Full Press Release Details
2023 INDUCEMENT OPTION PLAN
ADOPTED BY THE BOARD OF DIRECTORS:
(a) Eligible Award Recipients. The only persons eligible to receive grants of Awards under this Plan are
individuals who satisfy the standards for inducement grants under Nasdaq Marketplace Rule 5635(c)(4) or 5635(c)(3), if applicable, and the related guidance under Nasdaq IM 5635-1. A person who previously
served as an Employee or Director will not be eligible to receive Awards under the Plan, other than following a bona fide period of non-employment with the Company. Persons eligible to receive grants of
Awards under this Plan are referred to in this Plan as Eligible Employees. These Awards must be approved by either a majority of the Company s Independent Directors (as such term is defined in Nasdaq
Marketplace Rule 5605(a)(2)) ( Independent Directors ) or by the Company s compensation committee, provided such committee is comprised solely of Independent Directors of the Company (the Independent
Compensation Committee ) in order to comply with the exemption from the stockholder approval requirement for inducement grants provided under Rule 5635(c)(4) of the Nasdaq Marketplace Rules. Nasdaq Marketplace Rule
5635(c)(4) and 5635(c)(3), if applicable, and the related guidance under Nasdaq IM 5635-1 (and any analogous rules or guidance effective after the date hereof) are referred to in this Plan as the
Inducement Award Rules.
(b) Available Awards. The Plan provides for the
grant of the Options. All Options shall be Nonstatutory Stock Options.
(c) Purpose. The Company, by means of
the Plan, intends to provide (i) an inducement material for certain individuals to enter into employment with the Company within the meaning of Rule 5635(c)(4) of the Nasdaq Marketplace Rules, (ii) incentives for such persons to exert
maximum efforts for the success of the Company and any Affiliate and (iii) a means by which Eligible Employees may be given an opportunity to benefit from increases in value of the Common Stock through the granting of Awards.
(a) Administration by Board. The Board will administer the Plan; provided, however, that Awards may only be
granted by either (i) a majority of the Company s Independent Directors or (ii) the Independent Compensation Committee. Subject to those constraints and the other constraints of the Inducement Award Rules, the Board may delegate some
of its powers of administration of the Plan to a Committee or Committees, as provided in Section 2(c).
Powers of Board. The Board will have the power, subject to, and within the limitations of, the express provisions of the Plan and the Inducement Award Rules:
(i) To determine: (A) who will be granted Awards;
(B) when and how each Award will be granted; (C) the provisions of each Award (which need not be identical), including when a person will be permitted to exercise or otherwise receive Common Stock under the Award; (D) the number of
shares of Common Stock subject to; and (E) the Fair Market Value applicable to an Award; provided, however, that Awards may only be granted by either (i) a majority of the Company s Independent Directors or (ii) the Independent
Compensation Committee.
(ii) To construe and interpret the Plan and Awards granted under it, and to establish,
amend and revoke rules and regulations for administration of the Plan and Awards. The Board, in the exercise of these powers, may correct any defect, omission or inconsistency in the Plan or in any Award Agreement, in a manner and to the extent it
will deem necessary or expedient to make the Plan or Award fully effective.
(iii) To settle all controversies
regarding the Plan and Awards granted under it.
(iv) To accelerate, in whole or in part, the time at which an Award
may be exercised or vest.
(v) To suspend or terminate the Plan at any time. Except as otherwise provided in the
Plan or an Award Agreement, suspension or termination of the Plan will not materially impair a Participant s rights under the Participant s then-outstanding Award without the Participant s written consent, except as provided in
subsection (viii) below.
(vi) To amend the Plan in any respect the Board deems necessary or advisable,
including, without limitation, by adopting amendments relating to certain nonqualified deferred compensation under Section 409A of the Code and/or to ensure the Plan or Awards granted under the Plan are exempt from, or compliant with, the
requirements for nonqualified deferred compensation under Section 409A of the Code, subject to the limitations, if any, of applicable law. Except as provided in Section (8)(a) relating to Capitalization Adjustments, is required by applicable
law or listing requirements, the Company will seek stockholder approval for any amendment of the Plan. Except as otherwise provided in the Plan or an Award Agreement, no amendment of the Plan will materially impair a Participant s rights under
an outstanding Award without the Participant s written consent.
(vii) To submit any amendment to the Plan for
stockholder approval, including, but not limited to, amendments to the Plan intended to satisfy the requirements of Rule 16b-3.
(viii) To approve forms of Award Agreements for use under the Plan and to amend the terms of any one or more Awards,
including, but not limited to, amendments to provide terms more favorable to the Participant than previously provided in the Award Agreement, subject to any specified limits in the Plan that are not subject to Board discretion;
provided, however, that a Participant s rights under any Award will not be impaired by any such amendment unless (A) the Company requests the consent of the
affected Participant, and (B) such Participant consents in writing. Notwithstanding the foregoing, (1) a Participant s rights will not be deemed to have been impaired by any such
amendment if the Board, in its sole discretion, determines that the amendment, taken as a whole, does not materially impair the Participant s rights, and (2) subject to the limitations of applicable law, if any, the Board may amend the
terms of any one or more Awards without the affected Participant s consent (A) to clarify the manner of exemption from, or to bring the Award into compliance with, Section 409A of the Code; or (B) to comply with other applicable
laws or listing requirements.
(ix) Generally, to exercise such powers and to perform such acts as the Board deems
necessary or expedient to promote the best interests of the Company and that are not in conflict with the provisions of the Plan or Awards.
(x) To adopt such procedures and sub-plans as are necessary or appropriate to
permit participation in the Plan by Eligible Employees who are foreign nationals or employed outside the United States (provided that Board approval will not be necessary for immaterial modifications to the Plan or any Award Agreement that are
required for compliance with the laws of the relevant foreign jurisdiction).
(c) Delegation to Committee.
(i) General. Subject to the terms of Section 4(b), the Board may delegate some or all of the
administration of the Plan to a Committee or Committees. If administration of the Plan is delegated to a Committee, the Committee will have, in connection with the administration of the Plan, the powers theretofore possessed by the Board that have
been delegated to the Committee, including the power to delegate to a subcommittee of the Committee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board will thereafter be construed as
being to the Committee or subcommittee, as applicable). Any delegation of administrative powers will be reflected in resolutions, not inconsistent with the provisions of the Plan, adopted from time to time by the Board or Committee (as applicable).
The Board may retain the authority to concurrently administer the Plan with the Committee and may, at any time, revest in the Board some or all of the powers previously delegated.
(ii) Rule 16b-3 Compliance. The Committee may consist solely of two or
more Non-Employee Directors, in accordance with Rule 16b-3.
(iii) Effect of Board s Decision. All determinations, interpretations and constructions made
by the Board in good faith will not be subject to review by any person and will be final, binding and conclusive on all persons.
SHARES SUBJECT TO THE PLAN.
Share Reserve. Subject to Section 8(a) relating to Capitalization Adjustments, the aggregate number of shares of Common Stock that may be issued pursuant to Awards will not exceed 600,000 shares (the Share
Reserve ). Shares may be issued in connection with a merger or acquisition as permitted by Nasdaq Marketplace Rule 5635(c) or, if applicable NYSE Listed Company Manual Section 303A.08, AMEX
Company Guide Section 711 or other applicable rule, and such issuance will not reduce the number of shares available for issuance under the Plan.
(b) Reversion of Shares to the Share Reserve.
(i) The expiration or termination of any portion of an Award without the shares covered by such portion of
the Award having been issued does not result in an issuance of shares under the Plan and accordingly does not reduce the number of shares subject to the Share Reserve and available for issuance under the Plan.
(ii) The following actions result in an issuance of shares under the Plan and accordingly reduce the number of shares
subject to the Share Reserve and available for issuance under the Plan: (1) the withholding of shares that would otherwise be issued by the Company to satisfy the exercise price of an Option; and (2) the withholding of shares that would
otherwise be issued by the Company to satisfy a tax withholding obligation in connection with any Award, or any shares repurchased by the Company on the open market with the proceeds of the exercise price of an Option.
(iii) If any shares of Common Stock issued pursuant to an Award are forfeited back to the Company because of the failure
to meet a contingency or condition required to vest such shares in the Participant, then the shares that are forfeited (collectively, the Returning Shares ) will revert to and again become available for issuance under the
(c) Source of Shares. The stock issuable under the Plan will be shares of authorized but unissued or
reacquired Common Stock, including shares repurchased by the Company on the open market or otherwise.
(a) Eligibility for Specific Awards. Awards may only be granted to persons
who are Eligible Employees described in Section 1(a) of the Plan, where the Award is an inducement material to the individual s entering into employment with the Company or an Affiliate within the meaning of Rule 5635(c)(4) of the Nasdaq
Marketplace Rules or is otherwise permitted pursuant to Rule 5635(c) of the Nasdaq Marketplace Rules; provided, however, that Awards may not be granted to Eligible Employees who are providing Continuous Service only to any parent
of the Company, as such term is defined in Rule 405 of the Securities Act, unless (i) the stock underlying such Awards is treated as service recipient stock under Section 409A of the Code (for example, because the Awards are
granted pursuant to a corporate transaction such as a spin off transaction), (ii) the Company, in consultation with its legal counsel, has determined that such Awards are otherwise exempt from Section 409A of the Code, or (iii) the
Company, in consultation with its legal counsel, has determined that such Awards comply with the distribution requirements of Section 409A of the Code.
(b) Approval Requirements. All Awards must be granted either by a majority of the Company s Independent
Directors or the Independent Compensation Committee.
5. PROVISIONS RELATING TO OPTIONS.
Each Option will be in such form and will contain such terms and conditions as the Board deems appropriate. All Options will be
Nonstatutory Stock Options at the time of grant. The provisions of separate Options need not be identical; provided, however, that each Award Agreement will conform to (through incorporation of provisions hereof by reference in the applicable
Award Agreement or otherwise) the substance of each of the following provisions:
(a) Term. No Option will be
exercisable after the expiration of ten years from the date of its grant or such shorter period specified in the Award Agreement.
(b) Exercise Price. The exercise or strike price of each Option will be not less than 100% of the Fair Market
Value of the Common Stock subject to the Option on the date the Award is granted. Notwithstanding the foregoing, an Option may be granted with an exercise or strike price lower than 100% of the Fair Market Value of the Common Stock subject to the
Award if such Award is granted pursuant to an assumption of or substitution for another option or stock appreciation right pursuant to a Corporate Transaction and in a manner consistent with the provisions of Section 409A of the Code.
(c) Purchase Price for Options. The purchase price of Common Stock acquired pursuant to the exercise of an Option
may be paid, to the extent permitted by applicable law and as determined by the Board in its sole discretion, by any combination of the methods of payment set forth below. The Board will have the authority to grant Options that do not permit all of
the following methods of payment (or otherwise restrict the ability to use certain methods) and to grant Options that require the consent of the Company to use a particular method of payment. The permitted methods of payment are as follows:
(i) by cash, check, bank draft or money order payable to the Company;
(ii) pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the
issuance of the stock subject to the Option, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate exercise price to the Company from the sales proceeds;
(iii) by delivery to the Company (either by actual delivery or attestation) of shares of Common Stock;