As
filed with the Securities and Exchange Commission on August 21, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
HOTH THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
Nevada |
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82-1553794 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
1 Rockefeller Plaza, Suite 1039
New York, New York 10020
(Address of Principal Executive Offices) (Zip Code)
Hoth Therapeutics, Inc.
Amended and Restated 2022 Omnibus Equity Incentive
Plan
(Full title of the plan)
Robb Knie
Chief Executive Officer
Hoth Therapeutics, Inc.
1 Rockefeller Plaza, Suite 1039
New York, New York 10020
(Name and address of agent for service)
(646) 756-2997
(Telephone number, including area code, of agent
for service)
With a copy to:
Richard A. Friedman, Esq.
Nazia J. Khan, Esq.
Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller
Plaza
New York,
NY 10012
Telephone:
(212) 653-8700
Facsimile:
(212) 653-8701
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
☒ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This Registration Statement is being filed for
the purpose of registering an additional 495,317 shares of common stock that were reserved for issuance under the Hoth Therapeutics, Inc.
Amended and Restated 2022 Omnibus Equity Incentive Plan (the “2022 Plan”). The Registrant previously filed with the Securities
and Exchange Commission (the “SEC”) a registration statement on Form S-8 on July 1, 2022 (SEC File No. 333-265984) (the “Prior
Registration Statement”), registering shares of common stock issuable under the Hoth Therapeutics, Inc. 2022 Omnibus Equity Incentive
Plan. This Registration Statement relates to securities of the same class as those to which the Prior Registration Statement relates and
is submitted in accordance with General Instruction E of Form S-8 regarding Registration of Additional Securities. Pursuant to General
Instruction E of Form S-8, the contents of the Prior Registration Statement are incorporated herein by reference and made part of this
Registration Statement, except for Items 3 and 8, which are being updated by this Registration Statement.
PART II
INFORMATION NOT REQUIRED IN THE REGISTRATION
STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with
the Securities and Exchange Commission (“SEC”) pursuant to the Securities Act and the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), are incorporated herein by reference:
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The Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 31, 2023; |
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The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023 and June 30, 2023, filed with the SEC on May 15, 2023 and August 11, 2023, respectively; |
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The Company’s Current Reports on Form 8-K filed with the SEC on February 28, 2023 and June 6, 2023 (except for any portions of such Current Reports on Form 8-K furnished pursuant to Item 2.02 and/or Item 7.01 thereof and any corresponding exhibits thereto not filed with the SEC); |
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The Company’s definitive proxy statement on Schedule 14A filed with the SEC on June 27, 2023; |
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The description of the Company’s common stock which is contained in the Company’s Registration Statement on Form 8-A filed on February 6, 2019 (File No. 001-38803) under the Exchange Act, including any amendments or reports filed with the SEC for the purpose of updating such description; and |
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All other reports and documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement herein or in any subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not constitute a part of this Registration Statement, except as so modified or superseded. |
ITEM 8. EXHIBITS.
See the attached Exhibit Index on the page immediately
following the signature pages hereto, which is incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of
the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 21st day of August 2023.
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Hoth Therapeutics, Inc. |
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By: |
/s/ Robb Knie |
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Robb Knie |
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Chief Executive Officer |
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(Principal Executive Officer) |
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By: |
/s/ David Briones |
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David Briones |
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Chief Financial Officer |
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(Principal Financial and Accounting Officer) |
POWER OF
ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Robb Knie, with full power
of substitution, his or her true and lawful attorney-in-fact to act for him or her in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this registration statement, and to file each of the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact
full power and authority to do and perform each and every act and thing requisite and necessary to be done in order to effectuate the
same as fully, to all intents and purposes, as he or she could do in person, hereby ratifying and confirming all that said attorneys-in-fact or substitutes,
or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Robb Knie |
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Chief Executive Officer, President and Director |
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August
21, 2023 |
Robb Knie |
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(Principal Executive Officer) |
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/s/ David Briones |
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Chief Financial Officer |
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August 21, 2023 |
David Briones |
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(Principal Financial and Accounting Officer) |
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/s/ Wayne Linsley |
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Director |
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August 21, 2023 |
Wayne Linsley |
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/s/ David B. Sarnoff |
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Director |
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August 21, 2023 |
David B. Sarnoff |
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/s/ Graig Springer |
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Director |
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August 21, 2023 |
Graig Springer |
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/s/ Jeff Pavell |
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Director |
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August 21, 2023 |
Jeff Pavell |
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EXHIBIT INDEX
II-3
Exhibit 5.1
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Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller Plaza
New York, New York 10112-0015
212.653.8700 main
212.653.8701 fax
www.sheppardmullin.com |
August 21, 2023
VIA ELECTRONIC MAIL
Hoth Therapeutics, Inc.
1 Rockefeller Plaza, Suite 1039
New York, NY 10020
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
You have requested our opinion
with respect to certain matters in connection with the filing by Hoth Therapeutics, Inc., a Nevada corporation (the “Company”),
of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the
“Securities Act”), with the U.S. Securities and Exchange Commission (the “Commission”), covering 495,317 shares
(the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), which may
be issued pursuant to the Company’s Amended and Restated 2022 Omnibus Equity Incentive Plan (the “Plan”).
This opinion (this “Opinion”)
is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
In connection with this Opinion,
we have reviewed and relied upon the Registration Statement, the Company’s Articles of Incorporation, as amended, as in effect on
the date hereof (the “Articles of Incorporation”), the Company’s Amended and Restated Bylaws, as amended, as in effect
on the date hereof (the “Bylaws” and together with the Articles of Incorporation, the “Charter Documents”), the
proceedings taken by the Company with respect to the authorization and adoption of the Plan, resolutions adopted by the board of directors
of the Company, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this
Opinion.
With respect to the foregoing
documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the
conformity to the original of all documents submitted to us as certified or reproduced copies. We have also assumed that the Shares will
be uncertificated in accordance with Section 78.235 of the Nevada Revised Statutes, and the transfer agent therefor will register
the purchaser thereof as the registered owner of any uncertificated Shares on its stock transfer books and records. We have further assumed
that (a) shares of Common Stock currently reserved for issuance under the Plan will remain available for the issuance of the Shares,
and (b) neither the Company’s Charter Documents nor any of the proceedings relating to either the Plan or any of the award
agreements relating to the Shares will be rescinded, amended or otherwise modified prior to the issuance of the Shares. We have also obtained
from public officials and officers of the Company certificates or comparable documents as to certain factual matters and, insofar as this
Opinion is based on matters of fact, we have relied on such certificates and comparable documents without independent investigation. We
have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth.
On the basis of the foregoing,
and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plan and against
proper payment and consideration thereof and pursuant to the agreements that accompany the Plan, will be legally and validly issued, fully
paid and nonassessable.
We consent to the filing of
this Opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby admit that we are included
in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
Commission promulgated thereunder.
Page 2
We express no opinion as to
matters governed by any laws other than the Nevada Revised Statutes and reported decisions of the Nevada courts interpreting such
law.
This Opinion is rendered as
of the date first written above, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter
may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating
to the Company, the Shares, the Plan, the award agreements related to the Shares, or the Registration Statement.
Respectfully Submitted, |
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/s/ Sheppard, Mullin, Richter & Hampton LLP |
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP |
Exhibit 10.1
HOTH THERAPEUTICS, INC.
AMENDED AND RESTATED
2022 OMNIBUS EQUITY INCENTIVE PLAN
Section 1. Purpose of Plan.
The name of the Plan is the
Hoth Therapeutics, Inc. Amended and Restated 2022 Omnibus Equity Incentive Plan (the “Plan”). The purposes of the Plan
are to (i) provide an additional incentive to selected employees, directors, and independent contractors of the Company or its Affiliates
whose contributions are essential to the growth and success of the Company, (ii) strengthen the commitment of such individuals to the
Company and its Affiliates, (iii) motivate those individuals to faithfully and diligently perform their responsibilities and (iv) attract
and retain competent and dedicated individuals whose efforts will result in the long-term growth and profitability of the Company. To
accomplish these purposes, the Plan provides that the Company may grant Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Other Stock-Based Awards or any combination of the foregoing.
Section 2. Definitions.
For purposes of the Plan, the
following terms shall be defined as set forth below:
(a) “Administrator”
means the Board, or, if and to the extent the Board does not administer the Plan, the Committee in accordance with Section 3 hereof.
(b) “Affiliate”
means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified as of any date of determination.
(c) “Applicable Laws”
means the applicable requirements under U.S. federal and state corporate laws, U.S. federal and state securities laws, including the Code,
any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction
where Awards are granted under the Plan, as are in effect from time to time.
(d) “Award”
means any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit or Other Stock-Based Awards granted under the Plan.
(e) “Award Agreement”
means any written notice, agreement, contract or other instrument or document evidencing an Award, including through electronic medium,
which shall contain such terms and conditions with respect to an Award as the Administrator shall determine, consistent with the Plan.
(f) “Beneficial Owner” (or
any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.
(g) “Board”
means the Board of Directors of the Company.
(h) “Bylaws”
mean the bylaws of the Company, as may be amended and/or restated from time to time.
(i) “Cause”
has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant
or, if no such agreement exists or if such agreement does not define “Cause,” then “Cause” means a Participant’s
(i) conviction of a felony or a crime involving fraud or moral turpitude; (ii) theft, material act of dishonesty or fraud, intentional
falsification of any employment or Company records, or commission of any criminal act which impairs Participant’s ability to perform
appropriate employment duties for the Company; (iii) intentional or reckless conduct or gross negligence materially harmful to the Company
or the successor to the Company after a Change in Control, including violation of a non-competition or confidentiality agreement; (iv)
willful failure to follow lawful instructions of the person or body to which Participant reports; or (v) gross negligence or willful misconduct
in the performance of Participant’s assigned duties. “Cause” shall not include mere unsatisfactory performance in the
achievement of a Participant’s job. Any voluntary termination of employment or service by the Participant in anticipation of an
involuntary termination of the Participant’s employment or service, as applicable, for Cause shall be deemed to be a termination
for Cause.
(j) “Change in Capitalization”
means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate
transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Common
Stock or other property), stock split, reverse stock split, share subdivision or consolidation, (iii) combination or exchange of shares
or (iv) other change in corporate structure, which, in any such case, the Administrator determines, in its sole discretion, affects the
Common Stock such that an adjustment pursuant to Section 5 hereof is appropriate.
(k) “Change in Control”
means the first occurrence of an event set forth in any one of the following paragraphs following the Effective Date:
(1) any Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such
Person which were acquired directly from the Company or any Affiliate thereof) representing more than fifty percent (50%) of the combined
voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection
with a transaction described in clause (i) of paragraph (3) below; or
(2) the date on which individuals
who constitute the Board as of the Effective Date and any new director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including, but not limited to, a consent solicitation, relating to the election
of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s stockholders
was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on
the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended cease for any reason
to constitute a majority of the number of directors serving on the Board; or
(3) there is consummated a
merger or consolidation of the Company or any direct or indirect Subsidiary with any other corporation or other entity, other than (i)
a merger or consolidation (A) which results in the voting securities of the Company outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent
thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the
Company or any Subsidiary, fifty percent (50%) or more of the combined voting power of the securities of the Company or such surviving
entity or any parent thereof outstanding immediately after such merger or consolidation and (B) following which the individuals who comprise
the Board immediately prior thereto constitute at least a majority of the Board of the Company, the entity surviving such merger or consolidation
or, if the Company or the entity surviving such merger or consolidation is then a Subsidiary, the ultimate parent thereof, or (ii) a merger
or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person
any securities acquired directly from the Company or its Affiliates) representing more than fifty percent (50%) of the combined voting
power of the Company’s then outstanding securities; or
(4) the stockholders of the
Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition
by the Company of all or substantially all of the Company’s assets, other than (A) a sale or disposition by the Company of all or
substantially all of the Company’s assets to an entity, more than fifty percent (50%) of the combined voting power of the voting
securities of which are owned by stockholders of the Company following the completion of such transaction in substantially the same proportions
as their ownership of the Company immediately prior to such sale or (B) a sale or disposition of all or substantially all of the Company’s
assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of
the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary, the ultimate parent
thereof.
Notwithstanding the foregoing, (i) a Change in
Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately
following which the holders of Common Stock immediately prior to such transaction or series of transactions continue to have substantially
the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such
transaction or series of transactions and (ii) to the extent required to avoid accelerated taxation and/or tax penalties under Section
409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to any Award that constitutes deferred
compensation under Section 409A of the Code only if a change in the ownership or effective control of the Company or a change in ownership
of a substantial portion of the assets of the Company shall also be deemed to have occurred under Section 409A of the Code. For purposes
of this definition of Change in Control, the term “Person” shall not include (i) the Company or any Subsidiary thereof, (ii)
a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary thereof, (iii) an underwriter
temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their ownership of shares of the Company.
(l) “Code”
means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto.
(m) “Committee”
means any committee or subcommittee the Board (including, but not limited to, the Compensation Committee) may appoint to administer the
Plan. Subject to the discretion of the Board, the Committee shall be composed entirely of individuals who meet the qualifications of a
“non-employee director” within the meaning of Rule 16b-3 under the Exchange Act and any other qualifications required by the
applicable stock exchange on which the Common Stock is traded.
(n) “Common Stock”
means the common stock of the Company, par value $0.0001.
(o) “Company”
means Hoth Therapeutics, Inc., a Nevada corporation (or any successor company, except as the term “Company” is used in the
definition of “Change in Control” above).
(p) “Covered Executive”
means any Executive Officer that (1) has received Incentive Compensation (A) during the Look-Back Period (as defined in Section 27) and
(B) after beginning service as an Executive Officer; and (2) served as an Executive Officer at any time during the performance period
for the applicable Incentive Compensation.
(q) “Disability”
has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant
or, if no such agreement exists or if such agreement does not define “Disability,” then “Disability” means that
a Participant, as determined by the Administrator in its sole discretion, (i) is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving
income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the
Company or an Affiliate thereof.
(r) “Effective Date”
has the meaning set forth in Section 17 hereof.
(s) “Eligible Recipient”
means an employee, director or independent contractor of the Company or any Affiliate of the Company who has been selected as an eligible
participant by the Administrator; provided, however, to the extent required to avoid accelerated taxation and/or
tax penalties under Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation Right means an employee, non-employee
director or independent contractor of the Company or any Affiliate of the Company with respect to whom the Company is an “eligible
issuer of service recipient stock” within the meaning of Section 409A of the Code.
(t) “Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time.
(u) “Executive
Officer” means “any executive officer” as defined in Section 10D-1(d) of the Exchange Act whom the Board (or the
Committee, as applicable) has determined is subject to the reporting requirements of Section 10D of the Exchange Act, and includes any
person who is the Company’s president, principal financial officer, principal accounting officer (or if there is no such accounting
officer, the controller), any vice-president of the issuer in charge of a principal business unit, division, or function (such as sales,
administration, or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making
functions for the Company (with any executive officers of the Company’s parent(s) or subsidiaries being deemed Executive Officers
of the Company if they perform such policy making functions for the Company). All Executive Officers of the Company identified by the
Board (or the Committee, as applicable) pursuant to 17 CFR 229.401(b) shall be deemed an “Executive Officer.
(v) “Exempt Award”
shall mean the following:
(1) An Award granted in assumption
of, or in substitution for, outstanding awards previously granted by a corporation or other entity acquired by the Company or any of its
Subsidiaries or with which the Company or any of its Subsidiaries combines by merger or otherwise. The terms and conditions of any such
Awards may vary from the terms and conditions set forth in the Plan to the extent the Administrator at the time of grant may deem appropriate,
subject to Applicable Laws.
(2) An “employment inducement”
award as described in the applicable stock exchange listing manual or rules may be granted under the Plan from time to time. The terms
of any “employment inducement” award may vary from the terms and conditions set forth in the Plan to such extent as the Administrator
at the time of grant may deem appropriate, subject to Applicable Laws.
(3) An Award that an Eligible
Recipient purchases at Fair Market Value (including Awards that an Eligible Recipient elects to receive in lieu of fully vested compensation
that is otherwise due) whether or not the Common Stock are delivered immediately or on a deferred basis.
(w) “Exercise Price”
means, (i) with respect to any Option, the per share price at which a holder of such Option may purchase Shares issuable upon exercise
of such Award, and (ii) with respect to a Stock Appreciation Right, the base price per share of such Stock Appreciation Right.
(x) “Fair Market Value”
of a share of Common Stock or another security as of a particular date shall mean the fair market value as determined by the Administrator
in its sole discretion; provided, that, (i) if the Common Stock or other security is admitted to trading on a national securities exchange,
the fair market value on any date shall be the closing sale price reported on such date, or if no shares were traded on such date, on
the last preceding date for which there was a sale of a share of Common Stock on such exchange, or (ii) if the Common Stock or other security
is then traded in an over-the-counter market, the fair market value on any date shall be the average of the closing bid and asked prices
for such share in such over-the-counter market for the last preceding date on which there was a sale of such share in such market.
(y) “Free Standing
Rights” has the meaning set forth in Section 8.
(z) “Good Reason”
has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant
or, if no such agreement exists or if such agreement does not define “Good Reason,” “Good Reason” and any provision
of this Plan that refers to “Good Reason” shall not be applicable to such Participant.
(aa) “Incentive Compensation”
shall be deemed to be any compensation (including any Award or any other short-term or long-term cash or equity incentive award or any
other payment) that is granted, earned, or vested based wholly or in part upon the attainment of any financial reporting measure (i.e.,
any measures that are determined and presented in accordance with the accounting principles used in preparing the Company’s financial
statements, and any measure that is derived wholly or in part from such measures, including stock price and total shareholder return).
For avoidance of doubt, financial reporting measures include “non-GAAP financial measures” for purposes of Exchange Act Regulation
G and 17 CFR 229.10, as well as other measures, metrics and ratios that are not non-GAAP measures, like same store sales. Financial reporting
measures may or may not be included in a filing with the Securities and Exchange Commission, and may be presented outside the Company’s
financial statements, such as in Management’s Discussion and Analysis of Financial Conditions and Results of Operations or the performance
graph.
(bb) “ISO”
means an Option intended to be and designated as an “incentive stock option” within the meaning of Section 422 of the Code.
(cc) “Nonqualified
Stock Option” shall mean an Option that is not designated as an ISO.
(dd) “Option”
means an option to purchase shares of Common Stock granted pursuant to Section 7 hereof. The term “Option” as used in the
Plan includes the terms “Nonqualified Stock Option” and “ISO.”
(ee) “Other Stock-Based
Award” means a right or other interest granted pursuant to Section 10 hereof that may be denominated or payable in, valued in
whole or in part by reference to, or otherwise based on or related to, Common Stock, including, but not limited to, unrestricted Shares,
dividend equivalents or performance units, each of which may be subject to the attainment of performance goals or a period of continued
provision of service or employment or other terms or conditions as permitted under the Plan.
(ff) “Participant”
means any Eligible Recipient selected by the Administrator, pursuant to the Administrator’s authority provided for in Section 3
below, to receive grants of Awards, and, upon Participant’s death, Participant’s successors, heirs, executors and administrators,
as the case may be.
(gg) “Person”
shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof.
(hh) “Plan”
means this Amended and Restated 2022 Omnibus Equity Incentive Plan.
(ii) “Related Rights”
has the meaning set forth in Section 8.
(jj) “Restricted Period”
has the meaning set forth in Section 9.
(kk) “Restricted Stock”
means shares of Common Stock granted pursuant to Section 9 below subject to certain restrictions that lapse at the end of a specified
period (or periods) of time and/or upon attainment of specified performance objectives.
(ll) “Restricted Stock
Unit” means the right granted pursuant to Section 9 hereof to receive shares of Common Stock at the end of a specified restricted
period (or periods) of time and/or upon attainment of specified performance objectives.
(mm) “Rule 16b-3”
has the meaning set forth in Section 3.
(nn) “Stock Appreciation
Right” means a right granted pursuant to Section 8 hereof to receive an amount equal to the excess, if any, of (i) the aggregate
Fair Market Value, as of the date such Award or portion thereof is surrendered, of the Shares covered by such Award or such portion thereof,
over (ii) the aggregate Exercise Price of such Award or such portion thereof.
(oo) “Subsidiary”
means, with respect to any Person, as of any date of determination, any other Person as to which such first Person owns or otherwise controls,
directly or indirectly, more than 50% of the voting shares or other similar interests or a sole general partner interest or managing member
or similar interest of such other Person.
(pp) “Transfer”
has the meaning set forth in Section 15.
Section 3. Administration.
(a) The Plan shall be administered
by the Administrator and shall be administered, to the extent applicable, in accordance with Rule 16b-3 under the Exchange Act (“Rule
16b-3”).
(b) Pursuant to the terms of
the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated to it by the Board,
shall have the power and authority, without limitation:
(1) to select those Eligible
Recipients who shall be Participants;
(2) to determine whether and
to what extent Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards or a combination
of any of the foregoing, are to be granted hereunder to Participants;
(3) to determine the number
of Shares to be covered by each Award granted hereunder;
(4) to determine the terms
and conditions, not inconsistent with the terms of the Plan, of each Award granted hereunder (including, but not limited to, (i) the restrictions
applicable to Restricted Stock or Restricted Stock Units and the conditions under which restrictions applicable to such Restricted Stock
or Restricted Stock Units shall lapse, (ii) the performance goals and periods applicable to Awards, (iii) the Exercise Price of each Option
and each Stock Appreciation Right or the purchase price of any other Award, (iv) the vesting schedule and terms applicable to each Award,
(v) the number of Shares or amount of cash or other property subject to each Award and (vi) subject to the requirements of Section 409A
of the Code (to the extent applicable) any amendments to the terms and conditions of outstanding Awards, including, but not limited to,
extending the exercise period of such Awards and accelerating the payment schedules of such Awards and/or, to the extent specifically
permitted under the Plan, accelerating the vesting schedules of such Awards);
(5) to determine the terms
and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing Awards;
(6) to determine the Fair
Market Value in accordance with the terms of the Plan;
(7) to determine the duration
and purpose of leaves of absence which may be granted to a Participant without constituting termination of the Participant’s service
or employment for purposes of Awards granted under the Plan;
(8) to adopt, alter and repeal
such administrative rules, regulations, guidelines and practices governing the Plan as it shall from time to time deem advisable;
(9) to construe and interpret
the terms and provisions of, and supply or correct omissions in, the Plan and any Award issued under the Plan (and any Award Agreement
relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and authorities either specifically
granted under the Plan or necessary and advisable in the administration of the Plan; and
(10) to prescribe, amend and
rescind rules and regulations relating to sub-plans established for the purpose of satisfying applicable non-United States laws or for
qualifying for favorable tax treatment under applicable non-United States laws, which rules and regulations may be set forth in an appendix
or appendixes to the Plan.
(c) Subject to Section 5, neither
the Board nor the Committee shall have the authority to reprice or cancel and regrant any Award at a lower exercise, base or purchase
price or cancel any Award with an exercise, base or purchase price in exchange for cash, property or other Awards without first obtaining
the approval of the Company’s stockholders.
(d) All decisions made by the
Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all Persons, including the Company and
the Participants.
(e) The expenses of administering
the Plan (which for the avoidance of doubt does not include the costs of any Participant) shall be borne by the Company and its Affiliates.
(f) If at any time or to any
extent the Board shall not administer the Plan, then the functions of the Administrator specified in the Plan shall be exercised by the
Committee. Except as otherwise provided in the Certificate of Incorporation or Bylaws of the Company, any action of the Committee with
respect to the administration of the Plan shall be taken by a majority vote at a meeting at which a quorum is duly constituted or unanimous
written consent of the Committee’s members.
Section 4. Shares Reserved for Issuance
Under the Plan.
(a) Subject to Section 5 hereof,
the number of shares of Common Stock that are reserved and available for issuance pursuant to Awards granted under the Plan shall be 591,317
shares of Common Stock; provided, that, shares of Common Stock issued under the Plan with respect to an Exempt
Award shall not count against such share limit.
(b) Common Stock issued under
the Plan may, in whole or in part, be authorized but unissued Common Stock or Common Stock that shall have been or may be reacquired by
the Company in the open market, in private transactions or otherwise. If an Award entitles the Participant to receive or purchase Common
Stock, the number of Common Stock covered by such Award or to which such Award relates shall be counted on the date of grant of such Award
against the aggregate number of Common Stock available for granting Awards under the Plan. If any Common Stock subject to an Award are
forfeited, cancelled, exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of Common Stock to
the Participant, the Common Stock with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender,
termination or expiration, again be available for granting Awards under the Plan. Notwithstanding the foregoing, (i) Shares surrendered
or withheld as payment of either the Exercise Price of an Award (including shares of Common Stock otherwise underlying a Stock Appreciation
Right that are retained by the Company to account for the Exercise Price of such Stock Appreciation Right) and/or withholding taxes in
respect of an Award and (ii) any shares of Common Stock reacquired by the Company in the open market or otherwise using cash proceeds
from the exercise of Options shall no longer be available for grant under the Plan. In addition, (i) to the extent an Award is denominated
in shares of Common Stock, but paid or settled in cash, the number of shares of Common Stock with respect to which such payment or settlement
is made shall again be available for grants of Awards pursuant to the Plan and (ii) shares of Common Stock underlying Awards that can
only be settled in cash shall not be counted against the aggregate number of shares of Common Stock available for Awards under the Plan.
Upon the exercise of any Award granted in tandem with any other Awards, such related Awards shall be cancelled to the extent of the number
of shares of Common Stock as to which the Award is exercised and, notwithstanding the foregoing, such number of shares of Common Stock
shall no longer be available for grant under the Plan.
(c) No more than 2,895,317 Shares
shall be issued pursuant to the exercise of ISOs.
Section 5. Equitable Adjustments.
In the event of any Change in
Capitalization, an equitable substitution or proportionate adjustment shall be made in (i) the aggregate number and kind of securities
reserved for issuance under the Plan pursuant to Section 4, (ii) the kind, number of securities subject to, and the Exercise Price subject
to outstanding Options and Stock Appreciation Rights granted under the Plan, (iii) the kind, number and purchase price of Common Stock
or other securities or the amount of cash or amount or type of other property subject to outstanding Restricted Stock, Restricted Stock
Units or Other Stock-Based Awards granted under the Plan; and/or (iv) the terms and conditions of any outstanding Awards (including, without
limitation, any applicable performance targets or criteria with respect thereto); provided, however, that any
fractional shares resulting from the adjustment shall be eliminated. Such other equitable substitutions or adjustments shall be made as
may be determined by the Administrator, in its sole discretion. Without limiting the generality of the foregoing, in connection with a
Change in Capitalization, the Administrator may provide, in its sole discretion, but subject in all events to the requirements of Section
409A of the Code, for the cancellation of any outstanding Award granted hereunder in exchange for payment in cash or other property having
an aggregate Fair Market Value equal to the Fair Market Value of the Shares, cash or other property covered by such Award, reduced by
the aggregate Exercise Price or purchase price thereof, if any; provided, however, that if the Exercise Price
or purchase price of any outstanding Award is equal to or greater than the Fair Market Value of the shares of Common Stock, cash or other
property covered by such Award, the Administrator may cancel such Award without the payment of any consideration to the Participant. Further,
without limiting the generality of the foregoing, with respect to Awards subject to foreign laws, adjustments made hereunder shall be
made in compliance with applicable requirements. Except to the extent determined by the Administrator, any adjustments to ISOs under this
Section 5 shall be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3) of the
Code. The Administrator’s determinations pursuant to this Section 5 shall be final, binding and conclusive.
Section 6. Eligibility.
The Participants in the Plan
shall be selected from time to time by the Administrator, in its sole discretion, from those individuals that qualify as Eligible Recipients.
No Participant who is a director, but is not also an employee or consultant, of the Company shall receive Awards and be paid cash compensation
during any calendar year that exceed, in the aggregate, $150,000 in total value (with cash compensation measured for this purpose at its
value upon payment and any Awards measured for this purpose at their grant date Fair Market Value, as determined for the Company’s
financial reporting purposes), increased to $195,000 in the calendar year of such Participant’s initial service as a non-employee
director.
Section 7. Options.
(a) General. Options
granted under the Plan shall be designated as Nonqualified Stock Options or ISOs. Each Participant who is granted an Option shall enter
into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion,
including, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability of the
Option, and whether the Option is intended to be an ISO or a Nonqualified Stock Option (and in the event the Award Agreement has no such
designation, the Option shall be a Nonqualified Stock Option). The provisions of each Option need not be the same with respect to each
Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted under
the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional terms and conditions,
not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award Agreement.
(b) Exercise Price.
The Exercise Price of Common Stock purchasable under an Option shall be determined by the Administrator in its sole discretion at the
time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the Fair Market Value
of a share of Common Stock on the date of grant.
(c) Option Term.
The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten (10) years after
the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable provisions in the
Plan and the Award Agreement. Notwithstanding the foregoing, subject to Section 7(d) of the Plan, the Administrator shall have the authority
to accelerate the exercisability of any outstanding Option at such time and under such circumstances as the Administrator, in its sole
discretion, deems appropriate.
(d) Exercisability.
Each Option shall be subject to vesting or become exercisable at such time or times and subject to such terms and conditions, including
the attainment of performance goals, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator
may also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise
provisions at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion.
(e) Method of Exercise.
Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number of whole shares
of Common Stock to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Common Stock so purchased in cash
or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect to any
Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless
exercise procedure approved by the Administrator (including the withholding of Common Stock otherwise issuable upon exercise), (ii) in
the form of unrestricted Common Stock already owned by the Participant which have a Fair Market Value on the date of surrender equal to
the aggregate exercise price of the Common Stock as to which such Option shall be exercised, (iii) any other form of consideration approved
by the Administrator and permitted by Applicable Laws or (iv) any combination of the foregoing.
(f) ISOs. The terms
and conditions of ISOs granted hereunder shall be subject to the provisions of Section 422 of the Code and the terms, conditions, limitations
and administrative procedures established by the Administrator from time to time in accordance with the Plan. At the discretion of the
Administrator, ISOs may be granted only to an employee of the Company, its “parent corporation” (as such term is defined in
Section 424(e) of the Code) or a Subsidiary of the Company.
(1) ISO Grants to
10% Stockholders. Notwithstanding anything to the contrary in the Plan, if an ISO is granted to a Participant who owns shares representing
more than ten percent (10%) of the voting power of all classes of shares of the Company, its “parent corporation” (as such
term is defined in Section 424(e) of the Code) or a Subsidiary of the Company, the term of the ISO shall not exceed five (5) years from
the time of grant of such ISO and the Exercise Price shall be at least one hundred and ten percent (110%) of the Fair Market Value of
the Common Stock on the date of grant.
(2) $100,000 Per Year
Limitation For ISOs. To the extent the aggregate Fair Market Value (determined on the date of grant) of the shares of Common Stock
for which ISOs are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds
$100,000, such excess ISOs shall be treated as Nonqualified Stock Options.
(3) Disqualifying
Dispositions. Each Participant awarded an ISO under the Plan shall notify the Company in writing immediately after the date the Participant
makes a “disqualifying disposition” of any Common Stock acquired pursuant to the exercise of such ISO. A “disqualifying
disposition” is any disposition (including any sale) of such Common Stock before the later of (i) two (2) years after the date of
grant of the ISO and (ii) one (1) year after the date the Participant acquired the shares of Common Stock by exercising the ISO. The Company
may, if determined by the Administrator and in accordance with procedures established by it, retain possession of any shares of Common
Stock acquired pursuant to the exercise of an ISO as agent for the applicable Participant until the end of the period described in the
preceding sentence, subject to complying with any instructions from such Participant as to the sale of such Common Stock.
(g) Rights as Stockholder.
A Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights of a stockholder with respect
to the shares of Common Stock subject to an Option until the Participant has given written notice of the exercise thereof, and has paid
in full for such Common Stock and has satisfied the requirements of Section 15 hereof.
(h) Termination of Employment
or Service. Treatment of an Option upon termination of employment of a Participant shall be provided for by the Administrator in the
Award Agreement.
(i) Other Change in
Employment or Service Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence,
including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes
in the employment status or service status of a Participant, in the discretion of the Administrator.
Section 8. Stock Appreciation Rights.
(a) General. Stock
Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part of any
Option granted under the Plan (“Related Rights”). Related Rights may be granted either at or after the time of the
grant of such Option. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants of Stock
Appreciation Rights shall be made. Each Participant who is granted a Stock Appreciation Right shall enter into an Award Agreement with
the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other
things, the number of shares of Common Stock to be awarded, the Exercise Price per share of Common Stock, and all other conditions of
Stock Appreciation Rights. Notwithstanding the foregoing, no Related Right may be granted for more shares of Common Stock than are subject
to the Option to which it relates. The provisions of Stock Appreciation Rights need not be the same with respect to each Participant.
Stock Appreciation Rights granted under the Plan shall be subject to the following terms and conditions set forth in this Section 8 and
shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable,
as set forth in the applicable Award Agreement.
(b) Awards; Rights as
Stockholder. A Participant shall have no rights to dividends or any other rights of a stockholder with respect to the shares of Common
Stock, if any, subject to a Stock Appreciation Right until the Participant has given written notice of the exercise thereof and has satisfied
the requirements of Section 15 hereof.
(c) Exercise Price.
The Exercise Price of Common Stock purchasable under a Stock Appreciation Right shall be determined by the Administrator in its sole discretion
at the time of grant, but in no event shall the exercise price of a Stock Appreciation Right be less than one hundred percent (100%) of
the Fair Market Value of a share of Common Stock on the date of grant.
(d) Exercisability.
(1) Stock Appreciation Rights
that are Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined
by the Administrator in the applicable Award Agreement.
(2) Stock Appreciation Rights
that are Related Rights shall be exercisable only at such time or times and to the extent that the Options to which they relate shall
be exercisable in accordance with the provisions of Section 7 hereof and this Section 8 of the Plan.
(e) Payment Upon Exercise.
(1) Upon the exercise of a
Free Standing Right, the Participant shall be entitled to receive up to, but not more than, that number of Common Stock equal in value
to the excess of the Fair Market Value as of the date of exercise over the Exercise Price per share specified in the Free Standing Right
multiplied by the number of Common Stock in respect of which the Free Standing Right is being exercised.
(2) A Related Right may be
exercised by a Participant by surrendering the applicable portion of the related Option. Upon such exercise and surrender, the Participant
shall be entitled to receive up to, but not more than, that number of Common Stock equal in value to the excess of the Fair Market Value
as of the date of exercise over the Exercise Price specified in the related Option multiplied by the number of Common Stock in respect
of which the Related Right is being exercised. Options which have been so surrendered, in whole or in part, shall no longer be exercisable
to the extent the Related Rights have been so exercised.
(3) Notwithstanding the foregoing,
the Administrator may determine to settle the exercise of a Stock Appreciation Right in cash (or in any combination of Shares and cash).
(f) Termination of Employment
or Service. Treatment of a Stock Appreciation Right upon termination of employment of a Participant shall be provided for by the Administrator
in the Award Agreement.
(g) Term.
(1) The term of each Free
Standing Right shall be fixed by the Administrator, but no Free Standing Right shall be exercisable more than ten (10) years after the
date such right is granted.
(2) The term of each Related
Right shall be the term of the Option to which it relates, but no Related Right shall be exercisable more than ten (10) years after the
date such right is granted.
(h) Other Change in
Employment or Service Status. Stock Appreciation Rights shall be affected, both with regard to vesting schedule and termination, by
leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability
or other changes in the employment or service status of a Participant, in the discretion of the Administrator.
Section 9. Restricted Stock and Restricted
Stock Units.
(a) General. Restricted
Stock or Restricted Stock Units may be issued under the Plan. The Administrator shall determine the Eligible Recipients to whom, and the
time or times at which, Restricted Stock or Restricted Stock Units shall be made. Each Participant who is granted Restricted Stock or
Restricted Stock Units shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator
shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded; the price, if any, to be paid
by the Participant for the acquisition of Restricted Stock or Restricted Stock Units; the period of time restrictions, performance goals
or other conditions that apply to Transferability, delivery or vesting of such Awards (the “Restricted Period”); and
all other conditions applicable to the Restricted Stock and Restricted Stock Units. If the restrictions, performance goals or conditions
established by the Administrator are not attained, a Participant shall forfeit his or her Restricted Stock or Restricted Stock Units,
in accordance with the terms of the grant. The provisions of the Restricted Stock or Restricted Stock Units need not be the same with
respect to each Participant.
(b) Awards and Certificates.
Except as otherwise provided below in Section 9(c), (i) each Participant who is granted an Award of Restricted Stock may, in the Company’s
sole discretion, be issued a share certificate in respect of such Restricted Stock; and (ii) any such certificate so issued shall be registered
in the name of the Participant, and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to
any such Award. The Company may require that the share certificates, if any, evidencing Restricted Stock granted hereunder be held in
the custody of the Company until the restrictions thereon shall have lapsed, and that, as a condition of any Award of Restricted Stock,
the Participant shall have delivered a share transfer form, endorsed in blank, relating to the Shares covered by such Award. Certificates
for shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered to the Participant only after the Restricted
Period has expired without forfeiture in such Restricted Stock Award. With respect to Restricted Stock Units to be settled in shares of
Common Stock, at the expiration of the Restricted Period, share certificates in respect of the shares of Common Stock underlying such
Restricted Stock Units may, in the Company’s sole discretion, be delivered to the Participant, or Participant’s legal representative,
in a number equal to the number of shares of Common Stock underlying the Restricted Stock Units Award. Notwithstanding anything in the
Plan to the contrary, any Restricted Stock or Restricted Stock Units to be settled in shares of Common Stock (at the expiration of the
Restricted Period, and whether before or after any vesting conditions have been satisfied) may, in the Company’s sole discretion,
be issued in uncertificated form. Further, notwithstanding anything in the Plan to the contrary, with respect to Restricted Stock Units,
at the expiration of the Restricted Period, Shares, or cash, as applicable, shall promptly be issued (either in certificated or uncertificated
form) to the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section
409A of the Code, and such issuance or payment shall in any event be made within such period as is required to avoid the imposition of
a tax under Section 409A of the Code.
(c) Restrictions and
Conditions. The Restricted Stock or Restricted Stock Units granted pursuant to this Section 9 shall be subject to the following restrictions
and conditions and any additional restrictions or conditions as determined by the Administrator at the time of grant or, subject to Section
409A of the Code where applicable, thereafter:
(1) The Administrator may,
in its sole discretion, provide for the lapse of restrictions in installments and may accelerate or waive such restrictions in whole or
in part based on such factors and such circumstances as the Administrator may determine, in its sole discretion, including, but not limited
to, the attainment of certain performance goals, the Participant’s termination of employment or service with the Company or any
Affiliate thereof, or the Participant’s death or Disability. Notwithstanding the foregoing, upon a Change in Control, the outstanding
Awards shall be subject to Section 11 hereof.
(2) Except as provided in
the applicable Award Agreement, the Participant shall generally have the rights of a stockholder of the Company with respect to Restricted
Stock during the Restricted Period; provided, however, that dividends declared during the Restricted Period with
respect to an Award, shall only become payable if (and to the extent) the underlying Restricted Stock vests. Except as provided in the
applicable Award Agreement, the Participant shall generally not have the rights of a stockholder with respect to Shares subject to Restricted
Stock Units during the Restricted Period; provided, however, that, subject to Section 409A of the Code, an amount
equal to dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock Units shall,
unless otherwise set forth in an Award Agreement, be paid to the Participant at the time (and to the extent) Shares in respect of the
related Restricted Stock Units are delivered to the Participant. Certificates for Shares of unrestricted Common Stock may, in the Company’s
sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture in respect of such Restricted
Stock or Restricted Stock Units, except as the Administrator, in its sole discretion, shall otherwise determine.
(3) The rights of Participants
granted Restricted Stock or Restricted Stock Units upon termination of employment or service as a director or independent contractor to
the Company or to any Affiliate thereof terminates for any reason during the Restricted Period shall be set forth in the Award Agreement.
(d) Form of Settlement.
The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof) that any Restricted Stock
Unit represents the right to receive the amount of cash per unit that is determined by the Administrator in connection with the Award.
Section 10. Other Stock-Based Awards.
Other Stock-Based Awards may
be issued under the Plan. Subject to the provisions of the Plan, the Administrator shall have sole and complete authority to determine
the individuals to whom and the time or times at which such Other Stock-Based Awards shall be granted. Each Participant who is granted
an Other Stock-Based Award shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator
shall determine, in its sole discretion, including, among other things, the number of shares of Common Stock to be granted pursuant to
such Other Stock-Based Awards, or the manner in which such Other Stock-Based Awards shall be settled (e.g., in shares of Common Stock,
cash or other property), or the conditions to the vesting and/or payment or settlement of such Other Stock-Based Awards (which may include,
but not be limited to, achievement of performance criteria) and all other terms and conditions of such Other Stock-Based Awards. In the
event that the Administrator grants a bonus in the form of shares of Common Stock, the Common Stock constituting such bonus shall, as
determined by the Administrator, be evidenced in uncertificated form or by a book entry record or a certificate issued in the name of
the Participant to whom such grant was made and delivered to such Participant as soon as practicable after the date on which such bonus
is payable. Notwithstanding anything set forth in the Plan to the contrary, any dividend or dividend equivalent Award issued hereunder
shall be subject to the same restrictions, conditions and risks of forfeiture as apply to the underlying Award.
Section 11. Change in Control.
Unless otherwise determined
by the Administrator and evidenced in an Award Agreement, in the event that (a) a Change in Control occurs, and (b) the Participant is
employed by, or otherwise providing services to, the Company or any of its Affiliates immediately prior to the consummation of such Change
in Control then upon the consummation of such Change in Control, the Administrator, in its sole and absolute discretion, may:
(a) provide that any unvested
or unexercisable portion of any Award carrying a right to exercise become fully vested and exercisable; and
(b) cause the restrictions,
deferral limitations, payment conditions and forfeiture conditions applicable to an Award granted under the Plan to lapse and such Awards
shall be deemed fully vested and any performance conditions imposed with respect to such Awards shall be deemed to be fully achieved at
target performance levels.
If the Administrator determines
in its discretion pursuant to Section 3(b)(4) hereof to accelerate the vesting of Options and/or Share Appreciation Rights in connection
with a Change in Control, the Administrator shall also have discretion in connection with such action to provide that all Options and/or
Stock Appreciation Rights outstanding immediately prior to such Change in Control shall expire on the effective date of such Change in
Control.
Section 12. Amendment and Termination.
The Board may amend, alter or
terminate the Plan at any time, but no amendment, alteration or termination shall be made that would impair the rights of a Participant
under any Award theretofore granted without such Participant’s consent. The Board shall obtain approval of the Company’s stockholders
for any amendment that would require such approval in order to satisfy the requirements of any rules of the stock exchange on which the
Common Stock is traded or other Applicable Law. Subject to Section 3(c), the Administrator may amend the terms of any Award theretofore
granted, prospectively or retroactively, but, subject to Section 5 of the Plan and the immediately preceding sentence, no such amendment
shall materially impair the rights of any Participant without his or her consent.
Section 13. Unfunded Status of Plan.
The Plan is intended to constitute
an “unfunded” plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company,
nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company.
Section 14. Withholding Taxes.
Each Participant shall, no later
than the date as of which the value of an Award first becomes includible in the gross income of such Participant for purposes of applicable
taxes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of an amount up to the maximum statutory
tax rates in the Participant’s applicable jurisdiction with respect to the Award, as determined by the Company. The obligations
of the Company under the Plan shall be conditional on the making of such payments or arrangements, and the Company shall, to the extent
permitted by Applicable Laws, have the right to deduct any such taxes from any payment of any kind otherwise due to such Participant.
Whenever cash is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount sufficient to satisfy
any applicable withholding tax requirements related thereto. Whenever Shares or property other than cash are to be delivered pursuant
to an Award, the Company shall have the right to require the Participant to remit to the Company in cash an amount sufficient to satisfy
any related taxes to be withheld and applied to the tax obligations; provided, that, with the approval of the
Administrator, a Participant may satisfy the foregoing requirement by either (i) electing to have the Company withhold from delivery of
Shares or other property, as applicable, or (ii) delivering already owned unrestricted shares of Common Stock, in each case, having a
value not exceeding the applicable taxes to be withheld and applied to the tax obligations. Such already owned and unrestricted shares
of Common Stock shall be valued at their Fair Market Value on the date on which the amount of tax to be withheld is determined and any
fractional share amounts resulting therefrom shall be settled in cash. Such an election may be made with respect to all or any portion
of the shares of Common Stock to be delivered pursuant to an award. The Company may also use any other method of obtaining the necessary
payment or proceeds, as permitted by Applicable Laws, to satisfy its withholding obligation with respect to any Award.
Section 15. Transfer of Awards.
Until such time as the Awards
are fully vested and/or exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment, mortgage, hypothecation,
transfer, charge, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest
in or lien on, any Award or any agreement or commitment to do any of the foregoing (each, a “Transfer”) by any holder
thereof in violation of the provisions of the Plan or an Award Agreement will be valid, except with the prior written consent of the Administrator,
which consent may be granted or withheld in the sole discretion of the Administrator. Any purported Transfer of an Award or any economic
benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio and shall
not create any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit or interest
therein transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of such Shares or
other property underlying such Award. Unless otherwise determined by the Administrator in accordance with the provisions of the immediately
preceding sentence, an Option or a Stock Appreciation Right may be exercised, during the lifetime of the Participant, only by the Participant
or, during any period during which the Participant is under a legal Disability, by the Participant’s guardian or legal representative.
Section 16. Continued Employment or Service.
Neither the adoption of the
Plan nor the grant of an Award shall confer upon any Eligible Recipient any right to continued employment or service with the Company
or any Affiliate thereof, as the case may be, nor shall it interfere in any way with the right of the Company or any Affiliate thereof
to terminate the employment or service of any of its Eligible Recipients at any time.
Section 17. Effective Date.
The Plan was approved by the
Board on June 2, 2023 and shall be adopted and become effective on the date that it is approved by the Company’s stockholders (the
“Effective Date”).
Section 18. Electronic Signature.
Participant’s electronic
signature of an Award Agreement shall have the same validity and effect as a signature affixed by hand.
Section 19. Term of Plan.
No Award shall be granted pursuant
to the Plan on or after the tenth (10th) anniversary of the Effective Date, but Awards theretofore granted may extend beyond
that date.
Section 20. Securities Matters and Regulations.
(a) Notwithstanding anything
herein to the contrary, the obligation of the Company to sell or deliver Common Stock with respect to any Award granted under the Plan
shall be subject to all Applicable Laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining
of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Administrator. The Administrator may require,
as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient
of such shares make such agreements and representations, and that such certificates bear such legends, as the Administrator, in its sole
discretion, deems necessary or advisable.
(b) Each Award is subject to
the requirement that, if at any time the Administrator determines that the listing, registration or qualification of Common Stock is required
by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary
or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Shares, no such Award shall be granted
or payment made or Shares issued, in whole or in part, unless listing, registration, qualification, consent or approval has been effected
or obtained free of any conditions not acceptable to the Administrator.
(c) In the event that the disposition
of Common Stock acquired pursuant to the Plan is not covered by a then current registration statement under the Securities Act of 1933,
as amended, and is not otherwise exempt from such registration, such Common Stock shall be restricted against transfer to the extent required
by the Securities Act of 1933, as amended, or regulations thereunder, and the Administrator may require a Participant receiving Common
Stock pursuant to the Plan, as a condition precedent to receipt of such Common Stock, to represent to the Company in writing that the
Common Stock acquired by such Participant is acquired for investment only and not with a view to distribution.
Section 21. Section 409A of the Code.
The Plan as well as payments
and benefits under the Plan are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code,
and, accordingly, to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding anything contained
herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code,
the Participant shall not be considered to have terminated employment or service with the Company for purposes of the Plan and no payment
shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred a “separation
from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. 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 Law requires otherwise. Notwithstanding anything to the contrary in the Plan, to the extent that any Awards
(or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable upon a separation
from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section
409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business day after the
date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid or benefit to be provided
under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the Code. The Company makes no representation
that any or all of the payments or benefits described in this Plan will be exempt from or comply with Section 409A of the Code and makes
no undertaking to preclude Section 409A of the Code from applying to any such payment. The Participant shall be solely responsible for
the payment of any taxes and penalties incurred under Section 409A.
Section 22. Notification of Election Under
Section 83(b) of the Code.
If any Participant shall, in
connection with the acquisition of shares of Common Stock under the Plan, make the election permitted under Section 83(b) of the Code,
such Participant shall notify the Company of such election within ten (10) days after filing notice of the election with the Internal
Revenue Service.
Section 23. No Fractional Shares.
No fractional shares of Common
Stock shall be issued or delivered pursuant to the Plan. The Administrator shall determine whether cash, other Awards, or other property
shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or
otherwise eliminated.
Section 24. Beneficiary.
A Participant may file with
the Administrator a written designation of a beneficiary on such form as may be prescribed by the Administrator and may, from time to
time, amend or revoke such designation. If no designated beneficiary survives the Participant, the executor or administrator of the Participant’s
estate shall be deemed to be the Participant’s beneficiary.
Section 25. Paperless Administration.
In the event that the Company
establishes, for itself or using the services of a third party, an automated system for the documentation, granting or exercise of Awards,
such as a system using an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards
by a Participant may be permitted through the use of such an automated system.
Section 26. Severability.
If any provision of the Plan
is held to be invalid or unenforceable, the other provisions of the Plan shall not be affected but shall be applied as if the invalid
or unenforceable provision had not been included in the Plan.
Section 27. Clawback.
(a) If the Company is required
to prepare an accounting restatement of its financial statements due to the Company’s material noncompliance (whether one occurrence
or a series of occurrences of noncompliance) with any financial reporting requirement under the securities laws (including if the Company
is required to prepare an accounting restatement to correct an error (or a series of errors)) (a “Covered Accounting Restatement”),
and if such Covered Accounting Restatement includes (i) restatements that correct errors that are material to previously issued financial
statements (commonly referred to as “Big R” restatements), and (ii) restatements that correct errors that are not material
to previously issued financial statements, but would result in a material misstatement if (a) the errors were left uncorrected in the
current report, or (b) the error correction was recognized in the current period (commonly referred to as “little r” restatements),
then the Committee may require any Covered Executive to repay (in which event, such Covered Executive shall, within thirty (30) days of
the notice by the Company, repay to the Company) or forfeit (in which case, such Covered Executive shall immediately forfeit to the Company)
to the Company, and each Covered Executive hereby agrees to so repay or forfeit, that portion of the Incentive Compensation received by
such Covered Executive during the period comprised of the Company’s three (3) completed fiscal years (together with any intermittent
stub fiscal year period(s) of less than nine (9) months resulting from Company’s transition to different fiscal year measurement
dates) immediately preceding the date the Company is deemed (as described below) to be required to prepare a Covered Accounting Restatement
(such period, the “Look-Back Period”), that the Committee determines was in excess of the amount of Incentive Compensation
that such Covered Executive would have received during such Look-Back Period, had such Incentive Compensation been calculated based on
the restated amounts, and irrespective of any fault, misconduct or responsibility of such Covered Executive for the Covered Accounting
Restatement. It is specifically understood that, to the extent that the impact of the Covered Accounting Restatement on the amount of
Incentive Compensation received cannot be calculated directly from the information therein (e.g., if such restatement’s impact on
the Company’s stock price is not clear), such excess amount of Incentive Compensation shall be determined based on a reasonable
estimate by the Committee of the effect of the Covered Accounting Restatement on the applicable financial measure (including the stock
price or total shareholder return) based upon which the Incentive Compensation was received. The amount of the Incentive Compensation
to be recouped shall be determined by the Committee in its sole and absolute discretion and calculated on a pre-tax basis, and the form
of such recoupment of Incentive Compensation may be made, in the Committee’s sole and absolute discretion, through the forfeiture
or cancellation of vested or unvested Awards, cash repayment or both. Incentive Compensation shall be deemed received, either wholly or
in part, in the fiscal year during which the financial reporting measure specified in such Incentive Compensation Award is attained (or
with respect to, or based on, the achievement of any financial reporting measure which such Incentive Compensation was granted, earned
or vested, as applicable), even if the payment, vesting or grant of such Incentive Compensation occurs after the end of such fiscal year.
For purposes of this Section 27, the Company is deemed to be required to prepare a Covered Accounting Restatement on the earlier of (A)
the date upon which the Board or an applicable committee thereof, or the officer or officers of the Company authorized to take such action
if Board action is not required, concludes, or reasonably should have concluded, that the Company is required to prepare a Covered Accounting
Restatement; or (B) the date a court, regulator, or other legally authorized body directs the Company to prepare a Covered Accounting
Restatement.
(b) Notwithstanding any other
provisions in this Plan, any Award or any other compensation received by a Participant which is subject to recovery under any Applicable
Laws, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such Applicable
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 Applicable 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 on or following the Effective Date).
Section 28. Governing Law.
The Plan shall be governed by,
and construed in accordance with, the laws of the State of Nevada, without giving effect to principles of conflicts of law of such state.
Section 29. Indemnification.
To the extent allowable pursuant
to Applicable Law, each member of the Board and the Administrator and any officer or other employee to whom authority to administer any
component of the Plan is designated shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that
may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding
to which he or she may be a party or in which he or she may be a party or in which he or she may be involved by reason of any action or
failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in such action,
suit, or proceeding against him or her; provided, however, that he or she gives the Company an opportunity, at its own expense, to handle
and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such individuals may be entitled pursuant to the Company’s
Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or
hold them harmless.
Section 30. Titles and Headings, References
to Sections of the Code or Exchange Act.
The titles and headings of the
sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles
or headings, shall control. References to sections of the Code or the Exchange Act shall include any amendment or successor thereto.
Section 31. Successors.
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 substantially all of the assets and business of the Company.
Section 32. Relationship to other Benefits.
No payment pursuant to the Plan
shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare,
or other benefit plan of the Company or any Affiliate except to the extent otherwise expressly provided in writing in such other plan
or an agreement thereunder.
-19-
Exhibit 10.2
HOTH THERAPEUTICS, INC.
STOCK OPTION GRANT NOTICE AND OPTION AGREEMENT
(Amended and Restated 2022 Omnibus Equity Incentive Plan)
As a key leader in our business,
you are in a position to have significant influence on the performance and success of Hoth Therapeutics, Inc. (the “Company”).
I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted an option to purchase
shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). This award is subject
to the terms and conditions of the Hoth Therapeutics, Inc. Amended and Restated 2022 Omnibus Equity Incentive Plan, this Grant Notice,
and the following Stock Option Agreement. The details of this award are indicated below.
Optionee: |
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Date of Grant: |
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Number of shares of Common Stock subject to the Option: |
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Exercise Price Per share of Common Stock: |
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Type of Option: |
ISO |
Expiration Date: |
(the “Expiration Date”) |
Vesting: |
|
Hoth Therapeutics, Inc., a Nevada corporation |
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|
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By: |
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Its: |
|
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT
(together with the above grant notice (the “Grant Notice”), the “Agreement”) is made and entered
into as of the date set forth on the Grant Notice by and between Hoth Therapeutics, Inc., a Nevada corporation (the “Company”),
and the individual (the “Optionee”) set forth on the Grant Notice.
A. Pursuant
to the Hoth Therapeutics, Inc. Amended and Restated 2022 Omnibus Equity Incentive Plan (as it may be amended from time to time, the “Plan”),
the Administrator has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option to purchase
the number of shares of Common Stock (the “Shares”) set forth on the Grant Notice, at the exercise price per Share
set forth on the Grant Notice, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated
herein by reference, and this Agreement (the “Option”).
B. Unless
otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan. For purposes of this
Agreement, the following definitions shall apply:
(i) “Termination”
shall mean the termination of the employment or service of the Optionee with the Company and all Affiliates thereof (including because
of the Optionee’s employer ceasing to be an affiliate of the Company). For purposes of this Agreement, Termination will not occur
when Optionee goes on a military leave, a sick leave or another bona fide leave of absence that was approved by the Company in writing
if the terms of the leave provide for continued service crediting, or when continued service crediting is required by Applicable Laws.
Notwithstanding the foregoing, an approved leave of absence for six (6) months or less, which does not in fact exceed six (6) months,
will not result in Termination for purposes of this Agreement. However, Termination will occur when an approved leave described in this
Section B ends, unless Optionee immediately returns to active work.
(ii) “Termination
Date” shall mean the date of the Optionee’s Termination of Service.
NOW, THEREFORE, in consideration
of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:
1. Acceptance
of Agreement. Optionee has reviewed all of the provisions of the Plan and this Agreement. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Administrator on questions relating to the Plan and this Agreement, and,
solely as they relate to this Option, the applicable provisions (if any) contained in a written employment agreement between the Company
or an Affiliate and the Optionee. The Optionee’s electronic signature of this Agreement shall have the same validity and effect
as a signature affixed by hand.
2. Grant
and Terms of Stock Option.
2.1 Grant
of Option. Pursuant to this Agreement, the Company has granted to the Optionee
the right and option to purchase, subject to the terms and conditions set forth in the Plan and this Agreement, all or any part of the
number of Shares set forth on the Grant Notice at a purchase price per Share equal to the exercise price per Share set forth on the Grant
Notice. An Option granted pursuant to the Grant Notice and this Agreement shall be an ISO.
2.2 Vesting
and Term of Option. This Section 2.2 is subject to the provisions of the Plan and the other provisions of this Agreement.
2.2.1 This
Option shall vest and become exercisable as described in the Grant Notice.
2.2.2 The
“Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the Expiration Date
specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.
2.2.3 Except
as otherwise provided in the Grant Notice, in the event of Optionee’s Termination for any reason other than death, Disability, or
Cause:
2.2.3.1 the
portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately
cancelled and terminated; and
2.2.3.2 the
portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of:
(a) the
expiration of the Term; and
(b) ninety
(90) days after such Termination Date.
2.2.4 Except
as otherwise provided in the Grant Notice, in the event of Termination due to death or Disability:
2.2.4.1 the
portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately
cancelled and terminated; and
2.2.4.2 the
portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of (a)
the expiration of the Term and (b) the date that is twelve (12) months after the Termination Date.
2.2.5 In
the event of Optionee’s Termination for Cause, or if, after the Termination, the Administrator determines that Cause existed before
such Termination, this entire Option shall not continue to vest, shall be cancelled and terminated as of the Termination Date, and shall
no longer be exercisable as to any Shares, whether or not previously vested.
3. Method
of Exercise.
3.1 Method
of Exercise. Each election to exercise the Option shall be subject to the terms and conditions of the Plan and shall be in writing,
signed by the Optionee or by his or her executor, administrator, or permitted transferee (subject to any restrictions provided under the
Plan), made pursuant to and in accordance with the terms and conditions set forth in the Plan and received by the Company at its principal
offices, accompanied by payment in full as provided in the Plan or in this Agreement. Notwithstanding any of the foregoing, the Administrator
shall have the right to specify all conditions of the manner of exercise. Upon the Company’s determination that the Option has been
validly exercised as to any of the Shares, the Company may issue certificates in the Optionee’s name for such Shares. However, the
Company shall not be liable to the Optionee for damages relating to any reasonable delays in issuing the certificates to the Optionee,
any loss of the certificates, or any mistakes or errors in the issuance of the certificates or in the certificates themselves which it
promptly undertakes to correct.
3.2 Restrictions
on Exercise. No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance
with all applicable requirements of the Securities Act of 1933, as amended (“Securities Act”) (whether by registration
or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system
on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction
over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and
warranty to the Company as may be necessary or appropriate, in the judgment of the Administrator, to comply with any Applicable Law. In
addition, Optionee shall not sell any Shares acquired upon exercise of this Option at a time when Applicable Laws, regulations or Company’s
or underwriter trading policies prohibit such sale. Any other provision of this Agreement notwithstanding, the Company shall have the
right to designate one or more periods of time, each of which shall not exceed one hundred and eighty (180) days in length, during which
this Option shall not be exercisable if the Administrator determines (in its sole discretion) that such limitation on exercise could in
any way facilitate a lessening of any restriction on transfer pursuant to the Securities Act or any state securities laws with respect
to any issuance of securities by the Company, facilitate the registration or qualification of any securities by the Company under the
Securities Act or any state securities laws, or facilitate the perfection of any exemption from the registration or qualification requirements
of the Securities Act or any applicable state securities laws for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than to limit the periods during which this Option shall be exercisable.
3.3 Method
of Payment. Payment of the exercise price shall be made in full at the time of exercise (a) by the delivery of cash or check acceptable
to the Administrator, including an amount to cover the withholding taxes (as provided in Section 7.11) with respect to such exercise,
or (b) any other method, if any, approved by the Administrator, including (i) by means of consideration received under any cashless
exercise procedure, if any, approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise) or (ii) any
other form of consideration approved by the Administrator and permitted by Applicable Laws.
3.4 No
Rights as a Shareholder. Until the Shares are issued to the Optionee (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a shareholder will
exist with respect to the Shares, notwithstanding the exercise of the Option.
4. Non-Transferability
of Option. Except as provided below, this Option may not be sold, assigned or transferred in any manner, pledged or otherwise encumbered
other than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised
during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other
terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by
Optionee in accordance with its terms on the Termination Date, be exercised by Optionee’s executor or administrator, or the person
or persons to whom the Optionee’s rights under this Agreement shall pass by will or by the laws of descent and distribution as the
case may be. Any heir or legatee of the Optionee shall take rights herein granted subject to the terms and conditions hereof.
5. Restrictions;
Restrictive Legends. Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions
of, including ownership and transfer restrictions contained in, the Company’s Articles of Incorporation, as amended, or Amended
and Restated Bylaws, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in
legends imprinted on certificates representing such Shares.
6. Dissolution
or Liquidation. In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been
previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance,
the Administrator may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Administrator
and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including Shares
as to which this Option would not otherwise be exercisable.
7. General.
7.1 Governing
Law. This Agreement shall be governed by and construed under the laws of the State of Nevada applicable to agreements made and to
be performed entirely in Nevada, without regard to the conflicts of law provisions of Nevada or any other jurisdiction.
7.2 Community
Property. Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee
shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and
the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an
interest and is irrevocable.
7.3 No
Employment Rights. Nothing herein contained shall be construed as an agreement by the Company or any of its Subsidiaries, express
or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such Subsidiary’s
right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any
manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company
or any Affiliate.
7.4 Application
to Other Stock. In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or
in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization
or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock
to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was
distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which
such distributed stock relates.
7.5 No
Third-Party Benefits. Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be
for the benefit of, or enforceable by, any third-party beneficiary.
7.6 Successors
and Assigns. Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties,
their respective successors and permitted assigns.
7.7 No
Assignment. Except as otherwise provided in this Agreement, the Optionee may not assign any of his or her rights under this Agreement
without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted
to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s obligations
hereunder.
7.8 Severability.
The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions
of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.
7.9 Equitable
Relief. The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement,
damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage.
Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall
be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.
7.10 Jurisdiction.
Any suit, action or proceeding with respect to this Agreement, or any judgment entered by any court in respect of any thereof, shall be
brought in any court of competent jurisdiction in the State of Nevada, and the Company and the Optionee hereby submit to the exclusive
jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. The Optionee and the Company hereby irrevocably
waive (i) any objections which it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of
or relating to this Agreement brought in any court of competent jurisdiction in the State of Nevada, (ii) any claim that any such suit,
action or proceeding brought in any such court has been brought in any inconvenient forum and (iii) any right to a jury trial.
7.11 Taxes.
By agreeing to this Agreement, the Optionee represents that he or she has reviewed with his or her own tax advisors the federal, state,
local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely on such advisors
and not on any statements or representations of the Company or any of its agents. The Company shall be entitled to require a cash payment
by or on behalf of the Optionee and/or to deduct from the Shares or cash otherwise issuable hereunder or other compensation payable to
the Optionee the minimum amount of any sums required by federal, state or local tax law to be withheld (or other such sums that will not
cause adverse accounting consequences for the Company and is permitted under applicable withholding rules promulgated by the Internal
Revenue Service or another applicable governmental entity) in respect of the Option, its exercise or any payment or transfer under or
with respect to the Option.
7.12 Headings.
The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret
the scope of this Agreement or of any particular section.
7.13 Number
and Gender. Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender
includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes
the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs
and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean
calendar days, weeks or months.
7.14 Data
Privacy. Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may
be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation
in the Plan.
7.15 Acknowledgments
of Optionee. Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel
prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant,
acknowledges and agrees to all of the provisions of the Grant Notice, the Plan and this Agreement.
7.16 Complete
Agreement. The Grant Notice, this Stock Option Agreement, the Plan, and the applicable provisions (if any) contained in a written
employment agreement between the Company or an Affiliate and the Optionee constitute the parties’ entire agreement with respect
to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether
oral or written, with respect to the subject matter hereof. In the event of any inconsistency between the Plan and this Agreement, the
terms of the Plan shall control.
7.17 Waiver.
The Optionee acknowledges that a waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any other provision of this Agreement, or of any subsequent breach by the Optionee.
7.18 Signature
in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
7.19 Amendments
and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended, altered or terminated at
any time or from time to time by the Administrator or the Board, but no amendment, alteration or termination shall be made that would
materially impair the rights of an Optionee under the Option without such Optionee’s consent. If it is determined that the terms
of this Agreement have been structured in a manner that would result in adverse tax treatment under Section 409A of the Code, the parties
agree to cooperate in taking all reasonable measures to restructure the arrangement to minimize or avoid such adverse tax treatment without
materially impairing Optionee’s economic rights.
7.20 Waiver
of Jury Trial. TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN
US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS
WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR
INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF
ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR
OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.
7.21 Electronic
Delivery and Disclosure. The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related
to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s
annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic
means, including, but not limited to, the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval
system or any successor system (“EDGAR”). Optionee hereby consents to receive such documents delivered electronically
or to retrieve such documents furnished electronically (including on EDGAR), as applicable, and agrees to participate in the Plan through
any online or electronic system established and maintained by the Company or another third party designated by the Company.
7.22 Section
409A. The parties intend for the Option to be exempt from Section 409A of the Code or, if not so exempt, to be treated in a manner
which complies with the requirements of such section, and intend that this Agreement be construed and administered in accordance with
such intention. In the event that the parties determine that the terms of this Agreement or the Option needs to be modified in order to
comply with Section 409A of the Code, the parties shall cooperate reasonably to do so in a manner intended to best preserve the economic
benefits of this Agreement. Any payments that qualify for the “short-term deferral” exception or another exception under Section
409A of the Code shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under
Section 409A of the Code, each payment of compensation under this Agreement shall be treated as a separate payment of compensation. Notwithstanding
anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section
409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during
the six-month period immediately following the Participant’s separation from service shall instead be paid on the first business
day after the date that is six months following the Participant’s termination date (or death, if earlier).
-8-
Exhibit 10.3
HOTH THERAPEUTICS, INC.
STOCK OPTION GRANT NOTICE AND OPTION AGREEMENT
(Amended and Restated 2022 Omnibus Equity Incentive Plan)
As a key leader in our business,
you are in a position to have significant influence on the performance and success of Hoth Therapeutics, Inc. (the “Company”).
I am pleased to inform you that, in recognition of the role you play in our collective success, you have been granted an option to purchase
shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). This award is subject
to the terms and conditions of the Hoth Therapeutics, Inc. Amended and Restated 2022 Omnibus Equity Incentive Plan, this Grant Notice,
and the following Stock Option Agreement. The details of this award are indicated below.
Optionee: |
|
Date of Grant: |
|
Number of shares of Common Stock subject to the Option: |
|
Exercise Price Per share of Common Stock: |
|
Type of Option: |
Nonqualified Stock Option |
Expiration Date: |
(the “Expiration Date”) |
Vesting: |
|
Hoth Therapeutics, Inc., a Nevada corporation |
|
|
|
|
By: |
|
Its: |
|
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT
(together with the above grant notice (the “Grant Notice”), the “Agreement”) is made and entered
into as of the date set forth on the Grant Notice by and between Hoth Therapeutics, Inc., a Nevada corporation (the “Company”),
and the individual (the “Optionee”) set forth on the Grant Notice.
A. Pursuant
to the Hoth Therapeutics, Inc. Amended and Restated 2022 Omnibus Equity Incentive Plan (as it may be amended from time to time, the “Plan”),
the Administrator has determined that it is to the advantage and best interest of the Company to grant to the Optionee an option to purchase
the number of shares of Common Stock (the “Shares”) set forth on the Grant Notice, at the exercise price per Share
set forth on the Grant Notice, and in all respects subject to the terms, definitions and provisions of the Plan, which is incorporated
herein by reference, and this Agreement (the “Option”).
B. Unless
otherwise defined herein, capitalized terms used in this Agreement shall have the meanings set forth in the Plan. For purposes of this
Agreement, the following definitions shall apply:
(i) “Termination”
shall mean the termination of the employment or service of the Optionee with the Company and all Affiliates thereof (including because
of the Optionee’s employer ceasing to be an affiliate of the Company). For purposes of this Agreement, Termination will not occur
when Optionee goes on a military leave, a sick leave or another bona fide leave of absence that was approved by the Company in writing
if the terms of the leave provide for continued service crediting, or when continued service crediting is required by Applicable Laws.
Notwithstanding the foregoing, an approved leave of absence for six (6) months or less, which does not in fact exceed six (6) months,
will not result in Termination for purposes of this Agreement. However, Termination will occur when an approved leave described in this
Section B ends, unless Optionee immediately returns to active work.
(ii) “Termination
Date” shall mean the date of the Optionee’s Termination of Service.
NOW, THEREFORE, in consideration
of the mutual agreements contained herein, the Optionee and the Company hereby agree as follows:
1. Acceptance
of Agreement. Optionee has reviewed all of the provisions of the Plan and this Agreement. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Administrator on questions relating to the Plan and this Agreement, and,
solely as they relate to this Option, the applicable provisions (if any) contained in a written employment agreement between the Company
or an Affiliate and the Optionee. The Optionee’s electronic signature of this Agreement shall have the same validity and effect
as a signature affixed by hand.
2. Grant
and Terms of Stock Option.
2.1 Grant
of Option. Pursuant to this Agreement, the Company has granted to the Optionee the right and option to purchase, subject to the terms
and conditions set forth in the Plan and this Agreement, all or any part of the number of Shares set forth on the Grant Notice at a purchase
price per Share equal to the exercise price per Share set forth on the Grant Notice. An Option granted pursuant to the Grant Notice and
this Agreement shall be a Nonqualified Stock Option.
2.2 Vesting
and Term of Option. This Section 2.2 is subject to the provisions of the Plan and the other provisions of this Agreement.
2.2.1 This
Option shall vest and become exercisable as described in the Grant Notice.
2.2.2 The
“Term” of this Option shall begin on the Date of Grant set forth in the Grant Notice and end on the Expiration Date
specified in the Grant Notice. No portion of this Option may be exercised after the expiration of the Term.
2.2.3 Except
as otherwise provided in the Grant Notice, in the event of Optionee’s Termination for any reason other than death, Disability, or
Cause:
2.2.3.1 the
portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately
cancelled and terminated; and
2.2.3.2 the
portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of:
(a) the
expiration of the Term; and
(b) ninety
(90) days after such Termination Date.
2.2.4 Except
as otherwise provided in the Grant Notice, in the event of Termination due to death or Disability:
2.2.4.1 the
portion of this Option that is not vested and exercisable as of the Termination Date shall not continue to vest and shall be immediately
cancelled and terminated; and
2.2.4.2 the
portion of this Option that is vested and exercisable as of the Termination Date shall terminate and be cancelled on the earlier of (a)
the expiration of the Term and (b) the date that is twelve (12) months after the Termination Date.
2.2.5 In
the event of Optionee’s Termination for Cause, or if, after the Termination, the Administrator determines that Cause existed before
such Termination, this entire Option shall not continue to vest, shall be cancelled and terminated as of the Termination Date, and shall
no longer be exercisable as to any Shares, whether or not previously vested.
3. Method
of Exercise.
3.1 Method
of Exercise. Each election to exercise the Option shall be subject to the terms and conditions of the Plan and shall be in writing,
signed by the Optionee or by his or her executor, administrator, or permitted transferee (subject to any restrictions provided under the
Plan), made pursuant to and in accordance with the terms and conditions set forth in the Plan and received by the Company at its principal
offices, accompanied by payment in full as provided in the Plan or in this Agreement. Notwithstanding any of the foregoing, the Administrator
shall have the right to specify all conditions of the manner of exercise. Upon the Company’s determination that the Option has been
validly exercised as to any of the Shares, the Company may issue certificates in the Optionee’s name for such Shares. However, the
Company shall not be liable to the Optionee for damages relating to any reasonable delays in issuing the certificates to the Optionee,
any loss of the certificates, or any mistakes or errors in the issuance of the certificates or in the certificates themselves which it
promptly undertakes to correct.
3.2 Restrictions
on Exercise. No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance
with all applicable requirements of the Securities Act of 1933, as amended (“Securities Act”) (whether by registration
or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange or other market system
on which the Common Stock is then listed and all applicable requirements of any Applicable Laws and of any regulatory bodies having jurisdiction
over such issuance. As a condition to the exercise of this Option, the Company may require the Optionee to make any representation and
warranty to the Company as may be necessary or appropriate, in the judgment of the Administrator, to comply with any Applicable Law. In
addition, Optionee shall not sell any Shares acquired upon exercise of this Option at a time when Applicable Laws, regulations or Company’s
or underwriter trading policies prohibit such sale. Any other provision of this Agreement notwithstanding, the Company shall have the
right to designate one or more periods of time, each of which shall not exceed one hundred and eighty (180) days in length, during which
this Option shall not be exercisable if the Administrator determines (in its sole discretion) that such limitation on exercise could in
any way facilitate a lessening of any restriction on transfer pursuant to the Securities Act or any state securities laws with respect
to any issuance of securities by the Company, facilitate the registration or qualification of any securities by the Company under the
Securities Act or any state securities laws, or facilitate the perfection of any exemption from the registration or qualification requirements
of the Securities Act or any applicable state securities laws for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than to limit the periods during which this Option shall be exercisable.
3.3 Method
of Payment. Payment of the exercise price shall be made in full at the time of exercise (a) by the delivery of cash or check acceptable
to the Administrator, including an amount to cover the withholding taxes (as provided in Section 7.11) with respect to such exercise,
or (b) any other method, if any, approved by the Administrator, including (i) by means of consideration received under any cashless
exercise procedure, if any, approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise) or (ii) any
other form of consideration approved by the Administrator and permitted by Applicable Laws.
3.4 No
Rights as a Shareholder. Until the Shares are issued to the Optionee (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a shareholder will
exist with respect to the Shares, notwithstanding the exercise of the Option.
4. Non-Transferability
of Option. Except as provided below, this Option may not be sold, assigned or transferred in any manner, pledged or otherwise encumbered
other than by will or by the laws of descent or distribution or to a beneficiary designated pursuant to the Plan, and may be exercised
during the lifetime of Optionee only by Optionee or the Optionee’s guardian or legal representative. Subject to all of the other
terms and conditions of this Agreement, following the death of Optionee, this Option may, to the extent it is vested and exercisable by
Optionee in accordance with its terms on the Termination Date, be exercised by Optionee’s executor or administrator, or the person
or persons to whom the Optionee’s rights under this Agreement shall pass by will or by the laws of descent and distribution as the
case may be. Any heir or legatee of the Optionee shall take rights herein granted subject to the terms and conditions hereof.
5. Restrictions;
Restrictive Legends. Ownership and transfer of Shares issued pursuant to the exercise of this Option will be subject to the provisions
of, including ownership and transfer restrictions contained in, the Company’s Articles of Incorporation, as amended, or Amended
and Restated Bylaws, as amended from time to time, restrictions imposed by Applicable Laws and restrictions set forth or referenced in
legends imprinted on certificates representing such Shares.
6. Dissolution
or Liquidation. In the event of the proposed dissolution or liquidation of the Company, to the extent that this Option had not been
previously exercised, it will terminate immediately prior to the consummation of such proposed dissolution or liquidation. In such instance,
the Administrator may, in the exercise of its sole discretion, declare that this Option will terminate as of a date fixed by the Administrator
and give the Optionee the right to exercise this Option prior to such date as to all or any part of the optioned stock, including Shares
as to which this Option would not otherwise be exercisable.
7. General.
7.1 Governing
Law. This Agreement shall be governed by and construed under the laws of the State of Nevada applicable to agreements made and to
be performed entirely in Nevada, without regard to the conflicts of law provisions of Nevada or any other jurisdiction.
7.2 Community
Property. Without prejudice to the actual rights of the spouses as between each other, for all purposes of this Agreement, the Optionee
shall be treated as agent and attorney-in-fact for that interest held or claimed by his or her spouse with respect to this Option and
the parties hereto shall act in all matters as if the Optionee was the sole owner of this Option. This appointment is coupled with an
interest and is irrevocable.
7.3 No
Employment Rights. Nothing herein contained shall be construed as an agreement by the Company or any of its Subsidiaries, express
or implied, to employ the Optionee or contract for the Optionee’s services, to restrict the Company’s or such Subsidiary’s
right to discharge the Optionee or cease contracting for the Optionee’s services or to modify, extend or otherwise affect in any
manner whatsoever the terms of any employment agreement or contract for services which may exist between the Optionee and the Company
or any Affiliate.
7.4 Application
to Other Stock. In the event any capital stock of the Company or any other corporation shall be distributed on, with respect to, or
in exchange for Shares as a stock dividend, stock split, reclassification or recapitalization in connection with any merger or reorganization
or otherwise, all restrictions, rights and obligations set forth in this Agreement shall apply with respect to such other capital stock
to the same extent as they are, or would have been applicable, to the Shares on or with respect to which such other capital stock was
distributed, and references to “Company” in respect of such distributed stock shall be deemed to refer to the company to which
such distributed stock relates.
7.5 No
Third-Party Benefits. Except as otherwise expressly provided in this Agreement, none of the provisions of this Agreement shall be
for the benefit of, or enforceable by, any third-party beneficiary.
7.6 Successors
and Assigns. Except as provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties,
their respective successors and permitted assigns.
7.7 No
Assignment. Except as otherwise provided in this Agreement, the Optionee may not assign any of his or her rights under this Agreement
without the prior written consent of the Company, which consent may be withheld in its sole discretion. The Company shall be permitted
to assign its rights or obligations under this Agreement so long as such assignee agrees to perform all of the Company’s obligations
hereunder.
7.8 Severability.
The validity, legality or enforceability of the remainder of this Agreement shall not be affected even if one or more of the provisions
of this Agreement shall be held to be invalid, illegal or unenforceable in any respect.
7.9 Equitable
Relief. The Optionee acknowledges that, in the event of a threatened or actual breach of any of the provisions of this Agreement,
damages alone will be an inadequate remedy, and such breach will cause the Company great, immediate and irreparable injury and damage.
Accordingly, the Optionee agrees that the Company shall be entitled to injunctive and other equitable relief, and that such relief shall
be in addition to, and not in lieu of, any remedies it may have at law or under this Agreement.
7.10 Jurisdiction.
Any suit, action or proceeding with respect to this Agreement, or any judgment entered by any court in respect of any thereof, shall be
brought in any court of competent jurisdiction in the State of Nevada, and the Company and the Optionee hereby submit to the exclusive
jurisdiction of such courts for the purpose of any such suit, action, proceeding or judgment. The Optionee and the Company hereby irrevocably
waive (i) any objections which it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of
or relating to this Agreement brought in any court of competent jurisdiction in the State of Nevada, (ii) any claim that any such suit,
action or proceeding brought in any such court has been brought in any inconvenient forum and (iii) any right to a jury trial.
7.11 Taxes.
By agreeing to this Agreement, the Optionee represents that he or she has reviewed with his or her own tax advisors the federal, state,
local and foreign tax consequences of the transactions contemplated by this Agreement and that he or she is relying solely on such advisors
and not on any statements or representations of the Company or any of its agents. The Company shall be entitled to require a cash payment
by or on behalf of the Optionee and/or to deduct from the Shares or cash otherwise issuable hereunder or other compensation payable to
the Optionee the minimum amount of any sums required by federal, state or local tax law to be withheld (or other such sums that will not
cause adverse accounting consequences for the Company and is permitted under applicable withholding rules promulgated by the Internal
Revenue Service or another applicable governmental entity) in respect of the Option, its exercise or any payment or transfer under or
with respect to the Option.
7.12 Headings.
The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret
the scope of this Agreement or of any particular section.
7.13 Number
and Gender. Throughout this Agreement, as the context may require, (a) the masculine gender includes the feminine and the neuter gender
includes the masculine and the feminine; (b) the singular tense and number includes the plural, and the plural tense and number includes
the singular; (c) the past tense includes the present, and the present tense includes the past; (d) references to parties, sections, paragraphs
and exhibits mean the parties, sections, paragraphs and exhibits of and to this Agreement; and (e) periods of days, weeks or months mean
calendar days, weeks or months.
7.14 Data
Privacy. Optionee agrees that all of Optionee’s information that is described or referenced in this Agreement and the Plan may
be used by the Company, its affiliates and the designated broker and its affiliates to administer and manage Optionee’s participation
in the Plan.
7.15 Acknowledgments
of Optionee. Optionee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel
prior to executing this Agreement, fully understands all provisions of the Plan and this Agreement and, by accepting the Notice of Grant,
acknowledges and agrees to all of the provisions of the Grant Notice, the Plan and this Agreement.
7.16 Complete
Agreement. The Grant Notice, this Stock Option Agreement, the Plan, and the applicable provisions (if any) contained in a written
employment agreement between the Company or an Affiliate and the Optionee constitute the parties’ entire agreement with respect
to the subject matter hereof and supersede all agreements, representations, warranties, statements, promises and understandings, whether
oral or written, with respect to the subject matter hereof. In the event of any inconsistency between the Plan and this Agreement, the
terms of the Plan shall control.
7.17 Waiver.
The Optionee acknowledges that a waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any other provision of this Agreement, or of any subsequent breach by the Optionee.
7.18 Signature
in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
7.19 Amendments
and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended, altered or terminated at
any time or from time to time by the Administrator or the Board, but no amendment, alteration or termination shall be made that would
materially impair the rights of an Optionee under the Option without such Optionee’s consent. If it is determined that the terms
of this Agreement have been structured in a manner that would result in adverse tax treatment under Section 409A of the Code, the parties
agree to cooperate in taking all reasonable measures to restructure the arrangement to minimize or avoid such adverse tax treatment without
materially impairing Optionee’s economic rights.
7.20 Waiver
of Jury Trial. TO THE EXTENT EITHER PARTY INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN
US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH LITIGATION), ALL OF THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY. THIS
WAIVER WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION, INCLUDING CLAIMS RELATED TO THE ENFORCEMENT OR
INTERPRETATION OF THIS AGREEMENT, ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION, OR SIMILAR CAUSES OF
ACTION, AND IN CONNECTION WITH ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES BETWEEN OR AMONG US OR BETWEEN OR AMONG ANY OF OUR
OWNERS, AFFILIATES, OFFICERS, EMPLOYEES OR AGENTS.
7.21 Electronic
Delivery and Disclosure. The Company may, in its sole discretion, decide to deliver or disclose, as applicable, any documents related
to this Award granted under the Plan, future awards that may be granted under the Plan, the prospectus related to the Plan, the Company’s
annual reports or proxy statements by electronic means or to request Optionee’s consent to participate in the Plan by electronic
means, including, but not limited to, the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval
system or any successor system (“EDGAR”). Optionee hereby consents to receive such documents delivered electronically
or to retrieve such documents furnished electronically (including on EDGAR), as applicable, and agrees to participate in the Plan through
any online or electronic system established and maintained by the Company or another third party designated by the Company.
7.22 Section
409A. The parties intend for the Option to be exempt from Section 409A of the Code or, if not so exempt, to be treated in a manner
which complies with the requirements of such section, and intend that this Agreement be construed and administered in accordance with
such intention. In the event that the parties determine that the terms of this Agreement or the Option needs to be modified in order to
comply with Section 409A of the Code, the parties shall cooperate reasonably to do so in a manner intended to best preserve the economic
benefits of this Agreement. Any payments that qualify for the “short-term deferral” exception or another exception under Section
409A of the Code shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under
Section 409A of the Code, each payment of compensation under this Agreement shall be treated as a separate payment of compensation. Notwithstanding
anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section
409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during
the six-month period immediately following the Participant’s separation from service shall instead be paid on the first business
day after the date that is six months following the Participant’s termination date (or death, if earlier).
-8-
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 31, 2023, relating to the consolidated financial statements of Hoth Therapeutics,
Inc. as of and for the year ended December 31, 2022.
/s/ WithumSmith+Brown,
PC
WithumSmith+Brown,
PC
New York, New York
August 21, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
HOTH THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security Type | |
Security Class
Title | |
Fee
Calculation
Rule (1) | |
Amount
Registered (2) | | |
Proposed
Maximum
Offering Price
Per Share | |
| |
Maximum Aggregate
Offering Price | |
Fee Rate | | |
Amount of
Registration
Fee | |
Equity | |
Common Stock, par value $0.0001 per share | |
Other | |
| 495,317 | | |
$ | 2.46 | (1) |
| $ |
1,218,480 | |
$ | 0.00011020 | | |
$ | 134.28 | |
Total Offering Amounts | | |
| | |
| $ |
1,218,480 | |
| | | |
$ | 134.28 | |
Total Fee Offsets | | |
| | |
| |
| |
| | | |
| – | |
Net Fee Due | | |
| | |
| |
| |
| | | |
$ | 134.28 |
Table 2: Fee Offset Claims and Sources
Registrant
or Filer Name |
|
Form or
Filing Type |
|
File Number |
|
Initial
Filing Date |
|
Fee
Offset
Claimed |
|
Security
Type
Associated
with
Fee
Offset
Claimed |
|
Security
Title
Associated
with
Fee
Offset
Claimed |
|
Unsold
Securities
Associated
with
Fee
Offset
Claimed |
|
Unsold Aggregate
Offering Amount
Associated with Fee
Offset Claimed |
|
Fee Paid
with Fee
Offset
Source |
Rule 457(p) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Estimated solely for purposes of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended (the “Securities Act”), by averaging the high and low sales prices of Hoth Therapeutics, Inc.’s (the “Registrant’s”) common stock, par value $0.0001 per share (“Common Stock”), as reported on The Nasdaq Capital Market on August 17, 2023, which date is within five business days prior to the filing of this Registration Statement. |
(2) |
Pursuant to Rule 416(a) of the Securities Act,
this Registration Statement shall also cover any additional shares of Common Stock of the Registrant that become issuable under the Registrant’s
Amended and Restated 2022 Omnibus Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar
transaction that increases the number of outstanding shares of Common Stock. In addition, pursuant
to Rule 416(c) under the Securities Act, this Registration Statement shall also cover an indeterminate amount of interests to be offered
or sold pursuant to the employee benefit plans described herein.
|
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