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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 24, 2024
OrthoPediatrics
Corp.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
| 001-38242 |
26-1761833 |
| (Commission File Number) |
(IRS Employer Identification No.) |
|
2850 Frontier Drive
Warsaw, Indiana |
46582 |
| (Address of principal executive offices) |
(Zip Code) |
Registrant’s telephone number, including
area code: (574) 268-6379
Not Applicable
(Former name or former address, if changed since last report)
Securities registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange
on which registered |
| Common Stock, $0.00025 par value per share |
|
KIDS |
|
Nasdaq Global Market |
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 under the Securities Act (17 CFR 230.405) or Rule 12b-2 under the Exchange
Act (17 CFR 240.12b-2).
Emerging growth company ¨
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act ¨
| ITEM 5.02 | DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS;
COMPENSATORY ARRANGEMENTS. |
| (e) | Material Compensatory Plans, Contracts, or Arrangements |
On February 29, 2024,
the Board of Directors (the “Board”) of OrthoPediatrics Corp. (the “Company”) adopted the OrthoPediatrics Corp.
2024 Incentive Award Plan (the “2024 Plan”), subject to stockholder approval, which was obtained at the 2024 Annual
Meeting of Stockholders held on May 24, 2024. The 2024 Plan is intended to serve as the successor to the OrthoPediatrics Corp.
2017 Incentive Award Plan (the “2017 Plan”) and no further awards will be granted under the 2017 Plan. The
2024 Plan has been designed to promote the success and enhance the value of the Company by linking the individual interests of the
Company’s directors, employees, consultants, and advisors to those of the Company’s stockholders. The 2024 Plan is further
intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of directors, employees, consultants,
and advisors.
The material terms of the
2024 Plan are described in “Proposal 3 – Vote on the Company’s 2024 Incentive Award Plan” in the Company’s
definitive proxy statement on Schedule 14A filed with the United States Securities and Exchange Commission on April 8, 2024 (the
“Proxy Statement”), which description is incorporated by reference into this Item 5.02 of this Current Report on Form 8-K.
The form of Restricted Stock
Award Agreement for use with the 2024 Plan sets forth the standard terms and conditions that apply to grants of Restricted Stock
pursuant to the 2024 Plan, although awards may be granted under the 2024 Plan that deviate from these standard terms and conditions.
The descriptions of the 2024 Plan
and the form of Restricted Stock Award Agreement contained herein and in the Proxy Statement are qualified in their entirety by reference
to the full text of the 2024 Plan and the form of Restricted Stock Award Agreement, which are attached as Exhibits 10.1 and
10.2, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
| ITEM 9.01 | FINANCIAL STATEMENTS AND EXHIBITS. |
* * * * * *
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: May 28, 2024
| |
OrthoPediatrics Corp. |
| |
|
| |
By: |
/s/ Daniel J. Gerritzen |
| |
|
Daniel J. Gerritzen, |
| |
|
General Counsel and Secretary |
Exhibit 10.1
ORTHOPEDIATRICS CORP.
2024 INCENTIVE AWARD PLAN
ARTICLE 1.
PURPOSE
The purpose of the OrthoPediatrics
Corp. 2024 Incentive Award Plan (as it may be amended or restated from time to time, the “Plan”) is to promote the
success and enhance the value of OrthoPediatrics Corp., a Delaware corporation (the “Company”), by linking the individual
interests of the members of the Board, Employees, and Consultants to those of the Company’s stockholders and by providing such individuals
with an incentive for outstanding performance to generate superior returns to the Company’s stockholders. The Plan is further intended
to provide flexibility to the Company in its ability to motivate, attract, and retain the services of members of the Board, Employees,
and Consultants upon whose judgment, interest, and special effort the successful conduct of the Company’s operation is largely dependent.
ARTICLE 2.
DEFINITIONS AND CONSTRUCTION
Wherever the following terms
are used in the Plan they shall have the meanings specified below, unless the context clearly indicates otherwise. The singular pronoun
shall include the plural where the context so indicates.
2.1 “Administrator”
shall mean the entity that conducts the general administration of the Plan as provided in Article 11 hereof. With reference
to the duties of the Committee under the Plan which have been delegated to one or more persons pursuant to Section 11.6 hereof,
or as to which the Board has assumed, the term “Administrator” shall refer to such person(s) unless the Committee or
the Board has revoked such delegation or the Board has terminated the assumption of such duties.
2.2 “Applicable
Accounting Standards” shall mean Generally Accepted Accounting Principles in the United States, International Financial
Reporting Standards, or such other accounting principles or standards as may apply to the Company’s financial statements under United
States federal securities laws from time to time.
2.3 “Applicable
Law” shall mean any applicable law, including, without limitation: (a) provisions of the Code, the Securities Act, the
Exchange Act, and any rules or regulations thereunder; (b) corporate, securities, tax, or other laws, statutes, rules, requirements,
or regulations, whether federal, state, local, or foreign; and (c) rules of any securities exchange or automated quotation system
on which the Shares are listed, quoted, or traded.
2.4 “Automatic
Exercise Date” shall mean, with respect to an Option or a Stock Appreciation Right, the last business day of the applicable
Option Term or Stock Appreciation Right Term that was initially established by the Administrator for such Option or Stock Appreciation
Right (e.g., the last business day prior to the tenth anniversary of the date of grant of such Option or Stock Appreciation Right
if the Option or Stock Appreciation Right initially had a ten-year Option Term or Stock Appreciation Right Term, as applicable).
2.5 “Award”
shall mean an Option, a Stock Appreciation Right, a Restricted Stock award, a Restricted Stock Unit award, an Other Stock or Cash Based
Award, or a Dividend Equivalent award, which may be awarded or granted under the Plan.
2.6 “Award
Agreement” shall mean any written notice, agreement, terms and conditions, 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.
2.7 “Award
Limit” shall mean with respect to Awards that shall be payable in Shares or in cash, as the case may be, the respective limit
set forth in Section 3.2 hereof.
2.8 “Board”
shall mean the Board of Directors of the Company.
2.9 “Change
in Control” shall mean and includes each of the following:
(a) A
transaction or series of transactions (other than an offering of Common Stock to the general public through a registration statement filed
with the Securities and Exchange Commission) whereby any “person” or related “group” of “persons”
(as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) directly or indirectly acquires beneficial
ownership (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of securities of the Company possessing more than
50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; provided,
however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition by the Company or any
of its Subsidiaries; (ii) any acquisition by an employee benefit plan maintained by the Company or any of its Subsidiaries, (iii) any
acquisition which complies with Section 2.9(c)(i), 2.9(c)(ii), or 2.9(c)(iii) hereof; or (iv) in respect
of an Award held by a particular Holder, any acquisition by the Holder or any group of persons including the Holder (or any entity controlled
by the Holder or any group of persons including the Holder);
(b)
The Incumbent Directors cease for any reason to constitute a majority of the
Board;
(c) The consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or
business combination, (y) a sale or other disposition of all or substantially all of the Company’s assets in any single
transaction or series of related transactions, or (z) the acquisition of assets or stock of another entity, in each case other
than a transaction:
(i) which
results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining
outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls,
directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise
succeeds to the business of the Company (the Company or such person, the “Successor Entity”)), directly or indirectly,
at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction;
(ii) after
which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity;
provided, however, that no person or group shall be treated for purposes of this Section 2.9(c)(ii) hereof
as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in
the Company prior to the consummation of the transaction; and
(iii) after
which at least a majority of the members of the board of directors (or the analogous governing body) of the Successor Entity were Directors
at the time of the Board's approval of the execution of the initial agreement providing for such transaction; or
(d) The
date which is 10 business days prior to the completion of a liquidation or dissolution of the Company.
Notwithstanding the foregoing, if a Change in
Control constitutes a payment event with respect to any Award (or any portion of an Award) that provides for the deferral of compensation
that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the
transaction or event described in Section 2.9 (a), (b), (c), or (d) with respect to such Award (or
portion thereof) shall only constitute a Change in Control for purposes of the payment timing of such Award if such transaction also constitutes
a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).
The Administrator shall have full and final authority,
which shall be exercised in its sole discretion, to determine conclusively whether a Change in Control has occurred pursuant to the above
definition, the date of the occurrence of such Change in Control, and any incidental matters relating thereto; provided that any exercise
of authority in conjunction with a determination of whether a Change in Control is a “change in control event” as defined
in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such regulation.
2.10 “Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, together with the regulations and official guidance promulgated
thereunder, whether issued prior or subsequent to the grant of any Award.
2.11 “Committee”
shall mean the Compensation Committee of the Board, or another committee or subcommittee of the Board or the Compensation Committee of
the Board described in Article 11 hereof.
2.12 “Common
Stock” shall mean the common stock of the Company, par value $0.00025 per share.
2.13 “Company”
shall have the meaning set forth in Article 1 hereof.
2.14 “Consultant”
shall mean any consultant or adviser engaged to provide services to the Company or any Subsidiary who qualifies as a consultant or advisor
under the applicable rules of the Securities and Exchange Commission for registration of shares on a Form S-8 Registration Statement.
2.15 “Data”
shall have the meaning set forth in Section 10.8 hereof.
2.16 “Director”
shall mean a member of the Board, as constituted from time to time.
2.17 “Director
Limit” shall have the meaning set forth in Section 4.6 hereof.
2.18 “Dividend
Equivalent” shall mean a right to receive the equivalent value (in cash or Shares) of dividends paid on Shares, awarded under
Section 9.2 hereof.
2.19 “DRO”
shall mean a “domestic relations order” as defined by the Code or Title I of the Employee Retirement Income Security
Act of 1974, as amended from time to time, or the rules thereunder.
2.20 “Eligible
Individual” shall mean any person who is an Employee, a Consultant, or a Non-Employee Director, as determined by the Administrator.
2.21 “Employee”
shall mean any officer or other employee (as determined in accordance with Section 3401(c) of the Code and the Treasury Regulations
thereunder) of the Company or of any Subsidiary.
2.22 “Equity
Restructuring” shall mean a nonreciprocal transaction between the Company and its stockholders, such as a stock dividend, stock
split, spin-off, rights offering, or recapitalization through a large, nonrecurring cash dividend, that affects the number or kind of
Shares (or other securities of the Company) or the share price of Common Stock (or other securities) and causes a change in the per-share
value of the Common Stock underlying outstanding Awards.
2.23 “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
2.24 “Expiration
Date” shall have the meaning set forth in Section 12.1(c) hereof.
2.25 “Fair Market Value” shall mean, as of any given
date, the value of a Share determined as follows:
(a) If
the Common Stock is (i) listed on any established securities exchange (such as the New York Stock Exchange, the NASDAQ Capital Market,
the NASDAQ Global Market, or the NASDAQ Global Select Market), (ii) listed on any national market system, or (iii) quoted or
traded on any automated quotation system, its Fair Market Value shall be the closing sales price for a Share as quoted on such exchange
or system for such date or, if there is no closing sales price for a Share on the date in question, the closing sales price for a Share
on the last preceding date for which such quotation exists, as reported in The Wall Street Journal or such other source as the
Administrator deems reliable;
(b) If
the Common Stock is not listed on an established securities exchange, national market system, or automated quotation system, but the Common
Stock is regularly quoted by a recognized securities dealer, its Fair Market Value shall be the mean of the high bid and low asked prices
for such date or, if there are no high bid and low asked prices for a Share on such date, the high bid and low asked prices for a Share
on the last preceding date for which such information exists, as reported in The Wall Street Journal or such other source as the
Administrator deems reliable; or
(c) If
the Common Stock is neither listed on an established securities exchange, national market system, or automated quotation system nor regularly
quoted by a recognized securities dealer, its Fair Market Value shall be established by the Administrator in good faith.
2.27 “Greater
Than 10% Stockholder” shall mean an individual then owning (within the meaning of Section 424(d) of the Code) more
than 10% of the total combined voting power of all classes of stock of the Company or any subsidiary corporation (as defined in Section 424(f) of
the Code) or parent corporation thereof (as defined in Section 424(e) of the Code).
2.28 “Holder”
shall mean a person who has been granted an Award.
2.29 “Incentive
Stock Option” shall mean an Option that is intended to qualify as an incentive stock option and conforms to the applicable provisions
of Section 422 of the Code.
2.30 “Incumbent
Directors” shall mean for any period of 12 consecutive months, individuals who, at the beginning of such period, constitute
the Board together with any new Director(s) (other than a Director designated by a person who shall have entered into an agreement
with the Company to effect a transaction described in Section 2.9(a) or 2.9(c) hereof) whose election or
nomination for election to the Board was approved by a vote of at least a majority (either by a specific vote or by approval of the proxy
statement of the Company in which such person is named as a nominee for Director without objection to such nomination) of the Directors
then still in office who either were Directors at the beginning of the 12-month period or whose election or nomination for election was
previously so approved. No individual initially elected or nominated as a director of the Company as a result of an actual or threatened
election contest with respect to Directors or as a result of any other actual or threatened solicitation of proxies by or on behalf of
any person other than the Board shall be an Incumbent Director.
2.31 “Non-Employee
Director” shall mean a Director of the Company who is not an Employee.
2.32 “Non-Employee
Director Compensation Policy” shall have the meaning set forth in Section 4.6 hereof.
2.33 “Non-Qualified
Stock Option” shall mean an Option that is not an Incentive Stock Option or which is designated as an Incentive Stock Option
but does not meet the applicable requirements of Section 422 of the Code.
2.34 “Option”
shall mean a right to purchase Shares at a specified exercise price, granted under Article 5 hereof. An Option shall be either
a Non-Qualified Stock Option or an Incentive Stock Option; provided, however, that Options granted to Non-Employee Directors
and Consultants shall only be Non-Qualified Stock Options.
2.35 “Option
Term” shall have the meaning set forth in Section 5.4 hereof.
2.36 “Organizational
Documents” shall mean, collectively, (a) the Company’s articles of incorporation, certificate of incorporation, bylaws,
or other similar organizational documents relating to the creation and governance of the Company, and (b) the Committee’s charter
or other similar organizational documentation relating to the creation and governance of the Committee.
2.37 “Other
Stock or Cash Based Award” shall mean a cash payment, cash bonus award, stock payment, stock bonus award, performance award,
or incentive award that is paid in cash, Shares, or a combination of both, awarded under Section 9.1 hereof, which may include,
without limitation, deferred stock, deferred stock units, performance awards, retainers, committee fees, and meeting-based fees.
2.39 “Performance
Criteria” shall mean the criteria (and adjustments) that the Administrator selects for an Award for purposes of establishing
the Performance Goal or Performance Goals for a Performance Period, determined as follows:
(a) The
Performance Criteria that shall be used to establish Performance Goals are limited to the following: (i) net earnings or losses (either
before or after one or more of the following: (A) interest, (B) taxes, (C) depreciation, (D) amortization, and (E) non-cash
equity-based compensation expense); (ii) gross or net sales or revenue or sales or revenue growth; (iii) net income (either
before or after taxes); (iv) adjusted net income; (v) operating earnings or profit (either before or after taxes); (vi) cash
flow (including, but not limited to, operating cash flow and free cash flow); (vii) return on assets; (viii) return on capital
(or invested capital) and cost of capital; (ix) return on stockholders’ equity; (x) total stockholder return; (xi) return
on sales; (xii) gross or net profit or operating margin; (xiii) costs, reductions in costs, and cost control measures; (xiv) expenses;
(xv) working capital; (xvi) earnings or loss per share; (xvii) adjusted earnings or loss per share; (xviii) price
per share or dividends per share (or appreciation in and/or maintenance of such price or dividends); (xix) regulatory achievements
or compliance (including, without limitation, regulatory body approval for commercialization of a product); (xx) implementation or
completion of critical projects; (xxi) market share; and (xxii) economic value, any of which may be measured either in absolute
terms or as compared to any incremental increase or decrease or as compared to results of a peer group or to market performance indicators
or indices.
(b) The
Administrator, in its sole discretion, may provide that one or more objectively determinable adjustments shall be made to one or more
of the Performance Goals. Such adjustments may include, but are not limited to, one or more of the following: (i) items related to
a change in Applicable Accounting Standards; (ii) items relating to financing activities; (iii) expenses for restructuring or
productivity initiatives; (iv) other non-operating items; (v) items related to acquisitions; (vi) items attributable to
the business operations of any entity acquired by the Company during the Performance Period; (vii) items related to the sale or disposition
of a business or segment of a business; (viii) items related to discontinued operations that do not qualify as a segment of a business
under Applicable Accounting Standards; (ix) items attributable to any stock dividend, stock split, combination, or exchange of stock
occurring during the Performance Period; (x) any other items of significant income or expense which are determined to be appropriate
adjustments; (xi) items relating to unusual or extraordinary corporate transactions, events, or developments, (xii) items related
to amortization of acquired intangible assets; (xiii) items that are outside the scope of the Company’s core, on-going business
activities; (xiv) items related to acquired in-process research and development; (xv) items relating to changes in tax laws;
(xvi) items relating to major licensing or partnership arrangements; (xvii) items relating to asset impairment charges; (xviii) items
relating to gains or losses for litigation, arbitration, and contractual settlements; (xix) items attributable to expenses incurred
in connection with a reduction in force or early retirement initiative; (xx) items relating to foreign exchange or currency transactions
and/or fluctuations; or (xxi) items relating to any other unusual or nonrecurring events or changes in Applicable Law, Applicable
Accounting Standards, or business conditions.
2.40 “Performance
Goals” shall mean, for a Performance Period, one or more goals established in writing by the Administrator for the Performance
Period based upon one or more Performance Criteria. Depending on the Performance Criteria used to establish such Performance Goals, the
Performance Goals may be expressed in terms of overall Company performance or the performance of a Subsidiary, division, business unit,
or an individual. The achievement of each Performance Goal shall be determined, to the extent applicable, with reference to Applicable
Accounting Standards.
2.41 “Performance
Period” shall mean one or more periods of time, which may be of varying and overlapping durations, as the Administrator may
select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Holder’s right
to, vesting of, and/or the payment in respect of, an Award.
2.42 “Permitted
Transferee” shall mean, with respect to a Holder, any “family member” of the Holder, as defined in the General Instructions
to Form S-8 Registration Statement under the Securities Act (or any successor form thereto), or any other transferee specifically
approved by the Administrator after taking into account Applicable Law.
2.43 “Plan”
shall have the meaning set forth in Article 1 hereof.
2.44 “Program”
shall mean any program adopted by the Administrator pursuant to the Plan containing the terms and conditions intended to govern a specified
type of Award granted under the Plan and pursuant to which such type of Award may be granted under the Plan.
2.46 “Restricted
Stock” shall mean Common Stock awarded under Article 7 hereof that is subject to certain restrictions and may be
subject to risk of forfeiture or repurchase.
2.47 “Restricted
Stock Units” shall mean the right to receive Shares awarded under Article 8 hereof.
2.48 “Section 409A”
shall mean Section 409A of the Code and the Department of Treasury regulations and other interpretive guidance issued thereunder.
2.49 “Securities
Act” shall mean the Securities Act of 1933, as amended.
2.50 “Shares”
shall mean shares of Common Stock.
2.51 “Stock
Appreciation Right” shall mean an Award entitling the Holder (or other person entitled to exercise pursuant to the Plan) to
exercise all or a specified portion thereof (to the extent then exercisable pursuant to its terms) and to receive from the Company an
amount determined by multiplying the difference obtained by subtracting the exercise price per share of such Award from the Fair Market
Value on the date of exercise of such Award by the number of Shares with respect to which such Award shall have been exercised, subject
to any limitations the Administrator may impose.
2.52 “SAR
Term” shall have the meaning set forth in Section 5.4 hereof.
2.53 “Subsidiary”
shall mean any entity (other than the Company), whether domestic or foreign, in an unbroken chain of entities beginning with the Company
if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities
or interests representing at least 50% of the total combined voting power of all classes of securities or interests in one of the other
entities in such chain.
2.54 “Substitute
Award” shall mean an Award granted under the Plan in connection with a corporate transaction, such as a merger, combination,
consolidation, or acquisition of property or stock, in any case, upon the assumption of, or in substitution for, outstanding equity awards
previously granted by a company or other entity; provided, however, that in no event shall the term “Substitute Award”
be construed to refer to an award made in connection with the cancellation and repricing of an Option or Stock Appreciation Right.
2.55 “Termination
of Service” shall mean:
(a) As
to a Consultant, the time when the engagement of a Holder as a Consultant to the Company or a Subsidiary is terminated for any reason,
with or without cause, including, without limitation, by resignation, discharge, death, or retirement, but excluding terminations where
the Consultant simultaneously commences or remains in employment or service with the Company or any Subsidiary.
(b) As
to a Non-Employee Director, the time when a Holder who is a Non-Employee Director ceases to be a Director for any reason, including, without
limitation, a termination by resignation, failure to be elected, death, or retirement, but excluding terminations where the Holder simultaneously
commences or remains in employment or service with the Company or any Subsidiary.
(c) As
to an Employee, the time when the employee-employer relationship between a Holder and the Company or any Subsidiary is terminated for
any reason, including, without limitation, a termination by resignation, discharge, death, disability, or retirement; but excluding terminations
where the Holder simultaneously commences or remains in employment or service with the Company or any Subsidiary.
The Administrator, in its sole discretion, shall
determine the effect of all matters and questions relating to any Termination of Service, including, without limitation, whether a Termination
of Service has occurred, whether a Termination of Service resulted from a discharge for cause and all questions of whether particular
leaves of absence constitute a Termination of Service; provided, however, that, with respect to Incentive Stock Options,
unless the Administrator otherwise provides in the terms of any Program, Award Agreement, or otherwise, or as otherwise required by Applicable
Law, a leave of absence, change in status from an employee to an independent contractor, or other change in the employee-employer relationship
shall constitute a Termination of Service only if, and to the extent that, such leave of absence, change in status or other change interrupts
employment for the purposes of Section 422(a)(2) of the Code and the then-applicable regulations and revenue rulings under said
Section. For purposes of the Plan, a Holder’s employee-employer relationship or consultancy relations shall be deemed to be terminated
in the event that the Subsidiary employing or contracting with such Holder ceases to remain a Subsidiary following any merger, sale of
stock, or other corporate transaction or event (including, without limitation, a spin-off).
ARTICLE 3.
SHARES SUBJECT TO THE PLAN
3.1 Number
of Shares.
(a) Subject
to Sections 3.1(b) and 12.2 hereof, the aggregate number of Shares which may be issued or transferred pursuant
to Awards (including, without limitation, Incentive Stock Options) under the Plan is 1,629,000. Any Shares distributed pursuant to
an Award may consist, in whole or in part, of authorized and unissued Common Stock, treasury Common Stock, or Common Stock purchased on
the open market.
(b) If
any Shares subject to an Award are forfeited or expire, are converted to shares of another Person in connection with a recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares, or other similar event, or such Award is settled
for cash (in whole or in part) (including Shares repurchased by the Company under Section 7.4 hereof at the same price paid
by the Holder), the Shares subject to such Award shall, to the extent of such forfeiture, expiration, or cash settlement, again be available
for future grants of Awards under the Plan. Notwithstanding anything to the contrary contained herein, the following Shares shall not
be added to the Shares authorized for grant under Section 3.1(a) hereof and shall not be available for future grants
of Awards: (i) Shares tendered by a Holder or withheld by the Company in payment of the exercise price of an Option; (ii) Shares
tendered by the Holder or withheld by the Company to satisfy any tax withholding obligation with respect to an Award; (iii) Shares
subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of the Stock Appreciation Right on exercise
thereof; and (iv) Shares purchased on the open market by the Company with the cash proceeds received from the exercise of Options.
Any Shares repurchased by the Company under Section 7.4 hereof at the same price paid by the Holder so that such Shares are
returned to the Company shall again be available for Awards. The payment of Dividend Equivalents in cash in conjunction with any outstanding
Awards shall not be counted against the Shares available for issuance under the Plan. Notwithstanding the provisions of this Section 3.1(b),
no Shares may again be optioned, granted, or awarded if such action would cause an Incentive Stock Option to fail to qualify as an incentive
stock option under Section 422 of the Code.
(c) Substitute
Awards shall not reduce the Shares authorized for grant under the Plan, except as may be required by reason of Section 422 of the
Code. Additionally, in the event that a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary
combines has shares available under a pre-existing plan approved by its stockholders and not adopted in contemplation of such acquisition
or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate,
using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration
payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan
and shall not reduce the Shares authorized for grant under the Plan; provided that Awards using such available Shares shall not
be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination,
and shall only be made to individuals who were not employed by or providing services to the Company or its Subsidiaries immediately prior
to such acquisition or combination.
3.2 Limitation
on Number of Shares Subject to Awards. Notwithstanding any provision in the Plan to the contrary, and subject to Section 12.2
hereof, the maximum aggregate number of Shares with respect to one or more Awards that may be granted to any one person during any calendar
year shall be 1,000,000 and the maximum aggregate amount of cash that may be paid in cash to any one person during any calendar year with
respect to one or more Awards payable in cash shall be $5,000,000.
ARTICLE 4.
GRANTING OF AWARDS
4.1 Participation.
The Administrator may, from time to time, select from among all Eligible Individuals, those to whom an Award shall be granted and shall
determine the nature and amount of each Award, which shall not be inconsistent with the requirements of the Plan. Except for any Non-Employee
Director’s right to Awards that may be required pursuant to the Non-Employee Director Compensation Policy as described in Section 4.6
hereof, no Eligible Individual or other Person shall have any right to be granted an Award pursuant to the Plan and neither the Company
nor the Administrator is obligated to treat Eligible Individuals, Holders, or any other persons uniformly. Participation by each Holder
in the Plan shall be voluntary and nothing in the Plan or any Program shall be construed as mandating that any Eligible Individual or
other Person participate in the Plan.
4.2 Award
Agreement. Each Award shall be evidenced by an Award Agreement that sets forth the terms, conditions, and limitations for such Award
as determined by the Administrator in its sole discretion (consistent with the requirements of the Plan and any applicable Program). Award
Agreements evidencing Incentive Stock Options shall contain such terms and conditions as may be necessary to meet the applicable provisions
of Section 422 of the Code.
4.3 Limitations
Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan, the Plan and any Award granted or awarded
to any individual who is then subject to Section 16 of the Exchange Act shall be subject to any additional limitations set forth
in any applicable exemptive rule under Section 16 of the Exchange Act (including Rule 16b-3 of the Exchange Act and any
amendments thereto) that are requirements for the application of such exemptive rule. To the extent permitted by Applicable Law, the Plan
and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
4.4 At-Will
Service. Nothing in the Plan or in any Program or Award Agreement hereunder shall confer upon any Holder any right to continue in
the employ of, or as a Director or Consultant for, the Company or any Subsidiary, or shall interfere with or restrict in any way the rights
of the Company and any Subsidiary, which rights are hereby expressly reserved, to discharge any Holder at any time for any reason whatsoever,
with or without cause, and with or without notice, or to terminate or change all other terms and conditions of employment or engagement,
except to the extent expressly provided otherwise in a written agreement between the Holder and the Company or any Subsidiary.
4.5 Foreign
Holders. Notwithstanding any provision of the Plan or applicable Program to the contrary, in order to comply with the laws in countries
other than the United States in which the Company and its Subsidiaries operate or have Employees, Non-Employee Directors, or Consultants,
or in order to comply with the requirements of any foreign securities exchange or other Applicable Law, the Administrator, in its sole
discretion, shall have the power and authority to: (a) determine which Subsidiaries shall be covered by the Plan; (b) determine
which Eligible Individuals outside the United States are eligible to participate in the Plan; (c) modify the terms and conditions
of any Award granted to Eligible Individuals outside the United States to comply with Applicable Law (including, without limitation, applicable
foreign laws or listing requirements of any foreign securities exchange); (d) establish subplans and modify exercise procedures and
other terms and procedures, to the extent such actions may be necessary or advisable; provided, however, that no such subplans
and/or modifications shall increase the share limitation contained in Section 3.1 hereof, the Award Limit, or the Director
Limit; and (e) take any action, before or after an Award is made, that it deems advisable to obtain approval or comply with any necessary
local governmental regulatory exemptions or approvals or listing requirements of any foreign securities exchange.
4.6 Non-Employee
Director Awards.
(a) Non-Employee
Director Compensation Policy. The Administrator, in its sole discretion, may provide that Awards granted to Non-Employee Directors
shall be granted pursuant to a written nondiscretionary formula established by the Administrator (the “Non-Employee Director
Compensation Policy”), subject to the limitations of the Plan. The Non-Employee Director Compensation Policy shall set forth
the type of Award(s) to be granted to Non-Employee Directors, the number of Shares to be subject to Non-Employee Director Awards,
the conditions on which such Awards shall be granted, become exercisable and/or payable, and expire, and such other terms and conditions
as the Administrator shall determine in its sole discretion. The Non-Employee Director Compensation Policy may be modified by the Administrator
from time to time in its sole discretion.
(b) Director
Limit. Notwithstanding any provision to the contrary in the Plan or in the Non-Employee Director Compensation Policy, the sum of the
grant date fair value of equity-based Awards and the amount of any cash-based Awards granted to a Non-Employee Director during any calendar
year shall not exceed $300,000 (the “Director Limit”).
ARTICLE 5.
GRANTING OF OPTIONS AND STOCK APPRECIATION RIGHTS
5.1 Granting
of Options and Stock Appreciation Rights to Eligible Individuals. The Administrator is authorized to grant Options and Stock Appreciation
Rights to Eligible Individuals from time to time, in its sole discretion, on such terms and conditions as it may determine, which shall
not be inconsistent with the Plan.
5.2 Qualification
of Incentive Stock Options. The Administrator may grant Options intended to qualify as Incentive Stock Options only to employees of
the Company, any of the Company’s present or future “parent corporations” or “subsidiary corporations” as
defined in Sections 424(e) and 424(f) of the Code, respectively, and any other entities the employees of which are eligible
to receive Incentive Stock Options under the Code. No person who qualifies as a Greater Than 10% Stockholder may be granted an Incentive
Stock Option unless such Incentive Stock Option conforms to the applicable provisions of Section 422 of the Code. To the extent that
the aggregate fair market value of stock with respect to which “incentive stock options” (within the meaning of Section 422
of the Code, but without regard to Section 422(d) of the Code) are exercisable for the first time by a Holder during any calendar
year under the Plan, and all other plans of the Company and any parent corporation or subsidiary corporation thereof (as defined in Sections 424(e) and
424(f) of the Code, respectively), exceeds $100,000, the Options shall be treated as Non-Qualified Stock Options to the extent required
by Section 422 of the Code. The rule set forth in the immediately preceding sentence shall be applied by taking Options and
other “incentive stock options” into account in the order in which they were granted and the fair market value of stock shall
be determined as of the time the respective options were granted. Any interpretations and rules under the Plan with respect to Incentive
Stock Options shall be consistent with the provisions of Section 422 of the Code. Neither the Company nor the Administrator shall
have any liability to a Holder, or any other Person, (a) if an Option (or any part thereof) which is intended to qualify as an Incentive
Stock Option fails to qualify as an Incentive Stock Option or (b) for any action or omission by the Company or the Administrator
that causes an Option not to qualify as an Incentive Stock Option, including, without limitation, the conversion of an Incentive Stock
Option to a Non-Qualified Stock Option or the grant of an Option intended as an Incentive Stock Option that fails to satisfy the requirements
under the Code applicable to an Incentive Stock Option.
5.3 Option
and Stock Appreciation Right Exercise Price. The exercise price per Share subject to each Option and Stock Appreciation Right shall
be set by the Administrator, but shall not be less than 100% of the Fair Market Value of a Share on the date the Option or Stock Appreciation
Right, as applicable, is granted (or, as to Incentive Stock Options, on the date the Option is modified, extended, or renewed for purposes
of Section 424(h) of the Code). In addition, in the case of Incentive Stock Options granted to a Greater Than 10% Stockholder,
such price shall not be less than 110% of the Fair Market Value of a Share on the date the Option is granted (or the date the Option is
modified, extended, or renewed for purposes of Section 424(h) of the Code). Notwithstanding the foregoing, in the case of an
Option or Stock Appreciation Right that is a Substitute Award, the exercise price per share of the Shares subject to such Option or Stock
Appreciation Right, as applicable, may be less than the Fair Market Value per share on the date of grant; provided that the exercise
price of any Substitute Award shall be determined in accordance with the applicable requirements of Sections 424 and 409A of the
Code.
5.4 Option
and SAR Term. The term of each Option (the “Option Term”) and the term of each Stock Appreciation Right (the “SAR
Term”) shall be set by the Administrator in its sole discretion; provided, however, that the Option Term or SAR
Term, as applicable, shall not be more than (a) 10 years from the date the Option or Stock Appreciation Right, as applicable,
is granted to an Eligible Individual (other than a Greater Than 10% Stockholder), or (b) five years from the date an Incentive Stock
Option is granted to a Greater Than 10% Stockholder. Except as limited by the requirements of Sections 409A and 422 of the Code and
regulations and rulings thereunder or the first sentence of this Section 5.4 and without limiting the Company’s rights
under Section 10.7 hereof, the Administrator may extend the Option Term of any outstanding Option or the SAR Term of any outstanding
Stock Appreciation Right, and may extend the time period during which vested Options or Stock Appreciation Rights may be exercised, in
connection with any Termination of Service of the Holder or otherwise, and may amend, subject to Sections 10.7 and 12.1
hereof, any other term or condition of such Option or Stock Appreciation Right relating to such Termination of Service of the Holder or
otherwise.
5.5 Option
and SAR Vesting. The period during which the right to exercise, in whole or in part, an Option or Stock Appreciation Right vests in
the Holder shall be set by the Administrator and set forth in the applicable Award Agreement. Unless otherwise determined by the Administrator
in the Award Agreement, the applicable Program, or by action of the Administrator following the grant of the Option or Stock Appreciation
Right, (a) no portion of an Option or Stock Appreciation Right which is unexercisable at a Holder’s Termination of Service
shall thereafter become exercisable and (b) the portion of an Option or Stock Appreciation Right that is unexercisable at a Holder’s
Termination of Service shall automatically expire 30 days following such Termination of Service.
5.6 Substitution
of Stock Appreciation Rights; Early Exercise of Options. The Administrator may provide in the applicable Program or Award Agreement
evidencing the grant of an Option that the Administrator, in its sole discretion, shall have the right to substitute a Stock Appreciation
Right for such Option at any time prior to or upon exercise of such Option; provided that such Stock Appreciation Right shall be
exercisable with respect to the same number of Shares for which such substituted Option would have been exercisable, and shall also have
the same exercise price, vesting schedule, and remaining term as the substituted Option. The Administrator may provide in the terms of
an Award Agreement that the Holder may exercise an Option in whole or in part prior to the full vesting of the Option in exchange for
unvested shares of Restricted Stock with respect to any unvested portion of the Option so exercised. Shares of Restricted Stock acquired
upon the exercise of any unvested portion of an Option shall be subject to such terms and conditions as the Administrator shall determine.
ARTICLE 6.
EXERCISE OF OPTIONS AND STOCK APPRECIATION RIGHTS
6.1 Exercise
and Payment. An exercisable Option or Stock Appreciation Right may be exercised in whole or in part. However, an Option or Stock Appreciation
Right shall not be exercisable with respect to fractional Shares and the Administrator may require that, by the terms of the Option or
Stock Appreciation Right, a partial exercise must be with respect to a minimum number of Shares. Payment of the amounts payable with respect
to Stock Appreciation Rights pursuant to this Article 6 shall be in cash, Shares (based on its Fair Market Value as of the
date the Stock Appreciation Right is exercised), or a combination of both, as determined by the Administrator.
6.2 Manner
of Exercise. Except as set forth in Section 6.3 hereof, all or a portion of an exercisable Option or Stock Appreciation
Right shall be deemed exercised upon delivery of all of the following to the Secretary of the Company, the stock plan administrator of
the Company, or such other person or entity designated by the Administrator, or his, her, or its office, as applicable:
(a) A
written or electronic notice complying with the applicable rules established by the Administrator stating that the Option or Stock
Appreciation Right, or a portion thereof, is exercised. The notice shall be signed or otherwise acknowledged electronically by the Holder
or other person then entitled to exercise the Option or Stock Appreciation Right or such portion thereof;
(b) Such
representations and documents as the Administrator, in its sole discretion, deems necessary or advisable to effect compliance with Applicable
Law;
(c) In
the event that the Option shall be exercised pursuant to Section 10.3 hereof by any person or persons other than the Holder,
appropriate proof of the right of such person or persons to exercise the Option or Stock Appreciation Right, as determined in the sole
discretion of the Administrator; and
(d) Full
payment of the exercise price and applicable withholding taxes for the Shares with respect to which the Option or Stock Appreciation Right,
or portion thereof, is exercised, in a manner permitted by the Administrator in accordance with Sections 10.1 and 10.2
hereof.
6.3 Expiration
of Option Term or SAR Term: Automatic Exercise of In-The-Money Options and Stock Appreciation Rights. Unless otherwise provided by
the Administrator in an Award Agreement or otherwise or as otherwise directed by an Option or Stock Appreciation Rights Holder in writing
to the Company, each vested and exercisable Option and Stock Appreciation Right outstanding on the Automatic Exercise Date with an exercise
price per Share that is less than the Fair Market Value per Share as of such date shall automatically and without further action by the
Option or Stock Appreciation Rights Holder or the Company be exercised on the Automatic Exercise Date. In the sole discretion of the Administrator,
payment of the exercise price of any such Option shall be made pursuant to Section 10.1(b) or 10.1(c) hereof
and the Company or any Subsidiary shall be entitled to deduct or withhold an amount sufficient to satisfy all taxes associated with such
exercise in accordance with Section 10.2 hereof. Unless otherwise determined by the Administrator, this Section 6.3
shall not apply to an Option or Stock Appreciation Right if the Holder of such Option or Stock Appreciation Right incurs a Termination
of Service on or before the Automatic Exercise Date. For the avoidance of doubt, no Option or Stock Appreciation Right with an exercise
price per Share that is equal to or greater than the Fair Market Value per Share on the Automatic Exercise Date shall be exercised pursuant
to this Section 6.3.
6.4 Notification
Regarding Disposition. The Holder shall give the Company prompt written or electronic notice of any disposition of Shares acquired
by exercise of an Incentive Stock Option which occurs within (a) two years from the date of granting (including the date the Option
is modified, extended, or renewed for purposes of Section 424(h) of the Code) such Option to such Holder, or (b) one year
after the date of transfer of such Shares to such Holder. Such notice shall specify the date of such disposition or other transfer and
the amount realized, in cash, other property, assumption of indebtedness, or other consideration, by the Holder in such disposition or
other transfer.
ARTICLE 7.
AWARD OF RESTRICTED STOCK
7.1 Award
of Restricted Stock. The Administrator is authorized to grant Restricted Stock to Eligible Individuals, and shall determine the terms
and conditions, including the restrictions applicable to each award of Restricted Stock, which terms and conditions shall not be inconsistent
with the Plan or any applicable Program, and may impose such conditions on the issuance of such Restricted Stock as it deems appropriate.
The Administrator shall establish the purchase price, if any, and form of payment for Restricted Stock; provided, however,
that if a purchase price is charged, such purchase price shall be no less than the par value, if any, of the Shares to be purchased,
unless otherwise permitted by Applicable Law. In all cases, legal consideration shall be required for each issuance of Restricted Stock
to the extent required by Applicable Law.
7.2 Rights
as Stockholders. Subject to Section 7.4 hereof, upon issuance of Restricted Stock, Holder shall have, unless otherwise
provided by the Administrator, the voting rights of a stockholder with respect to said Shares, subject to the restrictions in the Plan,
any applicable Program and/or the applicable Award Agreement; provided, however, Holder shall have no rights to receive dividends as a
stockholder of the Company with respect to the Restricted Stock unless and until such Shares become fully vested and nonforfeitable.
7.3 Restrictions.
All shares of Restricted Stock (including any shares received by Holders thereof with respect to shares of Restricted Stock as a result
of stock dividends, stock splits, or any other form of recapitalization) shall be subject to such restrictions and vesting requirements
as the Administrator shall provide in the applicable Program or Award Agreement. By action taken after the Restricted Stock is issued,
the Administrator may, on such terms and conditions as it may determine to be appropriate, accelerate the vesting of such Restricted Stock
by removing any or all of the restrictions imposed by the terms of the applicable Program or Award Agreement.
7.4 Repurchase
or Forfeiture of Restricted Stock. Except as otherwise determined by the Administrator, if no price was paid by the Holder for the
Restricted Stock, upon a Termination of Service during the applicable restriction period, the Holder’s rights in unvested Restricted
Stock then subject to restrictions shall lapse, and such Restricted Stock shall be surrendered to the Company and cancelled without consideration
on the date of such Termination of Service. If a price was paid by the Holder for the Restricted Stock, upon a Termination of Service
during the applicable restriction period, the Company shall have the right to repurchase from the Holder the unvested Restricted Stock
then subject to restrictions at a cash price per share equal to the price paid by the Holder for such Restricted Stock or such other amount
as may be specified in the applicable Program or Award Agreement. Notwithstanding the foregoing, the Administrator, in its sole discretion,
may provide that upon the Holder’s death or disability or in the event of a Change in Control, the Holder’s rights in unvested
Restricted Stock then subject to restrictions shall not lapse, such Restricted Stock shall vest and cease to be forfeitable, and, if applicable,
the Company shall cease to have a right of repurchase.
7.5 Section 83(b) Election.
If a Holder makes an election under Section 83(b) of the Code to be taxed with respect to the Restricted Stock as of the date
of transfer of the Restricted Stock rather than as of the date or dates upon which the Holder would otherwise be taxable under Section 83(a) of
the Code, the Holder shall be required to deliver a copy of such election to the Company promptly after filing such election with the
Internal Revenue Service along with proof of the timely filing thereof with the Internal Revenue Service.
ARTICLE 8.
AWARD OF RESTRICTED STOCK UNITS
8.1 Grant
of Restricted Stock Units. The Administrator is authorized to grant Awards of Restricted Stock Units to any Eligible Individual selected
by the Administrator in such amounts and subject to such terms and conditions as determined by the Administrator.
8.2 Term.
Except as otherwise provided herein, the term of a Restricted Stock Unit award shall be set by the Administrator in its sole discretion.
8.3 Purchase
Price. The Administrator shall specify the purchase price, if any, to be paid by the Holder to the Company with respect to any Restricted
Stock Unit award; provided, however, that value of the consideration shall not be less than the par value of a Share, unless
otherwise permitted by Applicable Law.
8.4 Vesting
of Restricted Stock Units. At the time of grant, the Administrator shall specify the date or dates on which the Restricted Stock Units
shall become fully vested and nonforfeitable, and may specify such conditions to vesting as it deems appropriate, including, without limitation,
vesting based upon the Holder’s duration of service to the Company or any Subsidiary, one or more Performance Criteria, Company
performance, individual performance, or other specific criteria, in each case on a specified date or dates or over any period or periods,
as determined by the Administrator.
8.5 Maturity
and Payment. At the time of grant, the Administrator shall specify the maturity date applicable to each grant of Restricted Stock
Units, which shall be no earlier than the vesting date or dates of the Award and may be determined at the election of the Holder (if permitted
by the applicable Award Agreement); provided that, except as otherwise determined by the Administrator, and subject to compliance
with Section 409A, in no event shall the maturity date relating to each Restricted Stock Unit occur following the later of (a) the
15th day of the third month following the end of calendar year in which the applicable portion of the Restricted Stock
Unit vests; or (b) the 15th day of the third month following the end of the Company’s fiscal year in which
the applicable portion of the Restricted Stock Unit vests. On the maturity date, the Company shall, in accordance with the applicable
Award Agreement and subject to Section 10.4(f) hereof, transfer to the Holder one unrestricted, fully transferable Share
for each Restricted Stock Unit scheduled to be paid out on such date and not previously forfeited, or in the sole discretion of the Administrator,
an amount in cash equal to the Fair Market Value of such Shares on the maturity date or a combination of cash and Common Stock as determined
by the Administrator.
8.6 Payment
upon Termination of Service. An Award of Restricted Stock Units shall only be payable while the Holder is an Employee, a Consultant,
or a Director, as applicable; provided, however, that the Administrator, in its sole discretion, may provide (in an Award
Agreement or otherwise) that vesting of a Restricted Stock Unit award may be accelerated upon a Termination of Service in the event of
the Holder’s death or disability or upon a Change in Control.
ARTICLE 9.
AWARD OF OTHER STOCK OR CASH BASED AWARDS AND DIVIDEND EQUIVALENTS
9.1 Other
Stock or Cash Based Awards. The Administrator is authorized to grant Other Stock or Cash Based Awards, including awards entitling
a Holder to receive Shares or cash to be delivered immediately or in the future, to any Eligible Individual. Subject to the provisions
of the Plan and any applicable Program, the Administrator shall determine the terms and conditions of each Other Stock or Cash Based Award,
including the term of the Award, any exercise or purchase price, performance goals, including the Performance Criteria, transfer restrictions,
vesting conditions, and other terms and conditions applicable thereto, which shall be set forth in the applicable Award Agreement. Other
Stock or Cash Based Awards may be paid in cash, Shares, or a combination of cash and Shares, as determined by the Administrator, and may
be available as a form of payment in the settlement of other Awards granted under the Plan, as stand-alone payments, as a part of a bonus,
deferred bonus, deferred compensation, or other arrangement, and/or as payment in lieu of compensation to which an Eligible Individual
is otherwise entitled.
9.2 Dividend
Equivalents. Dividend Equivalents may be granted by the Administrator, either alone or in tandem with another Award, based on dividends
declared on the Common Stock, to be credited as of dividend payment dates during the period between the date the Dividend Equivalents
are granted to a Holder and the date such Dividend Equivalents terminate or expire, as determined by the Administrator. Such Dividend
Equivalents shall be converted to cash or additional Shares by such formula and at such time and subject to such restrictions and limitations
as may be determined by the Administrator. No Dividend Equivalent shall be paid with respect to an Award that has not fully vested. Dividend
Equivalents with respect to an Award with performance-based vesting that are based on dividends declared prior to the vesting of such
Award shall only be paid out to the Holder to the extent that the performance-based vesting conditions are subsequently satisfied and
the Award vests. Notwithstanding the foregoing, no Dividend Equivalents shall be payable with respect to Options or Stock Appreciation
Rights.
ARTICLE 10.
ADDITIONAL TERMS OF AWARDS
10.1 Payment.
The Administrator shall determine the method or methods by which payments by any Holder with respect to any Awards granted under the Plan
shall be made, including, without limitation: (a) cash or check, (b) Shares (including, in the case of payment of the exercise
price of an Award, Shares issuable pursuant to the exercise of the Award) or Shares held for such minimum period of time as may be established
by the Administrator, in each case, having a Fair Market Value on the date of delivery equal to the aggregate payments required, (c) delivery
of a written or electronic notice that the Holder has placed a market sell order with a broker acceptable to the Company with respect
to Shares then issuable upon exercise or vesting of an Award, and that the broker has been directed to pay a sufficient portion of the
net proceeds of the sale to the Company in satisfaction of the aggregate payments required; provided that payment of such proceeds
is then made to the Company upon settlement of such sale, (d) other form of legal consideration acceptable to the Administrator in
its sole discretion, or (e) any combination of the above permitted forms of payment. Notwithstanding any other provision of the Plan
to the contrary, no Holder who is a Director or an “executive officer” of the Company within the meaning of Section 13(k) of
the Exchange Act shall be permitted to make payment with respect to any Awards granted under the Plan, or continue any extension of credit
with respect to such payment, with a loan from the Company or a loan arranged by the Company in violation of Section 13(k) of
the Exchange Act.
10.2 Tax
Withholding. The Company or any Subsidiary shall have the authority and the right to deduct or withhold, or require a Holder to remit
to the Company, an amount sufficient to satisfy federal, state, local, and foreign taxes (including the Holder’s FICA, employment
tax, or other social security contribution obligation) required by law to be withheld with respect to any taxable event concerning a Holder
arising as a result of the Plan or any Award. The Administrator may, in its sole discretion and in satisfaction of the foregoing requirement,
allow a Holder to satisfy such obligations by any payment means described in Section 10.1 hereof, including, without limitation,
by allowing such Holder to have the Company or any Subsidiary withhold Shares otherwise issuable under an Award (or allow the surrender
of Shares). The number of Shares which may be so withheld or surrendered shall be limited to the number of Shares which have a fair market
value on the date of withholding or repurchase no greater than the aggregate amount of such liabilities based on the maximum statutory
withholding rates for federal, state, local, and foreign income tax and payroll tax purposes for the applicable jurisdiction (or such
other number as would not result in adverse financial accounting consequences for the Company or any of its Subsidiaries). The Administrator
shall determine the fair market value of the Shares, consistent with applicable provisions of the Code, for tax withholding obligations
due in connection with a broker-assisted cashless Option or Stock Appreciation Right exercise involving the sale of Shares to pay the
Option or Stock Appreciation Right exercise price or any tax withholding obligation.
10.3 Transferability
of Awards.
(a) Except
as otherwise provided in Sections 10.3(b) and 10.3(c) hereof:
(i) No
Award under the Plan may be sold, pledged, assigned, or transferred in any manner other than (A) by will or the laws of descent and
distribution or (B) subject to the consent of the Administrator, pursuant to a DRO, unless and until such Award has been exercised
or the Shares underlying such Award have been issued, and all restrictions applicable to such Shares have lapsed;
(ii) No
Award or interest or right therein shall be liable for or otherwise subject to the debts, contracts, or engagements of the Holder or the
Holder’s successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, hypothecation,
encumbrance, assignment, or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy,
attachment, garnishment, or any other legal or equitable proceedings (including bankruptcy) unless and until such Award has been exercised,
or the Shares underlying such Award have been issued, and all restrictions applicable to such Shares have lapsed, and any attempted disposition
of an Award prior to satisfaction of these conditions shall be null and void and of no effect, except to the extent that such disposition
is permitted by Section 10.3(a)(i) hereof; and
(iii) During
the lifetime of the Holder, only the Holder may exercise any exercisable portion of an Award granted to such Holder under the Plan, unless
it has been disposed of pursuant to a DRO. After the death of the Holder, any exercisable portion of an Award may, prior to the time when
such portion becomes unexercisable under the Plan or the applicable Program or Award Agreement, be exercised by the Holder’s personal
representative or by any person empowered to do so under the deceased Holder’s will or under the then-applicable laws of descent
and distribution.
(b) Notwithstanding
Section 10.3(a) hereof, the Administrator, in its sole discretion, may determine to permit a Holder or a Permitted Transferee
of such Holder to transfer an Award other than an Incentive Stock Option (unless such Incentive Stock Option is intended to become a Nonqualified
Stock Option) to any one or more Permitted Transferees of such Holder, subject to the following terms and conditions: (i) an Award
transferred to a Permitted Transferee shall not be assignable or transferable by the Permitted Transferee other than (A) to another
Permitted Transferee of the applicable Holder or (B) by will or the laws of descent and distribution or, subject to the consent of
the Administrator, pursuant to a DRO; (ii) an Award transferred to a Permitted Transferee shall continue to be subject to all the
terms and conditions of the Award as applicable to the original Holder (other than the ability to further transfer the Award to any Person
other than another Permitted Transferee of the applicable Holder); and (iii) the Holder (or transferring Permitted Transferee) and
the receiving Permitted Transferee shall execute any and all documents requested by the Administrator, including, without limitation documents
to (A) confirm the status of the transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the
transfer under Applicable Law, and (C) evidence the transfer. In addition, and further notwithstanding Section 10.3(a) hereof,
the Administrator, in its sole discretion, may determine to permit a Holder to transfer Incentive Stock Options to a trust that constitutes
a Permitted Transferee if, under Section 671 of the Code and other Applicable Law, the Holder is considered the sole beneficial owner
of the Incentive Stock Option while it is held in the trust.
(c) Notwithstanding
Section 10.3(a) hereof, a Holder may, in the manner determined by the Administrator, designate a beneficiary to exercise
the rights of the Holder and to receive any distribution with respect to any Award upon the Holder’s death. A beneficiary, legal
guardian, legal representative, or other person claiming any rights pursuant to the Plan is subject to all terms and conditions of the
Plan and any Program or Award Agreement applicable to the Holder and any additional restrictions deemed necessary or appropriate by the
Administrator. If the Holder is married or a domestic partner in a domestic partnership qualified under Applicable Law and resides in
a community property state, a designation of a person other than the Holder’s spouse or domestic partner, as applicable, as the
Holder’s beneficiary with respect to more than 50% of the Holder’s interest in the Award shall not be effective without the
prior written or electronic consent of the Holder’s spouse or domestic partner. If no beneficiary has been designated or survives
the Holder, payment shall be made to the person entitled thereto pursuant to the Holder’s will or the laws of descent and distribution.
Subject to the foregoing, a beneficiary designation may be changed or revoked by a Holder at any time; provided that the change
or revocation is delivered in writing to the Administrator prior to the Holder’s death.
10.4 Conditions
to Issuance of Shares.
(a) The
Administrator shall determine the methods by which Shares shall be delivered or deemed to be delivered to Holders. Notwithstanding anything
herein to the contrary, the Company shall not be required to issue or deliver any certificates or make any book entries evidencing Shares
pursuant to the exercise of any Award, unless and until the Administrator has determined, with advice of counsel, that the issuance of
such Shares is in compliance with Applicable Law and the Shares are covered by an effective registration statement or applicable exemption
from registration. In addition to the terms and conditions provided herein, the Administrator may require that a Holder make such reasonable
covenants, agreements, and representations as the Administrator, in its sole discretion, deems advisable in order to comply with Applicable
Law.
(b) All
share certificates delivered pursuant to the Plan and all Shares issued pursuant to book entry procedures are subject to any stop-transfer
orders and other restrictions as the Administrator deems necessary or advisable to comply with Applicable Law. The Administrator may place
legends on any share certificate or book entry to reference restrictions applicable to the Shares (including, without limitation, restrictions
applicable to Restricted Stock).
(c) The
Administrator shall have the right to require any Holder to comply with any timing or other restrictions with respect to the settlement,
distribution, or exercise of any Award, including a window-period limitation, as may be imposed in the sole discretion of the Administrator.
(d) No
fractional Shares shall be issued and the Administrator, in its sole discretion, shall determine whether cash shall be given in lieu of
fractional Shares or whether such fractional Shares shall be eliminated by rounding down.
(e) The
Company, in its sole discretion, may (i) retain physical possession of any stock certificate evidencing Shares until any restrictions
thereon shall have lapsed and/or (ii) require that the stock certificates evidencing such Shares be held in custody by a designated
escrow agent (which may but need not be the Company) until the restrictions thereon shall have lapsed, and that the Holder deliver a stock
power, endorsed in blank, relating to such Shares.
(f) Notwithstanding
any other provision of the Plan, unless otherwise determined by the Administrator or required by Applicable Law, the Company shall not
deliver to any Holder certificates evidencing Shares issued in connection with any Award and instead such Shares shall be recorded in
the books of the Company (or, as applicable, its transfer agent or stock plan administrator).
10.5 Forfeiture
and Clawback Provisions. All Awards (including any proceeds, gains, or other economic benefit actually or constructively received
by a Holder upon any receipt or exercise of any Award or upon the receipt or resale of any Shares underlying the Award and any payments
of a portion of an incentive-based bonus pool allocated to a Holder) shall be subject to the Company’s Clawback Policy, to the extent
set forth in the Company’s Clawback Policy and/or in the applicable Award Agreement. By accepting an Award, a Holder is agreeing
to be bound by the Company’s Clawback Policy, as in effect or as may be adopted, restated, and/or modified from time to time by
the Company in its discretion (including, without limitation, to comply with Applicable Law). Any right of recoupment under the Company’s
Clawback Policy or any other similar policy is in addition to, and not in lieu of, any other legal remedies available to the Company.
10.6 Prohibition
on Repricing. Subject to Section 12.2 hereof, the Administrator shall not, without the approval of the stockholders of
the Company, (a) authorize the amendment of any outstanding Option or Stock Appreciation Right to reduce its price per Share, or
(b) cancel any Option or Stock Appreciation Right in exchange for cash or another Award when the Option or Stock Appreciation Right
price per Share exceeds the Fair Market Value of the underlying Shares. Furthermore, for purposes of this Section 10.6, except
in connection with a corporate transaction involving the Company (including, without limitation, any stock dividend, stock split, extraordinary
cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, or exchange of shares), the terms
of outstanding Awards may not be amended to reduce the exercise price per Share of outstanding Options or Stock Appreciation Rights or
cancel outstanding Options or Stock Appreciation Rights in exchange for cash, other Awards, or Options or Stock Appreciation Rights with
an exercise price per Share that is less than the exercise price per Share of the original Options or Stock Appreciation Rights without
the approval of the stockholders of the Company.
10.7 Amendment
of Awards. Subject to Applicable Law, the Administrator may amend, modify, or terminate any outstanding Award, including but not limited
to, substituting therefor another Award of the same or a different type, changing the date of exercise or settlement, and converting an
Incentive Stock Option to a Non-Qualified Stock Option. The Holder’s consent to such action shall be required unless (a) the
Administrator determines that the action, taking into account any related action, would not materially and adversely affect the Holder,
or (b) the change is otherwise permitted under the Plan (including, without limitation, under Section 12.2 or 12.10
hereof).
10.8 Data
Privacy. As a condition of receipt of any Award, each Holder explicitly and unambiguously consents to the collection, use, and transfer,
in electronic or other form, of personal data as described in this Section 10.8 by and among, as applicable, the Company and
its Subsidiaries for the exclusive purpose of implementing, administering, and managing the Holder’s participation in the Plan.
The Company and its Subsidiaries may hold certain personal information about a Holder, including but not limited to, the Holder’s
name, home address and telephone number, date of birth, social security or insurance number or other identification number, salary, nationality,
job title(s), any shares of stock held in the Company or any of its Subsidiaries, or details of all Awards, in each case, for the purpose
of implementing, managing, and administering the Plan and Awards (the “Data”). The Company and its Subsidiaries may
transfer the Data amongst themselves as necessary for the purpose of implementation, administration, and management of a Holder’s
participation in the Plan, and the Company and its Subsidiaries may each further transfer the Data to any third parties assisting the
Company and its Subsidiaries in the implementation, administration, and management of the Plan. These recipients may be located in the
Holder’s country, or elsewhere, and the Holder’s country may have different data privacy laws and protections than the recipients’
country. Through acceptance of an Award, each Holder authorizes such recipients to receive, possess, use, retain, and transfer the Data,
in electronic or other form, for the purposes of implementing, administering, and managing the Holder’s participation in the Plan,
including any requisite transfer of such Data as may be required to a broker or other third party with whom the Company or any of its
Subsidiaries or the Holder may elect to deposit any Shares. The Data related to a Holder will be held only as long as is necessary to
implement, administer, and manage the Holder’s participation in the Plan. A Holder may, at any time, view the Data held by the Company
with respect to such Holder, request additional information about the storage and processing of the Data with respect to such Holder,
recommend any necessary corrections to the Data with respect to the Holder, or refuse or withdraw the consents herein in writing, in any
case without cost, by contacting his or her local human resources representative. The Company may cancel a Holder’s ability to participate
in the Plan and, in the Administrator’s discretion, the Holder may forfeit any outstanding Awards if the Holder refuses or withdraws
his or her consents as described herein. For more information on the consequences of refusal to consent or withdrawal of consent, Holders
may contact their local human resources representative.
10.9 Chief
Executive Officer Grants and Minimum Holding Period. All Awards made or granted to the Chief Executive Officer of the Company shall
provide that any Shares received in connection with the exercise or vesting thereof shall be subject to an additional one-year holding
period before any sale or transfer, of such Shares may take place, other than with respect to any Shares withheld by the Company to satisfy
the Chief Executive Officer’s withholding tax obligation in connection with an Award or in the event of the Chief Executive Officer’s
death or disability or a Change in Control.
ARTICLE 11.
ADMINISTRATION
11.1 Administrator.
The Committee shall administer the Plan (except as otherwise permitted herein). To the extent necessary to comply with Rule 16b-3
of the Exchange Act, the Committee shall take all action with respect to such Awards, and the individuals taking such action shall consist
solely of two or more Non-Employee Directors, each of whom is intended to qualify as a “non-employee director” as defined
by Rule 16b-3 of the Exchange Act or any successor rule. Additionally, to the extent required by Applicable Law, each of the individuals
constituting the Committee shall be an “independent director” under the rules of any securities exchange or automated
quotation system on which the Shares are listed, quoted, or traded. Notwithstanding the foregoing, any action taken by the Committee shall
be valid and effective, whether or not members of the Committee at the time of such action are later determined not to have satisfied
the requirements for membership set forth in this Section 11.1 or the Organizational Documents. Except as may otherwise
be provided in the Organizational Documents or as otherwise required by Applicable Law, (a) appointment of Committee members shall
be effective upon acceptance of appointment, (b) Committee members may resign at any time by delivering written or electronic notice
to the Board, and (c) vacancies in the Committee may only be filled by the Board. Notwithstanding the foregoing, (i) the full
Board, acting by a majority of its members in office, shall conduct the general administration of the Plan with respect to Awards granted
to Non-Employee Directors and, with respect to such Awards, the term “Administrator” as used in the Plan shall be deemed to
refer to the Board and (ii) the Board or Committee may delegate its authority hereunder to the extent permitted by Section 11.6
hereof.
11.2 Duties
and Powers of Administrator. It shall be the duty of the Administrator to conduct the general administration of the Plan in accordance
with its provisions. The Administrator shall have the power to interpret the Plan, all Programs, and Award Agreements, and to adopt such
rules for the administration, interpretation, and application of the Plan and any Program as are not inconsistent with the Plan,
to interpret, amend, or revoke any such rules and to amend the Plan or any Program or Award Agreement; provided that the rights
or obligations of the Holder of the Award that is the subject of any such Program or Award Agreement are not materially and adversely
affected by such amendment, unless the consent of the Holder is obtained or such amendment is otherwise permitted under Section 10.5
or 12.10 hereof. In its sole discretion, the Board may at any time and from time to time exercise any and all rights and duties
of the Committee in its capacity as the Administrator under the Plan except with respect to matters which under Rule 16b-3 under
the Exchange Act or any successor rule or the rules of any securities exchange or automated quotation system on which the Shares
are listed, quoted, or traded are required to be determined in the sole discretion of the Committee.
11.3 Action
by the Administrator. Unless otherwise established by the Board, set forth in any Organizational Documents, or as required by Applicable
Law, a majority of the Administrator shall constitute a quorum and the acts of a majority of the members present at any meeting at which
a quorum is present, and acts approved in writing by all members of the Administrator in lieu of a meeting, shall be deemed the acts of
the Administrator. Each member of the Administrator is entitled to, in good faith, rely or act upon any report or other information furnished
to that member by any officer or other employee of the Company or any Subsidiary, the Company’s independent certified public accountants,
or any executive compensation consultant or other professional retained by the Company to assist in the administration of the Plan.
11.4 Authority
of Administrator. Subject to the Organizational Documents, any specific designation in the Plan, and Applicable Law, the Administrator
has the exclusive power, authority, and sole discretion to:
(a) Designate
Eligible Individuals to receive Awards;
(b) Determine
the type or types of Awards to be granted to each Eligible Individual (including, without limitation, any Awards granted in tandem with
another Award granted pursuant to the Plan);
(c) Determine
the number of Awards to be granted and the number of Shares to which an Award will relate;
(d) Determine
the terms and conditions of any Award granted pursuant to the Plan, including, but not limited to, the exercise price, grant price, purchase
price, any Performance Criteria or performance criteria, any restrictions or limitations on the Award, any schedule for vesting, lapse
of forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations or waivers thereof, and any provisions
related to non-competition and claw-back and recapture of gain on an Award, based in each case on such considerations as the Administrator
in its sole discretion determines; provided, however, the minimum vesting period for any Award shall be one (1) year and an Award’s
vesting or lapse of restrictions may only be accelerated, in whole or in part, in the event of a Holder’s death or disability or
a Change in Control;
(e) Determine
whether, to what extent, and under what circumstances an Award may be settled in, or the exercise price of an Award may be paid in cash,
Shares, other Awards, or other property, or an Award may be canceled, forfeited, or surrendered;
(f) Prescribe
the form of each Award Agreement, which need not be identical for each Holder;
(g) Decide
all other matters that must be determined in connection with an Award;
(h) Establish,
adopt, or revise any Programs, rules, and regulations as it may deem necessary or advisable to administer the Plan;
(i) Interpret
the terms of, and any matter arising pursuant to, the Plan, any Program, or any Award Agreement;
(j) Make
all other decisions and determinations that may be required pursuant to the Plan or as the Administrator deems necessary or advisable
to administer the Plan; and
(k) In
the event of a Holder’s death or disability or a Change in Control, accelerate wholly or partially the vesting or lapse of restrictions
of any Award or portion thereof at any time after the grant of an Award, subject to whatever terms and conditions it selects and Section 12.2
hereof.
11.5 Decisions
Binding. The Administrator’s interpretation of the Plan, any Awards granted pursuant to the Plan, any Program, or any Award
Agreement and all decisions and determinations by the Administrator with respect to the Plan are final, binding, and conclusive on all
Persons.
11.6 Delegation
of Authority. The Board or Committee may from time to time delegate to a committee of one or more members of the Board or one or more
officers of the Company the authority to grant or amend Awards or to take other administrative actions pursuant to this Article 11;
provided, however, that in no event shall an officer of the Company be delegated the authority to grant Awards to, or amend
Awards held by, the following individuals: (a) individuals who are subject to Section 16 of the Exchange Act, or (b) officers
of the Company (or Directors) to whom authority to grant or amend Awards has been delegated hereunder; provided, further,
that any delegation of administrative authority shall only be permitted to the extent it is permissible under any Organizational Documents
and Applicable Law. Any delegation hereunder shall be subject to the restrictions and limits that the Board or Committee specifies at
the time of such delegation or that are otherwise included in the applicable Organizational Documents, and the Board or Committee, as
applicable, may at any time rescind the authority so delegated or appoint a new delegatee. At all times, the delegatee appointed under
this Section 11.6 shall serve in such capacity at the pleasure of the Board or the Committee, as applicable, and the Board
or the Committee may abolish any committee at any time and re-vest in itself any previously delegated authority.
ARTICLE 12.
MISCELLANEOUS PROVISIONS
12.1 Amendment,
Suspension or Termination of the Plan.
(a) Except
as otherwise provided in Section 12.1(b) hereof, the Plan may be wholly or partially amended or otherwise modified, suspended,
or terminated at any time or from time to time by the Board; provided that, except as provided in Sections 10.5 and
12.10, no amendment, suspension, or termination of the Plan shall, without the consent of the Holder, materially and adversely
affect any rights or obligations under any Award theretofore granted or awarded, unless the Award itself otherwise expressly so provides.
(b) Notwithstanding
Section 12.1(a) hereof, the Board may not, except as provided in Section 12.2 hereof, take any of the following
actions without approval of the Company’s stockholders given within 12 months before or after such action: (i) increase
the limit imposed in Section 3.1 hereof on the maximum number of Shares which may be issued under the Plan or the Award Limit,
(ii) reduce the price per share of any outstanding Option or Stock Appreciation Right granted under the Plan or take any action prohibited
under Section 10.6 hereof, or (iii) cancel any Option or Stock Appreciation Right in exchange for cash or another Award
in violation of Section 10.6 hereof.
(c) No
Awards may be granted or awarded during any period of suspension or after termination of the Plan, and notwithstanding anything herein
to the contrary, in no event may any Award be granted under the Plan after the 5th anniversary of the earlier of (i) the
date on which the Plan was adopted by the Board or (ii) the date the Plan was approved by the Company’s stockholders (such
anniversary, the “Expiration Date”). Any Awards that are outstanding on the Expiration Date shall remain in force according
to the terms of the Plan, the applicable Program, and the applicable Award Agreement.
12.2 Changes
in Common Stock or Assets of the Company, Acquisition or Liquidation of the Company, and Other Corporate Events.
(a) In
the event of any stock dividend, stock split, combination, or exchange of shares, merger, consolidation, or other distribution (other
than normal cash dividends) of Company assets to stockholders, or any other change affecting the shares of the Company’s stock or
the share price of the Company’s stock other than an Equity Restructuring, the Administrator may make equitable adjustments, if
any, to reflect such change with respect to: (i) the aggregate number and kind of Shares that may be issued under the Plan (including,
but not limited to, adjustments of the limitations in Section 3.1 hereof on the maximum number and kind of Shares which may
be issued under the Plan, and adjustments of the Award Limit); (ii) the number and kind of Shares (or other securities or property)
subject to outstanding Awards; (iii) the terms and conditions of any outstanding Awards (including, without limitation, any applicable
performance targets or criteria with respect thereto); and (iv) the grant or exercise price per share for any outstanding Awards
under the Plan.
(b) In
the event of any transaction or event described in Section 12.2(a) hereof or any unusual or nonrecurring transactions
or events affecting the Company, any Subsidiary of the Company, or the financial statements of the Company or any Subsidiary, or of changes
in Applicable Law or Applicable Accounting Standards, the Administrator, in its sole discretion, and on such terms and conditions as it
deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction or event, is hereby
authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order
to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect
to any Award under the Plan, to facilitate such transactions or events, or to give effect to such changes in Applicable Law or Applicable
Accounting Standards:
(i) To
provide for the termination of any such Award in exchange for an amount of cash and/or other property with a value equal to the amount
that would have been attained upon the exercise of such Award or realization of the Holder’s rights (and, for the avoidance of doubt,
if as of the date of the occurrence of the transaction or event described in this Section 12.2 the Administrator determines
in good faith that no amount would have been attained upon the exercise of such Award or realization of the Holder’s rights, then
such Award may be terminated by the Company without payment);
(ii) To
provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted
for by similar options, rights, or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and applicable exercise or purchase price, in all cases, as determined
by the Administrator;
(iii) To
make adjustments in the number and type of Shares of the Company’s stock (or other securities or property) subject to outstanding
Awards, and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding Awards
and Awards which may be granted in the future;
(iv) To
provide that such Award shall be exercisable or payable or fully vested with respect to all Shares covered thereby, notwithstanding anything
to the contrary in the Plan or the applicable Program or Award Agreement;
(v) To
replace such Award with other rights or property selected by the Administrator; and/or
(vi) To
provide that the Award cannot vest, be exercised, or become payable after such event.
(c) In
connection with the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in Sections 12.2(a) and
12.2(b) hereof:
(i) The
number and type of securities subject to each outstanding Award and the exercise price or grant price thereof, if applicable, shall be
equitably adjusted (and the adjustments provided under this Section 12.2(c)(i) shall be nondiscretionary and shall be
final and binding on the affected Holder and the Company); and/or
(ii) The
Administrator shall make such equitable adjustments, if any, as the Administrator, in its sole discretion, may deem appropriate to reflect
such Equity Restructuring with respect to the aggregate number and kind of Shares that may be issued under the Plan (including, but not
limited to, adjustments of the limitation in Section 3.1 hereof on the maximum number and kind of Shares which may be issued
under the Plan, and adjustments of the Award Limit).
(d) Notwithstanding
any other provision of the Plan, in the event of a Change in Control, each outstanding Award shall automatically become fully exercisable
and no longer subject to any forfeiture restrictions immediately prior to the consummation of a Change in Control. With respect to Awards
with performance-based vesting, in the event of a Change in Control, all Performance Goals or other vesting criteria will be deemed achieved
at 100% of target levels and all other terms and conditions will be deemed met.
(e) In
the event that the successor corporation in a Change in Control refuses to assume or substitute for an Award, the Administrator may cause
any or all of such Award (or portion thereof) to terminate in exchange for cash, rights, or other property pursuant to Section 12.2(b)(i) hereof.
If any such Award is exercisable in lieu of assumption or substitution in the event of a Change in Control, the Administrator shall notify
the Holder that such Award shall be fully exercisable for a period of 15 days from the date of such notice, contingent upon the occurrence
of the Change in Control, and such Award shall terminate upon the expiration of such period.
(f) For
the purposes of this Section 12.2, an Award shall be considered assumed if, following the Change in Control, the Award confers
the right to purchase or receive, for each Share subject to the Award immediately prior to the Change in Control, the consideration (whether
stock, cash, or other securities or property) received in the Change in Control by holders of Common Stock for each Share held on the
effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders
of a majority of the outstanding Shares); provided, however, that if such consideration received in the Change in Control
was not solely common stock of the successor corporation or its parent, the Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of the Award, for each Share subject to an Award, to be solely common stock
of the successor corporation or its parent equal in fair market value to the per-share consideration received by holders of Common Stock
in the Change in Control.
(g) The
Administrator, in its sole discretion, may include such further provisions and limitations in any Award, agreement, or certificate, as
it may deem equitable and in the best interests of the Company that are not inconsistent with the provisions of the Plan.
(h) Unless
otherwise determined by the Administrator, no adjustment or action described in this Section 12.2 or in any other provision
of the Plan shall be authorized to the extent it would (i) cause the Plan to violate Section 422(b) of the Code, (ii) result
in short-swing profits liability under Section 16 of the Exchange Act or violate the exemptive conditions of Rule 16b-3 of the
Exchange Act, or (iii) cause an Award to fail to be exempt from or comply with Section 409A.
(i) The
existence of the Plan, any Program, any Award Agreement, and/or the Awards granted hereunder shall not affect or restrict in any way the
right or power of the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization,
or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock
or of options, warrants, or rights to purchase stock, or of bonds, debentures, preferred or prior preference stocks whose rights are superior
to or affect the Common Stock or the rights thereof or which are convertible into or exchangeable for Common Stock, or the dissolution
or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
(j) In
the event of any pending stock dividend, stock split, combination, or exchange of shares, merger, consolidation, or other distribution
(other than normal cash dividends) of Company assets to stockholders, or any other change affecting the Shares or the share price of the
Common Stock including any Equity Restructuring, for reasons of administrative convenience, the Administrator, in its sole discretion,
may refuse to permit the exercise of any Award during a period of up to 30 days prior to the consummation of any such transaction.
12.3 Approval
of Plan by Stockholders. The Plan shall be submitted for the approval of the Company’s stockholders within 12 months after
the date of the Board’s initial adoption of the Plan. Awards may be granted or awarded prior to such stockholder approval; provided
that such Awards shall not be exercisable, shall not vest, and the restrictions thereon shall not lapse and no Shares shall be issued
pursuant thereto prior to the time when the Plan is approved by the Company’s stockholders; and provided, further,
that if such approval has not been obtained at the end of said 12-month period, all Awards previously granted or awarded under the Plan
shall thereupon be canceled and become null and void.
12.4 No
Stockholders Rights. Except as otherwise provided herein or in an applicable Program or Award Agreement, a Holder shall have none
of the rights of a stockholder with respect to Shares covered by any Award until the Holder becomes the record owner of such Shares.
12.5 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 Holder may be permitted through the use of such an automated system.
12.6 Effect
of Plan upon Other Compensation Plans. The adoption of the Plan shall not affect any other compensation or incentive plans in effect
for the Company or any Subsidiary. Nothing in the Plan shall be construed to limit the right of the Company or any Subsidiary: (a) to
establish any other forms of incentives or compensation for Employees, Directors, or Consultants of the Company or any Subsidiary, or
(b) to grant or assume options or other rights or awards otherwise than under the Plan in connection with any proper corporate purpose
including, without limitation, the grant or assumption of options in connection with the acquisition by purchase, lease, merger, consolidation,
or otherwise, of the business, stock, or assets of any corporation, partnership, limited liability company, firm, or association.
12.7 Compliance
with Laws. The Plan, the granting, and vesting of Awards under the Plan and the issuance and delivery of Shares and the payment of
money under the Plan or under Awards granted or awarded hereunder are subject to compliance with all Applicable Law (including but not
limited to state, federal, and foreign securities law and margin requirements), and to such approvals by any listing, regulatory, or governmental
authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Any securities delivered
under the Plan shall be subject to such restrictions, and the person acquiring such securities shall, if requested by the Company, provide
such assurances and representations to the Company as the Company may deem necessary or desirable to assure compliance with all Applicable
Law. The Administrator, in its sole discretion, may take whatever actions it deems necessary or appropriate to effect compliance with
Applicable Law, including, without limitation, placing legends on share certificates and issuing stop-transfer notices to agents and registrars.
Notwithstanding anything to the contrary herein, the Administrator may not take any actions hereunder, and no Awards shall be granted,
that would violate Applicable Law. To the extent permitted by Applicable Law, the Plan and Awards granted or awarded hereunder shall be
deemed amended to the extent necessary to conform to Applicable Law.
12.8 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.
12.9 Governing
Law. The Plan and any Programs and Award Agreements hereunder shall be administered, interpreted, and enforced under the internal
laws of the State of Delaware without regard to conflicts of laws thereof or of any other jurisdiction.
12.10 Section 409A.
To the extent that the Administrator determines that any Award granted under the Plan is subject to Section 409A, the Plan, the Program
pursuant to which such Award is granted, and the Award Agreement evidencing such Award shall incorporate the terms and conditions required
by Section 409A. In that regard, to the extent any Award under the Plan or any other compensatory plan or arrangement of the Company
or any of its Subsidiaries is subject to Section 409A, and such Award or other amount is payable on account of a Participant’s
Termination of Service (or any similarly defined term), then (a) such Award or amount shall only be paid to the extent such Termination
of Service qualifies as a “separation from service” as defined in Section 409A, and (b) if such Award or amount
is payable to a “specified employee” as defined in Section 409A then to the extent required in order to avoid a prohibited
distribution under Section 409A, such Award or other compensatory payment shall not be payable prior to the earlier of (i) the
expiration of the six-month period measured from the date of the Participant’s Termination of Service, or (ii) the date of
the Participant’s death. To the extent applicable, the Plan, the Program, and any Award Agreements shall be interpreted in accordance
with Section 409A. Notwithstanding any provision of the Plan to the contrary, in the event that the Administrator determines that
any Award may be subject to Section 409A, the Administrator may (but is not obligated to), without a Holder’s consent, adopt
such amendments to the Plan and the applicable Program and Award Agreement or adopt other policies and procedures (including amendments,
policies, and procedures with retroactive effect), or take any other actions, that the Administrator determines are necessary or appropriate
to (A) exempt the Award from Section 409A and/or preserve the intended tax treatment of the benefits provided with respect to
the Award, or (B) comply with the requirements of Section 409A and thereby avoid the application of any penalty taxes under
Section 409A. The Company makes no representations or warranties as to the tax treatment of any Award under Section 409A or
otherwise. The Company shall have no obligation under this Section 12.10 or otherwise to take any action (whether or not described
herein) to avoid the imposition of taxes, penalties, or interest under Section 409A with respect to any Award and shall have no liability
to any Holder or any other person if any Award, compensation, or other benefits under the Plan are determined to constitute non-compliant,
“nonqualified deferred compensation” subject to the imposition of taxes, penalties, and/or interest under Section 409A.
12.11 Unfunded
Status of Awards. The Plan is intended to be an “unfunded” plan for incentive compensation. With respect to any payments
not yet made to a Holder pursuant to an Award, nothing contained in the Plan or any Program or Award Agreement shall give the Holder any
rights that are greater than those of a general creditor of the Company or any Subsidiary.
12.12 Indemnification.
To the extent permitted under Applicable Law and the Organizational Documents, each member of the Administrator 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 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 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 persons may be entitled pursuant
to the Organizational Documents, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them
harmless.
12.13 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 Subsidiary except to the extent otherwise
expressly provided in writing in such other plan or an agreement thereunder.
12.14 Expenses.
The expenses of administering the Plan shall be borne by the Company and its Subsidiaries.
* * * * *
I hereby certify that the foregoing Plan was duly
adopted by the Board of Directors of OrthoPediatrics Corp. on February 29, 2024.
I hereby certify that the foregoing Plan was approved
by the stockholders of OrthoPediatrics Corp. on May 24, 2024.
Executed on this 24th day of May, 2024.
| |
/s/ Daniel J. Gerritzen |
| |
Daniel J. Gerritzen |
| |
Executive Vice President of Legal |
| |
Secretary |
Exhibit 10.2
ORTHOPEDIATRICS
CORP.
2024 INCENTIVE AWARD PLAN
RESTRICTED STOCK AWARD GRANT NOTICE
OrthoPediatrics Corp., a Delaware
corporation, (the “Company”), pursuant to the OrthoPediatrics Corp. 2024 Incentive Award Plan, as amended from time
to time (the “Plan”), hereby grants to the individual listed below (the “Holder”), in consideration
of the mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the number of shares of the Company’s common stock set forth below (the “Shares”). This Restricted
Stock award is subject to all of the terms and conditions as set forth herein and in the Restricted Stock Award Agreement attached hereto
as Exhibit A (the “Agreement”) (including, without limitation, the Restrictions on the Shares set forth
in the Agreement) and the Plan, each of which is incorporated herein by reference. Unless otherwise defined herein, the terms defined
in the Plan shall have the same defined meanings in this Restricted Stock Award Grant Notice (the “Grant Notice”) and
the Agreement.
| Holder: |
|
___________________ |
| |
|
|
| Grant Date: |
|
___________________ |
| |
|
|
| Total Number of Shares of Restricted Stock: |
|
________________ Shares |
| |
|
|
| Vesting Commencement Date: |
|
________________ |
| |
|
|
| Vesting Schedule: |
|
Subject to Holder’s continued employment with or service to the Company or any of its subsidiaries, one-hundred percent (100%) of the Shares shall vest on the third anniversary of the Vesting Commencement Date (the “Vesting Date”). |
| |
|
|
| Termination: |
|
If Holder experiences a Termination of Service prior to the Vesting Date, any portion of the Award (and the Shares subject thereto) that has not become vested on or prior to the date of such Termination of Service (after taking into consideration any vesting that may occur in connection with such Termination of Service, if any) will thereupon be automatically forfeited by Holder, and Holder’s rights in such portion of the Award and any Shares subject thereto shall thereupon lapse and expire. |
By his or her signature and
the Company’s signature below, Holder agrees to be bound by the terms and conditions of the Plan, the Agreement and this Grant Notice.
Holder has reviewed the Agreement, the Plan and this Grant Notice in their entirety, has had an opportunity to obtain the advice of counsel
prior to executing this Grant Notice and fully understands all provisions of this Grant Notice, the Agreement and the Plan. Holder hereby
agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under
the Plan, this Grant Notice or the Agreement. In addition, by signing below, Holder also agrees that the Company, in its sole discretion,
may satisfy any withholding obligations in accordance with Section 2.2(d) of the Agreement by (i) withholding Shares otherwise
issuable to Holder upon vesting of the shares of Restricted Stock, (ii) instructing a broker on Holder’s behalf to sell Shares
otherwise issuable to Holder upon vesting of the shares of Restricted Stock and submit the proceeds of such sale to the Company, or (iii) using
any other method permitted by Section 2.2(d) of the Agreement or the Plan. If Holder is married or part of a registered domestic
partnership, his or her spouse or domestic partner has signed the Consent of Spouse or Registered Domestic Partner attached to this Grant
Notice as Exhibit B.
| ORTHOPEDIATRICS CORP.: |
|
HOLDER: |
|
|
|
| By: |
|
|
By: |
|
| Print Name: |
|
|
Print Name: |
|
| Title: |
|
|
|
EXHIBIT A
TO RESTRICTED STOCK AWARD GRANT NOTICE
RESTRICTED
STOCK AWARD AGREEMENT
Pursuant to the Restricted
Stock Award Grant Notice (the “Grant Notice”) to which this Restricted Stock Award Agreement (this “Agreement”)
is attached, OrthoPediatrics Corp., a Delaware corporation (the “Company”), has granted to Holder the number of shares
of Restricted Stock (the “Shares”) under the OrthoPediatrics Corp. 2024 Incentive Award Plan, as amended from time
to time (the “Plan”), as set forth in the Grant Notice. Capitalized terms not specifically defined herein shall have
the meanings specified in the Plan and Grant Notice.
ARTICLE I.
general
1.1 Incorporation
of Terms of Plan. The Award (as defined below) is subject to the terms and conditions of the Plan, which are incorporated herein by
reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control.
ARTICLE II.
award of restricted stock
2.1 Award
of Restricted Stock.
(a) Award.
Pursuant to the Grant Notice and upon the terms and conditions set forth in the Plan and this Agreement, effective as of the Grant Date
set forth in the Grant Notice, the Company has granted to Holder an award of Restricted Stock (the “Award”) under the
Plan in consideration of Holder’s past and/or continued employment with or service to the Company or any affiliate, and for other
good and valuable consideration. The number of Shares subject to the Award is set forth in the Grant Notice.
(b) Book
Entry Form; Certificates. At the sole discretion of the Administrator, the Shares will be issued in either (i) uncertificated
form, with the Shares recorded in the name of Holder in the books and records of the Company’s transfer agent with appropriate notations
regarding the restrictions on transfer imposed pursuant to this Agreement, and upon vesting and the satisfaction of all conditions set
forth in Sections 2.2(b) and (d) hereof, the Company shall remove such notations on any such vested Shares in accordance with
Section 2.1(e) below; or (ii) certificated form pursuant to the terms of Sections 2.1(c), (d) and (e) below.
(c) Legend.
Certificates representing Shares issued pursuant to this Agreement shall, until all Restrictions (as defined below) imposed pursuant to
this Agreement lapse or have been removed and the Shares have thereby become vested or the Shares represented thereby have been forfeited
hereunder, bear the following legend (or such other legend as shall be determined by the Administrator):
“THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING REQUIREMENTS AND MAY BE SUBJECT TO FORFEITURE UNDER THE TERMS OF A RESTRICTED STOCK
AWARD AGREEMENT, BY AND BETWEEN ORTHOPEDIATRICS CORP. AND THE REGISTERED OWNER OF SUCH SHARES, AND SUCH SHARES MAY NOT BE, DIRECTLY
OR INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES, EXCEPT PURSUANT
TO THE PROVISIONS OF SUCH AGREEMENT.”
(d) Escrow.
The Company or such other escrow holder as the Administrator may appoint may retain physical custody of any certificates representing
the Shares until all of the Restrictions on transfer imposed pursuant to this Agreement lapse or shall have been removed; in such event,
Holder shall not retain physical custody of any certificates representing unvested Shares issued to him or her. Holder, by acceptance
of the Award, shall be deemed to appoint, and does so appoint, the Company and each of its authorized representatives as Holder’s
attorney(s)-in-fact to effect any transfer of unvested forfeited Shares (or Shares otherwise reacquired by the Company hereunder) to the
Company as may be required pursuant to the Plan or this Agreement and to execute such documents as the Company or such representatives
deem necessary or advisable in connection with any such transfer.
(e) Removal
of Notations; Delivery of Certificates Upon Vesting. As soon as administratively practicable after the vesting of any Shares subject
to the Award pursuant to Section 2.2(b) hereof, the Company shall, as applicable, either remove the notations on any Shares
subject to the Award issued in book entry form which have vested or deliver to Holder a certificate or certificates evidencing the number
of Shares subject to the Award which have vested (or, in either case, such lesser number of Shares as may be permitted pursuant to Section 10.2
of the Plan). Holder (or the beneficiary or personal representative of Holder in the event of Holder’s death or incapacity, as the
case may be) shall deliver to the Company any representations or other documents or assurances required by the Company. The Shares so
delivered shall no longer be subject to the Restrictions hereunder.
2.2 Restrictions.
(a) Forfeiture.
Notwithstanding any contrary provision of this Agreement, upon Holder’s Termination of Service for any or no reason, any portion
of the Award (and the Shares subject thereto) which has not vested prior to or in connection with such Termination of Service (after taking
into consideration any accelerated vesting and lapsing of Restrictions which may occur in connection with such Termination of Service,
if any) shall thereupon be forfeited immediately and without any further action by the Company, and Holder’s rights in any Shares
and such portion of the Award shall thereupon lapse and expire. For purposes of this Agreement, “Restrictions” shall
mean the restrictions on sale or other transfer set forth in Section 3.3 hereof and the exposure to forfeiture set forth in this
Section 2.2(a).
(b) Vesting
and Lapse of Restrictions. Subject to Section 2.2(a) above and Section 2.2(c) below, the Award shall vest and
the Restrictions shall lapse in accordance with the vesting schedule set forth in the Grant Notice (rounding down to the nearest whole
Share).
(c) Accelerated
Vesting. Subject to Section 2.2(a) above, in the event Holder incurs a Termination of Service due to Holder’s death
or disability, the Award shall vest and the Restrictions shall lapse with respect to one-hundred percent (100%) of the Shares subject
to the Award.
(d) Tax
Withholding. As set forth in Section 10.2 of the Plan, the Company shall have the authority and the right to deduct or withhold
from the Restricted Stock or other compensation, or to require Holder to remit to the Company, an amount sufficient to satisfy all applicable
federal, state and local taxes required by law to be withheld with respect to any taxable event arising in connection with the Award.
The Company shall not be obligated to deliver any new certificate representing Shares to Holder or Holder’s legal representative
or enter such Shares in book entry form unless and until Holder or Holder’s legal representative shall have paid or otherwise satisfied
in full the amount of all federal, state and local taxes applicable to the taxable income of Holder resulting from the grant or vesting
of the Award or the issuance of Shares.
(e) Conditions
to Delivery of Shares. To ensure compliance with the Restrictions, the provisions of the charter documents of the Company, and/or
Applicable Law and for other proper purposes, the Company may issue appropriate “stop transfer” and other instructions to
its transfer agent with respect to the Restricted Stock. The Company shall notify the transfer agent as and when the Restrictions lapse.
2.3 Consideration
to the Company. In consideration of the grant of the Award pursuant hereto, Holder agrees to render faithful and efficient services
to the Company or any affiliate.
ARTICLE III.
other provisions
3.1 Section 83(b) Election.
If Holder makes an election under Section 83(b) of the Code to be taxed with respect to the Restricted Stock as of the date
of transfer of the Restricted Stock rather than as of the date or dates upon which Holder would otherwise be taxable under Section 83(a) of
the Code, Holder hereby agrees to deliver a copy of such election to the Company promptly after filing such election with the Internal
Revenue Service.
3.2 Administration.
The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation
and application of the Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions taken and all interpretations
and determinations made by the Administrator in good faith shall be final and binding upon Holder, the Company and all other interested
persons. No member of the Administrator or the Board shall be personally liable for any action, determination or interpretation made in
good faith with respect to the Plan, this Agreement or the Award.
3.3 Restricted
Stock Not Transferable. Until the Restrictions hereunder lapse or expire pursuant to this Agreement and the Shares vest, the Restricted
Stock (including any Shares received by holders thereof with respect to Restricted Stock as a result of stock dividends, stock splits
or any other form of recapitalization) shall be subject to the restrictions on transferability set forth in Section 10.3 of the Plan;
provided, however, that notwithstanding this Section 3.3, with the consent of the Administrator, the Shares may be transferred
to one or more Permitted Transferees, subject to and in accordance with Section 10.3 of the Plan.
3.4 Rights
as Stockholder. Except as otherwise provided herein or in the Plan, upon the Grant Date, Holder shall have, unless otherwise provided
by the Administrator, voting rights in respect of the Shares subject to the Award and deliverable hereunder; provided, however, Holder
shall have no rights to receive dividends as a stockholder of the Company with respect to the Restricted Stock unless and until such Shares
become fully vested and nonforfeitable.
3.5 Tax
Consultation. Holder understands that Holder may suffer adverse tax consequences in connection with the Restricted Stock granted pursuant
to this Agreement (and the Shares issuable with respect thereto). Holder represents that Holder has consulted with any tax consultants
Holder deems advisable in connection with the Restricted Stock and that Holder is not relying on the Company for any tax advice.
3.6 Adjustments
Upon Specified Events. The Administrator may accelerate the vesting of the Restricted Stockin the event of Holder’s death or
disability or in the event of a Change in Control. Holder acknowledges that the Restricted Stock is subject to adjustment, modification
and termination in certain events as provided in this Agreement and Section 12.2 of the Plan.
3.7 Notices.
Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of the General Counsel
of the Company at the Company’s principal office, and any notice to be given to Holder shall be addressed to Holder at Holder’s
last address reflected on the Company’s records. By a notice given pursuant to this Section 3.7, either party may hereafter
designate a different address for notices to be given to that party. Any notice shall be deemed duly given when sent via email or when
sent by certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or branch post office regularly
maintained by the United States Postal Service.
3.8 Holder’s
Representations. If the Shares issuable hereunder have not been registered under the Securities Act or any applicable state laws on
an effective registration statement at the time of such issuance, Holder shall, if required by the Company, concurrently with such issuance,
make such written representations as are deemed necessary or appropriate by the Company and/or its counsel.
3.9 Titles.
Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.
3.10 Governing
Law. The laws of the State of Delaware shall govern the interpretation, validity, administration, enforcement and performance of the
terms of this Agreement without regard to conflicts of laws thereof or of any other jurisdiction.
3.11 Conformity
to Securities Laws. Holder acknowledges that the Plan and this Agreement are intended to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act, and any and all Applicable Law. Notwithstanding anything herein to the contrary,
the Plan shall be administered, and the Award is granted, only in such a manner as to conform to such Applicable Law. To the extent permitted
by Applicable Law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such Applicable Law.
3.12 Amendment,
Suspension and Termination. This Agreement may be amended in a writing signed by Holder and a duly authorized representative of the
Company. In addition, to the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended
or terminated at any time or from time to time by the Administrator or the Board; provided, however, that, except as may otherwise
be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall adversely affect the Award in any
material way without the prior written consent of Holder.
3.13 Successors
and Assigns. The Company or any affiliate may assign any of its rights under this Agreement to single or multiple assignees, and this
Agreement shall inure to the benefit of the successors and assigns of the Company and its affiliates. Subject to the restrictions on transfer
set forth in Section 3.3 hereof, this Agreement shall be binding upon Holder and his or her heirs, executors, administrators, successors
and assigns.
3.14 Limitations
Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if Holder is subject to
Section 16 of the Exchange Act, then the Plan, the Award and this Agreement shall be subject to any additional limitations set forth
in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange
Act) that are requirements for the application of such exemptive rule. To the extent permitted by applicable law, this Agreement shall
be deemed amended to the extent necessary to conform to such applicable exemptive rule.
3.15 Not
a Contract of Service Relationship. Nothing in this Agreement or in the Plan shall confer upon Holder any right to continue to serve
as an Employee or other service provider of the Company or any of its affiliates or shall interfere with or restrict in any way the rights
of the Company and its affiliates, which rights are hereby expressly reserved, to discharge or terminate the services of Holder at any
time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between
the Company or an affiliate and Holder.
3.16 Entire
Agreement. The Plan, the Grant Notice and this Agreement (including all Exhibits thereto, if any) constitute the entire agreement
of the parties and supersede in their entirety all prior undertakings and agreements of the Company and its affiliates and Holder with
respect to the subject matter hereof.
3.17 Limitation
on Holder’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates
only a contractual obligation on the part of the Company as to amounts payable and shall not be construed as creating a trust. Neither
the Plan nor any underlying program, in and of itself, has any assets. Holder shall have only the rights of a general unsecured creditor
of the Company and its affiliates with respect to amounts credited and benefits payable, if any, with respect to the Shares issuable hereunder.
EXHIBIT B
TO RESTRICTED STOCK AWARD GRANT NOTICE
CONSENT
OF SPOUSE OR REGISTERED DOMESTIC PARTNER
I, _____________________,
spouse or domestic partner of Lewis Arthur Heaven III, have read and approve the Restricted Stock Award Grant Notice (the “Grant
Notice”) to which this Consent of Spouse or Registered Domestic Partner is attached and the Restricted Stock Award Agreement
(the “Agreement”) attached to the Grant Notice. In consideration of issuing to my spouse or domestic partner the shares
of the common stock of OrthoPediatrics Corp. set forth in the Grant Notice, I hereby appoint my spouse or domestic partner as my
attorney-in-fact in respect of the exercise of any rights under the Agreement and agree to be bound by the provisions of the Agreement
insofar as I may have any rights in said Agreement or any shares of the common stock of OrthoPediatrics Corp. issued pursuant thereto
under the community property laws or similar laws relating to marital property in effect in the state of our residence as of the date
of the signing of the foregoing Agreement.
| Dated: |
|
|
|
| |
|
Signature of Spouse or Domestic Partner |
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OrthoPediatrics (NASDAQ:KIDS)
Graphique Historique de l'Action
De Nov 2024 à Déc 2024
OrthoPediatrics (NASDAQ:KIDS)
Graphique Historique de l'Action
De Déc 2023 à Déc 2024
