ABOUT
THE MEETING, VOTING, STOCKHOLDER PROPOSALS
AND
COMPANY INFORMATION
Q:
Why did I receive this proxy statement?
A:
The Board of Directors is soliciting your proxy to vote at the annual meeting because you were a holder of the Company’s
shares of common stock, par value $0.01 per share (“Common Stock”), at the close of business on June 26, 2020, the
record date, and are entitled to vote at the annual meeting. The annual meeting is being held for the purposes of obtaining stockholder
approval for the following proposals (the “Proposals”):
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1.
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to
elect two Class III directors to hold office for a term expiring at the annual meeting of stockholders to be held in 2023
or until their respective successors are elected and qualified;
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2.
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to
approve the form, terms and provisions of the SINTX Technologies, Inc. 2020 Equity Incentive Plan;
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3.
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to
ratify the Audit Committee’s appointment of Tanner LLC as SINTX’s independent registered public accounting firm
for the year ending December 31, 2020;
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4.
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to
adopt, on an advisory basis, a non-binding resolution approving the compensation of the Company’s named executive officers,
as described in the Proxy Statement under “Executive Compensation”;
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5.
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to
approve the change of domicile of the Company from the State of Delaware to the State of Nevada;
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6.
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to
approve one or more adjournments of the annual meeting, if necessary or appropriate, to solicit additional proxies if there
are insufficient votes at the time of the meeting to adopt one or more of the foregoing Proposals; and
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to
act upon such other matters as may properly come before the meeting or any adjournment or postponement of the meeting.
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Q:
What information is contained in this proxy statement?
A:
The information in this proxy statement relates to the Proposals to be voted on at the annual meeting, the voting process and
certain other required information.
Q:
What should I do if I receive more than one set of voting materials?
A:
You may receive more than one set of voting materials, including multiple copies of this proxy statement and multiple proxy cards
or voting instruction cards. For example, if you hold your shares in more than one brokerage account, you may receive a separate
voting instruction card for each brokerage account in which you hold shares. If you are a stockholder of record and your shares
of Common Stock are registered in more than one name, you will receive more than one proxy card. Please complete, sign, date and
return each proxy card and voting instruction card that you receive.
Q:
How may I obtain an additional set of proxy materials?
A:
All stockholders may write to us at the following address to request an additional copy of these materials:
SINTX
Technologies, Inc.
1885
West 2100 South
Salt
Lake City, UT 84119
Attention:
Corporate Secretary
Additionally,
this proxy statement and notice of annual meeting are all available free of charge on our website at http://investors.sintx.com/annual-meetings-proxies
or from our transfer agent at http://www.astproxyportal.com/ast/22977
Q:
What is the difference between holding shares as a stockholder of record and as a beneficial owner?
A:
If your shares are registered directly in your name with our transfer agent, American Stock Transfer & Trust Company, you
are considered, with respect to those shares, the “stockholder of record.” If you are a stockholder of record, this
proxy statement and a proxy card have been sent directly to you by the Company.
If
your shares are held in a stock brokerage account or by a bank or other nominee, you are considered the “beneficial owner”
of shares held in street name. If you own shares held in street name, this proxy statement has been forwarded to you by your broker,
bank or nominee who is considered, with respect to those shares, the stockholder of record. As the beneficial owner, you have
the right to direct your broker, bank or nominee how to vote your shares by using the voting instruction card included in the
mailing or by following their instructions for voting by telephone or the Internet, if the broker, bank or nominee offers these
alternatives. Since a beneficial owner is not the stockholder of record, you may not vote these shares in person at the annual
meeting unless you obtain a “legal proxy” from the broker, bank or nominee that holds your shares, giving you the
right to vote the shares at the annual meeting.
Q:
How do I vote?
A:
You may vote using any of the following methods:
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Proxy
card or voting instruction card. Be sure to complete, sign and date the card and return it in the prepaid envelope.
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By
Internet. If you are a stockholder of record, you may vote on the Internet using the instructions in the enclosed proxy card.
If you own shares held in street name, you will receive voting instructions from your bank, broker or other nominee and may
vote by telephone or on the Internet if they offer that alternative.
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In
person at the annual meeting. All stockholders may vote in person at the annual meeting. You may also be represented by another
person at the annual meeting by executing a proper proxy designating that person. If you own shares held in street name, you
must obtain a legal proxy from your bank, broker or other nominee and present it to the inspector of election with your ballot
when you vote at the annual meeting.
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Q:
What can I do if I change my mind after I vote my shares?
A:
If you are a stockholder of record, you may revoke your proxy at any time before it is voted at the annual meeting by:
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sending
written notice of revocation to our Corporate Secretary;
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submitting
a new, proper proxy dated later than the date of the revoked proxy; or
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attending
the annual meeting and voting in person.
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If
you own shares held in street name, you may submit new voting instructions by contacting your broker, bank or nominee. You may
also vote in person at the annual meeting if you obtain a legal proxy as described in the answer to the previous question. Attendance
at the annual meeting will not, by itself, revoke a proxy.
Q:
What if I return a signed proxy card, but do not vote for some of the matters listed on the proxy card?
A:
If you return a signed proxy card without indicating your vote, your shares will be voted in accordance with the Board of Director’s
recommendations, “FOR” the approval of Proposal No. 1, “FOR” Proposal No. 2, “FOR” Proposal
No. 3, “FOR” Proposal No. 4, “FOR” the approval of Proposal No. 5, and “FOR” the approval
of Proposal No. 6.
Q:
Can my broker vote my shares for me without my instructions?
A:
Your broker or nominee will have discretionary authority to vote your shares with respect to “routine” proposals such
as Proposals No. 3 and No. 6. Proposals Nos. 1, 2, 4 and 5 are not considered routine and your broker or nominee will not have
discretionary authority to vote your shares on those proposals without your direction. Please provide voting instructions on the
proposals described herein so your vote can be counted.
Q:
Can my shares be voted if I do not return my proxy card or voting instruction card and do not attend the annual meeting?
A:
If you do not vote your shares held of record (registered directly in your name, not in the name of a bank or broker), your shares
will not be voted.
If you do not vote your shares held in street
name with a broker, your broker will not be authorized to vote on Proposal No. 1, Proposal No. 2., Proposal No. 4 and
Proposal No. 5, but will be authorized to vote on Proposal 3 and Proposal 6.
Q:
What are the voting requirements with respect to each of the Proposals?
A:
Proposal No. 1. The two nominees for Class III director receiving the highest number of votes will be elected Class III
directors. The proxy card enables a stockholder to vote “FOR” or “WITHHOLD” from voting as to each person
nominated by the Board. “Withhold” votes and broker non-votes are not considered votes cast for the foregoing purpose
and will have no effect on the election of the nominees.
Proposal
No. 2. The affirmative (“FOR”) vote of the holders of a majority of the votes present in person or represented
by proxy and entitled to vote on this Proposal and cast at the annual meeting is necessary to approve Proposal No. 2. Abstentions
will have the same effect as votes against Proposal No. 2. We believe brokerage firms do not have authority to vote customers’
unvoted shares held by the firms in street name on this Proposal.
Proposal
No. 3. This proposal requires the affirmative vote of a majority of the votes cast. Any shares not voted (whether by abstention
or otherwise) have no impact on the vote. We believe brokerage firms have authority to vote customers’ unvoted shares held
by the firms in street name on this Proposal.
Proposal
No. 4. The affirmative (“FOR”) vote of the holders of a majority of the votes present in person or represented
by proxy and entitled to vote on this Proposal and cast at the annual meeting is necessary to approve Proposal No. 4. Because
abstentions and broker non- votes are not considered votes cast, they will have no effect on the vote. We believe brokerage firms
do not have authority to vote customers’ unvoted shares held by the firms in street name on this Proposal.
Proposal
No. 5. The affirmative (“FOR”) vote of the holders of a majority of the votes outstanding and entitled to vote
at the Annual Meeting is necessary to approve Proposal No. 4. Abstentions will have the same effect as votes against Proposal
No. 4. We believe brokerage firms do not have authority to vote customers’ unvoted shares held by the firms in street name
on this Proposal.
Proposal
No. 6. The affirmative (“FOR”) vote of the holders of a majority of the votes present in person or represented
by proxy and entitled to vote on this Proposal and cast at the annual meeting is necessary to approve Proposal No. 6. Abstentions
will have the same effect as votes against Proposal No. 6. We believe brokerage firms have authority to vote customers’
unvoted shares held by the firms in street name on this Proposal.
Q:
How many votes do I have?
A:
As of June 26, 2020, the record date, there were 16,978,777 shares of our Common Stock outstanding and entitled to vote. Each
share of our Common Stock that you own entitles you to one vote.
Q:
What happens if additional matters are presented at the annual meeting?
A:
Other than the items of business described in this proxy statement, we are not aware of any other business to be acted upon at
the annual meeting. If you grant a proxy, the persons named as proxy holders, B. Sonny Bal and David O’Brien, will have
the discretion to vote your shares on any additional matters properly presented for a vote at the annual meeting.
Q:
How many shares must be present or represented to conduct business at the annual meeting?
A:
A quorum will be present if at least a majority of the outstanding shares of our Common Stock entitled to vote is represented
at the annual meeting, either in person or by proxy.
Both
abstentions and broker non-votes (described below) are counted for the purpose of determining the presence of a quorum.
Q:
How can I attend the annual meeting?
A:
You are entitled to attend the annual meeting only if you were a stockholder of SINTX as of the close of business on June 26,
2020, the record date, or if you hold a valid proxy for the annual meeting. You should be prepared to present photo identification
for admittance. If you are a stockholder of record, your name will be verified against the list of stockholders of record on the
record date prior to your admission to the annual meeting. If you are not a stockholder of record, but hold shares through a broker,
bank or nominee (i.e., in street name), you should provide proof of beneficial ownership on the record date, such as your most
recent account statement prior to the record date, a copy of the voting instruction card provided by your broker, bank or nominee,
or other similar evidence of ownership. If you do not provide photo identification or comply with the other procedures outlined
above, you will not be admitted to the annual meeting.
The
annual meeting will begin promptly at 10:00 a.m., local time on August 13, 2020. You should allow adequate time for check-in procedures.
We
are carefully monitoring the public health impact of the coronavirus (COVID-19) on a daily basis, and may decide to forego the
physical, in person Annual Meeting in favor of a virtual-only Annual Meeting or some other alternative depending on the situation.
While we understand this could disrupt the travel plans of those who plan to attend, our first priority is the health and safety
of our communities, shareholders, employees and other stakeholders. In the event we decide to hold a virtual-only Annual Meeting
or some other alternative, shareholders will be notified and provided with additional details in a press release and pursuant
to filings we make with the SEC. At any virtual-only Annual Meeting, we will ensure that all shareholders or their proxyholder
have the ability to participate, ask questions and vote their shares. As always, we encourage you to vote your shares prior to
the Annual Meeting.
Q:
How can I vote my shares in person at the annual meeting?
A:
Shares held in your name as the stockholder of record may be voted in person at the annual meeting. Shares held beneficially in
street name may be voted in person at the annual meeting only if you obtain a legal proxy from the broker, bank or nominee that
holds the shares giving you the right to vote the shares. Even if you plan to attend the annual meeting, we recommend that you
also submit your proxy card or voting instruction card as described herein so your vote will be counted if you later decide not
to attend the annual meeting.
Q:
What is the deadline for voting my shares?
A:
If you hold shares as the stockholder of record, your vote by proxy must be received before the polls close at the annual meeting,
except that proxies submitted by the Internet must be received by 11:59 p.m., Eastern Time, on August 12, 2020.
If
you hold shares beneficially in street name, please follow the voting instructions provided by your broker, bank or nominee. You
may vote these shares in person at the annual meeting only if at the annual meeting you provide a legal proxy obtained from your
broker, bank or nominee.
Q:
Is my vote confidential?
A:
Proxy instructions, ballots and voting tabulations that identify individual stockholders are handled in a manner that protects
your voting privacy. Your vote will not be disclosed either within SINTX or to third parties, except: (1) as necessary to meet
applicable legal requirements; (2) to allow for the tabulation of votes and certification of the vote; and (3) to facilitate a
successful proxy solicitation. Occasionally, stockholders provide written comments on their proxy card, which are then forwarded
to our management.
Q:
What is a broker non-vote?
A:
A broker non-vote occurs when a broker does not vote on a particular proposal with respect to shares of Common Stock held in a
fiduciary capacity (typically referred to as being held in “street name”) because the broker has not received voting
instructions from the beneficial owner. Under the rules that govern brokers who are voting with respect to shares held in street
name, brokers have the discretion to vote such shares on routine matters, but not on non-routine matters. Routine matters include
the ratification of auditors. Non-routine matters include matters such as the election of directors, the approval of, and amendments
to, stock plans, the approval of, and amendments to by-laws and corporate charter documents and change in corporate domicile.
Therefore, if you do not give your broker or nominee specific instructions, your shares will not be voted on non-routine matters
and may not be voted on routine matters. However, shares represented by such “broker non-votes” will be counted in
determining whether there is a quorum present at the annual meeting for the purpose of transacting business.
Q:
Where can I find the voting results of the annual meeting?
A:
We intend to announce preliminary voting results at the annual meeting and publish final voting results in a Current Report on
Form 8-K to be filed with the United States Securities and Exchange Commission (“SEC”) within four business days after
the annual meeting.
Q:
Who will bear the cost of soliciting votes for the annual meeting?
A:
The cost of this solicitation is being borne by SINTX. These costs will include the expense of preparing, assembling, printing
and mailing the notice, this proxy statement and any other material used in the Company’s solicitation of proxies to stockholders
of record and beneficial owners, and reimbursements paid to banks, brokerage firms, custodians and others for their reasonable
out-of-pocket expenses for forwarding proxy materials to stockholders and obtaining beneficial owners’ voting instructions.
Proxies may be solicited on our behalf by our directors, officers and regular employees by telephone or other means. There will
be no special or additional compensation for these services. Stockholders voting via the telephone or Internet should understand
that there may be costs associated with telephonic or electronic access, such as usage charges from telephone companies and internet
access providers, which must be borne by the stockholder. We have retained the services of D.F. King & Co., Inc., a professional
solicitation firm, as proxy solicitor for this annual meeting. We expect to pay D.F. King & Co., Inc. approximately $12,500
for the services it will perform as proxy solicitor in connection with this annual meeting. Further, we will reimburse D.F. King
& Co., Inc. for its reasonable out-of-pocket expenses in connection therewith. We have also agreed to indemnify D.F. King
& Co., Inc. against certain liabilities relating to or arising out of the engagement.
Q:
What if I have questions for the Company’s transfer agent?
A:
Please contact our transfer agent at the telephone number or address listed below with any questions concerning stock certificates,
transfer of ownership or other matters pertaining to your stock account.
American
Stock Transfer & Trust Company LLC
6201
15th Ave
Brooklyn
NY 11219
1-800-937-5449
help@astfinancial.com
Q:
Who can help answer my questions?
A:
If you have any questions about the annual meeting or how to vote or revoke your proxy, please contact:
SINTX
Technologies, Inc.
188
West 2100 South
Salt
Lake City, UT 84119
Attention:
Corporate Secretary
Q:
How does the Board recommend I vote my shares?
A:
The Board recommends a vote FOR each nominee for election to the Board and FOR approval of Proposals numbered 2, 3, 4, 5 and 6.
Q:
How can I bring business to be presented from the floor of the annual meeting?
A:
Stockholders may present proposals for action at a future meeting if they comply with SEC rules, state law and our Bylaws. For
nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to our Bylaws, the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation.
Q:
How can Stockholders recommend a candidate for election to the Board?
A:
Stockholders who wish to recommend a candidate for election to our Board should write to: Corporate Secretary, SINTX Technologies,
Inc., 1885 West 2100 South, Salt Lake City, UT 84119, stating in detail the qualifications of a candidate for consideration by
the Board. Additionally, our corporate Bylaws contain a detailed description of the process that must be followed by a stockholder
in order to properly nominate a candidate for election to our Board. Information on how to obtain a copy of our Bylaws is provided
below. In considering Board candidates, the Board seeks individuals of proven judgment and competence who have strong reputations
in their respective fields. The Board considers such factors as experience, education, employment history, special talents or
personal attributes, anticipated participation in Board activities, and geographic and diversity factors. The process for identifying
and evaluating nominees would include detailed consideration of the recommendations and opinions of members of our Board, our
executive officers, and our stockholders. There would be no difference in the process of evaluation of candidates recommended
by a stockholder and those recommended by other sources.
Q:
How can I communicate with the Board?
A:
Stockholders interested in communicating directly with our Board may do so by writing to: Board of Directors, SINTX Technologies,
Inc., 1885 West 2100 South, Salt Lake City, UT 84119. All such written correspondence is delivered to the director or directors
to whom it is addressed or, if addressed generally to the Board, to all directors. Concerns relating to accounting, internal controls,
or auditing matters are immediately forwarded to the Chief Executive Officer, Chief Financial Officer and Principal Accounting
Officer, and Chairman of the Audit Committee.
Q:
Will the Board attend the Annual Meeting?
A:
We encourage attendance by members of the board and senior executives, but attendance is not required.
Q:
How can a stockholder submit a Stockholder Proposal for inclusion in the 2021 Proxy Statement; Discretionary Voting
A:
Stockholders interested in submitting a proposal for inclusion in our proxy statement for next year’s annual meeting must
do so in compliance with our Bylaws and applicable SEC rules and regulations. Under Rule 14a-8 adopted by the SEC, to be considered
for inclusion in our proxy materials for our 2021 annual meeting, a stockholder proposal, including nominations for directors,
must be received in writing by our Corporate Secretary no later than 5:00 p.m. MST on March 5, 2021. If the date of our 2021 annual
meeting is moved more than 30 days before or after the anniversary date of this year’s meeting, the deadline for inclusion
of proposals in our proxy statement will instead be a reasonable time before we begin to print and mail our proxy materials next
year. Any such proposals will also need to comply with the various provisions of Rule 14a-8, which governs the basis on which
such stockholder proposals can be included or excluded from Company-sponsored proxy materials.
If
a stockholder desires to submit a proposal, including nominations for directors, for consideration at the 2021 annual meeting,
but not have the proposal included with our proxy solicitation materials relating to the 2021 annual meeting, the stockholder
must comply with the procedures set forth in our governing documents. Our Bylaws require that, for business to be properly brought
before an annual meeting by a stockholder, such stockholder must have given timely notice thereof, along with other specified
material, in proper written form to the Company. To be timely, a stockholder’s notice pertaining to an annual meeting shall
be delivered to the Corporate Secretary at the principal executive offices of the Company not less than ninety (90) or more than
one-hundred and twenty (120) days prior to the first anniversary of the date of the preceding year’s annual meeting; provided,
however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than thirty (30) days
after the previous year’s annual meeting, notice by the stockholder to be timely must be so delivered not earlier than the
close of business on the one-hundred and twentieth (120th) day prior to such annual meeting and not later than the close of business
on the later of the ninetieth (90th) day prior to such annual meeting or the close of business on the tenth (10th) day following
the day on which public announcement of the date of such meeting is first made by the Corporation.
Any
stockholder who wishes to make such a proposal should obtain a copy of the Bylaws, which contain these and other requirements
with respect to stockholder proposals and director nominations, including certain information that must be included concerning
the stockholder and each proposal and nominee. Our Bylaws were filed with the SEC as an exhibit to our Current Report on Form
8-K, filed on February 20, 2014. You may also obtain a copy by writing to our Corporate Secretary, at SINTX Technologies, Inc.,
1885 W 2100 S, Salt Lake City, UT 84119.
Q:
Where can I find More Information on SINTX
Our
corporate website is http://www.sintx.com. We make available on this website, free of charge, access to our Annual Report on Form
10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, Proxy Statement on Schedule 14A and amendments to those materials
filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable
after we electronically submit such material to the SEC. The SEC makes available on its website, free of charge, reports, proxy
and information statements, and other information regarding issuers, such as us, that file electronically with the SEC. The SEC’s
website is http://www.sec.gov.
Directors
and Officers
Directors
The
following table sets forth the names, ages, and positions with SINTX for each of our directors.
Name
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Age
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Positions
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B.
Sonny Bal, M.D.
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57
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Chairman
of the Board of Directors, President and Chief Executive Officer
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David
W. Truetzel
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63
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Director
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Jeffrey
S. White
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66
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Director
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Eric
A. Stookey
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49
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Director
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Mark
Froimson, M.D.
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59
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Director
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Our
Board is divided into three classes (Class I, Class II and Class III) with staggered three-year terms. Directors in each class
are elected to serve for three-year staggered terms that expire in successive years. Officers serve at the discretion of our Board.
The following is information on the business experience of each director now serving and a discussion of the qualifications, attributes
and skills that led to the Board of Directors’ conclusion that each one is qualified to serve as a director.
The
following is a brief summary of the background of each of our directors.
Class
III Directors— up for election at the 2020 Annual Meeting of Stockholders with a term expiring at the 2023 annual meeting
of stockholder if re-elected.
B.
Sonny Bal, M.D. has served on our Board of Directors since February 2012, as Chairman of our Board of Directors since August
2014 and as our President and Chief Executive Officer since October 2014. Dr. Bal was a tenured Professor in Orthopaedic Surgery
at the University of Missouri, Columbia, and has an extensive history of research into silicon nitride ceramics. He is Adjunct
Professor of Material Sciences at Missouri Science and Technology University at Rolla. Dr. Bal is a member of the American Academy
of Orthopaedic Surgeons, the American Association of Hip and Knee Surgeons, and the International Society of Technology in Arthroplasty.
Dr. Bal received his M.D. degree from Cornell University and an M.B.A. from Northwestern University, a J.D. from the University
of Missouri, and a Ph.D. in Engineering from the Kyoto Institute of Technology in Japan. We believe that Dr. Bal’s breadth
of experience and scientific expertise in silicon nitride qualifies him to serve as our Chairman, President and Chief Executive
Officer.
Jeffrey
S. White has served on our Board of Directors since January 2014. From January 2013 to 2018, Mr. White served as Principal
at Medtech Advisory Group LLC, a firm he founded that advises early and mid-stage medical technology firms. In that capacity Mr.
White has consulted MiMedx Group Inc., the leading amniotic tissue and allograft regenerative biomaterials firm since mid-2015
and served as Vice President, Product Management Strategies at MiMedix. Mr. White previously served as a director of Residency
Select LLC, a company which offers psychometric assessment, training and compliance products to medical and surgical residency
programs. Mr. White also served in 2014 and 2015 as President and director of Liventa Bioscience LLC, a provider of specialty
amniotic tissue allografts for use in surgical and wound care applications. From May 2006 to December 2012 he served as Global
Director of Business Development for Synthes Inc., a global orthopedic firm that was acquired by Johnson and Johnson in 2012.
Mr. White has served as Chief Executive Officer and/or co-founder of several start-up surgical device firms and has previously
held executive level positions at United States Surgical Corporation, now part of Medtronic. Mr. White holds a B.S. in Biology
from Union College in Schenectady NY. We believe that Mr. White’s experience as an executive and founder of medical device
companies qualifies him to serve on our Board of Directors.
Class
II Directors - continuing directors with a term expiring at the 2022 annual meeting of stockholders.
David
W. Truetzel has served on our Board of Directors since our acquisition of US Spine, Inc. in September 2010. Mr. Truetzel has
been the general partner of Augury Capital Partners, a private equity fund that invests in life sciences and information technology
companies, which he co-founded in 2006. Mr. Truetzel is a director of Enterprise Bank, Inc., Bonfyre, LLC, a provider of enterprise
technology management solutions, and Paranet, LLC, an IT services provider. Mr. Truetzel holds a B.S. in Business Administration
from Saint Louis University and an M.B.A. from The Wharton School. We believe that Mr. Truetzel’s financial and managerial
expertise qualify him to serve on our Board of Directors.
Eric
A. Stookey has served on our Board of Directors since October 2014. Mr. Stookey has served as Chief Operating Officer of Osteoremedies,
LLC since March of 2015. From October 2011 until August 2014, Mr. Stookey served as the President of the Extremities-Biologics
division at Wright Medical Group Inc. Mr. Stookey also served in various other marketing and sales positions at Wright Medical
Group Inc. since 1995, including as the Senior Vice President and Chief Commercial Officer from January 2010 to November 2011,
as the Vice President North American Sales from 2007 to January 2010, as the Vice President US Sales from 2005 to 2007, as the
Senior Director of Sales, Central Region, from 2003 to 2005 and as the Director of Marketing for Large Joint Reconstruction Products
from 2001 to 2003. Mr. Stookey earned his M.B.A. from Christian Brothers University and his B.S. in Business from the Indiana
University School of Business. We believe that Mr. Stookey’s industry and executive leadership experience qualifies him
to serve on our Board of Directors.
Class
I Directors - continuing directors with a term expiring at the 2021 annual meeting of stockholders.
Mark
Froimson, M.D. has served on our Board of Directors since February 2020. Dr. Froimson is currently a Principal at Riverside
Health Advisors, a consulting company that provides strategic advice and services to health care executive leaders. Dr. Froimson
served as the President of the American Association of Hip and Knee Surgeons from March 2017 to March 2018. Previously, he was
the Executive Vice President and Chief Clinical Officer of Trinity Health, a major national non-profit Catholic healthcare system
comprising 93 hospitals in 22 states. Prior to his executive leadership position at Trinity Health, Dr. Froimson was President
and Chief Executive Officer of Euclid Hospital, a Cleveland Clinic Hospital. Dr. Froimson served as a staff surgeon in the Department
of Orthopedic Surgery at the Cleveland Clinic for over 16 years, during which time he held a variety of leadership positions,
including President of the professional staff, Vice Chair of the Orthopedic and Rheumatologic Institute, and member of the board
of governors and board of trustees. Dr. Froimson also serves on the board of directors of Pacira Biosciences, Inc., a publicly
traded company on the NASDAQ Stock Market. Dr. Froimson received a B.S. in philosophy from Princeton University, an M.D. from
Tulane University School of Medicine and an MBA from the Weatherhead School of Business at Case Western Reserve University.
We
believe Dr. Froimson’s qualifications to sit on our Board include his clinical expertise and executive experience in the
medical field.
Executive
Officers
Our
current executive officers and their respective ages and positions are as follows:
Name
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Age
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Position
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B.
Sonny Bal, M.D.
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57
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Chairman
of the Board of Directors, President and Chief Executive Officer, Principal Financial Officer
|
Bryan
J. McEntire
|
|
67
|
|
Chief
Scientific Officer
|
David
O’Brien
|
|
55
|
|
Chief
Operating Officer
|
The
following is a brief summary of the background of each of our executive officers.
B.
Sonny Bal, M.D. has served on our Board of Directors since February 2012, as Chairman of our Board of Directors since August
2014 and as our President and Chief Executive Officer since October 2014. Dr. Bal was a tenured Professor in Orthopaedic Surgery
at the University of Missouri, Columbia, and has an extensive history of research into silicon nitride ceramics. He is Adjunct
Professor of Material Sciences at Missouri Science and Technology University at Rolla. Dr. Bal is a member of the American Academy
of Orthopaedic Surgeons, the American Association of Hip and Knee Surgeons, and the International Society of Technology in Arthroplasty.
Dr. Bal received his M.D. degree from Cornell University and an M.B.A. from Northwestern University, a J.D. from the University
of Missouri, and a Ph.D. in Engineering from the Kyoto Institute of Technology in Japan. We believe that Dr. Bal’s breadth
of experience and scientific expertise in silicon nitride qualifies him to serve as our Chairman, President and Chief Executive
Officer.
Bryan
J. McEntire has served as our Chief Scientific Officer since May 2012. From June 2004 to May 2012 he served as our Vice President
of Manufacturing and as our Vice President of Research from December 2006 to May 2012. Dr. McEntire has worked in various advanced
ceramic product development, quality engineering and manufacturing roles at Applied Materials, Inc., (Santa Clara, CA), Norton
Advanced Ceramics, a division of Saint-Gobain Industrial Ceramics Corporation (E. Granby, CT), Norton/TRW Ceramics (Northboro,
MA) and Ceramatec, Inc., (Salt Lake City, UT). Dr. McEntire has a BS degree in Materials Science and Engineering and an MBA both
from the University of Utah (Salt Lake City, UT), and a Ph.D. from the Kyoto Institute of Technology (Kyoto, Japan).
David
O’Brien has served as our Chief Operating Officer since July 2019. Mr. O’Brien previously served as the Company’s
Vice President and General Manager from October 2016 to July 2019 and from March 2014 through September 2016, he held prior roles
as our Vice President of Operations and Vice President of Manufacturing. Mr. O’Brien has over 30 years of experience in
engineering, manufacturing, and operations leadership in advanced materials and medical device organizations. From 2005 to 2014,
he fulfilled several engineering leadership roles for Covidien including Manufacturing Engineering Manager for the Norfolk, Nebraska
facility. From 1991 to 2005, he worked for Arnold Magnetic Technologies in the production of ceramic, powder metal and molded
magnets in multiple facilities across the U.S. and in England. He has extensive experience with Lean and other Continuous Improvement
initiatives. Mr. O’Brien holds an M.S. in Ceramic Engineering from the Georgia Institute of Technology, and a B.S. in Physics
from the University of Texas at San Antonio.
Arrangements
between Officers and Directors
To
our knowledge, there is no arrangement or understanding between any of our directors, officers and any other person, pursuant
to which the director or officer was selected to serve in such capacity.
Family
Relationships
None
of our directors are related by blood, marriage, or adoption to any other director, executive officer, or other key employees.
Other
Directorships
Except
for Dr. Froimson who also serves on the board of directors of Pacira Biosciences, Inc., a publicly traded company on the NASDAQ
Stock Market, none of the directors of the Company are also directors of issuers with a class of securities registered under Section
12 of the Exchange Act (or which otherwise are required to file periodic reports under the Exchange Act).
Other
Involvement in Certain Legal Proceedings
None
of our directors or executive officers has been involved in any bankruptcy or criminal proceedings (other than traffic and other
minor offenses) or been subject to any of the items set forth under Item 401(f) of Regulation S-K, nor have there been any judgments
or injunctions brought against any of our directors or executive officers during the last ten years that we consider material
to the evaluation of the ability and integrity of any director or executive officer.
The
Board and Committees
Our
Board of Directors has five members. The Chairman of the Board and our Chief Executive Officer, B. Sonny Bal, MD, PhD, is a member
of the Board and is a full-time employee of SINTX. David W. Truetzel, Eric A. Stookey, Jeffrey S. White, and Mark Froimson are
non-employee directors, and the Board has determined that these persons (who constitute a majority of the Board) are “independent
directors” under the criteria set forth in Rule 5605(a)(2) of the Nasdaq Listing Rules. The Board met four (4) times during
the year ended December 31, 2019. All directors, except for Dr. Froimson who was not a member of the board of directors during
2019, attended all of the meetings of the Board and committee meetings of which such director was a member held during 2019.
In
accordance with our restated Certificate of Incorporation, our Board of Directors is divided into three classes with staggered
three-year terms. At each annual meeting of stockholders, the successors to the directors whose terms then expire will be elected
to serve until the third annual meeting following such election. Our directors are divided among the three classes as follows:
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●
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The
Class I director is Mark Froimson and his term will expire at the annual meeting of stockholders to be held in 2021.
|
|
|
|
|
●
|
The
Class II directors are David W. Truetzel and Eric A. Stookey, and their terms expire at the 2022 annual meeting of stockholders.
|
|
|
|
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●
|
The
Class III directors are B. Sonny Bal, M.D. and Jeffrey S. White, and their terms will expire at the annual meeting of stockholders
to be held in 2020
|
Any
additional directorships resulting from an increase in the number of directors will be distributed among the three classes so
that, as nearly as possible, each class will consist of one-third of the directors.
Our
Board of Directors has three permanent committees: the Audit Committee, the Compensation Committee, and the Corporate Governance
and Nominating Committee. The written charters for these committees are on our website at https://ir.sintx.com/corporate-governance.
Our Board of Directors may from time to time establish other standing committees. In addition, from time to time, special committees
may be established under the direction of our Board of Directors when necessary to address specific issues.
The
following table sets forth a description of the three permanent Board committees and the chairpersons and members of those committees,
all of whom are independent directors:
Committee
|
|
Independent
Chairman
|
|
Independent
Members
|
|
|
|
|
|
|
|
Audit
Committee
|
|
David
W. Truetzel
|
|
Eric
A. Stookey
|
|
Jeffrey
S. White
|
|
|
|
|
|
|
|
Compensation
Committee
|
|
Jeffrey
S. White
|
|
David
W. Truetzel
|
|
Eric
A. Stookey
|
|
|
|
|
|
|
|
Governance
and Nominating Committee
|
|
Eric
A. Stookey
|
|
Jeffrey
S. White
|
|
David
W. Truetzel
|
Corporate
Governance and Nominating Committee
The
Corporate Governance and Nominating Committee is currently comprised of the following members: Eric A. Stookey (Chairman), David
W. Truetzel and Jeffrey S White. Among other items, the Corporate Governance and Nominating Committee is tasked by the Board to:
(1) identify individuals qualified to serve as members of the Board and, recommend individuals to be nominated by the Board for
election by the stockholders or to be appointed by the Board to fill vacancies consistent with the criteria approved by the Board;
(2) develop and periodically evaluate and recommend changes to SINTX’s Corporate Governance Guidelines and Code of Ethics,
and to review the Company’s policies and programs that relate to matters of corporate responsibility, including public issues
of significance to the Company and its stakeholders; and (3) oversee an annual evaluation of the performance of the Board. The
Board has determined that each of the members of the Corporate Governance and Nominating Committee is “independent”
under the standard set forth in Rule 5605(a)(2) of the Nasdaq Listing Rules. The Corporate Governance and Nominating Committee
did not meet as a separate committee in 2019, but rather, because the committee is comprised of all three independent directors
of the board, governance matters were addressed as necessary in meetings of the Board. The Corporate Governance and Nominating
Committee operates under a written charter adopted by the Board of Directors, which sets forth the responsibilities and powers
delegated by the Board to the Corporate Governance and Nominating Committee.
Board
Nominations
In
considering Board candidates, the Board seeks individuals of proven judgment and competence who have strong reputations in their
respective fields. Although we do not have a formal diversity policy, the Board considers such factors as experience, education,
employment history, special talents or personal attributes, anticipated participation in Board activities, and geographic and
diversity factors. The process for identifying and evaluating nominees would include detailed consideration of the recommendations
and opinions of members of our Board, our executive officers, and our stockholders. There would be no difference in the process
of evaluation of candidates recommended by a stockholder and those recommended by other sources.
The
Nominating and Governance Committee has adopted a policy and procedures for shareholders to recommend nominees to the Company’s
Board. The Committee will only consider qualified proposed nominees that meet the qualification standards set forth on Appendix
A to the Committee’s charter available on the Company’s website at www.SINTX.com. Pursuant to the policy, only shareholders
who meet minimum percentage ownership requirements as established by the Board may make recommendations for consideration by the
Committee. At this time, the Board has set a minimum percentage ownership of 5% of the Company’s issued and outstanding
shares of common stock for a period of at least one year. To make recommendations, a shareholder must submit the recommendation
in writing by mail, courier or personal delivery to: Corporate Secretary, SINTX Technologies, Inc., 1885 West 2100 South, Salt
Lake City, UT 84119. For each annual meeting the Committee will consider only one proposed nominee from each shareholder or shareholder
group (within the meaning of Regulation 13D under the Exchange Act).
The
recommendation must set forth (1) the name, address, including telephone number, of the recommending shareholder or shareholder
group; (2) the number of the Company’s shares of common stock held by such shareholder and proof of ownership if the shareholder
is not a holder of record; and (3) a statement that the shareholder has a good faith intention of holding the shares through the
record date of the Company’s next annual meeting. For shareholder groups this information must be submitted for each shareholder
in the group.
The
recommendation must set forth in relation to the proposed nominee being recommended by the shareholder: (1) the information required
by Items 401, 403 and 404 of Regulation S-K under the Exchange Act, (2) any material relationships or agreements between the proposed
nominee and the recommending shareholder or the Company’s competitors, customers, labor unions or other persons with special
interests in the Company; (3) a statement regarding the qualifications of the proposed nominee to serve on the Board; (4) a statement
that the proposed nominee can fairly represent the interests of all shareholders of the Company; and (5) a signed consent by the
proposed nominee to being interviewed by the Nominating and Governance Committee.
Recommendations
must be made not later than 120 calendar days prior to the first anniversary of the date of the proxy statement for the prior
annual meeting of shareholders. In the event that the date of the annual meeting of shareholders for the current year is more
than 30 days following the first anniversary date of the annual meeting of shareholders for the prior year, the submission of
a recommendation will be considered timely if it is submitted not earlier than the close of business on the 120 days prior to
such annual meeting and not later than the close of business on the later of 90 days prior to such annual meeting or the close
of business 10 days following the day on which public announcement of the date of such meeting is first made by the Company.
Audit
Committee
We
have a standing Audit Committee and audit committee charter, which complies with Rule 10A-3 of the Exchange Act, and the requirements
of the Nasdaq Listing Rules. Our Audit Committee was established in accordance with Section 3(a)(58)(A) of the Exchange Act. The
Audit Committee is currently comprised of the following members: David W. Truetzel (Chairman), Eric A. Stookey and Jeffrey S White.
The Audit Committee provides oversight for financial reporting matters, internal controls, and compliance with the Company’s
financial policies, and meets with its auditors when appropriate. The Audit Committee did not meet as a separate committee in
2019, but rather, because the committee is comprised of all three independent directors of the board, committee matters were addressed
as necessary in meetings of the Board. The Board has determined that David W. Truetzel is an “audit committee financial
expert” within the meaning of Item 407(d)(5) of Regulation S-K. Further, the Board has determined that each of David W.
Truetzel, Jeffrey S. White and Eric A. Stookey are “independent” under the standard set forth in Rule 5605(a)(2) of
the Nasdaq Listing Rules. The Audit Committee operates under a written charter adopted by the Board of Directors, which sets forth
the responsibilities and powers delegated by the Board to the Audit Committee.
Compensation
Committee
The
Compensation Committee of the Board is comprised of the following members: Jeffrey S. White, (Chairman), David W. Truetzel and
Eric A. Stookey. The Board has determined that each of David W. Truetzel, Jeffrey S. White and Eric A. Stookey are “independent”
under the standard set forth in Rule 5605(a)(2) of the Nasdaq Listing Rules. The Compensation Committee recommends to the Board
for determination compensation of our executive officers, including the chief executive officer, and addresses salary and benefit
matters for other key personnel and employees of the Company. The Compensation Committee did not meet as a separate committee
in 2019, but rather, because the committee is comprised of all three independent directors of the board, committee matters were
addressed as necessary in meetings of the Board. The Compensation Committee operates under a written charter adopted by the Board
of Directors, which sets forth the responsibilities and powers delegated by the Board to the Compensation Committee.
Code
of Business Conduct
The
Board has adopted a Code of Business Conduct that applies to all of our employees, officers and directors, including those officers
responsible for financial reporting. The code of business conduct is available on our website at https://ir.sintx.com/corporate-governance.
We intend to disclose any amendments to the code or any waivers of its requirements on our website.
The
Bylaws of the Company provide that no contract or transaction between SINTX and one or more of its directors or officers, or between
SINTX and any other corporation, firm, association, or other organization in which one or more of its directors or officers are
financially interested, shall be void or voidable solely for this reason, or solely because the director or officer is present
at or participates in the meeting of the Board of Directors or committee that authorizes or approves the contract or transaction,
or because their votes are counted for such purpose, provided that:
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●
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the
material facts as to his, her, or their relationship or interest as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee and noted in the minutes, and the Board of Directors or committee authorizes the
contract or transaction in good faith by the affirmative vote of a majority of disinterested directors, even though the disinterested
directors are less than a quorum;
|
|
|
|
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●
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the
material facts as to his, her, or their relationship or interest as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by vote
of the stockholders; or
|
|
|
|
|
●
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the
contract or transaction is fair as to SINTX as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof, or the stockholders.
|
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Securities Exchange Act of 1934, as amended, requires our officers, directors, and persons who beneficially own more
than 10% of our common stock (“10% Stockholders”), to file reports of ownership and changes in ownership with the
Securities and Exchange Commission (“SEC”). Such officers, directors and 10% Stockholders are also required by SEC
rules to furnish us with copies of all Section 16(a) forms that they file.
Based
solely on our review of the copies of such forms received by us, or written representations from certain reporting persons, the
Company believes that during fiscal year ended December 31, 2019, the filing requirements applicable to its officers, directors
and greater than 10% percent beneficial owners were complied with.
STOCK
OWNERSHIP
The
following table sets forth certain information regarding the beneficial ownership of our common stock as of June 26, 2020 by:
|
●
|
each
of our current directors;
|
|
|
|
|
●
|
each
of our executive officers; and
|
|
|
|
|
●
|
all
of our directors and executive officers as a group;
|
|
|
|
|
●
|
each
stockholder known by us to own beneficially more than 5% of our Common Stock.
|
Beneficial
ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to the securities.
Shares of common stock that may be acquired by an individual or group within 60 days of June 26, 2020, pursuant to the exercise
or vesting of options or warrants or conversion of convertible promissory notes, are deemed to be outstanding for the purpose
of computing the percentage ownership of such individual or group, but are not deemed to be outstanding for the purpose of computing
the percentage ownership of any other person shown in the table. Percentage of shares beneficially owned is based on 16,978,777
shares issued and outstanding on June 26, 2020.
Except
as indicated in footnotes to this table, we believe that the stockholders named in this table have sole voting and investment
power with respect to all shares of common stock shown to be beneficially owned by them, based on information provided to us by
such stockholders. The address for each director and executive officer listed is: c/o SINTX Technologies, Inc., 1885 West 2100
South, Salt Lake City, Utah 84119.
|
|
Shares
Beneficially Owned
|
|
Name
and Address of Beneficial Owner
|
|
Number
|
|
|
Percentage
|
|
Five Percent Stockholders:
|
|
|
-
|
|
|
|
|
|
None.
|
|
|
|
|
|
|
|
|
Directors and
Named Executive Officers:
|
|
|
|
|
|
|
|
|
B. Sonny Bal, M.D. (1)
|
|
|
1,899
|
|
|
|
*
|
|
David W. Truetzel (2)
|
|
|
119
|
|
|
|
*
|
|
Jeffrey S. White (3)
|
|
|
15
|
|
|
|
*
|
|
Eric A. Stookey (4)
|
|
|
13
|
|
|
|
*
|
|
Bryan McEntire (5)
|
|
|
54
|
|
|
|
*
|
|
David O’Brien (6)
|
|
|
24
|
|
|
|
*
|
|
Mark Froimson,
M.D.
|
|
|
-
|
|
|
|
*
|
|
All executive
officers and directors as a group (7 persons)
|
|
|
2,124
|
|
|
|
*
|
|
|
*
|
Indicates
ownership of less than 1% of the outstanding shares of the Company’s common stock.
|
(1)
|
Represents
12 shares of Common Stock and options and warrants to purchase 1,887 shares of Common Stock that are currently exercisable
within 60 days of June 26, 2020.
|
|
|
(2)
|
Represents
71 shares of Common Stock and options to purchase 48 shares of Common Stock that are currently exercisable within 60 days
of June 26, 2020.
|
|
|
(3)
|
Represents
2 shares of Common Stock and options to purchase 13 shares of Common Stock that are currently exercisable within 60 days of
June 26, 2020.
|
|
|
(4)
|
Represents
options to purchase 13 shares of Common Stock that are currently exercisable within 60 days of June 26, 2020.
|
|
|
(5)
|
Represents
13 shares of Common Stock and options to purchase 41 shares of Common Stock that are currently exercisable within 60 days
of June 26, 2020.
|
|
|
(6)
|
Represents
options to purchase 24 shares of Common Stock that are currently exercisable within 60 days of June 26, 2020.
|
OTHER
MATTERS
As
of the date of this proxy statement, the Board knows of no other matters that may come before the annual meeting. However, if
any matters other than those referred to herein should be presented properly for consideration and action at the annual meeting,
or any adjournment or postponement thereof, the proxies will be voted with respect thereto in accordance with the best judgment
and in the discretion of the proxy holders.
The
above notice and proxy statement are sent by order of the Board of Directors.
|
/s/ B.
Sonny Bal
|
|
B.
Sonny Bal, MD
|
|
Chief
Executive Officer
|
July
10, 2020
APPENDIX
A
SINTX
TECHNOLOGIES, INC.
2020
EQUITY INCENTIVE PLAN
As
adopted by the Board of Directors of SINTX Technologies, Inc. on April 21, 2020.
As
approved by the shareholders of SINTX Technologies, Inc. on [DATE].
1.
Purpose; Eligibility.
1.1
General Purpose. The name of this plan
is the SINTX Technologies, Inc. 2020 Equity Incentive Plan (the “Plan”). The purposes of the Plan are to (a)
enable SINTX Technologies, Inc., a Delaware corporation (the “Company”), and any Affiliate to attract and retain
the types of Employees, Consultants and Directors who will contribute to the Company’s long range success; (b) provide incentives
that align the interests of Employees, Consultants and Directors with those of the shareholders of the Company; and (c) promote
the success of the Company’s business.
1.2
Eligible Award Recipients. The persons
eligible to receive Awards are the Employees, Consultants and Directors of the Company and its Affiliates and such other individuals
designated by the Committee who are reasonably expected to become Employees, Consultants and Directors after the receipt of Awards.
1.3
Available Awards. Awards that may be granted
under the Plan include: (a) Incentive Stock Options, (b) Non-qualified Stock Options, (c) Stock Appreciation Rights, (d) Restricted
Awards, including Restricted Stock Units , (e) Performance Share Awards, (f) Cash Awards, and (g) Other Equity-Based Awards.
2.
Definitions.
“Affiliate”
means a corporation or other entity that, directly or through one or more intermediaries, controls, is controlled by or is under
common control with, the Company.
“Applicable
Laws” means the requirements related to or implicated by the administration of the Plan under applicable state corporate
law, United States federal and state securities laws, the Code, any stock exchange or quotation system on which the shares of
Common Stock are listed or quoted, and the applicable laws of any foreign country or jurisdiction where Awards are granted under
the Plan.
“Award”
means any right granted under the Plan, including an Incentive Stock Option, a Non-qualified Stock Option, a Stock Appreciation
Right, a Restricted Award, a Performance Share Award, a Cash Award, or any Other Equity-Based Award.
“Award
Agreement” means a written agreement, contract, certificate or other instrument or document evidencing the terms and
conditions of an individual Award granted under the Plan which may, in the discretion of the Company, be transmitted electronically
to any Participant. Each Award Agreement shall be subject to the terms and conditions of the Plan.
“Beneficial
Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular Person, such Person shall be deemed to have beneficial ownership of all securities
that such Person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable
or is exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned”
have a corresponding meaning.
“Board”
means the Board of Directors of the Company, as constituted at any time.
“Cash
Award” means an Award denominated in cash that is granted under Section 7.4 of the Plan.
“Cause”
means:
|
With
respect to any Employee or Consultant, unless the applicable Award Agreement states otherwise:
(a)
If the Employee or Consultant is a party to an employment or service agreement with the Company or its Affiliates and
such agreement provides for a definition of Cause, the definition contained therein; or
(b)
If no such agreement exists, or if such agreement does not define Cause: (i) the commission of, or plea of guilty or no
contest to, a felony or a crime involving moral turpitude or the commission of any other act involving willful malfeasance
or material fiduciary breach with respect to the Company or an Affiliate; (ii) conduct that results in or is reasonably
likely to result in harm to the reputation or business of the Company or any of its Affiliates; (iii) gross negligence
or willful misconduct with respect to the Company or an Affiliate; or (iv) material violation of state or federal securities
laws.
|
“Change
in Control” means:
|
(a)
The direct or indirect sale, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its subsidiaries, taken
as a whole, to any Person that is not a subsidiary of the Company;
(b)
The Incumbent Directors cease for any reason to constitute at least a majority of the Board;
(c)
The date which is 10 business days prior to the consummation of a complete liquidation or dissolution of the Company;
(d)
The acquisition by any Person of Beneficial Ownership of 50% or more (on a fully diluted basis) of either (i) the then outstanding
shares of Common Stock of the Company, taking into account as outstanding for this purpose such Common Stock issuable upon the
exercise of options or warrants, the conversion of convertible stock or debt, and the exercise of any similar right to acquire
such Common Stock (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting
Securities”); provided, however, that for purposes of this Plan, the following acquisitions shall not constitute
a Change in Control: (A) any acquisition by the Company or any Affiliate, (B) any acquisition by any employee benefit plan sponsored
or maintained by the Company or any subsidiary, (C) any acquisition which complies with clauses, (i), (ii) and (iii) of subsection
(e) of this definition or (D) in respect of an Award held by a particular Participant, any acquisition by the Participant or any
group of persons including the Participant (or any entity controlled by the Participant or any group of persons including the
Participant); or
|
|
(e)
The consummation of a reorganization, merger, consolidation, statutory share exchange or similar form of corporate transaction
involving the Company that requires the approval of the Company’s shareholders, whether for such transaction or the issuance
of securities in the transaction (a “Business Combination”), unless immediately following such Business Combination:
(i) more than 50% of the total voting power of (A) the entity resulting from such Business Combination (the “Surviving
Company”), or (B) if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of
sufficient voting securities eligible to elect a majority of the members of the board of directors (or the analogous governing
body) of the Surviving Company (the “Parent Company”), is represented by the Outstanding Company Voting Securities
that were outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which the
Outstanding Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders
thereof is in substantially the same proportion as the voting power of the Outstanding Company Voting Securities among the holders
thereof immediately prior to the Business Combination; (ii) no Person (other than any employee benefit plan sponsored or maintained
by the Surviving Company or the Parent Company) is or becomes the Beneficial Owner, directly or indirectly, of 50% or more of
the total voting power of the outstanding voting securities eligible to elect members of the board of directors of the Parent
Company (or the analogous governing body) (or, if there is no Parent Company, the Surviving Company); and (iii) at least a majority
of the members of the board of directors (or the analogous governing body) of the Parent Company (or, if there is no Parent Company,
the Surviving Company) following the consummation of the Business Combination were Board members at the time of the Board’s
approval of the execution of the initial agreement providing for such Business Combination.
|
“Code”
means the Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall
be deemed to include a reference to any regulations promulgated thereunder.
“Committee”
means a committee of one or more members of the Board appointed by the Board to administer the Plan in accordance with Section
3.3 and Section 3.4.
“Common
Stock” means the common stock, $0.01 par value per share, of the Company, or such other securities of the Company as
may be designated by the Committee from time to time in substitution thereof.
“Company”
means SINTX Technologies, Inc., a Delaware corporation, and any successor thereto.
“Consultant”
means any individual or entity which performs bona fide services to the Company or an Affiliate, other than as an Employee or
Director, and who may be offered securities registerable pursuant to a registration statement on Form S-8 under the Securities
Act.
“Continuous
Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Consultant
or Director, is not interrupted or terminated. The Participant’s Continuous Service shall not be deemed to have terminated
merely because of a change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee,
Consultant or Director or a change in the entity for which the Participant renders such service, provided that there is
no interruption or termination of the Participant’s Continuous Service; provided further that if any Award is subject
to Section 409A of the Code, this sentence shall only be given effect to the extent consistent with Section 409A of the Code.
For example, a change in status from an Employee of the Company to a Director of an Affiliate will not constitute an interruption
of Continuous Service. The Committee or its delegate, in its sole discretion, may determine whether Continuous Service shall be
considered interrupted in the case of any leave of absence approved by that party, including sick leave, military leave or any
other personal or family leave of absence. The Committee or its delegate, in its sole discretion, may determine whether a Company
transaction, such as a sale or spin-off of a division or subsidiary that employs a Participant, shall be deemed to result in a
termination of Continuous Service for purposes of affected Awards, and such decision shall be final, conclusive and binding.
“Deferred
Stock Units (DSUs)” has the meaning set forth in Section 7.2 hereof.
“Director”
means a member of the Board.
“Disability”
means, unless the applicable Award Agreement says otherwise, that the Participant is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment; provided, however, for purposes of determining
the term of an Incentive Stock Option pursuant to Section 6.10 hereof, the term Disability shall have the meaning ascribed to
it under Section 22(e)(3) of the Code. The determination of whether an individual has a Disability shall be determined under procedures
established by the Committee. Except in situations where the Committee is determining Disability for purposes of the term of an
Incentive Stock Option pursuant to Section 6.10 hereof within the meaning of Section 22(e)(3) of the Code, the Committee may rely
on any determination that a Participant is disabled for purposes of benefits under any long-term disability plan maintained by
the Company or any Affiliate in which a Participant participates.
“Disqualifying
Disposition” has the meaning set forth in Section 14.12.
“Effective
Date” shall mean the date as of which this Plan is adopted by the Board.
“Employee”
means any person, including an Officer or Director, employed by the Company or an Affiliate; provided, that, for purposes
of determining eligibility to receive Incentive Stock Options, an Employee shall mean an employee of the Company or a parent or
subsidiary corporation within the meaning of Section 424 of the Code. Mere service as a Director or payment of a director’s
fee by the Company or an Affiliate shall not be sufficient to constitute “employment” by the Company or an Affiliate.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Fair
Market Value” means, as of any date, the value of the Common Stock as determined below. If the Common Stock is listed
on any established stock exchange or a national market system, including without limitation, the New York Stock Exchange or the
NASDAQ Stock Market, the Fair Market Value shall be the closing price of a share of Common Stock (or if no sales were reported
the closing price on the date immediately preceding such date) as quoted on such exchange or system on the day of determination,
as reported in the Wall Street Journal. In the absence of an established market for the Common Stock, the Fair Market Value
shall be determined in good faith by the Committee and such determination shall be conclusive and binding on all persons.
“Fiscal
Year” means the Company’s fiscal year.
“Free
Standing Rights” has the meaning set forth in Section 7.1 (a).
“Good
Reason” means, unless the applicable Award Agreement states otherwise:
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(a)
If an Employee or Consultant is a party to an employment or service agreement with the
Company or its Affiliates and such agreement provides for a definition of Good Reason,
the definition contained therein; or
(b)
If no such agreement exists or if such agreement does not define Good Reason, the occurrence of one or more of the following
without the Participant’s express written consent, which circumstances are not remedied by the Company within thirty
(30) days of its receipt of a written notice from the Participant describing the applicable circumstances (which notice
must be provided by the Participant within ninety (90) days of the Participant’s knowledge of the applicable circumstances):
(i) any material, adverse change in the Participant’s duties, responsibilities, authority, title, status or reporting
structure; (ii) a material reduction in the Participant’s base salary or bonus opportunity; or (iii) a geographical
relocation of the Participant’s principal office location by more than fifty (50) miles.
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“Grant
Date” means the date on which the Committee adopts a resolution, or takes other appropriate action, expressly granting
an Award to a Participant that specifies the key terms and conditions of the Award or, if a later date is set forth in such resolution,
then such date as is set forth in such resolution.
“Incentive
Stock Option” means an Option that is designated by the Committee as an incentive stock option within the meaning of
Section 422 of the Code and that meets the requirements set out in the Plan.
“Incumbent
Directors” means individuals who, on the Effective Date, constitute the Board, provided that any individual becoming
a Director subsequent to the Effective Date whose election or nomination for election to the Board was approved by a vote of at
least two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement
of the Company in which such person is named as a nominee for Director without objection to such nomination) shall be an Incumbent
Director. No individual initially elected or nominated as a director of the Company as a result of an actual or threatened election
contest with respect to Directors or as a result of any other actual or threatened solicitation of proxies by or on behalf of
any person other than the Board shall be an Incumbent Director.
“Non-Employee
Director” means a Director who is a “non-employee director” within the meaning of Rule 16b-3.
“Non-qualified
Stock Option” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock
Option.
“Officer”
means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
“Option”
means an Incentive Stock Option or a Non-qualified Stock Option granted pursuant to the Plan.
“Optionholder”
means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding
Option.
“Option
Exercise Price” means the price at which a share of Common Stock may be purchased upon the exercise of an Option.
“Other
Equity-Based Award” means an Award that is not an Option, Stock Appreciation Right, Restricted Stock, Restricted Stock
Unit, or Performance Share Award that is granted under Section 7.4 and is payable by delivery of Common Stock and/or which is
measured by reference to the value of Common Stock.
“Participant”
means an eligible person to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding
Award.
“Performance
Goals” means, for a Performance Period, the one or more goals established by the Committee for the Performance Period
based upon business criteria or other performance measures determined by the Committee in its discretion.
“Performance
Period” means the one or more periods of time, as the Committee may select, over which the attainment of one or more
Performance Goals will be measured for the purpose of determining a Participant’s right to and the payment of a Performance
Share Award or a Cash Award.
“Performance
Share Award” means any Award granted pursuant to Section 7.3 hereof.
“Performance
Share” means the grant of a right to receive a number of actual shares of Common Stock or share units based upon the
performance of the Company during a Performance Period, as determined by the Committee.
“Permitted
Transferee” means: (a) a member of the Optionholder’s immediate family (child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships), any person sharing the Optionholder’s household (other
than a tenant or employee), a trust in which these persons have more than 50% of the beneficial interest, a foundation in which
these persons (or the Optionholder) control the management of assets, and any other entity in which these persons (or the Optionholder)
own more than 50% of the voting interests; (b) third parties designated by the Committee in connection with a program established
and approved by the Committee pursuant to which Participants may receive a cash payment or other consideration in consideration
for the transfer of a Non-qualified Stock Option; and (c) such other transferees as may be permitted by the Committee in its sole
discretion.
“Person”
means a person as defined in Section 13(d)(3) of the Exchange Act.
“Plan”
means this SINTX Technologies, Inc. 2020 Equity Incentive Plan, as amended and/or amended and restated from time to time.
“Related
Rights” has the meaning set forth in Section 7.1 (a).
“Restricted
Award” means any Award granted pursuant to Section 7.2 (a).
“Restricted
Period” has the meaning set forth in Section 7.2 (a).
“Rule
16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to
time.
“Securities
Act” means the Securities Act of 1933, as amended.
“Stock
Appreciation Right” means the right pursuant to an Award granted under Section 7.1 to receive, upon exercise, an amount
payable in cash or shares equal to the number of shares subject to the Stock Appreciation Right that is being exercised multiplied
by the excess of (a) the Fair Market Value of a share of Common Stock on the date the Award is exercised, over (b) the exercise
price specified in the Stock Appreciation Right Award Agreement.
“Stock
for Stock Exchange” has the meaning set forth in Section 6.4.
“Substitute
Award” has the meaning set forth in Section 4.6.
“Ten
Percent Shareholder” means a person who owns (or is deemed to own pursuant to Section 424(d) of the Code) stock possessing
more than 10% of the total combined voting power of all classes of stock of the Company or of any of its Affiliates.
“Total
Share Reserve” has the meaning set forth in Section 4.1.
3.
Administration.
3.1
Authority of Committee. The Plan shall
be administered by the Committee or, in the Board’s sole discretion, by the Board. Subject to the terms of the Plan, the
Committee’s charter and Applicable Laws, and in addition to other express powers and authorization conferred by the Plan,
the Committee, if so appointed by the Board, shall have the authority:
(a)
to construe and interpret the Plan and apply its provisions;
(b)
to promulgate, amend, and rescind rules and regulations relating to the administration of the Plan;
(c)
to authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan;
(d)
to delegate its authority to one or more Officers of the Company with respect to Awards that do not involve “insiders”
within the meaning of Section 16 of the Exchange Act;
(e)
to determine when Awards are to be granted under the Plan and the applicable Grant Date;
(f)
from time to time to select, subject to the limitations set forth in this Plan, those eligible Award recipients to whom Awards
shall be granted;
(g)
to determine the number of shares of Common Stock to be made subject to each Award;
(h)
to determine whether each Option is to be an Incentive Stock Option or a Non-qualified Stock Option;
(i)
to prescribe the terms and conditions of each Award, including, without limitation, the exercise price and medium of payment and
vesting provisions, and to specify the provisions of the Award Agreement relating to such grant;
(j)
to determine the target number of Performance Shares to be granted pursuant to a Performance Share Award, the performance measures
that will be used to establish the Performance Goals, the Performance Period(s) and the number of Performance Shares earned by
a Participant;
(k)
to amend any outstanding Awards, including for the purpose of modifying the time or manner of vesting, or the term of any outstanding
Award; provided, however, that if any such amendment impairs a Participant’s rights or increases a Participant’s
obligations under his or her Award or creates or increases a Participant’s federal income tax liability with respect to
an Award, such amendment shall also be subject to the Participant’s consent;
(l)
to determine the duration and purpose of leaves of absences which may be granted to a Participant without constituting termination
of their employment for purposes of the Plan, which periods shall be no shorter than the periods generally applicable to Employees
under the Company’s employment policies;
(m)
to make decisions with respect to outstanding Awards that may become necessary upon a change in corporate control or an event
that triggers anti-dilution adjustments;
(n)
to interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan and any
instrument or agreement relating to, or Award granted under, the Plan; and
(o)
to exercise discretion to make any and all other determinations which it determines to be necessary or advisable for the administration
of the Plan.
(p)
To modify the purchase price or the exercise price of any outstanding Award.
3.2
Committee Decisions Final. All decisions
made by the Committee pursuant to the provisions of the Plan shall be final and binding on the Company and the Participants, unless
such decisions are determined by a court having jurisdiction to be arbitrary and capricious.
3.3
Delegation. The Committee or, if no Committee
has been appointed, the Board may delegate administration of the Plan to a committee or committees of one or more members of the
Board, and the term “Committee” shall apply to any person or persons to whom such authority has been delegated.
The Committee shall have the power to delegate to a subcommittee any of the administrative powers the Committee is authorized
to exercise (and references in this Plan to the Board or the Committee shall thereafter be to the committee or subcommittee),
subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by
the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. The members
of the Committee shall be appointed by and serve at the pleasure of the Board. From time to time, the Board may increase or decrease
the size of the Committee, add additional members to, remove members (with or without cause) from, appoint new members in substitution
therefor, and fill vacancies, however caused, in the Committee. The Committee shall act pursuant to a vote of the majority of
its members or, in the case of a Committee comprised of only two members, the unanimous consent of its members, whether present
or not, or by the written consent of the majority of its members and minutes shall be kept of all of its meetings and copies thereof
shall be provided to the Board. Subject to the limitations prescribed by the Plan and the Board, the Committee may establish and
follow such rules and regulations for the conduct of its business as it may determine to be advisable.
3.4
Committee Composition. Except as otherwise
determined by the Board, the Committee shall consist solely of two or more Non-Employee Directors. The Board shall have discretion
to determine whether or not it intends to comply with the exemption requirements of Rule 16b-3. However, if the Board intends
to satisfy such exemption requirements, with respect to any insider subject to Section 16 of the Exchange Act, the Committee shall
be a compensation committee of the Board that at all times consists solely of two or more Non-Employee Directors. Within the scope
of such authority, the Board or the Committee may delegate to a committee of one or more members of the Board who are not Non-Employee
Directors the authority to grant Awards to eligible persons who are not then subject to Section 16 of the Exchange Act. Nothing
herein shall create an inference that an Award is not validly granted under the Plan in the event Awards are granted under the
Plan by a compensation committee of the Board that does not at all times consist solely of two or more Non-Employee Directors.
3.5
Indemnification. In addition to such other
rights of indemnification as they may have as Directors or members of the Committee, and to the extent allowed by Applicable Laws,
the Committee shall be indemnified by the Company against the reasonable expenses, including attorney’s fees, actually incurred
in connection with any action, suit or proceeding or in connection with any appeal therein, to which the Committee may be party
by reason of any action taken or failure to act under or in connection with the Plan or any Award granted under the Plan, and
against all amounts paid by the Committee in settlement thereof (provided, however, that the settlement has been approved
by the Company, which approval shall not be unreasonably withheld) or paid by the Committee in satisfaction of a judgment in any
such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding
that such Committee did not act in good faith and in a manner which such person reasonably believed to be in the best interests
of the Company, or in the case of a criminal proceeding, had no reason to believe that the conduct complained of was unlawful;
provided, however, that within 60 days after the institution of any such action, suit or proceeding, such Committee shall,
in writing, offer the Company the opportunity at its own expense to handle and defend such action, suit or proceeding.
4.
Shares Subject to the Plan.
4.1
Subject to adjustment in accordance with Section 11, no more than 1,900,000 shares of Common Stock plus the number of shares of
Common Stock underlying any award granted under the 2012 Equity Incentive Plan that expires, terminates or is canceled or forfeited
under the terms of the 2012 Equity Incentive Plan shall be available for the grant of Awards under the Plan (the “Total
Share Reserve”). During the terms of the Awards, the Company shall keep available at all times the number of shares
of Common Stock required to satisfy such Awards.
4.2
Shares of Common Stock available for distribution under the Plan may consist, in whole or in part, of authorized and unissued
shares, treasury shares or shares reacquired by the Company in any manner.
4.3
Subject to adjustment in accordance with Section 11, no more than 1,900,000 shares of Common Stock may be issued in the aggregate
pursuant to the exercise of Incentive Stock Options (the “ISO Limit”).
4.4
The maximum number of shares of Common Stock subject to Awards granted during a single Fiscal Year to any Director, together with
any cash fees paid to such Director during the Fiscal Year shall not exceed a total value of $500,000 (calculating the value of
any Awards based on the grant date fair value for financial reporting purposes).
4.5
Any shares of Common Stock subject to an Award that expires or is canceled, forfeited, or terminated without issuance of the full
number of shares of Common Stock to which the Award related will again be available for issuance under the Plan. Notwithstanding
anything to the contrary contained herein: shares subject to an Award under the Plan shall not again be made available for issuance
or delivery under the Plan if such shares are (a) shares tendered in payment of an Option, (b) shares delivered or withheld by
the Company to satisfy any tax withholding obligation, or (c) shares covered by a stock-settled Stock Appreciation Right or other
Awards that were not issued upon the settlement of the Award.
4.6
Awards may, in the sole discretion of the Committee, be granted under the Plan in assumption of, or in substitution for, outstanding
awards previously granted by an entity acquired by the Company or with which the Company combines (“Substitute Awards”).
Substitute Awards shall not be counted against the Total Share Reserve; provided, that, Substitute Awards issued in connection
with the assumption of, or in substitution for, outstanding options intended to qualify as Incentive Stock Options shall be counted
against the ISO limit. Subject to applicable stock exchange requirements, available shares under a shareholder-approved plan of
an entity directly or indirectly acquired by the Company or with which the Company combines (as appropriately adjusted to reflect
such acquisition or transaction) may be used for Awards under the Plan and shall not count toward the Total Share Limit.
5.
Eligibility.
5.1
Eligibility for Specific Awards. Incentive
Stock Options may be granted only to Employees. Awards other than Incentive Stock Options may be granted to Employees, Consultants
and Directors and those individuals whom the Committee determines are reasonably expected to become Employees, Consultants and
Directors following the Grant Date.
5.2
Ten Percent Shareholders. A Ten Percent
Shareholder shall not be granted an Incentive Stock Option unless the Option Exercise Price is at least 110% of the Fair Market
Value of the Common Stock on the Grant Date and the Option is not exercisable after the expiration of five years from the Grant
Date.
6.
Option Provisions.
Each Option granted under the Plan shall be evidenced by an Award Agreement. Each Option so granted shall be subject to the conditions
set forth in this Section 6, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable
Award Agreement. All Options shall be separately designated Incentive Stock Options or Non-qualified Stock Options at the time
of grant, and, if certificates are issued, a separate certificate or certificates will be issued for shares of Common Stock purchased
on exercise of each type of Option. Notwithstanding the foregoing, the Company shall have no liability to any Participant or any
other person if an Option designated as an Incentive Stock Option fails to qualify as such at any time or if an Option is determined
to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code and the terms of
such Option do not satisfy the requirements of Section 409A of the Code. The provisions of separate Options need not be identical,
but each Option shall include (through incorporation of provisions hereof by reference in the Option or otherwise) the substance
of each of the following provisions:
6.1
Term. Subject to the provisions of Section
5.2 regarding Ten Percent Shareholders, no Incentive Stock Option shall be exercisable after the expiration of 10 years from the
Grant Date. The term of a Non-qualified Stock Option granted under the Plan shall be determined by the Committee; provided,
however, no Non-qualified Stock Option shall be exercisable after the expiration of 10 years from the Grant Date.
6.2
Exercise Price of an Incentive Stock Option.
Subject to the provisions of Section 5.2 regarding Ten Percent Shareholders, the Option Exercise Price of each Incentive Stock
Option shall be not less than 100% of the Fair Market Value of the Common Stock subject to the Option on the Grant Date. Notwithstanding
the foregoing, an Incentive Stock Option may be granted with an Option Exercise Price lower than that set forth in the preceding
sentence if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions
of Section 424(a) of the Code.
6.3
Exercise Price of a Non-qualified Stock Option.
The Option Exercise Price of each Non-qualified Stock Option shall be not less than 100% of the Fair Market Value of the Common
Stock subject to the Option on the Grant Date. Notwithstanding the foregoing, a Non-qualified Stock Option may be granted with
an Option Exercise Price lower than that set forth in the preceding sentence if such Option is granted pursuant to an assumption
or substitution for another option in a manner satisfying the provisions of Section 409A of the Code.
6.4
Consideration. The Option Exercise Price
of Common Stock acquired pursuant to an Option shall be paid, to the extent permitted by applicable statutes and regulations,
either (a) in cash or by certified or bank check at the time the Option is exercised or (b) in the discretion of the Committee,
upon such terms as the Committee shall approve, the Option Exercise Price may be paid: (i) by delivery to the Company of other
Common Stock, duly endorsed for transfer to the Company, with a Fair Market Value on the date of delivery equal to the Option
Exercise Price (or portion thereof) due for the number of shares being acquired, or by means of attestation whereby the Participant
identifies for delivery specific shares of Common Stock that have an aggregate Fair Market Value on the date of attestation equal
to the Option Exercise Price (or portion thereof) and receives a number of shares of Common Stock equal to the difference between
the number of shares thereby purchased and the number of identified attestation shares of Common Stock (a “Stock for
Stock Exchange”); (ii) a “cashless” exercise program established with a broker; (iii) by reduction in the
number of shares of Common Stock otherwise deliverable upon exercise of such Option with a Fair Market Value equal to the aggregate
Option Exercise Price at the time of exercise; (iv) by any combination of the foregoing methods; or (v) in any other form of legal
consideration that may be acceptable to the Committee. Unless otherwise specifically provided in the Option, the exercise price
of Common Stock acquired pursuant to an Option that is paid by delivery (or attestation) to the Company of other Common Stock
acquired, directly or indirectly from the Company, shall be paid only by shares of the Common Stock of the Company that have been
held for more than six months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting
purposes). Notwithstanding the foregoing, during any period for which the Common Stock is publicly traded (i.e., the Common Stock
is listed on any established stock exchange or a national market system) an exercise by a Director or Officer that involves or
may involve a direct or indirect extension of credit or arrangement of an extension of credit by the Company, directly or indirectly,
in violation of Section 402(a) of the Sarbanes-Oxley Act of 2002 shall be prohibited with respect to any Award under this Plan.
6.5
Transferability of an Incentive Stock Option.
An Incentive Stock Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable
during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering
written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of
the Optionholder, shall thereafter be entitled to exercise the Option.
6.6
Transferability of a Non-qualified Stock Option.
A Non-qualified Stock Option may, in the sole discretion of the Committee, be transferable to a Permitted Transferee, upon written
approval by the Committee to the extent provided in the Award Agreement. If the Non-qualified Stock Option does not provide for
transferability, then the Non-qualified Stock Option shall not be transferable except by will or by the laws of descent and distribution
and shall be exercisable during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the
Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party
who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option.
6.7
Vesting of Options. Each Option may, but
need not, vest and therefore become exercisable in periodic installments that may, but need not, be equal. The Option may be subject
to such other terms and conditions on the time or times when it may be exercised (which may be based on performance or other criteria)
as the Committee may deem appropriate. The vesting provisions of individual Options may vary. No Option may be exercised for a
fraction of a share of Common Stock. The Committee may, but shall not be required to, provide for an acceleration of vesting and
exercisability in the terms of any Award Agreement upon the occurrence of a specified event.
6.8
Termination of Continuous Service. Unless
otherwise provided in an Award Agreement or in an employment agreement the terms of which have been approved by the Committee,
in the event an Optionholder’s Continuous Service terminates (other than upon the Optionholder’s death or Disability),
the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of
the date of termination) but only within such period of time ending on the earlier of (a) the date three months following the
termination of the Optionholder’s Continuous Service or (b) the expiration of the term of the Option as set forth in the
Award Agreement; provided that, if the termination of Continuous Service is by the Company for Cause, all outstanding Options
(whether or not vested) shall immediately terminate and cease to be exercisable. If, after termination, the Optionholder does
not exercise his or her Option within the time specified in the Award Agreement, the Option shall terminate.
6.9
Extension of Termination Date. An Optionholder’s
Award Agreement may also provide that if the exercise of the Option following the termination of the Optionholder’s Continuous
Service for any reason would be prohibited at any time because the issuance of shares of Common Stock would violate the registration
requirements under the Securities Act or any other state or federal securities law or the rules of any securities exchange or
interdealer quotation system, then the Option shall terminate on the earlier of (a) the expiration of the term of the Option in
accordance with Section 6.1 or (b) the expiration of a period after termination of the Participant’s Continuous Service
that is three months after the end of the period during which the exercise of the Option would be in violation of such registration
or other securities law requirements.
6.10
Disability of Optionholder. Unless otherwise
provided in an Award Agreement, in the event that an Optionholder’s Continuous Service terminates as a result of the Optionholder’s
Disability, the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such
Option as of the date of termination), but only within such period of time ending on the earlier of (a) the date 12 months following
such termination or (b) the expiration of the term of the Option as set forth in the Award Agreement. If, after termination, the
Optionholder does not exercise his or her Option within the time specified herein or in the Award Agreement, the Option shall
terminate.
6.11
Death of Optionholder. Unless otherwise
provided in an Award Agreement, in the event an Optionholder’s Continuous Service terminates as a result of the Optionholder’s
death, then the Option may be exercised (to the extent the Optionholder was entitled to exercise such Option as of the date of
death) by the Optionholder’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance
or by a person designated to exercise the Option upon the Optionholder’s death, but only within the period ending on the
earlier of (a) the date 12 months following the date of death or (b) the expiration of the term of such Option as set forth in
the Award Agreement. If, after the Optionholder’s death, the Option is not exercised within the time specified herein or
in the Award Agreement, the Option shall terminate.
6.12
Incentive Stock Option $100,000 Limitation.
To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock with respect to which Incentive
Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all plans of the Company
and its Affiliates) exceeds $100,000, the Options or portions thereof which exceed such limit (according to the order in which
they were granted) shall be treated as Non-qualified Stock Options.
7.
Provisions of Awards Other Than Options.
7.1
Stock Appreciation Rights.
(a)
General
Each
Stock Appreciation Right granted under the Plan shall be evidenced by an Award Agreement. Each Stock Appreciation Right so granted
shall be subject to the conditions set forth in this Section 7.1, and to such other conditions not inconsistent with the Plan
as may be reflected in the applicable Award Agreement. Stock Appreciation Rights may be granted alone (“Free Standing
Rights”) or in tandem with an Option granted under the Plan (“Related Rights”).
(b)
Grant Requirements
Any
Related Right that relates to a Non-qualified Stock Option may be granted at the same time the Option is granted or at any time
thereafter but before the exercise or expiration of the Option. Any Related Right that relates to an Incentive Stock Option must
be granted at the same time the Incentive Stock Option is granted.
(c)
Term of Stock Appreciation Rights
The
term of a Stock Appreciation Right granted under the Plan shall be determined by the Committee; provided, however, no Stock
Appreciation Right shall be exercisable later than the tenth anniversary of the Grant Date.
(d)
Vesting of Stock Appreciation Rights
Each
Stock Appreciation Right may, but need not, vest and therefore become exercisable in periodic installments that may, but need
not, be equal. The Stock Appreciation Right may be subject to such other terms and conditions on the time or times when it may
be exercised as the Committee may deem appropriate. The vesting provisions of individual Stock Appreciation Rights may vary. No
Stock Appreciation Right may be exercised for a fraction of a share of Common Stock. The Committee may, but shall not be required
to, provide for an acceleration of vesting and exercisability in the terms of any Stock Appreciation Right upon the occurrence
of a specified event.
(e)
Exercise and Payment
Upon
exercise of a Stock Appreciation Right, the holder shall be entitled to receive from the Company an amount equal to the number
of shares of Common Stock subject to the Stock Appreciation Right that is being exercised multiplied by the excess of (i) the
Fair Market Value of a share of Common Stock on the date the Award is exercised, over (ii) the exercise price specified in the
Stock Appreciation Right or related Option. Payment with respect to the exercise of a Stock Appreciation Right shall be made on
the date of exercise. Payment shall be made in the form of shares of Common Stock (with or without restrictions as to substantial
risk of forfeiture and transferability, as determined by the Committee in its sole discretion), cash or a combination thereof,
as determined by the Committee.
(f)
Exercise Price
The
exercise price of a Free Standing Right shall be determined by the Committee. A Related Right granted simultaneously with or subsequent
to the grant of an Option and in conjunction therewith or in the alternative thereto shall have the same exercise price as the
related Option, shall be transferable only upon the same terms and conditions as the related Option, and shall be exercisable
only to the same extent as the related Option; provided, however, that a Stock Appreciation Right, by its terms, shall
be exercisable only when the Fair Market Value per share of Common Stock subject to the Stock Appreciation Right and related Option
exceeds the exercise price per share thereof and no Stock Appreciation Rights may be granted in tandem with an Option unless the
Committee determines that the requirements of Section 7.1 (b) are satisfied.
(g)
Reduction in the Underlying Option Shares
Upon
any exercise of a Related Right, the number of shares of Common Stock for which any related Option shall be exercisable shall
be reduced by the number of shares for which the Stock Appreciation Right has been exercised. The number of shares of Common Stock
for which a Related Right shall be exercisable shall be reduced upon any exercise of any related Option by the number of shares
of Common Stock for which such Option has been exercised.
7.2
Restricted Awards.
(a)
General
A
Restricted Award is an Award of actual shares of Common Stock (“Restricted Stock”) or hypothetical Common Stock
units (“Restricted Stock Units”) having a value equal to the Fair Market Value of an identical number of shares
of Common Stock, which may, but need not, provide that such Restricted Award may not be sold, assigned, transferred or otherwise
disposed of, pledged or hypothecated as collateral for a loan or as security for the performance of any obligation or for any
other purpose for such period (the “Restricted Period”) as the Committee shall determine. Each Restricted Award
granted under the Plan shall be evidenced by an Award Agreement. Each Restricted Award so granted shall be subject to the conditions
set forth in this Section 7.2, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable
Award Agreement.
(b)
Restricted Stock and Restricted Stock Units
(i)
Each Participant granted Restricted Stock shall execute and deliver to the Company an Award Agreement with respect to the Restricted
Stock setting forth the restrictions and other terms and conditions applicable to such Restricted Stock. If the Committee determines
that the Restricted Stock shall be held by the Company or in escrow rather than delivered to the Participant pending the release
of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company (A)
an escrow agreement satisfactory to the Committee, if applicable and (B) the appropriate blank stock power with respect to the
Restricted Stock covered by such agreement. If a Participant fails to execute an agreement evidencing an Award of Restricted Stock
and, if applicable, an escrow agreement and stock power, the Award shall be null and void. Subject to the restrictions set forth
in the Award, the Participant generally shall have the rights and privileges of a shareholder as to such Restricted Stock, including
the right to vote such Restricted Stock and the right to receive dividends; provided that, any cash dividends and stock
dividends with respect to the Restricted Stock shall be withheld by the Company for the Participant’s account, and interest
may be credited on the amount of the cash dividends withheld at a rate and subject to such terms as determined by the Committee.
The cash dividends or stock dividends so withheld by the Committee and attributable to any particular share of Restricted Stock
(and earnings thereon, if applicable) shall be distributed to the Participant in cash or, at the discretion of the Committee,
in shares of Common Stock having a Fair Market Value equal to the amount of such dividends, if applicable, upon the release of
restrictions on such share and, if such share is forfeited, the Participant shall have no right to such dividends.
(ii)
The terms and conditions of a grant of Restricted Stock Units shall be reflected in an Award Agreement. No shares of Common Stock
shall be issued at the time a Restricted Stock Unit is granted, and the Company will not be required to set aside funds for the
payment of any such Award. A Participant shall have no voting rights with respect to any Restricted Stock Units granted hereunder.
The Committee may also grant Restricted Stock Units with a deferral feature, whereby settlement is deferred beyond the vesting
date until the occurrence of a future payment date or event set forth in an Award Agreement (“Deferred Stock Units”).
At the discretion of the Committee, each Restricted Stock Unit or Deferred Stock Unit (representing one share of Common Stock)
may be credited with an amount equal to the cash and stock dividends paid by the Company in respect of one share of Common Stock
(“Dividend Equivalents”). Dividend Equivalents shall be withheld by the Company and credited to the Participant’s
account, and interest may be credited on the amount of cash Dividend Equivalents credited to the Participant’s account at
a rate and subject to such terms as determined by the Committee. Dividend Equivalents credited to a Participant’s account
and attributable to any particular Restricted Stock Unit or Deferred Stock Unit (and earnings thereon, if applicable) shall be
distributed in cash or, at the discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the
amount of such Dividend Equivalents and earnings, if applicable, to the Participant upon settlement of such Restricted Stock Unit
or Deferred Stock Unit and, if such Restricted Stock Unit or Deferred Stock Unit is forfeited, the Participant shall have no right
to such Dividend Equivalents.
(c)
Restrictions
(i)
Restricted Stock awarded to a Participant shall be subject to the following restrictions until the expiration of the Restricted
Period, and to such other terms and conditions as may be set forth in the applicable Award Agreement: (A) if an escrow arrangement
is used, the Participant shall not be entitled to delivery of the stock certificate; (B) the shares shall be subject to the restrictions
on transferability set forth in the Award Agreement; (C) the shares shall be subject to forfeiture to the extent provided in the
applicable Award Agreement; and (D) to the extent such shares are forfeited, the stock certificates shall be returned to the Company,
and all rights of the Participant to such shares and as a shareholder with respect to such shares shall terminate without further
obligation on the part of the Company.
(ii)
Restricted Stock Units and Deferred Stock Units awarded to any Participant shall be subject to (A) forfeiture until the expiration
of the Restricted Period, and satisfaction of any applicable Performance Goals during such period, to the extent provided in the
applicable Award Agreement, and to the extent such Restricted Stock Units or Deferred Stock Units are forfeited, all rights of
the Participant to such Restricted Stock Units or Deferred Stock Units shall terminate without further obligation on the part
of the Company and (B) such other terms and conditions as may be set forth in the applicable Award Agreement.
(iii)
The Committee shall have the authority to remove any or all of the restrictions on the Restricted Stock, Restricted Stock Units
and Deferred Stock Units whenever it may determine that, by reason of changes in Applicable Laws or other changes in circumstances
arising after the date the Restricted Stock or Restricted Stock Units or Deferred Stock Units are granted, such action is appropriate.
(d)
Restricted Period
With
respect to Restricted Awards, the Restricted Period shall commence on the Grant Date and end at the time or times set forth on
a schedule established by the Committee in the applicable Award Agreement.
No
Restricted Award may be granted or settled for a fraction of a share of Common Stock. The Committee may, but shall not be required
to, provide for an acceleration of vesting in the terms of any Award Agreement upon the occurrence of a specified event.
(e)
Delivery of Restricted Stock and Settlement of Restricted Stock Units
Upon
the expiration of the Restricted Period with respect to any shares of Restricted Stock, the restrictions set forth in Section
7.2 (c) and the applicable Award Agreement shall be of no further force or effect with respect to such shares, except as set forth
in the applicable Award Agreement. If an escrow arrangement is used, upon such expiration, the Company shall deliver to the Participant,
or his or her beneficiary, without charge, the stock certificate evidencing the shares of Restricted Stock which have not then
been forfeited and with respect to which the Restricted Period has expired (to the nearest full share) and any cash dividends
or stock dividends credited to the Participant’s account with respect to such Restricted Stock and the interest thereon,
if any. Upon the expiration of the Restricted Period with respect to any outstanding Restricted Stock Units, or at the expiration
of the deferral period with respect to any outstanding Deferred Stock Units, the Company shall deliver to the Participant, or
his or her beneficiary, without charge, one share of Common Stock for each such outstanding vested Restricted Stock Unit or Deferred
Stock Unit (“Vested Unit”) and cash equal to any Dividend Equivalents credited with respect to each such Vested
Unit in accordance with Section 7.2(b) (ii) hereof and the interest thereon or, at the discretion of the Committee, in shares
of Common Stock having a Fair Market Value equal to such Dividend Equivalents and the interest thereon, if any; provided, however,
that, if explicitly provided in the applicable Award Agreement, the Committee may, in its sole discretion, elect to pay cash or
part cash and part Common Stock in lieu of delivering only shares of Common Stock for Vested Units. If a cash payment is made
in lieu of delivering shares of Common Stock, the amount of such payment shall be equal to the Fair Market Value of the Common
Stock as of the date on which the Restricted Period lapsed in the case of Restricted Stock Units, or the delivery date in the
case of Deferred Stock Units, with respect to each Vested Unit.
(f)
Stock Restrictions
Each
certificate representing Restricted Stock awarded under the Plan shall bear a legend in such form as the Company deems appropriate.
7.3
Performance Share Awards.
(a)
Grant of Performance Share Awards
Each
Performance Share Award granted under the Plan shall be evidenced by an Award Agreement. Each Performance Share Award so granted
shall be subject to the conditions set forth in this Section 7.3, and to such other conditions not inconsistent with the Plan
as may be reflected in the applicable Award Agreement. The Committee shall have the discretion to determine: (i) the number of
shares of Common Stock or stock-denominated units subject to a Performance Share Award granted to any Participant; (ii) the Performance
Period applicable to any Award; (iii) the conditions that must be satisfied for a Participant to earn an Award; and (iv) the other
terms, conditions and restrictions of the Award.
(b)
Earning Performance Share Awards
The
number of Performance Shares earned by a Participant will depend on the extent to which the performance goals established by the
Committee are attained within the applicable Performance Period, as determined by the Committee.
7.4
Other Equity-Based Awards and Cash Awards.
The Committee may grant Other Equity-Based Awards, either alone or in tandem with other Awards, in such amounts and subject to
such conditions as the Committee shall determine in its sole discretion. Each Equity-Based Award shall be evidenced by an Award
Agreement and shall be subject to such conditions, not inconsistent with the Plan, as may be reflected in the applicable Award
Agreement. The Committee may grant Cash Awards in such amounts and subject to such Performance Goals, other vesting conditions,
and such other terms as the Committee determines in its discretion. Cash Awards shall be evidenced in such form as the Committee
may determine.
8.
Securities Law Compliance.
Each Award Agreement shall provide that no shares of Common Stock shall be purchased or sold thereunder unless and until (a) any
then applicable requirements of state or federal laws and regulatory agencies have been fully complied with to the satisfaction
of the Company and its counsel and (b) if required to do so by the Company, the Participant has executed and delivered to the
Company a letter of investment intent in such form and containing such provisions as the Committee may require. The Company shall
use reasonable efforts to seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority
as may be required to grant Awards and to issue and sell shares of Common Stock upon exercise of the Awards; provided, however,
that this undertaking shall not require the Company to register under the Securities Act the Plan, any Award or any Common Stock
issued or issuable pursuant to any such Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale of Common Stock
under the Plan, the Company shall be relieved from any liability for failure to issue and sell Common Stock upon exercise of such
Awards unless and until such authority is obtained.
9.
Use of Proceeds from Stock.
Proceeds from the sale of Common Stock pursuant to Awards, or upon exercise thereof, shall constitute general funds of the Company.
10.
Miscellaneous.
10.1
Acceleration of Exercisability and Vesting.
The Committee shall have the power to accelerate the time at which an Award may first be exercised or the time during which an
Award or any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Award stating the time
at which it may first be exercised or the time during which it will vest.
10.2
Shareholder Rights. Except as provided
in the Plan or an Award Agreement, no Participant shall be deemed to be the holder of, or to have any of the rights of a holder
with respect to, any shares of Common Stock subject to such Award unless and until such Participant has satisfied all requirements
for exercise of the Award pursuant to its terms and no adjustment shall be made for dividends (ordinary or extraordinary, whether
in cash, securities or other property) or distributions of other rights for which the record date is prior to the date such Common
Stock certificate is issued, except as provided in Section 11 hereof.
10.3
No Employment or Other Service Rights.
Nothing in the Plan or any instrument executed or Award granted pursuant thereto shall confer upon any Participant any right to
continue to serve the Company or an Affiliate in the capacity in effect at the time the Award was granted or shall affect the
right of the Company or an Affiliate to terminate (a) the employment of an Employee with or without notice and with or without
Cause or (b) the service of a Director pursuant to the By-laws of the Company or an Affiliate, and any applicable provisions of
the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may be.
10.4
Transfer; Approved Leave of Absence. For
purposes of the Plan, no termination of employment by an Employee shall be deemed to result from either (a) a transfer of employment
to the Company from an Affiliate or from the Company to an Affiliate, or from one Affiliate to another, or (b) an approved leave
of absence for military service or sickness, or for any other purpose approved by the Company, if the Employee’s right to
reemployment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted
or if the Committee otherwise so provides in writing, in either case, except to the extent inconsistent with Section 409A of the
Code if the applicable Award is subject thereto.
10.5
Withholding Obligations. To the extent
provided by the terms of an Award Agreement and subject to the discretion of the Committee, the Participant may satisfy any federal,
state or local tax withholding obligation relating to the exercise or acquisition of Common Stock under an Award by any of the
following means (in addition to the Company’s right to withhold from any compensation paid to the Participant by the Company)
or by a combination of such means: (a) tendering a cash payment; (b) authorizing the Company to withhold shares of Common Stock
from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock
under the Award, provided, however, that no shares of Common Stock are withheld with a value exceeding the [minimum/maximum]
amount of tax required to be withheld by law; or (c) delivering to the Company previously owned and unencumbered shares of Common
Stock of the Company.
11.
Adjustments Upon Changes in Stock.
In the event of changes in the outstanding Common Stock or in the capital structure of the Company by reason of any stock or extraordinary
cash dividend, stock split, reverse stock split, an extraordinary corporate transaction such as any recapitalization, reorganization,
merger, consolidation, combination, exchange, or other relevant change in capitalization occurring after the Grant Date of any
Award, Awards granted under the Plan and any Award Agreements, the exercise price of Options and Stock Appreciation Rights, the
Performance Goals to which Performance Share Awards and Cash Awards are subject, the maximum number of shares of Common Stock
subject to all Awards stated in Section 4 will be equitably adjusted or substituted, as to the number, price or kind of a share
of Common Stock or other consideration subject to such Awards to the extent necessary to preserve the economic intent of such
Award. In the case of adjustments made pursuant to this Section 11, unless the Committee specifically determines that such adjustment
is in the best interests of the Company or its Affiliates, the Committee shall, in the case of Incentive Stock Options, ensure
that any adjustments under this Section 11 will not constitute a modification, extension or renewal of the Incentive Stock Options
within the meaning of Section 424(h)(3) of the Code and in the case of Non-qualified Stock Options, ensure that any adjustments
under this Section 11 will not constitute a modification of such Non-qualified Stock Options within the meaning of Section 409A
of the Code. Any adjustments made under this Section 11 shall be made in a manner which does not adversely affect the exemption
provided pursuant to Rule 16b-3 under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder
and, upon notice, such adjustment shall be conclusive and binding for all purposes.
12.
Effect of Change in Control.
12.1
Unless otherwise provided in an Award Agreement, notwithstanding any provision of the Plan to the contrary:
(a)
In the event of a Change in Control, all outstanding Options and Stock Appreciation Rights shall become immediately exercisable
with respect to 100% of the shares subject to such Options or Stock Appreciation Rights, and/or the Restricted Period shall expire
immediately with respect to 100% of the outstanding shares of Restricted Stock or Restricted Stock Units.
(b)
With respect to Performance Share Awards and Cash Awards, in the event of a Change in Control, all Performance Goals or other
vesting criteria will be deemed achieved at 100% of target levels and all other terms and conditions will be deemed met.
To
the extent practicable, any actions taken by the Committee under the immediately preceding clauses (a) and (b) shall occur in
a manner and at a time which allows affected Participants the ability to participate in the Change in Control with respect to
the shares of Common Stock subject to their Awards.
12.2
In addition, in the event of a Change in Control, the Committee may in its discretion and upon at least 10 days’ advance
notice to the affected persons, cancel any outstanding Awards and pay to the holders thereof, in cash or stock, or any combination
thereof, the value of such Awards based upon the price per share of Common Stock received or to be received by other shareholders
of the Company in the event. In the case of any Option or Stock Appreciation Right with an exercise price (or SAR Exercise Price
in the case of a Stock Appreciation Right) that equals or exceeds the price paid for a share of Common Stock in connection with
the Change in Control, the Committee may cancel the Option or Stock Appreciation Right without the payment of consideration therefor.
12.3
The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to
all or substantially all of the assets and business of the Company and its Affiliates, taken as a whole.
13.
Amendment of the Plan and Awards.
13.1
Amendment of Plan. The Board at any time,
and from time to time, may amend or terminate the Plan. However, except as provided in Section 11 relating to adjustments upon
changes in Common Stock and Section 13.3, no amendment shall be effective unless approved by the shareholders of the Company to
the extent shareholder approval is necessary to satisfy any Applicable Laws. At the time of such amendment, the Board shall determine,
upon advice from counsel, whether such amendment will be contingent on shareholder approval.
13.2
Shareholder Approval. The Board may, in
its sole discretion, submit any other amendment to the Plan for shareholder approval.
13.3
Contemplated Amendments. It is expressly
contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable to provide eligible Employees,
Consultants and Directors with the maximum benefits provided or to be provided under the provisions of the Code and the regulations
promulgated thereunder relating to Incentive Stock Options or to the nonqualified deferred compensation provisions of Section
409A of the Code and/or to bring the Plan and/or Awards granted under it into compliance therewith.
13.4
No Impairment of Rights. Rights under
any Award granted before amendment of the Plan shall not be impaired by any amendment of the Plan unless (a) the Company requests
the consent of the Participant and (b) the Participant consents in writing.
13.5
Amendment of Awards. The Committee at
any time, and from time to time, may amend the terms of any one or more Awards; provided, however, that the Committee may
not affect any amendment which would otherwise constitute an impairment of the rights under any Award unless (a) the Company requests
the consent of the Participant and (b) the Participant consents in writing.
14.
General Provisions.
14.1
Forfeiture Events. The Committee may specify
in an Award Agreement that the Participant’s rights, payments and benefits with respect to an Award shall be subject to
reduction, cancellation, forfeiture or recoupment upon the occurrence of certain events, in addition to applicable vesting conditions
of an Award. Such events may include, without limitation, breach of non-competition, non-solicitation, confidentiality, or other
restrictive covenants that are contained in the Award Agreement or otherwise applicable to the Participant, a termination of the
Participant’s Continuous Service for Cause, or other conduct by the Participant that is detrimental to the business or reputation
of the Company and/or its Affiliates.
14.2
Other Compensation Arrangements. Nothing
contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements, subject to shareholder
approval if such approval is required; and such arrangements may be either generally applicable or applicable only in specific
cases.
14.3
Sub-Plans. The Committee may from time
to time establish sub-plans under the Plan for purposes of satisfying securities, tax or other laws of various jurisdictions in
which the Company intends to grant Awards. Any sub-plans shall contain such limitations and other terms and conditions as the
Committee determines are necessary or desirable. All sub-plans shall be deemed a part of the Plan, but each sub-plan shall apply
only to the Participants in the jurisdiction for which the sub-plan was designed.
14.4
Deferral of Awards. The Committee may
establish one or more programs under the Plan to permit selected Participants the opportunity to elect to defer receipt of consideration
upon exercise of an Award, satisfaction of performance criteria, or other event that absent the election would entitle the Participant
to payment or receipt of shares of Common Stock or other consideration under an Award. The Committee may establish the election
procedures, the timing of such elections, the mechanisms for payments of, and accrual of interest or other earnings, if any, on
amounts, shares or other consideration so deferred, and such other terms, conditions, rules and procedures that the Committee
deems advisable for the administration of any such deferral program.
14.5
Unfunded Plan. The Plan shall be unfunded.
Neither the Company, the Board nor the Committee shall be required to establish any special or separate fund or to segregate any
assets to assure the performance of its obligations under the Plan.
14.6
Recapitalizations. Each Award Agreement
shall contain provisions required to reflect the provisions of Section 11.
14.7
Delivery. Upon exercise of a right granted
under this Plan, the Company shall issue Common Stock or pay any amounts due within a reasonable period of time thereafter. Subject
to any statutory or regulatory obligations the Company may otherwise have, for purposes of this Plan, 30 days shall be considered
a reasonable period of time.
14.8
No Fractional Shares. No fractional shares
of Common Stock shall be issued or delivered pursuant to the Plan. The Committee shall determine whether cash, additional Awards
or other securities or property shall be issued or paid in lieu of fractional shares of Common Stock or whether any fractional
shares should be rounded, forfeited or otherwise eliminated.
14.9
Other Provisions. The Award Agreements
authorized under the Plan may contain such other provisions not inconsistent with this Plan, including, without limitation, restrictions
upon the exercise of Awards, as the Committee may deem advisable.
14.10
Section 409A. The Plan is intended to
comply with Section 409A of the Code to the extent subject thereto, and, accordingly, to the maximum extent permitted, the Plan
shall be interpreted and administered to be in compliance therewith. Any payments described in the Plan that are due within the
“short-term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation
unless Applicable Laws require otherwise. Notwithstanding anything to the contrary in the Plan, to the extent required to avoid
accelerated taxation and tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that
would otherwise be provided pursuant to the Plan during the six (6) month period immediately following the Participant’s
termination of Continuous Service shall instead be paid on the first payroll date after the six-month anniversary of the Participant’s
separation from service (or the Participant’s death, if earlier). Notwithstanding the foregoing, neither the Company nor
the Committee shall have any obligation to take any action to prevent the assessment of any additional tax or penalty on any Participant
under Section 409A of the Code and neither the Company nor the Committee will have any liability to any Participant for such tax
or penalty.
14.11
Disqualifying Dispositions. Any Participant
who shall make a “disposition” (as defined in Section 424 of the Code) of all or any portion of shares of Common Stock
acquired upon exercise of an Incentive Stock Option within two years from the Grant Date of such Incentive Stock Option or within
one year after the issuance of the shares of Common Stock acquired upon exercise of such Incentive Stock Option (a “Disqualifying
Disposition”) shall be required to immediately advise the Company in writing as to the occurrence of the sale and the
price realized upon the sale of such shares of Common Stock.
14.12
Section 16. It is the intent of the Company
that the Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements of Rule 16b-3 as promulgated
under Section 16 of the Exchange Act so that Participants will be entitled to the benefit of Rule 16b-3, or any other rule promulgated
under Section 16 of the Exchange Act, and will not be subject to short-swing liability under Section 16 of the Exchange Act. Accordingly,
if the operation of any provision of the Plan would conflict with the intent expressed in this Section 14.12, such provision to
the extent possible shall be interpreted and/or deemed amended so as to avoid such conflict.
14.13
Beneficiary Designation. Each Participant
under the Plan may from time to time name any beneficiary or beneficiaries by whom any right under the Plan is to be exercised
in case of such Participant’s death. Each designation will revoke all prior designations by the same Participant, shall
be in a form reasonably prescribed by the Committee and shall be effective only when filed by the Participant in writing with
the Company during the Participant’s lifetime.
14.14
Expenses. The costs of administering the
Plan shall be paid by the Company.
14.15
Severability. If any of the provisions
of the Plan or any Award Agreement is held to be invalid, illegal or unenforceable, whether in whole or in part, such provision
shall be deemed modified to the extent, but only to the extent, of such invalidity, illegality or unenforceability and the remaining
provisions shall not be affected thereby.
14.16
Plan Headings. The headings in the Plan
are for purposes of convenience only and are not intended to define or limit the construction of the provisions hereof.
14.17
Non-Uniform Treatment. The Committee’s
determinations under the Plan need not be uniform and may be made by it selectively among persons who are eligible to receive,
or actually receive, Awards. Without limiting the generality of the foregoing, the Committee shall be entitled to make non-uniform
and selective determinations, amendments and adjustments, and to enter into non-uniform and selective Award Agreements.
15.
Effective Date of Plan.
The Plan shall become effective as of the Effective Date, but no Award shall be exercised (or, in the case of a Stock Award, shall
be granted) unless and until the Plan has been approved by the shareholders of the Company, which approval shall be within twelve
(12) months before or after the date the Plan is adopted by the Board.
16.
Termination or Suspension of the Plan.
The Plan shall terminate automatically on the date that is ten (10) years from the Effective Date. No Award shall be granted pursuant
to the Plan after such date, but Awards theretofore granted may extend beyond that date. The Board may suspend or terminate the
Plan at any earlier date pursuant to Section 13.1 hereof. No Awards may be granted under the Plan while the Plan is suspended
or after it is terminated.
17.
Choice of Law.
The law of the State of Delaware shall govern all questions concerning the construction, validity and interpretation of this Plan,
without regard to such state’s conflict of law rules.
APPENDIX
B
AGREEMENT
AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of July__, 2020, is entered into between SINTX Technologies,
Inc., a Delaware corporation (the “Company”), and SINTX Nevada Merger Company, a Nevada corporation and a wholly
owned subsidiary of the Company (“NewCo”).
WHEREAS,
the Company, whose shares of common stock are registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), desires to reincorporate as a Nevada corporation and has formed NewCo in order
to effectuate the reincorporation.
WHEREAS,
the board of directors of each of the Company and NewCo deems it advisable, fair to and in the best interests of such corporations
and their respective stockholders that the Company be merged with and into NewCo, upon the terms and subject to the conditions
herein stated, and that NewCo be the surviving corporation (the “Reincorporation Merger”).
NOW,
THEREFORE, in consideration of the premises and the agreements of the parties hereto contained herein, intending to be legally
bound, the parties hereto agree as follows:
ARTICLE
I
The
Reincorporation Merger; Effective Time
SECTION
1.1. The Reincorporation Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective
Time (as defined in Section 1.2), the Company shall be merged with and into NewCo whereupon the separate existence of the Company
shall cease. NewCo shall be the surviving corporation (the “Surviving Corporation”) in the Reincorporation
Merger and shall continue to be a corporation formed under the laws of the State of Nevada. The Reincorporation Merger shall have
the effects specified in the General Corporation Law of the State of Delaware, as amended (the “DGCL”) and
the Nevada Revised Statutes, as amended (the “NRS”), and the Surviving Corporation shall succeed, without other
transfer, to all of the assets and property (whether real, personal or mixed), rights, privileges, franchises, immunities and
powers of the Company, and shall assume and be subject to all of the liabilities, obligations and restrictions of every kind and
description of the Company, including, without limitation, all outstanding indebtedness of the Company.
SECTION
1.2. Effective Time. Unless this Agreement is terminated or abandoned in accordance with its terms, as soon as practicable
following the satisfaction of the conditions set forth in Article V in accordance with the terms of this Agreement, the Company
and NewCo shall cause Articles of Merger to be executed and filed with the Office of the Secretary of State of Nevada (the “Nevada
Articles of Merger”) and a Certificate of Merger to be executed and filed with the Office of the Secretary of State
of Delaware (the “Delaware Certificate of Merger”). The Reincorporation Merger shall become effective upon
the date and time specified in the Nevada Articles of Merger and the Delaware Certificate of Merger (the “Effective Time”).
ARTICLE
II
Articles
and Bylaws of the Surviving Corporation
SECTION
2.1. The Articles of Incorporation. The articles of incorporation of NewCo in effect at the Effective Time shall be amended
and restated and shall be substantially in the form as set forth on Exhibit A hereto, including to change the name
of the Surviving Corporation to “SINTX Technologies, Inc.”, and such amended and restated articles shall be the articles
of incorporation of the Surviving Corporation (such articles of incorporation, as so amended and restated, the “Articles
of Incorporation”), until thereafter amended in accordance with the provisions provided therein or applicable law.
SECTION
2.2. The Bylaws. Subject to the provisions of applicable laws, the bylaws of NewCo in effect at the Effective Time shall
be the bylaws of the Surviving Corporation (the “Bylaws”), until thereafter amended in accordance with the
provisions provided therein or applicable law.
ARTICLE
III
Officers,
Directors, Committees, and Corporate Policies of the Surviving Corporation
SECTION
3.1. Officers. The officers of the Company at the Effective Time shall, from and after the Effective Time, become the officers
of the Surviving Corporation, until their successors have been duly elected or appointed and qualified or until their earlier
death, resignation or removal in accordance with the Articles of Incorporation and the Bylaws.
SECTION
3.2. Directors. The board of directors of the Surviving Corporation effective as of, and immediately following, the Effective
Time shall consist of all of the directors of the Company immediately prior to the Effective Time, each to serve in such capacity
until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal
in accordance with the Articles of Incorporation and the Bylaws.
SECTION
3.3. Committees. Each committee of the board of directors of the Company existing immediately prior to the Effective time
shall, effective as of, and immediately following, the Effective Time, become a committee of the board of directors of the Surviving
Corporation, consisting of the members of such committee of the Company immediately prior to the Effective Time and governed by
the charter of such committee of the Company in existence immediately prior to the Effective Time, which charter shall, at the
Effective Time, become the charter of such committee of the Surviving Corporation except that the governing law thereof shall
be, from and after the Effective Time, the law of Nevada. Each member of a committee of the board of directors of the Surviving
Corporation shall serve in such capacity until his or her successor has been duly elected or appointed and qualified or until
his or her earlier death, resignation or removal in accordance with the applicable committee charter and the Bylaws.
SECTION
3.4. Corporate Policies. The corporate policies of the Surviving Corporation, including, without limitation, its code of
business conduct, corporate governance guidelines, insider trading, conflict policies and director independence guidelines, effective
as of, and immediately following, the Effective Time shall consist of the corporate policies, including, without limitation, the
code of business conduct, corporate governance guidelines, insider trading, conflict policies and director independence guidelines,
of the Company immediately prior to the Effective Time.
ARTICLE
IV
Effect
of the Merger on Capital Stock; Certificates
SECTION
4.1. Effect of Merger on Capital Stock. At the Effective Time, as a result of the Reincorporation Merger and without any
action on the part of the Company, NewCo or the stockholders of the Company:
(a)
Each share of common stock, par value $0.01, of the Company (“Company Common Stock”) issued and outstanding
immediately prior to the Effective Time, other than shares canceled pursuant to Section 4.1(f) of this Agreement, shall be converted
(without the surrender of stock certificates or any other action by NewCo, the Company or the stockholders of the Company) into
one fully paid and non-assessable share of common stock, par value $0.001, of the Surviving Corporation (“Surviving Corporation
Common Stock”), and all shares of Company Common Stock shall be canceled and retired and shall cease to exist.
(b)
Each share of Series B Convertible Preferred Stock, par value $0.01, of the Company (“Company Series B Preferred Stock”)
issued and outstanding immediately prior to the Effective Time, shall be converted (without the surrender of stock certificates
or any other action by NewCo, the Company or the stockholders of the Company) into one fully paid and non-assessable share Series
B Convertible Preferred Stock, par value $0.001, of the Surviving Corporation (“Surviving Corporation Series B Preferred
Stock”), and all shares of Company Series B Preferred Stock shall be canceled and retired and shall cease to exist.
With respect to the number of shares of Company Common Stock reserved for issuance upon conversion of the Company Series B Preferred
Stock, an equal number of shares of Surviving Corporation Common Stock shall be so reserved for conversion of Surviving Corporation
Series B Preferred Stock.
(c)
Each share of Series C Convertible Preferred Stock, par value $0.01, of the Company (“Company Series C Preferred Stock”)
issued and outstanding immediately prior to the Effective Time, shall be converted (without the surrender of stock certificates
or any other action by NewCo, the Company or the stockholders of the Company) into one fully paid and non-assessable share Series
C Convertible Preferred Stock, par value $0.001, of the Surviving Corporation (“Surviving Corporation Series C Preferred
Stock”), and all shares of Company Series C Preferred Stock shall be canceled and retired and shall cease to exist.
With respect to the number of shares of Company Common Stock reserved for issuance upon conversion of the Company Series C Preferred
Stock, an equal number of shares of Surviving Corporation Common Stock shall be so reserved for conversion of Surviving Corporation
Series C Preferred Stock.
(d)
With respect to the number of shares of Company Common Stock reserved for issuance upon exercise of warrants, convertible securities
or other securities of the Company, as the case may be, an equal number of shares of Surviving Corporation Common Stock shall
be so reserved.
(e)
With respect to the number of shares of Company Common Stock reserved for issuance under the Company’s equity compensation
plans (including all amendments or modifications, collectively, the “Plans”), an equal number of shares of Surviving
Corporation Common Stock shall be so reserved. The Surviving Corporation shall assume the sponsorship of the Plans, the rights
and obligations of the Company thereunder, and the rights and obligations of the Company under all award agreements evidencing
any award issued under any Plan or any inducement award with respect to Company Common Stock (including all amendments and modifications,
collectively, the “Award Agreements”), in each case in accordance with the terms thereof and applicable law. Each
equity-based award with respect to Company Common Stock issued and outstanding immediately prior to the Effective Time that was
granted pursuant to the Plans and the Award Agreements (an “Equity Award”) shall be converted into a corresponding
equity-based award with respect to the number of shares of Surviving Corporation Common Stock equal to the number of shares of
Company Common Stock underlying such Equity Award at the Effective Time, in accordance with the terms of the applicable Plan and
Award Agreement. Such converted equity-based award shall be subject to the same terms and conditions applicable to the corresponding
Equity Award prior to the conversion, including any vesting and forfeiture conditions. Further, none of the execution of this
Agreement, the Reincorporation Merger or other transaction contemplated herein is intended, or shall be deemed, to constitute
a “Change in Control” (or term of similar import) under any Plan, Award Agreement, employment agreement or other employee
benefit plan of the Company or its affiliates.
(f)
Each share of common stock, par value $0.001, of NewCo registered in the name of the Company shall be reacquired by the Surviving
Corporation and canceled and retired, and shall resume the status of authorized and unissued Surviving Corporation Common Stock.
No shares of Surviving Corporation Common Stock or other securities of the Surviving Corporation shall be issued in respect thereof.
SECTION
4.2. Certificates. At and after the Effective Time, all of the outstanding certificates which immediately prior thereto
represented shares of Company Common Stock (other than shares canceled pursuant to Section 4.1(e) of this Agreement), Company
Series B Preferred Stock, Company Series C Preferred Stock, or options, warrants or other securities of the Company shall be deemed
for all purposes to evidence ownership of and to represent a number of shares of Surviving Corporation Common Stock, Surviving
Corporation Series B Preferred Stock, Surviving Corporation Series C Preferred Stock, as the case be, equal to the number of shares
of Company Common Stock represented thereby or that were acquirable pursuant to such Company Series B Preferred Stock, Company
Series C Preferred Stock, options, warrants or other securities of the Surviving Corporation, as the case may be, into which the
shares of Company Common Stock, or options, warrants or other securities of the Company represented by such certificates shall
have been converted as herein provided and shall be so registered on the books and records of the Surviving Corporation or its
transfer agent. The registered owner of any such outstanding certificate shall, until such certificate shall have been surrendered
for transfer or otherwise accounted for to the Surviving Corporation or its transfer agent, have and be entitled to exercise any
voting and other rights with respect to, and to receive any dividends and other distributions upon, the shares of Surviving Corporation
Common Stock or options, warrants or other securities of the Surviving Corporation, as the case may be, evidenced by such outstanding
certificate, as above provided.
ARTICLE
V
Conditions
SECTION
5.1. Conditions to the Obligations of Each Party. The respective obligation of each party hereto to effectuate the Reincorporation
Merger is subject to satisfaction of the following conditions:
(a)
the holders of a majority of the outstanding shares of Company Common Stock shall have adopted this Agreement in accordance with
applicable law and the certificate of incorporation and bylaws of the Company prior to the Effective Time; and
(b)
any and all consents, approvals, authorizations or permits, filings or notifications deemed in the sole discretion of the Company
to be material to the consummation of the Reincorporation Merger (“Required Consents”) shall have been obtained
and shall be in full force and effect, including, without limitation, (i) consents, registrations, approvals, findings of suitability,
licenses, declarations, notifications or filings required to be made, given or obtained under applicable laws, rules and regulations
in connection with this Agreement or the consummation of the Reincorporation Merger; provided, however, that either of
the parties hereto may waive this condition (b), in its sole discretion to the extent permitted by law, with respect to any and
all Required Consents.
ARTICLE
VI
Termination
SECTION
6.1. Termination. This Agreement may be terminated and the Reincorporation Merger may be abandoned at any time prior to
the Effective Time, whether before or after the adoption of this Agreement by the holders of Company Common Stock referred to
in Section 5.1, if the board of directors of the Company determines for any reason that the consummation of the Reincorporation
Merger would be inadvisable or not in the best interests of the Company and its stockholders. In the event of the termination
and abandonment of this Agreement, this Agreement shall become null and void and have no effect, without any liability on the
part of either the Company or NewCo, or any of their respective stockholders, directors or officers.
ARTICLE
VII
Miscellaneous
and General
SECTION
7.1. Modification or Amendment. Subject to the provisions of applicable laws, at any time prior to the Effective Time,
the parties hereto may modify or amend this Agreement; provided, however, that an amendment made subsequent to the adoption
of this Agreement by the holders of Company Common Stock shall not (a) alter or change the amount or kind of shares and/or rights
to be received in exchange for or on conversion of all or any of the shares of the Company, (b) alter or change any provision
of the Articles of Incorporation or the bylaws of the Surviving Corporation that will become effective immediately following the
Reincorporation Merger other than as provided herein or (c) alter or change any of the terms or conditions of this Agreement if
such alteration or change would adversely affect the holders of capital stock of either of the parties hereto.
SECTION
7.2. Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being deemed to
be an original instrument, and all such counterparts shall together constitute the same agreement.
SECTION
7.3. Governing Law. This Agreement shall be deemed to be made in and in all respects shall be interpreted, construed and
governed by and in accordance with the laws of the State of Nevada, without regard to the conflicts of law principles thereof
to the extent that such principles would direct a matter to another jurisdiction.
SECTION
7.4. Entire Agreement. This Agreement constitutes the entire agreement and supersedes all other prior agreements, understandings,
representations and warranties both written and oral, among the parties, with respect to the subject matter hereof.
SECTION
7.5. No Third-Party Beneficiaries. This Agreement is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
SECTION
7.6. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of
any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement,
or the application thereof to any person or any circumstance, is determined by any court or other authority of competent jurisdiction
to be invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so
far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of
this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity
or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or
the application thereof, in any other jurisdiction.
SECTION
7.7. Headings. The headings herein are for convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
[Signature
page follows]
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as
of the date first written above.
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SINTX
Technologies, Inc.
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B.
Sonny Bal
President
and CEO
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SINTX
Nevada Merger Company
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B.
Sonny Bal
President
and CEO
|
[Signature
Page to Agreement and Plan of Merger]
APPENDIX
C
ARTICLES
OF INCORPORATION
(FORM
OF)
CERTIFCATE
OF
AMENDED AND RESTATED
ARTICLES
OF INCORPORATION OF
SINTX
NEVADA MERGER COMPANY
Pursuant
to the provisions of Nevada Revised Statutes 78.390 and 78.403, the undersigned officer of SINTX Nevada Merger Company, a Nevada
corporation, does hereby certify as follows:
A.
The Agreement and Plan of Merger, dated as of ____________ by and between SINTX Technologies, Inc., a Delaware corporation (the
“Company”), and SINTX Nevada Merger Company, a Nevada corporation (the “Merger Agreement”)
provides for the amendment and restatement of the corporation’s articles of incorporation as set forth below.
B.
The Merger Agreement, and the amendment and restatement of the corporation’s articles of incorporation (including the change
of the name of the corporation) contemplated thereby and as set forth below, have been duly approved by the board of directors
and the sole stockholder of the corporation, which is sufficient for approval thereof. The board of directors and sole stockholder
have determined and declared such amendment and restatement to be advisable, fair to and in the best interests of the corporation.
C.
This certificate sets forth the text of the articles of incorporation of the corporation, as amended and restated in their entirety
to this date as follows:
AMENDED
AND RESTATED ARTICLES OF INCORPORATION
OF
SINTX
TECHNOLOGIES, INC.
FIRST:
The name of the corporation is SINTX Technologies, Inc. (the “Corporation”).
SECOND:
The Corporation may, from time to time, in the manner provided by law, change the registered agent and registered office within
the State of Nevada. The Corporation may also maintain an office or offices for the conduct of its business, either within or
without the State of Nevada.
THIRD:
The Corporation is formed for the purpose of engaging in any lawful activity for which corporations may be organized under the
laws of the State of Nevada.
FOURTH:
A.
Designation and Number of Shares.
The
total number of shares of all classes of stock which the Corporation shall have the authority to issue is Three Hundred Eighty
Million (380,000,000) shares, consisting of Two Hundred Fifty Million (250,000,000) shares of common stock, par value $0.001 per
share (the “Common Stock”), and One Hundred Thirty Million (130,000,000) shares of preferred stock, par value $0.001
per share (the “Preferred Stock”).
The
number of authorized shares of Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then-outstanding
shares of capital stock of the Corporation entitled to vote thereon, without a vote of the holders of the Preferred Stock, or
of any series thereof, unless a vote of any such holders is required pursuant to the terms of any Preferred Stock designation.
B.
Preferred Stock.
1.
The shares of Preferred Stock are hereby authorized to be issued from time to time in one or more series, the shares of each series
to have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or restrictions as are specified in the resolution or resolutions
adopted by the board of directors of the Corporation (the “Board of Directors”) providing for the issue thereof. Such
Preferred Stock may be convertible into, or exchangeable for, at the option of either the holder or the Corporation or upon the
happening of a specified event, shares of any other class or classes or any other series of the same or any other class or classes
of capital stock of the Corporation at such price or prices or at such rate or rates of exchange and with such adjustments as
shall be stated and expressed in these Articles of Incorporation, as amended from time to time (these “Articles of Incorporation”)
or in the resolution or resolutions adopted by the Board of Directors providing for the issue thereof..
2.
Authority is hereby expressly granted to the Board of Directors to fix from time to time, by resolution or resolutions providing
for the establishment and/or issuance of any series of Preferred Stock, the designation and number of the shares of such series
and the powers, preferences and rights of such series, and the qualifications, limitations or restrictions thereof, to the fullest
extent such authority may be conferred upon the Board of Directors under Nevada Revised Statutes. Without limiting the generality
of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be
superior or rank equally or be junior to the Preferred Stock of any other series to the extent permitted by law.
C.
Common Stock.
1.
Dividends. Dividends may be declared and paid on the Common Stock from funds lawfully available therefor if, as and when
determined by the Board of Directors in their sole discretion, subject to provisions of law, any provision of this Restated Certificate
of Incorporation, as amended from time to time, and subject to the relative rights and preferences of any shares of Preferred
Stock authorized, issued and outstanding hereunder. The term “Restated Articles of Incorporation” as used herein shall
mean the Restated Articles of Incorporation of the Corporation as amended from time to time.
2.
Voting. The holders of the Common Stock are entitled to one vote for each share held; provided, however, that, except
as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Restated Articles
of Incorporation (including any certificate of designation relating to Preferred Stock) that relates solely to the terms of one
or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together
as a class with the holders of one or more other such series, to vote thereon by law or pursuant to this Restated Articles of
Incorporation (including any certificate of designation relating to Preferred Stock).
FIFTH:
The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and
for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
A.
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition
to the powers and authority expressly conferred upon them by statute or by this Restated Articles of Incorporation or the Bylaws
of the Corporation as in effect from time to time, the directors are hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation.
B.
The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.
C.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, any action required or permitted to be
taken by the stockholders of the Corporation may be effected only at a duly called annual or special meeting of stockholders of
the Corporation and not by written consent.
D.
Special meetings of the stockholders may only be called by the Board of Directors acting pursuant to a resolution adopted by a
majority of the Whole Board. For the purposes of this Restated Articles of Incorporation, the term “Whole Board” shall
mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships.
Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated
in the notice of meeting.
SIXTH:
A.
Subject to the rights of the holders of shares of any series of Preferred Stock then outstanding to elect additional directors
under specified circumstances, the number of directors shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the Whole Board.
B.
The directors, other than those who may be elected by the holders of shares of any series of Preferred Stock under specified circumstances,
shall be divided into three classes, with the term of office of the first class to expire at the first annual meeting of stockholders
following the initial classification of directors, the term of office of the second class to expire at the second annual meeting
of stockholders following the initial classification of directors, and the term of office of the third class to expire at the
third annual meeting of stockholders following the initial classification of directors. At each annual meeting of stockholders,
directors elected to succeed those directors whose terms expire, other than directors elected by the holders of any series of
Preferred Stock under specified circumstances, shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders after their election and until their successors are duly elected and qualified. The Board of Directors
is authorized to assign members of the Board already in office to such classes as it may determine at the time the classification
of the Board of Directors pursuant to this Restated Articles of Incorporation becomes effective.
C.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting
from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall, unless otherwise required by law or by resolution of the
Board of Directors, be filled only by a majority vote of the directors then in office even though less than a quorum, or by a
sole remaining director, and not by stockholders, and directors so chosen shall serve for a term expiring at the annual meeting
of stockholders at which the term of office of the class to which they have been chosen expires or until such director’s
successor shall have been duly elected and qualified. No decrease in the authorized number of directors shall shorten the term
of any incumbent director.
D.
Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws of the Corporation.
E.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director, or the entire Board of Directors,
may be removed from office at any time only for cause and only by the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote at an election
of directors, voting together as a single class.
SEVENTH:
The Board of Directors is expressly empowered to adopt, amend or repeal Bylaws of the Corporation. Any adoption, amendment or
repeal of the Bylaws of the Corporation by the Board of Directors shall require the approval of a majority of the Whole Board.
The stockholders shall also have power to adopt, amend or repeal the Bylaws of the Corporation; provided, that in addition to
any vote of the holders of any class or series of stock of the Corporation required by law or by this Restated Articles of Incorporation,
the affirmative vote of the holders of at least eighty percent (80%) of the voting power of all of the then outstanding shares
of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class,
shall be required for the stockholders to adopt, amend or repeal any provision of the Bylaws of the Corporation.
EIGHTH:
A.
Each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation,
as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director,
officer, or trustee of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an “lndemnitee’’), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director,
officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the Nevada Revised
Statutes , as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith;
provided, however, that, except as provided in Paragraph C of this Article EIGHTH with respect to proceedings to enforce
rights to indemnification or an advancement of expenses or as otherwise required by law, the Corporation shall not be required
to indemnify or advance expenses to any such Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee
unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
B.
In addition to the right to indemnification conferred in Paragraph A of this Article EIGHTH, an lndemnitee shall also have the
right to be paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if Nevada Revised Statutes requires, an advancement of expenses
incurred by an Indemnitee in his capacity as a director or officer (and not in any other capacity in which service was or is rendered
by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to appeal that such lndemnitee is not entitled to be
indemnified for such expenses under this Paragraph B or otherwise.
C.
If a claim under Paragraph A or B of this Article EIGHTH is not paid in full by the Corporation within sixty (60) days after a
written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case
the applicable period shall be twenty (20) days, the Indemnitee may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation
to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be entitled to be paid
the expenses of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement of expenses) it shall be a defense
that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking,
the Corporation shall be entitled to recover such expenses upon a final adjudication that, the Indemnitee has not met any applicable
standard for indemnification set forth in the Nevada Revised Statutes . Neither the failure of the Corporation (including its
directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such suit that indemnification of the Indernnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in the Nevada Revised Statutes , nor an actual determination
by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption
that the Indernnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee,
be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking,
the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article
EIGHTH or otherwise shall be on the Corporation.
D.
The rights to indemnification and to the advancement of expenses conferred in this Article EIGHTH shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute, the Corporation’s Articles of Incorporation
as amended from time to time, the Corporation’s Bylaws, any agreement, any vote of stockholders or disinterested directors
or otherwise.
E.
The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the
Nevada Revised Statutes .
F.
The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and
to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article
EIGHTH with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
G.
The rights conferred upon Indemnitees in this Article EIGHTH shall be contract rights and such rights shall continue as to an
Indernnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the Indemnitee’s
heirs, executors and administrators. Any amendment, alteration or repeal of this Article EIGHTH that adversely affects any right
of an Indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any
proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to any such amendment,
alteration or repeal.
H.
If any word, clause, provision or provisions of this Article EIGHIB shall be held to be invalid, illegal or unenforceable for
any reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Article EIGHTH (including,
without limitation, each portion of any section of this Article EIGHTH containing any such provision held to be invalid, illegal
or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (ii) to the fullest extent possible, the provisions of this Article EIGHTH (including, without limitation, each such
portion of any section of this Article EIGHTH containing any such provision held to be invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
NINTH:
No director shall be personally liable to the Corporation or its stockholders for any monetary damages for breaches of fiduciary
duty as a director; provided that this provision shall not eliminate or limit the liability of a director, to the extent that
such liability is imposed by applicable law, (i) for any breach of the director’s duty of loyalty to the Corporation or
its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) under Section 174 or successor provisions of the Nevada Revised Statutes ; or (iv) for any transaction from which
the director derived an improper personal benefit. No amendment to or repeal of this provision shall apply to or have any effect
on the liability or alleged liability of any director for or with respect to any acts or omissions of such director occurring
prior to such amendment or repeal. If the Nevada Revised Statutes is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited
to the fullest extent permitted by Nevada Revised Statues, as so amended. All references in this Article NINTH to a director shall
also be deemed to refer to any such director acting in his or her capacity as a Continuing Director (as defined in Article ELEVENTH).
TENTH:
The Corporation reserves the right to amend or repeal any provision contained in this Restated Articles of Incorporation in the
manner prescribed by the Nevada Revised Statutes and all rights conferred upon stockholders are granted subject to this reservation,
provided that in addition to the vote of the holders of any class or series of stock of the Corporation required by law or by
this Restated Articles of Incorporation, the affirmative vote of the holders of shares of voting stock of the Corporation representing
at least eighty percent (80%) of the voting power of all of the then outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter
or repeal, or adopt any provision inconsistent with, Articles FIFITH, SIXTH, SEVENTH, EIGHTH, NINTH, this Article TENTH and Article
ELEVENTH of this Restated Articles of Incorporation.
ELEVENTH:
The Board of Directors is expressly authorized to cause the Corporation to issue rights pursuant to Nevada Revised Statutes and,
in that connection, to enter into any agreements necessary or convenient for such issuance, and to enter into other agreements
necessary and convenient to the conduct of the business of the Corporation. Any such agreement may include provisions limiting,
in certain circumstances, the ability of the Board of Directors of the Corporation to redeem the securities issued pursuant thereto
or to take other action thereunder or in connection therewith unless there is a specified number or percentage of Continuing Directors
then in office. Pursuant to Nevada Revised Statutes, the Continuing Directors shall have the power and authority to make all decisions
and determinations, and exercise or perform such other acts that any such agreement provides that such Continuing Directors shall
make, exercise or perform. For purposes of this Article ELEVENTH and any such agreement, the term, “Continuing Directors,”
shall mean (I) those directors who were members of the Board of Directors of the Corporation at the time the Corporation entered
into such agreement and any director who subsequently becomes a member of the Board of Directors, if such director’s nomination
for election to the Board of Directors is recommended or approved by the majority vote of the Continuing Directors then in office
or (2) such members of the Board of Directors designated in, or in the manner provided in, such agreement as Continuing Directors.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the undersigned officer has executed this Certificate
of Amended and Restated Articles of Incorporation of SINTX Technologies, Inc. as of ___________, 20__.
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SINTX
TECHNOLOGIES, INC
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By:
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Its:
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APPENDIX
D
SINTX
TECHNOLOGIES, INC.
BYLAWS
(effective
________, 2020)
ARTICLE
I - STOCKHOLDERS
Section
1. Annual Meeting.
An
annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction
of such other business as may properly come before the meeting, shall be held at such place, on such date, and at such time as
the Board of Directors shall fix. The Board of Directors may, in its sole discretion, determine that the meeting shall not be
held at any place, but instead shall be held solely by means of remote communication as provided under Chapter 78 of Nevada Revised
Statutes (as hereafter amended from time to time, the “Nevada Corporation Law”).
Section
2. Special Meetings.
Special
meetings of the stockholders of the Corporation may be called only by the Board of Directors pursuant to a resolution adopted
by a majority of the Authorized Board. For the purposes of these Restated Bylaws (hereinafter referred to herein as these “Bylaws”),
the term “Authorized Board” shall mean the total number of authorized directors whether or not there exist any vacancies
on the Board of Directors. Special meetings of the stockholders may be held at such place within or without the State of Nevada
as may be stated in such resolution. The Board of Directors or the officer of the Corporation calling the meeting may, in its,
his or her sole discretion, determine that the meeting shall not be held at any place, but instead shall be held solely by means
of remote communication as provided under the Nevada Corporation Law.
Section
3. Notice of Meetings.
Notice
of the place, if any, date, and time of all meetings of the stockholders, and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall be given, not less than ten
(10) nor more than sixty (60) days before the date on which the meeting is to be held, to each stockholder entitled to vote at
such meeting, except as otherwise provided herein or required by law (meaning hereinafter as required from time to time by the
Nevada Corporation Law or the Articles of Incorporation of the Corporation, as amended and restated from time to time).
When
a meeting is adjourned to another place, if any, date or time, notice need not be given of the adjourned meeting if the place,
if any, date and time thereof, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed
to be present in person and vote at such adjourned meeting, are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than thirty (30) days after the date originally designated for
the meeting in the notice, or if a new record date is fixed for the adjourned meeting, notice of the place, if any, date, and
time of the adjourned meeting, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed
to be present in person and vote at such adjourned meeting, shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original meeting.
Section
4. Quorum.
At
any meeting of the stockholders, the holders of a majority of the voting power of all of the shares of the stock entitled to vote
at the meeting, present in person or represented by proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law or by rules of any stock exchange upon which the Corporation’s
securities are listed. Where a separate vote by a class or classes is required, a majority of the voting power of the shares of
such class or classes, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect
to that vote on that matter.
If
a quorum shall fail to attend any meeting, the chairman of the meeting may adjourn the meeting to another place, if any, date,
or time.
Section
5. Organization and Conduct of Business.
The
Chairman of the Board of Directors or, in his or her absence, the Chief Executive Officer of the Corporation or, in his or her
absence, the President of the Corporation or, in his or her absence, such person as the Board of Directors may have designated,
shall call to order any meeting of the stockholders and shall preside at and act as chairman of the meeting. In the absence of
the Secretary of the Corporation, the secretary of the meeting shall be such person as the chairman of the meeting appoints. The
chairman of any meeting of the stockholders shall determine the order of business and the procedures at the meeting, including
such regulation of the manner of voting and the conduct of discussion as he or she deems to be appropriate. The chairman of any
meeting of the stockholders shall have the power to adjourn the meeting to another place, if any, date and time. The date and
time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced
at the meeting.
Section
6. Notice of Stockholder Business and Nominations.
A.
Annual Meetings of Stockholders.
Nominations
of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders may be
made at an annual meeting of the stockholders (a) pursuant to the Corporation’s notice of meeting or proxy
materials with respect to such meeting, (b) by or at the direction of the Board of Directors or (c) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice provided for in this Section, who is entitled to
vote at the meeting and who complies with the notice procedures set forth in this Section.
B.
Special Meetings of Stockholders.
Only
such business shall be conducted at a special meeting of the stockholders as shall have been included in the notice of meeting
given pursuant to Section 2 above. The notice of such special meeting shall include the purpose for which the meeting is called.
Nominations of persons for election to the Board of Directors may be made at a special meeting of the stockholders at which directors
are to be elected (a) by or at the direction of the Board of Directors or (b) provided that the Board of Directors has determined
that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time
of giving of notice provided for in this Section, who shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section.
C.
Certain Matters Pertaining to Stockholder Business and Nominations.
(1)
For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph
A of this Section or a special meeting pursuant to paragraph B of this Section, (1) the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation, (2) such other business must otherwise be a proper matter for stockholder
action under the Nevada Corporation Law, (3) if the stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as that term is defined in this paragraph, such stockholder
or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least
the percentage of the Corporation’s voting shares required under applicable law to carry any such proposal, or, in the case
of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Corporation’s
voting shares reasonably believed by such stockholder or beneficial owner to be sufficient to elect the nominee or nominees proposed
to be nominated by such stockholder or beneficial owner, and must, in either case, have included in such materials the Solicitation
Notice and (4) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section, the stockholder or
beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required
the delivery of such a Solicitation Notice under this Section.
To
be timely, a stockholder’s notice pertaining to an annual meeting shall be delivered to the Secretary at the principal executive
offices of the Corporation not less than ninety (90) or more than one-hundred and twenty (120) days prior to the first anniversary
of the date of the preceding year’s annual meeting (the “Anniversary”); provided, however, that in the
event that the date of the annual meeting is more than thirty (30) days before or more than thirty (30) days after the Anniversary,
notice by the stockholder to be timely must be so delivered not earlier than the close of business on the one-hundred and twentieth
(120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior
to such annual meeting or the close of business on the tenth (10th) day following the day on which public announcement of the
date of such meeting is first made by the Corporation. Such stockholder’s notice for an annual meeting or a special meeting
shall set forth and include:
(a)
as to each person whom the stockholder proposes to nominate for election or reelection as a director:
(i)
all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case, pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (including such person’s written consent to being named in the proxy statement as a nominee
and to serving as a director if elected);
(ii)
a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings
during the past three (3) years, and any other material relationships, between or among such stockholder and beneficial
owner, if any, and their respective affiliates and associates, on the one hand, and each proposed nominee, and his or her
respective affiliates and associates, on the other hand, including, without limitation, all information that would be
required to be disclosed pursuant to Item 404 of Regulation S-K promulgated under the Securities Act of 1933, as amended, if
the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any
affiliate or associate thereof, were the “registrant” for purposes of such rule and the nominee were a director
or executive officer of such registrant;
(iii)
to the extent known by the stockholder or the beneficial owner, the name and address of any other securityholder of the Corporation
who owns, beneficially or of record, any securities of the Corporation and who supports any nominee proposed by such stockholder
or beneficial owner; and
(iv)
with respect to each nominee for election or reelection to the Board of Directors, a completed and signed questionnaire, representation
and agreement required by paragraph D of this Article.
(b)
as to any other business that the stockholder or beneficial owner proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, including the text of any resolutions proposed for consideration, the reasons
for conducting such business at the meeting, any material interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made, and to the extent known by the stockholder or beneficial owner, the name and address
of any other securityholder of the Corporation who owns, beneficially or of record, any securities of the Corporation and who
supports any matter such stockholder or beneficial owner intends to propose; and
(c)
as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made:
(i)
the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner;
(ii)
(A) the class or series and number of shares of the Corporation which are, directly or indirectly, owned beneficially and of record
by such stockholder and such beneficial owner, (B) any option, warrant, convertible security, restricted stock unit, stock appreciation
right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any
class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series
of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or
series of capital stock of the Corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially
by such stockholder and such beneficial owner, if any, and any other direct or indirect opportunity to profit or share in any
profit derived from any increase or decrease in the value of shares of the Corporation, (C) any proxy, contract, arrangement,
understanding, or relationship pursuant to which such stockholder and beneficial owner, if any, has a right to vote any shares
of any security of the Corporation, (D) any short interest in any security of the Corporation (for purposes of these Bylaws, a
person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the
value of the subject security), (E) any rights to dividends on the shares of the Corporation owned beneficially and of record
by such stockholder that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest
in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which
such stockholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, or held,
directly or indirectly, by a limited liability company in which such stockholder is a member or manager or directly or indirectly
owns in interest in such member or manager, and (G) any performance- related fees (other than an asset-based fee) that such stockholder
is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any,
as of the date of such notice, including without limitation any such interests held by members of such stockholder’s immediate
family sharing the same household (which information shall be supplemented by such stockholder and beneficial owner, if any, not
later than ten (10) days after the record date for the meeting to disclose such ownership as of the record date; provided that
if such date is after the date of the meeting, not later than the day prior to the meeting);
(iii)
any other information relating to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or
for the election of directors in a contested election pursuant to Regulation 14A under the Exchange Act and the rules and regulations
promulgated thereunder;
(iv)
a description of all agreements, arrangements and understandings between such stockholder and beneficial owner, if any, and any
other person or persons (including their names) in connection with the proposal of such business by such stockholder and beneficial
owner, if any; and
(v)
a statement whether or not either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy
to holders of, in the case of a proposal, at least the percentage of the Corporation’s voting shares required under applicable
law to carry the proposal or, in the case of a nomination or nominations, a percentage of the Corporation’s voting shares
that such stockholder or beneficial owner reasonably believes to be sufficient to elect such nominee or nominees (an affirmative
statement of such intent being referred to herein as a “Solicitation Notice”).
(2)
Notwithstanding anything in the second sentence of paragraph C(1) of this Section to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least fifty-five
(55) days prior to the Anniversary (or, if the annual meeting is held more than thirty (30) days before or thirty (30) days after
the Anniversary, at least fifty-five (55) days prior to such annual meeting), a stockholder’s notice required by this Section
shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive office of the Corporation not later than the close of business on the
tenth (10th) day following the day on which such public announcement is first made by the Corporation.
(3)
In the event the Corporation calls a special meeting of the stockholders for the purpose of electing one or more directors to
the Board of Directors, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s)
as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph C(1) of this
Section shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the ninetieth
(90th) day prior to such special meeting nor later than the close of business on the later of the sixtieth (60th) day prior to
such special meeting, or the tenth (10th) day following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting.
D.
General.
(1)
Only such persons who are nominated in accordance with the procedures set forth in this Section shall be eligible to serve as
directors and only such business shall be conducted at a meeting of the stockholders as shall have been brought before the meeting
in accordance with the procedures set forth in this Section. Except as otherwise provided by law or these Bylaws, the chairman
of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any proposed
nomination or business is not in compliance herewith, to declare that such defective proposal or nomination shall be disregarded.
(2)
For purposes of this Section, “public announcement” shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or successor entity or comparable national news service or in a document publicly filed by
the Corporation with the U.S. Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3)
Notwithstanding the foregoing provisions of this Section, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section
shall be deemed to affect any rights (i) of the stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of Preferred Stock of the Corporation
to elect directors under specified circumstances.
(4)
In addition to the requirements set forth elsewhere in these Bylaws, to be eligible to be a nominee for election or reelection
as a director of the Corporation, a person must deliver, in accordance with the time periods prescribed for delivery of notice
under Section 6(C)(1) of this Article, to the Secretary of the Corporation at the principal executive offices of the Corporation
a completed and signed questionnaire with respect to the background and qualification of such person and the background of any
other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon
written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that
such person (i) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given
any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will
act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (B)
any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the
Corporation, with such person’s fiduciary duties under applicable law, (ii) is not and will not become a party to any agreement,
arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (iii)
in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made,
would be in compliance, if elected as a director of the Corporation, and will comply with, applicable law and all applicable publicly
disclosed corporate governance, code of conduct and ethics, conflict of interest, corporate opportunities, trading and any other
policies and guidelines of the Corporation applicable to its directors.
(5)
Notwithstanding the foregoing provisions of this Section, unless otherwise required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special meeting of the stockholders of the Corporation to
make his, her or its nomination or propose any other matter, such nomination shall be disregarded and such other proposed matter
shall not be transacted, even if proxies in respect of such vote have been received by the Corporation. For purposes of this Section,
to be considered a “qualified representative” of the stockholder, a person must be a duly authorized officer, manager
or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered
by such stockholder to act for such stockholder as proxy at the meeting of the stockholders, and such person must produce such
writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the commencement
of the meeting of the stockholders.
Section
7. Proxies and Voting.
At
any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument
in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this Section may
be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing
or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
All
voting, including on the election of directors but excepting where otherwise required by law, may be by voice vote. Any vote not
taken by voice shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting. The Corporation may, and to the extent required
by law, shall, in advance of any meeting of the stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate is able to act at a meeting of the stockholders, the person presiding at the meeting
may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability. Every vote taken by ballots shall be counted by a duly appointed inspector or inspectors.
Except
as otherwise provided in the terms of any class or series of Preferred Stock of the Corporation, all elections at any meeting
of the stockholders shall be determined by a plurality of the votes cast, and except as otherwise required by law, these Bylaws
or the rules of any stock exchange upon which the Corporation’s securities are listed, all other matters determined by stockholders
at a meeting shall be determined by a majority of the votes cast affirmatively or negatively.
Section
8. Action Without Meeting.
Any
action required or permitted to be taken by the stockholders of the Corporation may be effected only at a duly called annual or
special meeting of the stockholders of the Corporation and may not be effected by written consent.
Section
9. Stock List.
A
complete list of the stockholders entitled to vote at any meeting of the stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number of shares registered in his or her name, shall
be open to the examination of any such stockholder for a period of at least ten (10) days prior to the meeting in the manner provided
by law.
The
stock list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law. Such
list shall presumptively determine the identity of the stockholders entitled to examine such stock list and to vote at the meeting
and the number of shares held by each of them.
ARTICLE
II - BOARD OF DIRECTORS
Section
1. General Powers, Number, Election, Tenure, Qualification and Chairman.
A.
The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors.
B.
Subject to the rights of the holders of any series of Preferred Stock of the Corporation then outstanding to elect additional
directors under specified circumstances, the number of directors shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the Authorized Board.
C.
Subject to the rights of the holders of shares of any series of Preferred Stock of the Corporation then outstanding to elect additional
directors under specified circumstances, the Board of Directors of the Corporation shall be divided into three classes, with the
term of office of the first class to expire at the first annual meeting of the stockholders following the initial classification
of directors, the term of office of the second class to expire at the second annual meeting of the stockholders, following the
initial classification of directors, and the term of office of the third class to expire at the third annual meeting of the stockholders
following the initial classification of directors. At each annual meeting of the stockholders, directors elected to succeed those
directors whose terms expire, other than directors elected by the holders of any series of Preferred Stock of the Corporation,
shall be elected for a term of office to expire at the third succeeding annual meeting of the stockholders after their election
and until their successors are duly elected and qualified. The Board of Directors is authorized to assign members of the Board
already in office to such classes as it may determine at the time the classification of the Board of Directors becomes effective.
D.
The Chairman of the Board and any Vice Chairman appointed to act in the absence of the Chairman, if any, shall be elected by and
from the Board of Directors. The Chairman of the Board shall preside at all meetings of the Board of Directors and stockholders
at which he or she is present and shall have such authority and perform such duties as may be prescribed by these Bylaws or from
time to time be determined by the Board of Directors.
Section
2. Vacancies and Newly Created Directorships.
Subject
to the rights of the holders of any series of Preferred Stock of the Corporation then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause shall, unless otherwise required by law or by resolution
of the Board of Directors, be filled only by a resolution of a majority of the directors then in office even though less than
a quorum, or by a sole remaining director and not by the stockholders, and directors so chosen shall serve for a term expiring
at the annual meeting of the stockholders at which the term of office of the class to which they have been chosen expires or until
such director’s successor shall have been duly elected and qualified. No decrease in the authorized number of directors
shall shorten the term of any incumbent director. In the event of a vacancy in the Board of Directors, the remaining directors,
except as otherwise provided by law, may exercise the powers of the full Board of Directors until the vacancy is filled.
Section
3. Resignation and Removal.
Any
director may resign at any time upon notice given in writing or by electronic transmission to the Corporation at its principal
place of business or to the Chairman of the Board, Chief Executive Officer, President or Secretary of the Corporation. Such resignation
shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other
event. Subject to the rights of the holders of any series of Preferred Stock of the Corporation then outstanding, any director,
or the entire Board of Directors, may be removed from office at any time only for cause and only by the affirmative vote of the
holders of at least eighty percent (80%) of the voting power of all of the then outstanding shares of the Corporation then entitled
to vote at an election of directors, voting together as a single class.
Section
4. Regular Meetings.
Regular
meetings of the Board of Directors shall be held at such place or places, on such date or dates, and at such time or times as
shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall
not be required.
Section
5. Special Meetings.
Special
meetings of the Board of Directors may be called by the Chairman of the Board of Directors or the Chief Executive Officer, and
shall be called by the Secretary if requested by a majority of the Authorized Board, and shall be held at such place, on such
date, and at such time as he or she or they shall fix. Notice of the place, date, and time of each such special meeting shall
be given to each director by whom it is not waived by mailing written notice not less than five (5) days before the meeting or
orally, by telegraph, telex, cable, telecopy or electronic transmission given not less than twenty-four (24) hours before the
meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section
6. Quorum.
At
any meeting of the Board of Directors, a majority of the total number of the Authorized Board shall constitute a quorum for all
purposes. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place,
date, or time, without further notice or waiver thereof.
Section
7. Action by Consent.
Unless
otherwise restricted by the Articles of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting
of the Board of Directors may be taken without notice and without a meeting, if all members of the Board consent thereto in writing
or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic
form if the minutes are maintained in electronic form.
Section
8. Participation in Meetings By Conference Telephone.
Members
of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference
telephone or other communications equipment by means of which all persons participating in the meeting can hear each other and
such participation shall constitute presence in person at such meeting.
Section
9. Conduct of Business.
At
any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time
determine, and all matters shall be determined by a resolution of a majority of the directors present, except as otherwise provided
herein or required by law.
Section
10. Powers.
The
Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, including, without limiting the generality of the foregoing, the unqualified power:
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(1)
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to
declare dividends from time to time in accordance with law;
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(2)
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to
purchase or otherwise acquire any property, rights or privileges on such terms as it shall determine;
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(3)
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to
authorize the creation, making and issuance, in such form as it may determine, of written obligations of every kind, negotiable
or non-negotiable, secured or unsecured, to borrow funds and guarantee obligations, and to do all things necessary in connection
therewith;
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(4)
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to
remove any officer of the Corporation with or without cause, and from time to time to devolve the powers and duties of any
officer upon any other person for the time being;
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(5)
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to
confer upon any officer of the Corporation the power to appoint, remove and suspend subordinate officers, employees and agents;
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(6)
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to
adopt from time to time such stock, option, stock purchase, bonus or other compensation plans for directors, officers, employees,
consultants and agents of the Corporation and its direct or indirect subsidiaries as it may determine;
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(7)
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to
adopt from time to time such insurance, retirement, and other benefit plans for directors, officers, employees and agents
of the Corporation and its direct or indirect subsidiaries as it may determine; and,
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(8)
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to
adopt from time to time regulations, not inconsistent with these Bylaws, for the management of the Corporation’s business
and affairs.
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Section
11. Compensation of Directors.
Unless
otherwise restricted by the Articles of Incorporation, the Board of Directors shall have the authority to fix the compensation
of the directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors or paid a stated salary or paid other compensation
as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed compensation for attending committee meetings.
ARTICLE
III - COMMITTEES
Section
1. Committees of the Board of Directors.
The
Board of Directors, by a resolution of a majority of the Board of Directors, may from time to time designate committees of the
Board, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board and shall,
for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating,
if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in a resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the Corporation to the fullest extent
authorized by law. In the absence or disqualification of any member of any committee and any alternate member in his or her place,
the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or she or they
constitute a quorum, may by resolution unanimously appoint another member of the Board of Directors to act at the meeting in the
place of the absent or disqualified member.
Section
2. Conduct of Business.
Each
committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except
as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; one-third
(1/3) of the members of any committee shall constitute a quorum unless the committee shall consist of one (1) or two (2) members,
in which event one (1) member shall constitute a quorum; and all matters shall be determined by a resolution of a majority of
the members present. Action may be taken by any committee without notice and without a meeting if all members thereof consent
thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are
filed with the minutes of the proceedings of such committee. Such filing shall be in paper form if the minutes are maintained
in paper form and shall be in electronic form if the minutes are maintained in electronic form.
ARTICLE
IV - OFFICERS
Section
1. Enumeration.
The
officers of the Corporation shall consist of a Chief Executive Officer, President, Chief Financial Officer, Treasurer, Secretary
and such other officers as the Board of Directors or the Chief Executive Officer may determine, including, but not limited to,
one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries. The salaries of officers elected by the Board of
Directors shall be fixed from time to time by the Board of Directors or by such officers as may be designated by resolution of
the Board of Directors.
Section
2. Election.
The
Chief Executive Officer, President, Chief Financial Officer, Treasurer and the Secretary shall be elected annually by the Board
of Directors at their first meeting following the annual meeting of the stockholders. The Board of Directors or the Chief Executive
Officer, may, from time to time, elect or appoint such other officers as it or he or she may determine, including, but not limited
to, one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries.
Section
3. Qualification.
No
officer need be a director. Two or more offices may be held by any one person. If required by a resolution of the Board of Directors,
an officer shall give bond to the Corporation for the faithful performance of his or her duties, in such form and amount and with
such sureties as the Board of Directors may determine. The premiums for such bonds shall be paid by the Corporation.
Section
4. Tenure and Removal.
Each
officer elected or appointed by the Board of Directors shall hold office until the first meeting of the Board of Directors following
the next annual meeting of the stockholders and until his or her successor is elected or appointed and qualified, or until he
or she dies, resigns, is removed or becomes disqualified, unless a shorter term is specified in the resolution electing or appointing
said officer. Each officer appointed by the Chief Executive Officer shall hold office until his or her successor is elected or
appointed and qualified, or until he or she dies, resigns, is removed or becomes disqualified, unless a shorter term is specified
by any agreement or other instrument appointing such officer. Any officer may resign by notice given in writing or by electronic
transmission of his or her resignation to the Chief Executive Officer, the President, or the Secretary, of the Corporation or
to the Board of Directors at a meeting of the Board. Such resignation shall be effective upon receipt unless it is specified to
be effective at some other time or upon the happening of some other event. Any officer elected or appointed by the Board of Directors
may be removed from office with or without cause only by a resolution of a majority of the directors. Any officer appointed by
the Chief Executive Officer may be removed with or without cause by the Chief Executive Officer or by a resolution of a majority
of the directors then in office.
Section
5. Chief Executive Officer.
The
Chief Executive Officer shall be the chief executive officer of the Corporation and shall, subject to the direction of the Board
of Directors, have the responsibility for the general management and control of the day-to-day business and affairs of the Corporation.
Unless otherwise provided by resolution of the Board of Directors, in the absence of the Chairman of the Board, the Chief Executive
Officer shall preside at all meetings of the stockholders and, if a director, meetings of the Board of Directors. The Chief Executive
Officer shall have general supervision and direction of all of the other officers (other than the Chairman of the Board or any
Vice Chairman of the Corporation), employees and agents of the Corporation. The Chief Executive Officer shall also have the power
and authority to determine the duties of all officers, employees and agents of the Corporation, shall determine the compensation
of any officers whose compensation is not established by the Board of Directors and shall have the power and authority to sign
all contracts and other instruments of the Corporation which are authorized.
Section
6. President.
Except
for meetings at which the Chief Executive Officer or the Chairman of the Board, if any, presides, the President shall, if present,
preside at all meetings of the stockholders, and if a director, at all meetings of the Board of Directors. The President shall,
subject to the control and direction of the Chief Executive Officer and the Board of Directors, have and perform such powers and
duties as may be prescribed by these Bylaws or from time to time be determined by the Chief Executive Officer or the Board of
Directors. The President shall have power to sign all stock certificates, contracts and other instruments of the Corporation which
are authorized. In the absence of a Chief Executive Officer, the President shall be the chief executive officer of the Corporation
and shall, subject to the direction of the Board of Directors, have responsibility for the general management and control of the
day-to-day business and affairs of the Corporation and shall have general supervision and direction of all of the officers (other
than the Chairman of the Board or any Vice Chairman or the Chief Executive Officer of the Corporation), employees and agents of
the Corporation.
Section
7. Vice Presidents.
The
Vice Presidents, if any, in the order of their election, or in such other order as the Board of Directors or the Chief Executive
Officer may determine, shall have and perform the powers and duties of the President (or such of the powers and duties as the
Board of Directors or the Chief Executive Officer may determine) whenever the President is absent or unable to act, including
the power to sign contracts and other instruments of the Corporation. The Vice Presidents, if any, shall also have such other
powers and duties as may from time to time be determined by the Board of Directors or the Chief Executive Officer and shall have
the power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized.
Section
8. Chief Financial Officer, Treasurer and Assistant Treasurers.
The
Chief Financial Officer shall, subject to the control and direction of the Board of Directors and the Chief Executive Officer,
be the chief financial officer of the Corporation and shall have and perform such powers and duties as may be prescribed in these
Bylaws or be determined from time to time by the Board of Directors and the Chief Executive Officer, including the power to sign
all contracts and other instruments of the Corporation which are authorized. All property of the Corporation in the custody of
the Chief Financial Officer shall be subject at all times to the inspection and control of the Board of Directors and the Chief
Executive Officer. The Chief Financial Officer shall have the responsibility for maintaining the financial records of the Corporation.
The Chief Financial Officer shall make such disbursements of the funds of the Corporation as are authorized and shall render from
time to time an account of all such transactions and of the financial condition of the Corporation. Unless the Board of Directors
has designated another person as the Corporation’s Treasurer, the Chief Financial Officer shall also be the Treasurer. Unless
otherwise determined by the Board of Directors, the Treasurer (if different than the Chief Financial Officer) and each Assistant
Treasurer, if any, shall have and perform the powers and duties of the Chief Financial Officer whenever the Chief Financial Officer
is absent or unable to act, and may at any time exercise such of the powers of the Chief Financial Officer, and such other powers
and duties, as may from time to time be determined by the Board of Directors, the Chief Executive Officer or the Chief Financial
Officer and shall have the power to sign all stock certificates, contracts and instruments of the Corporation which are authorized.
Section
9. Secretary and Assistant Secretaries.
The
Board of Directors or the Chief Executive Officer shall appoint a Secretary and, in his or her absence, one or more Assistant
Secretaries. Unless otherwise directed by the Board of Directors, the Secretary or, in his or her absence, any Assistant Secretary
shall attend all meetings of the directors and the stockholders and shall record all resolutions of the Board of Directors and
votes of the stockholders and minutes of the proceedings at such meetings. The Secretary or, in his or her absence, any Assistant
Secretary, shall notify the directors of their meetings, and shall have and perform such other powers and duties as may be prescribed
in these Bylaws or as may from time to time be determined by the Board of Directors, including the power to sign contracts and
other instruments of the Corporation. If the Secretary or an Assistant Secretary is elected but is not present at any meeting
of the Board of Directors or the stockholders, a temporary Secretary may be appointed by the directors or the Chief Executive
Officer at the meeting. The Secretary and each Assistant Secretary shall have the power to sign all stock certificates, contracts
and instruments of the Corporation which are authorized.
Section
10. Bond.
If
required by the Board of Directors, any officer shall give the Corporation a bond in such sum and with such surety or sureties
and upon such terms and conditions as shall be satisfactory to the Board of Directors, including without limitation a bond for
the faithful performance of the duties of his office and for the restoration to the Corporation of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his or her control and belonging to the Corporation.
Section
11. Action with Respect to Securities of Other Corporations.
Unless
otherwise directed by the Board of Directors or the Chief Executive Officer, the Chief Executive Officer, the President, the Chief
Financial Officer or the Treasurer shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy,
at any meeting of the stockholders of or with respect to any action of the stockholders of any other corporation in which the
Corporation may hold securities and otherwise to exercise any and all rights and powers which the Corporation may possess by reason
of its ownership of securities in such other corporation.
ARTICLE
V - STOCK
Section
1. Certificated and Uncertificated Stock.
Shares
of the Corporation’s stock may be certificated or uncertificated, as provided under the Nevada Corporation Law, and shall
be entered in the books of the Corporation and registered as they are issued. Any certificates representing shares of stock shall
be in such form as the Board of Directors shall prescribe, certifying the number and class of shares of stock owned by the stockholder.
Any certificates issued to a stockholder of the Corporation shall bear the name of the Corporation and shall be signed by the
Chairman of the Board of Directors, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary. Any or all of the signatures on the certificate may be by facsimile.
Section
2. Transfers of Stock.
Transfers
of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a certificate is issued in accordance with Section
4 of this Article of these Bylaws or in the case of uncertificated shares, an outstanding certificate for the number of shares
involved shall be surrendered for cancellation before a new certificate is issued therefor.
Section
3. Record Date.
In
order that the Corporation may determine the stockholders entitled to notice of any meeting of the stockholders, or to receive
payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date on which the resolution fixing the record date is adopted and which record date shall not be more
than sixty (60) nor less than ten (10) days before the date of any meeting of the stockholders, nor more than sixty (60) days
prior to the time for such other action as hereinbefore described. If the Board of Directors so fixes a date, such date shall
also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines,
at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such
determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to
notice of and to vote at a meeting of the stockholders shall be at the close of business on the day immediately preceding the
day on which notice is given or, if notice is waived, at the close of business on the day immediately preceding the day on which
the meeting is held, and, for determining stockholders entitled to receive payment of any dividend or other distribution or allotment
of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall
be at the close of business on the day on which the Board of Directors adopts a resolution relating thereto.
A
determination of the stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination
of the stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders
entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of the stockholders entitled
to vote in accordance with the foregoing provisions of this Section 3 at the adjourned meeting.
Section
4. Lost, Stolen or Destroyed Certificates.
In
the event of the loss, theft or destruction of any certificate of stock, the Corporation may issue a replacement certificate of
stock or uncertificated shares in place of any certificate previously issued by the Corporation pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory
bond or bonds of indemnity.
Section
5. Regulations.
The
issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board
of Directors may establish.
Section
6. Interpretation.
The
Board of Directors shall have the power to interpret all of the terms and provisions of these Bylaws, which interpretation shall
be conclusive.
ARTICLE
VI - NOTICES
Section
1. Notices.
If
mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder
at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic transmission in the
manner provided in Section 232 of the Nevada Corporation Law.
Section
2. Waiver of Notice.
A
written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether
before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be
given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any
meeting shall constitute waiver of notice, except attendance for the express purpose of objecting at the beginning of the meeting
to the transaction of business because the meeting is not lawfully called or convened.
ARTICLE
VII -INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
1. Right to Indemnification.
Each
person who was or is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation,
as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director,
officer, trustee, member or manager of another corporation, limited liability company, partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan (hereinafter referred to as an “Indemnitee”),
whether the basis of such proceeding is alleged action in an official capacity as a director, officer, manager, member, partner
or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by
the Corporation to the fullest extent permitted by law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights to such
Indemnitee than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss
(including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such Indemnitee in connection therewith; provided, however, that, except as provided in Section
3 of this Article with respect to proceedings to enforce rights to indemnification or as otherwise required by law, the Corporation
shall not be required to indemnify or advance expenses to any such Indemnitee in connection with a proceeding (or part thereof)
initiated by such Indemnitee unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
Section
2. Right to Advancement of Expenses.
In
addition to the right to indemnification conferred in Section 1 of this Article, an Indemnitee shall also have the right to be
paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the Nevada Corporation Law requires, an advancement of expenses incurred
by an Indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered
by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be
indemnified for such expenses under this Section 2 or otherwise.
Section
3. Right of Indemnitees to Bring Suit.
If
a claim under Section 1 or 2 of this Article is not paid in full by the Corporation within sixty (60) days after a written claim
has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in
a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee
shall also be entitled to be paid the expenses of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement
of expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication
that, the Indemnitee has not met any applicable standard for indemnification set forth in the Nevada Corporation Law. Neither
the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent
legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of
the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the
Nevada Corporation Law, nor an actual determination by the Corporation (including its directors who are not parties to such action,
a committee of such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable
standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the
case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to enforce a right
to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article or otherwise shall be on the Corporation.
Section
4. Non-Exclusivity of Rights.
The
rights to indemnification and to the advancement of expenses conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any law, statute, the Corporation’s Articles of Incorporation as amended
from time to time, these Bylaws, any agreement, any vote of the stockholders or resolution of disinterested directors or otherwise.
Section
5. Insurance.
The
Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability
or loss under the Nevada Corporation Law.
Section
6. Indemnity Agreements.
The
Corporation may enter into indemnity agreements with the persons who are members of its Board of Directors from time to time,
and with such officers, employees and agents of the Corporation and with such officers, directors, members, managers, partners,
employees and agents of any direct or indirect subsidiaries of the Corporation as the Board of Directors may designate, such indemnity
agreements to provide in substance that the Corporation will indemnify such persons as contemplated by this Article, and to include
any other substantive or procedural provisions regarding indemnification as are not inconsistent with Nevada law. The provisions
of such indemnity agreements shall prevail to the extent that they limit or condition or differ from the provisions of this Article.
Section
7. Indemnification of Employees and Agents of the Corporation.
The
Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to
the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article
with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
Section
8. Nature of Rights.
The
rights conferred upon Indemnitees in this Article shall be contract rights and such rights shall continue as to an Indemnitee
who has ceased to be a director, officer, member, manager, employee, agent or trustee and shall inure to the benefit of such Indemnitee’s
heirs, executors and administrators. Any amendment, alteration or repeal of this Article that adversely affects any right of an
Indemnitee or its successors shall be prospective only and shall not limit, eliminate, or impair any such right with respect to
any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment,
alteration or repeal.
Section
9. Severability.
If
any word, clause, provision or provisions of this Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Article (including, without limitation,
each portion of any Section of this Article containing any such provision held to be invalid, illegal or unenforceable, that is
not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the
fullest extent possible, the provisions of this Article (including, without limitation, each such portion of any Section of this
Article containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE
VIII - CERTAIN TRANSACTIONS
Section
1. Transactions with Interested Parties.
No
contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, limited liability company, association, or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes
the contract or transaction or solely because the votes of such director or officer are counted for such purpose, if:
(a)
The material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by
a resolution of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or
(b)
The material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of
the stockholders; or
(c)
The contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board
of Directors, a committee thereof, or the stockholders.
Section
2. Quorum.
Common
or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
ARTICLE
IX - MISCELLANEOUS
Section
1. Facsimile Signatures.
In
addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures
of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee
thereof.
Section
2. Corporate Seal.
The
Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the
Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used
by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section
3. Reliance upon Books, Reports and Records.
Each
director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the
performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the
Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or
committee member reasonably believes are within such other person’s professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
Section
4. Fiscal Year.
Except
as otherwise determined by the Board of Directors from time to time, the fiscal year of the Corporation shall end on the last
day of December of each year.
Section
5. Time Periods.
In
applying any provision of these Bylaws which requires that an act be done or not be done a specified number of days prior to an
event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the
day of the doing of the act shall be excluded, and the day of the event shall be included.
Section
6. Pronouns.
Whenever
the context may require, any pronouns used in these Bylaws shall include the corresponding masculine, feminine or neuter forms.
ARTICLE
X – FORUM FOR ADJUDICATION
To
the fullest extent permitted by law, and unless the Corporation consents in writing to the selection of an alternative forum,
the Eighth Judicial District Court of Clark County, Nevada, shall be the sole and exclusive forum for any actions, suits or proceedings,
whether civil, administrative or investigative or that assert any claim or counterclaim (a) brought in the name or right of the
Corporation or on its behalf, (b) asserting a claim for breach of any fiduciary duty owed by any director, officer, employee or
agent of the Corporation to the Corporation or the Corporation’s stockholders, (c) arising or asserting a claim arising
pursuant to any provision of NRS Chapters 78 or 92A or any provision of the Articles of Incorporation or these Bylaws or (d) asserting
a claim governed by the internal affairs doctrine. In the event that the Eighth Judicial District Court of Clark County, Nevada
does not have jurisdiction over any such action, suit or proceeding, then any other state district court located in the State
of Nevada shall be the sole and exclusive forum therefor and in the event that no state district court in the State of Nevada
has jurisdiction over any such action, suit or proceeding, then a federal court located within the State of Nevada shall be the
sole and exclusive forum therefor. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock
of the Corporation shall be deemed to have notice of and consented to the provisions of this Article X.
ARTICLE
X – AMENDMENTS
In
furtherance and not in limitation of the powers conferred by law, the Board of Directors is expressly authorized to adopt, amend
and repeal these Bylaws subject to the power of the holders of capital stock of the Corporation to adopt, amend or repeal the
Bylaws; provided, however, that, with respect to the power of holders of capital stock to adopt, amend and repeal Bylaws
of the Corporation, notwithstanding any other provision of these Bylaws or any provision of law which might otherwise permit a
lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the capital
stock of the Corporation required by law, these Bylaws or any Preferred Stock of the Corporation, the affirmative vote of the
holders of at least eighty percent (80%) of the voting power of all of the then-outstanding shares entitled to vote generally
in the election of directors, voting together as a single class, shall be required to adopt, amend or repeal any provision of
these Bylaws.