Fiscal
Year 2020 Annual Report and SEC Filings
Our
financial statements for our fiscal year ended March 31, 2020 are included in our Annual Report on Form 10-K, which we will make
available to stockholders at the same time as this proxy statement. This proxy statement and our annual report are posted on our
website at www.beyondair.net and are available from the SEC at its website at www.sec.gov. You may also obtain a copy of our annual
report without charge by sending a written request to Beyond Air, Inc., Attention: Investor Relations, 825 East Gate Blvd., Suite
320, Garden City, NY 11530.
*
* *
The Board of Directors
does not know of any other matters to be presented at the Annual Meeting. If any additional matters are properly presented at the
Annual Meeting, the persons named in the enclosed proxy card will have discretion to vote the shares of our common stock they represent
in accordance with their own judgment on such matters.
It
is important that your shares of our common stock be represented at the Annual Meeting, regardless of the number of shares that
you hold. You are, therefore, urged to vote by telephone or by using the Internet as instructed on the enclosed proxy card or
execute and return, at your earliest convenience, the enclosed proxy card in the envelope that has also been provided.
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THE BOARD OF DIRECTORS
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Garden City, NY
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January 22, 2021
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APPENDIX
A
BEYOND
AIR, INC. THIRD AMENDED AND RESTATED
2013 EQUITY INCENTIVE PLAN
(effective March 4, 2021)
1.
Purpose; Eligibility.
1.1
General Purpose. This Beyond Air, Inc. Third Amended and Restated 2013 Equity Incentive Plan (the “Plan”)
is hereby established by Beyond Air, Inc., a Delaware corporation (the “Company”), which amends and restates
the Second Amended and Restated Beyond Air, Inc. 2013 Equity Incentive Plan. The purposes of the Plan are to (a) enable 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, (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 an 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.
With
respect to any Director, unless the applicable Award Agreement states otherwise, a determination by a majority of the disinterested
Board members that the Director has engaged in any of the following:
(a)
malfeasance in office;
(b)
gross misconduct or neglect;
(c)
false or fraudulent misrepresentation inducing the director’s appointment;
(d)
wilful conversion of corporate funds; or
(e)
repeated failure to participate in Board meetings on a regular basis despite having received proper notice of the meetings in
advance.
The
Committee, in its absolute discretion, shall determine the effect of all matters and questions relating to whether a Participant
has been discharged for Cause.
“Change
in Control”
(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, $0.0001 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 Beyond Air, 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 that the Company’s shareholders approve this Plan if such shareholder approval occurs
before the first anniversary of the date the 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:
(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; or (ii) a
material reduction in the Participant’s base salary or bonus opportunity.
“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 Beyond Air, Inc. Amended and Restated 2013 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 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.
The
Committee also may modify the purchase price or the exercise price of any outstanding Award, provided that if the modification
effects a repricing, shareholder approval shall be required before the repricing is effective.
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 5,600,000 shares of Common Stock 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 5,600,000 shares of Common Stock may be issued in the aggregate
pursuant to the exercise of Incentive Stock Options (the “ISO Limit”).
4.4
Reserved.
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”).
(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.
(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). 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”); 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 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 Participant’s termination of Continuous Service without Cause or for Good Reason during the 3-month period
following a Change in Control, notwithstanding any provision of the Plan or any applicable Award Agreement to the contrary, 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 as of the date of the Participant’s termination of Continuous
Service.
(b)
With respect to Performance Share Awards and Cash Awards, in the event of a Change in Control, all incomplete Performance
Periods in respect of such Awards in effect on the date the Change in Control occurs shall end on the date of such change and
the Committee shall (i) determine the extent to which Performance Goals with respect to each such Performance Period have
been met based upon such audited or unaudited financial information then available as it deems relevant and (ii) cause to be
paid to the applicable Participant partial or full Awards with respect to Performance Goals for each such Performance Period
based upon the Committee’s determination of the degree of attainment of Performance Goals or, if not determinable,
assuming that the applicable “target” levels of performance have been attained, or on such other basis determined
by the Committee.
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
Clawback. Notwithstanding any other provisions in this Plan, the Company may cancel any Award, require reimbursement of
any Award by a Participant, and effect any other right of recoupment of equity or other compensation provided under the Plan in
accordance with any Company policies that may be adopted and/or modified from time to time (“Clawback Policy”).
In addition, a Participant may be required to repay to the Company previously paid compensation, whether provided pursuant to
the Plan or an Award Agreement, in accordance with the Clawback Policy. By accepting an Award, the Participant is agreeing to
be bound by the Clawback Policy, as in effect or as may be adopted and/or modified from time to time by the Company in its discretion
(including, without limitation, to comply with applicable law or stock exchange listing requirements).
14.3
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.
14.4
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.
14.5
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.
14.6
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.
14.7
Recapitalizations. Each Award Agreement shall contain provisions required to reflect the provisions of Section 11.
14.8
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.
14.9
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.
14.10
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.
14.11
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.
14.12
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.
14.13
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 14.13, such provision to the extent possible shall be interpreted and/or deemed amended so as to avoid
such conflict.
14.14
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.
14.15
Expenses. The costs of administering the Plan shall be paid by the Company.
14.16
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.
14.17
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.
14.18
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 August 13, 2028. 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.
As
adopted by the Board of Directors of Beyond Air, Inc. on January 9, 2021. As approved by the shareholders of Beyond Air,
Inc. on March 4, 2021.
ANNEX
A
TO
THE THIRD AMENDED AND RESTATED 2013 EQUITY INCENTIVE PLAN
OF
BEYOND AIR, INC.
DEFINITIONS
For
purposes of this Annex and the Grant Notification Letter, the following definitions shall apply:
(a)
“Affiliate” - any “employing company” within the meaning of Section 102(a) of the Ordinance.
(b)
“Approved 102 Option” - an Option granted pursuant to Section 102(b) of the Ordinance and held in trust by
a Trustee for the benefit of the Grantee.
(c)
“Capital Gain Option (CGO)” - an Approved 102 Option elected and designated by the Company to qualify under
the capital gain tax treatment in accordance with the provisions of Section 102(b)(2) of the Ordinance.
(d)
“Controlling Shareholder” - shall have the meaning ascribed to it in Section 32(9) of the Ordinance.
(e)
“Date of Grant” – the date upon which the Option is granted to the Grantee.
(f)
“Employee” - a person who is employed by the Company or its Affiliates, including an individual who is serving
as a director or an office holder, but excluding any Controlling Shareholder, all as determined in Section 102 of the Ordinance.
(g)
“Grantee” – a person who receives an Option under this Annex.
(h)
“ITA” - the Israeli Tax Authorities.
(i)
“Non-Employee” - a consultant, adviser, service provider, Controlling Shareholder or any other person
who is not an Employee.
(j)
“Ordinary Income Option (OIO)” - an Approved 102 Option elected and designated by the Company to qualify under
the ordinary income tax treatment in accordance with the provisions of Section 102(b)(1) of the Ordinance.
(k)
“102 Option” - any Option granted to Employees pursuant to Section 102 of the Ordinance.
(l)
“3(i) Option” - an Option granted pursuant to Section 3(i) of the Ordinance to any person who is a Non-Employee.
(m)
“Ordinance” - the Israeli Income Tax Ordinance [New Version] 1961 as now in effect or as hereafter amended.
(n)
“Section 102” - Section 102 of the Ordinance and any regulations, rules, orders or procedures promulgated
thereunder as now in effect or as hereafter amended.
(o)
“Trustee” - any individual appointed by the Company to serve as a trustee and approved by the ITA, all
in accordance with the provisions of Section 102(a) of the Ordinance.
(p)
“Unapproved 102 Option” - an Option granted pursuant to Section 102(c) of the Ordinance and not held in trust
by a Trustee.
For
the avoidance of any doubt, it is hereby clarified that any capitalized terms not specifically defined in this Annex shall be
construed according to the interpretation given to it in the Plan.
ANNEX
A - ISRAEL
1.
GENERAL
1.1
This Annex (the: “Annex”) shall apply only to Grantees who are residents of the State of Israel at the Date
of Grant or those who are deemed to be residents of the state of Israel for the payment of tax at the Date of Grant. The provisions
specified hereunder shall form an integral part of Section 4 of the Amended and Restated 2013 Equity Incentive Plan (the: “Plan”)
of Beyond Air, Inc. (the: “Company”) and in particular Section 4 of the Plan (hereinafter: the “Scheme”),
which applies to the issuance of options to purchase shares of Common Stock (the “Shares”) of the Company.
According to the Scheme, Options to purchase the Company’s Shares may be issued to employees, directors, consultants and
service provides of the Company or its affiliates. The tax rules and the US tax provisions and regulations shall not apply to
any grants hereunder to a Grantee who is a resident of the State of Israel at the Date of Grant or those who are deemed to be
residents of the State of Israel for the payment of tax at the Date of Grant.
1.2
This Annex is effective with respect to Options granted following Amendment no. 132 of the Ordinance, which entered into force
on January 1, 2003.
1.3
This Annex is to be read as a continuation of the Scheme and only modifies Options granted to Israeli Grantees so that they comply
with the requirements set by the Israeli law in general, and in particular with the provisions of Section 102 (as specified herein),
as may be amended or replaced from time to time. For the avoidance of doubt, this Annex does not add to or modify the Scheme in
respect of any other category of Grantees.
1.4
The Scheme and this Annex are complimentary to each other and shall be deemed as one. In any case of contradiction, whether explicit
or implied, between the provisions of this Annex and the Scheme, the provisions set out in the Annex shall prevail.
2.
ISSUANCE OF OPTIONS
2.1
The persons eligible for participation in the Scheme as Grantees shall include any Employees and/or Non-Employees of the Company
or of any Affiliate; provided, however, that (i) Employees may only be granted 102 Options; and (ii) Non-Employees and/or
Controlling Shareholders may only be granted 3(i) Options.
2.2
The Company may designate Options granted to Employees pursuant to Section 102 as Unapproved 102 Options or Approved 102 Options.
2.3
The grant of Approved 102 Options shall be made under this Annex adopted by the Board, and shall be conditioned upon the approval
of this Annex by the ITA.
2.4
Approved 102 Options may either be classified as Capital Gain Options (“CGOs”) or Ordinary Income Options (“OIOs”).
2.5
No Approved 102 Options may be granted under this Annex to any eligible Employee, unless and until, the Company’s election
of the type of Approved 102 Options as CGO or OIO granted to Employees (the: “Election”), is appropriately
filed with the ITA. Such Election shall become effective beginning the first date of grant of an Approved 102 Option under this
Annex and shall remain in effect at least until the end of the year following the year during which the Company first granted
Approved 102 Options. The Election shall obligate the Company to grant only the type of Approved 102 Option it has elected,
and shall apply to all Grantees who were granted Approved 102 Options during the period indicated herein, all in accordance with
the provisions of Section 102(g) of the Ordinance. For the avoidance of doubt, such Election shall not prevent the Company from
granting Unapproved 102 Options simultaneously.
2.6
All Approved 102 Options must be held in trust by a Trustee, as described in Section 3 below.
2.7
For the avoidance of doubt, the designation of Unapproved 102 Options and Approved 102 Options shall be subject to the terms and
conditions set forth in Section 102.
3.
TRUSTEE
3.1
Approved 102 Options which shall be granted under this Annex and/or any Shares allocated or issued upon exercise of such Approved
102 Options and/or other shares received subsequently following any realization of rights, including without limitation bonus
shares, shall be allocated or issued to the Trustee and held for the benefit of the Grantees for such period of time as required
by Section 102 or any regulations, rules or orders or procedures promulgated thereunder (the: “Holding Period”).
In the case the requirements for Approved 102 Options are not met, then the Approved 102 Options may be regarded as Unapproved
102 Options, all in accordance with the provisions of Section 102.
3.2
Notwithstanding anything to the contrary, the Trustee shall not release any Shares allocated or issued upon exercise of Approved
102 Options prior to the full payment of the Grantee’s tax liabilities arising from Approved 102 Options which were granted
to him and/or any Shares allocated or issued upon exercise of such Options.
3.3
With respect to any Approved 102 Option, subject to the provisions of Section 102 and any rules or regulation or orders or procedures
promulgated thereunder, a Grantee shall not sell or release from trust any Share received upon the exercise of an Approved 102
Option and/or any share received subsequently following any realization of rights, including without limitation, bonus shares,
until the lapse of the Holding Period required under Section 102 of the Ordinance. Notwithstanding the above, if any such sale
or release occurs during the Holding Period, the sanctions under Section 102 of the Ordinance and under any rules or regulation
or orders or procedures promulgated thereunder shall apply to and shall be borne by such Grantee.
3.4
Upon receipt of Approved 102 Option, the Grantee will sign an undertaking in which he or she will give his or her consent to the
grant of the Option under Section 102, and will undertake to comply with the terms of Section 102 and the trust agreement between
the Company and the Trustee. Furthermore, each Grantee shall sign and execute an undertaking in relation to the voting of any
Share received upon the exercise of an Approved 102 Option.
4.
THE OPTIONS
The
terms and conditions, upon which the Options shall be issued and exercised, shall be as specified in a letter to be executed pursuant
to the Scheme and to this Annex (the: “Grant Notification Letter”). Each Grant Notification Letter shall state,
inter alia, the number of Shares to which the Option relates, the type of Option granted thereunder (whether a CGO, OIO, Unapproved
102 Option or a 3(i) Option), the vesting provisions and the Purchase Price.
5.
FAIR MARKET VALUE
Without
derogating from the definition of “Fair Market Value” enclosed in the Scheme and solely for the purpose of determining
the tax liability pursuant to Section 102(b)(3) of the Ordinance, if at the date of grant the Company’s shares are listed
on any established stock exchange or a national market system or if the Company’s shares will be registered for trading
within ninety (90) days following the date of grant of the CGOs, the fair market value of the Shares at the date of grant shall
be determined in accordance with the average value of the Company’s shares on the thirty (30) trading days preceding the
date of grant or on the thirty (30) trading days following the date of registration for trading, as the case may be.
6.
EXERCISE OF OPTIONS
6.1
Options shall be exercised by the Grantee by giving a written notice to the Company and/or to any third party designated by the
Company (the: “Representative”), in such form and method as may be determined by the Company and, when applicable,
by the Trustee, in accordance with the requirements of Section 102, which exercise shall be effective upon receipt of such notice
by the Company and/or the Representative and the payment of the Purchase Price for the number of Shares with respect to which
the option is being exercised, at the Company’s or the Representative’s principal office. The notice shall specify
the number of Shares with respect to which the option is being exercised.
6.2
Without derogating from Section 11(2) of the Plan, and in addition thereto, with respect to Approved 102 Options, any shares of
Common Stock allocated or issued upon the exercise of an Approved 102 Option, shall be voted in accordance with the provisions
of Section 102 and any rules, regulations or orders promulgated thereunder.
7.
ASSIGNABILITY AND SALE OF OPTIONS
7.1
Notwithstanding any other provision of the Scheme, no Option or any right with respect thereto, purchasable hereunder, whether
fully paid or not, shall be assignable, transferable or given as collateral or any right with respect to them given to any third
party whatsoever, and during the lifetime of the Grantee each and all of such Grantee’s rights to purchase Shares hereunder
shall be exercisable only by the Grantee.
Any
such action made directly or indirectly, for an immediate validation or for a future one, shall be void.
7.2
As long as Options or Shares purchased pursuant to thereto are held by the Trustee on behalf of the Grantee, all rights of the
Grantee over the shares are personal, cannot be transferred, assigned, pledged or mortgaged, other than by will or laws of descent
and distribution.
8.
INTEGRATION OF SECTION 102 AND TAX ASSESSING OFFICER’S PERMIT
8.1
With regards to Approved 102 Options, the provisions of the Scheme and/or the Annex and/or the Grant Notification Letter shall
be subject to the provisions of Section 102 and the Tax Assessing Officer’s permit, and the said provisions and permit shall
be deemed an integral part of the Scheme and of the Annex and of the Grant Notification Letter.
8.2
Any provision of Section 102 and/or the said permit which is necessary in order to receive and/or to keep any tax benefit pursuant
to Section 102, which is not expressly specified in the Scheme or the Annex or the Grant Notification Letter, shall be considered
binding upon the Company and the Grantees.
9.
DIVIDEND
Subject
to the Company’s incorporation documents, with respect to all Shares (but excluding, for avoidance of any doubt, any unexercised
options) allocated or issued upon the exercise of Options and held by the Grantee or by the Trustee as the case may be, the Grantee
shall be entitled to receive dividends in accordance with the quantity of such shares, and subject to any applicable taxation
on distribution of dividends, and when applicable subject to the provisions of Section 102 and the rules, regulations or orders
promulgated thereunder.
10.
TAX CONSEQUENCES
10.1
Any tax consequences arising from the grant or exercise of any Option, from the payment for Shares covered thereby or from any
other event or act (of the Company, and/or its Affiliates, and the Trustee or the Grantee), hereunder, shall be borne solely by
the Grantee. The Company and/or its Affiliates, and/or the Trustee shall withhold taxes according to the requirements under the
applicable laws, rules, and regulations, including withholding taxes at source. Furthermore, the Grantee shall agree to indemnify
the Company and/or its Affiliates and/or the Trustee and hold them harmless against and from any and all liability for any such
tax or interest or penalty thereon, including without limitation, liabilities relating to the necessity to withhold, or to have
withheld, any such tax from any payment made to the Grantee.
10.2
The Company and/or, when applicable, the Trustee shall not be required to release any share certificate to a Grantee until all
required payments have been fully made.
10.3
With respect to Unapproved 102 Option, if the Grantee ceases to be employed by the Company or any Affiliate, the Grantee shall
extend to the Company and/or its Affiliate a security or guarantee for the payment of tax due at the time of sale of Shares, all
in accordance with the provisions of Section 102 and the rules, regulation or orders promulgated thereunder.
11.
GOVERNING LAW & JURISDICTION
This
Annex shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed therein, without giving effect to the principles of conflict of laws. The competent courts of the State
of Delaware shall have sole jurisdiction in any matters pertaining to this Annex.
*
* *
APPENDIX
B
BEYOND
AIR, INC. 2021 EMPLOYEE STOCK PURCHASE PLAN
beyond
air, inc.
2021
EMPLOYEE STOCK PURCHASE PLAN
Beyond
air, inc.
2021
Employee Stock Purchase Plan
1.
Purpose and Interpretation
(a)
The purpose of the Plan is to encourage and to enable Eligible Employees of the Company and its Participating Affiliates, through
after-tax payroll deductions, to acquire proprietary interests in the Company through the purchase and ownership of shares of
Stock. The Plan is intended to benefit the Company and its stockholders by (a) incentivizing Participants to contribute to the
success of the Company and to operate and manage the Company’s business in a manner that will provide for the Company’s
long-term growth and profitability and that will benefit its stockholders and other important stakeholders and (b) encouraging
Participants to remain in the employ of the Company or its Participating Affiliates.
(b)
The Plan and the ESPP Options granted under the Plan are intended to satisfy the requirements for an “employee stock purchase
plan” under Code Section 423. Notwithstanding the foregoing, the Company makes no undertaking to, nor representation that
it will, maintain the qualified status of the Plan or any ESPP Options granted under the Plan. In addition, ESPP Options that
do not satisfy the requirements for an “employee stock purchase plan” under Code Section 423 may be granted under
the Plan pursuant to the rules, procedures, or sub-plans adopted by the Administrator, in its sole discretion, for certain Eligible
Employees.
2.
Definitions
(a)
“Account” shall mean a bookkeeping account established and maintained to record the amount of funds accumulated
pursuant to the Plan with respect to a Participant for the purpose of purchasing shares of Stock under the Plan.
(b)
“Administrator” shall mean the Board, the Compensation Committee of the Board, or any other committee of the
Board designated by the Board to administer the Plan.
(c)
“Board” shall mean the Board of Directors of the Company.
(d)
“Change in Control” shall have the meaning set forth in the Company’s 2013 Equity Incentive Plan, as
amended and restated, or any successor omnibus incentive plan.
(e)
“Code” shall mean the Internal Revenue Code of 1986, as amended, as now in effect or as hereafter amended,
and any successor thereto. References in the Plan to any Code Section shall be deemed to include, as applicable, regulations and
guidance promulgated under such Code Section.
(f)
“Company” shall mean Beyond Air, Inc., a Delaware corporation, and any successor thereto.
(g)
“Custodian” shall mean the third-party administrator designated by the Administrator from time to time.
(h)
“Effective Date” shall mean March 4, 2021 the date of the Company’s 2021 annual meeting of stockholders,
subject to approval of the Plan by the Company’s stockholders on such date.
(i)
“Eligible Compensation” shall mean, unless otherwise established by the Administrator prior to the start of
an Offering Period, regular base compensation paid to a Participant by the Company or a Participating Affiliate as compensation
for services to the Company or Participating Affiliate, including such amounts of base compensation as are deferred by the Participant:
(x) under a qualified cash or deferred arrangement described in Section 401(k) of the Code; or (ii) to a plan qualified under
Section 125 of the Code. Unless otherwise determined by the Administrator prior to the start of an Offering Period, “Eligible
Compensation” does not include overtime, bonuses, annual awards, equity-based awards, other incentive payments, reimbursements
or other expense allowances, fringe benefits (cash or non-cash), moving expenses, deferred compensation, contributions (other
than contributions described in the first sentence) made on the Participant’s behalf by the Company or one or more Participating
Affiliates under any employee benefit or welfare plan now or hereafter established, and any other payments not specifically referenced
in the first sentence.
(j)
“Eligible Employee” shall mean a natural person who has been a full-time or part-time employee (including an
officer) of the Company or a Participating Affiliate for at least three (3) months as of an Offering Date, except the following,
who shall not be eligible to participate under the Plan: (i) an employee whose customary employment is twenty (20) hours or less
per week, (ii) an employee whose customary employment is for not more than five (5) months in any calendar year, (iii) an employee
who, after exercising his or her rights to purchase shares of Stock under the Plan, would own (directly or by attribution pursuant
to Code Section 424(d)) shares of Stock (including shares that may be acquired under any outstanding ESPP Options) representing
five percent (5%) or more of the total combined voting power of all classes of stock of the Company, (iv) an employee who is a
citizen or resident of a foreign jurisdiction (without regard to whether such employee is also a U.S. citizen or resident alien),
if the grant of an ESPP Option under the Plan or an Offering Period to such employee is prohibited under the laws of such foreign
jurisdiction or compliance with the laws of such foreign jurisdiction would cause the Plan or an Offering Period to violate the
requirements of Code Section 423 and (v) any other natural person whom the Administrator determines to exclude from an offering
designed to satisfy the requirements of Code Section 423, provided such exclusion is permitted by Code Section 423 and the guidance
issued thereunder. The Administrator may, at any time in its sole discretion, if it deems it advisable to do so, exclude the participation
of the employees of a particular Participating Affiliate from eligibility to participate in a future Offering Period. Notwithstanding
the foregoing, for purposes of a Non-423(b) Offering under the Plan, if any, the Administrator shall have the authority, in its
sole discretion, to establish a different definition of Eligible Employee as it may deem advisable or necessary.
(k)
“Enrollment Form” shall mean the agreement(s) between the Company and an Eligible Employee, in such written,
electronic, or other format and/or pursuant to such written, electronic, or other process as may be established by the Administrator
from time to time, pursuant to which an Eligible Employee elects to participate in the Plan or to which a Participant elects to
make changes with respect to the Participant’s participation as permitted by the Plan.
(l)
“Enrollment Period” shall mean that period of time prescribed by the Administrator, which period shall conclude
prior to the Offering Date, during which Eligible Employees may elect to participate in an Offering Period. The duration and timing
of Enrollment Periods may be changed or modified by the Administrator from time to time.
(m)
“ESPP Option” shall mean the right granted to Participants to purchase shares of Stock pursuant to an offering
under the Plan.
(n)
“Fair Market Value” shall mean the value of each share of Stock subject to the Plan on a given date determined
as follows: (i) if on such date the shares of Stock are listed on an established national or regional stock exchange or are publicly
traded on an established securities market, the Fair Market Value of the shares of Stock shall be the closing price of the shares
of Stock on such exchange or in such market (the exchange or market selected by the Administrator if there is more than one such
exchange or market) on such date or, if such date is not a Trading Day, on the Trading Day immediately preceding such date, or,
if no sale of the shares of Stock is reported for such Trading Day, on the next preceding day on which any sale shall have been
reported; or (ii) if the shares of Stock are not listed on such an exchange or traded on such a market, the Fair Market Value
of the shares of Stock shall be determined by the Administrator in good faith.
(o)
“Holding Period” shall have the meaning set forth in Section 10(c)(i).
(p)
“Non-423(b) Offering” shall mean the rules, procedures, or sub-plans, if any, adopted by the Administrator,
in its sole discretion, as a part of the Plan, pursuant to which ESPP Options that do not satisfy the requirements for “employee
stock purchase plans” that are set forth under Code Section 423 may be granted to Eligible Employees as a separate offering
under the Plan.
(q)
“Offering Date” shall mean the first day of any Offering Period under the Plan.
(r)
“Offering Period” shall mean the period determined by the Administrator pursuant to Section 7, which
period shall not exceed twenty-seven (27) months, during which payroll deductions are accumulated for the purpose of purchasing
Stock under the Plan.
(s)
“Outstanding Election” shall mean a Participant’s then-current election to purchase shares of Stock in
an Offering Period, or that part of such an election which has not been cancelled (including any voluntary cancellation under
Section 6(c) and deemed cancellation under Section 11) prior to the close of business on the last Trading Day of
the Offering Period (or if an Offering Period has multiple Purchase Periods, the last Trading Day of the Purchase Period) or such
other date as determined by the Administrator.
(t)
“Participant” shall mean an Eligible Employee who has elected to participate in the Plan pursuant to Section
5.
(u)
“Participating Affiliate” shall mean any Subsidiary designated by the Administrator from time to time, in its
sole discretion, whose employees may participate in the Plan or in a specific Offering Period under the Plan, if such employees
otherwise qualify as Eligible Employees.
(v)
“Plan” shall mean this Beyond Air, Inc. 2021 Employee Stock Purchase Plan, as it may be amended from time to
time.
(w)
“Purchase Period” shall mean the period during an Offering Period designated by the Administrator on the last
Trading Day of which purchases of Stock are made under the Plan. An Offering Period may have one or more Purchase Periods.
(x)
“Purchase Price” shall mean the purchase price at which shares of Stock may be purchased under the Plan, which
shall be set by the Administrator from time to time.
(y)
“Stock” shall mean the common stock, $0.0001 par value per share, of the Company, or any security into which
shares of Stock may be changed or for which shares of Stock may be exchanged as provided in Section 12.
(z)
“Subsidiary” shall mean any corporation (other than the Company) in an unbroken chain of corporations beginning
with the Company if each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
A corporation that attains the status of a Subsidiary on a date after the Effective Date shall be considered a Subsidiary commencing
as of such date.
(aa)
“Termination of Employment” shall mean, with respect to a Participant, a cessation of the employee-employer
relationship between the Participant and the Company or a Participating Affiliate for any reason,
(i)
including, without limitation, (A) a termination by resignation, discharge, death, disability, retirement, or the disaffiliation
of a Subsidiary, (B) unless otherwise determined or provided by the Administrator, a transfer of employment to a Subsidiary that
is not a Participating Affiliate as of the first day immediately following the three (3)-month period following such transfer,
and (C) a termination of employment where the individual continues to provide certain services to the Company or a Subsidiary
in a non-employee role, but
(ii)
excluding (A) such termination of employment where there is a simultaneous reemployment of the Participant by the Company or a
Participating Affiliate and (B) any bona fide and Company-approved or Participating Affiliate-approved leave of absence, such
as family leave, parental leave, medical leave, personal leave, and military leave, or such other leave that meets the requirements
of Treasury Regulations section 1.421-1(h)(2); provided, however, where the period of leave exceeds three (3) months
and the employee’s right to reemployment is not guaranteed either by statute or by contract, the employee-employer relationship
will be deemed to have terminated on the first day immediately following such three (3)-month period.
(bb)
“Trading Day” shall mean a day on which The Nasdaq Stock Market LLC is open for trading.
3.
Shares Subject to the Plan
(a)
Share Reserve. Subject to adjustment as provided in Section 12, the maximum number of shares of Stock that may be
issued pursuant to ESPP Options granted under the Plan (including any Non-423(b) Offering established hereunder) is seven hundred
fifty thousand (750,000) shares. The shares of Stock reserved for issuance under the Plan may be authorized but unissued shares,
treasury shares, or shares purchased on the open market.
(b)
Participation Adjustment as a Result of the Share Reserve. If the Administrator determines that the total number of shares
of Stock remaining available under the Plan is insufficient to permit the number of shares of Stock to be purchased by all Participants
on the last Trading Day of an Offering Period (or if an Offering Period has multiple Purchase Periods, on the last Trading Day
of the Purchase Period) pursuant to Section 9, the Administrator shall make a participation adjustment, where the number
of shares of Stock purchasable by all Participants shall be reduced proportionately in as uniform and equitable a manner as is
reasonably practicable, as determined in the Administrator’s sole discretion. After such adjustment, the Administrator shall
refund in cash all affected Participants’ Account balances for such Offering Period as soon as practicable thereafter.
(c)
Applicable Law Limitations on the Share Reserve. If the Administrator determines that some or all of the shares of Stock
to be purchased by Participants on the last Trading Day of an Offering Period (or if an Offering Period has multiple Purchase
Periods, the last Trading Day of the Purchase Period) would not be issued in accordance with applicable laws or any approval by
any regulatory body as may be required or the shares of Stock would not be issued pursuant to an effective Form S-8 registration
statement or that the issuance of some or all of such shares of Stock pursuant to a Form S-8 registration statement is not advisable
due to the risk that such issuance will violate applicable laws, the Administrator may, without Participants’ consent, terminate
any outstanding Offering Period and the ESPP Options granted thereunder and refund in cash all affected Participants’ Account
balances for such Offering Period as soon as practicable thereafter.
4.
Administration
(a)
Generally. The Plan shall be administered under the direction of the Administrator. Subject to the express provisions of
the Plan, the Administrator shall have full authority, in its sole discretion, to take any actions it deems necessary or advisable
for the administration of the Plan, including, without limitation:
(i)
Interpreting and construing the Plan and ESPP Options granted under the Plan; prescribing, adopting, amending, suspending, waiving,
and rescinding rules and regulations as it deems appropriate to administer and implement the Plan, including amending any outstanding
ESPP Option, as it may deem advisable or necessary to comply with applicable laws; correcting any defect or supplying any omission
or reconciling any inconsistency in the Plan or ESPP Options granted under the Plan; and making all other decisions and determinations
necessary and advisable in administering the Plan;
(ii)
Making determinations relating to eligibility;
(iii)
Determining the Purchase Price;
(iv)
Establishing the timing and length of Offering Periods and Purchase Periods;
(v)
Establishing minimum and maximum contribution rates;
(vi)
Establishing new or changing existing limits on the number of shares of Stock a Participant may elect to purchase with respect
to any Offering Period, if such limits are announced prior to the first Offering Period to be affected;
(vii)
Delegating to one or more individuals such duties and functions related to the operation and administration of the Plan as the
Administrator so determines, except to the extent prohibited by applicable law;
(viii)
Notwithstanding any provision of the Plan to the contrary, in order to comply with the laws of any countries in which the Company
and its Subsidiaries operate or have employees or other individuals eligible for grants under the Plan, adopting such rules, procedures,
or sub-plans as may be deemed advisable or necessary to comply with the laws of countries other than the United States, to allow
for tax-preferred treatment of the ESPP Options or otherwise to provide for the participation by Eligible Employees who reside
outside of the United States, including determining which Eligible Employees are eligible to participate in the Non-423(b) Offering
or other sub-plans established by the Administrator and taking any such action as necessary or advisable to obtain approval or
to comply with any local governmental regulatory exemptions or approvals;
(ix)
Establishing the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars and permitting payroll withholding
in excess of the amount designated by a Participant in order to adjust for delays or mistakes in the processing of properly completed
Enrollment Forms; and
(x)
Furnishing to the Custodian such information as the Custodian may require.
The
Administrator’s determinations under the Plan shall be final, binding, and conclusive upon all persons.
(b)
Custodian. If the Administrator designates a Custodian for the Plan, the Custodian shall act as custodian under the Plan
and shall perform such duties as requested by the Administrator in accordance with any agreement between the Company and the Custodian.
The Custodian shall establish and maintain, as agent for each Participant, an Account and any subaccounts as may be necessary
or desirable for the administration of the Plan.
(c)
No Liability. Neither the Board, the Compensation Committee of the Board, any other committee of the Board, or the Custodian,
nor any of their respective agents or designees, shall be liable to any person (i) for any act, failure to act, or determination
made in good faith with respect to the Plan or ESPP Options granted under the Plan or (ii) for any tax (including any interest
and penalties) by reason of the failure of the Plan, an ESPP Option, or an Offering Period to satisfy the requirements of Code
Section 423, the failure of the Participant to satisfy the requirements of Code Section 423, or otherwise asserted with respect
to the Plan, ESPP Options granted under the Plan, or shares of Stock purchased or deemed purchased under the Plan.
5.
Participation in the Plan and in an Offering
Period
(a)
Generally. An Eligible Employee may become a Participant for an Offering Period under the Plan by completing the prescribed
Enrollment Form and submitting such Enrollment Form to the Company (or the Company’s designee), in the format and pursuant
to the process as prescribed by the Administrator, during the Enrollment Period prior to the commencement of the Offering Period
to which it relates. If properly completed and timely submitted, the Enrollment Form will become effective for the first Offering
Period following submission of the Enrollment Form and all subsequent Offering Periods as provided by Section 5(b) until
(i) it is terminated in accordance with Section 11, (ii) it is modified by filing another Enrollment Form in accordance
with this Section 5(a) (including an election is made to cease payroll deductions in accordance with Section 6(c)),
or (iii) the Participant is otherwise ineligible to participate in the Plan or in a subsequent Offering Period.
(b)
Automatic Re-Enrollment. Unless otherwise established by the Administrator prior to the start of an Offering Period, following
the end of each Offering Period, each Participant shall automatically be re-enrolled in the next Offering Period at the applicable
rate of payroll deductions in effect on the last Trading Day of the prior Offering Period or otherwise as provided under Section
6, unless (i) the Participant has experienced a Termination of Employment, or (ii) the Participant is otherwise ineligible
to participate in the Plan or in the next Offering Period. Notwithstanding the foregoing, the Administrator may require current
Participants to complete and submit a new Enrollment Form at any time it deems necessary or desirable to facilitate Plan administration
or for any other reason.
6.
Payroll Deductions
(a)
Generally. Each Participant’s Enrollment Form shall contain a payroll deduction authorization pursuant to which he
or she shall elect, unless otherwise established by the Administrator prior to the start of an Offering Period, to have a designated
whole percentage of Eligible Compensation between one percent (1%) and fifteen percent (15%) deducted, on an after-tax basis,
on each payday during the Offering Period and credited to the Participant’s Account for the purchase of shares of Stock
pursuant to the offering. Notwithstanding the foregoing, if local law prohibits payroll deductions, a Participant may elect to
participate in an Offering Period through contributions to his or her Account in a format and pursuant to a process acceptable
to the Administrator. In such event, any such Participant shall be deemed to participate in a separate offering under the Plan,
unless the Administrator otherwise expressly provides.
(b)
Insufficiency of Contributions. Subject to Section 6(e), if in any payroll period a Participant has no pay or his
or her pay is insufficient (after other authorized deductions) to permit deduction of the full amount of his or her payroll deduction
election, then (i) the payroll deduction election for such payroll period shall be reduced to the amount of pay remaining, if
any, after all other authorized deductions, and (ii) the percentage or dollar amount of Eligible Compensation shall be deemed
to have been reduced by the amount of the reduction in the payroll deduction election for such payroll period. Deductions of the
full amount originally elected by the Participant will recommence as soon as his or her pay is sufficient to permit such payroll
deductions; provided, however, no additional amounts shall be deducted to satisfy the Outstanding Election.
(c)
Cessation after Offering Date. A Participant may cease his or her payroll deductions during an Offering Period by properly
completing and timely submitting a new Enrollment Form to the Company (or the Company’s designee), in the format and pursuant
to the process as prescribed by the Administrator, at any time prior to the last day of such Offering Period (or if an Offering
Period has multiple Purchase Periods, the last day of such Purchase Period). Any such cessation in payroll deductions shall be
effective as soon as administratively practicable thereafter and shall remain in effect for successive Offering Periods as provided
in Section 5(b) unless the Participant submits a new Enrollment Form for a later Offering Period in accordance with Section
5(a). A Participant may only increase or decrease his or her rate of payroll deductions in accordance with Section 6(d).
(d)
Modification Prior to Offering Date. A Participant may increase or decrease his or her rate of payroll deductions, to take
effect on the Offering Date of the Offering Period following submission of the Enrollment Form, by properly completing and timely
submitting a new Enrollment Form in accordance with Section 5(a).
(e)
Authorized Leave or Disability after Offering Date. Subject to Section 11, if a Participant is absent from work
due to an authorized leave of absence or disability (and has not experienced a Termination of Employment), such Participant shall
have the right to elect (i) to remain a Participant in the Plan for the then-current Offering Period (or if an Offering Period
has multiple Purchase Periods, the then-current Purchase Period) but to cease his or her payroll deductions in accordance with
Section 6(c), or (ii) to remain a Participant in the Plan for the then-current Offering Period (or if an Offering Period
has multiple Purchase Periods, the then-current Purchase Period) but to authorize payroll deductions to be made from payments
made by the Company or a Participating Affiliate to the Participant during such leave of absence or disability, and to undertake
to make additional cash payments to the Plan at the end of each payroll period during the Offering Period to the extent that the
payroll deductions from payments made by the Company or a Participating Affiliate to such Participant are insufficient to meet
such Participant’s Outstanding Election. Neither the Company nor a Participating Affiliate shall advance funds to a Participant
if the Participant’s payroll deductions during the Participant’s leave of absence or disability are insufficient to
fund the Participant’s Account at his or her Outstanding Election.
(f)
Withdrawal. At any time during an Offering Period, a Participant may terminate his or her payroll deductions under the
Plan and withdraw from the Offering Period by submitting to the Company, or a third party designated by the Administrator, a notice
of withdrawal in such form as the Company requires. Such withdrawal may be elected at any time, but must be received prior to
the end of the Offering Period in accordance with the withdrawal deadline and other procedures established by the Administrator.
Upon withdrawal from the Offering Period by a Participant, the Company shall distribute to such Participant all of his or her
remaining accumulated payroll deductions under the Offering Period, without interest, and such Participant’s interest in
the Offering Period shall be automatically terminated. A Participant’s withdrawal from an Offering Period will have no effect
on his or her eligibility to participate in subsequent Offering Periods that commence after the termination of the Offering Period
from which the Participant withdraws, but the Participant will be required to complete and submit a new Enrollment Form in order
to participate in subsequent Offering Periods under the Plan. A Participant’s withdrawal from an Offering Period shall not
have any effect upon his or her eligibility to participate in any similar plan, which may hereafter be adopted by the Company.
7.
Offering Periods and Purchase Periods;
Purchase Price
(a)
The Administrator shall determine from time to time, in its sole discretion, the Offering Periods and Purchase Periods under the
Plan. Each Offering Period shall consist of one or more Purchase Periods, as determined by the Administrator. Unless otherwise
established by the Administrator prior to the start of an Offering Period, the Plan shall have two (2) Offering Periods (with
concurrent Purchase Periods) that commence each calendar year, and each Offering Period shall be of approximately six (6) months’
duration, with the first such Offering Period beginning on the first Trading Day of January and ending on the last Trading Day
of the immediately following June, and the second such Offering Period beginning on the first Trading Day of July and ending on
the last Trading Day of the immediately following December; provided, however, that the first Offering Period under
the Plan shall commence on the first Trading Day of July following the Effective Date and shall end on the last Trading Day of
the immediately following December.
(b)
The Administrator shall determine from time to time, in its sole discretion, the Purchase Price of each share of Stock for an
Offering Period; provided, however, that the Purchase Price shall not be less than the lesser of (i) eighty-five percent
(85%) of the Fair Market Value of a share of Stock on the first Trading Day of the Offering Period and (ii) eighty-five percent
(85%) of the Fair Market Value of a share of Stock on the last Trading Day of the Offering Period (or if an Offering Period has
multiple Purchase Periods, on the last Trading Day of the Purchase Period). Unless otherwise established by the Administrator
prior to the start of an Offering Period, the Purchase Price shall be equal to the lesser of (x) eighty-five percent (85%) of
the Fair Market Value of a share of Stock on the first Trading Day of the Offering Period and (y) eighty-five percent (85%) of
the Fair Market Value of a share of Stock on the last Trading Day of the Offering Period.
8.
Grant of ESPP Option
(a)
Grant of ESPP Option. On each Offering Date, each Participant in such Offering Period shall automatically be granted an
ESPP Option to purchase as many whole shares of Stock as the Participant will be able to purchase with the payroll deductions
credited to the Participant’s Account during the applicable Offering Period.
(b)
5% Owner Limit. Notwithstanding any provisions of the Plan to the contrary, no Participant shall be granted an ESPP Option
to purchase shares of Stock under the Plan if such Participant (or any other person whose Stock would be attributed to such Participant
pursuant to Code Section 424(d)), immediately after such ESPP Option is granted, would own or hold ESPP Options to purchase shares
of Stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company
or any of its Subsidiaries.
(c)
Other Limitation. The Administrator may determine, as to any Offering Period, that the offering shall not be extended to
“highly compensated employees” within the meaning of Code Section 414(q).
9.
Purchase of Shares of Stock; Purchase
Limitations
(a)
Purchase. Unless the Participant’s participation in the Plan has otherwise been terminated as provided in Section
11, such Participant will be deemed to have automatically exercised his or her ESPP Option to purchase Stock on the last Trading
Day of the Offering Period (or if an Offering Period has multiple Purchase Periods, the last Trading Day of the Purchase Period)
for the maximum number of shares of Stock that may be purchased at the Purchase Price with the Participant’s Account balance
at that time; provided, however, the number of shares of Stock purchased is subject to adjustment by Section
3, this Section 9, and Section 12. The Administrator shall cause the amount credited to each Participant’s
Account to be applied to such purchase, and the amount applied to purchase shares of Stock pursuant to an ESPP Option shall be
deducted from the applicable Participant’s Account.
(b)
Limit on Number of Shares Purchased. Notwithstanding Section 8(a) or Section 9(a), in no event may a Participant
purchase more than ten thousand (10,000) shares of Stock in any one Offering Period; provided, however, that the
Administrator may, in its sole discretion, prior to the start of an Offering Period, set a different limit on the number of shares
of Stock a Participant may purchase during such Offering Period.
(c)
Limit on Value of Shares Purchased. Notwithstanding any provisions of the Plan to the contrary, excluding ESPP Options
granted pursuant to any Non-423(b) Offering, no Participant shall be granted an ESPP Option to purchase shares of Stock under
the Plan which permits the Participant’s rights to purchase shares under all “employee stock purchase plans”
(described in Code Section 423) of the Company and its Subsidiaries to accrue at a rate which exceeds twenty-five thousand dollars
($25,000) of the aggregate Fair Market Value of such shares of Stock (determined at the time such ESPP Options are granted) for
each calendar year in which such ESPP Options are outstanding at any time.
(d)
No Fractional Shares. Notwithstanding any provisions of the Plan to the contrary, no Participant may exercise an ESPP Option
to purchase less than one whole share of Stock, certificates representing fractional shares will not be delivered to Participants
under any circumstances, and any ESPP Option to purchase less than one whole share of Stock shall be automatically terminated
on the last Trading Day of the Offering Period (or if an Offering Period has multiple Purchase Periods, the last Trading Day of
the Purchase Period). Unless the Participant’s participation in the Plan has otherwise been terminated as provided in Section
11 or the Participant withdraws from the Plan as provided in Section 6(f), the portion of a Participant’s Account
balance remaining as a result of a Participant’s inability to exercise an ESPP Option to purchase less than one whole share
of Stock shall be accumulated and retained in the Participant’s Account for the subsequent Purchase Period.
10.
Stock Issuance; Stockholder Rights; and
Sales of Plan Shares
(a)
Stock Issuance and Account Statements. Shares of Stock purchased under the Plan will be held by the Custodian. The Custodian
may hold the shares of Stock purchased under the Plan by book entry or in the form of stock certificates in nominee names and
may commingle shares held in its custody in a single account without identification as to individual Participants. The Company
shall cause the Custodian to deliver to each Participant a statement for each Offering Period during which the Participant purchases
Stock under the Plan, which statement shall reflect, for each such Participant, (i) the amount of payroll deductions withheld
during the Offering Period, (ii) the number of shares of Stock purchased, (iii) the aggregate Purchase Price of the shares of
Stock purchased, (iv) the Purchase Price per share, (v) the brokerage fees and commissions paid (if any), and (vi) the total number
of shares of Stock held by the Custodian for the Participant as of the end of the Offering Period.
(b)
Stockholder Rights. A Participant shall not be a stockholder or have any rights as a stockholder with respect to shares
of Stock subject to the Participant’s ESPP Options under the Plan until the shares of Stock are purchased pursuant to the
ESPP Options and such shares of Stock are transferred into the Participant’s name on the Company’s books and records.
No adjustment will be made for dividends or other rights for which the record date is prior to such time. Following purchase of
shares of Stock under the Plan and transfer of such shares of Stock into the Participant’s name on the Company’s books
and records, a Participant shall become a stockholder with respect to the shares of Stock purchased during such Offering Period
(or, if applicable, Purchase Period) and, except as otherwise provided in Section 10(c), shall thereupon have all dividend,
voting, and other ownership rights incident thereto.
(c)
Sales of Plan Shares. The Administrator shall have the right to require any or all of the following with respect to shares
of Stock purchased under the Plan:
(i)
that a Participant may not request that all or part of the shares of Stock be reissued in the Participant’s own name and
shares be delivered to the Participant until two (2) years (or such shorter period of time as the Administrator may designate)
have elapsed since the Offering Date of the Offering Period in which the shares were purchased and one (1) year has elapsed since
the day the shares were purchased (the “Holding Period”);
(ii)
that all sales of shares of Stock during the Holding Period applicable to such purchased shares be performed through a licensed
broker acceptable to the Company; and
(iii)
that Participants abstain from selling or otherwise transferring shares of Stock purchased pursuant to the Plan for a period lasting
up to two (2) years from the date the shares of Stock were purchased pursuant to the Plan.
Any
Participant who sells or otherwise transfers shares of Stock purchased under the Plan within two (2) years after the beginning
of the Offering Period in which the shares were purchased or within one (1) year from the date the shares of Stock were purchased
must, within ten (10) days of such transfer, notify the Company in writing of such transfer.
11.
Deemed Cancellation or Termination of
Participation
(a)
Termination of Employment Other than Death. In the event a Participant who holds outstanding ESPP Options to purchase shares
of Stock under the Plan experiences a Termination of Employment for any reason other than death prior to the last Trading Day
of the Offering Period, the Participant’s outstanding ESPP Options to purchase shares of Stock under the Plan shall automatically
terminate, and the Administrator shall refund in cash the Participant’s Account balance as soon as practicable thereafter.
(b)
Death. In the event of the death of a Participant while the Participant holds outstanding ESPP Options to purchase shares
of Stock under the Plan, the legal representatives of such Participant’s estate (or, if the Administrator permits a beneficiary
designation, the beneficiary or beneficiaries most recently designated by the Participant prior to his or her death) may, within
three (3) months after the Participant’s death (but no later than the last Trading Day of the Offering Period (or if an
Offering Period has multiple Purchase Periods, the last Trading Day of the then-current Purchase Period)) by written notice to
the Company (or the Company’s designee), elect one of the following alternatives:
(i)
The Participant’s outstanding ESPP Options shall be reduced to the number of shares of Stock that may be purchased, as of
the last day of the Offering Period (or if an Offering Period has multiple Purchase Periods, the last Trading Day of the then-current
Purchase Period), with the amount then credited to the Participant’s Account; or
(ii)
The Participant’s ESPP Options to purchase shares of Stock under the Plan shall automatically terminate, and the Administrator
shall refund in cash, to the Participant’s legal representatives, the Participant’s Account balance as soon as practicable
thereafter.
In
the event the Participant’s legal representatives (or, if applicable, beneficiary or beneficiaries) fail to deliver such
written notice to the Company (or the Company’s designee) within the prescribed period, the alternative in Section 11(b)(ii)
shall apply.
(c)
Other Termination of Participation. If a Participant ceases to be eligible to participate in the Plan for any reason, the
Administrator shall refund in cash the affected Participant’s Account balance as soon as practicable thereafter. Once terminated,
participation may not be reinstated for the then-current Offering Period, but, if otherwise eligible, the Eligible Employee may
elect to participate in a subsequent Offering Period in accordance with Section 5.
12.
Changes in Capitalization
(a)
Changes in Stock. If the number of outstanding shares of Stock is increased or decreased or the shares of Stock are changed
into or exchanged for a different number or kind of shares or other securities of the Company by reason of any recapitalization,
reclassification, stock split, reverse stock split, spin-off, combination of shares, exchange of shares, stock dividend, or other
distribution payable in capital stock, or other increase or decrease in such shares effected without receipt of consideration
by the Company occurring after the Effective Date, the number and kinds of shares that may be purchased under the Plan (including,
for the avoidance of doubt, the numerical limits of Sections 3(a) and 9(b)) shall be adjusted proportionately and
accordingly by the Administrator. In addition, the number and kind of shares for which ESPP Options are outstanding shall be similarly
adjusted so that the proportionate interest of a Participant immediately following such event shall, to the extent practicable,
be the same as immediately prior to such event. Any such adjustment in outstanding ESPP Options shall not change the aggregate
Purchase Price payable by a Participant with respect to shares subject to such ESPP Options but shall include a corresponding
proportionate adjustment in the Purchase Price per share. Notwithstanding the foregoing, in the event of a spin-off that results
in no change in the number of outstanding shares of Stock, the Company may, in such manner as the Company deems appropriate, adjust
(i) the number and kind of shares for which ESPP Options are outstanding under the Plan and (ii) the Purchase Price per share.
(b)
Reorganization in Which the Company Is the Surviving Corporation. Subject to Section 12(c), if the Company shall
be the surviving corporation in any reorganization, merger, or consolidation of the Company with one or more other corporations,
all outstanding ESPP Options under the Plan shall pertain to and apply to the securities to which a holder of the number of shares
of Stock subject to such ESPP Options would have been entitled immediately following such reorganization, merger, or consolidation,
with a corresponding proportionate adjustment of the Purchase Price per share so that the aggregate Purchase Price thereafter
shall be the same as the aggregate Purchase Price of the shares subject to such ESPP Options immediately prior to such reorganization,
merger, or consolidation.
(c)
Reorganization in Which the Company Is Not the Surviving Corporation; Change in Control. Upon any dissolution or liquidation
of the Company, or upon a merger, consolidation, or reorganization of the Company with one or more other corporations in which
the Company is not the surviving corporation, or upon a Change in Control, the Plan and all ESPP Options outstanding hereunder
shall terminate, except to the extent provision is made in writing in connection with such transaction for the continuation of
the Plan and/or the assumption of the ESPP Options theretofore granted, or for the substitution for such ESPP Option of new rights
covering the stock of a successor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number
and kinds of shares and purchase prices, in which event the Plan and rights theretofore granted shall continue in the manner and
under the terms so provided. In the event of any such termination of the Plan, the Offering Period and the Purchase Period shall
be deemed to have ended on the last Trading Day prior to such termination, and in accordance with Section 9, the ESPP Options
of each Participant then outstanding shall be deemed to be automatically exercised on such last Trading Day. The Administrator
shall send written notice of an event that will result in such a termination to all Participants at least five (5) days prior
to the date upon which the Plan will be terminated.
(d)
Adjustments. Adjustments under this Section 12 related to stock or securities of the Company shall be made by the
Administrator, whose determination in that respect shall be final, binding, and conclusive.
(e)
No Limitations on Company. The grant of an ESPP Option pursuant to the Plan shall not affect or limit in any way the right
or power of the Company to make adjustments, reclassifications, reorganizations, or changes of its capital or business structure
or to merge, consolidate, dissolve or liquidate, or to sell or transfer all or any part of its business or assets.
13.
Term; Amendment, Suspension, and Termination of the Plan
(a)
Term. The Plan shall be effective as of the Effective Date. The Plan shall, without further action of the Board, terminate
on the first to occur of (i) the day before the tenth (10th) anniversary of the Effective Date, (ii) the date on which
all shares of Stock reserved for issuance under the Plan pursuant to Section 3 have been issued, (iii) the date determined
in accordance with Section 12, and (iv) the date determined in accordance with Section 13(b).
(b)
Amendment, Suspension, and Termination of the Plan. The Administrator may, at any time and from time to time, amend, suspend,
or terminate the Plan or an Offering Period under the Plan; provided, however, that no amendment, suspension, or
termination shall, without the consent of the Participant, materially impair any rights of a Participant that have vested at the
time of such amendment, suspension, or termination. Without approval of the stockholders of the Company, no amendment shall be
made (i) increasing the number of shares reserved for issuance under the Plan pursuant to Section 3 (except as provided
in Section 12) or (ii) changing the eligibility requirements for participating in the Plan.
14.
General Provisions
(a)
Withholding of Taxes. To the extent that a Participant recognizes ordinary income in connection with a sale or other transfer
of any shares of Stock purchased under the Plan, the Company may withhold amounts needed to cover such taxes from any payments
otherwise due and owing to the Participant or from shares that would otherwise be issued to the Participant under the Plan.
(b)
ESPP Options Not Transferable or Assignable. A Participant’s ESPP Options under the Plan may not be sold, pledged,
assigned, or transferred in any manner, whether voluntarily, by operation of law, or otherwise. If a Participant sells, pledges,
assigns, or transfers his or her ESPP Options in violation of this Section 14(b), such ESPP Options shall immediately terminate,
and the Participant shall immediately receive a refund of the amount then credited to the Participant’s Account. Any payment
of cash or issuance of shares of Stock under the Plan may be made only to the Participant (or, in the event of the Participant’s
death, to the Participant’s estate or, if the Administrator permits a beneficiary designation, the beneficiary or beneficiaries
most recently designated by the Participant prior to his or her death). During a Participant’s lifetime, only such Participant
may exercise his or her ESPP Options under the Plan.
(c)
No Right to Continued Employment. Neither the Plan nor any ESPP Option to purchase Stock under the Plan confers upon any
Eligible Employee or Participant any right to continued employment with the Company or any of its Subsidiaries, nor will a Participant’s
participation in the Plan restrict or interfere in any way with the right of the Company or any of its Subsidiaries to terminate
the Participant’s employment at any time.
(d)
No Interest on Payments. No interest shall be paid on sums withheld from a Participant’s pay or otherwise contributed
for the purchase of shares of Stock under the Plan unless otherwise determined necessary by the Administrator.
(e)
Governmental Regulation. The Company’s obligation to issue, sell, and deliver shares of Stock pursuant to the Plan
is subject to such approval of any governmental authority and any national securities exchange or other market quotation system
as may be required in connection with the authorization, issuance, or sale of such shares.
(f)
Rule 16b-3. Transactions under this Plan are intended to comply with all applicable conditions of Rule 16b-3 or any successor
provision under the Securities Exchange Act of 1934, as amended. If any provision of the Plan or action by the Administrator fails
to so comply, it shall be deemed null and void to the extent permitted by applicable law and deemed advisable by the Board. Moreover,
in the event the Plan does not include a provision required by Rule 16b-3 to be stated in the Plan, such provision (other than
one relating to eligibility requirements or the price and amount of awards) shall be deemed automatically to be incorporated by
reference into the Plan.
(g)
Payment of Plan Expenses. The Company shall bear all costs of administering and carrying out the Plan.
(h)
Application of Funds. All funds received or held by the Company under the Plan may be used for any corporate purpose until
applied to the purchase of Stock and/or refunded to Participants. Participants’ Accounts need not be segregated.
(i)
Governing Law. The validity and construction of the Plan and the ESPP Options granted hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Delaware (other than any conflicts or choice of law rule
or principle that might otherwise refer construction or interpretation of the Plan and the ESPP Options granted under the Plan
to the substantive laws of any other jurisdiction), except to the extent superseded by applicable U.S. federal laws.
*
* *
To
record adoption of the Plan by the Board as of January 9, 2021 and approval of the Plan by the Company’s stockholders as
of March 4, 2021, the Company has caused its authorized officer to execute the Plan.
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BEYOND
AIR, INC.
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By:
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Name:
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Title:
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Signature
Page to the
Beyond Air, Inc. 2021 Employee Stock Purchase Plan
Beyond
Air, Inc. 2021 Employee Stock Purchase Plan
Sub-Plan
for Participants in Ireland
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1.
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Application.
This Sub-Plan for Participants in Ireland (the “Sub-Plan”) sets forth additional terms and conditions applicable
to rights granted to, and shares of Stock purchased by, Eligible Employees who are (or are deemed to be) residents of Ireland
for purposes of the payment of taxes or who exercise all of their employment duties in Ireland, and forms and integral part
of the Plan. The Company will, in its discretion, determine the extent to which the terms and conditions in this Sub-Plan
apply to a Participant.
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The
Plan and this Sub-Plan are complementary to each other and shall be deemed as one. In any case of contradiction with respect
to ESPP Options granted to Eligible Employees, whether explicit or implied, between the provisions of this Sub-Plan and the
Plan, the provisions set out in this Sub-Plan shall prevail.
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2.
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No
Obligation to Continue Employment Relationship. Neither the Company nor any Subsidiary is obligated by or as a result
of the Plan or any Enrollment Form to continue the Participant’s employment with the Company or a Subsidiary, and neither
the Plan nor any Enrollment Form shall interfere in any way with the right of the Company or any Subsidiary to terminate the
Participant’s employment with the Company or a Subsidiary at any time. Nothing in the Plan or any Enrollment Form (including,
but not limited to, the issuance of the shares of Stock in respect of the Participant’s ESPP Option) or any covenant
of good faith and fair dealing that may be found implicit in the Plan or any Enrollment Form shall: (i) constitute any promise
or commitment by the Company or a Subsidiary regarding the fact or nature of future positions, future work assignments, future
compensation or any other term or condition of service or affiliation; (ii) confer any right or benefit under the Plan or
any Enrollment Form unless such right or benefit has specifically accrued under the terms of the Plan or Enrollment Form.
The grant of an ESPP Option to a Participant shall in no way affect the Company’s right to adjust, reclassify, reorganize
or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all
or any part of its business or assets. By participating in the Plan, a Participant waives all rights to compensation for any
loss in relation to the Plan, including: any loss of profit; any loss or reduction of any rights or expectations under the
Plan in any circumstances or for any reason (including lawful or unlawful termination of the Participant’s employment
with the Company or a Subsidiary); any exercise of a discretion or a decision taken in relation to the Plan, or any failure
to exercise a discretion or take a decision; or the operation, suspension, termination or amendment of the Plan.
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3.
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Data
Privacy Consent.
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a.
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By
accepting the grant of an ESPP Option, a Participant acknowledges that his or her Personal Data will be processed and disclosed
as follows:
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i.
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by
the Company or any Subsidiary which has employed the Participant as they are required to collect, process and utilize certain
Personal Data pertaining to the Participant for purposes directly relevant to the ESPP Option issued to the Participant, and
to disclose or transfer such information to other Subsidiaries and, if necessary, a third party (including any broker, registrar
or administrator) for the purpose of administering the Plan;
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ii.
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by
the Company or any Subsidiary which has employed the Participant and any such third party so that they may utilize such information
for the purpose of administering the Plan, provided that such information shall be kept confidential and shall not be used
by any of them for any purposes not related to the administration of the Plan;
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iii.
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by
the Company and any Subsidiary which has employed the Participant and any such third party (any of which may be located in
the European Union (“EU”) or outside of the EU) so that they may transfer the Personal Data pertaining to the
Participant in the EU or outside of the EU for the purpose of administering the Plan (in which case the transfer shall be
governed by “model contract clauses” or equivalent measures required under EU data protection laws); and
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iv.
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by
and to any future purchaser of the Company or Subsidiary which has employed the Participant, or any future purchaser of their
respective undertakings or any parts thereof, for the purpose of administering the Plan and/or confirming the Participant’s
entitlement to an ESPP Option and/or any shares of Stock where such entitlement is relevant to such purchase.
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b.
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Each
Participant acknowledges that the purposes described in sub-paragraph (a) above are necessary for the performance of the Plan
or are otherwise necessary for the legitimate interests of the Company or any Subsidiary which has employed the Participant
in connection with the administration of the Plan. Should the Participant exercise any data subject rights in relation to
his or her Personal Data, such as the right of objection or erasure, the Participant acknowledges that it may no longer be
possible to administer the Plan in respect of the Participant. In that case the Participant’s ESPP Option may lapse
and the Participant shall be deemed to have waived (without any right to compensation) any right to shares of Stock under
the Plan.
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c.
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Each
Participant shall be provided with the information regarding the following by the Company or any Subsidiary which has employed
the Participant to the extent that they are acting as controllers of the Participant’s Personal Data (save where the
Participant already has the information):
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i.
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the
purpose of the collection and use of the Personal Data pertaining to the Participant;
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ii.
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the
information to be collected and used;
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iii.
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the
period and method of retention and use of the personal information or other relevant information pertaining to the Participant;
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iv.
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details
of any third parties to whom their information is disclosed or transferred including the purpose of such disclosure or transfer
and, where applicable, the safeguards applied to any transfers of data outside of the EU;
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v.
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the
rights of the Participant in respect of access to, rectification and deletion of their information and any related disadvantages;
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vi.
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where
applicable, the contact details of the data protection officer of the relevant controller; and
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vii.
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the
right to complain to the relevant data protection supervisory authority.
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In
this section, “Personal Data” has the same meaning as in the EU General Data Protection Regulation 2016/679 or any
equivalent legislation in any non-EU jurisdiction.
APPENDIX
C
SECOND
CERTIFICATE OF AMENDMENT
SECOND
CERTIFICATE OF AMENDMENT OF THE
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION OF
BEYOND
AIR, INC.
Beyond
Air, Inc. (the “Corporation”), a corporation organized and existing under the laws of the State of Delaware hereby
certifies as follows:
1.
The name of the Corporation is Beyond Air, Inc. The Corporation’s original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on April 28, 2015. The original Certificate of Incorporation was amended and restated
and filed with the Secretary of State of the State of Delaware effective January 13, 2017 (the “Amended and Restated Certificate
of Incorporation”). A Certificate of Amendment to the Amended and Restated Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware effective June 26, 2019.
2.
The Amended and Restated Certificate of Incorporation, as amended, is hereby further amended by deleting in its entirety Article
VII thereof and replacing therewith with the following new Article VII:
“VII.
Unless
the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall
be the sole and exclusive forum for (A) any derivative action or proceeding brought on behalf of the Company; (B) any action asserting
a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s
stockholders; (C) any action asserting a claim against the Company arising pursuant to any provision of the DGCL, the Amended
and Restated Certificate of Incorporation or the Bylaws of the Company; or (D) any action asserting a claim against the Company
governed by the internal affairs doctrine. Unless the Corporation consents in writing to the selection of an alternative forum,
to the fullest extent permitted by law, the federal district courts of the United States shall be the exclusive forum for the
resolution of any claim arising under the Securities Act of 1933, as amended. 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 to have consented to the provisions
of this Article VII.”
3.
The Board of Directors of the Corporation has duly adopted resolutions (i) declaring this Second Certificate of Amendment to be
advisable, (ii) adopting and approving this Second Certificate of Amendment, (iii) directing that this Second Certificate of Amendment
be submitted to the stockholders of the Corporation for their approval at the 2021 annual meeting of the stockholders of the Corporation
and (iv) recommending to the stockholders of the Corporation that this Second Certificate of Amendment be approved.
4.
This Second Certificate of Amendment was submitted to and duly adopted and approved by the stockholders of the Corporation at
the 2021 annual meeting of the stockholders of the Corporation in accordance with Sections 222 and 242 of the Delaware General
Corporation Law.
5.
This Second Certificate of Amendment has been duly authorized, adopted and approved by the Corporation’s Board of Directors
in accordance with the provisions of Sections 141 and 242 of the Delaware General Corporation Law.
6.
This Second Certificate of Amendment shall be effective upon its filing with the Secretary of State of the State of Delaware.
[signature
page follows]
IN
WITNESS WHEREOF, Beyond Air, Inc. has caused this Second Certificate of Amendment to be signed by a duly authorized officer of
the Corporation on _______________, 2021.
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BEYOND
AIR, INC.
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Steven
Lisi
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Chief
Executive Officer
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[Signature Page to Second Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Beyond Air, Inc.]