,
without limitation” and “including, without limitation,” respectively; (v) all references to articles and sections
are to articles and sections in this Plan; (vi) all words used shall be construed to be of such gender or number as the circumstances
and context require; (vii) the captions and headings of articles and sections have been inserted solely for convenience of reference
and shall not be considered a part of this Plan, nor shall any of them affect the meaning or interpretation of this Plan or any of its
provisions; (viii) any reference to an agreement, plan, policy, form, document, or set of documents, and the rights and obligations
of the parties under any such agreement, plan, policy, form, document, or set of documents, shall mean such agreement, plan, policy, form,
document, or set of documents as amended from time to time, and any and all modifications, extensions, renewals, substitutions, or replacements
thereof; and (ix) all accounting terms not specifically defined shall be construed in accordance with GAAP. |
Exhibit 10.3
SEVERANCE AND CHANGE IN CONTROL AGREEMENT
This Severance and Change in Control Agreement
(the “Agreement”) is entered into by and between Mallorie Burak (the “Executive”) and Energous Corporation, a
Delaware corporation (the “Company”), on June 12, 2024 and is effective June 1, 2024 (the “Effective Date”).
1. Term
of Agreement.
Except to the extent renewed as set forth in this
Section 1, this Agreement shall terminate the earlier of the third (3rd) anniversary of the Effective Date (the “Expiration
Date”) or the date the Executive’s employment with the Company terminates for a reason other than a CIC Qualifying Termination;
provided, however, if a definitive agreement relating to a Change in Control has been signed by the Company on or before Expiration Date,
then this Agreement shall remain in effect through the earlier of:
(a) The date
the Executive’s employment with the Company terminates for a reason other than a CIC Qualifying Termination, or
(b) The
date the Company has met all of its obligations under this Agreement following a termination of the Executive’s employment with
the Company due to a CIC Qualifying Termination.
This Agreement shall renew automatically and continue in effect for
three (3) year periods measured from the initial Expiration Date, unless the Company provides Executive notice of non-renewal at
least three (3) months prior to the date on which this Agreement would otherwise renew. For the avoidance of doubt, and notwithstanding
anything to the contrary in Section 2 or 3 below, the Company’s non-renewal of this Agreement shall not constitute a Qualifying
Termination or a CIC Qualifying Termination, as applicable.
2. Termination
upon a Qualifying Termination other than a CIC Qualifying Termination. In the event of a Qualifying Termination that is not a CIC
Qualifying Termination, notwithstanding any rights or benefits the Executive is eligible to receive under any other applicable plan,
employment agreement, or similar contract with the Company, the terms of this Agreement shall represent the sole rights and benefits
the Executive is eligible to receive as a result of the Qualifying Termination. If the Executive is subject to a Qualifying Termination,
then, subject to Sections 4, 8, and 9 below, Executive will be entitled to the following benefits:
(a) Severance
Benefits. The Company shall pay the Executive (1) twelve (12) months of Executive’s monthly base salary (at the rate in
effect immediately prior to the actions that resulted in the Qualifying Termination), and (2) an amount equal to one hundred percent
(100%) of the Executive’s target bonus (together, such salary and bonus payments the “Severance”). The Executive will
receive the Severance in a cash lump-sum in accordance with the Company’s standard payroll procedures which will be made on the
first business day occurring after the sixtieth (60th) day following the Separation, provided that the Release Conditions have been satisfied.
(b) Equity.
(a) None of the Executive’s then-outstanding unvested Equity Awards (as defined below) that vest upon satisfaction of performance
criteria, shall accelerate and become vested and (b) except to the extent that it would cause adverse tax treatment to Executive
under Section 409A of the Code fifty percent (50%) of the Executive’s then-outstanding unvested Equity Awards, other than any
Equity Awards that vest upon satisfaction of performance criteria, shall accelerate and become vested.
(c) Pay
in Lieu of Continued Employee Benefits. If Executive timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended (“COBRA”), the Company or its successor shall pay the full amount of Executive’s COBRA premiums
on behalf of the Executive for the Executive’s continued coverage under the Company’s health, dental and vision plans, including
coverage for the Executive’s eligible dependents, for the twelve (12) month period following the Executive’s Separation or,
if earlier, until Executive is eligible to be covered under another substantially equivalent medical insurance plan by a subsequent employer.
Notwithstanding the foregoing, if the Company, in its sole discretion, determines that it cannot provide the foregoing subsidy of COBRA
coverage without potentially violating or causing the Company to incur additional expense as a result of noncompliance with applicable
law (including, without limitation, Section 2716 of the Public Health Service Act), the Company instead shall provide to Executive
a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue the group
health coverage in effect on the date of the Separation (which amount shall be based on the premium for the first month of COBRA coverage),
which payments shall be made regardless of whether Executive elects COBRA continuation coverage and shall commence on the later of (i) the
first day of the month following the month in which Executive experiences a Separation and (ii) the effective date of the Company’s
determination of violation of applicable law, and shall end on the earlier of (x) the effective date on which Executive becomes covered
by a health, dental or vision insurance plan of a subsequent employer, and (y) the last day of the period twelve (12) months after
the Separation, provided that, any taxable payments under Section 2(c) will not be paid before the first business day occurring
after the sixtieth (60th) day following the Separation and, once they commence, will include any unpaid amounts accrued from the date
of Executive’s Separation (to the extent not otherwise satisfied with continuation coverage). However, if the period comprising
the sum of the sixty (60)-day period described in the preceding sentence and the ten (10)-day period described in Section 6(e)(3) below
spans two calendar years, then the payments which constitute deferred compensation subject to Section 409A of the Code will not in
any case be paid in the first calendar year. Executive shall have no right to an additional gross-up payment to account for the fact that
such COBRA premium amounts are paid on an after-tax basis.
(d) General
Release. Any other provision of this Agreement notwithstanding, the benefits under Section 2 shall not apply unless the Executive
(i) has executed the Company’s standard form of release of all known and unknown claims (“Release”) that the Executive
may then have against the Company or persons affiliated with the Company and such release has become effective and (ii) has agreed
not to prosecute any legal action or other proceeding based upon any of such claims.. The Company will deliver the form of Release to
the Executive within thirty (30) days after the Executive’s Separation. The Executive must execute and return the Release within
the time period specified in the form, and in all events within sixty (60) days following the termination event described in Section 2,
as applicable.
3. CIC
Qualifying Termination. In the event of a CIC Qualifying Termination, notwithstanding any rights or benefits the Executive is eligible
to receive under any other applicable plan, employment agreement, or similar contract with the Company, the terms of this Agreement shall
represent the sole rights and benefits the Executive is eligible to receive as a result of the CIC Qualifying Termination. For the avoidance
of doubt, the Executive can only receive the payments below upon a CIC Qualifying Termination and in such event will not be eligible to
receive any of the payments or benefits set forth in Section 2. If the Executive is subject to a CIC Qualifying Termination, then,
subject to Sections 4, 8, and 9 below, Executive will be entitled to the following benefits:
(a) CIC
Severance Benefits. The Company shall pay the Executive: (1) twelve (12) months of the Executive’s monthly base salary
(at the rate in effect immediately prior to the actions that resulted in the CIC Qualifying Termination), and (2) an amount equal
to one hundred percent (100%) of the Executive’s target bonus (together, such salary and bonus payments the “CIC Severance”).
The Executive will receive the CIC Severance in a cash lump-sum in accordance with the Company’s standard payroll procedures which
will be made on the first business day occurring after the sixtieth (60th) day following the Separation, provided that the Release Conditions
have been satisfied.
(b) Equity.
Each of Executive’s then-outstanding unvested Equity Awards, including awards that would otherwise vest only upon satisfaction of
performance criteria, shall accelerate and become vested and exercisable with respect to one hundred percent (100%) of the then unvested
shares subject to all Equity Awards, except to the extent that it would cause adverse tax treatment to Executive under Section 409A
of the Code. “Equity Awards” means all options to purchase shares of Company common stock, as well as any and all other stock-based
awards granted to the Executive, including but not limited to stock bonus awards, restricted stock, restricted stock units or stock appreciation
rights. The accelerated vesting described above shall be effective as of the Separation. In the event an Equity Award eligible for acceleration
is subject to performance metrics or factors, then the vesting acceleration provided for herein shall be based on achievement of such
performance award “at-target.”
(c) Pay
in Lieu of Continued Employee Benefits. If Executive timely elects continued coverage under COBRA, the Company or its successor shall
pay the full amount of Executive’s COBRA premiums on behalf of the Executive for the Executive’s continued coverage under
the Company’s health, dental and vision plans, including coverage for the Executive’s eligible dependents, for the twelve
(12) month period following the Executive’s Separation or, if earlier, until Executive is eligible to be covered under another substantially
equivalent medical insurance plan by a subsequent employer. Notwithstanding the foregoing, if the Company, in its sole discretion, determines
that it cannot provide the foregoing subsidy of COBRA coverage without potentially violating or causing the Company to incur additional
expense as a result of noncompliance with applicable law (including, without limitation, Section 2716 of the Public Health Service
Act), the Company instead shall provide to Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive
would be required to pay to continue the group health coverage in effect on the date of the Separation (which amount shall be based on
the premium for the first month of COBRA coverage), which payments shall be made regardless of whether Executive elects COBRA continuation
coverage, shall commence on the later of (i) the first day of the month following the month in which Executive experiences a Separation
and (ii) the effective date of the Company’s determination of violation of applicable law, and shall end on the earlier of
(x) the effective date on which Executive becomes covered by a health, dental or vision insurance plan of a subsequent employer,
and (y) the last day of the period twelve (12) months after the Separation, provided that, any taxable payments under Section 3(c) will
not be paid before the first business day occurring after the sixtieth (60th) day following the Separation and, once they commence, will
include any unpaid amounts accrued from the date of Executive’s Separation (to the extent not otherwise satisfied with continuation
coverage). However, if the period comprising the sum of the sixty (60)-day period described in the preceding sentence and the ten (10)-day
period described in Section 6(e)(3) below spans two calendar years, then the payments which constitute deferred compensation
subject to Section 409A of the Code will not in any case be paid in the first calendar year. Executive shall have no right to an
additional gross-up payment to account for the fact that such COBRA premium amounts are paid on an after-tax basis.
(d) General
Release. Any other provision of this Agreement notwithstanding, the benefits under Section 3 shall not apply unless the Executive
(i) has executed the Release and such release has become effective and (ii) has agreed not to prosecute any legal action or
other proceeding based upon any of such claims. The Company will deliver the form of Release to the Executive within thirty (30) days
after the Executive’s Separation. The Executive must execute and return the Release within the time period specified in the form,
and in all events within sixty (60) days following the termination event described in Section 3, as applicable.
4. Accrued
Compensation and Benefits. Notwithstanding anything to the contrary in Section 2 or 3 above, in connection with any termination
of employment (whether or not a Qualifying Termination or a CIC Qualifying Termination), the Company shall pay Executive’s earned
but unpaid base salary and other vested but unpaid cash entitlements for the period through and including the termination of employment,
including unused earned vacation pay and unreimbursed documented business expenses incurred by Executive through and including the date
of termination (collectively “Accrued Compensation and Expenses”), as required by law and the applicable Company plan or policy.
In addition, Executive shall be entitled to any other vested benefits earned by Executive for the period through and including the termination
date of Executive’s employment under any other employee benefit plans and arrangements maintained by the Company, in accordance
with the terms of such plans and arrangements, except as modified herein (collectively “Accrued Benefits”). Any Accrued Compensation
and Expenses to which the Executive is entitled shall be paid to the Executive in cash as soon as administratively practicable after the
termination and, in any event, no later than two and one-half (2-1/2) months after the end of the taxable year of the Executive in which
the termination occurs or at such earlier time as may be required by applicable law. Any Accrued Benefits to which the Executive is entitled
shall be paid to the Executive as provided in the relevant plans and arrangements.
5. Covenants.
(a) Non-Competition.
The Executive agrees that, during employment with the Company, the Executive shall not engage in any other employment, consulting or other
business activity (whether full-time or part-time) that would create a conflict of interest with the Company.
(b) Cooperation.
The Executive agrees that Executive shall cooperate with Company and its subsidiaries and affiliates for twelve (12) months following
a Qualifying Termination (“Cooperation Period”). Without limiting the generality of the foregoing, during the Cooperation
Period, upon Company’s request, Executive will cooperate with Company and its subsidiaries and affiliates with respect to any internal
investigation or administrative, regulatory or judicial proceeding involving matters within the scope of Executive’s duties and
responsibilities to Company or its affiliates during Executive’s employment with Company (including, without limitation, Executive
being available to Company upon notice for interviews and factual investigations, appearing at Company’s request to give testimony
without requiring service of a subpoena or other legal process, and turning over to Company all relevant Company documents, including
emails and text messages, which are or may have come into Executive’s possession during Executive employment with Company.)
(c) Non-Disparagement.
To the maximum extent permitted by applicable law, Executive agrees not to make disparaging remarks, comments, or statements about the
Company, the Company’s employees, agents, representatives, officers, directors or investors. Executive agrees that Executive will
not make any statements, written or oral, including but not limited to, posting comments, videos, or audio recordings on social media
websites or applications (including, but not limited to, Facebook, Twitter, Instagram, SnapChat, Photobucket, Glass Door, LinkedIn,
Yelp, YouTube, and Reddit) or cause or encourage others to make any such statements that defame, disparage, or in any way criticize the
personal and/or business reputations, practices, or conduct of the Company or the Company’s employees, agents, representatives,
officers, directors or investors. Executive also agrees that Executive will not intentionally act in any manner that may damage the business
or reputation of the Company, the Company’s employees, agents, representatives, officers, directors or investors. Executive also
agrees that other than identifying the Company as a prior employer, Executive will not use any of the Company’s or the Company’s
employees’, agents’, representatives’, officers’, directors’ or investors’ names, images, or likenesses
in any statements, written or oral, including but not limited to, posting comments, videos, or audio recordings on social media websites.
This provision is not intended to prohibit Executive from reporting concerns to, filing a charge or complaint with, making lawful disclosures
to, providing documents or other information to or participating in an investigation or hearing conducted by the Equal Employment Opportunity
Commission (“EEOC”), the National Labor Relations Board (“NLRB”), or any other federal, state or local agency
charged with the enforcement of any laws. The Company agrees that officers and directors who are aware of Executive’s claims likewise
will not make or publish, or authorize the making or publishing of, disparaging statements about Executive in any forum or medium. Executive
recognizes that the Company cannot control the speech of its employees who are not its officers and directors. Nonetheless, if the Company
learns of any disparagement of Executive by Company employees through or in any workplace communication or work platform, the Company
will take all reasonable steps to prevent and eliminate such conduct.
6. Definitions.
(a) “Cause”
means: (i) Executive’s failure to perform his or her assigned duties and responsibilities as an employee (other than a failure
resulting from Executive’s Disability) after receiving written notice thereof from the Company or the Board describing Executive’s
failure to perform such duties or responsibilities and a 30 day opportunity to cure such failure (to the extent capable of cure); (ii) Executive
engaging in any act of dishonesty, fraud or misrepresentation with respect to the Company that has or is reasonably likely to result in
material harm to the Company or its stockholders; (iii) Executive’s violation of any federal or state law or regulation applicable
to the business of the Company or its affiliates that has or is reasonably likely to result in material harm to the Company or its stockholders;
(iv) Executive’s breach of his or her representations in this Agreement, any provision of his or her confidentiality agreement
or invention assignment agreement between Executive and the Company (or any affiliate of the Company) or of his or her statutory duties
to the Company and its stockholders; or (v) Executive being convicted of, or entering a plea of nolo contendere to, any felony.
(b) “Code”
means the Internal Revenue Code of 1986, as amended.
(c) “Change
in Control” means the occurrence of any of the following events: (i) any “person” (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the
Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total voting power
represented by the Company’s then outstanding voting securities; or (ii) the consummation of the sale or disposition by the
Company of all or substantially all of the Company’s assets; or (iii) the consummation of a merger or consolidation of the
Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company
or such surviving entity or its parent outstanding immediately after such merger or consolidation; provided that such event in (i) through
(iii) (including any series of such events) also qualifies as a “change in control event” under Section 409A of
the Code.
(d) “CIC
Qualifying Termination” means a Separation (i) within three (3) months prior or twelve (12) months following a Change
in Control as a result of (A) the Company or its successor terminating the Executive’s employment with the Company for any
reason other than Cause or (B) the Executive voluntarily resigning Executive’s employment with the Company for Good Reason.
A termination or resignation due to the Executive’s death or disability shall not constitute a CIC Qualifying Termination.
(e) “Good
Reason” means, without the Executive’s consent, (i) a material reduction in Executive’s base salary (other
than a general reduction in base salary that affects similarly situated employees in similar proportions); (ii) a material reduction
of Executive’s authority, duties or responsibilities except that a reduction in authority, duties, or responsibilities solely by
virtue of the Company being acquired and made part of a larger entity whether as a subsidiary, business unit or otherwise (as, for example,
when an officer of the Company remains an officer following an acquisition where the Company becomes a wholly owned subsidiary of the
acquirer, but is not made an officer of the acquiring corporation) will not constitute “Good Reason”; or (iii) a material
change in the geographic location of Executive’s primary work facility or location that increases his or her one way commute by
at least 35 miles. In order for an event to qualify as Good Reason, Executive must provide written notice to the Company of the acts or
omissions constituting the grounds for “Good Reason” within 30 days after the initial existence of the grounds for “Good
Reason,” the Company fails to reasonably remedy such act or omission within 30 days thereafter, and Executive’s resignation
from all positions is effective not later than 30 days after the expiration of such cure period.
(f) “Qualifying
Termination” means a Separation more than three (3) months prior to a Change in Control or more than twelve (12) months
following a Change in Control, in each case as a result of (A) the Company or its successor terminating the Executive’s employment
with the Company for any reason other than Cause or (B) the Executive voluntarily resigning Executive’s employment with the
Company for Good Reason. A termination or resignation due to the Executive’s death or disability shall not constitute a Qualifying
Termination.
(g) “Release
Conditions” mean the following conditions: (i) Company has received the Executive’s executed Release, and (ii) any
rescission period applicable to the Executive’s executed Release has expired without the Executive revoking or rescinding the Release.
(h) “Separation”
means a “separation from service,” as defined in the regulations under Section 409A of the Code.
7. Successors.
(a) Company’s
Successors. The Company shall require any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company’s business and/or assets, by an agreement in substance and
form reasonably satisfactory to the Executive, to assume this Agreement and to agree expressly to perform this Agreement in the same manner
and to the same extent as the Company would be required to perform it in the absence of a succession. For all purposes under this Agreement,
the term “Company” shall include any successor to the Company’s business and/or assets or which becomes bound by this
Agreement by operation of law.
(b) Executive’s
Successors. This Agreement and all rights of the Executive hereunder shall inure to the benefit of, and be enforceable by, the Executive’s
personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
8. Golden
Parachute Taxes.
(a) Best
After-Tax Result. In the event that any payment or benefit received or to be received by Executive pursuant to this Agreement or otherwise
(“Payments”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code
and (ii) but for this subsection (a), be subject to the excise tax imposed by Section 4999 of the Code, any successor provisions,
or any comparable federal, state, local or foreign excise tax (“Excise Tax”), then such Payments shall be either (A) provided
in full pursuant to the terms of this Agreement or any other applicable agreement, or (B) provided as to such lesser extent which
would result in no portion of such Payments being subject to the Excise Tax (“Reduced Amount”), whichever of the foregoing
amounts, taking into account the applicable federal, state, local and foreign income, employment and other taxes and the Excise Tax (including,
without limitation, any interest or penalties on such taxes), results in the receipt by Executive, on an after-tax basis, of the greatest
amount of payments and benefits provided for hereunder or otherwise, notwithstanding that all or some portion of such Payments may be
subject to the Excise Tax. Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall
be made by independent tax counsel designated by the Company and reasonably acceptable to Executive (“Independent Tax Counsel”),
whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations
required under this Section, Independent Tax Counsel may make reasonable assumptions and approximations concerning applicable taxes
and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code; provided that
Independent Tax Counsel shall assume that Executive pays all taxes at the highest marginal rate. The Company and Executive shall furnish
to Independent Tax Counsel such information and documents as Independent Tax Counsel may reasonably request in order to make a determination
under this Section. The Company shall bear all costs that Independent Tax Counsel may reasonably incur in connection with any calculations
contemplated by this Section. In the event that the above clause (ii)(B) of this Section 8 applies, then based on the information
provided to Executive and the Company by Independent Tax Counsel, except to the extent that it would cause adverse tax treatment to Executive
under Section 409A of the Code, Executive may, in Executive’s sole discretion and within thirty (30) days of the date on which
Executive is provided with the information prepared by Independent Tax Counsel, determine which and how much of the Payments (including
the accelerated vesting of equity compensation awards) to be otherwise received by Executive shall be eliminated or reduced (as long as
after such determination the value (as calculated by Independent Tax Counsel in accordance with the provisions of Sections 280G and 4999
of the Code) of the amounts payable or distributable to Executive equals the Reduced Amount) and otherwise the Company shall make such
determination. If the Internal Revenue Service (the “IRS”) determines that any Payment is subject to the Excise Tax, then
Section 8(b) hereof shall apply, and the enforcement of Section 8(b) shall be the exclusive remedy to the Company.
(b) Adjustments.
If, notwithstanding any reduction described in Section 8(a) hereof (or in the absence of any such reduction), the IRS determines
that Executive is liable for the Excise Tax as a result of the receipt of one or more Payments, then Executive shall be obligated to surrender
or pay back to the Company, within one-hundred twenty (120) days after a final IRS determination, an amount of such payments or benefits
equal to the “Repayment Amount.” The Repayment Amount with respect to such Payments shall be the smallest such amount, if
any, as shall be required to be surrendered or paid to the Company so that Executive’s net proceeds with respect to such Payments
(after taking into account the payment of the Excise Tax imposed on such Payments) shall be maximized. Notwithstanding the foregoing,
the Repayment Amount with respect to such Payments shall be zero (0) if a Repayment Amount of more than zero (0) would not eliminate the
Excise Tax imposed on such Payments or if a Repayment Amount of more than zero would not maximize the net amount received by Executive
from the Payments. If the Excise Tax is not eliminated pursuant to this Section 8(b), Executive shall pay the Excise Tax.
9. Miscellaneous
Provisions.
(a) Section 409A.
To the extent (i) any payments to which Executive becomes entitled under this Agreement, or any agreement or plan referenced herein,
in connection with Executive’s termination of employment with the Company constitute deferred compensation subject to Section 409A
of the Code and (ii) Executive is deemed at the time of such termination of employment to be a “specified” employee under
Section 409A of the Code, then such payment or payments shall not be made or commence until the earlier of (i) the expiration
of the six (6)-month period measured from the Executive’s Separation; or (ii) the date of Executive’s death following
such Separation; provided, however, that such deferral shall only be effected to the extent required to avoid adverse tax treatment to
Executive, including (without limitation) the additional twenty percent (20%) tax for which Executive would otherwise be liable under
Section 409A(a)(1)(B) of the Code in the absence of such deferral. Upon the expiration of the applicable deferral period, any
payments which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this paragraph
shall be paid to Executive or Executive’s beneficiary in one lump sum (without interest). Except as otherwise expressly provided
herein, to the extent any expense reimbursement or the provision of any in-kind benefit under this Agreement (or otherwise referenced
herein) is determined to be subject to (and not exempt from) Section 409A of the Code, the amount of any such expenses eligible for
reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement
or in kind benefits to be provided in any other calendar year, in no event shall any expenses be reimbursed after the last day of the
calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement
or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit. To the extent that any provision of
this Agreement is ambiguous as to its exemption or compliance with Section 409A of the Code, the provision will be read in such a
manner so that all payments hereunder are exempt from Section 409A of the Code to the maximum permissible extent, and for any payments
where such construction is not tenable, that those payments comply with Section 409A of the Code to the maximum permissible extent.
To the extent any payment under this Agreement may be classified as a “short-term deferral” within the meaning of Section 409A
of the Code, such payment shall be deemed a short-term deferral, even if it may also qualify for an exemption from Section 409A of
the Code under another provision of Section 409A of the Code. Payments pursuant to this Agreement (or referenced in this Agreement)
are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the regulations under Section 409A
of the Code. Notwithstanding anything to the contrary in this Agreement, if the period of time comprising (x) the time to consider
and make effective the Release and (y) the time after the expiration or cessation of any cure period or attempt to cure Good Reason,
spans two calendar years, then, any payments that constitute deferred compensation subject to Section 409A of the Code will be made
in the second calendar year. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be
imposed on Executive by Section 409A of the Code or damages for failing to comply with Section 409A of the Code.
(b) Other
Arrangements. This Agreement supersedes any and all severance arrangements, vesting acceleration arrangements, or arrangements regarding
a Change in Control under any agreement, severance and salary continuation arrangements, programs and plans which were previously offered
by the Company to the Executive, including change in control severance arrangements pursuant to an employment agreement or offer letter,
and Executive hereby waives Executive’s rights to such other benefits. In no event shall any individual receive cash severance benefits
under both this Agreement and any other vesting acceleration arrangement, severance pay or salary continuation program, plan or other
arrangement with the Company.
(c) Dispute
Resolution. The Company and Executive agree that any dispute, claim or controversy arising out of or relating to this Agreement or
the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of
this paragraph, will be determined by arbitration administered by JAMS pursuant to their Employment Arbitration Rules and Procedures
which are located at https://www.jamsadr.com/rules-employment-arbitration/ and available from the Company by request. The arbitration
will be conducted in the Executive’s county of residence, or the geographically closest office of JAMS, or such other location
as the Parties may agree, or where otherwise required by applicable law. This mutual agreement to arbitrate claims related to this Agreement
will not include claims that, as a matter of federal law or state/local law that is not preempted by federal law, the parties cannot
agree to arbitrate.
Unless applicable law requires otherwise, the arbitrator
will have the authority to determine the enforceability of this Agreement as well as whether a claim is arbitrable, both of which will
be decided under the Federal Arbitration Act. This Agreement does not include an agreement for Executive to arbitrate claims on a class,
collective or representative basis. To the fullest extent permitted by law, no arbitrator shall have the authority to consider class,
collective or representative claims, to order consolidation or to join different claimants or to grant relief other than on an individual
basis to the individual claimant involved. Disputes do not include: (i) claims that, as a matter of federal, state or local law,
the Parties cannot agree to arbitrate, on a pre-dispute basis or otherwise (unless such claims are preempted by federal law). The
arbitrator shall have the authority to adjudicate any cause of action, or the entire claim, pursuant to a motion for summary judgment
and/or adjudication and to set deadlines for filing motions for summary judgment and/or adjudication, and to set briefing schedules for
any motions. If there is a conflict between the JAMS Rules and this Agreement, this Agreement governs.
Any arbitral award determination shall be final
and binding on the Company and Executive and may be entered as a judgment in a court of competent jurisdiction. The arbitrator must issue
an award in writing which shall include a written, reasoned statement of decision or opinion that fully sets forth (a) an application
of the facts to the law of the case; (b) findings of fact from the evidence presented; (c) conclusions of law based upon the
parties’ respective legal theories; and (d) the arbitrator’s calculations of the types of damages and/or other monetary
remedies awarded to any party, if any.
All arbitration fees and costs relating to the
arbitrator and the arbitration proceeding itself will be paid for by the Company. Each Party will pay its own attorneys’ fees
and costs, if any; provided that if either Party prevails on a claim which affords the prevailing Party attorneys’ fees pursuant
to applicable law, statute, or contract, the arbitrator may award reasonable attorneys’ fees and costs consistent with applicable
law.
Nothing in this section prevents either party from
participating as a witness in any proceeding. Nor does this section limit any right that Executive may have regarding the disclosure
information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Executive has reason
to believe is unlawful. This section does not prevent Executive from making truthful statements or disclosures about alleged unlawful
employment practices. Nor does this section limit any rights Executive may have regarding reporting any allegations of unlawful
conduct to federal, state, or local officials for investigation. Executive and the Company agree that the enforceability of this
paragraph will be governed exclusively by the Federal Arbitration Act and acknowledge that the Company’s business and Executive’s
employment involve interstate commerce.
Nothing in this section prevents Executive from
discussing or disclosing information about unlawful acts in the workplace. This agreement to arbitrate is freely negotiated between Executive
and Company and is mutually entered into between the parties. By entering into this Agreement, the Parties are waiving all rights to have
their disputes heard or decided by a jury or in a court trial.
________ By initialing here, Executive acknowledges
that he or she has read this paragraph and agrees with the arbitration provision.
(d) Notice.
Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or deposited with
a reputable nationally recognized overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall
be addressed to the Executive at the home address most recently communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary.
(e) Waiver.
No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing
and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition
or provision or of the same condition or provision at another time.
(f) Withholding
Taxes. All payments made under this Agreement shall be subject to applicable withholding and income taxes.
(g) Severability.
The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
(h) No
Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive,
which rights are hereby expressly reserved by each, to terminate the Executive’s service at any time and for any reason, with or
without Cause.
(i) Choice
of Law. The laws of Executive’s state of residence during the applicable time period (the “Executive State”), without
respect to its provisions for conflict of laws, will govern this Agreement. Pursuant to Section 9(c) above any dispute, controversy,
or claim arising out of, based upon, or relating to this Agreement will be submitted to arbitration in compliance with the terms of Section 9(c).
To the extent a claim is not covered by Section 9(c), each Party hereby (a) expressly consents to the exclusive personal jurisdiction
and venue of the state and federal courts located in the Executive State.
[Signature Page to Severance and Change in
Control Agreement Follows]
IN WITNESS WHEREOF, each of the parties has executed
this Agreement, in the case of the Company by its duly authorized officer, as of the day and year first above written. This Agreement
may be signed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and
the same instrument.
| EXECUTIVE |
|
ENERGOUS CORPORATION |
| |
|
|
| /s/ Mallorie Burak |
|
/s/ David Roberson |
| Name: |
Mallorie Burak |
|
By: |
David Roberson |
| |
|
Title: |
Chairman of the Board |
| |
|
|
|
|
v3.24.1.1.u2
| X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
| Name: |
dei_AmendmentFlag |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
| Name: |
dei_DocumentPeriodEndDate |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:dateItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
| Name: |
dei_DocumentType |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:submissionTypeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
| Name: |
dei_EntityAddressAddressLine1 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 2 such as Street or Suite number
| Name: |
dei_EntityAddressAddressLine2 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- Definition
+ References
+ Details
| Name: |
dei_EntityAddressCityOrTown |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCode for the postal or zip code
| Name: |
dei_EntityAddressPostalZipCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the state or province.
| Name: |
dei_EntityAddressStateOrProvince |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:stateOrProvinceItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
Energous (NASDAQ:WATT)
Gráfico Histórico do Ativo
De Mai 2024 até Jun 2024
Energous (NASDAQ:WATT)
Gráfico Histórico do Ativo
De Jun 2023 até Jun 2024
