TVIA, INC.
TRANSACTION BONUS PLAN
(a)
Purpose . The purpose of the Plan is to establish a bonus
pool payable upon the occurrence of a Liquidity Event to selected
Participants. It is understood that the distributions to the
Participants will be measured by the amount of proceeds available
for distribution to shareholders of the Company and have priority
over related distribution(s) with respect to capital stock of the
Company made at the same time.
(b)
Approval . The Board has determined that the adoption of the
Plan is in the best interest of the Company and its
shareholders.
(a) “
Board ” means the Board of Directors of the
Company.
(b) “
Change of Control ” shall mean the occurrence
of any of the following events:
(i) the
acquisition by any one person, or more than one person acting as a
group (for these purposes, persons will be considered to be acting
as a group if they are owners of a corporation that enters into a
merger, consolidation, purchase or acquisition of stock, or similar
business transaction with the Company), (“
Person ”) that is or becomes the owner,
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented
by the Company’s then outstanding securities; provided,
however, that for purposes of this subsection (i), the acquisition
of additional securities by any one Person, who is considered to
own more than fifty percent (50%) of the total voting power of the
securities of the Company shall not be considered a Change of
Control; or
(ii) a
change in the ownership of a substantial portion of the
Company’s assets which occurs on the date that any Person
acquires (or has acquired during the 12-month period ending on the
date of the most recent acquisition by such person or persons)
assets from the Company that have a total gross fair market value
equal to or more than fifty percent (50%) of the total fair market
value of all of the assets of the Company immediately prior to such
acquisition or acquisitions; provided, however, that for purposes
of this Section 2(b)(ii), the following shall not constitute a
change in the ownership of a substantial portion of the
Company’s assets: (1) a transfer to an entity that is
controlled by the Company’s shareholders immediately after
the transfer; or (2) a transfer of assets by the Company to:
(A) a shareholder of the Company (immediately before the asset
transfer) in exchange for or with respect to the Company’s
securities; (B) an entity, fifty percent (50%) or more of the
total value or voting power of which is owned, directly or
indirectly, by the Company; (C) a Person, that owns, directly
or indirectly, fifty percent (50%) or more of the total value or
voting power of all the outstanding stock of the Company; or
(D) an entity, at least fifty percent (50%) of the total value
or voting power of which is owned, directly or indirectly, by a
Person described in subsection (C). For purposes of this clause
(ii), gross fair market value means the value of the assets of the
Company, or the value of the assets being disposed of, determined
without regard to any liabilities associated with such
assets.
Notwithstanding
the foregoing, a Company transaction that does not constitute a
change in control event under Treasury
Regulation Section 1.409A-3(i)(5)(v) or Treasury
Regulation Section 1.409A-3(i)(5)(vii) shall be not be
considered a Change of Control for purposes of this
Plan.
For the avoidance
of doubt, a liquidation, dissolution or winding up of the Company,
or assignment for the benefit of creditors shall not constitute a
Change of Control event for purposes of this Plan.
(c) “
Closing ” means the closing of a transaction
constituting a Liquidity Event.
(d) “
Code ” means the Internal Revenue Code of 1986,
as amended. Reference to a specific Section of the Code or
regulation thereunder shall include such Section or regulations,
any valid regulation promulgated under such Section, and any
comparable provision of any future legislation or regulation
amending, supplementing or superseding such Section or
regulation.
(e) “
Company ” means Tvia, Inc., a Delaware
corporation and any successor.
(f) “
Individual Percentage ” means the percentage
specified for a particular Participant listed on
Exhibit A .
(g) “
Liquidity Event ” means (i) a liquidation,
dissolution or winding up of the Company, whether in connection
with a bankruptcy or similar proceeding or otherwise; or
(ii) a Change of Control.
(h)
“ Net Proceeds ” means the sum of any
cash and the fair market value of any securities or other assets or
property available for distribution to the holders of the
Company’s equity securities (including any securities that
are convertible, exercisable or exchangeable for equity securities)
in connection with a Liquidity Event after the repayment of all
Company debt outstanding and after subtracting all costs and fees
associated with the transaction, including amounts distributed
after the closing of the Liquidity Event pursuant to any escrow,
earn-out or other similar arrangement. The fair market value of any
securities or other assets or property available for distribution
to the holders of the Company’s equity securities in
connection with a Liquidity Event will be determined on the same
basis on which such securities were valued in such Liquidity Event
for purposes of distributing such securities or property to the
holders of the Company’s equity securities.
(i) “
Participant ” means each of the persons listed
on Exhibit A .
(j) “
Plan ” means this Tvia, Inc. Transaction Bonus
Plan.
(a) The Plan
shall be interpreted and administered by the Board, whose actions
shall be final and binding on all persons, including the
Participants.
(b) The
Board, in its sole discretion, shall have the power, subject to,
and within the limitations of, the express provisions of the
Plan:
2
(i) To
determine whether the Company has consummated a transaction
resulting in a Liquidity Event.
(ii) To
determine the value of the Net Proceeds.
(iii) To
establish, change, and adjust, in its sole discretion, the
Individual Percentages for each of the Participants.
(iv) To
determine the value of any non-cash consideration distributed
pursuant to the Plan, provided that the valuation of identical
property shall be consistently applied for all purposes.
(c) The Board
may delegate some or all of its powers and responsibilities under
the Plan either to a committee of the Board or to one or more
officers of the Company.
(d) No member
of the Board or its delegate will be liable for any action or
determination made by the Board or its delegate with respect to the
Plan or any distribution paid under the Plan. All expenses and
liabilities that members of the Board or its delegate incur in
connection with the administration of the Plan shall be borne by
the Company or its successor. No members of the Board or its
delegate shall be personally liable for any action, determination,
or interpretation made in good faith with respect to this Plan or
any distribution paid hereunder, and all members of the Board or
its delegate shall be fully indemnified and held harmless by the
Company or its successor i
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