Exhibit 10.1

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of this ___ of ____, 2023 (the “Effective Date”), by and between The NFT Gaming Company, Inc., a Delaware corporation located at 101 Eisenhower Parkway, Suite 300, Roseland, New Jersey, 07068 (the “Corporation”), and Vadim Mats, an individual residing at ____________________ (the “Executive”); collectively the “Parties” and individually, each a “Party”.

RECITALS:

WHEREAS, the Corporation desires to secure the services of the Executive upon the terms and conditions hereinafter set forth;

WHEREAS, the Executive desires to render services to the Corporation upon the terms and conditions hereinafter set forth; and

WHEREAS, the Corporation and the Executive desire for this Agreement to constitute and embody their full and complete understanding and agreement with respect to the Executive’s employment by the Corporation;

NOW, THEREFORE, the parties mutually agree as follows:

1. Employment. The Corporation hereby employs the Executive and the Executive hereby accepts employment as an officer of the Corporation, subject to the terms and conditions set forth in this Agreement.

2. Duties. During the Executive’s employment with the Corporation (the “Employment Period”), Executive shall serve as the Corporation’s Chief Executive Officer and shall have the duties, responsibilities, and authority customary for such a position in an organization of the size and nature of the Company, subject to the Company’s Board of Directors or its designee (the “Board” or the “Board of Directors”) ability to expand, change or limit such duties, responsibilities, and authority in their sole discretion. Executive shall report directly to the Board of the Corporation, and Executive shall devote his best efforts and his full business time and attention (except for permitted vacation periods and reasonable periods of illness or other incapacity) to the business and affairs of the Corporation and its subsidiaries, whether currently existing or hereafter acquired or formed and including any predecessor of any such entity. During the Term, as defined in Section 3, the Executive shall devote his full business time and efforts to the performance of his duties hereunder unless otherwise authorized by the Board. Notwithstanding the foregoing, the expenditure of reasonable amounts of time by the Executive for the making of passive personal investments, the conduct of private business affairs, and charitable and professional activities shall be allowed, provided such activities do not materially interfere with the services required to be rendered to the Corporation hereunder and do not violate the confidentiality provisions set forth in the Confidentiality Agreement, as defined in Section 12 herein. For the avoidance of doubt, Executive may invest or be involved with other ventures and investments, including intellectual property related ventures and investments, (hereafter “Other Investments”), so long as all Other Investments are disclosed to the Corporation and the Corporation determines that Executive’s involvement in any Other Investment does not contravene any provisions of this Agreement or will breach any of Executive’s duties to Corporation or its stockholder.

3. Term of Employment. The term of this Agreement shall commence upon the effective date of the Corporation’s (“IPO”) and shall continue for one (1) year (the “Initial Term”) from such date and shall automatically be extended for additional terms of one (1) year each (each a “Renewal Term”) unless either party gives prior written notice of non-renewal to the other party no later than three (3) months prior to the expiration of the Initial Term (“Non-Renewal Notice”), or the then current Renewal Term, as the case may be. For purposes of this Agreement, the Initial Term and any Renewal Term are hereinafter collectively referred to as the “Term”.

4. Compensation.

a. Base Salary. During the Term, the Corporation shall pay to the Executive, as consideration for Executive’s services rendered pursuant to this Agreement, a base salary equal to Four Hundred Thousand Dollars ($400,000.00) per annum (the “Base Salary”), less such deductions as shall be required to be withheld by applicable law and regulations. The Base Salary shall be payable in regular installments in accordance with the Corporation’s general payroll practices. The Corporation shall review the Base Salary on an annual basis and has the right but not the obligation to increase it, provided, however, the Corporation shall have no right to decrease the Base Salary.

b. Bonus. In addition to the Base Salary, after each fiscal year during the Term, Executive shall be eligible to receive an annual cash bonus for such fiscal year (“Annual Bonus”) in an amount up to two times (2x) the Executive’s then-current Base Salary, if the Corporation meets or exceeds criteria adopted by the Compensation Committee of the Board (the “Compensation Committee”) for earning bonuses, which criteria shall be adopted by the Compensation Committee annually after consultation with the Executive and which criteria must be reasonably likely to be attainable. Annual Bonuses shall be paid by the Corporation to the Executive promptly after the conclusion of the fiscal year, provided, however, the Parties acknowledge that the Compensation Committee’s determinations concerning attainment of any financial targets associated with any bonus determination shall not be determined until after the completion of the Corporation’s annual audit, if any, but in no event later than April 15^th of the subsequent fiscal year. The Board may provide for a lesser or a greater percentage Bonus payments for Executive upon achievement of partial or additional criteria established or determined by the Board from time to time. Except as otherwise expressly provided herein, to be entitled to receive payment of the Annual Bonus, Executive must be employed by the Corporation through the end of such fiscal year. If Executive is employed by the Corporation through the end of such fiscal year, then Executive shall be entitled to the Annual Bonus in full for such fiscal year, even if he is no longer employed by the Corporation on the date the Annual Bonus is disbursed for such fiscal year. Upon reasonable written notice to the Corporation by Executive, Executive shall have the option to elect to receive all or a portion of his Bonus as common stock of the Corporation at the basis reasonably determined by the Board in good faith and pursuant to the term of the Corporation’s Bylaws.

c. Equity Awards. Subject to the approval of the Corporation’s Compensation Committee and upon the successful occurrence of the Corporation’s IPO, the Executive will be granted an option (the “Option”) to purchase up to Two Hundred Thousand (200,000) shares of the Corporation’s Common Stock, as defined below, at an exercise price equal to the IPO price per share of the Corporation’s Common Stock (the “Common Stock”). The Corporation and the Executive shall enter into a Stock Option Agreement (the “Option Agreement”) which shall set forth all the terms of the Option. The Option Agreement will be subject to the terms and conditions of the Corporation’s 2022 Equity Incentive Plan (the “Plan”), and shall vest in accordance with the Plan and the related award agreement. Thereafter, Executive shall be eligible for such grants of additional awards under stock options or other equity incentive plans of the Corporation adopted by the Board and approved by the Corporation’s stockholders (or any successor or replacement plan adopted by the Board and approved by the Corporation’s stockholders) as the Compensation Committee of the Corporation’s may from time to time determine. For avoidance of doubt, grant of the Option shall be conditional upon the successful execution of the IPO by the Corporation.

5. Reimbursements for Business Expenses. During the Term, the Corporation shall reimburse Executive for all reasonable out-of-pocket business expenses incurred or paid by Executive in the course of his employment, and consistent with the Corporation’s policy for reimbursement of expenses as in effect from time to time.

6. Benefits.

a. The Executive shall be entitled to participate in such pension, profit sharing, group insurance, hospitalization, and group health and benefit plans, 401(k) plans and all other benefits and plans, including perquisites, if any, as the Corporation provides, which shall be paid by the Corporation (collectively, and as amended from time to time, the “Benefit Plans” and each, a “Benefit Plan”). Executive acknowledges and agrees that the Corporation reserves the right to change its benefits from time to time pursuant to the Corporation’s Bylaws and the Corporation’s right to make such changes shall not be restricted by this Agreement.

b. If at any time during the Term, the Corporation does not provide its senior executives with health insurance (including hospitalization) under a Benefit Plan, Executive shall be entitled to secure such health insurance for himself and his immediate family (i.e., spouse and natural born children) and the Corporation shall promptly reimburse Executive for the full cost of such insurance upon proper request for reimbursement by Executive. For the avoidance of doubt, Executive shall be entitled to secure health insurance from high quality insurance providers such as Blue Cross/Blue Shield, United, or Emblem, and the ability to select a no or low deductible plan. If Executive secures health insurance pursuant to this Section, such health insurance shall be deemed to be a “Benefit Plan” hereunder.

7. Indemnification. The Corporation shall execute and deliver in favor of the Executive an indemnification agreement on the same terms and conditions entered into with the other executive officers and directors of the Corporation. Such agreement shall provide for the indemnification of the Executive for the duration of the his employment with the Corporation and for a period of at least six (6) years thereafter. The Corporation shall be required to maintain directors’ and officers’ insurance during the Term and for a period of at least six (6) years thereafter.

8. Withholding. The Corporation may withhold from any compensation, benefits, or amounts payable under this Agreement all federal, state, city, or other taxes as may be required or permitted pursuant to any law or governmental regulation or ruling.

9. Termination.

a. Termination Events. Except as otherwise provided herein, this Agreement and Executive’s employment hereunder shall terminate upon the occurrence of any of the following events:

b. Permanent Disability. For purposes of this Agreement, the Executive shall be deemed to be suffering from a “Permanent Disability” if the Executive, by reason of his physical or mental disability, is incapable of performing the duties of his customary position with the Corporation, and such disability has continued for a period of at least 180 consecutive days in any l2-month period.

c. Good Reason. For purposes of this Agreement, the term “Good Reason” shall mean that the Executive has resigned due to: (i) a material diminution of duties inconsistent with Executive’s title, authority, duties, and responsibilities (including, without limitation, a change in the chain of reporting); (ii) the relocation of Executive to a facility or a location more than [fifty (50) miles] from the Executive’s then current primary residence;, without the Executive’s prior written consent; (iii) a material diminution in Executive’s base compensation unless the Base Salary of a majority of other employees at the same level as Executive is also proportionately reduced; or (iv) any material violation by the Corporation of its obligations under this Agreement; provided, in each case, that the Executive has given written notice to the Corporation within ninety (90) days of Executive’s knowledge of the initial occurrence of such event, and the Corporation has failed to cure such acts within thirty (30) days of receipt of such notice, and the Executive must then terminate his employment within thirty (30) days following the expiration of such cure period for the termination to be on account of Good Reason.

d. Cause. For purposes of this Agreement, “Cause” shall mean (i) Executive’s conviction, whether following trial or by plea of guilty or nolo contendere (or similar plea), in a criminal proceeding (a) on a charge of any crime involving fraud, embezzlement, bribery, forgery, counterfeiting, extortion, dishonesty, or moral turpitude; or (b) on any felony or misdemeanor charge; (ii) any act or omission by Executive involving dishonesty, disloyalty, or fraud with respect to the Corporation; (iii) Executive’s breach of fiduciary duty to the Corporation or any of its subsidiaries; (iv) Executive's dishonest or unlawful conduct which would constitute a felony or crime of moral turpitude, or which would tend to undermine the reputation of the Corporation; (v) a breach by Executive of any non-solicitation or other restrictive covenant set forth in any agreement between Executive and the Corporation, including any covenant in the Confidentiality Agreement, provided that if such breach is capable of remedy, Executive shall have thirty (30) days from receipt of written notification of such disregard by the Corporation in which to remedy such disregard; (vi) Executive’s gross negligence or willful misconduct with respect to the Corporation; (vi) violation of the Corporation’s policies against unlawful discrimination and harassment; (vii) abandonment or gross dereliction of Executive’s work duties; or (ix) any other reason that would constitute "cause" or "just cause" under the common law of the State of Delaware for termination of the employment by employer.

e. Change in Control Transaction. For purposes of this Agreement, “Change in Control Transaction” shall mean the sale of the Corporation to an un-affiliated person or entity or group of un-affiliated persons or entities pursuant to which such party or parties acquire (i) shares of capital stock of the Corporation representing at least fifty percent (50%) of outstanding capital stock or sufficient to elect a majority of the Board of the Corporation (whether by merger, consolidation, sale, or transfer of shares (other than a merger where the Corporation is the surviving corporation and the shareholders and directors of the Corporation prior to the merger constitute a majority of the shareholders and directors, respectively, of the surviving corporation (or its parent)) or (ii) all or substantially all of the Corporation’s assets determined on a consolidated basis. Any equity grants issued to the Executive pursuant to the terms of this Agreement shall be immediately vested upon consummation of a Change in Control Transaction. Notwithstanding the foregoing, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, a Change in Control Transaction shall be deemed to have only if a change in the ownership or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred under Section 409A.

10. Effects of Termination.

a. General. Upon termination of Executive’s employment for any reason, whether by the Executive or the Corporation, the Executive shall be paid (i) accrued but unpaid compensation and vacation pay through the date of termination, except in the case of termination arising under Section 9(a)(v); (ii) Annual Bonus for the fiscal year preceding termination, if unpaid; (iii) any other benefits accrued to him under any of the Benefit Plans outstanding as of the date of termination; (iv) reimbursement of any documented, unreimbursed business expenses incurred on or prior to the date of termination, all paid as promptly as practicable and in accordance with applicable law; and (v) the Executive shall retain medical coverage rights available under the Corporation’s appliable Benefit Plan or as otherwise provided by law, including the Consolidated Omnibus Budget Reconciliation Act and any similar state law or regulation (collectively, “COBRA Rights” and together with other compensation and benefits described in this paragraph, “Accrued Rights”)., which shall be paid in full by Executive.

Any Annual Bonus payable pursuant to this Section shall be paid at the same time that it would have been paid if the Executive’s employment had not terminated.

b. Termination by Death or Disability. Upon termination of Executive’s employment pursuant to Section 9(a)(i), in addition to any Accrued Rights, the Executive or his estate or beneficiaries, as applicable, shall be entitled to the following severance benefits: payment on a pro-rated basis of any Annual Bonus or other payments earned in connection with any bonus plan to which the Executive was a participant as of the date of death or Permanent Disability. This Section 10(b) shall not terminate or otherwise interfere with any of Executive’s rights to disability payments. Any payments required to be made hereunder by the Corporation to the Executive shall continue to the Executive’s beneficiaries in the event of his death until paid in full.

c. Termination by Non-Renewal, Good Reason, Without Cause, or Change in Control. Upon termination of Executive’s employment pursuant to Section 9(a)(ii) (Non-Renewal) only if such termination resulted from the Corporation’s election not to renew, Section 9(a)(iv) (Good Reason), Section 9(a)(vi) (Termination by the Corporation without Cause), and Section 9(a)(vii) (Change in Control), in addition to any Accrued Rights, the Executive shall be entitled to the following severance benefits: (i) twenty-four (24) months’ Base Salary at the then current rate, to be paid in a single lump sum payment not later than thirty (30) days following such date of termination, less withholding of all applicable taxes; (ii) if the Executive elects continuation coverage for group health coverage pursuant to COBRA Rights, then for a period of twenty-four (24) months following the Executive’s date of termination he will be obligated to pay only the portion of the full COBRA Rights cost of the coverage equal to an active employee’s share of premiums (if any) for coverage for the respective plan year and, to the extent required by any applicable nondiscrimination rules, the Corporation-Provided COBRA Premium shall be treated as taxable income to the Executive; and (iii) payment on a pro-rated basis of any Bonus or other payments earned in connection with any bonus plan to which the Executive was a participant as of the date of the Executive’s date of termination of employment. The Company’s obligation to make the payments under this Section 10(c) (“Severance”) shall be conditioned upon (A) the Executive’s execution, delivery and non-revocation of a valid and enforceable separation agreement and general release of claims in the form attached hereto as Exhibit A (the “Release”), which shall become effective and irrevocable within sixty (60) days following the Executive’s date of termination of employment and (B) the Executive’s compliance with the provisions of this Agreement that survive termination of employment, including without limitation the provisions of the Confidentiality Agreement, as defined in Section 12, and compliance with all restrictive covenants to which Executive is otherwise subject to. The Severance will commence on the sixtieth (60^th) day following the Executive’s last date of employment, provided, however, that the Release executed by the Executive as required herein becomes irrevocable prior to such date, and shall be paid in accordance with the schedules established for payments of Base Salary [and the Bonus] in this Section 10(c), as applicable; provided further that the first payment of Severance shall include any unpaid amounts that have been scheduled to occur during the first sixty (60) days following the Executive’s termination of employment under this Section 10(c).

d. Termination With Cause. Upon termination of the Executive’s employment pursuant to Section 9(a)(ii) (Non-Renewal) only if such termination resulted from the Executive’s election not to renew this Agreement, Section 9(a)(iv) (Termination by the Corporation for Cause), and Section 9(a)(iii) ( Voluntary Termination by Executive), Executive shall only be entitled to receive any Accrued Rights.

11. Vacations. The Executive shall be entitled to a vacation of three (3) weeks per year, during which period his Base Salary shall be paid in full. The Executive shall take his vacation at such time or times as the Executive and the Corporation shall determine is mutually convenient. Any vacation not taken in one (1) year shall accrue, up to a maximum of six (6) weeks of vacation, and shall carry over to the subsequent year.

12. Confidentiality Information and Invention Assignment Agreement. As a condition to employment with the Corporation, Executive shall enter into a Confidentiality Information and Invention Assignment Agreement provided by the Corporation (the “Confidentiality Agreement”) and shall be executed consecutively with this Agreement.

13. Section 409A.

a. The provisions of this Agreement are intended to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any final regulations and guidance promulgated thereunder (“Section 409A”) and shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. The Corporation and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that are necessary, appropriate, or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A.

b. To the extent that Executive will be reimbursed for costs and expenses or in-kind benefits, except as otherwise permitted by Section 409A, (i) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such expenses are subject to a limit related to the period the arrangement is in effect; and (iii) such payments shall be made on or before the last day of the taxable year following the taxable year in which Executive incurred the expense.

c. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination constitutes a “Separation from Service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement references to a “termination,” “termination of employment,” or like terms shall mean Separation from Service.

d. Each installment payable hereunder shall constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b), including Treasury Regulation Section 1.409A-2(b)(2)(iii). Each payment that is made within the terms of the “short-term deferral” rule set forth in Treasury Regulation Section 1.409A-1(b)(4) is intended to meet the “short-term deferral” rule. Each other payment is intended to be a payment upon an involuntary termination from service and payable pursuant to Treasury Regulation Section 1.409A-1(b)(9)(iii), et seq., to the maximum extent permitted by that regulation, with any amount that is not exempt from Code Section 409A being subject to Code Section 409A.

e. Notwithstanding anything to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s termination, then only that portion of the severance and other termination compensation or benefits payable to Executive pursuant to this Agreement, if any, and any other severance payments or termination compensation or benefits that may be considered deferred compensation under Section 409A (together, the “Deferred Compensation Separation Benefits”), shall commence to be paid on the first payroll date following the six (6) months anniversary following Executive’s termination of employment in accordance with the payment schedule applicable to each payment or benefit (with any amounts which would have otherwise been due and payable prior to such paid being paid on such date). Notwithstanding anything herein to the contrary, if Executive dies following termination but prior to the six (6) month anniversary of Executive’s termination date, then any payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Executive’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit.

14. Injunctive Relief. The Executive acknowledges that the services to be rendered by him under the provisions of this Agreement are of a special, unique, and extraordinary character and that it would be difficult or impossible to replace such services. Accordingly, the Executive agrees that any breach or threatened breach by him of any provision of the Confidentiality Agreement shall entitle the Corporation, in addition to all other legal remedies available to it, to apply to any court of competent jurisdiction to seek to enjoin such breach or threatened breach. The parties understand and intend that each restriction agreed to by the Executive hereinabove shall be construed as separable and divisible from every other restriction, that the unenforceability of any restriction shall not limit the enforceability, in whole or in part, of any other restriction, and that one or more or all of such restrictions may be enforced in whole or in part as the circumstances warrant. In the event that any restriction in this Agreement is more restrictive than permitted by law in the jurisdiction in which the Corporation seeks enforcement thereof, such restriction shall be limited to the extent permitted by law. The remedy of injunctive relief herein set forth shall be in addition to, and not in lieu of, any other rights or remedies that the Corporation may have at law or in equity.

15. No Assignment. Neither Party may assign or delegate any of their rights or duties under this Agreement without the express written consent of the other Party; provided, however, that the Corporation shall have the right to delegate its obligation of payment of all sums due to the Executive hereunder, provided that such delegation shall not relieve the Corporation of any of its obligations hereunder.

16. Entire Agreement; Amendment. This Agreement constitutes and embodies the full and complete understanding and agreement of the Parties with respect to the Executive’s employment by the Corporation, supersedes, as of the Effective Date, all prior understandings and agreements, whether oral or written, between the Executive and the Corporation with respect to such employment and shall not be amended, modified, or changed except by an instrument in writing executed by the Party to be charged. The invalidity or partial invalidity of one or more provisions of this Agreement shall not invalidate any other provision of this Agreement. No waiver by either Party of any provision or condition to be performed shall be deemed a waiver of similar or dissimilar provisions or conditions at the same time or any prior or subsequent time.

17. Enforceability. This Agreement shall inure to the benefit of, be binding upon and enforceable against, the parties hereto and their respective successors, heirs, beneficiaries, and permitted assigns.

18. Headings; Interpretation; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The term “including”, as used herein, shall mean including without limitation. The Parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of authorship of any provision of this Agreement.

19. Notices. All notices, , requests, demands, and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when personally delivered, sent by registered or certified mail, return receipt requested, postage prepaid, or by private overnight mail service (e.g. Federal Express) to the party at the address set forth above or to such other address as either party may hereafter give notice of in accordance with the provisions hereof. Notices shall be deemed given on the sooner of the date actually received or the third business day after sending.

20. Severability. If any provision or term of this Agreement, or portion thereof, shall be held by any court or other tribunal of competent jurisdiction to be illegal, invalid, or unenforceable in such jurisdiction, the remainder of such provision shall not be thereby affected and shall be given full effect, without regard to the invalid portion. It is the intention of the Parties that, if any court construes any provision or term of this Agreement, or any portion thereof, to be illegal, void, or unenforceable because of the duration of such provision or the area matter covered thereby, such court shall reduce the duration, area, or matter of such provision, and, in its reduced form, such provision shall then be enforceable and shall be enforced.

21. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without reference to principles of conflicts of laws and each of the parties hereto irrevocably consents to the jurisdiction and venue of the federal and state courts located in the State of Delaware.

22. No Waiver. No failure or delay on the part of the Corporation or Executive in enforcing or exercising any right or remedy hereunder shall operate as a waiver thereof.

23. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. Any Party may execute this Agreement by facsimile or electronic signature and the other Party will be entitled to rely upon such signature as conclusive evidence that this Agreement has been duly executed by such Party.

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[Execution Page for Employment Agreement] 

Exhibit A

GENERAL RELEASE OF CLAIMS

GENERAL RELEASE and WAIVER (this “Agreement”) made as of _______________ by and between The NFT Gaming Company, Inc., a Delaware corporation located at 101 Eisenhower Parkway, Suite 300, Roseland, New Jersey 07068 (the “Company”), and Vadim Mats, an individual residing at __________________ (the “Executive” and together with the Company, the “Parties”).

WHEREAS, Executive and the Company have agreed that Executive’s employment with the Company has been terminated;

WHEREAS, Executive and the Company have previously entered into an Employment Agreement dated ___, 2022, as may have been amended or supplemented from time to time (the “Employment Agreement”), with any terms used, but not defined herein, having the meaning set forth in the Employment Agreement; and

WHEREAS, the Parties desire to enter into this Agreement, in satisfaction of all obligations of the Executive and the Company in respect of Executive’s employment with the Company.

NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, receipt of which is hereby acknowledged, the Company and the Executive agree as follows:

1. Separation.

a. Date of Separation. Executive’s employment with the Company and all of its subsidiaries and affiliates will end on [DATE] (the “Termination Date”). Executive hereby acknowledges and agrees that Executive has resigned, effective as of the Termination Date, from any and all positions and titles Executive holds by virtue of his provision of services to the Company and its affiliates (the “Company Entities”).

b. Severance. In consideration for, subject to and conditioned on Executive’s execution of this Agreement on or within twenty-one (21) days following the Termination Date, Executive’s non-revocation thereof and compliance with such other conditions as are set forth in the Employment Agreement, Executive is eligible to receive the Severance in accordance with the terms and conditions set forth in the Employment Agreement.

c. Full Satisfaction. The Executive acknowledges and agrees that, except for the Accrued Rights and Severance, the Executive is not entitled to any other compensation or benefits from the Company (including without limitation any severance or termination compensation or benefits under any severance plan, program, policies, practices or arrangements of any of the Company Entities).

d. COBRA. Pursuant to the applicable group plan terms and conditions, Executive ee will cease participating in Company’s health insurance plans as of the Termination Date. If applicable, the Company will send the Executive documentation under separate cover relating to the Executive’s rights pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”).

2. General Release and Waiver.

a. Release.

i. In exchange for and in consideration of the promises and covenants set forth in this Agreement and the Employment Agreement, Executive irrevocably and unconditionally releases and discharges the Company Entities and each of their subsidiaries, divisions, parents and member companies, institutions, affiliates or related business entities and, solely in their capacity as such, any and all of their past and present administrators, officers, partners, members, fiduciaries, trustees, directors, agents, representatives, shareholders, employees, board members, successors and assigns (hereinafter collectively referred to as “Releasees”), jointly and individually, from any and all actions, causes of action, grievances, arbitrations, obligations, liabilities, judgments, suits, debts, attorneys' fees, costs, sums of money, wages, bonuses, benefits of any type, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, extents, executions, claims and demands whatsoever in law, or in equity, which Executive, Executive's heirs, executors, administrators, successors and assigns, ever had, now have or hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of time to the date Executive signs this Agreement.

ii. The foregoing release covers, without limitation, any claims of discrimination on the basis of pregnancy, race, color, sex, sexual orientation, disability, handicap, religion, creed, national origin, ancestry, age (including, without limitation, any rights or claims under the Age Discrimination Employment Act of 1967 or the Older Worker Benefits Protection Act), citizenship, ethnic characteristics, sexual or affectional preference or marital status and also includes, no matter how denominated or described, any claims of discrimination, retaliation, harassment or interference under any federal, state or local law, rule, regulation, collective bargaining agreement, or executive order including, without limitation, any rights or claims under Title VII of the Civil Rights Act of 1964; the Genetic Information Non-Discrimination Act; the Civil Rights Acts of 1866 and 1991; 42 U.S.C. § 1981; the Equal Pay Act of 1963; the Employee Retirement Income Security Act of 1974; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; and all other federal, state and local laws (whether statutory, regulatory or decisional) including, but not limited to, and any claims of conversion, failure to return property, failure to pay wages, wrongful discharge or termination, interference with contract, breach of covenant, breach of contract, violation of a collective bargaining agreement, whether written or oral, express or implied, breach of promise, public policy, negligence, retaliation, defamation, defamation of character, defamation of employment records, impairment of economic opportunity, loss of business opportunity, fraud, deceit, misrepresentation, whistle-blower activities, perceived disability, history of disability and payment of wages or benefits of any type, as well as any claims for attorneys’ fees or costs.

iii. It is the intention of the Parties in executing this Agreement that it shall be a general release and shall be effective as a bar to each and every matter released herein and that, should any proceeding be instituted with respect to the matters released herein, this Agreement shall be deemed in full and complete accord, satisfaction and settlement of any such released matter and sufficient basis for dismissal.

iv. Except as expressly provided herein, Executive acknowledges and agrees that, by signing this Agreement, Executive is surrendering and giving up any right Employee has or may have, without limiting the generality of any other provision herein, to assert any claim for individual relief or damages against or involving Company or the Releasees arising from or in any way relating to Employee’s employment with Company or the termination thereof, or to permit Executive to become and remain a member of any class seeking individual relief or damages against Company or the Releasees arising from or in any way relating to Executive's employment with Company or the termination thereof. Nothing herein, however, shall prevent Executive from filing a charge with or participating in any investigation or proceeding conducted by the Equal Employment Opportunity Commission or a state or local fair employment practices agency; provided, however, that Employee further agrees and understands that Employee has waived Executive’s right to recover monetary damages or other relief personal to employees in any such charge, complaint, grievance or lawsuit filed by Executive or on Executive 's behalf arising from, or in any way relating to, Executive's employment with Company or the termination thereof, to the maximum extent permitted by applicable law. This release shall not apply to any claims which may not be released pursuant to applicable law and shall not apply to (1) Executive’s rights to enforce the Employment Agreement with respect to any claims with respect to the Accrued Rights or Severance, and (2) any rights in the nature of indemnification which the Employee may have with respect to claims against the Executive relating to or arising out of his employment with, or other provision of services to, the Company Entities.

v. Notwithstanding anything herein or in any other agreement with or policy of the Company to which Executive was or is subject, nothing herein or therein shall (A) prohibit Executive from making reports of possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934, as amended, or Section 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or regulation, or (B) require Executive to comply with any notification or prior approval requirement with respect to any reporting described in clause (A); provided, however, that Executive is not authorized to disclose communications with counsel that were made for the purpose of receiving legal advice or that contain legal advice or that are protected by the attorney work product or similar privilege. Furthermore, Executive shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting or investigating a suspected violation of law or (2) in a complaint or other document filed in a lawsuit or proceeding, if such filings are made under seal.

vi. Unknown Claims. It is a condition of this Agreement, and it is the Parties’ intention by executing this Agreement, that the release of claims contained in this Agreement shall be effective as a bar to each and every claim, whether now known or unknown.

vii. Covenant Not to Sue. Additionally, Executive agrees not sue, commence, assert, bring or file in any court or other tribunal, in any jurisdiction, any suit, action, litigation, complaint, cross-complaint, counterclaim, third-party complaint, petition or other pleading or proceeding, or otherwise seek affirmative relief against any Releasees on account of any claim released pursuant to this Agreement. Executive represents that Executive has no charges, complaints, grievances or any other claims or requests for relief pending against Company or the Releasees (as defined above) with the Equal Employment Opportunity Commission or any other federal, state or local administrative or other judicial tribunal and has no charges, complaints, grievances or any other claims regarding allegations of sexual harassment or sexual misconduct against the Company.

b. Consideration. The Executive acknowledges the Severance is in addition to anything of value to which the Executive already is entitled from the Company and its affiliates and constitutes good and valuable additional consideration for this Agreement.

3. Acknowledgement of Restrictive Covenants. Executive acknowledges that Executive remains bound by his obligations under the Employment Agreement and any other restrictive covenants to which Executive is subject to.

4. No Admission of Liability. Executive agrees and acknowledges that nothing contained in this Agreement, nor the fact that Executive has been or will be paid any remuneration under it, shall be construed, considered or deemed to be an admission of liability or wrongdoing by either Company or any of the Releasees. Company and the Releasees deny committing any wrongdoing or violating any legal duty with respect to the Executive’s employment or the termination of Executive’s employment from Company. The terms of this Agreement, including all facts, circumstances, statements and documents, shall not be admissible or submitted as evidence in any litigation, in any forum, for any purpose, other than to secure enforcement of the terms and conditions of this Agreement, or as may otherwise be required by law.

5. Knowing and Voluntary Waiver; Acknowledgements.

a. The Executive acknowledges that, by the Executive’s free and voluntary act of signing below, the Executive agrees to all of the terms of this Agreement and intends to be legally bound thereby. By signing this Agreement, Executive hereby acknowledges and agrees that:

b. Effective Date. This Agreement will become effective, enforceable and irrevocable on the eighth day after the date on which it is executed by the Employee (the “Effective Date”), provided that the Parties acknowledge and agree that this Agreement shall be null and void if executed prior to the Termination Date. During the seven-day period prior to the Effective Date, the Executive may revoke his agreement to accept the terms hereof by indicating in writing to the Company his intention to revoke. If the Executive exercises his right to revoke hereunder, he shall forfeit his right to receive any Severance Payments.

6. Miscellaneous.

a. Non-Disclosure. Executive acknowledges and agrees that Executive will not disclose the terms of this Agreement to anyone except for Executive’s spouse, tax advisor and/or attorney, and only then after having received assurances that they too will honor this confidentiality provision. Nothing in this Section or any other provision of this Agreement is intended to prevent the Parties from disclosing factual information regarding any claim for sexual harassment, sex discrimination, or retaliation for reporting sexual harassment or sex discrimination.

b. Withholding. The Company may withhold from any amounts payable to the Executive all federal, state, city or other taxes that the Company may reasonably determine are required to be withheld pursuant to any applicable law or regulation, (it being understood that the Executive shall be responsible for payment of all taxes in respect of the payments and benefits provided herein).

c. Severability. Any provision of this Agreement (or portion thereof) which is deemed invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions thereof in such jurisdiction or rendering that or any other provisions of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. If any covenant should be deemed invalid, illegal or unenforceable because its scope is considered excessive, such covenant shall be modified so that the scope of the covenant is reduced only to the minimum extent necessary to render the modified covenant valid, legal and enforceable. No waiver of any provision or violation of this Agreement by the Company shall be implied by the Company’s forbearance or failure to take action.

d. Notices. All notices given hereunder shall be in writing and shall be sent by registered or certified mail, return receipt requested, or a national overnight courier service capable of providing delivery confirmation, or by hand-delivery, or by facsimile transmission with confirmed receipt, and, if intended for the Company, shall be addressed to it at: __________________________, Attn: General Counsel and if intended for the Executive, shall be addressed to him at the address on file at Company. Each such notice shall be deemed to be given on the date received at the address of the addressee or upon refusal to accept delivery.

e. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements relating thereto whether written or oral.

f. Execution. This Agreement may be executed in two or more facsimiled counterparts, each of which shall be equivalent to an original, but which collectively shall constitute one Agreement.

g. Modification; Successors and Assigns. This Agreement may not be modified or amended, nor may any rights under it be waived, except in a writing signed and agreed to by the Parties. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors, assigns, legal representatives, executors, administrators and heirs, provided that Employee may not assign his obligations under this Agreement. Executive acknowledges and agree that the Releasees are express third party beneficiaries of this Agreement.

7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the rules of conflicts of law. The Executive represents and warrants that Executive was in fact individually represented by legal counsel in negotiating the terms of this Agreement, including a designation of the venue and forum in which a controversy arising from this Agreement will be adjudicated and the choice of law to be applied.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement on the date first written above.

15

Exhibit 10.2

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of this 23^rd day of March 2022 (the “Effective Date”), by and between The NFT Gaming Company, Inc., a Wyoming corporation with offices at 101 Eisenhower Parkway, Suite 300, Roseland NJ 07086 (the “Corporation”), and Steven A. Shorr an individual located at 34 Vassar Street Garden City, NY 11530 (the “Employee”), under the following circumstances:

RECITALS:

A. The Corporation desires to secure the services of the Employee upon the terms and conditions hereinafter set forth;

B. The Employee desires to render services to the Corporation upon the terms and conditions hereinafter set forth; and

C. The Corporation and the Employee desire for this Agreement to constitute and embody their full and complete understanding and agreement with respect to the Employee’s employment by the Corporation.

NOW, THEREFORE, the parties mutually agree as follows:

1. Term. The Employee’s employment hereunder shall be effective as of date of the Effective Date, and shall continue until the first anniversary thereof, unless terminated earlier pursuant to Section 5 of this Agreement; provided that, on such first anniversary of the IPO Date and each annual anniversary thereafter (such date and each annual anniversary thereof, a “Renewal Date”), the Agreement shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one year, unless either party provides written notice of its intention not to extend the term of the Agreement at least thirty (30) days’ prior to the applicable Renewal Date. The period during which the Employee is employed by the Corporation hereunder is hereinafter referred to as the “Employment Term”.

2. Position and Duties.

2.1. Position. During the Employment Term, the Employee shall serve as the Chief Financial Officer of the Corporation, reporting to Chief Executive Officer of the Corporation. In such position, the Employee shall have such duties, authority and responsibility as set forth in the Corporation’s bylaws. Employee shall perform faithfully and diligently all duties and responsibilities to be performed and assigned to him. The board of directors of the Corporation (the “Board of Directors” or “Board”) or the Chief Executive Officer reserves the right to modify Employee’s position and duties at any time in their reasonable discretion.

2.2. Duties. During the Employment Term, the Employee shall devote substantially all of his business time and attention to the performance of the Employee’s duties hereunder and will not engage in any other business, profession or occupation for compensation or otherwise which would conflict or interfere with the performance of such services hereunder unless otherwise authorized by the Board of Directors of the Corporation. Notwithstanding any of the foregoing, it is expressly agreed and understood that Employee shall be entitled to spend a reasonable amount of his working time on (i) charitable activities, (ii) personal investments, and (iii) other business-related ventures subject to approval by the Board of Directors of the Corporation, which shall not be unreasonably withheld.

3. Place of Performance. The Employee’s employment shall be conducted remotely.

4.1. Base Salary. During the Employment Term, the Employer shall pay to Employee an initial base salary at the annual rate of Sixty Thousand ($60,000.00) Dollars as compensation for Employee’s performance of Employee’s duties hereunder (the “Base Salary”). Such Base Salary shall be made payable in accordance with the normal payroll practices of the Employer, less required deductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions.

4.2. Bonus. For each twelve (12) month period of the Employment Term, the Employee shall be eligible to receive a discretionary bonus of up to Ninety Thousand ($90,000) Dollars (the “Bonus”). However, the decision to provide any Bonus and the amount and terms of any Bonus shall be in the sole and absolute discretion of the Board of Directors of the Corporation. Any such Bonus shall be payable within one hundred twenty (120) days following the expiration of each annual anniversary. Further, any such Bonus shall be payable at the Corporation’s sole option in stock or in cash.

4.3. Equity Awards. Subject to the approval of the Corporation’s compensation committee (“Compensation Committee”) and upon the successful occurrence of the Corporation’s initial public offering (the “IPO”), the Employee will be granted an option (the “Option”) to purchase up to Twenty-Five Thousand (25,000) shares (the “Option Shares”) of the Corporation’s Common Stock, as defined below, at an exercise price equal to the IPO price per share of the Corporation’s Common Stock (the “Common Stock”) vesting immediately in full upon the IPO Date. The Option will be subject to the terms and conditions of the Corporation’s 2022 Equity Incentive Plan (the “Plan”), and shall vest in accordance with the Plan and the related award agreement. Thereafter, Employee shall be eligible for such grants of additional awards under stock options or other equity incentive plans of the Corporation adopted by the Board and approved by the Corporation’s stockholders (or any successor or replacement plan adopted by the Board and approved by the Corporation’s stockholders) as the Compensation Committee of the Corporation’s may from time to time determine. For avoidance of doubt, grant of the Option shall be conditional upon the successful execution of the IPO by the Corporation.

4.4. Employee Benefits. During the Employment Term, the Employee shall be entitled to participate in all employee benefit plans, practices and programs maintained by the Corporation, including, but not limited to, the Corporation’s healthcare plan, as in effect from time to time (collectively, “Employee Benefit Plans”) to the extent consistent with applicable law and the terms of the applicable Employee Benefit Plans. The Corporation reserves the right to amend or cancel any Employee Benefit Plans at any time in its sole discretion, subject to the terms of such Employee Benefit Plan and applicable law.

4.5. Vacation; Paid Time-off. During the Employment Term, the Employee shall be entitled to [three (3) weeks] of paid vacation days per calendar year (prorated for partial years) in accordance with the Corporation’s vacation policies, as in effect from time to time. The Employee shall receive other paid time-off in accordance with the Corporation’s policies for employees as such policies may exist from time to time.

4.6. Business Expenses. The Employee shall be entitled to reimbursement by the Corporation for all reasonable and necessary out-of-pocket business, entertainment and travel expenses incurred by the Employee in connection with the performance of the Employee’s duties hereunder in accordance with the Corporation’s expense reimbursement policies and procedures.

5. Termination of Employment. The Employment Term and the Employee’s employment hereunder may be terminated by either the Corporation or the Employee at any time, with or without cause; provided that, unless otherwise provided herein, if the Employee is the terminating party, then the Employee shall be required to give the Corporation at least ten (10) business days advance written notice of termination of the Employee’s employment. If proper notice is not provided by Employee, then the Employee shall forfeit any outstanding Option Shares which have not been vested as of the date of termination. If the Corporation is the termination party, then termination of Employee’s employment with the Corporation shall be immediate and automatic. Upon termination of the Employee’s employment during the Employment Term, the Employee shall be entitled to the compensation and benefits described in this Section 5 and shall have no further rights to any compensation or any other benefits from the Corporation or any of its affiliates. If Employee terminates Employee’s employment pursuant to this Section then the Corporation, at its option, may require Employee to cease providing services during the ten (10) day notice period required herein; provided, however, for purposes of calculating payment upon termination under this Agreement, Employee shall be treated as if he was employed during such ten (10) day period.

5.1. Payments upon Termination. Upon termination of this Agreement, the Employee shall be entitled to receive:

(a) The Employee’s employment hereunder shall terminate automatically upon the Employee’s death during the Employment Term, and the Corporation may, but is not obligated to, terminate the Employee’s employment on account of the Employee’s Disability, as defined in subsection (c) below.

(b) If the Employee’s employment is terminated during the Employment Term on account of the Employee’s death or Disability, the Employee (or the Employee’s estate and/or beneficiaries, as the case may be) shall be entitled to receive the Accrued Amounts.

(c) For purposes of this Agreement, “Disability” shall mean the Employee’s inability, due to physical or mental incapacity, to substantially perform his duties and responsibilities under this Agreement for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty (120) consecutive days. Any question as to the existence of the Employee’s Disability as to which the Employee and the Corporation cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Employee and the Corporation. If the Employee and the Corporation cannot agree as to a qualified independent physician, each shall appoint such a physician and those two (2) physicians shall select a third (3^rd) who shall make such determination in writing. The determination of Disability made in writing to the Corporation and the Employee shall be final and conclusive for all purposes of this Agreement.

5.3. Notice of Termination. Any termination of the Employee’s employment hereunder by the Corporation or by the Employee during the Employment Term (other than termination due to Employee’s death pursuant to Section 5.2(a)) shall be communicated by written notice of termination (“Notice of Termination”) to the other party hereto in accordance with Section 20.

5.4. Termination Date. The date of Employee’s termination (the “Termination Date”) shall be:

(a) If the Employee’s employment hereunder terminates on account of the Employee’s death, the date of the Employee’s death as set forth on Employee’s death certificate;

(b) If the Employee’s employment hereunder is terminated on account of the Employee’s Disability, the date that it is determined that the Employee has a Disability;

(c) If the Corporation terminates the Employee’s employment hereunder with or without cause, the date specified in the Notice of Termination, which shall be no less than ten (10) days following the date on which the Notice of Termination is delivered; and

(d) If the Employee’s employment hereunder terminates because either party provides notice of non-renewal pursuant to Section 1, the Renewal Date immediately following the date on which the applicable party delivers notice of non-renewal.

5.5. Resignation of All Other Positions. Upon termination of the Employee’s employment hereunder for any reason, the Employee agrees to resign, effective on the Termination Date from all positions that the Employee holds as an officer of the Corporation or any of its affiliates.

6. Cooperation. The parties agree that certain matters in which the Employee will be involved during the Employment Term may necessitate the Employee’s cooperation in the future. Accordingly, following the termination of the Employee’s employment for any reason, to the extent reasonably requested by the Chief Executive Officer, the Employee shall cooperate with the Corporation in connection with matters arising out of the Employee’s service to the Corporation; provided that, the Corporation shall make reasonable efforts to minimize disruption of the Employee’s other activities. The Corporation shall reimburse the Employee for reasonable expenses incurred in connection with such cooperation.

7. Confidential Information.

7.1. Definition.

For purposes of this Agreement, “Confidential Information” includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, web design, work-in-process, databases, manuals, records, articles, systems, material, sources of material, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, payroll information, staffing information, personnel information, employee lists, developments, reports, internal controls, security procedures, market studies, sales information, revenue, costs, notes, communications, ideas, inventions, original works of authorship, discoveries, specifications, customer information, customer lists, client information, and client lists of the Corporation or its businesses or any existing or prospective customer, investor or other associated third party or of any other person or entity that has entrusted information to the Corporation in confidence.

The Employee understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used.

The Employee understands and agrees that Confidential Information includes information developed by his in the course of his employment by the Corporation as if the Corporation furnished the same Confidential Information to the Employee in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to the Employee; provided that, such disclosure is through no direct or indirect fault of the Employee or person(s) acting on the Employee’s behalf.

7.2. Company Creation and Use of Confidential Information. The Employee understands and acknowledges that the Corporation has invested, and continues to invest, substantial time, money and specialized knowledge into developing its resources, creating a customer base, generating investors and potential investor lists, training its employees, and improving its business offerings. The Employee understands and acknowledges that as a result of these efforts, the Corporation has created, and continues to use and create Confidential Information. This Confidential Information provides the Corporation with a competitive advantage over others in the marketplace.

7.3. Disclosure and Use Restrictions. The Employee agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow it to be disclosed, published, communicated or made available, in whole or part, to any entity or person whatsoever (including other employees of the Corporation) not having a need to know and authority to know and use the Confidential Information in connection with the business of the Corporation and, in any event, not to anyone outside of the direct employ of the Corporation except as required in the performance of the Employee’s authorized employment duties to the Corporation or with the prior consent of the Chief Executive Officer acting on behalf of the Corporation in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media or other resources containing any Confidential Information, or remove any such documents, records, files, media or other resources from the premises or control of the Corporation, except as required in the performance of the Employee’s authorized employment duties to the Corporation or with the prior consent of the Chief Executive Officer acting on behalf of the Corporation in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent). Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order. The Employee shall promptly provide written notice of any such order to the Chief Executive Officer.

The Employee understands and acknowledges that his obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon the Employee first having access to such Confidential Information (whether before or after he begins employment by the Corporation) and shall continue during and after his employment by the Corporation until such time as such Confidential Information has become public knowledge other than as a result of the Employee’s breach of this Agreement or breach by those acting in concert with the Employee or on the Employee’s behalf. 

8. Non-Disparagement. The Employee agrees and covenants that he will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning the Corporation, the Chief Executive Officer, or any of its employees, officers, directors and existing and prospective investors and other associated third parties. This Section 8 does not, in any way, restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order. The Employee shall promptly provide written notice of any such order to the Chief Executive Officer.

9. Acknowledgement.

The Employee acknowledges and agrees that the services to be rendered by his to the Corporation are of a special and unique character; that the Employee will obtain knowledge and skill relevant to the Corporation’s industry, methods of doing business and marketing strategies by virtue of the Employee’s employment; and that the terms and conditions of this Agreement are reasonable and reasonably necessary to protect the legitimate business interest of the Corporation.

The Employee further acknowledges that the amount of his compensation reflects, in part, his obligations and the Corporation’s rights under Section 7 and Section 8 of this Agreement; that he has no expectation of any additional compensation, royalties or other payment of any kind not otherwise referenced herein in connection herewith; that he will not be subject to undue hardship by reason of his full compliance with the terms and conditions of Section 7 and Section 8 of this Agreement or the Corporation’s enforcement thereof.

10. Remedies. In the event of a breach or threatened breach by the Employee of Section 7 and/or Section 8 of this Agreement, the Employee hereby consents and agrees that the Corporation shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief.

11.  Security.

11.1. Security and Access. The Employee agrees and covenants (a) to comply with all of the Corporation’s security policies and procedures as in force from time to time, including without limitation, those regarding computer equipment, telephone systems, voicemail systems, facilities access, monitoring, key cards, access codes, Corporation intranet, internet, social media and instant messaging systems, computer systems, e-mail systems, computer networks, document storage systems, software, data security, encryption, firewalls, passwords and any and all other Corporation facilities, IT resources and communication technologies (“Facilities Information Technology and Access Resources”); (b) not to access or use any Facilities and Information Technology Resources except as authorized by the Corporation; and (iii) not to access or use any Facilities and Information Technology Resources in any manner after the termination of the Employee’s employment by the Corporation, whether termination is voluntary or involuntary. The Employee agrees to notify the Corporation promptly in the event he learns of any violation of the foregoing by others, or of any other misappropriation or unauthorized access, use, reproduction or reverse engineering of, or tampering with any Facilities and Information Technology Access Resources or other Corporation property or materials by others.

11.2. Exit Obligations. Upon termination of the Employee’s employment by either party in accordance with Section 5 of this Agreement, the Employee shall (a) provide or return to the Corporation any and all of the Corporation’s property, including keys, key cards, access cards, identification cards, security devices, employer credit cards, network access devices, computers, cell phones, smartphones, PDAs, pagers, fax machines, equipment, speakers, webcams, manuals, reports, files, books, compilations, work product, e-mail messages, recordings, tapes, disks, thumb drives or other removable information storage devices, hard drives, negatives and data and all documents and materials belonging to the Corporation and stored in any fashion, including, but not limited to, those that constitute or contain any Confidential Information, that are in the possession or control of the Employee, whether they were provided to the Employee by the Corporation or any of its business associates or created by the Employee in connection with his employment by the Corporation; and (b) delete or destroy all copies of any such documents and materials not returned to the Corporation that remain in the Employee’s possession or control, including those stored on any third-party devices, networks, storage locations and media in the Employee’s possession or control.

12. Publicity. The Employee hereby irrevocably consents to any and all uses and displays, by the Corporation and its agents, representatives and licensees, of the Employee’s name, voice, likeness, image, appearance and biographical information in, on or in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes and all other printed and electronic forms and media throughout the world, at any time during or after the period of his employment by the Corporation, for all legitimate commercial and business purposes of the Corporation (“Permitted Uses”) without further consent from or royalty, payment or other compensation to the Employee. The Employee hereby forever waives and releases the Corporation and its directors, officers, employees and agents from any and all claims, actions, damages, losses, costs, expenses and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the period of his employment by the Corporation, arising directly or indirectly from the Corporation’s and its agents’, representatives’ and licensees’ exercise of their rights in connection with any Permitted Uses.

13. Governing Law: Jurisdiction and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of the State of New York without regard to conflicts of law principles. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in a state or federal court located in the state of New York, County of New York. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.

14. Entire Agreement. Unless specifically provided herein, this Agreement contains all of the understandings and representations between the Employee and the Corporation pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. The parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement.

15. Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Employee and the Chief Executive Officer of the Corporation. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the parties in exercising any right, power or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.

16. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

17. Captions. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.

18. Counterparts. This Agreement may be executed in any manner of counterparts, all of which shall constitute in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement, by signing and delivering one or more counterparts. Each party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

19. Successors and Assigns. This Agreement is personal to the Employee and shall not be assigned by the Employee. Any purported assignment by the Employee shall be null and void from the initial date of the purported assignment. The Corporation may assign this Agreement to any successor or assign (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation. This Agreement shall inure to the benefit of the Corporation and permitted successors and assigns.

20. Notice. Notices and all other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail, electronic transmission, return receipt requested, or by overnight carrier to the parties at the addresses set forth below (or such other addresses as specified by the parties by like notice):

If to the Corporation:

The NFT Group, Inc.

101 Eisenhower Parkway, Suite 300
Roseland, NJ 07006

Attn: Vadim Mats, Chief Executive Officer

E-mail: vadim@nftgco.com

If to the Employee:

Steven A. Shorr

34 Vassar Street
Garden City, NY 11530

E-mail: sshor@jubranshorr.com

21. Representations of the Employee. The Employee represents and warrants to the Corporation that:

21.1. The Employee’s acceptance of employment with the Corporation and the performance of his duties hereunder will not conflict with or result in a violation of, a breach of, or a default under any contract, agreement or understanding to which he is a party or is otherwise bound.

21.2. The Employee’s acceptance of employment with the Corporation and the performance of his duties hereunder will not violate any non-solicitation, non-competition or other similar covenant or agreement of a prior employer.

22. Withholding. The Corporation shall have the right to withhold from any amount payable hereunder any Federal, state and local taxes in order for the Corporation to satisfy any withholding tax obligation it may have under any applicable law or regulation.

23. Survival. Upon the expiration or other termination of this Agreement, the respective rights and obligations of the parties hereto shall survive such expiration or other termination to the extent necessary to carry out the intentions of the parties under this Agreement.

24. Further Assurances. Each party to this Agreement shall execute all instruments and documents and take all actions as may be reasonably required to effectuate this Agreement.

25. Acknowledgment of Full Understanding. THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT HE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF HIS CHOICE BEFORE SIGNING THIS AGREEMENT.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

-9-

Exhibit 10.3

THE NFT GAMING COMPANY, INC.
2022 OMNIBUS EQUITY INCENTIVE PLAN

Section 1. Purpose of Plan.

The name of the Plan is the NFT Gaming Company, Inc. 2022 Omnibus Equity Incentive Plan (the “Plan”). The purposes of the Plan are to (i) provide an additional incentive to selected employees, directors, and independent contractors of the Company or its Affiliates whose contributions are essential to the growth and success of the Company, (ii) strengthen the commitment of such individuals to the Company and its Affiliates, (iii) motivate those individuals to faithfully and diligently perform their responsibilities and (iv) attract and retain competent and dedicated individuals whose efforts will result in the long-term growth and profitability of the Company. To accomplish these purposes, the Plan provides that the Company may grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards or any combination of the foregoing.

Section 2. Definitions.

For purposes of the Plan, the following terms shall be defined as set forth below:

(a) “Administrator” means the Board, or, if and to the extent the Board does not administer the Plan, the Committee in accordance with Section 3 hereof.

(b) “Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified as of any date of determination.

(c) “Applicable Laws” means the applicable requirements under U.S. federal and state corporate laws, U.S. federal and state securities laws, including the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where Awards are granted under the Plan, as are in effect from time to time.

(d) “Award” means any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit or Other Stock-Based Award granted under the Plan.

(e) “Award Agreement” means any written notice, agreement, contract or other instrument or document evidencing an Award, including through electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall determine, consistent with the Plan.

(f) “Beneficial Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.

(g) “Board” means the Board of Directors of the Company.

(h) “Bylaws” mean the bylaws of the Company, as may be amended and/or restated from time to time.

(i) “Cause” has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Cause,” then “Cause” means (i) a continuing material breach or material breach or material default (including, without limitation, any material dereliction of duty) by the Participant of any agreement between the Participant and the Company, except for any such breach or default which is caused by the physical disability of the Participant (as determined by a neutral physician), or a continuing failure by the Participant to follow the direction of a duly authorized representative of the Company; (ii) gross negligence, willful misfeasance or breach of fiduciary duty by the Participant; (iii) the commission by the Participant of an act of fraud, embezzlement or any felony or other crime of dishonesty in connection with the Participant’s duties; or (iv) conviction of the Participant of a felony or any other crime that would materially and adversely affect: (A) the business reputation of the Company or (B) the performance of the Participant’s duties to the Company. Any voluntary termination of employment or service by the Participant in anticipation of an involuntary termination of the Participant’s employment or service, as applicable, for Cause shall be deemed to be a termination for Cause.

(j) “Change in Capitalization” means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Common Stock or other property), stock split, reverse stock split, share subdivision or consolidation, (iii) combination or exchange of shares or (iv) other change in corporate structure, which, in any such case, the Administrator determines, in its sole discretion, affects the Shares such that an adjustment pursuant to Section 5 hereof is appropriate.

(k) “Change in Control” means the first occurrence of an event set forth in any one of the following paragraphs following the Effective Date:

(1) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person which were acquired directly from the Company or any Affiliate thereof) representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (i) of paragraph (3) below; or

(2) the date on which individuals who constitute the Board as of the Effective Date and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company’s stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended cease for any reason to constitute a majority of the number of directors serving on the Board; or

(3) there is consummated a merger or consolidation of the Company or any direct or indirect Subsidiary with any other corporation or other entity, other than (i) a merger or consolidation (A) which results in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary, fifty percent (50%) or more of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and (B) following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the Company, the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger or consolidation is then a Subsidiary, the ultimate parent thereof, or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its Affiliates) representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities; or

(4) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than (A) a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, more than fifty percent (50%) of the combined voting power of the voting securities of which are owned by stockholders of the Company following the completion of such transaction in substantially the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale or disposition of all or substantially all of the Company’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary, the ultimate parent thereof.

Notwithstanding the foregoing, (i) a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the holders of Common Stock immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions and (ii) to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to any Award that constitutes deferred compensation under Section 409A of the Code only if a change in the ownership or effective control of the Company or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred under Section 409A of the Code. For purposes of this definition of Change in Control, the term “Person” shall not include (i) the Company or any Subsidiary thereof, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary thereof, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company.

(l) “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto.

(m) “Committee” means any committee or subcommittee the Board may appoint to administer the Plan. Subject to the discretion of the Board, the Committee shall be composed entirely of individuals who meet the qualifications of a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act and any other qualifications required by the applicable stock exchange on which the Common Stock is traded.

(n) “Common Stock” means the common stock of the Company, par value $0.0001.

(o) “Company” means The NFT Gaming Company, Inc., a Delaware corporation (or any successor company, except as the term “Company” is used in the definition of “Change in Control” above).

(p) “Disability” has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Disability,” then “Disability” means that a Participant, as determined by the Administrator in its sole discretion, (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company or an Affiliate thereof.

(q) “Effective Date” has the meaning set forth in Section 17 hereof.

(r) “Eligible Recipient” means an employee, director or independent contractor of the Company or any Affiliate of the Company who has been selected as an eligible participant by the Administrator; provided, however, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation Right means an employee, non-employee director or independent contractor of the Company or any Affiliate of the Company with respect to whom the Company is an “eligible issuer of service recipient stock” within the meaning of Section 409A of the Code.

(s) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

(t) “Exempt Award” shall mean the following:

(1) An Award granted in assumption of, or in substitution for, outstanding awards previously granted by a corporation or other entity acquired by the Company or any of its Subsidiaries or with which the Company or any of its Subsidiaries combines by merger or otherwise. The terms and conditions of any such Awards may vary from the terms and conditions set forth in the Plan to the extent the Administrator at the time of grant may deem appropriate, subject to Applicable Laws.

(2) An award that an Eligible Recipient purchases at Fair Market Value (including awards that an Eligible Recipient elects to receive in lieu of fully vested compensation that is otherwise due) whether or not the Shares are delivered immediately or on a deferred basis.

(u) “Exercise Price” means, (i) with respect to any Option, the per share price at which a holder of such Option may purchase Shares issuable upon exercise of such Award, and (ii) with respect to a Stock Appreciation Right, the base price per share of such Stock Appreciation Right.

(v) “Fair Market Value” of a share of Common Stock or another security as of a particular date shall mean the fair market value as determined by the Administrator in its sole discretion; provided, that, (i) if the Common Stock or other security is admitted to trading on a national securities exchange, the fair market value on any date shall be the closing sale price reported on such date, or if no shares were traded on such date, on the last preceding date for which there was a sale of a share of Common Stock on such exchange, or (ii) if the Common Stock or other security is then traded in an over-the-counter market, the fair market value on any date shall be the average of the closing bid and asked prices for such share in such over-the-counter market for the last preceding date on which there was a sale of such share in such market.

(w) “Free Standing Rights” has the meaning set forth in Section 8.

(x) “Good Reason” has the meaning assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement exists or if such agreement does not define “Good Reason,” “Good Reason” and any provision of this Plan that refers to “Good Reason” shall not be applicable to such Participant.

(y) “Grandfathered Arrangement” means an Award which is provided pursuant to a written binding contract in effect on November 2, 2017, and which was not modified in any material respect on or after November 2, 2017, within the meaning of Section 13601(e)(2) of P.L. 115.97, as may be amended from time to time (including any rules and regulations promulgated thereunder).

(z) “Incentive Compensation” means annual cash bonus and any Award.

(aa) “ISO” means an Option intended to be and designated as an “incentive stock option” within the meaning of Section 422 of the Code.

(bb) “Nonqualified Stock Option” shall mean an Option that is not designated as an ISO.

(cc) “Option” means an option to purchase shares of Common Stock granted pursuant to Section 7 hereof. The term “Option” as used in the Plan includes the terms “Nonqualified Stock Option” and “ISO.”

(dd) “Other Stock-Based Award” means a right or other interest granted pursuant to Section 10 hereof that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Common Stock, including, but not limited to, unrestricted Shares, dividend equivalents or performance units, each of which may be subject to the attainment of performance goals or a period of continued provision of service or employment or other terms or conditions as permitted under the Plan.

(ee) “Participant” means any Eligible Recipient selected by the Administrator, pursuant to the Administrator’s authority provided for in Section 3 below, to receive grants of Awards, and, upon his or her death, his or her successors, heirs, executors and administrators, as the case may be.

(ff) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof.

(gg) “Plan” means this 2022 Omnibus Equity Incentive Plan.

(hh) “Related Rights” has the meaning set forth in Section 8.

(ii) “Restricted Period” has the meaning set forth in Section 9.

(jj) “Restricted Stock” means a Share granted pursuant to Section 9 below subject to certain restrictions that lapse at the end of a specified period (or periods) of time and/or upon attainment of specified performance objectives.

(kk) “Restricted Stock Unit” means the right granted pursuant to Section 9 hereof to receive a Share at the end of a specified restricted period (or periods) of time and/or upon attainment of specified performance objectives.

(ll) “Rule 16b-3” has the meaning set forth in Section 3.

(mm) “Section 16 Officer” means any officer of the Company whom the Board has determined is subject to the reporting requirements of Section 16 of the Exchange Act, whether or not such individual is a Section 16 Officer at the time the determination to recoup compensation is made.

(nn) “Shares” means Common Stock reserved for issuance under the Plan, as adjusted pursuant to the Plan, and any successor (pursuant to a merger, consolidation or other reorganization) security.

(oo) “Stock Appreciation Right” means a right granted pursuant to Section 8 hereof to receive an amount equal to the excess, if any, of (i) the aggregate Fair Market Value, as of the date such Award or portion thereof is surrendered, of the Shares covered by such Award or such portion thereof, over (ii) the aggregate Exercise Price of such Award or such portion thereof.

(pp) “Subsidiary” means, with respect to any Person, as of any date of determination, any other Person as to which such first Person owns or otherwise controls, directly or indirectly, more than 50% of the voting shares or other similar interests or a sole general partner interest or managing member or similar interest of such other Person.

(qq) “Transfer” has the meaning set forth in Section 15.

Section 3. Administration.

(a) The Plan shall be administered by the Administrator and shall be administered, to the extent applicable, in accordance with Rule 16b-3 under the Exchange Act (“Rule 16b-3”).

(b) Pursuant to the terms of the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated to it by the Board, shall have the power and authority, without limitation:

(1) to select those Eligible Recipients who shall be Participants;

(2) to determine whether and to what extent Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards or a combination of any of the foregoing, are to be granted hereunder to Participants;

(3) to determine the number of Shares to be covered by each Award granted hereunder;

(4) to determine the terms and conditions, not inconsistent with the terms of the Plan, of each Award granted hereunder (including, but not limited to, (i) the restrictions applicable to Restricted Stock or Restricted Stock Units and the conditions under which restrictions applicable to such Restricted Stock or Restricted Stock Units shall lapse, (ii) the performance goals and periods applicable to Awards, (iii) the Exercise Price of each Option and each Stock Appreciation Right or the purchase price of any other Award, (iv) the vesting schedule and terms applicable to each Award, (v) the number of Shares or amount of cash or other property subject to each Award and (vi) subject to the requirements of Section 409A of the Code (to the extent applicable) any amendments to the terms and conditions of outstanding Awards, including, but not limited to, extending the exercise period of such Awards and accelerating the payment schedules of such Awards and/or, to the extent specifically permitted under the Plan, accelerating the vesting schedules of such Awards);

(5) to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing Awards;

(6) to determine the Fair Market Value in accordance with the terms of the Plan;

(7) to determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting termination of the Participant’s service or employment for purposes of Awards granted under the Plan;

(8) to adopt, alter and repeal such administrative rules, regulations, guidelines and practices governing the Plan as it shall from time to time deem advisable;

(9) to construe and interpret the terms and provisions of, and supply or correct omissions in, the Plan and any Award issued under the Plan (and any Award Agreement relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and authorities either specifically granted under the Plan or necessary and advisable in the administration of the Plan; and

(10) to prescribe, amend and rescind rules and regulations relating to sub-plans established for the purpose of satisfying applicable non-United States laws or for qualifying for favorable tax treatment under applicable non-United States laws, which rules and regulations may be set forth in an appendix or appendixes to the Plan.

(c) Subject to Section 5, neither the Board nor the Committee shall have the authority to reprice or cancel and regrant any Award at a lower exercise, base or purchase price or cancel any Award with an exercise, base or purchase price in exchange for cash, property or other Awards without first obtaining the approval of the Company’s stockholders.

(d) All decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all Persons, including the Company and the Participants.

(e) The expenses of administering the Plan shall be borne by the Company and its Affiliates.

(f) If at any time or to any extent the Board shall not administer the Plan, then the functions of the Administrator specified in the Plan shall be exercised by the Committee. Except as otherwise provided in the Articles of Incorporation or Bylaws of the Company, any action of the Committee with respect to the administration of the Plan shall be taken by a majority vote at a meeting at which a quorum is duly constituted or unanimous written consent of the Committee’s members.

Section 4. Shares Reserved for Issuance Under the Plan.

(a) Subject to Section 5 hereof, the number of shares of Common Stock that are reserved and available for issuance pursuant to Awards granted under the Plan shall be equal to the sum of (i) 2.5 million shares, plus (ii)  an annual increase on the first day of each calendar year beginning with the first January 1 following the Effective Date and ending with the last January 1 during the initial ten-year term of the Plan, equal to the lesser of (A) five percent (5%) of the Shares outstanding (on an as-converted basis, which shall include Shares issuable upon the exercise or conversion of all outstanding securities or rights convertible into or exercisable for Shares, including without limitation, preferred stock, warrants and employee options to purchase any Shares) on the final day of the immediately preceding calendar year and (B) such lesser number of Shares as determined by the Board; provided, that, shares of Common Stock issued under the Plan with respect to an Exempt Award shall not count against such share limit.

(b) Shares issued under the Plan may, in whole or in part, be authorized but unissued Shares or Shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise. If an Award entitles the Participant to receive or purchase Shares, the number of Shares covered by such Award or to which such Award relates shall be counted on the date of grant of such Award against the aggregate number of Shares available for granting Awards under the Plan. If any Shares subject to an Award are forfeited, cancelled, exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of Shares to the Participant, the Shares with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for granting Awards under the Plan. Notwithstanding the foregoing, (i) any Shares reacquired by the Company on the open market or otherwise using cash proceeds from the exercise of Options; and (ii) Shares surrendered or withheld as payment of either the Exercise Price of an Award (including Shares otherwise underlying a Stock Appreciation Right that are retained by the Company to account for the Exercise Price of such Stock Appreciation Right) and/or withholding taxes in respect of an Award shall no longer be available for grant under the Plan. In addition, (i) to the extent an Award is denominated in shares of Common Stock, but paid or settled in cash, the number of shares of Common Stock with respect to which such payment or settlement is made shall again be available for grants of Awards pursuant to the Plan and (ii) shares of Common Stock underlying Awards that can only be settled in cash shall not be counted against the aggregate number of shares of Common Stock available for Awards under the Plan. Upon the exercise of any Award granted in tandem with any other Awards, such related Awards shall be cancelled to the extent of the number of Shares as to which the Award is exercised and, notwithstanding the foregoing, such number of Shares shall no longer be available for grant under the Plan.

(c) No more than 2.5 million Shares (as increased on an annual basis, on the first day of each calendar year beginning with the first January 1 following the Effective Date and ending with the last January 1 during the initial ten-year term of the Plan, by the lesser of (A) five percent (5%) of the Shares outstanding (on an as-converted basis, which shall include Shares issuable upon the exercise or conversion of all outstanding securities or rights convertible into or exercisable for Shares, including without limitation, preferred stock, warrants and employee options to purchase any Shares) on the final day of the immediately preceding calendar year; (B) 250,000 Shares, and (C) such lesser number of Shares as determined by the Board) shall be issued pursuant to the exercise of ISOs.

(d) Director Compensation Limits. Notwithstanding any provision to the contrary in the Plan, the sum of the grant date Fair Market Value of equity-based Awards (determined as of the grant date in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, or any successor thereto) plus any cash fees paid by the Company for serving as a non-employee director of the Board during any calendar year shall not exceed $[___]¹, increased to $[___] in the calendar year of his or her initial service as a non-employee director.

Section 5. Equitable Adjustments.

In the event of any Change in Capitalization, an equitable substitution or proportionate adjustment shall be made in (i) the aggregate number and kind of securities reserved for issuance under the Plan pursuant to Section 4, (ii) the kind, number of securities subject to, and the Exercise Price subject to outstanding Options and Stock Appreciation Rights granted under the Plan, (iii) the kind, number and purchase price of Shares or other securities or the amount of cash or amount or type of other property subject to outstanding Restricted Stock, Restricted Stock Units or Other Stock-Based Awards granted under the Plan; and/or (iv) the terms and conditions of any outstanding Awards (including, without limitation, any applicable performance targets or criteria with respect thereto); provided, however, that any fractional shares resulting from the adjustment shall be eliminated. Such other equitable substitutions or adjustments shall be made as may be determined by the Administrator, in its sole discretion. Without limiting the generality of the foregoing, in connection with a Change in Capitalization, the Administrator may provide, in its sole discretion, but subject in all events to the requirements of Section 409A of the Code, for the cancellation of any outstanding Award granted hereunder in exchange for payment in cash or other property having an aggregate Fair Market Value equal to the Fair Market Value of the Shares, cash or other property covered by such Award, reduced by the aggregate Exercise Price or purchase price thereof, if any; provided, however, that if the Exercise Price or purchase price of any outstanding Award is equal to or greater than the Fair Market Value of the shares of Common Stock, cash or other property covered by such Award, the Administrator may cancel such Award without the payment of any consideration to the Participant. Further, without limiting the generality of the foregoing, with respect to Awards subject to foreign laws, adjustments made hereunder shall be made in compliance with applicable requirements. Except to the extent determined by the Administrator, any adjustments to ISOs under this Section 5 shall be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3) of the Code. The Administrator’s determinations pursuant to this Section 5 shall be final, binding and conclusive.

Section 6. Eligibility.

The Participants in the Plan shall be selected from time to time by the Administrator, in its sole discretion, from those individuals that qualify as Eligible Recipients.

Section 7. Options.

(a) General. Options granted under the Plan shall be designated as Nonqualified Stock Options or ISOs. Each Participant who is granted an Option shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability of the Option, and whether the Option is intended to be an ISO or a Nonqualified Stock Option (and in the event the Award Agreement has no such designation, the Option shall be a Nonqualified Stock Option). The provisions of each Option need not be the same with respect to each Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted under the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award Agreement.

(b) Exercise Price. The Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion at the time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the Fair Market Value of a share of Common Stock on the date of grant.

(c) Option Term. The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten (10) years after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable provisions in the Plan and the Award Agreement. Notwithstanding the foregoing, subject to Section 4(d) of the Plan, the Administrator shall have the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as the Administrator, in its sole discretion, deems appropriate.

(d) Exercisability. Each Option shall be exercisable at such time or times and subject to such terms and conditions, including the attainment of performance goals, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator may also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion.

(e) Method of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number of whole Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect to any Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in the form of unrestricted Shares already owned by the Participant which have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved by the Administrator and permitted by Applicable Laws or (iv) any combination of the foregoing.

(f) ISOs. The terms and conditions of ISOs granted hereunder shall be subject to the provisions of Section 422 of the Code and the terms, conditions, limitations and administrative procedures established by the Administrator from time to time in accordance with the Plan. At the discretion of the Administrator, ISOs may be granted only to an employee of the Company, its “parent corporation” (as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company.

(1) ISO Grants to 10% Stockholders. Notwithstanding anything to the contrary in the Plan, if an ISO is granted to a Participant who owns shares representing more than ten percent (10%) of the voting power of all classes of shares of the Company at the time of grant, its “parent corporation” (as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company, the term of the ISO shall not exceed five (5) years from the time of grant of such ISO and the Exercise Price shall be at least one hundred and ten percent (110%) of the Fair Market Value of the Shares on the date of grant.

(2) $100,000 Per Year Limitation For ISOs. To the extent the aggregate Fair Market Value (determined on the date of grant) of the Shares for which ISOs are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds $100,000, such excess ISOs shall be treated as Nonqualified Stock Options.

(3) Disqualifying Dispositions. Each Participant awarded an ISO under the Plan shall notify the Company in writing immediately after the date the Participant makes a “disqualifying disposition” of any Share acquired pursuant to the exercise of such ISO. A “disqualifying disposition” is any disposition (including any sale) of such Shares before the later of (i) two years after the date of grant of the ISO and (ii) one year after the date the Participant acquired the Shares by exercising the ISO. The Company may, if determined by the Administrator and in accordance with procedures established by it, retain possession of any Shares acquired pursuant to the exercise of an ISO as agent for the applicable Participant until the end of the period described in the preceding sentence, subject to complying with any instructions from such Participant as to the sale of such Shares.

(g) Rights as Stockholder. A Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights of a stockholder with respect to the Shares subject to an Option until the Participant has given written notice of the exercise thereof, and has paid in full for such Shares and has satisfied the requirements of Section 15 hereof.

(h) Termination of Employment or Service. Treatment of an Option upon termination of employment of a Participant shall be provided for by the Administrator in the Award Agreement.

(i) Other Change in Employment or Service Status. An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment status or service status of a Participant, in the discretion of the Administrator.

Section 8. Stock Appreciation Rights.

(a) General. Stock Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part of any Option granted under the Plan (“Related Rights”). Related Rights may be granted either at or after the time of the grant of such Option. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants of Stock Appreciation Rights shall be made. Each Participant who is granted a Stock Appreciation Right shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded, the Exercise Price per Share, and all other conditions of Stock Appreciation Rights. Notwithstanding the foregoing, no Related Right may be granted for more Shares than are subject to the Option to which it relates. The provisions of Stock Appreciation Rights need not be the same with respect to each Participant. Stock Appreciation Rights granted under the Plan shall be subject to the following terms and conditions set forth in this Section 8 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable, as set forth in the applicable Award Agreement.

(b) Awards; Rights as Stockholder. A Participant shall have no rights to dividends or any other rights of a stockholder with respect to the shares of Common Stock, if any, subject to a Stock Appreciation Right until the Participant has given written notice of the exercise thereof and has satisfied the requirements of Section 15 hereof.

(c) Exercise Price. The Exercise Price of Shares purchasable under a Stock Appreciation Right shall be determined by the Administrator in its sole discretion at the time of grant, but in no event shall the exercise price of a Stock Appreciation Right be less than one hundred percent (100%) of the Fair Market Value of a share of Common Stock on the date of grant.

(d) Exercisability.

(1) Stock Appreciation Rights that are Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Administrator in the applicable Award Agreement.

(2) Stock Appreciation Rights that are Related Rights shall be exercisable only at such time or times and to the extent that the Options to which they relate shall be exercisable in accordance with the provisions of Section 7 hereof and this Section 8 of the Plan.

(e) Payment Upon Exercise.

(1) Upon the exercise of a Free Standing Right, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair Market Value as of the date of exercise over the Exercise Price per share specified in the Free Standing Right multiplied by the number of Shares in respect of which the Free Standing Right is being exercised.

(2) A Related Right may be exercised by a Participant by surrendering the applicable portion of the related Option. Upon such exercise and surrender, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair Market Value as of the date of exercise over the Exercise Price specified in the related Option multiplied by the number of Shares in respect of which the Related Right is being exercised. Options which have been so surrendered, in whole or in part, shall no longer be exercisable to the extent the Related Rights have been so exercised.

(3) Notwithstanding the foregoing, the Administrator may determine to settle the exercise of a Stock Appreciation Right in cash (or in any combination of Shares and cash).

(f) Termination of Employment or Service. Treatment of a Stock Appreciation Right upon termination of employment of a Participant shall be provided for by the Administrator in the Award Agreement.

(g) Term.

(1) The term of each Free Standing Right shall be fixed by the Administrator, but no Free Standing Right shall be exercisable more than ten (10) years after the date such right is granted.

(2) The term of each Related Right shall be the term of the Option to which it relates, but no Related Right shall be exercisable more than ten (10) years after the date such right is granted.

(h) Other Change in Employment or Service Status. Stock Appreciation Rights shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment or service status of a Participant, in the discretion of the Administrator.

Section 9. Restricted Stock and Restricted Stock Units.

(a) General. Restricted Stock or Restricted Stock Units may be issued under the Plan. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, Restricted Stock or Restricted Stock Units shall be made. Each Participant who is granted Restricted Stock or Restricted Stock Units shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded; the price, if any, to be paid by the Participant for the acquisition of Restricted Stock or Restricted Stock Units; the period of time restrictions, performance goals or other conditions that apply to Transferability, delivery or vesting of such Awards (the “Restricted Period”); and all other conditions applicable to the Restricted Stock and Restricted Stock Units. If the restrictions, performance goals or conditions established by the Administrator are not attained, a Participant shall forfeit his or her Restricted Stock or Restricted Stock Units, in accordance with the terms of the grant. The provisions of the Restricted Stock or Restricted Stock Units need not be the same with respect to each Participant.

(b) Awards and Certificates. Except as otherwise provided below in Section 9(c), (i) each Participant who is granted an Award of Restricted Stock may, in the Company’s sole discretion, be issued a share certificate in respect of such Restricted Stock; and (ii) any such certificate so issued shall be registered in the name of the Participant, and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to any such Award. The Company may require that the share certificates, if any, evidencing Restricted Stock granted hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed, and that, as a condition of any Award of Restricted Stock, the Participant shall have delivered a share transfer form, endorsed in blank, relating to the Shares covered by such Award. Certificates for shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture in such Restricted Stock Award. With respect to Restricted Stock Units to be settled in Shares, at the expiration of the Restricted Period, share certificates in respect of the shares of Common Stock underlying such Restricted Stock Units may, in the Company’s sole discretion, be delivered to the Participant, or his or her legal representative, in a number equal to the number of shares of Common Stock underlying the Restricted Stock Units Award. Notwithstanding anything in the Plan to the contrary, any Restricted Stock or Restricted Stock Units to be settled in Shares (at the expiration of the Restricted Period, and whether before or after any vesting conditions have been satisfied) may, in the Company’s sole discretion, be issued in uncertificated form. Further, notwithstanding anything in the Plan to the contrary, with respect to Restricted Stock Units, at the expiration of the Restricted Period, Shares, or cash, as applicable, shall promptly be issued (either in certificated or uncertificated form) to the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section 409A of the Code, and such issuance or payment shall in any event be made within such period as is required to avoid the imposition of a tax under Section 409A of the Code.

(c) Restrictions and Conditions. The Restricted Stock or Restricted Stock Units granted pursuant to this Section 9 shall be subject to the following restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the time of grant or, subject to Section 409A of the Code where applicable, thereafter:

(1) The Administrator may, in its sole discretion, provide for the lapse of restrictions in installments and may accelerate or waive such restrictions in whole or in part based on such factors and such circumstances as the Administrator may determine, in its sole discretion, including, but not limited to, the attainment of certain performance goals, the Participant’s termination of employment or service with the Company or any Affiliate thereof, or the Participant’s death or Disability. Notwithstanding the foregoing, upon a Change in Control, the outstanding Awards shall be subject to Section 11 hereof.

(2) Except as provided in the applicable Award Agreement, the Participant shall generally have the rights of a stockholder of the Company with respect to Restricted Stock during the Restricted Period; provided, however, that dividends declared during the Restricted Period with respect to an Award, shall only become payable if (and to the extent) the underlying Restricted Stock vests. Except as provided in the applicable Award Agreement, the Participant shall generally not have the rights of a stockholder with respect to Shares subject to Restricted Stock Units during the Restricted Period; provided, however, that, subject to Section 409A of the Code, an amount equal to dividends declared during the Restricted Period with respect to the number of Shares covered by Restricted Stock Units shall, unless otherwise set forth in an Award Agreement, be paid to the Participant at the time (and to the extent) Shares in respect of the related Restricted Stock Units are delivered to the Participant. Certificates for Shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture in respect of such Restricted Stock or Restricted Stock Units, except as the Administrator, in its sole discretion, shall otherwise determine.

(3) The rights of Participants granted Restricted Stock or Restricted Stock Units upon termination of employment or service as a director or independent contractor to the Company or to any Affiliate thereof terminates for any reason during the Restricted Period shall be set forth in the Award Agreement.

(d) Form of Settlement. The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof) that any Restricted Stock Unit represents the right to receive the amount of cash per unit that is determined by the Administrator in connection with the Award.

Section 10. Other Stock-Based Awards.

Other Stock-Based Awards may be issued under the Plan. Subject to the provisions of the Plan, the Administrator shall have sole and complete authority to determine the individuals to whom and the time or times at which such Other Stock-Based Awards shall be granted. Each Participant who is granted an Other Stock-Based Award shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among other things, the number of shares of Common Stock to be granted pursuant to such Other Stock-Based Awards, or the manner in which such Other Stock-Based Awards shall be settled (e.g., in shares of Common Stock, cash or other property), or the conditions to the vesting and/or payment or settlement of such Other Stock-Based Awards (which may include, but not be limited to, achievement of performance criteria) and all other terms and conditions of such Other Stock-Based Awards. In the event that the Administrator grants a bonus in the form of Shares, the Shares constituting such bonus shall, as determined by the Administrator, be evidenced in uncertificated form or by a book entry record or a certificate issued in the name of the Participant to whom such grant was made and delivered to such Participant as soon as practicable after the date on which such bonus is payable. Notwithstanding anything set forth in the Plan to the contrary, any dividend or dividend equivalent Award issued hereunder shall be subject to the same restrictions, conditions and risks of forfeiture as apply to the underlying Award.

Section 11. Change in Control.

Unless otherwise determined by the Administrator and evidenced in an Award Agreement, in the event that (a) a Change in Control occurs, and (b) the Participant is employed by the Company or any of its Affiliates immediately prior to the consummation of such Change in Control then upon the consummation of such Change in Control, the Administrator, in its sole and absolute discretion, may:

(a) provide that any unvested or unexercisable portion of any Award carrying a right to exercise become fully vested and exercisable; and

(b) cause the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to an Award granted under the Plan to lapse and such Awards shall be deemed fully vested and any performance conditions imposed with respect to such Awards shall be deemed to be fully achieved at target performance levels.

If the Administrator determines in its discretion pursuant to Section 3(b)(4) hereof to accelerate the vesting of Options and/or Share Appreciation Rights in connection with a Change in Control, the Administrator shall also have discretion in connection with such action to provide that all Options and/or Stock Appreciation Rights outstanding immediately prior to such Change in Control shall expire on the effective date of such Change in Control.

Section 12. Amendment and Termination.

The Board may amend, alter or terminate the Plan at any time, but no amendment, alteration or termination shall be made that would impair the rights of a Participant under any Award theretofore granted without such Participant’s consent. The Board shall obtain approval of the Company’s stockholders for any amendment that would require such approval in order to satisfy the requirements of any rules of the stock exchange on which the Common Stock is traded or other Applicable Law. Subject to Section 3(c), the Administrator may amend the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Section 5 of the Plan and the immediately preceding sentence, no such amendment shall materially impair the rights of any Participant without his or her consent.

Section 13. Unfunded Status of Plan.

The Plan is intended to constitute an “unfunded” plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company.

Section 14. Withholding Taxes.

Each Participant shall, no later than the date as of which the value of an Award first becomes includible in the gross income of such Participant for purposes of applicable taxes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of an amount up to the maximum statutory tax rates in the Participant’s applicable jurisdiction with respect to the Award, as determined by the Company. The obligations of the Company under the Plan shall be conditional on the making of such payments or arrangements, and the Company shall, to the extent permitted by Applicable Laws, have the right to deduct any such taxes from any payment of any kind otherwise due to such Participant. Whenever cash is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount sufficient to satisfy any applicable withholding tax requirements related thereto. Whenever Shares or property other than cash are to be delivered pursuant to an Award, the Company shall have the right to require the Participant to remit to the Company in cash an amount sufficient to satisfy any related taxes to be withheld and applied to the tax obligations; provided, that, with the approval of the Administrator, a Participant may satisfy the foregoing requirement by either (i) electing to have the Company withhold from delivery of Shares or other property, as applicable, or (ii) delivering already owned unrestricted shares of Common Stock, in each case, having a value not exceeding the applicable taxes to be withheld and applied to the tax obligations. Such already owned and unrestricted shares of Common Stock shall be valued at their Fair Market Value on the date on which the amount of tax to be withheld is determined and any fractional share amounts resulting therefrom shall be settled in cash. Such an election may be made with respect to all or any portion of the Shares to be delivered pursuant to an award. The Company may also use any other method of obtaining the necessary payment or proceeds, as permitted by Applicable Laws, to satisfy its withholding obligation with respect to any Award.

Section 15. Transfer of Awards.

Until such time as the Awards are fully vested and/or exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment, mortgage, hypothecation, transfer, charge, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any Award or any agreement or commitment to do any of the foregoing (each, a “Transfer”) by any holder thereof in violation of the provisions of the Plan or an Award Agreement will be valid, except with the prior written consent of the Administrator, which consent may be granted or withheld in the sole discretion of the Administrator. Any purported Transfer of an Award or any economic benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio and shall not create any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit or interest therein transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of such Shares or other property underlying such Award. Unless otherwise determined by the Administrator in accordance with the provisions of the immediately preceding sentence, an Option or a Stock Appreciation Right may be exercised, during the lifetime of the Participant, only by the Participant or, during any period during which the Participant is under a legal Disability, by the Participant’s guardian or legal representative.

Section 16. Continued Employment or Service.

Neither the adoption of the Plan nor the grant of an Award shall confer upon any Eligible Recipient any right to continued employment or service with the Company or any Affiliate thereof, as the case may be, nor shall it interfere in any way with the right of the Company or any Affiliate thereof to terminate the employment or service of any of its Eligible Recipients at any time.

Section 17. Effective Date.

The Plan was approved by the Board on [___]², 2022 and shall be adopted and become effective on the date that it is approved by the Company’s stockholders (the “Effective Date”).

Section 18. Electronic Signature.

Participant’s electronic signature of an Award Agreement shall have the same validity and effect as a signature affixed by hand.

Section 19. Term of Plan.

No Award shall be granted pursuant to the Plan on or after the tenth anniversary of the Effective Date, but Awards theretofore granted may extend beyond that date.

Section 20. Securities Matters and Regulations.

(a) Notwithstanding anything herein to the contrary, the obligation of the Company to sell or deliver Shares with respect to any Award granted under the Plan shall be subject to all Applicable Laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Administrator. The Administrator may require, as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient of such shares make such agreements and representations, and that such certificates bear such legends, as the Administrator, in its sole discretion, deems necessary or advisable.

(b) Each Award is subject to the requirement that, if at any time the Administrator determines that the listing, registration or qualification of Shares is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Shares, no such Award shall be granted or payment made or Shares issued, in whole or in part, unless listing, registration, qualification, consent or approval has been effected or obtained free of any conditions not acceptable to the Administrator.

(c) In the event that the disposition of Shares acquired pursuant to the Plan is not covered by a then current registration statement under the Securities Act and is not otherwise exempt from such registration, such Shares shall be restricted against transfer to the extent required by the Securities Act or regulations thereunder, and the Administrator may require a Participant receiving Common Stock pursuant to the Plan, as a condition precedent to receipt of such Common Stock, to represent to the Company in writing that the Common Stock acquired by such Participant is acquired for investment only and not with a view to distribution.

Section 21. Section 409A of the Code.

The Plan as well as payments and benefits under the Plan are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Participant shall not be considered to have terminated employment or service with the Company for purposes of the Plan and no payment shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred a “separation from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. 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 Law requires otherwise. Notwithstanding anything to the contrary in the Plan, to the extent that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the Code. The Company makes no representation that any or all of the payments or benefits described in this Plan will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.

Section 22. Notification of Election Under Section 83(b) of the Code.

If any Participant shall, in connection with the acquisition of shares of Common Stock under the Plan, make the election permitted under Section 83(b) of the Code, such Participant shall notify the Company of such election within ten (10) days after filing notice of the election with the Internal Revenue Service.

Section 23. No Fractional Shares.

No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Administrator shall determine whether cash, other Awards, or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.

Section 24. Beneficiary.

A Participant may file with the Administrator a written designation of a beneficiary on such form as may be prescribed by the Administrator and may, from time to time, amend or revoke such designation. If no designated beneficiary survives the Participant, the executor or administrator of the Participant’s estate shall be deemed to be the Participant’s beneficiary.

Section 25. Paperless Administration.

In the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.

Section 26. Severability.

If any provision of the Plan is held to be invalid or unenforceable, the other provisions of the Plan shall not be affected but shall be applied as if the invalid or unenforceable provision had not been included in the Plan.

Section 27. Clawback.

(a) If the Company is required to prepare a financial restatement due to the material non-compliance of the Company with any financial reporting requirement, then the Committee may require any Section 16 Officer to repay or forfeit to the Company, and each Section 16 Officer agrees to so repay or forfeit, that part of the Incentive Compensation received by that Section 16 Officer during the three-year period preceding the publication of the restated financial statement that the Committee determines was in excess of the amount that such Section 16 Officer would have received had such Incentive Compensation been calculated based on the financial results reported in the restated financial statement. The Committee may take into account any factors it deems reasonable in determining whether to seek recoupment of previously paid Incentive Compensation and how much Incentive Compensation to recoup from each Section 16 Officer (which need not be the same amount or proportion for each Section 16 Officer), including any determination by the Committee that a Section 16 Officer engaged in fraud, willful misconduct or committed grossly negligent acts or omissions which materially contributed to the events that led to the financial restatement. The amount and form of the Incentive Compensation to be recouped shall be determined by the Committee in its sole and absolute discretion, and recoupment of Incentive Compensation may be made, in the Committee’s sole and absolute discretion, through the cancellation of vested or unvested Awards, cash repayment or both.

(b) Notwithstanding any other provisions in this Plan, any Award which is subject to recovery under any Applicable Laws, government regulation or stock exchange listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to such Applicable Law, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such law, government regulation or stock exchange listing requirement).

Section 28. Governing Law.

The Plan shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles of conflicts of law of such state.

Section 29. Indemnification.

To the extent allowable pursuant to applicable law, each member of the Board and the Administrator and any officer or other employee to whom authority to administer any component of the Plan is designated shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be a party or in which he or she may be involved by reason of any action or failure to act pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding against him or her; provided, however, that he or she gives the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such individuals may be entitled pursuant to the Company’s Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.

Section 30. Titles and Headings, References to Sections of the Code or Exchange Act.

The titles and headings of the sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. References to sections of the Code or the Exchange Act shall include any amendment or successor thereto.

Section 31. Successors.

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 substantially all of the assets and business of the Company.

Section 32. Relationship to other Benefits.

No payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare, or other benefit plan of the Company or any Affiliate except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder.

17

Exhibit 10.4

[*] Certain information in this document has been omitted from this exhibit
because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

Columbia - Confidential

SOFTWARE AND PATENT LICENSE AGREEMENT

This Software and Patent License Agreement (“Agreement”) is made and entered into as of August 29, 2022 (“Effective Date”) between The Trustees of Columbia University in the City of New York, a non-profit private educational institution, having a principal place of business at [*], [*] (“Columbia” or “Licensor”), and the NFT Gaming Company Inc., a Delaware corporation having its principal place of business at 101 Eisenhower Parkway, Suite 300, Roseland, New Jersey 07068, U.S.A. (the “Company” or the “Licensee”) (Columbia and Licensee may be referred to herein individually as a “Party” and collectively as the “Parties”).

WHEREAS, Columbia has developed software and holds intellectual property rights in that software and patents on related inventions; and

WHEREAS, Licensee desires to obtain a license with respect to such software and intellectual property rights and patents on the terms and conditions set forth herein,

NOW, THEREFORE, the Parties hereby agree as follows:

a. “Affiliate” means any corporation or other entity that, as of the Effective Date, directly or indirectly controls, is controlled by, or is under common control with, another corporation or entity. Control means direct or indirect ownership of, or other beneficial interest in, fifty percent (50%) or more of the voting stock, other voting interest, or income of a corporation or other entity.

b. “Cover” or “Covered By” means (i) infringes, in the case of a Valid Claim in an issued patent, or (ii) would infringe the Valid Claim if it existed in an issued patent, in the case of a claim in a pending application.

c. “Derivative Work” means a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgment, condensation, expansion, or any other form in which a preexisting work may be recast, transformed, or adapted.

d. “Designee” means a corporation or other entity that is employed by, under contract to, or in partnership with Company, a Sublicensee, or an Affiliate of Company or a Sublicensee to make, use, sell, promote, distribute, license, market, import, or export Licensed Products.

e. “Documentation” means the user manuals, handbooks, and other written or electronic material relating to the Licensed Software delivered by Columbia. Any Documentation delivered to Company hereunder shall be listed in Exhibit A.

f. “End User” means the ultimate user of the Licensed Product who has obtained such Licensed Product pursuant to an End User Sublicense Agreement.

g. “End User Sublicense Agreement” means a binding, written license agreement between Company and an End User (which may be a shrinkwrap or click-through agreement covering software other than the Licensed Software), pursuant to which the End User (a) is granted a non-exclusive, non-transferable, non-sublicensable sublicense to use the Licensed Software in executable form as it is installed on, or operating within, a Licensed Product for its own internal purposes, (b) is prohibited from reverse engineering, decompiling or reverse assembling such Licensed Software, and (c) releases Columbia from any liability with respect to the Licensed Software to the greatest extent permitted by law. Such End User Sublicense Agreement must also be at least as protective of the Licensed Software as it is of any other software or technology licensed by Company to the End User.

h.   “Gross Revenue” means the gross amounts invoiced or received by Company and its Affiliates in consideration of the Sale, use, training, maintenance, support, installation, development, customization, deployment, access, analysis, or any other service or use relating to Licensed Products, including but not limited to fees paid or purchases made by End Users of the Licensed Products, and advertising revenue received by Company in connection with the Licensed Products.

i. “Field” means computer gaming for entertainment purposes involving non-fungible tokens (NFTs).

j. “Licensed Products” means any product or service (or component thereof) which (1) contains, includes or incorporates all or any part of the Licensed Software or Documentation, or any Derivative Work thereof, and/or (2) the manufacture, use, sale, offering for sale, importation, distribution, rental or lease of which is Covered By a Valid Claim of a Licensed Patent.

k. “Licensed Software” means the software described in Exhibit B attached hereto in Source Code Form and Object Code Form, including any copyrights in and to such software.

I. “Net Revenue” means Gross Revenue reduced by five percent (5%). No other deductions of any kind shall be taken from the consideration received to compute Net Revenue.

m.   “Object Code” means a form of software code resulting from the translation or processing of Source Code by a computer into machine language or intermediate code, which thus is in a form that would not be convenient to human understanding of the program logic, but which is appropriate for execution or interpretation by a computer.

n. “Licensed Patent” or “Licensed Patents” means the following:

(i) the patents and patent applications listed in Exhibit C to this Agreement;

(ii) any non-provisional patent applications that claim priority to any provisional patent applications listed in Exhibit C to this Agreement;

(iii) any claims of continuation-in-part applications that claim priority to the United States patents or patent applications listed in Exhibit C;

(iv) any rights corresponding to the preceding in foreign patent applications, foreign patents or related foreign patent documents that claim priority to one or more of the patents and patent applications listed in Exhibit C;

(v) any rights corresponding to the preceding in divisionals, continuations, reissues, re-examinations, renewals, substitutions, and extensions of the preceding; and

(vi) any rights corresponding to the preceding and issuing as patents from the preceding.

Notwithstanding the preceding definition and except as otherwise agreed in a separate writing, Licensed Patents does not include any patent claims or patent application claims based on either i) research conducted after the Effective Date or ii) inventions not disclosed in the manner provided in the first paragraph of 35 U.S.C. Section 112 in the United States patent or patent applications that are listed in Exhibit C.

o. “Manufacture (Manufactured)” means the making, fabrication, assembly, or other form of construction of Licensed Products.

p. “Sale” (Sold, Sell) means any sale, rental, lease, license, or other form of distribution of Licensed Products, either directly or through a chain of distribution, with or without consideration.

q. “Source Code” means a form in which a computer program’s logic is easily deduced by a human being with skill in the art, such as a printed listing of the program or a form from which a printed listing can be easily generated.

r. “Sublicensee” means any third party to whom the Company has granted a sublicense in the form of an End User Sublicense Agreement pursuant to this Agreement.

s. “Technical Information” means any know-how, technical information, and data developed by Columbia by or under the direction of Dr. Nicholas P. Tatonetti prior to the Effective Date and provided to or received by Company, which know-how, technical information, and data are necessary or useful for the discovery, development, manufacture, use, sale, distribution, rental or lease of a Licensed Product, including, without limitation, (i) any know- how, technical information and data disclosed in any Patent or (ii) any reports or disclosures concerning research or inventions provided or disclosed to or otherwise received by, Company. Technical Information shall include, but is not limited to, the information set forth in Exhibit D hereto.

t. “Territory” means worldwide.

u.   “Third Party” means any entity or person other than Company, Sublicensees, Designees, or their Affiliates.

v. “Use” means use of a Licensed Product by Company or an End User.

w. “Valid Claim” means (i) a claim in an issued Patent that has not: (A) expired or been canceled; (B) been declared invalid by an unreversed and unappealable (or unappealed) decision of a court or other appropriate body of competent jurisdiction; (C) been admitted to be invalid or unenforceable through reissue, disclaimer or otherwise; or (D) been abandoned in accordance with or as permitted by the terms of this Agreement or by mutual written agreement of the Parties; or (ii) a claim under a pending application for a Patent that was filed and is being prosecuted in good faith and that has not been pending for more than seven (7) years after approval of such Product, canceled, withdrawn from consideration, finally determined to be unallowable by the applicable governmental authority or court for whatever reason (and from which no appeal is or can be taken), or abandoned.

a. Software Development License. Subject to Paragraph 2(f) and the remaining terms and conditions of this Agreement, Columbia hereby grants to Company a royalty-bearing, exclusive, worldwide, non-transferable license under the Licensed Software and Licensed Patents to (i) discover, develop, manufacture, have made, use, sell, offer to sell, have sold, import, export, distribute, rent or lease Licensed Products solely in the Field and throughout the Territory, and (ii) copy, use, modify, and create Derivative Works from Licensed Software in Source Code and Object Code form in the Field and throughout the Territory during the Term of this Agreement, for the sole purpose of incorporating the Licensed Software into or bundling the Licensed Software with Licensed Products in the Field.

b.   Software Distribution License. Subject to Paragraph 2(f) and the remaining terms and conditions of this Agreement, Columbia hereby grants to Company a royalty-bearing, exclusive, worldwide, non-transferable license under the Licensed Software and Licensed Patents to Manufacture, have Manufactured, import, copy, use, modify, create Derivative Works from, offer for Sale and Sell Licensed Products, in Object Code form only, in the Field and throughout the Territory during the Term of this Agreement, provided that such Licensed Products are Sold to End Users pursuant to End User Sublicense Agreements.

c. Technical Information License. Subject to Paragraph 2(f) and the remaining terms and conditions of this Agreement, Columbia hereby grants to Company a royalty-bearing, non-exclusive, worldwide, non-transferable license to use Technical Information to Manufacture, have Manufactured, import, copy, use, modify, create Derivative Works from, offer for Sale and Sell Licensed Products, in Object Code form only, in the Field and throughout the Territory during the Term of this Agreement, provided that such Licensed Products are Sold to End Users pursuant to End User Sublicense Agreements.

d. Documentation. Subject to Paragraph 2(f) and the remaining terms and conditions of this Agreement, Columbia hereby grants to Company a royalty-bearing, non- exclusive, worldwide, non-transferable license to use, copy, distribute and prepare Derivative Works of the Documentation, solely to accompany and/or support Licensed Products Sold to End Users pursuant to End User Sublicense Agreements.

e. Sublicense Rights. Subject to the terms and conditions of this Agreement, Columbia grants to Company the right to grant sublicenses of the rights granted under Section 2 in the form of an End User Sublicense Agreement only, provided that: (i) the Sublicensee agrees to be subject to all the terms and provisions of this Agreement applicable to the Company; (ii) the Sublicensee shall have no further right to grant sublicenses under this Agreement; (iii) in the event any Sublicensee (or any entity or person acting on its behalf) initiates any proceeding or otherwise asserts any claim challenging the validity or enforceability of any Patent in any court, administrative agency or other forum, Company shall, upon written request by Columbia, terminate forthwith the sublicense agreement with such Sublicensee, and the sublicense agreement shall provide for such right of termination by Company; (iv) the sublicense agreement will provide that this Agreement shall control in the event of any inconsistency between the sublicense agreement and this Agreement,; (v) Company remains fully liable for the performance of its and its Sublicensee’s obligations hereunder; (vi) Company notifies Columbia of any proposed grant of a sublicense and provides to Columbia, upon request, a copy of any proposed sublicense agreement seven (7) business days prior to execution thereof; and (vii) no such sublicense or attempt to obtain a sublicensee shall relieve Company of its obligations under Section 7 hereof to exercise its own best efforts, directly or through a sublicense, to discover, develop and market Licensed Products, nor relieve Company of its obligations to pay Columbia any and all license fees, royalties and other payments due under the Agreement.

f. If Company identifies other patents, that are not Licensed Patents, owned by Columbia that would be necessarily infringed by exercise of the rights granted in Sections (a)- (e) immediately above, Company shall notify Columbia, and if said patents are not exclusively licensed in the Field to a Third Party, Columbia agrees to enter into good faith discussions with Company about the possibility of licensing such patents.

g. Restrictions on Scope of License.

i. U.S. Government Agencies. If the End User is an agency of the United States government, Company shall grant such agency only “restricted rights” or “limited rights” (as defined in the applicable Federal Acquisition Regulations) to the Licensed Products, and the Company shall take all actions reasonably necessary to protect Columbia’s rights and interest in the Licensed Products in accordance with such regulations and successor regulations including, but not limited to, the placement of appropriate legends on the Licensed Products distributed by the Company.

ii. Government Rights. All rights and licenses granted by Columbia to Company and its Affiliates under this Agreement are subject to (i) any limitations imposed by the terms of any government grant, government contract or government cooperative agreement applicable to the technology that is the subject of this Agreement, and/or (ii) applicable requirements of 35 U.S.C. Sections 200 et seq., as amended, and implementing regulations and policies. Without limitation of the foregoing, the Company agrees that, to the extent required under 35 U.S.C. Section 204, any Licensed Product used or Sold by Company, Sublicensees, Designees, and their Affiliates in the United States will be manufactured substantially in the United States. In addition, the Company agrees that, to the extent required under 35 U.S.C. Section 202(c)(4), the United States government is granted a nonexclusive, non-transferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States any Patent throughout the world.

iii.   Open Source Software. Company shall not Sell, sublicense, or otherwise make available the Licensed Software or any part thereof as Open Source Software, nor combine the Licensed Software with any Open Source Software in a manner that could require the release, disclosure or distribution of the Source Code of the Licensed Software, or otherwise infect the Licensed Software so as to impose any obligation on Columbia or diminish any rights Columbia may have in the Licensed Software, without the express prior, written consent of Columbia. Upon Columbia’s request, the Licensee shall inform Columbia in writing of any Open Source Software used as part of a Licensee Product, which notice shall also set forth the terms on which such Open Source Software shall be licensed.

iv.   All rights not specifically granted herein are reserved to Columbia. Except as expressly provided under this Section 2, no right or license is granted (expressly or by implication or estoppel) by Columbia to Company or its Affiliates or Sublicensees under any tangible or intellectual property, materials, patent, patent application, trademark, copyright, trade secret, know-how, technical information, data or another proprietary right.

a.   To the actual knowledge ofthe officers of Columbia’s office of Technology Ventures, as of the Effective Date, Columbia represents that it is the owner of all right, title and interest in and to the Licensed Patents, Licensed Software, Technical Information, Documentation and any other proprietary rights licensed or materials provided to Company hereunder, and all patents, copyrights, trademarks, trade secrets, and other intellectual property therein (“Intellectual Property”), and Company agrees and acknowledges that Company shall not obtain or claim any ownership interest in any of the foregoing, or any portion thereof, or any Intellectual Property therein. The Company agrees and acknowledges that the Licensed Patents, Licensed Software, Technical Information, and Documentation contain proprietary information of Columbia, which have been developed using great efforts by its investigators, researchers, and/or employees. Company shall not obscure, alter or remove any patent, copyright, service mark, or trademark marking or legend contained on or in any Licensed Patents, Licensed Software, Technical Information, or Documentation.

The Company agrees and acknowledges that Company’s ownership of intellectual property in Licensed Products is limited to any new materials contributed by Company; however, the Company does not acquire any ownership rights to the Licensed Patents, Licensed Software, Technical Information, and Documentation. Columbia will continue to retain ownership of any Licensed Patents, Licensed Software, Technical Information, and Documentation that is used in or incorporated into any Derivative Work.

b.   Security. The Company shall take all reasonable steps to ensure that no unauthorized persons have access to the Licensed Software and Documentation and to ensure that no persons authorized to have such access shall take any action which would be in violation of this Agreement. Such steps shall include, but shall not be limited to, imposing password restrictions on the use of the Licensed Software, securing the Company’s network on which such Licensed Software resides from outside intrusion, preventing the making of unauthorized copies of the Licensed Software or Documentation, and administering and monitoring the use of the Licensed Software and Documentation.

c. Reporting. The Company shall promptly report to Columbia any actual or suspected violation of this Section 3 and shall take such further steps as may reasonably be requested by Columbia to prevent or remedy any such violation.

d. Relief. Because unauthorized use or transfer of the Licensed Software or Documentation is likely to diminish substantially the value of such Licensed Software or Documentation and irreparably harm Columbia and will not be susceptible of cure by the payment of monetary damages, if Company breaches the provisions of Sections 2 or 3 of this Agreement, Columbia shall be entitled to injunctive and/or other equitable relief, in addition to other remedies afforded by law, to prevent or restrain a breach of Sections 2 or 3 of this Agreement.

a.   Columbia reserves the right to practice the Licensed Patents and use the Licensed Software, Documentation and Technical Information for academic research and educational purposes in the Field and to permit other entities or individuals to practice and use such Licensed Patents, Licensed Software, Documentation and Technical Information for academic research and educational purposes in the Field. Columbia shall obtain from all entities or individuals who are given permission to practice and use such Licensed Patents, Licensed Software, Documentation or Technical Information an agreement in writing to limit such use to academic research and educational purposes and shall inform the Company of the identity of all such entities and individuals. Nothing in this Agreement shall be interpreted to limit in any way the right of Columbia and its faculty or employees to practice and use such Licensed Patents, Licensed Software, Documentation or Technical Information for any purpose outside the Field or to license or permit such use outside the Field by third parties.

b. The Company acknowledges that Columbia is dedicated to the free scholarly exchange and to public dissemination of the results of its scholarly activities. Columbia and its faculty and employees shall have the right to publish, disseminate or otherwise disclose any information relating to its research activities, including Technical Information and Licensed Software.

a.   Importance of Technical Information. The Company has requested, and Columbia has agreed, to grant certain rights to Technical Information and Licensed Software. The Company requires these rights in order to develop and commercialize the technology licensed hereunder. Because of the importance of Technical Information and Licensed Software, Company has agreed to pay certain royalties to Columbia on Licensed Products as specified below, even if not Covered by a Valid Claim of a Patent, in order to obtain rights to Technical Information and Licensed Software. The Company has agreed to these payments because of the commercial value of the Technical Information and Licensed Software, separate and distinct from the commercial value of the Licensed Patents. The Company acknowledges that it would not have entered into this Agreement without receiving the rights to the Technical Information and Licensed Software specified in Section 2.

b. In consideration of the licenses granted under Section 2 of this Agreement, Company shall pay to Columbia fees and royalties as follows:

(i)   License Fee: A non-refundable, non-recoverable and non-creditable license fee in the sum of $25,000, payable within thirty (30) days of the Effective Date of this Agreement;

(ii) Revenue-based Milestone Payments: Non-refundable, non- recoverable and non-creditable milestone payments of:

(iii) Royalties: A non-refundable, non-recoverable and non-creditable running royalty on all Licensed Products that are Sold by Company, its Affiliates and Sublicenses, or as otherwise used in to generate Gross Revenue in the Field and throughout the Territory during the Term of this Agreement as follows:

A. Licensed Products Delivered to an End User. 5% on Net Revenue of Licensed Products that are Covered by a Valid Claim of a Patent in the country of Manufacture, Use, or Sale, and 2.5% on Net Revenue of Licensed Products that are not Covered by a Valid Claim of a Patent in the country of Manufacture, Use, or Sale;

B. Minimum Royalty. Notwithstanding the foregoing, the Company shall pay Columbia a non-refundable and non-recoverable minimum royalty payment in the amount of $25,000 per year commencing the year of the first commercial launch of a Licensed Product. Each such minimum royalty payment may be credited against earned royalties accrued during the same calendar year in which the minimum royalty payment is due and payable. To the extent minimum royalty payments exceed the earned royalties accrued during the same calendar year, this excess amount cannot be carried over to any other year, either to decrease the earned royalties due in that year or to decrease the minimum royalty payments due in that year.

(iv)   Win-State Payments: In the event Company’s success results in significant shareholder value appreciation after an Initial Financing (“Initial Financing” being the first bona fide equity financing of the Company after the Effective Date that results in gross proceeds to the Company of at least $[*]), the Company will make a number of valuation dependent “Win-State Payments” to Columbia in connection with a financing or sale (each such transaction a “Transaction”). Such payments will be made based on the value of Company shares as determined either via private or public financing or the value of the Company’s per-share equity value in a sale, with the amount of any such Win-State Payments being calculated in accordance with, and contingent upon, the Share Price Triggers and percentages of Proceeds set forth in the table below. “Proceeds” shall mean (i) in the case of a public or private financing, the aggregate gross proceeds received by the Company in connection with such financing before the payment of any commissions, fees or other expenses of any kind, and (ii) in the case of a sale of the Company (which shall include a merger which results in the Company’s stockholders owning less than a majority of the voting power of the successor; or a sale of all or substantially all of the Company’s assets), cash, the value of other forms of consideration received by the Company or its stockholders, and the assumption by the acquirer of indebtedness of the Company.

The Company may make such payments to Columbia in cash or common stock at Company’s sole discretion. If the common stock issued by the Company to satisfy a payment is made in publicly-traded stock, then the price per share shall be equal to the per share price of the common stock offered by the Company in its initial public offering (“IPO”) if the Transaction is an IPO or the price per share paid by the purchaser or purchasers thereof in the financing that is not an IPO and the stock shall be registered. If the Company’s common stock is not publicly traded at the time of issuance, then the price per share shall be equal to then current 409A valuation of the Company’s common stock as of the issuance date. Win-State Payments will be promptly made to Columbia at the conclusion of each financing or sale of the Company.