TRIBE WORKS, INC. 2004 EMPLOYEE STOCK INCENTIVE PLANEmployee Benefits Plan Agreement |
|
|
You are currently viewing: This Employee Benefits Plan Agreement involves
ATLAS TECHNOLOGY GROUP, INC. | TRIBE WORKS, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Employee Benefits Plan Agreement by:
TRIBE
WORKS, INC.
2004
EMPLOYEE STOCK INCENTIVE PLAN
As
Adopted March 24, 2004
|
1.
|
PURPOSE.
|
The
purpose of this Plan is to provide incentives to attract, retain and motivate
eligible persons whose present and potential contributions are important to
the
success of the Company, its Parent and Subsidiaries, by offering them an
opportunity to participate in the Company’s future performance through awards of
Options, Restricted Stock and Stock Bonuses. Capitalized terms not defined
in
the text are defined in Section 2.
|
2.
|
DEFINITIONS.
|
As
used
in this Plan, the following terms will have the following meanings:
“AWARD”
means
any award under this Plan, including any Option, Restricted Stock or Stock
Bonus.
“AWARD
AGREEMENT”
means,
with respect to each Award, the signed written agreement between the Company
and
the Participant setting forth the terms and conditions of the
Award.
“BOARD”
means
the Board of Directors of the Company.
“CAUSE”
means
any cause, as defined by applicable law, for the termination of a Participant’s
employment with the Company or a Parent or Subsidiary of the
Company.
“CODE”
means
the Internal Revenue Code of 1986, as amended.
“COMPANY”
means
Tribeworks, Inc., a Delaware corporation, or any successor
corporation.
“DISABILITY”
means
a
disability, whether temporary or permanent, partial or total, as determined
by
the Board.
“EXCHANGE
ACT”
means
the Securities Exchange Act of 1934, as amended.
“EXERCISE
PRICE”
means
the price at which a holder of an Option may purchase the Shares issuable upon
exercise of the Option.
“FAIR
MARKET VALUE”
means,
as of any date, the value of a share of the Company’s Common Stock determined as
follows:
B-1
|
(a)
|
if
such Common Stock is publicly traded and is then listed on a national
securities exchange, its closing price on the date of determination
on the
principal national securities exchange on which the Common Stock
is listed
or admitted to trading as reported in The Wall Street
Journal;
|
|
(b)
|
if
such Common Stock is quoted on the NASDAQ National Market, its closing
price on the NASDAQ National Market on the date of determination
as
reported in The Wall Street
Journal;
|
|
(c)
|
if
such Common Stock is publicly traded but is not listed or admitted
to
trading on a national securities exchange, the average of the closing
bid
and asked prices on the date of determination as reported by Bloomberg,
L.P.;
|
|
(d)
|
in
the case of an Award made on the Effective Date, the price per share
at
which shares of the Company’s Common Stock are initially offered for sale
to the public by the Company’s underwriters in the initial public offering
of the Company’s Common Stock pursuant to a registration statement filed
with the SEC under the Securities Act;
or
|
|
(e)
|
if
none of the foregoing is applicable, by the Board in good
faith.
|
“INSIDER”
means
an officer or director of the Company or any other person whose transactions
in
the Company’s Common Stock are subject to Section 16 of the Exchange
Act.
“OPTION”
means
an award of an option to purchase Shares pursuant to Section 6.
“PARENT”
means
any corporation (other than the Company) in an unbroken ‘chain of corporations
ending with the Company if each of such corporations other than the Company
owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
“PARTICIPANT”
means
a
person who receives an Award under this Plan.
“PERFORMANCE
FACTORS”
means
the factors selected by the Board, in its sole and absolute discretion, from
among the following measures to determine whether the performance goals
applicable to Awards have been satisfied:
|
(a)
|
Net
revenue and/or net revenue growth;
|
|
(b)
|
Earnings
before income taxes and amortization and/or earnings before income
taxes
and amortization growth;
|
|
(c)
|
Operating
income and/or operating income
growth;
|
|
(d)
|
Net
income and/or net income growth;
|
|
(e)
|
Earnings
per share and/or earnings per share
growth;
|
B-2
|
(f)
|
Total
stockholder return and/or total stockholder return
growth;
|
|
(g)
|
Return
on equity;
|
|
(h)
|
Operating
cash flow return on income;
|
|
(i)
|
Adjusted
operating cash flow return on
income;
|
|
(j)
|
Economic
value added; and
|
|
(k)
|
Individual
confidential business objectives.
|
“PERFORMANCE
PERIOD”
means
the period of service determined by the Board, not to exceed five years, during
which years of service or performance is to be measured for Restricted Stock
Awards or Stock Bonuses.
“PLAN”
means
this Tribeworks, Inc. 2004 Employee Stock Incentive Plan, as amended from time
to time.
“RESTRICTED
STOCK AWARD”
means
an award of Shares pursuant to Section 7.
“SEC”
means
the Securities and Exchange Commission.
“SECURITIES
ACT”
means
the Securities Act of 1933, as amended.
“SHARES”
means
shares of the Company’s Common Stock reserved for issuance under this Plan, as
adjusted pursuant to Sections 3 and 19, and any successor security.
“STOCK
BONUS”
means
an award of Shares, or cash in lieu of Shares, pursuant to Section
8.
“SUBSIDIARY”
means
any corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company if each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or more of the
total
combined voting power of all classes of stock in one of the other corporations
in such chain.
“TERMINATION”
or “TERMINATED”
means,
for purposes of this Plan with respect to a Participant, that the Participant
has for any reason ceased to provide services as an employee, officer, director,
consultant, independent contractor, or advisor to the Company or a Parent or
Subsidiary of the Company. An employee will not be deemed to have ceased to
provide services in the case of (i) sick leave, (ii) military leave, or (iii)
any other leave of absence approved by the Company, provided that such leave
is
for a period of not more than 90 days, unless reemployment upon the expiration
of such leave is guaranteed by contract or statute or unless provided otherwise
pursuant to a formal policy adopted from time to time by the Company and issued
and promulgated to employees in writing. In the case of any employee on an
approved leave of absence, the Board may make such provisions, respecting
suspension of vesting of the Award while on leave from the employ of the Company
or a Subsidiary as it may deem appropriate, except that in no event may an
Option be exercised after the expiration of the term set forth in the Option
agreement. The Board will have sole discretion to determine whether a
Participant has ceased to provide services and the effective date on which
the
Participant ceased .to provide services (the “TERMINATION DATE”).
B-3
“UNVESTED
SHARES”
means
“Unvested Shares” as defined in the Award Agreement.
“VESTED
SHARES”
means
“Vested Shares” as defined in the Award Agreement.
|
3.
|
SHARES
SUBJECT TO THE PLAN.
|
3.1 Number
of Shares Available.
Subject
to Sections 3.2 and 19, the total aggregate number of Shares reserved and
available for grant and issuance pursuant to this Plan will be 25% of the shares
of common stock outstanding of Tribeworks, Inc., as determined from time to
time
and will include Shares that are subject to: (a) issuance upon exercise of
an
Option but cease to be subject to such Option for any reason other than exercise
of such Option; (b) an Award granted hereunder but forfeited or repurchased
by
the Company at the original issue price; and (c) an Award that otherwise
terminates without Shares being issued. At all times the Company, shall reserve
and keep available a sufficient number of Shares as shall be required to satisfy
the requirements of all outstanding Options granted under this Plan and all
other outstanding but unvested Awards granted under this Plan.
3.2 Adjustment
of Shares.
In the
event that the number of outstanding shares is changed by a stock dividend,
recapitalization, stock split, reverse stock split, subdivision, combination,
reclassification or similar change in the capital structure of the Company
without consideration, then (a) the number of Shares reserved for issuance
under
this Plan, (b) the Exercise Prices of and number of Shares subject to
outstanding Options, and (c) the number of Shares subject to other outstanding
Awards will be proportionately adjusted, subject to any required action by
the
Board or the stockholders of the Company and compliance with applicable
securities laws; provided, however, that fractions of a Share will not be issued
but will either be replaced by a cash payment equal to the Fair Market Value
of
such fraction of a Share or will be rounded up to the nearest whole Share,
as
determined by the Board.
|
4.
|
ELIGIBILITY.
|
ISOs
(as
defined in Section 6 below) may be granted only to employees (including officers
and directors who are also employees) of the Company or of a Parent or
Subsidiary of the Company. All other Awards may be granted to employees,
officers, directors, consultants, independent contractors and advisors of the
Company or any Parent or Subsidiary of the Company; provided such consultants,
contractors and advisors render bona fide services not in connection with the
offer and sale of securities in a capital-raising transaction.
|
5.
|
ADMINISTRATION.
|
5.1 Board
Authority.
The
Board will administer this Plan. Subject to the general purposes, terms and
conditions of this Plan, the Board will have full power to implement and carry
out this Plan. Without limitation, the Board will have the authority
to:
B-4
|
(a)
|
construe
and interpret this Plan, any Award Agreement and any other agreement
or
document executed pursuant to this
Plan;
|
|
(b)
|
prescribe,
amend and rescind rules and regulations relating to this Plan or
any
Award;
|
|
(c)
|
select
persons to receive Awards;
|
|
(d)
|
determine
the form and terms of Awards;
|
|
(e)
|
determine
the number of Shares or other consideration subject to
Awards;
|
|
(f)
|
determine
whether Awards will be granted singly, in combination with, in tandem
with, in replacement of, or as alternatives to, other Awards under
this
Plan or any other incentive or compensation plan of the Company or
any
Parent or Subsidiary of the
Company;
|
|
(g)
|
grant
waivers of Plan or Award
conditions;
|
|
(h)
|
determine
the vesting, ability to exercise and payment of
Awards;
|
|
(i)
|
correct
any defect, supply any omission or reconcile any inconsistency in
this
Plan, any Award or any Award
Agreement;
|
|
(j)
|
determine
whether an Award has been earned;
and
|
