Form 8-K
8-K — NETLIST INC
Accession: 0001104659-26-080376
Filed: 2026-07-02
Period: 2026-07-01
CIK: 0001282631
SIC: 3674 (SEMICONDUCTORS & RELATED DEVICES)
Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Financial Statements and Exhibits
Documents
8-K — tm2619389d2_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (tm2619389d2_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2619389d2_ex10-2.htm)
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8-K (Primary)
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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): July 1, 2026
NETLIST, INC.
(Exact name of registrant as specified in its
charter)
Delaware
001-33170
95-4812784
(State or other jurisdiction of
incorporation)
(Commission
File Number)
(IRS Employer
Identification Number)
111
Academy, Suite 100
Irvine,
California 92617
(Address of principal executive offices)
(949)
435-0025
(Registrant’s telephone number, including
area code)
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))
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, par value $0.001 per share
NLST
None
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 5.02. Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On July 1, 2026, Netlist, Inc. (the “Company”) adopted
the Netlist, Inc. 2026 Performance Equity Plan (the “Plan”). Pursuant to the terms of the Plan, the Company may, under the
direction of the Company’s board of directors (the “Board”), make grants of stock options, restricted and unrestricted
stock awards and other stock-based awards to employees (including current and future executives), consultants and directors. The Company
reserved 33,600,000 shares of the Company’s common stock, par value $0.001 per share, for issuance under the Plan. The Board intends
to grant performance awards under the Plan to the Company’s executive officers, including awards to one or more of the Company’s
named executive officers, as incentive compensation. The Plan was approved by the Board without stockholder approval.
The foregoing description of the terms of the Plan is not intended
to be complete and is qualified in its entirety by reference to the Plan and the form of Restricted Stock Unit Agreement adopted under
the Plan, copies of which are included hereto as Exhibits 10.1 and 10.2 and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number
Description
10.1#
Netlist, Inc. 2026 Performance Equity Plan.
10.2#
Form of Restricted Stock Unit Agreement issued pursuant to Netlist, Inc. 2026 Performance Equity Plan.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
# Management contract or compensatory plan or arrangement.
2
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.
NETLIST, INC.
Date: July 2, 2026
By:
/s/
Gail M. Sasaki
Gail M. Sasaki
Executive Vice President and Chief Financial Officer
3
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2619389d2_ex10-1.htm · Sequence: 2
Exhibit 10.1
NETLIST, INC.
2026 PERFORMANCE EQUITY PLAN
1. DEFINITIONS.
Unless otherwise specified
or unless the context otherwise requires, the following terms, as used in this Netlist, Inc. 2026 Performance Equity Plan, have the following
meanings:
“Administrator”
means the Board of Directors, unless it has delegated power to act on its behalf to the Committee, in which case the term “Administrator”
means the Committee.
“Affiliate”
means a corporation or other entity, which, for purposes of Section 424 of the Code, is a parent or subsidiary of the Company, direct
or indirect.
“Agreement”
means a written or electronic document setting forth the terms of a Stock Right delivered pursuant to the Plan, in such form as the Administrator
shall approve.
“Board of Directors”
means the Board of Directors of the Company.
“Cause”
means, with respect to a Participant (a) dishonesty with respect to the Company or any Affiliate, (b) insubordination, substantial malfeasance
or nonfeasance of duty, (c) unauthorized disclosure of confidential information, (d) breach by a Participant of any provision of any employment,
consulting, advisory, nondisclosure, non-competition or similar agreement between the Participant and the Company or any Affiliate or
any material written policy of the Company or any Affiliate, and (e) conduct substantially prejudicial to the business of the Company
or any Affiliate; provided, however, that any provision in an agreement between a Participant and the Company or an Affiliate, which contains
a conflicting definition of Cause for termination and which is in effect at the time of such termination, shall supersede this definition
with respect to that Participant. The determination of the Administrator as to the existence of Cause will be conclusive on the Participant
and the Company.
“Change of Control”
means the occurrence of any of the following events:
Ownership. Any “Person”
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “Beneficial Owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power
represented by the Company’s then outstanding voting securities (excluding for this purpose any such voting securities held by the
Company or its Affiliates or by any employee benefit plan of the Company) pursuant to a transaction or a series of related transactions
which the Board of Directors does not approve; or
Merger/Sale of Assets.
(A) A merger or consolidation of the Company whether or not approved by the Board of Directors, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity or the parent of such entity) more than 50% of the total
voting power represented by the voting securities of the Company or such surviving entity or parent of such corporation, as the case may
be, outstanding immediately after such merger or consolidation; or (B) the sale or disposition by the Company of all or substantially
all of the Company’s assets in a transaction requiring shareholder approval; or
Change in Board Composition.
A change in the composition of the Board of Directors, as a result of which fewer than a majority of the directors are Incumbent Directors.
“Incumbent Directors” shall mean directors who either (A) are directors of the Company as of the date this Plan was
initially adopted, or (B) are elected, or nominated for election, to the Board of Directors with the affirmative votes of at least a majority
of the Incumbent Directors at the time of such election or nomination (but shall not include an individual whose election or nomination
is in connection with an actual or threatened proxy contest relating to the election of directors to the Company); provided, that
if any payment or benefit payable hereunder upon or following a Change of Control would be required to comply with the limitations of
Section 409A(a)(2)(A)(v) of the Code in order to avoid an additional tax under Section 409A of the Code, such payment or benefit shall
be made only if such Change of Control constitutes a change in ownership or control of the Company, or a change in ownership of the Company’s
assets in accordance with Section 409A of the Code.
“Code”
means the United States Internal Revenue Code of 1986, as amended including any successor statute, regulation and guidance thereto.
“Committee”
means the committee of the Board of Directors, if any, to which the Board of Directors has delegated power to act under or pursuant to
the provisions of the Plan.
“Common Stock”
means shares of the Company’s common stock, $0.001 par value per share.
“Company”
means Netlist, Inc., a Delaware corporation.
“Consultant”
means any natural person who is an advisor or consultant who provides bona fide services to the Company or its Affiliates, provided that
such services are not in connection with the offer or sale of securities in a capital raising transaction, and do not directly or indirectly
promote or maintain a market for the Company’s or its Affiliates’ securities.
“Corporate Transaction”
means a merger, consolidation, or sale of all or substantially all of the Company’s assets or the acquisition of all of the outstanding
voting stock of the Company (or similar transaction) in a single transaction or a series of related transactions by a single entity other
than a transaction in which the Company is the surviving corporation. Where a Corporate Transaction involves a tender offer that is reasonably
expected to be followed by a merger (as determined by the Administrator), the Corporate Transaction will be deemed to have occurred upon
consummation of the tender offer.
“Disability”
or “Disabled” means permanent and total disability as defined in Section 22(e)(3) of the Code.
“Employee”
means any employee of the Company or of an Affiliate (including, without limitation, an employee who is also serving as an officer or
director of the Company or of an Affiliate), designated by the Administrator to be eligible to be granted one or more Stock Rights under
the Plan.
“Exchange Act”
means the United States Securities Exchange Act of 1934, as amended.
“Fair Market Value”
of a Share of Common Stock means:
If the Common Stock is listed
on a national securities exchange or traded in the over-the-counter market and sales prices are regularly reported for the Common Stock,
the closing or, if not applicable, the last price of the Common Stock on the consolidated tape or other comparable reporting system for
the trading day on the applicable date and if such applicable date is not a trading day, the last market trading day prior to such date;
2
If the Common Stock is not
traded on a national securities exchange but is traded on the over-the-counter market, if sales prices are not regularly reported for
the Common Stock for the trading day referred to in clause (1), and if bid and asked prices for the Common Stock are regularly reported,
the mean between the bid and the asked price for the Common Stock at the close of trading in the over-the-counter market for the most
recent trading day on which Common Stock was traded on the applicable date and if such applicable date is not a trading day, the last
market trading day prior to such date; and
If the Common Stock is neither
listed on a national securities exchange nor traded in the over-the-counter market, such value as the Administrator, in good faith, shall
determine in compliance with applicable laws.
“ISO” means
a stock option intended to qualify as an incentive stock option under Section 422 of the Code.
“Non-Qualified Option”
means a stock option which is not intended to qualify as an ISO.
“Option”
means an ISO or Non-Qualified Option granted under the Plan.
“Participant”
means an Employee, director or Consultant of the Company or an Affiliate to whom one or more Stock Rights are granted under the Plan.
As used herein, “Participant” shall include “Participant’s Survivors” where the context requires.
“Performance-Based
Award” means a Stock Grant or Stock-Based Award which vests based on the attainment of written Performance Goals as set forth
in Paragraph 9 hereof.
“Performance Goals”
means performance goals determined by the Committee in its sole discretion and set forth in an Agreement. The satisfaction of Performance
Goals shall be subject to certification by the Committee. The Committee has the authority to take appropriate action with respect to the
Performance Goals (including, without limitation, making adjustments to the Performance Goals or determining the satisfaction of the Performance
Goals in connection with a Corporate Transaction) provided that any such action does not otherwise violate the terms of the Plan.
“Plan”
means this Netlist, Inc. 2026 Performance Equity Plan.
“SAR” means
a stock appreciation right.
“Section 409A”
means Section 409A of the Code.
“Section 422”
means Section 422 of the Code.
“Securities Act”
means the United States Securities Act of 1933, as amended.
“Shares”
means shares of the Common Stock as to which Stock Rights have been or may be granted under the Plan or any shares of capital stock into
which the Shares are changed or for which they are exchanged within the provisions of Paragraph 3 of the Plan. The Shares issued under
the Plan may be authorized and unissued shares or shares held by the Company in its treasury, or both.
“Stock-Based Award”
means a grant by the Company under the Plan of an equity award or an equity-based award, which is not an Option, or a Stock Grant.
“Stock Grant”
means a grant by the Company of Shares under the Plan.
3
“Stock Right”
means an ISO, a Non-Qualified Option, a Stock Grant or a Stock-Based Award or a right to Shares or the value of Shares of the Company
granted pursuant to the Plan.
“Substitute Award”
means an award issued under the Plan in substitution for one or more equity awards of an acquired company that are converted, replaced
or adjusted in connection with the acquisition.
“Survivor”
means a deceased Participant’s legal representatives and/or any person or persons who acquired the Participant’s rights to
a Stock Right by will or by the laws of descent and distribution.
2. PURPOSES OF THE PLAN.
The Plan is intended to encourage
ownership of Shares by Employees and directors of and certain Consultants to the Company and its Affiliates in order to attract and retain
such people, to induce them to work for the benefit of the Company or of an Affiliate and to provide additional incentive for them to
promote the success of the Company or of an Affiliate. The Plan provides for the granting of ISOs, Non-Qualified Options, Stock Grants
and Stock-Based Awards; provided, however, that in the case of ISOs, the granting of ISOs shall be subject to any limitations under the
Code.
3. SHARES SUBJECT TO THE PLAN.
(a) The
number of Shares which may be issued from time to time pursuant to this Plan shall be 33,600,000 shares of Common Stock, or the
equivalent of such number of Shares after the Administrator, in its sole discretion, has interpreted the effect of any stock split,
stock dividend, combination, recapitalization or similar transaction in accordance with Paragraph 25 of this Plan.
(b)
If an Option ceases to be “outstanding”, in whole or in part (other than by exercise), or if the Company shall reacquire
(at not more than its original issuance price) any Shares issued pursuant to a Stock Grant or Stock-Based Award, or if any Stock Right
expires or is forfeited, cancelled, or otherwise terminated or results in any Shares not being issued, the unissued or reacquired Shares
which were subject to such Stock Right shall again be available for issuance from time to time pursuant to this Plan; provided, however,
that the number of Shares underlying any awards under the Plan that are retained or repurchased on the exercise of an Option or the vesting
or issuance of any Stock Right to cover the exercise price and/or tax withholding required by the Company in connection with vesting shall
not be added back to the Shares available for issuance under the Plan; and provided, further that, in the case of ISOs, the foregoing
provisions shall be subject to any limitations under the Code. In addition, any Shares repurchased using exercise price proceeds will
not be available for issuance under the Plan.
(c)
The Administrator may grant Substitute Awards under the Plan. To the extent consistent with the requirements of Section 422 and
the regulations thereunder and other applicable legal requirements (including applicable stock exchange requirements), Shares issued in
respect of Substitute Awards will be in addition to and will not reduce the shares available under the Plan. Notwithstanding the foregoing,
if any Substitute Award is settled in cash or expires, becomes unexercisable, terminates or is forfeited to or repurchased by the Company
without the issuance or retention of Shares, the Shares previously subject to such award will not be available for future issuance under
the Plan. The Administrator will determine the extent to which the terms and conditions of the Plan apply to Substitute Awards, if at
all; provided, however, that Substitute Awards will not be subject to the limits described in Paragraph 4(c) below.
4
4. ADMINISTRATION OF THE PLAN.
The Administrator of the Plan
will be the Board of Directors, except to the extent the Board of Directors delegates its authority to the Committee, in which case the
Committee shall be the Administrator. Subject to the provisions of the Plan, the Administrator is authorized to:
(a)
Interpret the provisions of the Plan and all Stock Rights and to make all rules and determinations which it deems necessary or
advisable for the administration of the Plan;
(b)
Determine which Employees, directors and Consultants shall be granted Stock Rights;
(c)
Determine the number of Shares for which a Stock Right or Stock Rights shall be granted; provided, however, that in no event
shall the aggregate grant date fair value (determined in accordance with ASC 718) of Stock Rights to be granted, under this Plan and any
other equity plan of the Company, and other cash compensation paid to any non-employee director in any calendar year, exceed $750,000,
increased to $1,000,000 in the year in which such non-employee director initially joins the Board of Directors;
(d)
Specify the terms and conditions upon which a Stock Right or Stock Rights may be granted provided that no dividends or dividend
equivalents shall be paid on any Stock Right prior to the vesting of the underlying Shares.
(e)
Amend any term or condition of any outstanding Stock Right, provided that (i) such term or condition as amended is not prohibited
by the Plan; and (ii) any such amendment shall not impair the rights of a Participant under any Stock Right previously granted without
such Participant’s consent or in the event of death of the Participant the Participant’s Survivors;
(f)
Determine and make any adjustments in the Performance Goals included in any Performance-Based Awards; and
(g)
Adopt any sub-plans applicable to residents of any specified jurisdiction as it deems necessary or appropriate in order to comply
with or take advantage of any tax or other laws applicable to the Company, any Affiliate or to Participants or to otherwise facilitate
the administration of the Plan, which sub-plans may include additional restrictions or conditions applicable to Stock Rights or Shares
issuable pursuant to a Stock Right;
Subject to the foregoing, the interpretation and
construction by the Administrator of any provisions of the Plan or of any Stock Right granted thereunder shall be final, unless otherwise
determined by the Board of Directors, if the Administrator is the Committee. In addition, if the Administrator is the Committee, the Board
of Directors may take any action under the Plan that would otherwise be the responsibility of the Committee.
To the extent permitted under
applicable law, the Board of Directors or the Committee may allocate all or any portion of its responsibilities and powers to any one
or more of its members and may delegate all or any portion of its responsibilities and powers to any other person selected by it. The
Board of Directors or the Committee may revoke any such allocation or delegation at any time. Notwithstanding the foregoing, only the
Board of Directors or the Committee shall be authorized to grant a Stock Right to any director of the Company or to any “officer”
of the Company as defined by Rule 16a-1 under the Exchange Act.
5
5. ELIGIBILITY FOR PARTICIPATION.
The Administrator will, in
its sole discretion, name the Participants in the Plan; provided, however, that each Participant must be an Employee, director or Consultant
of the Company or of an Affiliate at the time a Stock Right is granted. Notwithstanding the foregoing, the Administrator may authorize
the grant of a Stock Right to a person in anticipation of such person becoming an Employee, director or Consultant of the Company or of
an Affiliate; provided, that the actual grant of such Stock Right shall be conditioned upon such person becoming eligible to become a
Participant at or prior to the time of the execution of the Agreement evidencing such Stock Right. ISOs may be granted only to Employees.
Non-Qualified Options, Stock Grants and Stock-Based Awards may be granted to any Employee, director or Consultant of the Company or an
Affiliate. The granting of any Stock Right to any individual shall neither entitle that individual to, nor disqualify that individual
from, participation in any other grant of Stock Rights or any grant under any other benefit plan established by the Company or any Affiliate
for Employees, directors or Consultants.
6. TERMS AND CONDITIONS OF OPTIONS.
Each Option shall be set forth
in an Option Agreement duly executed by the Company and, to the extent required by law or requested by the Company, by the Participant.
The Administrator may provide that Options be granted subject to such terms and conditions, consistent with the terms and conditions specifically
required under this Plan, as the Administrator may deem appropriate including, without limitation, subsequent approval by the shareholders
of the Company of this Plan or any amendments thereto. The Option Agreements shall be subject to at least the following terms and conditions:
(a)
Non-Qualified Options. Each Option intended to be a Non-Qualified Option shall be subject to the terms and conditions which
the Administrator determines to be appropriate and in the best interest of the Company, subject to the following minimum standards for
any such Non-Qualified Option:
(i)
Exercise Price. Each Option Agreement shall state the exercise price (per share) of the Shares covered by each Option, which
exercise price shall be determined by the Administrator and shall be at least equal to the Fair Market Value per share of the Common Stock
on the date of grant of the Option.
(ii)
Number of Shares. Each Option Agreement shall state the number of Shares to which it pertains.
(iii)
Vesting. Each Option Agreement shall state the date or dates on which it first is exercisable and the date after which it
may no longer be exercised, and may provide that the Option rights accrue or become exercisable in installments over a period of months
or years, or upon the occurrence of certain performance conditions or the attainment of stated goals or events.
(iv)
Additional Conditions. Exercise of any Option may be conditioned upon the Participant’s execution of a shareholders
agreement in a form satisfactory to the Administrator providing for certain protections for the Company and its other shareholders, including
requirements that:
A.
The Participant’s or the Participant’s Survivors’ right to sell or transfer the Shares may be restricted; and
B.
The Participant or the Participant’s Survivors may be required to execute letters of investment intent and must also acknowledge
that the Shares will bear legends noting any applicable restrictions.
6
(v)
Term of Option. Each Option shall terminate not more than ten years from the date of the grant or at such earlier time as
the Option Agreement may provide.
(b)
ISOs. Each Option intended to be an ISO shall be issued only to an Employee who is deemed to be a resident of the United
States for tax purposes, and shall be subject to the following terms and conditions, with such additional restrictions or changes as the
Administrator determines are appropriate but not in conflict with Section 422 and relevant regulations and rulings of the Internal Revenue
Service:
(i)
Minimum Standards. The ISO shall meet the minimum standards required of Non-Qualified Options, as described in Paragraph
6(a) above, except clause (i) and (v) thereunder.
(ii)
Exercise Price. Immediately before the ISO is granted, if the Participant owns, directly or by reason of the applicable
attribution rules in Section 424(d) of the Code:
A.
10% or less of the total combined voting power of all classes of stock of the Company or an Affiliate, the exercise price
per share of the Shares covered by each ISO shall not be less than 100% of the Fair Market Value per share of the Common Stock on the
date of grant of the Option; or
B.
More than 10% of the total combined voting power of all classes of stock of the Company or an Affiliate, the exercise price per
share of the Shares covered by each ISO shall not be less than 110% of the Fair Market Value per share of the Common Stock on the date
of grant of the Option.
(iii)
Term of Option. For Participants who own:
A.
10% or less of the total combined voting power of all classes of stock of the Company or an Affiliate, each ISO shall terminate
not more than ten years from the date of the grant or at such earlier time as the Option Agreement may provide; or
B.
More than 10% of the total combined voting power of all classes of stock of the Company or an Affiliate, each ISO shall terminate
not more than five years from the date of the grant or at such earlier time as the Option Agreement may provide.
(iv)
Limitation on Yearly Exercise. To the extent that aggregate Fair Market Value (determined on the date each ISO is granted)
of the Shares with respect to which ISOs are exercisable for the first time by the Participant in any calendar year exceeds $100,000,
such Options shall be treated as Non-Qualified Options even if denominated ISOs at grant.
(c)
Except in connection with a corporate transaction involving the Company (which term includes, without limitation, any stock dividend,
stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination or
exchange of shares) or as otherwise contemplated by Paragraph 24 below, the Company may not, without obtaining stockholder approval, (i)
amend the terms of outstanding Options to reduce the exercise price of such Options, (ii) cancel outstanding Options in exchange for Options
that have an exercise price that is less than the exercise price value of the original Options, or (iii) cancel outstanding Options that
have an exercise price greater than the Fair Market Value of a Share on the date of such cancellation in exchange for cash or other consideration.
7
7. TERMS AND CONDITIONS OF STOCK GRANTS.
Each Stock Grant to a Participant
shall state the principal terms in an Agreement duly executed by the Company and, to the extent required by law or requested by the Company,
by the Participant. The Agreement shall be in a form approved by the Administrator and shall contain terms and conditions which the Administrator
determines to be appropriate and in the best interest of the Company, subject to the following minimum standards:
(a)
Each Agreement shall state the purchase price per share, if any, of the Shares covered by each Stock Grant, which purchase price
shall be determined by the Administrator, but shall not be less than the minimum consideration required by the Delaware General Corporation
Law, on the date of the grant of the Stock Grant;
(b)
Each Agreement shall state the number of Shares to which the Stock Grant pertains;
(c)
Each Agreement shall include the terms of any right of the Company to restrict or reacquire the Shares subject to the Stock Grant,
including the time period or attainment of Performance Goals or such other performance criteria upon which such rights shall accrue and
the purchase price therefor, if any; and
(d)
Dividends (other than stock dividends to be issued pursuant to Section 25 of the Plan) may accrue but shall not be paid prior to
the time, and may be paid only to the extent that the restrictions or rights to reacquire the Shares subject to the Stock Grant lapse.
Any entitlement to dividend equivalents or similar entitlements will be established and administered either consistent with an exemption
from, or in compliance with the applicable requirements of Section 409A.
8. TERMS AND CONDITIONS OF OTHER STOCK-BASED AWARDS.
The Administrator shall have
the right to grant other Stock-Based Awards based upon the Common Stock having such terms and conditions as the Administrator may determine,
including, without limitation, the grant of Shares based upon certain conditions, the grant of securities convertible into Shares and
the grant of SARs, phantom stock awards or restricted stock units. The principal terms of each Stock-Based Award shall be set forth in
an Agreement, duly executed by the Company and, to the extent required by law or requested by the Company, by the Participant. The Agreement
shall be in a form approved by the Administrator and shall contain terms and conditions which the Administrator determines to be appropriate
and in the best interest of the Company. Each Agreement shall include the terms of any right of the Company including the right to terminate
the Stock-Based Award without the issuance of Shares, the terms of any vesting conditions, Performance Goals or events upon which Shares
shall be issued, provided that dividends (other than stock dividends to be issued pursuant to Section 25 of the Plan) or dividend equivalents
may accrue but shall not be paid prior to and may be paid only to the extent that the Shares subject to the Stock-Based Award vest. Under
no circumstances may an Agreement covering SARs (a) have an exercise or base price (per share) that is less than the Fair Market Value
per share of Common Stock on the date of grant or (b) expire more than ten years following the date of grant.
9. PERFORMANCE-BASED AWARDS.
The Committee shall determine
whether, with respect to a performance period, the applicable Performance Goals have been met with respect to a given Participant and,
if they have, to so certify and ascertain the amount of the applicable Performance-Based Award. No Performance-Based Awards will be issued
for such performance period until such certification is made by the Committee. The number of Shares issued in respect of a Performance-Based
Award determined by the Committee for a performance period shall be paid to the Participant at such time as determined by the Committee
in its sole discretion after the end of such performance period, and any dividends (other than stock dividends to be issued pursuant to
Section 25 of the Plan) or dividend equivalents that accrue shall only be paid in respect of the number of Shares earned in respect of
such Performance-Based Award.
8
10. EXERCISE OF OPTIONS AND ISSUE OF SHARES.
An Option (or any part or
installment thereof) shall be exercised by giving written notice to the Company or its designee (in a form acceptable to the Administrator,
which may include electronic notice), together with provision for payment of the aggregate exercise price in accordance with this Paragraph
for the Shares as to which the Option is being exercised, and upon compliance with any other condition(s) set forth in the Option Agreement.
Such notice shall be signed by the person exercising the Option (which signature may be provided electronically in a form acceptable to
the Administrator), shall state the number of Shares with respect to which the Option is being exercised and shall contain any representation
required by the Plan or the Option Agreement. Payment of the exercise price for the Shares as to which such Option is being exercised
shall be made (a) in United States dollars in cash or by check; or (b) at the discretion of the Administrator, through delivery of shares
of Common Stock held for at least six months (if required to avoid negative accounting treatment) having a Fair Market Value equal as
of the date of the exercise to the aggregate cash exercise price for the number of Shares as to which the Option is being exercised; or
(c) at the discretion of the Administrator, by having the Company retain from the Shares otherwise issuable upon exercise of the Option,
a number of Shares having a Fair Market Value equal as of the date of exercise to the aggregate exercise price for the number of Shares
as to which the Option is being exercised; or (d) at the discretion of the Administrator, in accordance with a cashless exercise program
established with a securities brokerage firm, and approved by the Administrator; or (e) at the discretion of the Administrator, by any
combination of (a) through (d) above, or (f) at the discretion of the Administrator, by payment of such other lawful consideration as
the Administrator may determine. Notwithstanding the foregoing, the Administrator shall accept only such payment on exercise of an ISO
as is permitted by Section 422.
The Company shall then reasonably
promptly deliver the Shares as to which such Option was exercised to the Participant (or to the Participant’s Survivors, as the
case may be). In determining what constitutes “reasonably promptly,” it is expressly understood that the issuance and delivery
of the Shares may be delayed by the Company if the Administrator determines it is necessary to comply with any law or regulation (including,
without limitation, federal securities laws) that requires the Company to take any action with respect to the Shares prior to their issuance.
The Shares shall, upon delivery, be fully paid, non-assessable Shares.
11. PAYMENT IN CONNECTION WITH THE ISSUANCE OF STOCK GRANTS AND STOCK-BASED AWARDS AND ISSUE OF SHARES.
Any Stock Grant or Stock-Based
Award requiring payment of a purchase price for the Shares as to which such Stock Grant or Stock-Based Award is being granted shall be
made (a) in United States dollars in cash or by check; or (b) at the discretion of the Administrator, through delivery of shares of Common
Stock held for at least six months (if required to avoid negative accounting treatment) and having a Fair Market Value equal as of the
date of payment to the purchase price of the Stock Grant or Stock-Based Award; or (c) by delivery of a promissory note, if the Board of
Directors has expressly authorized the loan of funds to the Participant for the purpose of enabling or assisting the Participant to effect
such purchase; (d) at the discretion of the Administrator, by any combination of (a) through (c) above; or (e) at the discretion of the
Administrator, by payment of such other lawful consideration as the Administrator may determine.
The Company shall when required
by the applicable Agreement, reasonably promptly deliver the Shares as to which such Stock Grant or Stock-Based Award was made to the
Participant (or to the Participant’s Survivors, as the case may be), subject to any escrow provision set forth in the applicable
Agreement. In determining what constitutes “reasonably promptly,” it is expressly understood that the issuance and delivery
of the Shares may be delayed by the Company if the Administrator determines it is necessary to comply with any law or regulation (including,
without limitation, federal securities laws) which requires the Company to take any action with respect to the Shares prior to their issuance.
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12. RIGHTS AS A SHAREHOLDER.
No Participant to whom a Stock
Right has been granted shall have rights as a shareholder with respect to any Shares covered by such Stock Right except after due exercise
of an Option or issuance of Shares as set forth in any Agreement, tender of the aggregate exercise or purchase price, if any, for the
Shares being purchased and registration of the Shares in the Company’s share register in the name of the Participant. In addition,
at the discretion of the Administrator, the Company shall have received an opinion of its counsel that the Shares may be issued in compliance
with the Securities Act without registration thereunder.
13. ASSIGNABILITY AND TRANSFERABILITY OF STOCK RIGHTS.
By its terms, a Stock Right
granted to a Participant shall not be transferable by the Participant other than (i) by will or by the laws of descent and distribution,
or (ii) as approved by the Administrator in its discretion and set forth in the applicable Agreement provided that no Stock Right may
be transferred by a Participant for value. Notwithstanding the foregoing, an ISO transferred except in compliance with clause (i) above
shall no longer qualify as an ISO. The designation of a beneficiary of a Stock Right by a Participant, with the prior approval of the
Administrator and in such form as the Administrator shall prescribe, shall not be deemed a transfer prohibited by this Paragraph. Except
as provided above during the Participant’s lifetime a Stock Right shall only be exercisable by or issued to such Participant (or
his or her legal representative) and shall not be assigned, pledged or hypothecated in any way (whether by operation of law or otherwise)
and shall not be subject to execution, attachment or similar process. Any attempted transfer, assignment, pledge, hypothecation or other
disposition of any Stock Right or of any rights granted thereunder contrary to the provisions of this Plan, or the levy of any attachment
or similar process upon a Stock Right, shall be null and void.
14. EFFECT ON OPTIONS OF TERMINATION OF SERVICE OTHER THAN FOR CAUSE OR DEATH OR DISABILITY.
Except as otherwise provided
in a Participant’s Option Agreement, in the event of a termination of service (whether as an Employee, director or Consultant) with
the Company or an Affiliate before the Participant has exercised an Option, the following rules apply:
(a)
A Participant who ceases to be an Employee, director or Consultant of the Company or of an Affiliate (for any reason other than
termination for Cause, Disability, or death for which events there are special rules in Paragraphs 15, 16, and 17, respectively), may
exercise any Option granted to such Participant to the extent that the Option is exercisable on the date of such termination of service,
but only within such term as the Administrator has designated in a Participant’s Option Agreement.
(b)
Except as provided in Subparagraph (c) below, or Paragraph 16 or 17, in no event may an Option intended to be an ISO, be exercised
later than three months after the Participant’s termination of employment.
(c)
The provisions of this Paragraph, and not the provisions of Paragraph 16 or 17, shall apply to a Participant who subsequently becomes
Disabled or dies after the termination of employment, director status or consultancy; provided, however, in the case of a Participant’s
Disability or death within three months after the termination of employment, director status or consultancy, the Participant or the Participant’s
Survivors may exercise the Option within one year after the date of the Participant’s termination of service, but in no event after
the date of expiration of the term of the Option.
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(d)
Notwithstanding anything herein to the contrary, if subsequent to a Participant’s termination of employment, termination
of director status or termination of consultancy, but prior to the exercise of an Option, the Administrator determines that, either prior
or subsequent to the Participant’s termination, the Participant engaged in conduct which would constitute Cause, then such Participant
shall forthwith cease to have any right to exercise any Option.
(e)
A Participant to whom an Option has been granted under the Plan who is absent from the Company or an Affiliate because of temporary
disability (any disability other than a Disability as defined in Paragraph 1 hereof), or who is on leave of absence for any purpose, shall
not, during the period of any such absence, be deemed, by virtue of such absence alone, to have terminated such Participant’s employment,
director status or consultancy with the Company or with an Affiliate, except as the Administrator may otherwise expressly provide; provided,
however, that, for ISOs, any leave of absence granted by the Administrator of greater than three months, unless pursuant to a contract
or statute that guarantees the right to reemployment, shall cause such ISO to become a Non-Qualified Option on the date that is six months
following the commencement of such leave of absence.
(f)
Except as required by law or as set forth in a Participant’s Option Agreement, Options granted under the Plan shall not be
affected by any change of a Participant’s status within or among the Company and any Affiliates, so long as the Participant continues
to be an Employee, director or Consultant of the Company or any Affiliate.
15. EFFECT ON OPTIONS OF TERMINATION OF SERVICE FOR CAUSE.
Except as otherwise provided
in a Participant’s Option Agreement, the following rules apply if the Participant’s service (whether as an Employee, director
or Consultant) with the Company or an Affiliate is terminated for Cause prior to the time that all his or her outstanding Options have
been exercised:
(a)
All outstanding and unexercised Options as of the time the Participant is notified his or her service is terminated for Cause will
immediately be forfeited.
(b)
Cause is not limited to events which have occurred prior to a Participant’s termination of service, nor is it necessary that
the Administrator’s finding of Cause occur prior to termination. If the Administrator determines, subsequent to a Participant’s
termination of service but prior to the exercise of an Option, that either prior or subsequent to the Participant’s termination
the Participant engaged in conduct which would constitute Cause, then the right to exercise any Option is forfeited.
16. EFFECT ON OPTIONS OF TERMINATION OF SERVICE FOR DISABILITY.
Except as otherwise provided
in a Participant’s Option Agreement:
(a)
A Participant who ceases to be an Employee, director or Consultant of the Company or of an Affiliate by reason of Disability may
exercise any Option granted to such Participant to the extent that the Option has become exercisable but has not been exercised on the
date of the Participant’s termination of service due to Disability; and in the event rights to exercise the Option accrue periodically,
to the extent of a pro rata portion through the date of the Participant’s termination of service due to Disability of any additional
vesting rights that would have accrued on the next vesting date had the Participant not become Disabled. The proration shall be based
upon the number of days accrued in the current vesting period prior to the date of the Participant’s termination of service due
to Disability.
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(b)
A Disabled Participant may exercise the Option only within the period ending one year after the date of the Participant’s
termination of service due to Disability, notwithstanding that the Participant might have been able to exercise the Option as to some
or all of the Shares on a later date if the Participant had not been terminated due to Disability and had continued to be an Employee,
director or Consultant or, if earlier, within the originally prescribed term of the Option.
(c)
The Administrator shall make the determination both of whether Disability has occurred and the date of its occurrence (unless a
procedure for such determination is set forth in another agreement between the Company and such Participant, in which case such procedure
shall be used for such determination). If requested, the Participant shall be examined by a physician selected or approved by the Administrator,
the cost of which examination shall be paid for by the Company.
17. EFFECT ON OPTIONS OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR CONSULTANT.
Except as otherwise provided
in a Participant’s Option Agreement:
(a)
In the event of the death of a Participant while the Participant is an Employee, director or Consultant of the Company or of an
Affiliate, such Option may be exercised by the Participant’s Survivors to the extent that the Option has become exercisable but
has not been exercised on the date of death; and in the event rights to exercise the Option accrue periodically, to the extent of a pro
rata portion through the date of death of any additional vesting rights that would have accrued on the next vesting date had the Participant
not died. The proration shall be based upon the number of days accrued in the current vesting period prior to the Participant’s
date of death.
(b)
If the Participant’s Survivors wish to exercise the Option, they must take all necessary steps to exercise the Option within
one year after the date of death of such Participant, notwithstanding that the decedent might have been able to exercise the Option as
to some or all of the Shares on a later date if he or she had not died and had continued to be an Employee, director or Consultant or,
if earlier, within the originally prescribed term of the Option.
18. EFFECT OF TERMINATION OF SERVICE ON UNACCEPTED STOCK GRANTS AND STOCK-BASED AWARDS.
In the event of a termination
of service (whether as an Employee, director or Consultant) with the Company or an Affiliate for any reason before the Participant has
accepted a Stock Grant or a Stock-Based Award and paid the purchase price, if required, such grant shall terminate.
For purposes of this Paragraph
18 and Paragraph 19 below, a Participant to whom a Stock Grant or a Stock-Based Award has been issued under the Plan who is absent from
work with the Company or with an Affiliate because of temporary disability (any disability other than a Disability as defined in Paragraph
1 hereof), or who is on leave of absence for any purpose, shall not, during the period of any such absence, be deemed, by virtue of such
absence alone, to have terminated such Participant’s employment, director status or consultancy with the Company or with an Affiliate,
except as the Administrator may otherwise expressly provide.
In addition, for purposes
of this Paragraph 18 and Paragraph 19 below, any change of employment or other service within or among the Company and any Affiliates
shall not be treated as a termination of employment, director status or consultancy so long as the Participant continues to be an Employee,
director or Consultant of the Company or any Affiliate.
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19. EFFECT ON STOCK GRANTS AND STOCK-BASED AWARDS OF TERMINATION OF SERVICE OTHER THAN FOR CAUSE, DEATh
or DISABILITY.
Except as otherwise provided
in a Participant’s Agreement, in the event of a termination of service for any reason (whether as an Employee, director or Consultant),
other than termination for Cause, death or Disability for which there are special rules in Paragraphs 20, 21, and 22 below, before all
forfeiture provisions or Company rights of repurchase shall have lapsed, then the Company shall have the right to cancel or repurchase
that number of Shares subject to a Stock Grant or Stock-Based Award as to which the Company’s forfeiture or repurchase rights have
not lapsed.
20. EFFECT ON STOCK GRANTS AND STOCK-BASED AWARDS OF TERMINATION OF SERVICE FOR CAUSE.
Except as otherwise provided
in a Participant’s Agreement, the following rules apply if the Participant’s service (whether as an Employee, director or
Consultant) with the Company or an Affiliate is terminated for Cause:
(a)
All Shares subject to any Stock Grant or Stock-Based Award that remain subject to forfeiture provisions or as to which the Company
shall have a repurchase right shall be immediately forfeited to the Company as of the time the Participant is notified his or her service
is terminated for Cause.
(b)
Cause is not limited to events which have occurred prior to a Participant’s termination of service, nor is it necessary that
the Administrator’s finding of Cause occur prior to termination. If the Administrator determines, subsequent to a Participant’s
termination of service, that either prior or subsequent to the Participant’s termination the Participant engaged in conduct which
would constitute Cause, then all Shares subject to any Stock Grant or Stock-Based Award that remained subject to forfeiture provisions
or as to which the Company had a repurchase right on the date of termination shall be immediately forfeited to the Company.
21. EFFECT ON STOCK GRANTS AND STOCK-BASED AWARDS OF TERMINATION OF SERVICE FOR DISABILITY.
Except as otherwise provided
in a Participant’s Agreement, the following rules apply if a Participant ceases to be an Employee, director or Consultant of the
Company or of an Affiliate by reason of Disability: to the extent the forfeiture provisions or the Company’s rights of repurchase
have not lapsed on the date of Disability, they shall be exercisable; provided, however, that in the event such forfeiture provisions
or rights of repurchase lapse periodically, such provisions or rights shall lapse to the extent of a pro rata portion of the Shares subject
to such Stock Grant or Stock-Based Award through the date of Disability as would have lapsed had the Participant not become Disabled.
The proration shall be based upon the number of days accrued prior to the date of Disability.
The Administrator shall make
the determination both as to whether Disability has occurred and the date of its occurrence (unless a procedure for such determination
is set forth in another agreement between the Company and such Participant, in which case such procedure shall be used for such determination).
If requested, the Participant shall be examined by a physician selected or approved by the Administrator, the cost of which examination
shall be paid for by the Company.
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22. EFFECT ON STOCK GRANTS AND STOCK-BASED AWARDS OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR CONSULTANT.
Except as otherwise provided
in a Participant’s Agreement, the following rules apply in the event of the death of a Participant while the Participant is an Employee,
director or Consultant of the Company or of an Affiliate: to the extent the forfeiture provisions or the Company’s rights of repurchase
have not lapsed on the date of death, they shall be exercisable; provided, however, that in the event such forfeiture provisions or rights
of repurchase lapse periodically, such provisions or rights shall lapse to the extent of a pro rata portion of the Shares subject to such
Stock Grant or Stock-Based Award through the date of death as would have lapsed had the Participant not died. The proration shall be based
upon the number of days accrued prior to the Participant’s date of death.
23. PURCHASE FOR INVESTMENT.
(a)
Unless the offering and sale of the Shares shall have been effectively registered under the Securities Act, the Company shall be
under no obligation to issue Shares under the Plan unless and until the following conditions have been fulfilled:
(b)
The person who receives a Stock Right shall warrant to the Company, prior to the receipt of Shares, that such person is acquiring
such Shares for his or her own account, for investment, and not with a view to, or for sale in connection with, the distribution of any
such Shares, in which event the person acquiring such Shares shall be bound by the provisions of the following legend (or a legend in
substantially similar form) which shall be endorsed upon the certificate evidencing the Shares issued pursuant to such exercise or such
grant of a Stock Right:
“The shares represented
by this certificate have been taken for investment and they may not be sold or otherwise transferred by any person, including a pledgee,
unless (1) either (a) a Registration Statement with respect to such shares shall be effective under the Securities Act of 1933, as amended,
or (b) the Company shall have received an opinion of counsel satisfactory to it that an exemption from registration under such Act is
then available, and (2) there shall have been compliance with all applicable state securities laws.”
24. DISSOLUTION OR LIQUIDATION OF THE COMPANY.
Upon the dissolution or liquidation
of the Company, all Options granted under this Plan which as of such date shall not have been exercised and all Stock Grants and Stock-Based
Awards which have not been accepted, to the extent required under the applicable Agreement, will terminate and become null and void; provided,
however, that if the rights of a Participant or a Participant’s Survivors have not otherwise terminated and expired, the Participant
or the Participant’s Survivors will have the right immediately prior to such dissolution or liquidation to exercise or accept any
Stock Right to the extent that the Stock Right is exercisable or subject to acceptance as of the date immediately prior to such dissolution
or liquidation. Upon the dissolution or liquidation of the Company, any outstanding Stock-Based Awards shall immediately terminate unless
otherwise determined by the Administrator or specifically provided in the applicable Agreement.
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25. ADJUSTMENTS.
Upon the occurrence of any
of the following events, a Participant’s rights with respect to any Stock Right granted to such Participant hereunder shall be adjusted
as hereinafter provided, unless otherwise specifically provided in a Participant’s Agreement.
(a)
Stock Dividends and Stock Splits.
(i)
If (1) the shares of Common Stock shall be subdivided or combined into a greater or smaller number of shares or if the Company
shall issue any shares of Common Stock as a stock dividend on its outstanding Common Stock, or (2) additional shares or new or different
shares or other securities of the Company or other non-cash assets are distributed with respect to such shares of Common Stock, each Stock
Right and the number of shares of Common Stock deliverable thereunder shall be appropriately increased or decreased proportionately, and
appropriate adjustments shall be made including, in the exercise, base or purchase price per share and in the Performance Goals applicable
to outstanding Performance-Based Awards to reflect such events. The number of Shares subject to the limitations in Paragraphs 3(a), 3(b),
3(d) and 4(c) shall also be proportionately adjusted upon the occurrence of such events.
(ii)
The Administrator may also make adjustments of the type described in Paragraph 25(a) above to take into account distributions to
stockholders other than those provided for in Paragraphs 25(b) below, or any other event, if the Administrator determines that adjustments
are appropriate to avoid distortion in the operation of the Plan or any award, having due regard for the qualification of ISOs under Section
422, the requirements of Section 409A, to the extent applicable.
(iii)
References in the Plan to Shares will be construed to include any stock or securities resulting from an adjustment pursuant to
this Paragraph 25(a).
(b)
Corporate Transactions. Upon a Corporate Transaction, the Administrator or the board of directors of any entity assuming
the obligations of the Company hereunder (the “Successor Board”), may, as to outstanding Options, take any of the following
actions: (i) make appropriate provision for the continuation of such Options by substituting on an equitable basis for the Shares then
subject to such Options either the consideration payable with respect to the outstanding shares of Common Stock in connection with the
Corporate Transaction or securities of any successor or acquiring entity; or (ii) upon written notice/ to the Participants,
provide that such Options must be exercised (either (A) to the extent then exercisable or (B) at the discretion of the Administrator,
any such Options being made partially or fully exercisable for purposes of this Subparagraph), within a specified number of days of the
date of such notice, at the end of which period such Options which have not been exercised shall terminate; or (iii) terminate such Options
in exchange for payment of an amount equal to the consideration payable upon consummation of such Corporate Transaction to a holder of
the number of shares of Common Stock into which such Option would have been exercisable (either (A) to the extent then exercisable or,
(B) at the discretion of the Administrator, any such Options being made partially or fully exercisable for purposes of this Subparagraph)
less the aggregate exercise price thereof. For purposes of determining the payments to be made pursuant to Subclause (iii) above, in the
case of a Corporate Transaction the consideration for which, in whole or in part, is other than cash, the consideration other than cash
shall be valued at the fair value thereof as determined in good faith by the Board of Directors. For the avoidance of doubt, if the per
share exercise price of an Option or portion thereof is equal to or greater than the Fair Market Value of one Share of Common Stock, such
Option may be cancelled with no payment due hereunder or otherwise in respect thereof.
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With respect to outstanding
Stock Grants or Stock-Based Awards, the Administrator or the Successor Board, shall make appropriate provision for the continuation of
such Stock Grants or Stock-Based Awards on the same terms and conditions by substituting on an equitable basis for the Shares then subject
to such Stock Grants or Stock-Based Awards either the consideration payable with respect to the outstanding Shares of Common Stock in
connection with the Corporate Transaction or securities of any successor or acquiring entity. In lieu of the foregoing, in connection
with any Corporate Transaction, the Administrator may provide that, upon consummation of the Corporate Transaction, each outstanding Stock
Grant or Stock-Based Award shall be terminated in exchange for payment of an amount equal to the consideration payable upon consummation
of such Corporate Transaction to a holder of the number of shares of Common Stock comprising such Stock Grantor Stock-Based Award (to
the extent such Stock Grant or Stock-Based Award is no longer subject to any forfeiture or repurchase rights then in effect or, at the
discretion of the Administrator, all forfeiture and repurchase rights being waived). For the avoidance of doubt, if the purchase or base
price of a Stock Grant or Stock-Based Award or portion thereof is equal to or greater than the Fair Market Value of one Share of Common
Stock, such Stock Grant or Stock-Based Award, as applicable, may be cancelled with no payment due hereunder or otherwise in respect thereof.
In taking any of the actions
permitted under this Paragraph 25(b), the Administrator shall not be obligated by the Plan to treat all Stock Rights, all Stock Rights
held by a Participant, or all Stock Rights of the same type, identically.
A Stock Right may be subject
to additional acceleration of vesting and exercisability upon or after a Change of Control as may be provided in the Agreement for such
Stock Right, in any other written agreement between the Company or any Affiliate and the Participant or in any director compensation policy
of the Company.
(c)
Recapitalization or Reorganization. In the event of a recapitalization or reorganization of the Company other than a Corporate
Transaction pursuant to which securities of the Company or of another corporation are issued with respect to the outstanding shares of
Common Stock, a Participant upon exercising an Option or accepting a Stock Grant after the recapitalization or reorganization shall be
entitled to receive for the price paid upon such exercise or acceptance if any, the number of replacement securities which would have
been received if such Option had been exercised or Stock Grant accepted prior to such recapitalization or reorganization.
(d)
Adjustments to Stock-Based Awards. Upon the happening of any of the events described in Subparagraphs (a), (b) or (c) above,
any outstanding Stock-Based Award shall be appropriately adjusted to reflect the events described in such Subparagraphs. The Administrator
or the Successor Board shall determine the specific adjustments to be made under this Paragraph 25, including, but not limited to the
effect of any, Corporate Transaction and, subject to Paragraph 4, its determination shall be conclusive.
(e)
Termination of Awards upon Consummation of Corporate Transaction. Except as the Administrator may otherwise determine, each
Stock Right will automatically terminate (and in the case of outstanding Shares of restricted Common Stock, will automatically be forfeited)
immediately upon the consummation of a Corporate Transaction, other than (i) any award that is assumed, continued or substituted pursuant
to Paragraph 24(b) above, and (ii) any cash award that by its terms, or as a result of action taken by the Administrator, continues following
the consummation of the Corporate Transaction.
26. ISSUANCES OF SECURITIES.
(a)
Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of
shares subject to Stock Rights. Except as expressly provided herein, no adjustments shall be made for dividends paid in cash or in property
(including without limitation, securities) of the Company prior to any issuance of Shares pursuant to a Stock Right.
16
(b)
The Company will not be obligated to issue any Shares pursuant to the Plan or to remove any restriction from Shares previously
issued under the Plan until: (i) the Company is satisfied that all legal matters in connection with the issuance of such Shares have been
addressed and resolved; (ii) if the outstanding Shares is at the time of issuance listed on any stock exchange or national market system,
the Shares to be issued have been listed or authorized to be listed on such exchange or system upon official notice of issuance; and (iii)
all conditions of the award have been satisfied or waived. The Company may require, as a condition to the exercise of an award or the
issuance of Shares under an award, such representations or agreements as counsel for the Company may consider appropriate to avoid violation
of the Securities Act, as amended, or any applicable state or non-U.S. securities law. Any Shares issued under the Plan will be evidenced
in such manner as the Administrator determines appropriate, including book-entry registration or delivery of stock certificates. In the
event that the Administrator determines that stock certificates will be issued in connection with Shares issued under the Plan, the Administrator
may require that such certificates bear an appropriate legend reflecting any restriction on transfer applicable to such Stock, and the
Company may hold the certificates pending the lapse of the applicable restrictions.
27. FRACTIONAL SHARES.
No fractional shares shall
be issued under the Plan and the person exercising a Stock Right shall receive from the Company cash in lieu of such fractional shares
equal to the Fair Market Value thereof.
28. WITHHOLDING.
In the event that any federal,
state, or local income taxes, employment taxes, Federal Insurance Contributions Act withholdings or other amounts are required by applicable
law or governmental regulation to be withheld from the Participant’s salary, wages or other remuneration in connection with the
issuance of a Stock Right or Shares under the Plan or for any other reason required by law, the Company may withhold from the Participant’s
compensation, if any, or may require that the Participant advance in cash to the Company, or to any Affiliate of the Company which employs
or employed the Participant, the statutory minimum amount of such withholdings unless a different withholding arrangement, including the
use of shares of the Company’s Common Stock or a promissory note, is authorized by the Administrator (and permitted by law). For
purposes hereof, the fair market value of the shares withheld for purposes of payroll withholding shall be determined in the manner set
forth under the definition of Fair Market Value provided in Paragraph 1 above, as of the most recent practicable date. If the Fair Market
Value of the shares withheld is less than the amount of payroll withholdings required, the Participant may be required to advance the
difference in cash to the Company or the Affiliate employer.
29. TERMINATION OF THE PLAN.
The Plan will terminate on
July 1, 2036, the date which is ten years from the date of its adoption
by the Board of Directors. The Plan may be terminated at an earlier date by vote of the shareholders or the Board of Directors of the
Company; provided, however, that any such earlier termination shall not affect any Agreements executed prior to the effective date of
such termination. Termination of the Plan shall not affect any Stock Rights theretofore granted.
30. AMENDMENT OF THE PLAN AND AGREEMENTS.
The Plan may be amended by
the shareholders of the Company. The Plan may also be amended by the Administrator; provided that any amendment approved by the Administrator
which the Administrator determines is of a scope that requires shareholder approval shall be subject to obtaining such shareholder approval
including, without limitation, to the extent necessary to qualify any or all outstanding Stock Rights granted under the Plan or Stock
Rights to be granted under the Plan for favorable federal income tax treatment as may be afforded ISOs under Section 422 and to the extent
necessary to qualify the Shares issuable under the Plan for listing on any national securities exchange or quotation in any national automated
quotation system of securities dealers. Any modification or amendment of the Plan shall not, without the consent of a Participant, adversely
affect his or her rights under a Stock Right previously granted to such Participant, unless such amendment is required by applicable law
or necessary to preserve the economic value of such Stock Right. With the consent of the Participant affected, the Administrator may amend
outstanding Agreements in a manner which may be adverse to such Participant but which is not inconsistent with the Plan. In the discretion
of the Administrator, outstanding Agreements may be amended by the Administrator in a manner which is not adverse to the Participant.
Nothing in this Paragraph 30 shall limit the Administrator’s authority to take any action permitted pursuant to Paragraph 25.
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31. EMPLOYMENT OR OTHER RELATIONSHIP.
Nothing in this Plan or any
Agreement shall be deemed to prevent the Company or an Affiliate from terminating the employment, consultancy or director status of a
Participant, nor to prevent a Participant from terminating his or her own employment, consultancy or director status or to give any Participant
a right to be retained in employment or other service by the Company or any Affiliate for any period of time.
32. SECTION 409A AND SECTION 422.
The Company intends that the
Plan and any Stock Rights granted hereunder be exempt from or comply with Section 409A, to the extent applicable. The Company intends
that ISOs comply with Section 422, to the extent applicable. Any ambiguities in the Plan or any Stock Right shall be construed to effect
the intent as described in this Paragraph 32.
If a Participant is a “specified
employee” as defined in Section 409A (and as applied according to procedures of the Company and its Affiliates) as of such Participant’s
separation from service, to the extent any payment under this Plan or pursuant to a Stock Right constitutes non-exempt deferred compensation
under Section 409A that is being paid by reason of the separation from service, no payments due under this Plan or pursuant to a Stock
Right may be made until the earlier of: (i) the first day of the seventh month following the Participant’s separation from service,
or (ii) the Participant’s date of death; provided, however, that any payments delayed during this six-month period shall be paid
in the aggregate in a lump sum, without interest, on the first day of the seventh month following the Participant’s separation from
service.
The Administrator shall administer
the Plan with a view toward ensuring that Stock Rights under the Plan that are subject to Section 409A or Section 422, as applicable comply
with the requirements thereof and that Options under the Plan be exempt from the requirements of Section 409A or compliant with Section
422, as applicable, but neither the Administrator nor any member of the Board of Directors, nor the Company nor any of its Affiliates,
nor any other person acting hereunder on behalf of the Company, the Administrator or the Board of Directors shall be liable to a Participant
or any Survivor by reason of the acceleration of any income, or the imposition of any additional tax or penalty, with respect to a Stock
Right, whether by reason of a failure to satisfy the requirements of Section 409A or Section 422 or otherwise.
33. INDEMNITY.
Neither the Board of Directors
nor the Administrator, nor any members of either, nor any employees of the Company or any parent, subsidiary, or other Affiliate, shall
be liable for any act, omission, interpretation, construction or determination made in good faith in connection with their responsibilities
with respect to this Plan, and the Company hereby agrees to indemnify the members of the Board or Directors, the members of the Committee,
and the employees of the Company and its parent or subsidiaries in respect of any claim, loss, damage, or expense (including reasonable
counsel fees) arising from any such act, omission, interpretation, construction or determination to the full extent permitted by law.
18
34. CLAWBACK.
Notwithstanding anything to
the contrary contained in this Plan, the Company may recover from a Participant any compensation received from any Stock Right (whether
or not settled) or cause a Participant to forfeit any Stock Right (whether or not vested) in the event that the Company’s Clawback
Policy as then in effect is triggered.
35. GOVERNING LAW.
This Plan shall be construed
and enforced in accordance with the law of the State of Delaware.
36. WAIVER OF JURY TRIAL.
By accepting or being deemed
to have accepted an award under the Plan, each Participant waives (or will be deemed to have waived), to the maximum extent permitted
under applicable law, any right to a trial by jury in any action, proceeding or counterclaim concerning any rights under the Plan or any
award, or under any amendment, waiver, consent, instrument, document or other agreement delivered or which in the future may be delivered
in connection therewith, and agrees (or will be deemed to have agreed) that any such action, proceedings or counterclaim will be tried
before a court and not before a jury. By accepting or being deemed to have accepted an award under the Plan, each Participant certifies
that no officer, representative, or attorney of the Company has represented, expressly or otherwise, that the Company would not, in the
event of any action, proceeding or counterclaim, seek to enforce the foregoing waivers. Notwithstanding anything to the contrary in the
Plan, nothing herein is to be construed as limiting the ability of the Company and a Participant to agree to submit any dispute arising
under the terms of the Plan or any ward to binding arbitration or as limiting the ability of the Company to require any individual to
agree to submit such disputes to binding arbitration as a condition of receiving an award hereunder.
37. UNFUNDED OBLIGATIONS.
The Company’s obligations
under the Plan are unfunded, and no Participant will have any right to specific assets of the Company in respect of any award under the
Plan. Participants will be general unsecured creditors of the Company with respect to any amounts due or payable under the Plan.
19
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2619389d2_ex10-2.htm · Sequence: 3
Exhibit 10.2
Restricted Stock Unit No.________
NETLIST, INC.
Restricted Stock Unit Award Grant Notice
Restricted Stock Unit Award Grant under the
Company’s
Netlist, Inc. 2026 Performance Equity Plan
Name:
Grant Number:
Grant Date:
Grant Type:
Grant Shares:
Vesting of Award:
This Restricted Stock Unit Award shall vest as follows provided the Participant is an Employee, director or Consultant of the Company
or of an Affiliate on the applicable vesting date:
Number of Restricted Stock Units
Performance Goals
The Company and the Participant
acknowledge receipt of this Restricted Stock Unit Award Grant Notice and agree to the terms of the Restricted Stock Unit Agreement attached
hereto and incorporated by reference herein, the Company’s 2026 Performance Equity Plan and the terms of this Restricted Stock Unit
Award as set forth above.
NETLIST, INC.
By:
Name:
Title:
Participant
NETLIST, INC.
RESTRICTED STOCK UNIT AGREEMENT
INCORPORATED TERMS AND CONDITIONS
AGREEMENT (this “Agreement”)
made as of the date of grant set forth in the Restricted Stock Unit Award Grant Notice between Netlist, Inc. (the “Company”),
a Delaware corporation, and the individual whose name appears on the Restricted Stock Unit Award Grant Notice (the “Participant”).
WHEREAS, the Company has adopted the Netlist, Inc.
2026 Performance Equity Plan (the “Plan”), to promote the interests of the Company by providing an incentive for Employees,
directors and Consultants of the Company and its Affiliates;
WHEREAS, pursuant to the provisions
of the Plan, the Company desires to grant to the Participant restricted stock units (“RSUs”) related to the Company’s
common stock, $0.001 par value per share (“Common Stock”), in accordance with the provisions of the Plan, all on the
terms and conditions hereinafter set forth; and
WHEREAS, the Company and the
Participant understand and agree that any terms used and not defined herein have the meanings ascribed to such terms in the Plan.
NOW, THEREFORE, in consideration
of the promises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Grant of Award.
The Company hereby grants
to the Participant an award for the number of RSUs set forth in the Restricted Stock Unit Award Grant Notice (the “Award”).
Each RSU represents a contingent entitlement of the Participant to receive one share of Common Stock, on the terms and conditions and
subject to all the limitations set forth herein and in the Plan, which is incorporated herein by reference. The Participant acknowledges
receipt of a copy of the Plan.
2. Vesting of Award.
(a)
Subject to the terms and conditions set forth in this Agreement and the Plan, the Award granted hereby shall vest as set forth
in the Restricted Stock Unit Award Grant Notice and is subject to the other terms and conditions of this Agreement and the Plan. On each
vesting date set forth in the Restricted Stock Unit Award Grant Notice, the Participant shall be entitled to receive such number of shares
of Common Stock equivalent to the number of RSUs as set forth in the Restricted Stock Unit Award Grant Notice provided that the Participant
is providing service to the Company or an Affiliate on such vesting date. Such shares of Common Stock shall thereafter be delivered by
the Company to the Participant within five business days of the applicable vesting date and in accordance with this Agreement and the
Plan.
(b)
Except as otherwise set forth in this Agreement, if the Participant ceases to be providing services for any reason to the Company
or an Affiliate (the “Termination”) prior to a vesting date set forth in the Restricted Stock Unit Award Grant Notice,
then as of the date on which the Participant’s employment or service terminates, all unvested RSUs shall immediately be forfeited
to the Company and this Agreement shall terminate and be of no further force or effect.
3. Prohibitions on Transfer and Sale.
This Award (including any
additional RSUs received by the Participant as a result of stock dividends, stock splits or any other similar transaction affecting the
Company’s securities without receipt of consideration) shall not be transferable by the Participant otherwise than (i) by will or
by the laws of descent and distribution, or (ii) pursuant to a qualified domestic relations order as defined by the Internal Revenue Code
or Title I of the Employee Retirement Income Security Act or the rules thereunder. Except as provided in the previous sentence, the shares
of Common Stock to be issued pursuant to this Agreement shall be issued, during the Participant’s lifetime, only to the Participant
(or, in the event of legal incapacity or incompetence, to the Participant’s guardian or representative). This Award shall not be
assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and shall not be subject to execution, attachment
or similar process. Any attempted transfer, assignment, pledge, hypothecation or other disposition of this Award or of any rights granted
hereunder contrary to the provisions of this Section 3, or the levy of any attachment or similar process upon this Award shall be null
and void.
4. Adjustments.
The Plan contains provisions
covering the treatment of RSUs and shares of Common Stock in a number of contingencies such as stock splits. Provisions in the Plan for
adjustment with respect to this Award and the related provisions with respect to successors to the business of the Company are hereby
made applicable hereunder and are incorporated herein by reference.
5.
Securities Law Compliance.
The Participant specifically
acknowledges and agrees that any sales of shares of Common Stock shall be made in accordance with the requirements of the Securities Act
of 1933, as amended. The Company currently has an effective registration statement on file with the Securities and Exchange Commission
with respect to the Common Stock to be granted hereunder. The Company intends to maintain this registration statement but has no obligation
to do so. If the registration statement ceases to be effective for any reason, Participant will not be able to transfer or sell any of
the shares of Common Stock issued to the Participant pursuant to this Agreement unless exemptions from registration or filings under applicable
securities laws are available. Furthermore, despite registration, applicable securities laws may restrict the ability of the Participant
to sell his or her Common Stock, including due to the Participant’s affiliation with the Company. The Company shall not be obligated
to either issue the Common Stock or permit the resale of any shares of Common Stock if such issuance or resale would violate any applicable
securities law, rule or regulation.
6.
Rights as a Stockholder.
The Participant shall have
no right as a stockholder, including voting and dividend rights, with respect to the RSUs subject to this Agreement.
7.
Incorporation of the Plan.
The Participant specifically
understands and agrees that the RSUs and the shares of Common Stock to be issued under the Plan will be issued to the Participant pursuant
to the Plan, a copy of which Plan the Participant acknowledges he or she has read and understands and by which Plan he or she agrees to
be bound. The provisions of the Plan are incorporated herein by reference.
2
8. Tax Liability of the Participant and Payment of Taxes.
The Participant acknowledges
and agrees that any income or other taxes due from the Participant with respect to this Award or the shares of Common Stock to be issued
pursuant to this Agreement or otherwise sold shall be the Participant’s responsibility. Without limiting the foregoing, the Participant
agrees that if under applicable law the Participant will owe taxes at each vesting date on the portion of the Award then vested the Company
shall be entitled to immediate payment from the Participant of the amount of any tax or other amounts required to be withheld by the Company
by applicable law or regulation. Any taxes or other amounts due shall be paid, at the option of the Administrator as follows:
(a)
through reducing the number of shares of Common Stock entitled to be issued to the Participant on the applicable vesting date in
an amount up to the statutory maximum of the Participant’s total tax and other withholding obligations due and payable by the Company.
Fractional shares will not be retained to satisfy any portion of the Company’s withholding obligation. Accordingly, the Participant
agrees that in the event that the amount of withholding required would result in a fraction of a share being owed, that amount will be
satisfied by withholding the fractional amount from the Participant’s paycheck;
(b)
by requiring the Participant to deposit with the Company an amount of cash equal to the amount determined by the Company to be
required to be withheld with respect to up to the statutory maximum amount of the Participant’s total tax and other withholding
obligations due and payable by the Company or otherwise withholding from the Participant’s paycheck an amount equal to such amounts
due and payable by the Company; or
(c)
by requiring the sale by the Participant on the applicable vesting date of such number of shares of Common Stock as the Company
instructs a registered broker to sell to satisfy the Company’s withholding obligation, after deduction of the broker’s commission,
and the broker shall be required to remit to the Company the cash necessary in order for the Company to satisfy its withholding obligation.
Such sales shall be made pursuant to a mandatory “sell-to-cover” program instituted by the Company with no discretion by the
Participant with respect to any sale under the “sell-to-cover” program. To the extent the proceeds of such sale exceed the
Company’s withholding obligation the Company agrees to pay such excess cash to the Participant as soon as practicable. In addition,
if such sale is not sufficient to pay the Company’s withholding obligation the Participant agrees to pay to the Company as soon
as practicable, including through additional payroll withholding, the amount of any withholding obligation that is not satisfied by the
sale of shares of Common Stock. The Participant agrees to hold the Company and the broker harmless from all costs, damages or expenses
relating to any such sale. The Participant acknowledges that the Company and the broker are under no obligation to arrange for such sale
at any particular price. In connection with such sale of shares of Common Stock, the Participant shall execute any such documents requested
by the broker in order to effectuate the sale of shares of Common Stock and payment of the withholding obligation to the Company.
It is the Company’s
intention that the Participant’s tax obligations under this Section 8 shall be satisfied through the procedure of Subsection (c)
above, unless the Company provides notice of an alternate procedure under this Section, in its discretion. The Company shall not deliver
any shares of Common Stock to the Participant until it is satisfied that all required withholdings have been made.
9.
Participant Acknowledgements and Authorizations.
The Participant acknowledges the following:
(a)
The Company is not by the Plan or this Award obligated to continue the Participant as an employee, director or consultant of the
Company or an Affiliate.
3
(b)
The Plan is discretionary in nature and may be suspended or terminated by the Company at any time.
(c)
The grant of this Award is considered a one-time benefit and does not create a contractual or other right to receive any other
award under the Plan, benefits in lieu of awards or any other benefits in the future.
(d)
The Plan is a voluntary program of the Company and future awards, if any, will be at the sole discretion of the Company, including,
but not limited to, the timing of any grant, the amount of any award, vesting provisions and the purchase price, if any.
(e)
The value of this Award is an extraordinary item of compensation outside of the scope of the Participant’s employment or
consulting contract, if any. As such the Award is not part of normal or expected compensation for purposes of calculating any severance,
resignation, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments. The
future value of the shares of Common Stock is unknown and cannot be predicted with certainty.
(f)
The Participant (i) authorizes the Company and each Affiliate and any agent of the Company or any Affiliate administering the Plan
or providing Plan recordkeeping services, to disclose to the Company or any of its Affiliates such information and data as the Company
or any such Affiliate shall request in order to facilitate the grant of the Award and the administration of the Plan; and (ii) authorizes
the Company and each Affiliate to store and transmit such information in electronic form for the purposes set forth in this Agreement.
10. Notices.
Any notices required or permitted
by the terms of this Agreement or the Plan shall be given by recognized courier service, facsimile, registered or certified mail, return
receipt requested, addressed as follows:
If to the Company:
Netlist, Inc.
111 Academy, Suite 100
Irvine, CA 92617
Attn: Chief Financial Officer
If to the Participant at the Participant’s
most recent address as shown in the employment or stock records of the Company. Any such notice shall be deemed to have been given on
the earliest of receipt, one business day following delivery by the sender to a recognized courier service, or three business days following
mailing by registered or certified mail.
11. Assignment and Successors.
(a)
This Agreement is personal to the Participant and without the prior written consent of the Company shall not be assignable by the
Participant otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable
by the Participant’s legal representatives.
(b)
This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.
4
12. Governing Law.
This Agreement shall be construed
and enforced in accordance with the laws of the State of Delaware, without giving effect to the conflict of law principles thereof. For
the purpose of litigating any dispute that arises under this Agreement, whether at law or in equity, the parties hereby consent to exclusive
jurisdiction in the state of Delaware and agree that such litigation shall be conducted in the state courts of the state of Delaware or
the federal courts of the United States for the District of Delaware.
13. Severability.
If any provision of this
Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision or provisions shall be modified
to the extent necessary to make such provision valid and enforceable, and to the extent that this is impossible, then such provision shall
be deemed to be excised from this Agreement, and the validity, legality and enforceability of the rest of this Agreement shall not be
affected thereby.
14. Entire
Agreement.
This Agreement, together
with the Plan, constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof
and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation,
warranty, covenant or agreement not expressly set forth in this Agreement shall affect or be used to interpret, change or restrict the
express terms and provisions of this Agreement provided, however, in any event, this Agreement shall be subject to and governed by the
Plan.
15. Modifications
and Amendments; Waivers and Consents.
The terms and provisions
of this Agreement may be modified or amended as provided in the Plan. Except as provided in the Plan, the terms and provisions of this
Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the
benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect
to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
16. Section 409A.
The Award of RSUs evidenced
by this Agreement is intended to be exempt from the nonqualified deferred compensation rules of Section 409A of the Code as a “short
term deferral” (as that term is used in the final regulations and other guidance issued under Section 409A of the Code, including
Treasury Regulation Section 1.409A-1(b)(4)(i)), and shall be construed accordingly.
17. Data
Privacy.
By entering into this Agreement,
the Participant: (i) authorizes the Company and each Affiliate, and any agent of the Company or any Affiliate administering the Plan or
providing Plan recordkeeping services, to disclose to the Company or any of its Affiliates such information and data as the Company or
any such Affiliate shall request in order to facilitate the grant of options and the administration of the Plan; (ii) to the extent permitted
by applicable law waives any data privacy rights he or she may have with respect to such information, and (iii) authorizes the Company
and each Affiliate to store and transmit such information in electronic form for the purposes set forth in this Agreement.
5
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v3.26.1
Cover
Jul. 01, 2026
Cover [Abstract]
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false
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Entity File Number
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Entity Registrant Name
NETLIST, INC.
Entity Central Index Key
0001282631
Entity Tax Identification Number
95-4812784
Entity Incorporation, State or Country Code
DE
Entity Address, Address Line One
111
Academy
Entity Address, Address Line Two
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City Area Code
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Local Phone Number
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