UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(C)
OF THE SECURITIES
EXCHANGE ACT OF 1934
Check the appropriate box:
| ☐ | Preliminary Information Statement |
| ☐ | Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2)) |
| ☒ | Definitive Information Statement |
| Greenidge Generation Holdings Inc. |
(Name of Registrant as Specified in Its Charter)
|
Payment of Filing Fee (Check the appropriate box):
| ☐ | Fee paid previously with preliminary materials. |
| ☐ | Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11. |
IMPORTANT NOTICE OF INTERNET AVAILABILITY
OF INFORMATION STATEMENT
An Information Statement regarding a recent
corporate action of Greenidge Generation Holdings Inc., (the “Company”) is available for your review. This Notice of Internet
Availability (the “Notice”) presents only an overview of the more complete Information Statement that is available to you
on the internet or by mail.
The Company is not soliciting proxy or consent authority, but
is furnishing an Information Statement pursuant to Rule 14a-16 and 14c-2 under the Securities Exchange Act of 1934,
as amended.
We encourage you to access and review all of
the important information contained in the Information Statement.
The Information Statement details the approval,
by written consent, of the Second Amended and Restated 2021 Equity Incentive Plan (the “Second Amended and Restated Plan”)
which provides for an increase in the maximum aggregate number of shares of the company’s Class A common stock, par value $0.0001
per share (“Class A common stock”), that may be issued by 700,000 shares of Class A common stock, from 883,111 shares of Class
A common stock under the Company’s Amended and Restated 2021 Equity Incentive Plan to 1,583,111 shares of Class A common stock under
the Seconded Amended and Restated Plan (such increase in shares of Class A common stock authorized for issuance referred to hereafter
as the “Authorized Share Increase”). The Authorized Share Increase and Second Amended and Restated Plan shall be effective
40 calendar days after the date that this Notice of Internet Availability of the Information is mailed to our stockholders.
The Information Statement is being provided
to you in lieu of a proxy statement.
The Second Amended and Restated Plan was unanimously
approved by the Company’s board of directors, on November 12, 2024. However, the Company is not soliciting your vote because on
November 13, 2024, entities controlled by Atlas Capital Resources GP LLC (collectively, “Atlas”), who hold approximately
74.7% of the total voting power of the outstanding shares of capital stock of the Company entitled to vote in a stockholder meeting of
the Company as of November 12, 2024 (the “Record Date”), also approved the Authorized Share Increase and adopted the Second
Amended and Restated Plan by written consent in lieu of a special meeting of stockholders. This action by written consent is sufficient
to approve the Authorized Share Increase and adopt the Second Amended and Restated Plan without the affirmative vote of any other stockholders.
Accordingly, no other votes are necessary to adopt the Authorized Share Increase and the Second Amended and Restated Plan and your approval
is neither required nor requested.
The full Information Statement is available
on the Company’s website at https://ir.greenidge.com/def14cinformationstatement. A paper or email copy of the full Information
Statement or other Company-related information may only be obtained, without charge, by contacting the Company at the email address,
mailing address or telephone number below. Requests for a paper or email copy of the full Information Statement must be made on or before
November 29, 2024 to ensure timely delivery. There is no charge to you for requesting a copy.
_________________________
Greenidge Generation Holdings Inc.
Attention: Investor Relations
590 Plant Road
Dresden, NY 14441
(315) 536-2359
investorrelations@greenidge.com
NOTICE OF ACTION BY WRITTEN CONSENT OF HOLDERS OF
A MAJORITY OF THE TOTAL VOTING POWER
OF ALL OUTSTANDING CAPITAL STOCK OF
GREENIDGE GENERATION HOLDINGS INC.
Dear Greenidge Generation Holdings Inc. Stockholders:
The accompanying information statement (the “Information Statement”)
is being distributed to the holders of record of Class A common stock, par value $0.0001 per share (our “Class A common stock”)
and Class B common stock, par value $0.0001 per share (our “Class B common stock”, together with our Class A common stock,
our “common stock”) of Greenidge Generation Holdings Inc., a Delaware corporation (the “Company” or “us”),
as of the close of business on November 12, 2024, the date established by our Board of Directors (the “Board”) as the record
date (the “Record Date”), under Rule 14c-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
The purpose of the accompanying Information Statement is to inform you that, with the unanimous written consent of the Board, on November
12, 2024, and the written consent of entities controlled by Atlas Capital Resources GP LLC (collectively, “Atlas”), our stockholder
holding a majority of the total voting power of our outstanding capital stock entitled to vote in a stockholder meeting of the Company
as of the Record Date, we are amending and restating our Amended and Restated 2021 Equity Incentive Plan to increase the maximum aggregate
number of shares of Class A common stock that may be issued under the Amended and Restated 2021 Equity Incentive Plan to 1,583,111 shares
of Class A common stock (the “Second Amended and Restated Plan”) (such increase in shares referred to hereafter as the “Authorized
Share Increase”), to be effective 40 calendar days after the date that the Notice of Internet Availability of the Information Statement
is sent or given to our stockholders.
As of the close of business on the Record Date, Atlas beneficially owned
119,047 shares of Class A common stock and 2,680,030 shares of Class B common stock, representing 24.5% of the total outstanding capital
stock and 74.7% of the total voting power of the outstanding capital stock of the Company. The accompanying Information Statement shall
be considered the notice required under Section 228(e) of the Delaware General Corporation Law (the “DGCL”).
The purpose of the Authorized Share Increase
is to ensure our ability to continue to grant stock options, restricted stock units and other equity awards to our employees, directors
and other service providers, which we believe is vital to our ability to attract and retain outstanding and highly skilled individuals
in the extremely competitive labor markets in which we must compete. Our employees are valued assets, and such awards are crucial to our
ability to motivate individuals in our service to achieve our goals and to link the interests of our employees and other award recipients
to those of our stockholders.
The accompanying Information Statement, which
describes the Authorized Share Increase and Second Amended and Restated Plan in more detail and provides our stockholders with additional
information, is being furnished to you for informational purposes only pursuant to Section 14(c) of the Exchange Act and the rules and
regulations promulgated thereunder. Under the DGCL, our second amended and restated certificate of incorporation and our amended and
restated bylaws, each as amended to date, any action required or permitted to be taken at any annual or special meeting or stockholders
may be taken without a meeting and by written consent to the extent permitted by and in the manner provided by Section 228 of the DGCL.
The written consent executed by Atlas is sufficient to approve the Authorized Share Increase and the Second Amended and Restated Plan,
and no other stockholder’s approval is required or necessary.
The Company has determined to utilize the Securities
and Exchange Commission rules that allow issuers to furnish stockholder materials to their stockholders on the Internet. Accordingly,
we are sending a Notice of Internet Availability of the Information Statement, on or about November 18, 2024, to our stockholders of record
as of the close of business on the Record Date. The notice contains instructions on how to access our Information Statement. In addition,
the notice contains instructions on how you may receive a paper copy of the Information Statement or elect to receive your Information
Statement over the Internet. The Company believes these rules allow it to provide you with the information you need while lowering the
costs of delivery and reducing the environmental impact of the mailing.
The accompanying Information Statement is also
available at https://ir.greenidge.com/def14cinformationstatement. Stockholders may also request a copy of the Information Statement by
contacting us at (315) 536-2359.
THIS IS NOT A NOTICE OF A SPECIAL
MEETING OF STOCKHOLDERS, AND NO STOCKHOLDER MEETING WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED HEREIN. THIS NOTICE AND THE ACCOMPANYING
INFORMATION STATEMENT ARE BEING FURNISHED TO YOU SOLELY FOR THE PURPOSE OF INFORMING STOCKHOLDERS OF THE MATTERS DESCRIBED HEREIN PURSUANT
TO SECTION 14(C) OF THE EXCHANGE ACT AND THE REGULATIONS PROMULGATED THEREUNDER, INCLUDING REGULATION 14C. WE ARE NOT ASKING YOU FOR A
PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
| |
Sincerely, |
| |
|
| |
By: |
|
| |
|
Name: |
Jordan Kovler |
| |
|
Title: |
Chief Executive Officer |
NOTICE ABOUT INFORMATION CONTAINED IN THIS
INFORMATION STATEMENT
You should assume that the information in this Information
Statement or any supplement is accurate only as of the date of this Information Statement. Our business, financial condition, results
of operations and prospects may have changed since that date and may change again.
TABLE OF CONTENTS
| INFORMATION STATEMENT |
1 |
| PURPOSE OF INFORMATION STATEMENT |
1 |
| GENERAL OVERVIEW OF THE AUTHORIZED SHARE INCREASE |
1 |
| REASONS FOR AND GENERAL EFFECT OF THE AUTHORIZED SHARE INCREASE |
1 |
| VOTES REQUIRED |
2 |
| FORWARD-LOOKING STATEMENTS |
2 |
| SECURITY AUTHORIZED FOR ISSUANCE UNDER THE PLAN |
3 |
| SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT |
4 |
| DIRECTOR COMPENSATION |
6 |
| EXECUTIVE COMPENSATION |
7 |
| APPROVAL OF THE PLAN AUTHORIZED SHARE INCREASE |
12 |
| EFFECTIVENESS OF CORPORATE ACTION |
17 |
| DISSENTERS’ RIGHTS OF APPRAISAL |
17 |
| INCORPORATION BY REFERENCE |
17 |
| DISTRIBUTION AND COSTS |
17 |
| WHERE YOU CAN FIND MORE INFORMATION |
18 |
| STOCKHOLDERS SHARING AN ADDRESS |
18 |
| OTHER MATTERS |
18 |
GREENIDGE GENERATION HOLDINGS, INC.
INFORMATION STATEMENT
November 18, 2024
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
PURPOSE
OF INFORMATION STATEMENT
This Information Statement advises stockholders
of Greenidge Generation Holdings Inc. (the “Company” or “us”) of actions taken by the unanimous written consent,
dated November 12, 2024, of our board of directors (the “Board”) and written consent, dated November 13, 2024, of entities
controlled by Atlas Capital Resources GP LLC (collectively, “Atlas”), who hold approximately 74.7% of the total voting power
of the outstanding shares of capital stock of the Company entitled to vote in a stockholder meeting of the Company as of November 12,
2024 (the “Record Date”) to increase the maximum aggregate number of shares of Class A common stock that may be issued under
the Amended and Restated 2021 Equity Incentive Plan (the “2021 Equity Incentive Plan”).
GENERAL OVERVIEW OF THE AUTHORIZED
SHARE INCREASE
On November 12, 2024, the Board executed an
unanimous written consent pursuant to which it approved the Second Amended and Restated 2021 Equity Incentive Plan, in the form substantially
attached as Annex A to this Information Statement (the “Second Amended and Restated Plan”). The Second Amended and Restated
Plan provides for an increase in the maximum aggregate number of shares of Class A common stock that may be issued by 700,000 shares of
Class A common stock from 883,111 shares of Class A common stock (after accounting for the Company’s 1-for-10 reverse stock split
effectuated in May 2023) under the 2021 Equity Incentive Plan to 1,583,111 shares of Class
A common stock under the Second Amended and Restated Plan (such increase in shares of Class A common stock referred to hereafter as the
“Authorized Share Increase”).
On November 13, 2024, Atlas (holding a majority of the total voting power of our outstanding capital stock entitled to vote in a stockholder meeting of the Company
as of the Record Date) executed a written consent pursuant to which it approved the Authorized Share Increase and the Second Amended and
Restated Plan.
This Information Statement is furnished solely
for the purpose of informing our stockholders, in the manner required under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the Delaware General Corporation Law (the “DGCL”), of the corporate actions described herein. Notwithstanding
the execution and delivery of the written consents by the Board and Atlas, as described above, under applicable securities regulations,
the Second Amended and Restated Plan and the Authorized Share Increase will not become effective until the date that is 40 calendar days
after the date that the Notice of Internet Availability of the Information Statement is sent or given to our stockholders. The Notice
of Internet Availability of the Information Statement is being mailed to our stockholders on or about November 18, 2024. A copy of the
Second Amended and Restated Plan is attached to the Information Statement as Annex A.
REASONS FOR AND GENERAL EFFECT OF
THE AUTHORIZED SHARE INCREASE
In reviewing our compensation practices, including
in light of various evolving market practices, as well as to enhance the Company’s ability to make awards, the Board determined
to increase the number of shares authorized for issuance under the 2021 Equity Incentive Plan
to ensure our ability to continue to grant stock options, restricted stock units and other equity awards to our employees, directors
and other service providers, which we believe is vital to our ability to attract and retain outstanding and highly skilled individuals
in the extremely competitive labor markets in which we must compete. Our employees are valued assets, and such awards are crucial to
our ability to motivate individuals in our service to achieve our goals and to link the interests of our employees and other award recipients
to those of our stockholders.
VOTES REQUIRED
The Board is not soliciting your consent or
your proxy in connection with the Authorized Share Increase or the Second Amended and Restated Plan, and no consents or proxies are being
requested from stockholders. The vote that is required to approve the Authorized Share Increase and the Second Amended and Restated Plan
is the affirmative vote of the holders of a majority of the total voting power of all outstanding capital stock of the Company entitled
to vote in a stockholder meeting of the Company as of the Record Date. Holders of our Class A common stock are entitled to one vote per
share of Class A common stock. Holders of our Class B common stock are entitled to ten votes per share of Class B common stock.
Section 228 of the DGCL and Section 2.11 of
our Amended and Restated Bylaws provide that stockholders of the Company may act by written consent without a meeting if such stockholders
hold the number of shares representing not less than the minimum number of votes that would be necessary to authorize or take such actions
at a meeting at which all shares entitled to vote thereon were present and voted. As of the close of business on the Record Date, the
Company had 8,703,030 shares of our Class A common stock and 2,733,394 shares of our Class B common stock outstanding. Of those shares,
119,047 shares of Class A common stock and 2,680,030 shares of Class B common stock, representing 24.5% of the total outstanding capital
stock and 74.7% of the total voting power of the outstanding capital stock, are held by Atlas, which approved the Authorized Share Increase
and Second Amended and Restated Plan pursuant to the written consent executed by Atlas on November 13, 2024.
FORWARD-LOOKING STATEMENTS
The information, financial
projections and other estimates contained herein contain “forward-looking” statements as that term is defined in Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Exchange Act, as amended by the Private Securities Litigation Reform
Act of 1995, including, but not limited to statements regarding the closing of the transactions contemplated by the Authorized Share Increase,
the Second Amended and Restated Plan, and the anticipated effect of the same on the Company and our stockholders. Such financial projections
and estimates are as to future events and are not to be viewed as facts, and reflect various assumptions of management of the Company
concerning the future performance of the Company and are subject to significant business, financial, economic, operating, competitive
and other risks and uncertainties and contingencies (many of which are difficult to predict and beyond the control of the Company) that
could cause actual results to differ materially from the statements and information included herein. Forward-looking statements concern
future circumstances and results and other statements that are not historical facts and are sometimes identified by the words “may,”
“will,” “should,” “potential,” “intend,” “expect,” “endeavor,”
“seek,” “anticipate,” “estimate,” “overestimate,” “underestimate,” “believe,”
“could,” “project,” “predict,” “continue,” “target” or other similar words
or expressions. Forward-looking statements are based upon current plans, estimates and expectations that are subject to risks, uncertainties
and assumptions. Forward-looking statements may include statements about various risks and uncertainties, including those described under
the heading “Risk Factors” as detailed from time to time in the Company’s reports filed with the Securities and Exchange
Commission (the “SEC”), including the Company’s annual report on Form 10-K, periodic quarterly reports on Form 10-Q,
current reports on Form 8-K and other documents filed with the SEC. Such risk and uncertainties are not exclusive. Any forward-looking
statements speak only as of the date of this communication. The Company does not undertake any obligation to update any forward-looking
statements, whether as a result of new information or development, future events or otherwise, except as required by law. Readers are
cautioned not to place undue reliance on any of these forward-looking statements. Additionally, descriptions herein of market conditions
and opportunities are presented for informational purposes only; there can be no assurance that such conditions will actually occur or
result in positive returns. Recipients of this communication should make their own investigations and evaluations of any information referenced
herein.
SECURITY AUTHORIZED FOR ISSUANCE UNDER
THE PLAN
The following table sets forth, as of December 31, 2023,
certain information related to our compensation plans under which shares of our common stock may be issued.
| |
Number of securities to be issued
upon exercise of outstanding
options, warrants and rights |
|
Weighted average exercise price of
outstanding options, warrants and
rights |
|
Number of securities remaining
available for future issuance under
equity compensation plans (excluding securities
reflected in column (a)) |
| Equity compensation plans approved by security holders |
|
|
|
|
|
| 2021 Equity Incentive Plan |
193,561(1) |
|
$ 23.43 |
|
489,840(4) |
| Equity compensation plans not approved by security holders |
|
|
|
|
|
| Inducement Stock Option Awards |
307 ,684(2) |
|
$ 13.20 |
|
— |
| Total |
501,245 |
|
16.57(3) |
|
489,840 |
___________
| (1) | As of December 31, 2023, there were 151,032 stock options to purchase shares of common stock and 42,529 RSUs outstanding under our
2021 Equity Incentive Plan. |
| (2) | Reflects inducement stock option awards granted to key executives in accordance with the commencement of their employment. These inducement
stock options were granted outside of our 2021 Equity Incentive Plan and in accordance with NASDAQ Listing Rule 5635(c)(4) and thus did
not require shareholder approval. |
| (3) | Represents the weighted-average exercise price of outstanding stock options. |
| (4) | Represents shares of common stock available for future issuance under our 2021 Equity Incentive Plan. The material features of our
equity incentive plans are more fully described in Note 8 to our consolidated financial statements included in our Annual Report on Form
10-K for the year ended December 31, 2023 filed with the SEC on April 10, 2024. |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth information with respect
to beneficial ownership of our common stock as of the Record Date by: (i) each of our directors and named executive officers, (ii) all
directors and executive officers as a group, and (iii) each person who is known by us to beneficially own 5% or more of our outstanding
common stock.
Beneficial ownership is determined in accordance with
the rules of the SEC and generally requires that such person have voting or investment power with respect to securities. In computing
the number of shares beneficially owned by a person listed below and the percentage ownership of such person, including the percentage
of voting stock, all common stock underlying options, warrants or convertible securities held by each such person that are exercisable
or convertible within 60 days of the Record Date are deemed outstanding, but are not deemed outstanding for computing the percentage ownership
of any other person. Except as otherwise indicated in the footnotes to this table, or as required by applicable community property laws,
all persons listed have sole voting and investment power for all shares shown as beneficially owned by them. Unless otherwise indicated
in the footnotes, the address for each person is c/o Greenidge Generation Holdings Inc., 590 Plant Road, Dresden, NY 14441.
| |
Number of Shares Beneficially Owned |
|
|
|
|
| Name and Address of Beneficial Owner |
Class A
Common Stock |
|
Class B
Common Stock |
|
Percent Ownership(1) |
|
Percent Voting Power(2) |
| Directors and Named Executive Officers: |
|
|
|
|
|
|
|
| David Anderson(3) |
123,521 |
|
— |
|
1.1% |
|
* |
| Andrew M. Bursky(4) |
119,047 |
|
2,680,030 |
|
24.5% |
|
74.7% |
| Timothy Fazio(4) |
119,047 |
|
2,680,030 |
|
24.5% |
|
74.7% |
| David Filippelli |
— |
|
— |
|
— |
|
— |
| Dale Irwin |
73,912 |
|
— |
|
* |
|
* |
| Jordan Kovler(5) |
101,615 |
|
— |
|
* |
|
* |
| Jerome Laye |
— |
|
— |
|
— |
|
— |
| Robert Loughran(6) |
1,346 |
|
— |
|
* |
|
* |
| Timothy Lowe |
2,400 |
|
7,121 |
|
* |
|
* |
| Christian Mulvihill(7) |
28,547 |
|
— |
|
* |
|
* |
| Michael Neuscheler |
3,711 |
|
— |
|
* |
|
* |
| George (Ted) Rogers |
17,240 |
|
16,000 |
|
* |
|
* |
| Daniel Rothaupt |
2,053 |
|
14,242 |
|
* |
|
* |
| All directors and executive officers, as a group (13 persons) |
473,392 |
|
2,717,393 |
|
27.9% |
|
76.7% |
| Principal Stockholders (> 5% of outstanding common stock) |
|
|
|
|
|
|
|
| Entities affiliated with Atlas(4) |
119,047 |
|
2,680,030 |
|
24.5% |
|
74.7% |
| |
|
|
|
|
|
|
|
* Indicates less than 1%
| (1) | Based on 8,703,030 shares of Class A common stock outstanding plus 2,733,394 shares of Class B common stock outstanding as of the
Record Date. |
| (2) | Based on 8,703,030 shares of Class A common stock outstanding plus 2,733,394 shares of Class B common stock outstanding as of the
Record Date. Each share of Class A common stock is entitled to one vote per share and each share of Class B common stock is entitled to
ten votes per share. |
| (3) | Represents shares underlying stock options granted to Mr. Anderson in connection with his former employment as Chief Executive Officer
of the Company, which have an exercise price of $13.20 per share and expire on October 10, 2032. |
| (4) | Based solely on the Schedule 13D filed on February 9, 2023, adjusted for the 1-for-10 reverse stock split effectuated May 2023.
Includes 119,047 shares of Class A common stock held directly by GGH Bridge Investment LP, 1,920,266 shares of Class B common stock held
of record by Atlas Capital Resources (A9) LP, 689,512 shares of Class B common stock held of record by Atlas Capital Resources (A9-Parallel)
LP and 70,253 shares of Class B common stock held of record by Atlas Capital Resources (P) LP. Atlas Capital GP LP (“ACR GPLP”)
is the general partner of these entities and Atlas Capital Resources GP LLC (“ACR GP”) is the general partner of ACR GPLP,
each of which may be deemed to beneficially own the share held by these entities. Mr. Fazio and Mr. Bursky are each a managing
partner of ACR GP and may be deemed to have shared voting and investment power over the securities held by these entities. Mr. Fazio
and Mr. Bursky each disclaim beneficial ownership of such shares except to the extent of each of his pecuniary interest therein.
The address for Messrs. Fazio and Bursky is c/o Atlas Holdings LLC, 100 Northfield Street, Greenwich, CT 06830. |
| (5) | Includes (i) 51,282 shares of restricted stock that are scheduled to vest within 60 days of the Record Date and (ii) 33,333 shares
underlying stock options owned by Mr. Kovler, which have an exercise price of $4.97 per share and expire on November 16, 2033, that are
exercisable within 60 days of the Record Date. |
| (6) | Mr. Loughran’s employment with the Company terminated effective October 11, 2023. Mr. Loughran’s beneficial ownership
of Company shares is based upon the most recent information available to the Company. |
| (7) | Includes (i) 1,666 RSUs that are scheduled to vest within 60 days of the Record Date and (ii) 2,000 shares underlying stock options
owned by Mr. Mulvihill, which have an exercise price of $718 per share and expire on July 31, 2031. |
DIRECTOR COMPENSATION
Our Compensation Committee
has previously approved the following annual cash retainers for each of our non-employee directors: $30,000 for service as a member of
the Board; $20,000 for service as the Vice Chair of the Board; and $10,000 for service as the Chair of the Audit Committee. For 2023,
our non-employee directors received cash retainers for their service as directors during 2023 in the amounts set forth in the table below.
Messrs. Anderson, Bursky,
Fazio, Filippelli and Lay do not receive any compensation from us.
The table below sets forth information
regarding director compensation for each director’s services as a member of our Board for the year ended December 31, 2023.
| Name |
|
Fees Earned or Paid in Cash ($) |
|
Stock Awards ($) |
|
Option Awards ($) |
|
Total ($) |
| David Anderson |
|
— |
|
— |
|
— |
|
— |
| Andrew M. Bursky |
|
— |
|
— |
|
— |
|
— |
| Timothy Fazio |
|
— |
|
— |
|
— |
|
— |
| David Filippelli |
|
— |
|
— |
|
— |
|
— |
| Jordan Kovler(1) |
|
15,833 |
|
— |
|
— |
|
15,833 |
| Jerome Lay |
|
— |
|
— |
|
— |
|
— |
| Timothy Lowe |
|
30,000 |
|
— |
|
— |
|
30,000 |
| Michael Neuscheler |
|
40,000 |
|
— |
|
— |
|
40,000 |
| George (Ted) Rogers |
|
50,000 |
|
— |
|
— |
|
50,000 |
| Daniel Rothaupt |
|
30,000 |
|
— |
|
— |
|
30,000 |
___________
| (1) | Mr. Kovler was appointed to the Board in March 2023 and was appointed Chief Executive Officer in November 2023; consequently, he was
not compensated as a non-employee director following his appointment as the Chief Executive Officer. |
EXECUTIVE COMPENSATION
This section sets forth the compensation of our
named executive officers (our “NEOs”), a group comprising (i) our principal executive officers during the last completed fiscal
year, (ii) our two other most highly compensated executive officers who were serving as executive officers at the end of the last completed
fiscal year and (iii) up to two of our other most highly compensated executive officers who were not serving as executive officers at
the end of our last completed fiscal year. Our NEOs are:
| • | Jordan Kovler, our Chief Executive Officer; |
| • | David Anderson, our former Chief Executive Officer; |
| • | Dale Irwin, our President; |
| • | Christian Mulvihill, our Chief Financial Officer; and |
| • | Robert Loughran, our former Chief Financial Officer. |
As an “emerging growth company”
under the JOBS Act, we are permitted to rely on exemptions from certain disclosure requirements that are not applicable to other public
companies that are not emerging growth companies. Accordingly, we have not included in this section a compensation discussion and analysis
of our executive compensation programs or tabular compensation information other than the “Summary Compensation Table” and
the “Outstanding Equity Awards at Fiscal Year-End” table below. In addition, for so long as we are an emerging growth company,
we will not be required to provide disclosure regarding pay versus performance or submit certain executive compensation matters to our
stockholders for advisory votes, such as “say-on-pay” and “say-on-frequency” votes.
Summary Compensation Table
The following table sets forth the compensation
of our NEOs for service in all capacities for the years ended December 31, 2023 and 2022.
|
Name and Principal Position |
Year |
Salary
($) |
Bonus
($)(5) |
Stock
Awards ($) |
Option
Awards ($)(6) |
All Other
Compensation ($)(7) |
Total
Compensation ($) |
Jordan Kovler(1)
Chief Executive Officer |
2023 |
33,654 |
14,384 |
— |
455,470 |
3,746 |
507,254 |
David Anderson(2)
Former Chief Executive Officer |
2023 |
— |
— |
— |
— |
— |
— |
| |
2022 |
93,208 |
— |
— |
1,855,951 |
— |
1,947,899 |
Dale Irwin
President |
2023 |
458,654 |
56,250 |
— |
— |
23,113 |
538,017 |
| |
2022 |
450,000 |
377,307 |
— |
— |
22,245 |
849,552 |
Christian Mulvihill(3)
Chief Financial Officer |
2023 |
213,462 |
35,000 |
— |
— |
19,924 |
268,386 |
Robert Loughran(4)
Former Chief Financial Officer |
2023 |
327,692 |
100,000 |
— |
— |
828,348 |
1,256,041 |
| |
2022 |
400,000 |
— |
— |
— |
28,627 |
428,627 |
_____________
| (1) | Mr. Kovler commenced employment with the Company on November 16, 2023, replacing David Anderson. |
| (2) | Mr. Anderson’s employment with the Company terminated on November 16, 2023. |
| (3) | Mr. Mulvihill commenced employment with the Company on October 11, 2023, replacing Robert Loughran. |
| (4) | Mr. Loughran’s employment with the Company terminated on October 11, 2023. |
| (5) | Does not include certain equity awards made to Messrs. Irwin, Kovler and Mulvihill in 2024 as described in “Elements of Executive
Compensation—Equity Awards.” |
| (6) | Represents the aggregate grant date fair value of stock options (“Options”) granted, computed in accordance with FASB
Topic 718. The Options were granted pursuant to the 2021 Equity Incentive Plan. Terms of the Options are summarized in “Elements
of Executive Compensation—Equity Awards” below. The assumptions made when calculating the amounts reported are found in Note 8:
“Equity Based Compensation” to our audited consolidated financial statements included in Part II, Item 8 of our 2023 Annual
Report. |
| (7) | For Mr. Kovler, includes the cost of health insurance premiums equal to $3,746. For Mr. Irwin, includes the cost of health insurance
premiums equal to $9,913 and $10,045 in 2023 and 2022, respectively, and 401(k) matching contributions in an amount equal to $13,200 and
$12,200 in 2023 and 2022, respectively. For Mr. Mulvihill, includes the cost of health insurance premiums equal to $9,947 and 401(k) matching
contributions in an amount equal $9,977. For Mr. Loughran, includes the cost of health insurance premiums equal to $28,348 (including
$5,926 of continued employer contributions for health coverage under Company-sponsored health plans) and $28,627 in 2023 and 2022, respectively,
and an aggregate $805,926 of payments and benefits paid, accrued or provided, as the case may be, pursuant to the terms of Mr. Loughran's
separation agreement consisting of $80,000 of salary continuation payments, $320,000 of salary payments accrued that will be paid in 2024,
$400,000 or bonus payments accrued that will be paid in 2024 and $5,926 of continued employer contributions for health coverage under
Company-sponsored health plans. |
Elements of Executive Compensation
Base Salary
Base salaries are intended to provide a level
of compensation sufficient to attract and retain an effective management team, when considered in combination with the other components
of our executive compensation program. As of December 31, 2023, (i) Mr. Kovler’s base salary was $350,000, (ii) Mr. Mulvihill’s
base salary was $250,000 and (iii) Mr. Irwin’s base salary was $450,000, which has been subsequently reduced to $350,000 effective
January 14, 2024 in connection with a general salary reduction for management.
Equity Awards
On a go-forward basis, the Company generally
intends to grant annual equity awards pursuant to the 2021 Equity Incentive Plan to senior management, including our NEOs. Subsequent
to the end of the fiscal year ended December 31, 2023, Mr. Irwin was granted 14,423 shares of Class A common stock in connection with
bonus compensation for fiscal year 2022 pursuant to the 2021 Equity Incentive Plan, which vested immediately; Mr. Kovler was granted a
one-time sign-on bonus of 51,282 restricted shares of Class A common stock, which vest on December 8, 2024; and Mr. Mulvihill was granted
a one-time sign on bonus in connection with his appointment as Chief Financial Officer of 32,051 shares of Class A common stock, which
vested immediately.
Anderson Options
As mentioned in the description of Mr.
Anderson’s offer letter below, on October 10, 2022, Mr. Anderson was granted options exercisable for 185,282 shares of the Company’s
Class A common stock (after accounting for the Company’s 1-for-10 reverse stock split effectuated in May 2023). The options would
have vested in equal annual installments on each of the first, second and third anniversaries of the grant date, subject to Mr. Anderson’s
continued service to the Company through each vesting date.
Kovler Options
As mentioned in the description of Mr.
Kovler’s offer letter below, on November 16, 2023, Mr. Kovler was granted options exercisable for 100,000 shares of the Company’s
Class A common stock. The options vest in equal installments on each of the first, second and third anniversaries of the grant date, subject
to Mr. Kovler’s continued service to the Company through each vesting date.
Employment Arrangements with our NEOs
Except as otherwise specifically provided below, all
of our NEOs are employees at will and do not have employment agreements with us.
Offer Letter with Mr. Kovler
In
connection with his employment by the Company as Chief Executive Officer, Mr. Kovler entered into an Offer Letter with the Company, effective
November 16, 2023, pursuant to which Mr. Kovler is employed at will and receives a base annual salary in the amount of $350,000. In
addition, Mr. Kovler received (i) a one-time sign-on bonus equal to a 15-day pro-rated portion of the base salary, and (ii) a one-time
grant of (A) $200,000 worth of the Company’s Class A common stock and (B) 100,000 non-qualified stock options (the “Sign-On
Options”) pursuant to the 2021 Equity Incentive Plan. The Sign-On Options are exercisable at $4.97 per share and vest over a three-year
period in equal annual installments. In addition, Mr. Kovler is eligible to receive an annual target bonus of up to 50% of the base salary
in either cash or equity of the Company (or any combination of cash and equity), subject to such terms and performance conditions as determined
by the Board. Mr.
Kovler and his dependents are also eligible to participate in the Company’s benefits programs, subject to the terms thereof. Mr.
Kovler is also entitled to reimbursement for out-of-pocket travel expenses in connection with the performance of his duties as Chief Executive
Officer pursuant to the Company’s expense reimbursement policies. If the Company terminates Mr. Kovler’s service without cause
or the Company undergoes a Change in Control (as such term is defined in the 2021 Equity Incentive Plan), and in either case Mr. Kovler
is not subsequently employed in a position acceptable to him with another portfolio company affiliated with Atlas Holdings, subject to
the execution of a release, Mr. Kovler will be eligible to receive six months’ severance payments of his base salary at the time
of such termination or Change in Control.
Offer Letter with Mr. Mulvihill
In
connection with his employment by the Company as Chief Financial Officer, Mr. Mulvihill entered into an Offer Letter with the Company,
effective October 11, 2023, pursuant to which Mr. Mulvihill is employed at will and receives a base salary in the amount of $250,000.
In addition, Mr. Mulvihill received a one-time sign-on bonus of $125,000 worth of the Company’s Class A common stock. Mr. Mulvihill
is also eligible to receive an annual target bonus of up to 25% of base salary in cash and up to 25% of base salary in equity, subject
to such terms and performance conditions as determined by the Board. If the Company terminates Mr. Mulvihill’s service without cause
or the Company undergoes a Change in Control, and in either case Mr. Mulvihill is not subsequently employed in a position acceptable to
him with another portfolio company affiliated with Atlas Holdings, subject to the execution of a release, Mr. Mulvihill will be eligible
to receive six months’ severance payments of his base salary at the time of such termination or Change in Control.
Executive Employment Agreement with Mr. Irwin
The Company entered into an Executive Employment
Agreement, dated August 15, 2022, with Mr. Irwin. Mr. Irwin’s Executive Employment Agreement provides that Mr. Irwin is employed
at will and eligible for (i) an annual base salary of $450,000 (which has been subsequently reduced to $350,000 effective January 14,
2024 in connection with a general salary reduction for management) and (ii) a target annual bonus opportunity of up to 50% of Mr. Irwin’s
annual base salary, 50% of which will be paid in RSUs under the 2021 Equity Incentive Plan, vesting in equal annual installments on the
first three anniversaries of the grant date, subject to Mr. Irwin’s continued employment through each vesting date and otherwise
subject to approval by the Compensation Committee or the Board, as applicable, and the terms and conditions of the 2021 Equity Incentive
Plan.
Pursuant to the Executive Employment Agreement, if Mr. Irwin’s
employment with the Company is terminated by the Company without Cause or if Mr. Irwin resigns with Good Reason (as each term is defined
in his Executive Employment Agreement), in addition to any accrued base salary through and including the date of termination and any amounts
or benefits required to be paid or provided under applicable law or accrued and vested under the benefit plans of the Company (the “Accrued
Amounts”), Mr. Irwin would be entitled to receive, subject to execution of a release and compliance with restrictive covenants:
(i) continued payment of his annual base salary for a period of 12 months following the date of termination; (ii) Company-subsidized COBRA
coverage equal to the same portion of the monthly premium the Company pays for active employees until the earlier of (x) the one-year
anniversary
of the date of termination or (y) the date Mr. Irwin became
eligible for health insurance coverage under the health plan of another employer; (iii) an amount equal to 100% of Mr. Irwin’s target
annual bonus opportunity for the fiscal year in which the termination of employment occurred, payable on the first anniversary of the
date of termination; (iv) any earned but unpaid annual bonus for the completed fiscal year that ended prior to the fiscal year in which
the termination of employment occurs, payable on the date such annual bonuses are paid to similarly situated employees of the Company;
and (v) continued vesting of any time-vesting RSUs that would have vested in the 12-month period following the date of termination. If
Mr. Irwin’s employment is terminated due to death or Disability (as defined in the Executive Employment Agreement), Mr. Irwin
will be entitled to receive, subject to execution of a release and compliance with restrictive covenants, (a) the Accrued Amounts, (b)
accelerated vesting of all outstanding unvested RSUs representing the deferred portion of Mr. Irwin’s annual bonus for prior years
and (c) pro rata vesting of any time-vesting RSUs based on the period employed prior to termination.
Executive Employment Agreement with Mr. Loughran
The Company entered into an Executive Employment
Agreement, dated November 12, 2021, with Mr. Loughran. Mr. Loughran’s Executive Employment Agreement provides that Mr. Loughran
was to be employed at will and eligible for (i) an annual base salary of $400,000, (ii) a target annual bonus opportunity of up to 100%
of Mr. Loughran’s annual base salary, 50% of which was to be paid in RSUs under the 2021 Equity Incentive Plan, vesting in equal
annual installments on the first three anniversaries of the grant date, subject to Mr. Loughran’s continued employment through each
vesting date and otherwise subject to approval by the board of directors of the Company and the terms and conditions of the 2021 Equity
Incentive Plan, and (iii) a grant of RSUs with respect to 15,000 shares of class A common stock, vesting in three equal annual installments
on the first three anniversaries of November 15, 2021.
Pursuant to the Executive Employment Agreement,
if Mr. Loughran’s employment with the Company was terminated by the Company without Cause or if Mr. Loughran resigned with Good
Reason (as each term is defined in his Executive Employment Agreement), in addition to any accrued base salary through and including the
date of termination and any amounts or benefits required to be paid or provided under applicable law or accrued and vested under the benefit
plans of the Company, Mr. Loughran would be entitled to receive, subject to execution of a release and compliance with restrictive covenants:
(i) continued payment of his annual base salary for a period of 12 months following the date of termination; (ii) Company-subsidized COBRA
coverage equal to the same portion of the monthly premium the Company pays for active employees until the earlier of (x) the one-year
anniversary of the date of termination or (y) the date Mr. Loughran became eligible for health insurance coverage under the health plan
of another employer; (iii) an amount equal to 100% of Mr. Loughran’s target annual bonus opportunity for the fiscal year in which
the termination of employment occurred, payable on the first anniversary of the date of termination; (iv) any earned but unpaid annual
bonus for the completed fiscal year that ended prior to the fiscal year in which the termination of employment occurs, payable on the
date such annual bonuses are paid to similarly situated employees of the Company; and (v) continued vesting of any time-vesting RSUs that
would have vested in the 12-month period following the date of termination.
Outstanding Equity Awards at Fiscal Year-End
The following table sets forth the outstanding
equity awards held by each of our NEOs as of December 31, 2023.
| |
|
Option Awards |
|
Stock Awards |
| Name |
|
Number of securities underlying
unexercised options (#) exercisable |
|
Number of securities underlying
unexercised options (#) unexercisable |
|
Option exercise price ($) |
|
Option expiration date |
|
Number of shares or units of stock that
have not vested (#) |
|
Market value of shares of units of stock
that have not vested ($) |
| David Anderson |
|
123,521(1) |
|
— |
|
13.20 |
|
10/10/2032 |
|
— |
|
— |
| Dale Irwin |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
| Jordan Kovler |
|
— |
|
100,000(2) |
|
4.97 |
|
11/16/2023 |
|
— |
|
— |
| Robert Loughran |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
| Christian Mulvihill |
|
1,334(3) |
|
666(4) |
|
718.0 |
|
07/31/2031 |
|
— |
|
— |
___________
| (1) | Represents Options, which vested on October 10, 2023 and October 10, 2024. |
| (2) | Represents Options, which vest in three equal installments on the first, second and third anniversaries of November 16, 2023, subject
to Mr. Kovler’s continued service to the Company through each such date. |
| (3) | Represents RSUs, which vest on December 8, 2024, subject to Mr. Kovler’s continued service to the Company through such date. |
| (4) | Represents Options, which vested in equal installments on each of July 27, 2022 and July 27, 2023, subject to Mr. Mulvihill’s
continued service to the Company through each such date. |
| (5) | Represents Options, which vest on July 27, 2024, subject to Mr. Mulvihill’s continued service to the Company through such date. |
Retirement Benefits
Greenidge Generation LLC (“Greenidge
Generation”) sponsors a 401(k) plan covering substantially all Greenidge Generation employees, including our NEOs. Employees become
eligible to participate in the plan upon one month of service and the attainment of age twenty-one. Eligible employees may elect to make
either pre-tax or Roth contributions to the plan, subject to limitations set forth by the plan and the Internal Revenue Code. Greenidge
Generation makes safe harbor matching contributions equal to 100% of the first 3% of employees’ eligible earnings and an additional
50% on the next 2% of employees’ eligible earnings. Greenidge Generation may also make a non-elective contribution at its discretion.
Potential Payments Upon Termination of Employment or Change
in Control
Descriptions of the severance payments and
benefits to be provided to our NEOs, including in respect of equity awards held by our NEOs, in connection with certain terminations of
employment both in connection with a change in control and not in connection with a change in control, are set forth in “Elements
of Executive Compensation—Employment Arrangements with our NEOs.”
APPROVAL OF THE PLAN AUTHORIZED SHARE
INCREASE
General
On February 21,
2021, the Board adopted the Company’s 2021 Equity Incentive Plan and on March 1, 2021, the Company’s stockholders approved
the Company’s 2021 Equity Incentive Plan. On March 25, 2021, Board adopted, and the Company’s stockholders approved,
an amended 2021 Equity Incentive Plan. On March 22, 2023, as amended by a written consent dated April 10, 2023, the Board approved
pursuant to resolutions, subject to stockholder approval, the Company’s Amended and Restated 2021 Equity Incentive Plan; and, on
April 11, 2023, Atlas, holding a majority of the total voting power of our outstanding capital stock entitled to vote in stockholders
meetings of the Company as of the Record Date, approved the Company’s Amended and Restated 2021 Equity Incentive Plan by written
consent. On November 12, 2024, the Board approved by unanimous written consent, subject
to stockholder approval, the Company’s Second Amended and Restated Plan; and, on November 13, 2024, Atlas, our stockholder holding
a majority of the total voting power of our outstanding capital stock entitled to vote in a stockholder meeting of the Company as of
the Record Date, approved the Company’s Second Amended and Restated Plan by written consent. The Second Amended and Restated Plan
and the Authorized Share Increase shall be effective 40 calendar days after the date that the Notice of Internet Availability of the
Information Statement is sent or given to our stockholders.
Reasons for the Authorized Share Increase
In reviewing our compensation practices, including
in light of various evolving market practices, as well as to enhance the Company’s flexibility to make awards, the Board determined
it is necessary to increase the number of shares of Class A common stock available for grant under the 2021
Equity Incentive Plan.
The Board believes the Authorized Share Increase,
increasing the number of shares authorized for issuance under the 2021 Equity Incentive Plan
by 700,000 shares of Class A common stock, from 883,111 shares of Class A common stock (after accounting for the Company’s 1-for-10
reverse stock split effectuated in May 2023) to 1,583,111 shares of Class A common stock under our Second Amended and Restated Plan ensures
our ability to continue to grant stock options, restricted stock units and other equity awards to our employees, directors and other service
providers, which we believe is vital to our ability to attract and retain outstanding and highly skilled individuals in the extremely
competitive labor markets in which we must compete. Our employees are valued assets, and such awards are crucial to our ability to motivate
individuals in our service to achieve our goals and to link the interests of our employees and other award recipients to those of our
stockholders.
Summary of the Second Amended and Restated Plan
The following summary of the principal features
of the Second Amended and Restated Plan included in this Information Statement is qualified in its entirety by reference to the full text
of the Second Amended and Restated Plan, which is incorporated by reference into this Information Statement and is attached to this Information
Statement as Annex A.
Purpose. The purpose of the Second Amended
and Restated Plan is to attract and retain employees, consultants and directors for the Company and its subsidiaries, motivate them by
means of appropriate incentives to achieve long-term goals, provide incentive compensation opportunities and further align their interests
with those of our stockholders through equity- and non-equity-based compensation.
Administration. The Second Amended and
Restated Plan is currently administered by the Compensation Committee (the “Administrator”). Among other things, the Administrator
has the authority to construe and interpret the Second Amended and Restated Plan, to select persons who will receive awards, to determine
the types of awards and the number of shares to be covered by awards and to establish the terms, conditions, performance criteria, restrictions
and other provisions of awards. The Administrator has the authority to establish, amend and rescind rules and regulations relating to
the Second Amended and Restated Plan and awards granted under the Second Amended and Restated Plan; provided, that if any such amendment
materially and adversely affects the right of any Second Amended and Restated Plan participant, award holder or beneficiary, then any
such amendment will not be effective without the prior written consent of the Second Amended and Restated Plan participant, award holder
or beneficiary.
Eligible Recipients. Persons eligible
to receive awards under the Second Amended and Restated Plan will be those employees, consultants and directors of the Company and its
affiliates who are selected by the Administrator. As of the Record Date, there were 52 persons eligible to participate in the Plan which
consist of 39 eligible employees, 10 directors (which include our Chief Executive Officer who was also counted among the employees) and
four consultants.
Shares Available. The maximum number
of shares of Class A common stock that may be delivered to participants under the Second Amended and Restated Plan is 1,583,111 shares,
as may be further adjusted for certain corporate changes affecting the shares. All shares of Class A common stock granted in connection
with awards under the Second Amended and Restated Plan will be counted against the Second Amended and Restated Plan’s share limit
as one share for every one share underlying the award. Cancelled, forfeited or expired awards may again become available for grant under
the Second Amended and Restated Plan. Shares subject to an award under the Second Amended and Restated Plan will not again be made available
for issuance or delivery under the Second Amended and Restated Plan if such shares are (i) shares tendered in payment of a stock option,
(ii) shares delivered or withheld by the Company to satisfy any tax withholding obligation or (iii) shares covered by a stock-settled
stock appreciation right or other awards that were not issued upon the settlement of the award.
Stock Options.
General. Subject to the provisions of
the Second Amended and Restated Plan, the Administrator has the authority to determine all grants of stock options. That determination
will include: (i) the number of shares subject to any stock option; (ii) the exercise price per share; (iii) the expiration date
of the stock option; (iv) the manner, time and date of permitted exercise; (v) other restrictions, if any, on the stock option or the
shares underlying the stock option; and (vi) any other terms and conditions as the Administrator may determine. Only employees of the
Company or its subsidiaries are eligible to be granted incentive stock options.
Incentive and Non-Qualified Options.
Stock options give the option holder the right to acquire a designated number of shares of Class A common stock at a purchase price that
is fixed upon the grant of the stock option (the “exercise price”). The exercise price will not be less than the market price
of the Class A common stock on the date of grant. Stock options granted may be either tax-qualified stock options (“incentive stock
options”) or non-qualified stock options. As described elsewhere in this summary, an incentive stock option is an option that is
intended to qualify under certain provisions of the Internal Revenue Code for more favorable tax treatment than applies to non-qualified
stock options. Any option that does not qualify as an incentive stock option will be a non-qualified stock option. Under the Internal
Revenue Code, certain restrictions apply to incentive stock options. For example, the exercise price for incentive stock options may not
be less than the fair market value of the shares on the grant date and the term of the option may not exceed ten years (or five years
in the case of employees owning more than 10% of the Company’s voting stock). In addition, an incentive stock option may not be
transferred, other than by will or the laws of descent and distribution and is exercisable during the holder’s lifetime only by
the holder. In addition, no incentive stock options may be granted to a holder that is first exercisable in a single year if that option,
together with all incentive stock options previously granted to the holder that also first become exercisable in that year, relate to
shares having an aggregate market value in excess of $100,000, measured at the grant date.
Option Price. The exercise price for
stock options will be determined at the time of grant. The exercise price will not be less than the fair market value on the date of grant.
The exercise price for any incentive stock option awarded may not be less than the fair market value of the shares on the date of grant.
However, incentive stock option grants to any employee owning more than 10% of the Company’s voting stock must have an exercise
price of not less than 110% of the fair market value on the grant date.
Exercise of Options. A stock option may
be exercised only in accordance with the terms and conditions of the stock option agreement as established by the Administrator at the
time of grant. The stock option must be exercised by notice to the Company, accompanied by payment of the exercise price. Payments may
be made in cash or, at the discretion of the Administrator, (i) by delivery to the Company of other Class A common stock, duly endorsed
for transfer to the Company, with a fair market value on the date of delivery equal to the exercise price (or portion thereof) due for
the number of shares being acquired, or by means of attestation whereby the participant identifies for delivery specific shares of Class
A common stock that have an aggregate fair market value on the date of attestation equal to the exercise price (or portion thereof) and
receives a number of shares of Class A common stock equal to the difference between the number of shares thereby purchased and the number
of identified attestation shares of Class A common stock, (ii) a “cashless” exercise program established with a broker, (iii)
by reduction in the number of shares of Class A common stock otherwise deliverable upon exercise of such stock option with a fair market
value equal to the aggregate exercise price at the time of exercise, (iv) any combination of the foregoing methods or (v) in any other
form of legal consideration that may be acceptable to the Administrator.
Expiration or Termination. Stock options,
if not previously exercised, will expire on the expiration date established by the Administrator at the time of grant. In the case of
incentive stock options, such term cannot exceed ten years; provided that in the case of holders of more than 10% of the Company’s
voting stock, such term cannot exceed five years. Except as otherwise set forth in the applicable award agreement, stock options will
terminate before their expiration date if the holder’s service with the Company or a subsidiary terminates before the expiration
date. The stock option may remain exercisable for specified periods after certain terminations of employment, including terminations as
a result of death or disability, with the precise period during which the option may be exercised to be established by the Administrator
and reflected in the grant evidencing the award.
Stock Appreciation Rights. Stock appreciation
rights (“SARs”) may be granted alone or in tandem with stock options. A SAR is a right to receive a payment in Class A common
stock or cash (as determined by the Board) equal in value to the excess of the fair market value of one share of Class A common stock
on the date of exercise over the exercise price per share established in connection with the grant of the SAR. The exercise price per
share of Class A common stock subject to a SAR may not be less than fair market value at the time of grant.
Restricted Awards. Restricted awards
are awards of Class A common stock or common stock units having a value equal to the fair market value of an identical number of shares
of Class A common stock. Restricted awards are forfeitable and non-transferable until the awards vest. The vesting date or dates and other
conditions for vesting are established when the shares are awarded. Restricted stockholders generally have the rights of a stockholder
with respect to the shares, including the right to receive dividends, the right to vote the shares of restricted stock and, conditioned
upon full vesting of shares of restricted stock, the right to tender such shares, subject to the conditions and restrictions generally
applicable to restricted stock or specifically set forth in the recipient’s restricted stock agreement. The Board may determine
at the time of award that the payment of dividends, if any, will be deferred until the expiration of the applicable restriction period.
Restricted stock unit holders will have no voting rights with respect to any restricted stock units. Restricted stock units may also be
granted with a deferral feature, whereby settlement is deferred beyond the vesting date until the occurrence of a future payment date
or event set forth in the award agreement. The Board may provide that the restricted stock units will be credited with cash and stock
dividends paid by the Company in respect of one share of Class A common stock (“dividend equivalents”). Dividend equivalents
will be deferred until the expiration of the applicable restriction period.
Performance Share Awards. The Second
Amended and Restated Plan provides for performance share awards (the “Performance Share Award”) which grant participants the
right to receive a number of actual shares of common stock or share units based upon the performance of the Company during a performance
period, as determined by the Administrator. The Administrator has discretion to determine: (i) the number of shares of common stock or
stock-denominated units subject to a Performance Share Award granted to any participant; (ii) the performance period applicable to any
Award (as such term is defined in the Second Amended and Restated Plan); (iii) the conditions that must be satisfied for a participant
to earn an Award; and (iv) the other terms, conditions and restrictions of the Award. The number of Performance Shares earned by a participant
will depend on the extent to which the performance goals established by the Administrator are attained within the applicable performance
period, as determined by the Administrator. Under the Second Amended and Restated Plan, no payout will be made with respect to any
Performance Share Award except upon written certification by the Administrator that the minimum threshold performance goal(s) have been
achieved.
Performance Compensation Awards. The
Second Amended and Restated Plan also provides for performance compensation awards, representing the right to receive a payment, which
may be in the form of cash, shares of Class A common stock or a combination of cash and shares of Class A common stock, based on the attainment
of pre-established goals set forth in the applicable award agreement. Performance compensation awards that become vested following the
achievement of the performance goals will be paid to participants as soon as administratively practicable following completion of the
certification of the achievement of the performance goals by the Administrator but in no event later than 2 1/2 months following the end
of the fiscal year during which the performance period is completed.
Performance Criteria. Under the Second
Amended and Restated Plan, one or more performance criteria will be used by the Administrator in establishing performance goals. Any one
or more of the performance criteria may be used on an absolute or relative basis to measure the performance of the Company, as the Administrator
may deem appropriate, or as compared to the performance of a group of comparable companies or published or special index that the Administrator
deems appropriate. In determining the actual size of an individual performance compensation award, the Administrator may reduce or eliminate
the amount of the award through the use of negative discretion if, in its sole judgment, such reduction or elimination is appropriate.
The Administrator will not have the discretion to grant or provide payment in respect of performance compensation awards if the performance
goals have not been attained.
Other Material Provisions. Awards will
be evidenced by a written agreement, in such form as may be approved by the Administrator. In the event of various changes to the capitalization
of the Company, such as stock splits, stock dividends and similar re-capitalizations, an appropriate adjustment will be made by the Administrator
to the number of shares covered by outstanding awards or to the exercise price of such awards. The Administrator is also permitted to
include in the written agreement provisions that provide for certain changes in the award in the event of a change of control of the Company,
including acceleration of vesting or cancellation of any outstanding awards (upon at least 10 days’ advance notice) in exchange
for a payment to the award holder the value of such awards in cash, stock, or a combination thereof. Except as otherwise determined by
the Administrator at the date of grant, awards will not be transferable, other than by will or the laws of descent and distribution. As
provided by the terms of the applicable award agreement and subject to the discretion of the Administrator, the applicable tax withholding
obligation relating to the exercise or acquisition of Class A common stock under an award by any or a combination of the following means:
(i) tendering a cash payment; (ii) authorizing the Company to withhold shares of Class A common stock from the shares of Class A common
stock otherwise issuable to the award holder as a result of the exercise or acquisition of Class A common stock under the award; or (iii)
delivering to the Company previously owned and unencumbered shares of Class A common stock. The Administrator also has the authority,
at any time, to discontinue the granting of awards. The Administrator also has the authority to alter or amend the Second Amended and
Restated Plan or any outstanding award or may terminate the Second Amended and Restated Plan as to further grants, provided that no amendment
will, without the approval of stockholders, to the extent that such approval is required by law or the rules of an applicable exchange,
increase the number of shares available under the Second Amended and Restated Plan, change the persons eligible for awards under the Second
Amended and Restated Plan, extend the time within which awards may be made or amend the provisions of the Second Amended and Restated
Plan related to amendments. The Second Amended and Restated Plan will terminate automatically on the 10th anniversary of its approval
by the Company’s stockholders. No amendment that would adversely affect any outstanding award made under the Second Amended and
Restated Plan can be made without the consent of the holder of such award.
Summary of Material U.S. Federal Income Tax Consequences
The following summary of tax consequences to
the Company and to Second Amended and Restated Plan participants is not intended to be used as tax guidance to participants in the Second
Amended and Restated Plan. It relates only to U.S. federal income tax and does not address state, local or foreign income tax rules or
other U.S. tax provisions, such as estate or gift taxes. Different tax rules may apply to specific participants and transactions under
the Second Amended and Restated Plan, particularly in jurisdictions outside the United States. In addition, this summary is as of the
date of this Information Statement; federal income tax laws and regulations are frequently revised and may be changed again at any time.
Therefore, each participant is urged to consult a tax advisor before exercising any award or before disposing of any shares acquired under
the Second Amended and Restated Plan.
Stock Options. The grant of a stock option
will not result in taxable income at the time of grant for the participant or the Company. A participant will have no taxable income upon
exercise of an incentive stock option, except that the alternative minimum tax may apply. Upon exercise of a stock option other than an
incentive stock option, a participant generally must recognize ordinary income equal to the fair market value of the shares acquired minus
the exercise price. When disposing of shares acquired by exercise of an incentive stock option before the end of the statutory incentive
stock option holding periods (i.e., no disposition of the shares occurs within two years from the date of grant, nor within one year from
the date of exercise of that incentive stock option), the participant generally must recognize ordinary income equal to the lesser of
(i) the fair market value of the shares at the date of exercise minus the exercise price or (ii) the amount realized upon the disposition
of the shares minus the exercise price. Otherwise, a participant’s disposition of shares acquired upon the exercise of a stock option
(including an incentive stock option for which the incentive stock option holding periods are met) generally will result in only capital
gain or loss.
Stock Appreciation Rights. The grant of
a SAR will not result in taxable income at the time of grant for the participant or the Company. The participant must recognize taxable
income equal to the amount of cash received or the fair market value of the shares received upon the exercise of a SAR.
Restricted Stock. Except as described
below regarding an election under Section 83(b) of the Internal Revenue Code, a grant of restricted stock will not result in taxable income
at the time of grant for the participant or the Company. The participant will recognize ordinary income equal to the fair market value
of the shares over the purchase price, if any, when the shares are no longer subject to a substantial risk of forfeiture or become transferable.
Any subsequent appreciation in the value of the shares will be taxed as capital gains when the shares are sold. A participant may elect
under Section 83(b) of the Internal Revenue Code to recognize taxable income at the time the restricted stock is awarded, in an amount
equal to the fair market value of the shares at the time of grant over the purchase price, if any, determined without regard to any forfeiture
restrictions. If such an election is made, any subsequent appreciation in the value of the shares will be taxed as capital gains when
the shares are sold. Any such election must be filed with the Internal Revenue Service, and a copy must be provided to the Company, within
30 days following the date of grant.
Restricted Stock Units. The grant of a
restricted stock unit will not result in taxable income at the time of grant for the participant or the Company. Upon receiving the shares
or cash in respect of a restricted stock unit, the fair market value of those shares or the amount of that cash will be taxable to the
participant as ordinary income. Any subsequent appreciation in the value of shares will be taxed as capital gains when the shares are
sold.
Other Awards. The payment of cash or the
issuance of unrestricted shares will generally give rise to taxable income at the time of payment or issuance, equal to the amount of
cash paid or the value of the shares issued over the purchase price, if any.
Company Deduction. The Company is generally
entitled to a tax deduction equal to the amount recognized as ordinary income by the participant in connection with stock options, SAR
or other awards, but not for amounts (i) the participant recognizes as capital gain and (ii) over $1 million paid to certain “covered
employees” under Section 162(m) of the Internal Revenue Code, except for grandfathered arrangements under Section 162(m) of the
Internal Revenue Code. The Company will not be entitled to any tax deduction with respect to the exercise by a participant of an incentive
stock option or, if the statutory incentive stock option holding period requirements above are met, the sale by a participant of the underlying
shares.
New Plan Benefits
Mr. Irwin has an employment agreement with the
Company that provides for 50% of his annual bonus (which amount is discretionary and unknown at this time but has a target opportunity
of up to 100% of Mr. Irwin’s base salary) to be payable in restricted stock units under the Company’s equity incentive plan.
Mr. Kovler has an offer letter with the Company that provides for his annual bonus (which amount is discretionary and unknown at this
time but has a target opportunity of up to 50% of Mr. Kovler’s base salary) to be payable in the form of cash or equity (or some
combination thereof) under the Company’s equity incentive plan. Mr. Mulvihill and one non-executive employee of the Company each
have an offer letter with the Company that provides for their respective annual bonus (which amount is discretionary and unknown at this
time but has a target opportunity of up to 50% of Mr. Mulvihill’s and such non-executive employee’s base salary) to be payable
50% in the form of cash and 50% in the form equity under the Company’s equity incentive plan. Neither the Compensation Committee
nor the Board has made any determination to make future grants to any participants under the Second Amended and Restated Plan as of the
date of this Information Statement. As such, new benefits that will be awarded or paid under the Second Amended and Restated Plan are
not currently determinable.
EFFECTIVENESS OF CORPORATE ACTION
Notwithstanding the execution and delivery of
the written consents by the Board and Atlas, as described herein, under applicable securities regulations, the Second Amended and Restated
Plan and the Authorized Share Increase will not become effective until the date that is 40 calendar days after the date that the Notice
of Internet Availability of the Information Statement is sent or given to our stockholders. The Notice of Internet Availability of the
Information Statement is being mailed to our stockholders on or about November 18, 2024. A copy of the Second Amended and Restated Plan
is attached to the Information Statement as Annex A.
DISSENTERS’ RIGHTS OF APPRAISAL
Delaware law does not provide for dissenters’
rights or similar rights of appraisal in connection with the corporate action described in this Information Statement.
INCORPORATION BY REFERENCE
We incorporate by reference the documents listed
below:
| · | Our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on April 10, 2024, as amended by that Form
10-K/A, filed with the SEC on May 7, 2024 (which we referred to as our “2023 Annual Report”); |
| · | Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024, filed with the SEC on May 15, 2024, for the quarterly
period ended June 30, 2024, filed with the SEC on August 14, 2024, and for the quarterly period ended September 30, 2024, filed with the
SEC on November 7, 2024; |
| · | The information specifically incorporated by reference into our Annual Report from our definitive proxy statement on Schedule 14A,
filed with the SEC on June 5, 2024; and |
| · | Our Current Reports on Form 8-K filed with the SEC (except for items 2.02 and 7.01) on February 16, 2024, March 11, 2024, April 19,
2024, April 29, 2024, June 20, 2024, July 11, 2024, July 24, 2024, July 31, 2024, August 1, 2024, August 1, 2024, August 16, 2024, August
20, 2024, October 15, 2024, October 28, 2024, October 29, 2024 and November 15, 2024. |
Copies of certain information filed by us with
the SEC, including our 2023 Annual Report and Quarterly Reports, are also available on our website at www.greenidge.com. Information contained
on our website or accessible through our website is not incorporated by reference herein.
Alternatively, you may request a copy of any
or all of these filings at no cost, by writing or calling us at:
Greenidge Generation Holdings Inc.
Attention: Investor Relations
590 Plant Road
Dresden, NY 14441
(315) 536-2359
DISTRIBUTION AND COSTS
The expenses of mailing the Notice of Internet
Availability of the Information Statement will be borne by us, including expenses in connection with the preparation and mailing of the
Notice of Internet Availability of the Information Statement and all documents that now accompany or may hereafter supplement it. Brokerage
houses, custodians, nominees, and fiduciaries will be requested to forward the Notice of Internet Availability of the Information Statement
to the beneficial owners of our common stock held of record by such persons, and we will reimburse them for their expenses incurred in
connection therewith.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports,
proxy statements and other information with the SEC. You may read and copy the periodic reports, proxy statements and other information
we file with the SEC at the SEC’s public reference room maintained at 100 F. Street N.E., Room 1580, Washington, D.C. 20549. You
can also request copies of those documents, upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at 1-800-SEC-0330.
The SEC also maintains an internet site that contains reports, proxy and information statements and other information regarding issuers
that file with the SEC. The site’s internet address is www.sec.gov. Copies of these documents may also be obtained by writing to
our address provided above.
STOCKHOLDERS SHARING AN ADDRESS
The Company will deliver only one copy of the Notice of Internet Availability
of the Information Statement to multiple stockholders sharing an address unless the Company has received contrary instructions from one
or more of the stockholders. Furthermore, the Company undertakes to deliver promptly, upon written or oral request, a separate copy of
the Notice of Internet Availability of the Information Statement to a stockholder at a shared address to which a single copy of the Notice
of Internet Availability of the Information Statement is delivered. A stockholder can notify us that the stockholder wishes to receive
a copy of this Information Statement by contacting the Company orally at (315) 536-2359 or written request at Attention: Investor Relations,
590 Plant Road, Dresden, NY 14441. Conversely, if multiple stockholders sharing an address receive multiple Notice of Internet Availability
of the Information Statements and wish to receive only one, such stockholders can notify the Company at the address or phone number set
forth above.
OTHER MATTERS
This Information Statement is dated as of November 18, 2024. You should
not assume that the information contained in this Information Statement is accurate as of any other date, unless expressly provided.
| Dated: November 18, 2024 |
Jordan Kovler
Chief Executive Officer |
ANNEX A
GREENIDGE GENERATION HOLDINGS INC.
SECOND AMENDED AND RESTATED
2021 EQUITY INCENTIVE PLAN
GREENIDGE GENERATION HOLDINGS INC.
SECOND AMENDED AND RESTATED
2021 EQUITY INCENTIVE PLAN
1.Purpose; Eligibility.
1.1.General
Purpose. The name of this plan is the Second Amended and Restated Greenidge Generation Holdings Inc. 2021 Equity Incentive Plan (the
“Plan”). The purposes of the Plan are to (a) enable Greenidge Generation Holdings Inc., a Delaware corporation (the “Company”),
and any Affiliate to attract and retain the types of Employees, Consultants and Directors who will contribute to the Company’s long-term
success; (b) provide incentives that align the interests of Employees, Consultants and Directors with those of the stockholders of the
Company; and (c) promote the success of the Company’s business.
1.2.Eligible
Award Recipients. The persons eligible to receive Awards are the Employees, Consultants and Directors of the Company and its Affiliates
and such other individuals designated by the Committee who are reasonably expected to become Employees, Consultants and Directors after
the receipt of Awards.
1.3.Available
Awards. Awards that may be granted under the Plan include: (a) Incentive Stock Options, (b) Non-qualified Stock Options, (c) Stock
Appreciation Rights, (d) Restricted Awards, (e) Performance Share Awards, and (f) Performance Compensation Awards.
2.Definitions.
“Affiliate” means a corporation
or other entity that, directly or through one or more intermediaries, controls, is controlled by or is under common control with, the
Company, including, without limitation, any corporation that is a “parent corporation” or a “subsidiary corporation”
with respect to the Company within the meaning of Section 424(e) or (f) of the Code, and any other non-corporate entity that would be
such a subsidiary corporation if such entity were a corporation.
“Applicable Laws” means the requirements
related to or implicated by the administration of the Plan under applicable state corporate law, United States federal and state securities
laws, the Code, any stock exchange or quotation system on which the shares of Common Stock are listed or quoted, and the applicable laws
of any foreign country or jurisdiction where Awards are granted under the Plan.
“Award” means any right granted
under the Plan, including an Incentive Stock Option, a Non-qualified Stock Option, a Stock Appreciation Right, a Restricted Award, a Performance
Share Award or a Performance Compensation Award.
“Award Agreement” means a written
agreement, contract, certificate or other instrument or document evidencing the terms and conditions of an individual Award granted under
the Plan which may, in the discretion of the Company, be transmitted electronically to any Participant. Each Award Agreement shall be
subject to the terms and conditions of the Plan.
“Beneficial Owner” has the meaning
assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any
particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed
to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other
securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “Beneficially
Owns” and “Beneficially Owned” have a corresponding meaning.
“Board” means the Board of Directors
of the Company, as constituted at any time.
“Cause” means:
With respect to any Employee or Consultant: (a) if
the Employee or Consultant is a party to an employment or service agreement with the Company or its Affiliates and such agreement provides
for a definition of Cause, the definition contained therein; or (b) if no such agreement exists, or if such agreement does not define
Cause: (i) the commission of, or plea of guilty or no contest to, a felony or a crime involving moral turpitude or the commission of any
other act involving willful malfeasance or material fiduciary breach with respect to the Company or an Affiliate; (ii) conduct that results
in or is reasonably likely to result in harm to the reputation or business of the Company or any of its Affiliates; (iii) gross negligence
or willful misconduct with respect to the Company or an Affiliate; or (iv) violation of state or federal securities laws.
With respect to any Director, a determination by a
majority of the disinterested Board members that the Director has engaged in any of the following: (a) malfeasance in office; (b) gross
misconduct or neglect; (c) false or fraudulent misrepresentation inducing the director’s appointment; (d) willful conversion of
corporate funds; or (e) repeated failure to participate in Board meetings on a regular basis despite having received proper notice of
the meetings in advance.
The Committee, in its absolute discretion, shall determine
the effect of all matters and questions relating to whether a Participant has been discharged for Cause.
“Change in Control” means (a) the
direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries, taken as a whole,
to any Person that is not a subsidiary of the Company; (b) the Incumbent Directors cease for any reason to constitute at least a majority
of the Board; (c) the date which is 10 business days prior to the consummation of a complete liquidation or dissolution of the Company;
(d) the acquisition by any Person of Beneficial Ownership of more than 50% (on a fully diluted basis) of the combined voting power of
the then outstanding voting securities of the Company entitled to vote generally in the election of directors, taking into account as
outstanding for this purpose Common Stock issuable upon the exercise of options or warrants, the conversion of convertible stock or debt,
and the exercise of any similar right to acquire Common Stock (the “Outstanding Company Voting Securities”); provided, however,
that for purposes of this Plan, the following acquisitions shall not constitute a Change in Control: (A) any acquisition by the Company
or any Affiliate, (B) any acquisition by any employee benefit plan sponsored or maintained by the Company or any subsidiary, (C) any acquisition
which complies with clauses, (i), (ii) and (iii) of subsection (e) of this definition or (D) in respect of an Award held by a particular
Participant, any acquisition by the Participant or any group of persons including the Participant (or any entity controlled by the Participant
or any group of persons including the Participant); or (e) the consummation of a reorganization, merger, consolidation, statutory share
exchange or similar form of corporate transaction involving the Company that requires the approval of the Company’s stockholders,
whether for such transaction or the issuance of securities in the transaction (a “Business Combination”), unless immediately
following such Business Combination: (i) more than 50% of the total voting power of (A) the entity resulting from such Business Combination
(the “Surviving Company”), or (B) if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership
of sufficient voting securities eligible to elect a majority of the members of the board of directors (or the analogous governing body)
of the Surviving Company (the “Parent Company”), is represented by the Outstanding Company Voting Securities that were outstanding
immediately prior to such Business Combination (or, if applicable, is represented by shares into which the Outstanding Company Voting
Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially
the same proportion as the voting power of the Outstanding Company Voting Securities among the holders thereof immediately prior to the
Business Combination; (ii) no Person (other than any employee benefit plan sponsored or maintained by the Surviving Company or the Parent
Company) is or becomes the Beneficial Owner, directly or indirectly, of 50% or more of the total voting power of the outstanding voting
securities eligible to elect members of the board of directors of the Parent Company (or the analogous governing body) (or, if there is
no Parent Company, the Surviving Company); and (iii) at least a majority of the members of the board of directors (or the analogous governing
body) of the Parent Company (or, if there is no Parent Company, the Surviving Company) following the consummation of the Business Combination
were Board members at the time of the Board’s approval of the execution of the initial agreement providing for such Business Combination.
The foregoing notwithstanding, if the Award constitutes non-qualified deferred compensation under Section 409A of the Code, in no event
shall a Change in Control be deemed to have occurred unless such change shall satisfy the definition of a change in control under Section
409A of the Code.
“Code” means the Internal Revenue
Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall be deemed to include a reference to
any regulations promulgated thereunder.
“Committee” means the compensation
committee of the Board, or if no such committee has been established, the full Board, or a committee of one or more members appointed
to administer the Plan in accordance with Section 3.3 and Section 3.4.
“Common Stock” means the class A
common stock, $0.0001 par value per share, of the Company, or such other securities of the Company as may be designated by the Committee
from time to time in substitution thereof.
“Consultant” means any individual
who is engaged by the Company or any Affiliate to render consulting, independent contractor or advisory services.
“Continuous Service” means that
the Participant’s service with the Company or an Affiliate, whether as an Employee, Consultant or Director, is not interrupted or
terminated. The Participant’s Continuous Service shall not be deemed to have been interrupted or terminated merely because of a
change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee, Consultant or Director
or a change in the entity for which the Participant renders such service; provided that if any Award is subject to Section 409A of the
Code, this sentence shall only be given effect to the extent consistent with Section 409A of the Code. The Committee or its delegate,
in its sole discretion, may determine whether Continuous Service shall be considered interrupted, including, but not limited to, in the
case of any leave of absence approved by that party, including sick leave, military leave or any other personal or family leave of absence.
“Director” means a member of the
Board.
“Disability” means that the Participant
is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment; provided,
however, for purposes of determining the term of an Incentive Stock Option pursuant to Section 6.10 hereof, the term Disability shall
have the meaning ascribed to it under Section 22(e)(3) of the Code. The determination of whether an individual has a Disability shall
be determined under procedures established by the Committee. Except in situations where the Committee is determining Disability for purposes
of the term of an Incentive Stock Option pursuant to Section 6.10 hereof within the meaning of Section 22(e)(3) of the Code, the Committee
may rely on any determination that a Participant is disabled for purposes of benefits under any long-term disability plan maintained by
the Company or any Affiliate in which a Participant participates. The foregoing notwithstanding, if the Award is subject to Section 409A
of the Code, in no event shall a Disability be deemed to have occurred unless such disability satisfies the requirements of Section 409A
of the Code.
“Effective Date” shall mean the
date this Plan is approved by the Company’s stockholders.
“Employee” means any person, including
an Officer or Director, employed by the Company or an Affiliate; provided, that, for purposes of determining eligibility to receive Incentive
Stock Options, an Employee shall mean an employee of the Company or a parent or subsidiary corporation within the meaning of Section 424
of the Code. Mere service as a Director or payment of a director’s fee by the Company or an Affiliate shall not be sufficient to
constitute “employment” by the Company or an Affiliate.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Fair Market Value” means, as of
any date, unless the Committee in its discretion approves an alternative valuation methodology, the value of the Common Stock as determined
below. If the Common Stock is listed on any established stock exchange or a national market system, including without limitation, the
New York Stock Exchange or the Nasdaq Stock Market, the Fair Market Value shall be the closing price of a share of Common Stock (or if
no sales were reported the closing price on the date immediately preceding such date) as quoted on such exchange or system on the day
of determination, as reported in the Wall Street Journal or similar publication. In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the Committee and such determination shall be conclusive and binding
on all persons; provided that if an Award is subject to Section 409A of the Code, then the Fair Market Value shall be determined in accordance
with Section 409A of the Code.
“Grant Date” means the date on which
the Committee adopts a resolution, or takes other appropriate action, expressly granting an Award to a Participant that specifies the
key terms and conditions of the Award or, if a later date is set forth in such resolution, then such date as is set forth in such resolution.
“Incentive Stock Option” means an
Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.
“Incumbent Directors” means individuals
who, on the Effective Date, constitute the Board, provided that any individual becoming a Director subsequent to the Effective Date whose
election or nomination for election to the Board was approved by a vote of at least two-thirds of the Incumbent Directors then on the
Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for Director
without objection to such nomination) shall be an Incumbent Director. No individual initially elected or nominated as a director of the
Company as a result of an actual or threatened election contest with respect to Directors or as a result of any other actual or threatened
solicitation of proxies by or on behalf of any person other than the Board shall be an Incumbent Director.
“Non-qualified Stock Option” means
an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.
“Officer” means a person who is
an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.
“Option” means an Incentive Stock
Option or a Non-qualified Stock Option granted pursuant to the Plan.
“Optionholder” means a person to
whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Option.
“Option Exercise Price” means the
price at which a share of Common Stock may be purchased upon the exercise of an Option.
“Participant” means an eligible
person to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Award.
“Performance Compensation Award”
means any Award designated by the Committee as a Performance Compensation Award pursuant to Section 7.4 of the Plan.
“Performance Criteria” means the
criterion or criteria that the Committee shall select for purposes of establishing the Performance Goal(s) for a Performance Period with
respect to any Performance Compensation Award under the Plan. The Performance Criteria that will be used to establish the Performance
Goal(s) shall be based on the attainment of specific levels of performance of the Company (or Affiliate, division, business unit or operational
unit of the Company) and may include the following: (a) net earnings or net income (before or after taxes); (b) basic or diluted earnings
per share (before or after taxes); (c) net revenue or net revenue growth; (d) gross revenue; (e) gross profit or gross profit growth;
(f) net operating profit (before or after taxes); (g) return on assets, capital, invested capital, equity, or sales; (h) cash flow (including,
but not limited to, operating cash flow, free cash flow, and cash flow return on capital); (i) earnings before or after taxes, interest,
depreciation and/or amortization; (j) gross or operating margins; (k) improvements in capital structure; (l) budget and expense management;
(m) productivity ratios; (n) economic value added or other value added measurements; (o) share price (including, but not limited to, growth
measures and total stockholder return); (p) expense targets; (q) margins; (r) operating efficiency; (s) working capital targets; (t) enterprise
value; (u) safety record; (v) completion of acquisitions or business expansion; (w) achieving research and development goals and milestones;
(x) achieving product commercialization goals; and (y) other criteria as may be set by the Committee from time to time.
Any one or more of the Performance Criteria may be
used on an absolute or relative basis to measure the performance of the Company and/or an Affiliate as a whole or any division, business
unit or operational unit of the Company and/or an Affiliate or any combination thereof, as the Committee may deem appropriate, or as compared
to the performance of a group of comparable companies, or published or special index that the Committee, in its sole discretion, deems
appropriate, or the Committee may select Performance Criterion (o) above as compared to various stock market indices. The Committee also
has the authority to provide for accelerated vesting of any Award based on the achievement of Performance Goals pursuant to the Performance
Criteria specified in this paragraph, provided that if the Award is subject to Section 409A of the Code, such accelerated vesting does
not violate the rules of Code Section 409A. The Committee shall, within the first 90 days of a Performance Period (or, such longer or
shorter time period as the Committee shall determine) define in an objective fashion the manner of calculating the Performance Criteria
it selects to use for such Performance Period. In the event that applicable tax and/or securities laws change to permit the Committee
discretion to alter the governing Performance Criteria without obtaining stockholder approval of such changes, the Committee shall have
sole discretion to make such changes without obtaining stockholder approval.
“Performance Formula” means, for
a Performance Period, the one or more objective formulas applied against the relevant Performance Goal to determine, with regard to the
Performance Compensation Award of a particular Participant, whether all, some portion but less than all, or none of the Performance Compensation
Award has been earned for the Performance Period.
“Performance Goals” means, for a
Performance Period, the one or more goals established by the Committee for the Performance Period based upon the Performance Criteria.
The Committee is authorized at any time during the first 90 days of a Performance Period (or such longer or shorter time period as the
Committee shall determine) or at any time thereafter, in its sole and absolute discretion, to adjust or modify the calculation of a Performance
Goal for such Performance Period in order to prevent the dilution or enlargement of the rights of Participants based on the following
events: (a) asset write-downs; (b) litigation or claim judgments or settlements; (c) the effect of changes in tax laws, accounting principles,
or other laws or regulatory rules affecting reported results; (d) any reorganization and restructuring programs; (e) extraordinary nonrecurring
items as described in Accounting Principles Board Opinion No. 30 (or any successor or pronouncement thereto) and/or in management’s
discussion and analysis of financial condition and results of operations appearing in the Company’s annual report to stockholders
for the applicable year; (f) acquisitions or divestitures; (g) any other specific unusual or nonrecurring events, or objectively determinable
category thereof; (h) foreign exchange gains and losses; and (i) a change in the Company’s fiscal year.
“Performance Period” means the one
or more periods of time not less than one fiscal quarter in duration, as the Committee may select, over which the attainment of one or
more Performance Goals will be measured for the purpose of determining a Participant’s right to and the payment of a Performance
Compensation Award.
“Performance Share” means the grant
of a right to receive a number of actual shares of Common Stock or share units based upon the performance of the Company during a Performance
Period, as determined by the Committee.
“Permitted Transferee” means: (a)
a member of the Optionholder’s immediate family (child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships), any person sharing the Optionholder’s household (other than a tenant or employee), a trust in which these persons
have more than 50% of the beneficial interest, a foundation in which these persons (or the Optionholder) control the management of assets,
and any other entity in which these persons (or the Optionholder) own more than 50% of the voting interests; (b) third parties designated
by the Committee in connection with a program established and approved by the Committee pursuant to which Participants may receive a cash
payment or other consideration in consideration for the transfer of a Non-qualified Stock Option; and (c) such other transferees as may
be permitted by the Committee in its sole discretion.
“Restricted Award” means any Award
granted pursuant to Section 7.2(a).
“Rule 16b-3” means Rule 16b-3 promulgated
under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time.
“Securities Act” means the Securities
Act of 1933, as amended.
“Stock Appreciation Right” means
the right pursuant to an Award granted under Section 7.1 to receive, upon exercise, an amount payable in cash or shares equal to the number
of shares subject to the Stock Appreciation Right that is being exercised multiplied by the excess of (a) the Fair Market Value of a share
of Common Stock on the date the Award is exercised, over (b) the exercise price specified in the Stock Appreciation Right Award Agreement.
“Ten Percent Stockholder” means
a person who owns (or is deemed to own pursuant to Section 424(d) of the Code) stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company or of any of its Affiliates.
3.Administration.
3.1.Authority
of Committee. The Plan shall be administered by the Committee or, in the Board’s sole discretion, by the Board. Subject to the
terms of the Plan and the provisions of Section 409A of the Code (if applicable), the Committee’s charter and Applicable Laws, and
in addition to other express powers and authorization conferred by the Plan, the Committee shall have the authority:
| (a) | to construe and interpret the Plan and apply its provisions; |
| (b) | to promulgate, amend, and rescind rules and regulations relating to the administration of the Plan; |
| (c) | to authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan; |
| (d) | to delegate its authority to one or more Officers of the Company with respect to Awards that do not involve “insiders”
within the meaning of Section 16 of the Exchange Act; |
| (e) | to determine when Awards are to be granted under the Plan and the applicable Grant Date; |
| (f) | from time to time to select, subject to the limitations set forth in this Plan, those Participants to whom Awards shall be granted; |
| (g) | to determine the number of shares of Common Stock to be made subject to each Award; |
| (h) | to determine whether each Option is to be an Incentive Stock Option or a Non-qualified Stock Option; |
| (i) | to prescribe the terms and conditions of each Award, including, without limitation, the exercise price and medium of payment and vesting
provisions, and to specify the provisions of the Award Agreement relating to such grant; |
| (j) | to determine the target number of Performance Shares to be granted pursuant to a Performance Share Award, the performance measures
that will be used to establish the performance goals, the performance period(s) and the number of Performance Shares earned by a Participant; |
| (k) | to designate an Award (including a cash bonus) as a Performance Compensation Award and to select the Performance Criteria that will
be used to establish the Performance Goals; |
| (l) | to amend any outstanding Awards, including for the purpose of modifying the time or manner of vesting, or the term of any outstanding
Award; provided, however, that if any such amendment impairs a Participant’s rights or increases a Participant’s obligations
under his or her Award or creates or increases a Participant’s federal income tax liability with respect to an Award, such amendment
shall also be subject to the Participant’s consent; |
| (m) | to determine the duration and purpose of leaves of absences which may be granted to a Participant without constituting termination
of their employment for purposes of the Plan, which periods shall be no shorter than the periods generally applicable to Employees under
the Company’s employment policies; |
| (n) | to make decisions with respect to outstanding Awards that may become necessary upon a change in corporate control or an event that
triggers anti-dilution adjustments; |
| (o) | to interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan and any instrument
or agreement relating to, or Award granted under, the Plan; and |
(p)to
exercise discretion to make any and all other determinations which it determines to be necessary or advisable for the administration of
the Plan.
The Committee also may modify the purchase price or
the exercise price of any outstanding Award, provided that if the modification effects a repricing, stockholder approval shall be required
before the repricing is effective.
3.2.Committee
Decisions Final. All decisions made by the Committee pursuant to the provisions of the Plan shall be final and binding on the Company
and the Participants, unless such decisions are determined by a court having jurisdiction to be arbitrary and capricious.
3.3.Delegation.
The Committee may delegate administration of the Plan to a subcommittee or subcommittees of one or more members of the Committee, and
the term “Committee” shall apply to any person or persons to whom such authority has been delegated. The Committee shall have
the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this
Plan to the Board or the Committee shall thereafter be to the committee or subcommittee), subject, however, to such resolutions, not inconsistent
with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and
re-vest in the Board the administration of the Plan. The members of the Committee shall be appointed by and serve at the pleasure of the
Board. From time to time, the Board may increase or decrease the size of the Committee, add additional members to, remove members (with
or without cause) from, appoint new members in substitution therefor, and fill vacancies, however caused, in the Committee. The Committee
shall act pursuant to a vote of the majority of its members or, in the case of a Committee comprised of only two members, the unanimous
consent of its members, whether present or not, or by the written consent of the majority of its members and minutes shall be kept of
all of its meetings and copies thereof shall be provided to the Board. Subject to the limitations prescribed by the Plan and the Board,
the Committee may establish and follow such rules and regulations for the conduct of its business as it may determine to be advisable.
3.4.Committee
Composition. Except as otherwise determined by the Board, the Committee shall consist solely of two or more Non-Employee Directors.
The Board shall have discretion to determine whether or not it intends to comply with the exemption requirements of Rule 16b-3. However,
if the Board intends to satisfy such exemption requirements, with respect to Awards to any insider subject to Section 16 of the Exchange
Act, the Committee shall be a compensation committee of the Board that at all times consists solely of two or more Non-Employee Directors.
Within the scope of such authority, the Board or the Committee may delegate to a committee of one or more members of the Board who are
not Non-Employee Directors the authority to grant Awards to eligible persons who are not then subject to Section 16 of the Exchange Act.
Nothing herein shall create an inference that an Award is not validly granted under the Plan in the event Awards are granted under the
Plan by a compensation committee of the Board that does not at all times consist solely of two or more Non-Employee Directors.
3.5.Indemnification.
In addition to such other rights of indemnification as they may have as Directors or members of the Committee, and to the extent allowed
by Applicable Laws, the Committee shall be indemnified by the Company against the reasonable expenses, including attorney’s fees,
actually incurred in connection with any action, suit or proceeding or in connection with any appeal therein, to which the Committee may
be party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted under the Plan, and
against all amounts paid by the Committee in settlement thereof (provided, however, that the settlement has been approved by the Company,
which approval shall not be unreasonably withheld) or paid by the Committee in satisfaction of a judgment in any such action, suit or
proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such Committee did
not act in good faith and in a manner which such person reasonably believed to be in the best interests of the Company, or in the case
of a criminal proceeding, had no reason to believe that the conduct complained of was unlawful; provided, however, that within 60 days
after institution of any such action, suit or proceeding, such Committee shall, in writing, offer the Company the opportunity at its own
expense to handle and defend such action, suit or proceeding.
4.Shares Subject to the Plan.
4.1.Subject
to adjustment in accordance with Section 11, a total of 1,583,111 shares of Common Stock shall be available for the grant of Awards under
the Plan.
4.2.Shares
of Common Stock available for distribution under the Plan may consist, in whole or in part, of authorized and unissued shares, treasury
shares or shares reacquired by the Company in any manner.
4.3.Any shares
of Common Stock subject to an Award that is canceled, forfeited or expires prior to exercise or realization, either in full or in part,
shall again become available for issuance under the Plan on a one-for-one basis. Any shares of Common Stock that again become available
for future grants pursuant to this Section 4.3 shall be added back to the number of shares of Common Stock available for the grant of
Awards under the Plan. Notwithstanding anything to the contrary contained herein: shares subject to an Award under the Plan shall not
again be made available for issuance or delivery under the Plan if such shares are (a) shares tendered in payment of an Option, (b) shares
delivered or withheld by the Company to satisfy any tax withholding obligation, or (c) shares covered by a stock-settled Stock Appreciation
Right or other Awards that were not issued upon the settlement of the Award.
5.Eligibility.
5.1.Eligibility
for Specific Awards. Incentive Stock Options may be granted only to Employees. Awards other than Incentive Stock Options may be granted
to Employees, Consultants and Directors and those individuals whom the Committee determines are reasonably expected to become Employees,
Consultants and Directors following the Grant Date.
5.2.Ten
Percent Stockholders. A Ten Percent Stockholder shall not be granted an Incentive Stock Option unless the Option Exercise Price is
at least 110% of the Fair Market Value of the Common Stock at the Grant Date and the Option is not exercisable after the expiration of
five years from the Grant Date.
6.Option Provisions. Each
Option granted under the Plan shall be evidenced by an Award Agreement. Each Option so granted shall be subject to the conditions set
forth in this Section 6, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement.
All Options shall be separately designated Incentive Stock Options or Non-qualified Stock Options at the time of grant, and, if certificates
are issued, a separate certificate or certificates will be issued for shares of Common Stock purchased on exercise of each type of Option.
Notwithstanding the foregoing, the Company shall have no liability to any Participant or any other person if an Option designated as an
Incentive Stock Option fails to qualify as such at any time or if an Option is determined to constitute “nonqualified deferred compensation”
within the meaning of Section 409A of the Code and the terms of such Option do not satisfy the requirements of Section 409A of the Code.
The provisions of separate Options need not be identical, but each Option shall include (through incorporation of provisions hereof by
reference in the Option or otherwise) the substance of each of the following provisions:
6.1.Term.
Subject to the provisions of Section 5.2 regarding Ten Percent Stockholders, no Incentive Stock Option shall be exercisable after the
expiration of 10 years from the Grant Date. The term of a Non-qualified Stock Option granted under the Plan shall be determined by the
Committee; provided, however, no Non-qualified Stock Option shall be exercisable after the expiration of 10 years from the Grant Date.
6.2.Exercise
Price of An Incentive Stock Option. Subject to the provisions of Section 5.2 regarding Ten Percent Stockholders, the Option Exercise
Price of each Incentive Stock Option shall be not less than 100% of the Fair Market Value of the Common Stock subject to the Option on
the Grant Date. Notwithstanding the foregoing, an Incentive Stock Option may be granted with an Option Exercise Price lower than that
set forth in the preceding sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner
satisfying the provisions of Section 424(a) of the Code.
6.3.Exercise
Price of a Non-qualified Stock Option. The Option Exercise Price of each Non-qualified Stock Option shall be not less than 100% of
the Fair Market Value of the Common Stock subject to the Option on the Grant Date. Notwithstanding the foregoing, a Non-qualified Stock
Option may be granted with an Option Exercise Price lower than that set forth in the preceding sentence if such Option is granted pursuant
to an assumption or substitution for another option in a manner satisfying the provisions of Section 409A of the Code.
6.4.Consideration.
The Option Exercise Price of Common Stock acquired pursuant to an Option shall be paid, to the extent permitted by applicable statutes
and regulations, either (a) in cash or by certified or bank check at the time the Option is exercised or (b) in the discretion of the
Committee, upon such terms as the Committee shall approve, the Option Exercise Price may be paid: (i) by delivery to the Company of other
Common Stock, duly endorsed for transfer to the Company, with a Fair Market Value on the date of delivery equal to the Option Exercise
Price (or portion thereof) due for the number of shares being acquired, or by means of attestation whereby the Participant identifies
for delivery specific shares of Common Stock that have an aggregate Fair Market Value on the date of attestation equal to the Option Exercise
Price (or portion thereof) and receives a number of shares of Common Stock equal to the difference between the number of shares thereby
purchased and the number of identified attestation shares of Common Stock (a “Stock for Stock Exchange”); (ii) a “cashless”
exercise program established with a broker; (iii) by reduction in the number of shares of Common Stock otherwise deliverable upon exercise
of such Option with a Fair Market Value equal to the aggregate Option Exercise Price at the time of exercise; (iv) any combination of
the foregoing methods; or (v) in any other form of legal consideration that may be acceptable to the Committee. Unless otherwise specifically
provided in the Option, the exercise price of Common Stock acquired pursuant to an Option that is paid by delivery (or attestation) to
the Company of other Common Stock acquired, directly or indirectly from the Company, shall be paid only by shares of the Common Stock
of the Company that have been held for more than six months (or such longer or shorter period of time required to avoid a charge to earnings
for financial accounting purposes). Notwithstanding the foregoing, during any period for which the Common Stock is publicly traded (i.e.,
the Common Stock is listed on any established stock exchange or a national market system) an exercise by a Director or Officer that involves
or may involve a direct or indirect extension of credit or arrangement of an extension of credit by the Company, directly or indirectly,
in violation of Section 402(a) of the Sarbanes-Oxley Act of 2002 shall be prohibited with respect to any Award under this Plan.
6.5.Transferability
of An Incentive Stock Option. An Incentive Stock Option shall not be transferable except by will or by the laws of descent and distribution
and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder
may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of
the death of the Optionholder, shall thereafter be entitled to exercise the Option.
6.6.Transferability
of a Non-qualified Stock Option. A Non-qualified Stock Option may, in the sole discretion of the Committee, be transferable to a Permitted
Transferee, upon written approval by the Committee to the extent provided in the Award Agreement. If the Non-qualified Stock Option does
not provide for transferability, then the Non-qualified Stock Option shall not be transferable except by will or by the laws of descent
and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing,
the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who,
in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option.
6.7.Vesting
of Options. Each Option may, but need not, vest and therefore become exercisable in periodic installments that may, but need not,
be equal. The Option may be subject to such other terms and conditions on the time or times when it may be exercised (which may be based
on performance or other criteria) as the Committee may deem appropriate. The vesting provisions of individual Options may vary. No Option
may be exercised for a fraction of a share of Common Stock. The Committee may, but shall not be required to, provide for an acceleration
of vesting and exercisability in the terms of any Award Agreement upon the occurrence of a specified event, provided that if such Award
is subject to Section 409A of the Code, such acceleration of vesting and exercisability complies with the provisions of Section 409A of
the Code.
6.8.Termination
of Continuous Service. Unless otherwise provided in an Award Agreement or in an employment agreement the terms of which have been
approved by the Committee, in the event an Optionholder’s Continuous Service terminates (other than upon the Optionholder’s
death or Disability), the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such
Option as of the date of termination) but only within such period of time ending on the earlier of (a) the date three months following
the termination of the Optionholder’s Continuous Service or (b) the expiration of the term of the Option as set forth in the Award
Agreement; provided that, if the termination of Continuous Service is by the Company for Cause, all outstanding Options (whether or not
vested) shall immediately terminate and cease to be exercisable. If, after termination, the Optionholder does not exercise his or her
Option within the time specified in the Award Agreement, the Option shall terminate.
6.9.Extension
of Termination Date. An Optionholder’s Award Agreement may also provide that if the exercise of the Option following the termination
of the Optionholder’s Continuous Service for any reason would be prohibited at any time because the issuance of shares of Common
Stock would violate the registration requirements under the Securities Act or any other state or federal securities law or the rules of
any securities exchange or interdealer quotation system, then the Option shall terminate on the earlier of (a) the expiration of the term
of the Option in accordance with Section 6.1 or (b) the expiration of a period after termination of the Participant’s Continuous
Service that is three months after the end of the period during which the exercise of the Option would be in violation of such registration
or other securities law requirements.
6.10.Disability
of Optionholder. Unless otherwise provided in an Award Agreement, in the event that an Optionholder’s Continuous Service terminates
as a result of the Optionholder’s Disability, the Optionholder may exercise his or her Option (to the extent that the Optionholder
was entitled to exercise such Option as of the date of termination), but only within such period of time ending on the earlier of (a)
the date 12 months following such termination or (b) the expiration of the term of the Option as set forth in the Award Agreement. If,
after termination, the Optionholder does not exercise his or her Option within the time specified herein or in the Award Agreement, the
Option shall terminate.
6.11.Death
of Optionholder. Unless otherwise provided in an Award Agreement, in the event an Optionholder’s Continuous Service terminates
as a result of the Optionholder’s death, then the Option may be exercised (to the extent the Optionholder was entitled to exercise
such Option as of the date of death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option by
bequest or inheritance or by a person designated to exercise the Option upon the Optionholder’s death, but only within the period
ending on the earlier of (a) the date 12 months following the date of death or (b) the expiration of the term of such Option as set forth
in the Award Agreement. If, after the Optionholder’s death, the Option is not exercised within the time specified herein or in the
Award Agreement, the Option shall terminate.
6.12.Incentive
Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock
with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all
plans of the Company and its Affiliates) exceeds $100,000, the Options or portions thereof which exceed such limit (according to the order
in which they were granted) shall be treated as Non-qualified Stock Options.
7.Provisions of Awards Other
Than Options.
7.1.Stock
Appreciation Rights.
| (a) | General. Each Stock Appreciation Right granted under the Plan shall be evidenced by an Award Agreement. Each Stock Appreciation
Right so granted shall be subject to the conditions set forth in this Section 7.1, and to such other conditions not inconsistent with
the Plan as may be reflected in the applicable Award Agreement. Stock Appreciation Rights may be granted alone (“Free Standing Rights”)
or in tandem with an Option granted under the Plan (“Related Rights”). All such grants shall be exempt from, or comply with,
the provisions of Section 409A of the Code. |
| (b) | Grant Requirements. Any Related Right that relates to a Non-qualified Stock Option may be granted at the same time the Option
is granted or at any time thereafter but before the exercise or expiration of the Option. Any Related Right that relates to an Incentive
Stock Option must be granted at the same time the Incentive Stock Option is granted. |
| (c) | Term of Stock Appreciation Rights. The term of a Stock Appreciation Right granted under the Plan shall be determined by the
Committee; provided, however, no Stock Appreciation Right shall be exercisable later than the tenth anniversary of the Grant Date. |
| (d) | Vesting of Stock Appreciation Rights. Each Stock Appreciation Right may, but need not, vest and therefore become exercisable
in periodic installments that may, but need not, be equal. The Stock Appreciation Right may be subject to such other terms and conditions
on the time or times when it may be exercised as the Committee may deem appropriate. The vesting provisions of individual Stock Appreciation
Rights may vary. No Stock Appreciation Right may be exercised for a fraction of a share of Common Stock. The Committee may, but shall
not be required to, provide for an acceleration of vesting and exercisability in the terms of any Stock Appreciation Right upon the occurrence
of a specified event, provided that if such Award is subject to Section 409A of the Code, such acceleration of vesting and exercisability
complies with the provisions of Section 409A of the Code. |
| (e) | Exercise and Payment. Upon exercise of a Stock Appreciation Right, the holder shall be entitled to receive from the Company
an amount equal to the number of shares of Common Stock subject to the Stock Appreciation Right that is being exercised multiplied by
the excess of (i) the Fair Market Value of a share of Common Stock on the date the Award is exercised, over (ii) the exercise price specified
in the Stock Appreciation Right or related Option. Payment with respect to the exercise of a Stock Appreciation Right shall be made on
the date of exercise. Payment shall be made in the form of shares of Common Stock (with or without restrictions as to substantial risk
of forfeiture and transferability, as determined by the Committee in its sole discretion), cash or a combination thereof, as determined
by the Committee. |
| (f) | Exercise Price. The exercise price of a Free Standing Stock Appreciation Right shall be determined by the Committee, but shall
not be less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date of such Stock Appreciation Right. A Related
Right granted simultaneously with or subsequent to the grant of an Option and in conjunction therewith or in the alternative thereto shall
have the same exercise price as the related Option, shall be transferable only upon the same terms and conditions as the related Option,
and shall be exercisable only to the same extent as the related Option; provided, however, that a Stock Appreciation Right, by its terms,
shall be exercisable only when the Fair Market Value per share of Common Stock subject to the Stock Appreciation Right and related Option
exceeds the exercise price per share thereof and no Stock Appreciation Rights may be granted in tandem with an Option unless the Committee
determines that the requirements of Section 7.1(b) are satisfied. |
| (g) | Reduction in the Underlying Option Shares. Upon any exercise of a Related Right, the number of shares of Common Stock for which
any related Option shall be exercisable shall be reduced by the number of shares for which the Stock Appreciation Right has been exercised.
The number of shares of Common Stock for which a Related Right shall be exercisable shall be reduced upon any exercise of any related
Option by the number of shares of Common Stock for which such Option has been exercised. |
7.2.Restricted
Awards.
| (a) | General. A Restricted Award is an Award of actual shares of Common Stock (“Restricted Stock”) or hypothetical Common
Stock units (“Restricted Stock Units”) having a value equal to the Fair Market Value of an identical number of shares of Common
Stock, which may, but need not, provide that such Restricted Award may not be sold, assigned, transferred or otherwise disposed of, pledged
or hypothecated as collateral for a loan or as security for the performance of any obligation or for any other purpose for such period
(the “Restricted Period”) as the Committee shall determine. Each Restricted Award granted under the Plan shall be evidenced
by an Award Agreement. Each Restricted Award so granted shall be subject to the conditions set forth in this Section 7.2, and to such
other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. |
| (b) | Restricted Stock and Restricted Stock Units. |
(i)Each
Participant granted Restricted Stock shall execute and deliver to the Company an Award Agreement with respect to the Restricted Stock
setting forth the restrictions and other terms and conditions applicable to such Restricted Stock. If the Committee determines that the
Restricted Stock shall be held by the Company or in escrow rather than delivered to the Participant pending the release of the applicable
restrictions, the Committee may require the Participant to additionally execute and deliver to the Company (A) an escrow agreement satisfactory
to the Committee, if applicable and (B) the appropriate blank stock power with respect to the Restricted Stock covered by such agreement.
If a Participant fails to execute an agreement evidencing an Award of Restricted Stock and, if applicable, an escrow agreement and stock
power, the Award shall be null and void. Subject to the restrictions set forth in the Award, the Participant generally shall have the
rights and privileges of a stockholder as to such Restricted Stock, including the right to vote such Restricted Stock and the right to
receive dividends; provided that, any cash dividends and stock dividends with respect to the Restricted Stock shall similarly be held
in escrow by the Company for the Participant’s account, and interest may be credited on the amount of the cash dividends so placed
in escrow at a rate and subject to such terms as determined by the Committee. The cash dividends or stock dividends so placed in escrow
by the Committee and attributable to any particular share of Restricted Stock (and earnings thereon, if applicable) shall be distributed
to the Participant in cash or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount
of such dividends, if applicable, upon the release of restrictions on such share and, if such share is forfeited, the Participant shall
have no right to such dividends.
(ii)The
terms and conditions of a grant of Restricted Stock Units shall be reflected in an Award Agreement. No shares of Common Stock shall be
issued at the time a Restricted Stock Unit is granted, and the Company will not be required to set aside a fund for the payment of any
such Award. A Participant shall have no voting rights with respect to any Restricted Stock Units granted hereunder. The Committee may
also grant Restricted Stock Units with a deferral feature, if permitted in Section 409A of the Code, whereby settlement is deferred beyond
the vesting date until the occurrence of a future payment date or event set forth in an Award Agreement (“Deferred Stock Units”).
At the discretion of the Committee, each Restricted Stock Unit or Deferred Stock Unit (representing one share of Common Stock) may be
credited with cash and stock dividends paid by the Company in respect of one share of Common Stock (“Dividend Equivalents”).
Dividend Equivalents shall not be paid but shall be credited to the Participant’s account, and interest may be credited on the amount
of cash Dividend Equivalents credited to the Participant’s account at a rate and subject to such terms as determined by the Committee.
Dividend Equivalents credited to a Participant’s account and attributable to any particular Restricted Stock Unit or Deferred Stock
Unit (and earnings thereon, if applicable) shall be distributed in cash or, at the discretion of the Committee, in shares of Common Stock
having a Fair Market Value equal to the amount of such Dividend Equivalents and earnings, if applicable, to the Participant upon settlement
of such Restricted Stock Unit or Deferred Stock Unit and, if such Restricted Stock Unit or Deferred Stock Unit is forfeited, the Participant
shall have no right to such Dividend Equivalents.
(i)Restricted
Stock awarded to a Participant shall be subject to the following restrictions until the expiration of the Restricted Period, and to such
other terms and conditions as may be set forth in the applicable Award Agreement: (A) if an escrow arrangement is used, the Participant
shall not be entitled to delivery of the stock certificate; (B) the shares shall be subject to the restrictions on transferability set
forth in the Award Agreement; (C) the shares shall be subject to forfeiture to the extent provided in the applicable Award Agreement;
and (D) to the extent such shares are forfeited, the stock certificates shall be returned to the Company, and all rights of the Participant
to such shares and as a stockholder with respect to such shares shall terminate without further obligation on the part of the Company.
(ii)Restricted
Stock Units and Deferred Stock Units awarded to any Participant shall be subject to (A) forfeiture until the expiration of the Restricted
Period, and satisfaction of any applicable Performance Goals during such period, to the extent provided in the applicable Award Agreement,
and to the extent such Restricted Stock Units or Deferred Stock Units are forfeited, all rights of the Participant to such Restricted
Stock Units or Deferred Stock Units shall terminate without further obligation on the part of the Company and (B) such other terms and
conditions as may be set forth in the applicable Award Agreement.
(iii)The
Committee shall have the authority to remove any or all of the restrictions on the Restricted Stock, Restricted Stock Units and Deferred
Stock Units whenever it may determine that, by reason of changes in Applicable Laws or other changes in circumstances arising after the
date the Restricted Stock or Restricted Stock Units or Deferred Stock Units are granted, such action is appropriate.
| (d) | Restricted Period. With respect to Restricted Awards, the Restricted Period shall commence on the Grant Date and end at the
time or times set forth on a schedule established by the Committee in the applicable Award Agreement. No Restricted Award may be granted
or settled for a fraction of a share of Common Stock. The Committee may, but shall not be required to, provide for an acceleration of
vesting in the terms of any Award Agreement upon the occurrence of a specified event, provided that if such Award is subject to Section
409A of the Code, such acceleration is consistent with the provisions of Section 409A of the Code. |
| (e) | Delivery of Restricted Stock and Settlement of Restricted Stock Units. Upon the expiration of the Restricted Period with respect
to any shares of Restricted Stock, the restrictions set forth in Section 7.2(c) and the applicable Award Agreement shall be of no further
force or effect with respect to such shares, except as set forth in the applicable Award Agreement. If an escrow arrangement is used,
upon such expiration, the Company shall deliver to the Participant, or his or her beneficiary, without charge, the stock certificate evidencing
the shares of Restricted Stock which have not then been forfeited and with respect to which the Restricted Period has expired (to the
nearest full share) and any cash dividends or stock dividends credited to the Participant’s account with respect to such Restricted
Stock and the interest thereon, if any. Upon the expiration of the Restricted Period with respect to any outstanding Restricted Stock
Units, or at the expiration of the deferral period with respect to any outstanding Deferred Stock Units, the Company shall deliver to
the Participant, or his or her beneficiary, without charge, one share of Common Stock for each such outstanding vested Restricted Stock
Unit or Deferred Stock Unit (“Vested Unit”) and cash equal to any Dividend Equivalents credited with respect to each such
Vested Unit in accordance with Section 7.2(b)(ii) hereof and the interest thereon or, at the discretion of the Committee, in shares of
Common Stock having a Fair Market Value equal to such Dividend Equivalents and the interest thereon, if any; provided, however, that,
if explicitly provided in the applicable Award Agreement, the Committee may, in its sole discretion, elect to pay cash or part cash and
part Common Stock in lieu of delivering only shares of Common Stock for Vested Units. If a cash payment is made in lieu of delivering
shares of Common Stock, the amount of such payment shall be equal to the Fair Market Value of the Common Stock as of the date on which
the Restricted Period lapsed in the case of Restricted Stock Units, or the delivery date in the case of Deferred Stock Units, with respect
to each Vested Unit. |
| (f) | Stock Restrictions. Each certificate representing Restricted Stock awarded under the Plan shall bear a legend in such form
as the Company deems appropriate. |
7.3.Performance
Share Awards.
| (a) | Grant of Performance Share Awards. Each Performance Share Award granted under the Plan shall be evidenced by an Award Agreement.
Each Performance Share Award so granted shall be subject to the conditions set forth in this Section 7.3, and to such other conditions
not inconsistent with the Plan as may be reflected in the applicable Award Agreement. The Committee shall have the discretion to determine:
(i) the number of shares of Common Stock or stock-denominated units subject to a Performance Share Award granted to any Participant; (ii)
the performance period applicable to any Award; (iii) the conditions that must be satisfied for a Participant to earn an Award; and (iv)
the other terms, conditions and restrictions of the Award. |
| (b) | Earning Performance Share Awards. The number of Performance Shares earned by a Participant will depend on the extent to which
the performance goals established by the Committee are attained within the applicable Performance Period, as determined by the Committee.
No payout shall be made with respect to any Performance Share Award except upon written certification by the Committee that the minimum
threshold performance goal(s) have been achieved. |
7.4.Performance
Compensation Awards.
| (a) | General. The Committee shall have the authority, at the time of grant of any Award described in this Plan (other than Options
and Stock Appreciation Rights granted with an exercise price equal to or greater than the Fair Market Value per share of Common Stock
on the Grant Date), to designate such Award as a Performance Compensation Award. In addition, the Committee shall have the authority to
make an Award of a cash bonus to any Participant and designate such Award as a Performance Compensation Award. |
| (b) | Eligibility. The Committee will, in its sole discretion, designate within the first 90 days of a Performance Period (or such
shorter or longer time period as the Committee shall determine) which Participants will be eligible to receive Performance Compensation
Awards in respect of such Performance Period. However, designation of a Participant eligible to receive an Award hereunder for a Performance
Period shall not in any manner entitle the Participant to receive payment in respect of any Performance Compensation Award for such Performance
Period. The determination as to whether or not such Participant becomes entitled to payment in respect of any Performance Compensation
Award shall be decided solely in accordance with the provisions of this Section 7.4. Moreover, designation of a Participant eligible to
receive an Award hereunder for a particular Performance Period shall not require designation of such Participant eligible to receive an
Award hereunder in any subsequent Performance Period and designation of one person as a Participant eligible to receive an Award hereunder
shall not require designation of any other person as a Participant eligible to receive an Award hereunder in such period or in any other
period. |
| (c) | Discretion of Committee with Respect to Performance Compensation Awards. With regard to a particular Performance Period, the
Committee shall have full discretion to select the length of such Performance Period (provided any such Performance Period shall be not
less than one fiscal quarter in duration), the type(s) of Performance Compensation Awards to be issued, the Performance Criteria that
will be used to establish the Performance Goal(s), the kind(s) and/or level(s) of the Performance Goal(s) that is (are) to apply to the
Company and the Performance Formula. Within the first 90 days of a Performance Period (or such shorter or longer time period as the Committee
shall determine), the Committee shall, with regard to the Performance Compensation Awards to be issued for such Performance Period, exercise
its discretion with respect to each of the matters enumerated in the immediately preceding sentence of this Section 7.4(c) and record
the same in writing. |
| (d) | Payment of Performance Compensation Awards. |
(i)Condition
to Receipt of Payment. Unless otherwise provided in the applicable Award Agreement, a Participant must be employed by the Company
on the last day of a Performance Period to be eligible for payment in respect of a Performance Compensation Award for such Performance
Period.
(ii)Limitation.
A Participant shall be eligible to receive payment in respect of a Performance Compensation Award only to the extent that: (A) the Performance
Goals for such period are achieved; and (B) the Performance Formula as applied against such Performance Goals determines that all or some
portion of such Participant’s Performance Compensation Award has been earned for the Performance Period.
(iii)Certification.
Following the completion of a Performance Period, the Committee shall review and certify in writing whether, and to what extent, the Performance
Goals for the Performance Period have been achieved and, if so, calculate and certify in writing the amount of the Performance Compensation
Awards earned for the period based upon the Performance Formula. The Committee shall then determine the actual size of each Participant’s
Performance Compensation Award for the Performance Period.
(iv)Use
of Discretion. The Committee shall not have the discretion to grant or provide payment in respect of Performance Compensation Awards
for a Performance Period if the Performance Goals for such Performance Period have not been attained.
(v)Timing
of Award Payments. Performance Compensation Awards granted for a Performance Period shall be paid to Participants as soon as administratively
practicable following completion of the certifications required by this Section 7.4 but in no event later than 2 1/2 months following
the end of the fiscal year during which the Performance Period is completed.
8.Securities Law Compliance.
Each Award Agreement shall provide that no shares of Common Stock shall be purchased or sold thereunder unless and until (a) any then
applicable requirements of state or federal laws and regulatory agencies have been fully complied with to the satisfaction of the Company
and its counsel and (b) if required to do so by the Company, the Participant has executed and delivered to the Company a letter of investment
intent in such form and containing such provisions as the Committee may require. The Company shall use reasonable efforts to seek to obtain
from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to grant Awards and to issue
and sell shares of Common Stock upon exercise of the Awards; provided, however, that this undertaking shall not require the Company to
register under the Securities Act the Plan, any Award or any Common Stock issued or issuable pursuant to any such Award. If, after reasonable
efforts, the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deems
necessary for the lawful issuance and sale of Common Stock under the Plan, the Company shall be relieved from any liability for failure
to issue and sell Common Stock upon exercise of such Awards unless and until such authority is obtained.
9.Use of Proceeds from Stock.
Proceeds from the sale of Common Stock pursuant to Awards, or upon exercise thereof, shall constitute general funds of the Company.
10.Miscellaneous.
10.1.Acceleration
of Exercisability and Vesting. The Committee shall have the power to accelerate the time at which an Award may first be exercised
or the time during which an Award or any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Award
stating the time at which it may first be exercised or the time during which it will vest, provided that if such Award is subject to Section
409A of the Code, any such acceleration or exercisability or vesting is in compliance with the provisions of Section 409A of the Code.
10.2.Stockholder
Rights. Except as provided in the Plan or an Award Agreement, no Participant shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares of Common Stock subject to such Award unless and until such Participant has satisfied
all requirements for exercise of the Award pursuant to its terms and no adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions of other rights for which the record date is prior to the date such Common
Stock certificate is issued, except as provided in Section 11 hereof.
10.3.No
Employment or Other Service Rights. Nothing in the Plan or any instrument executed or Award granted pursuant thereto shall confer
upon any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Award was granted
or shall affect the right of the Company or an Affiliate to terminate (a) the employment of an Employee with or without notice and with
or without Cause or (b) the service of a Director pursuant to the By-laws of the Company or an Affiliate, and any applicable provisions
of the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may be.
10.4.Transfer;
Approved Leave of Absence. For purposes of the Plan, no termination of employment by an Employee shall be deemed to result from either
(a) a transfer of employment to the Company from an Affiliate or from the Company to an Affiliate, or from one Affiliate to another, or
(b) an approved leave of absence for military service or sickness, or for any other purpose approved by the Company, if the Employee’s
right to reemployment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was
granted or if the Committee otherwise so provides in writing, in either case, except to the extent inconsistent with Section 409A of the
Code if the applicable Award is subject thereto.
10.5.Withholding
Obligations. To the extent provided by the terms of an Award Agreement and subject to the discretion of the Committee, the Participant
may satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition of Common Stock under an Award
by any of the following means (in addition to the Company’s right to withhold from any compensation paid to the Participant by the
Company) or by a combination of such means: (a) tendering a cash payment; (b) authorizing the Company to withhold shares of Common Stock
from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under
the Award; or (c) delivering to the Company previously owned and unencumbered shares of Common Stock of the Company.
11.Adjustments Upon Changes
in Stock. In the event of changes in the outstanding Common Stock or in the capital structure of the Company by reason of any stock
or extraordinary cash dividend, stock split, reverse stock split, an extraordinary corporate transaction such as any recapitalization,
reorganization, merger, consolidation, combination, exchange, or other relevant change in capitalization occurring after the Grant Date
of any Award, Awards granted under the Plan and any Award Agreements, the exercise price of Options and Stock Appreciation Rights, the
maximum number of shares of Common Stock subject to all Awards stated in Section 4 and the maximum number of shares of Common Stock with
respect to which any one person may be granted Awards during any period stated in Section 4 will be equitably adjusted or substituted,
as to the number, price or kind of a share of Common Stock or other consideration subject to such Awards to the extent necessary to preserve
the economic intent of such Award. In the case of adjustments made pursuant to this Section 11, unless the Committee specifically determines
that such adjustment is in the best interests of the Company or its Affiliates, the Committee shall, in the case of Incentive Stock Options,
ensure that any adjustments under this Section 11 will not constitute a modification, extension or renewal of the Incentive Stock Options
within the meaning of Section 424(h)(3) of the Code and in the case of Non-qualified Stock Options, ensure that any adjustments under
this Section 11 will not constitute a modification of such Non-qualified Stock Options within the meaning of Section 409A of the Code.
Any adjustments made under this Section 11 shall be made in a manner which does not adversely affect the exemption provided pursuant to
Rule 16b-3 under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder and, upon notice, such adjustment
shall be conclusive and binding for all purposes.
12.Effect of Change in Control.
12.1.In the
discretion of the Board and the Committee, any Award Agreement may provide, or the Board or the Committee may provide by amendment of
any Award Agreement or otherwise, notwithstanding any provision of the Plan to the contrary, that in the event of a Change in Control,
Options and/or Stock Appreciation Rights shall become immediately exercisable with respect to all or a specified portion of the shares
subject to such Options or Stock Appreciation Rights, and/or the Restricted Period shall expire immediately with respect to all or a specified
portion of the shares of Restricted Stock or Restricted Stock Units.
12.2.In addition,
in the event of a Change in Control, the Committee may in its discretion and upon at least 10 days’ advance notice to the affected
persons, cancel any outstanding Awards and pay to the holders thereof, in cash or stock, or any combination thereof, the value of such
Awards based upon the price per share of Common Stock received or to be received by other stockholders of the Company in the event. In
the case of any Option or Stock Appreciation Right with an exercise price that equals or exceeds the price paid for a share of Common
Stock in connection with the Change in Control, the Committee may cancel the Option or Stock Appreciation Right without the payment of
consideration therefor.
12.3.The
obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation
or other reorganization of the Company, or upon any successor corporation or organization succeeding to all or substantially all of the
assets and business of the Company and its Subsidiaries, taken as a whole.
13.Amendment of the Plan and
Awards.
13.1.Amendment
of Plan. The Board may amend, alter, suspend, discontinue, or terminate this Plan or any portion thereof at any time; provided that
(a) no amendment to the persons eligible to receive Awards set forth in Section 1.2 or to the maximum number of shares as to which Awards
may be granted set forth in Section 4.1 (except for adjustments pursuant to Section 11), shall be made without stockholder approval, and
(b) no such amendment, alteration, suspension, discontinuation or termination shall be made without stockholder approval if such approval
is necessary to comply with any Applicable Laws (including, without limitation, as necessary to comply with any tax or regulatory requirement
applicable to this Plan); and provided further, that any such amendment, alteration, suspension, discontinuance or termination that would
materially and adversely affect the rights of any Participant or any holder or beneficiary of any Award theretofore granted shall not
to that extent be effective without the prior written consent of the affected Participant, holder or beneficiary.
13.2.Contemplated
Amendments. It is expressly contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable to
provide eligible Employees, Consultants and Directors with the maximum benefits provided or to be provided under the provisions of the
Code and the regulations promulgated thereunder relating to Incentive Stock Options or to the nonqualified deferred compensation provisions
of Section 409A of the Code and/or to bring the Plan and/or Awards granted under it into compliance therewith.
13.3.No
Impairment of Rights. Rights under any Award granted before amendment of the Plan shall not be impaired by any amendment of the Plan
unless (a) the Company requests the consent of the Participant and (b) the Participant consents in writing.
13.4.Amendment
of Awards. The Committee may, to the extent consistent with the terms of any applicable Award Agreement, waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award
Agreement, prospectively or retroactively; provided, however that any such waiver, amendment, alteration, suspension, discontinuance,
cancellation or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretofore
granted shall not to that extent be effective without the consent of the affected Participant.
14.General Provisions.
14.1.Forfeiture
Events. The Committee may specify in an Award Agreement that the Participant’s rights, payments and benefits with respect to
an Award shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain events, in addition to applicable
vesting conditions of an Award. Such events may include, without limitation, breach of non-competition, non-solicitation, confidentiality,
or other restrictive covenants that are contained in the Award Agreement or otherwise applicable to the Participant, a termination of
the Participant’s Continuous Service for Cause, or other conduct by the Participant that is detrimental to the business or reputation
of the Company and/or its Affiliates.
14.2.Clawback.
Notwithstanding any other provisions in this Plan, any Award which is subject to recovery under any law, government regulation or stock
exchange listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to such law, government
regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such law, government regulation
or stock exchange listing requirement).
14.3.Other
Compensation Arrangements. Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements,
subject to stockholder approval if such approval is required; and such arrangements may be either generally applicable or applicable only
in specific cases.
14.4.Sub-plans.
The Committee may from time to time establish sub-plans under the Plan for purposes of satisfying blue sky, securities, tax or other laws
of various jurisdictions in which the Company intends to grant Awards. Any sub-plans shall contain such limitations and other terms and
conditions as the Committee determines are necessary or desirable. All sub-plans shall be deemed a part of the Plan, but each sub-plan
shall apply only to the Participants in the jurisdiction for which the sub-plan was designed.
14.5.Deferral
of Awards. The Committee may establish one or more programs under the Plan to permit selected Participants the opportunity to elect
to defer receipt of consideration upon exercise of an Award, satisfaction of performance criteria, or other event that absent the election
would entitle the Participant to payment or receipt of shares of Common Stock or other consideration under an Award. The Committee may
establish the election procedures, the timing of such elections, the mechanisms for payments of, and accrual of interest or other earnings,
if any, on amounts, shares or other consideration so deferred, and such other terms, conditions, rules and procedures that the Committee
deems advisable for the administration of any such deferral program. All of such programs and procedures shall be consistent with the
rules of Section 409A of the Code.
14.6.Unfunded
Plan. The Plan shall be unfunded. Neither the Company, the Board nor the Committee shall be required to establish any special or separate
fund or to segregate any assets to assure the performance of its obligations under the Plan.
14.7.Recapitalizations.
Each Award Agreement shall contain provisions required to reflect the provisions of Section 11.
14.8.Delivery.
Upon exercise of a right granted under this Plan, the Company shall issue Common Stock or pay any amounts due within a reasonable period
of time thereafter. Subject to any statutory or regulatory obligations the Company may otherwise have, for purposes of this Plan, thirty
(30) days shall be considered a reasonable period of time.
14.9.No
Fractional Shares. No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Committee shall determine
whether cash, additional Awards or other securities or property shall be issued or paid in lieu of fractional shares of Common Stock or
whether any fractional shares should be rounded, forfeited or otherwise eliminated.
14.10.Other
Provisions. The Award Agreements authorized under the Plan may contain such other provisions not inconsistent with this Plan, including,
without limitation, restrictions upon the exercise of the Awards, as the Committee may deem advisable.
14.11.Section
409A. The Plan and all Awards granted under the Plan are intended to comply with Section 409A of the Code to the extent subject thereto,
and, accordingly, to the maximum extent permitted, the Plan and all Awards Agreements shall be interpreted and administered to be in compliance
therewith. Any payments described in the Plan that are due within the “short-term deferral period” as defined in Section 409A
of the Code shall not be treated as deferred compensation unless Applicable Laws require otherwise. Notwithstanding anything to the contrary
in the Plan or any Award Agreement, to the extent required to avoid accelerated taxation and tax penalties under Section 409A of the Code,
amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to the Plan or Award Agreement during the
six (6) month period immediately following the Participant’s termination of Continuous Service shall instead be paid on the first
payroll date after the six-month anniversary of the Participant’s separation from service (or the Participant’s death, if
earlier). Notwithstanding the foregoing, neither the Company nor the Committee shall have any obligation to take any action to prevent
the assessment of any excise tax or penalty on any Participant under Section 409A of the Code and neither the Company nor the Committee
will have any liability to any Participant for such tax or penalty.
14.12.Disqualifying
Dispositions. Any Participant who shall make a “disposition” (as defined in Section 424 of the Code) of all or any portion
of shares of Common Stock acquired upon exercise of an Incentive Stock Option within two years from the Grant Date of such Incentive Stock
Option or within one year after the issuance of the shares of Common Stock acquired upon exercise of such Incentive Stock Option (a “Disqualifying
Disposition”) shall be required to immediately advise the Company in writing as to the occurrence of the sale and the price realized
upon the sale of such shares of Common Stock.
14.13.Section
16. It is the intent of the Company that the Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements
of Rule 16b-3 as promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the benefit of Rule 16b-3,
or any other rule promulgated under Section 16 of the Exchange Act, and will not be subject to short-swing liability under Section 16
of the Exchange Act. Accordingly, if the operation of any provision of the Plan would conflict with the intent expressed in this Section
14.13, such provision to the extent possible shall be interpreted and/or deemed amended so as to avoid such conflict.
14.14.Beneficiary
Designation. Each Participant under the Plan may from time to time name any beneficiary or beneficiaries by whom any right under the
Plan is to be exercised in case of such Participant’s death. Each designation will revoke all prior designations by the same Participant,
shall be in a form reasonably prescribed by the Committee and shall be effective only when filed by the Participant in writing with the
Company during the Participant’s lifetime.
14.15.Expenses.
The costs of administering the Plan shall be paid by the Company.
14.16.Severability.
If any of the provisions of the Plan or any Award Agreement is held to be invalid, illegal or unenforceable, whether in whole or in part,
such provision shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and
the remaining provisions shall not be affected thereby.
14.17.Plan
Headings. The headings in the Plan are for purposes of convenience only and are not intended to define or limit the construction of
the provisions hereof.
14.18.Non-Uniform
Treatment. The Committee’s determinations under the Plan need not be uniform and may be made by it selectively among persons
who are eligible to receive, or actually receive, Awards. Without limiting the generality of the foregoing, the Committee shall be entitled
to make non-uniform and selective determinations, amendments and adjustments, and to enter into non-uniform and selective Award Agreements.
15.Effective Date of Plan.
The Plan shall become effective as of the Effective Date, but no Award shall be exercised (or, in the case of a stock Award, shall be
granted) unless and until the Plan has been approved by the stockholders of the Company, which approval shall be within twelve (12) months
before or after the date the Plan is adopted by the Board.
16.Termination or Suspension
of the Plan. The Plan shall terminate automatically on the tenth anniversary of the Effective Date. No Award shall be granted pursuant
to the Plan after such date, but Awards theretofore granted may extend beyond that date. The Board may suspend or terminate the Plan at
any earlier date pursuant to Section 13.1 hereof, provided any such suspension or termination is consistent with the provisions of Section
409A of the Code. No Awards may be granted under the Plan while the Plan is suspended or after it is terminated.
17.Choice of Law. Except
to the extent governed by Federal law, the law of the State of Delaware shall govern all questions concerning the construction, validity
and interpretation of this Plan, without regard to such state’s conflict of law rules.
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