Exhibit 99.1
S PRING S OURCE G LOBAL , I NC .
2007 E QUITY I NCENTIVE P LAN
A DOPTED : M AY 10, 2007
A PPROVED B Y S TOCKHOLDERS : M AY 10, 2007
A MENDED : A PRIL 2, 2008
A MENDED : A PRIL 25, 2008
A MENDMENTS A PPROVED B Y S TOCKHOLDERS : A PRIL 25, 2008
A MENDED : D ECEMBER 17, 2008
T ERMINATION D ATE : M AY 9, 2017
PART I
(a) Eligible Stock Award
Recipients. The persons
eligible to receive Stock Awards are Employees, Directors and
Consultants.
(b) Available Stock
Awards. The purpose of
the Plan is to provide a means by which eligible recipients of
Stock Awards may be given an opportunity to benefit from increases
in value of the Common Stock through the granting of the following
Stock Awards: (i) Incentive Stock Options,
(ii) Nonstatutory Stock Options, (iii) Restricted Stock
Awards and (iv) Stock Appreciation Rights.
(c) General Purpose.
The Company, by means of the Plan,
seeks to retain the services of the group of persons eligible to
receive Stock Awards, to secure and retain the services of new
members of this group and to provide incentives for such persons to
exert maximum efforts for the success of the Company and its
Affiliates.
(a)
“Affiliate” means any parent corporation or subsidiary
corporation of the Company, whether now or hereafter existing, as
those terms are defined in Sections 424(e) and (f), respectively,
of the Code.
(b)
“Board” means the Board of Directors of the
Company.
(c) “Capitalization
Adjustment” has
the meaning ascribed to that term in Section 11(a).
1.
(d) “Change in
Control” means
the occurrence, in a single transaction or in a series of related
transactions, of any one or more of the following
events:
(i) any Exchange Act Person becomes the Owner,
directly or indirectly, of securities of the Company representing
more than fifty percent (50%) of the combined voting power of
the Company’s then outstanding securities other than by
virtue of a merger, consolidation or similar transaction.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur (A) on account of the acquisition of
securities of the Company by any institutional investor, any
affiliate thereof or any other Exchange Act Person that acquires
the Company’s securities in a transaction or series of
related transactions that are primarily a private financing
transaction for the Company or (B) solely because the level of
Ownership held by any Exchange Act Person (the “Subject
Person”) exceeds the designated percentage threshold of the
outstanding voting securities as a result of a repurchase or other
acquisition of voting securities by the Company reducing the number
of shares outstanding, provided that if a Change in Control would
occur (but for the operation of this sentence) as a result of the
acquisition of voting securities by the Company, and after such
share acquisition, the Subject Person becomes the Owner of any
additional voting securities that, assuming the repurchase or other
acquisition had not occurred, increases the percentage of the then
outstanding voting securities Owned by the Subject Person over the
designated percentage threshold, then a Change in Control shall be
deemed to occur;
(ii) there is consummated a merger, consolidation or
similar transaction involving (directly or indirectly) the Company
if, immediately after the consummation of such merger,
consolidation or similar transaction, the stockholders of the
Company immediately prior thereto do not Own, directly or
indirectly, either (A) outstanding voting securities
representing more than fifty percent (50%) of the combined
outstanding voting power of the surviving Entity in such merger,
consolidation or similar transaction or (B) more than fifty
percent (50%) of the combined outstanding voting power of the
parent of the surviving Entity in such merger, consolidation or
similar transaction;
(iii) the stockholders of the Company approve or the
Board approves a plan of complete dissolution or liquidation of the
Company, or a complete dissolution or liquidation of the Company
shall otherwise occur; or
(iv) there is consummated a sale, lease, license or
other disposition of all or substantially all of the consolidated
assets of the Company and its Subsidiaries, other than a sale,
lease, license or other disposition of all or substantially all of
the consolidated assets of the Company and its Subsidiaries 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 in substantially the same proportion as their
Ownership of the Company immediately prior to such sale, lease,
license or other disposition.
The term Change in Control shall not
include a sale of assets, merger or other transaction effected
exclusively for the purpose of changing the domicile of the
Company.
Notwithstanding the foregoing or any
other provision of this Plan, the definition of Change in Control
(or any analogous term) in an individual written agreement between
the Company or any Affiliate and the Participant shall supersede
the foregoing definition with respect to Stock Awards subject to
such agreement (it being understood, however, that if no definition
of Change in Control or any analogous term is set forth in such an
individual written agreement, the foregoing definition shall
apply).
2.
(e)
“Code” means the Internal Revenue Code of 1986, as
amended.
(f)
“Committee” means a committee of one or more members of the
Board appointed by the Board in accordance with
Section 3(c).
(g) “Common
Stock” means
the common stock of the Company.
(h)
“Company” means SpringSource Global, Inc., a Delaware
corporation.
(i)
“Consultant” means any person, including an advisor,
(i) engaged by the Company or an Affiliate to render
consulting or advisory services and who is compensated for such
services or (ii) serving as a member of the Board of Directors
of an Affiliate and who is compensated for such services. However,
the term “Consultant” shall not include Directors who
are not compensated by the Company for their services as Directors,
and the payment of a director’s fee by the Company for
services as a Director shall not cause a Director to be considered
a “Consultant” for purposes of the Plan.
(j) “Continuous
Service” means
that the Participant’s service with the Company or an
Affiliate, whether as an Employee, Director or Consultant, is not
interrupted or terminated. A change in the capacity in which the
Participant renders service to the Company or an Affiliate as an
Employee, Consultant or Director or a change in the entity for
which the Participant renders such service, provided that there is
no interruption or termination of the Participant’s service
with the Company or an Affiliate, generally shall not terminate a
Participant’s Continuous Service. For example, a change in
status from an employee of the Company to a consultant to an
Affiliate or to a Director shall not constitute an interruption of
Continuous Service. Notwithstanding the foregoing, to the extent
necessary for compliance with Section 409A of the Code,
interruption and termination of Continuous Service shall be
determined in accordance with Treasury Regulation 1.4099A-1(h). The
Board or the chief executive officer of the Company, in that
party’s sole discretion, may determine whether Continuous
Service shall be considered interrupted or terminated in the case
of any leave of absence approved by that party, including sick
leave, military leave or any other personal leave. If a leave of
absence does not result in a termination of Continuous Service, a
Stock Award shall continue to vest during the period of the leave
in which the Participant is receiving regular pay (including
vacation or PTO) from the Company, and shall vest during unpaid
leave only to such extent as may be provided in the Company’s
leave of absence policy or in the written terms of the
Participant’s leave of absence.
(k) “Corporate
Transaction” means the occurrence, in a single transaction
or in a series of related transactions, of any one or more of the
following events:
(i) a sale or other disposition of all or
substantially all, as determined by the Board in its discretion, of
the consolidated assets of the Company and its
Subsidiaries;
3.
(ii) a sale or other disposition of at least ninety
percent (90%) of the outstanding securities of the
Company;
(iii) a merger, consolidation or similar transaction
following which the Company is not the surviving corporation;
or
(iv) a merger, consolidation or similar transaction
following which the Company is the surviving corporation but the
shares of Common Stock outstanding immediately preceding the
merger, consolidation or similar transaction are converted or
exchanged by virtue of the merger, consolidation or similar
transaction into other property, whether in the form of securities,
cash or otherwise.
(l)
“Director” means a member of the Board.
(m)
“Disability” means the inability of a person, in the opinion
of a qualified physician acceptable to the Company, to perform the
major duties of that person’s position with the Company or an
Affiliate because of the sickness or injury of the person.
Notwithstanding the foregoing, to the extent necessary for
compliance with Section 409A of the Code,
“Disability” shall be determined in accordance with
Section 409A.
(n)
“Employee” means any person employed by the Company or an
Affiliate. Service as a Director or payment of a director’s
fee by the Company for such service or for service as a member of
the Board of Directors of an Affiliate shall not be sufficient to
constitute “employment” by the Company or an
Affiliate.
(o)
“Entity” means a corporation, partnership or other
entity.
(p) “Exchange
Act” means the
Securities Exchange Act of 1934, as amended.
(q) “Exchange Act
Person” means
any natural person, Entity or “group” (within the
meaning of Section 13(d) or 14(d) of the Exchange Act), except
that “Exchange Act Person” shall not include
(A) the Company or any Subsidiary of the Company, (B) any
employee benefit plan of the Company or any Subsidiary of the
Company or any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any Subsidiary of the
Company, (C) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (D) an Entity
Owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their Ownership of stock
of the Company.
(r) “Fair Market
Value” means,
as of any date, the value of the Common Stock determined in good
faith by the Board (i) in a manner consistent with
Section 260.140.50 of Title 10 of the California Code of
Regulations, (ii) in compliance with Section 409A of the
Code, and (iii) in the case of an Incentive Stock Option, in
compliance with Section 422 of the Code.
(s) “Incentive Stock
Option” means
an Option intended to qualify as an incentive stock option within
the meaning of Section 422 of the Code and the regulations
promulgated thereunder.
4.
(t) “Nonstatutory Stock
Option” means
an Option not intended to qualify as an Incentive Stock
Option.
(u)
“Officer” means any person designated by the Company as an
officer.
(v)
“Option” means an Incentive Stock Option or a
Nonstatutory Stock Option granted pursuant to the Plan.
(w) “Option
Agreement” means a written agreement between the Company
and an Optionholder evidencing the terms and conditions of an
individual Option grant. Each Option Agreement shall be subject to
the terms and conditions of the Plan.
(x)
“Optionholder” means a person to whom an Option is granted
pursuant to the Plan or, if applicable, such other person who holds
an outstanding Option.
(y) “Own,”
“Owned,” “Owner,”
“Ownership” A person or Entity shall be deemed to
“Own,” to have “Owned,” to be the
“Owner” of, or to have acquired “Ownership”
of securities if such person or Entity, directly or indirectly,
through any contract, arrangement, understanding, relationship or
otherwise, has or shares voting power, which includes the power to
vote or to direct the voting, with respect to such
securities.
(z)
“Participant” means a person to whom a Stock Award is granted
pursuant to the Plan or, if applicable, such other person who holds
an outstanding Stock Award.
(aa)
“Plan” means this SpringSource Global, Inc. 2007 Equity
Incentive Plan Parts I and II.
(bb) “Restricted Stock
Award” means
an award of shares of Common Stock, which is granted pursuant to
the terms and conditions of Section 7(a).
(cc) “Securities
Act” means the
Securities Act of 1933, as amended.
(dd) “Stock Appreciation
Right” means a
right to receive the appreciation of Common Stock, which is granted
pursuant to the terms and conditions of
Section 7(c).
(ee) “Stock
Award” means
any right granted under the Plan, including an Option, a Restricted
Stock Award and a Stock Appreciation Right.
(ff) “Stock Award
Agreement” means a written agreement between the Company
and a holder of a Stock Award evidencing the terms and conditions
of an individual Stock Award grant. Each Stock Award Agreement
shall be subject to the terms and conditions of the
Plan.
(gg)
“Subsidiary” means, with respect to the Company, (i) any
corporation of which more than fifty percent (50%) of the
outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation
(irrespective of whether, at the time, stock of any other class or
classes of such corporation shall have or might have voting power
by reason of the happening of any contingency) is at the time,
directly or indirectly, Owned by the Company, and (ii) any
partnership in which the Company has a direct or indirect interest
(whether in the form of voting or participation in profits or
capital contribution) of more than fifty percent (50%).
5.
(hh) “Ten Percent
Stockholder” means a person who Owns (or is deemed to Own
pursuant to Section 424(d) of the Code) stock possessing more
than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or of any of its
Affiliates.
(a) Administration by
Board. The Board shall
administer the Plan unless and until the Board delegates
administration to a Committee, as provided in
Section 3(c).
(b) Powers of Board.
The Board shall have the power,
subject to, and within the limitations of, the express provisions
of the Plan:
(i) To determine from time to time which of the
persons eligible under the Plan shall be granted Stock Awards; when
and how each Stock Award shall be granted; what type or combination
of types of Stock Award shall be granted; the provisions of each
Stock Award granted (which need not be identical), including the
time or times when a person shall be permitted to receive Common
Stock pursuant to a Stock Award; the number of shares of Common
Stock with respect to which a Stock Award shall be granted to each
such person; and the Fair Market Value applicable to a Stock
Award.
(ii) To construe and interpret the Plan and Stock
Awards granted under it, and to establish, amend and revoke rules
and regulations for its administration. The Board, in the exercise
of this power, may correct any defect, omission or inconsistency in
the Plan or in any Stock Award Agreement, in a manner and to the
extent it shall deem necessary or expedient to make the Plan fully
effective.
(iii) To effect, at any time and from time to time,
with the consent of any adversely affected Participant,
(1) the reduction of the exercise price of any outstanding
Option or the strike price of any outstanding Stock Appreciation
Right under the Plan; (2) the cancellation of any outstanding
Option or Stock Appreciation Right under the Plan and the grant in
substitution therefor of (a) a new Option or Stock
Appreciation Right under the Plan or another equity plan of the
Company covering the same or a different number of shares of Common
Stock, (b) a Restricted Stock Award, (c) a Restricted
Stock Unit Award, (d) an Other Stock Award, (e) cash,
and/or (f) other valuable consideration (as determined by the
Board, in its sole discretion); or (3) any other action that
is treated as a repricing under generally accepted accounting
principles; provided, however, that no such reduction or
cancellation may be effected if it is determined, in the
Company’s sole discretion, that such reduction or
cancellation would result in any such outstanding Option becoming
subject to adverse taxation under Section 409A of the
Code.
(iv) To amend the Plan or a Stock Award as provided
in Section 12.
6.
(v) To terminate or suspend the Plan as provided in
Section 13.
(vi) Generally, to exercise such powers and to
perform such acts as the Board deems necessary or expedient to
promote the best interests of the Company and that are not in
conflict with the provisions of the Plan.
(c) Delegation to
Committee. The Board may
delegate administration of the Plan to a Committee or Committees of
one (1) or more members of the Board, and the term
“Committee” shall apply to any person or persons to
whom such authority has been delegated. If administration is
delegated to a Committee, the Committee shall have, in connection
with the administration of the Plan, the powers theretofore
possessed by the Board, including the power to delegate to a
subcommittee any of the administrative powers the Committee is
authorized to exercise (and references in this Plan to the Board
shall thereafter be to the Committee or subcommittee), subject,
however, to such resolutions, not inconsistent with the provisions
of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board
the administration of the Plan.
(d) Delegation to an
Officer. The Board may
delegate to one or more Officers of the Company the authority to do
one or both of the following: (i) designate Officers and
Employees of the Company or any of its Subsidiaries to be
recipients of Stock Awards and (ii) determine the number of
shares of Common Stock to be subject to such Stock Awards granted
to such Officers and Employees of the Company; provided,
however, that the Board resolutions regarding such delegation
shall specify the total number of shares of Common Stock that may
be subject to the Stock Awards granted by such Officer and that
such Officer may not grant a Stock Award to himself or herself.
Notwithstanding the foregoing, the Board may not delegate authority
to an Officer to determine the Fair Market Value of the Common
Stock.
(e) Effect of Board’s
Decision. All
determinations, interpretations and constructions made by the Board
in good faith shall not be subject to review by any person and
shall be final, binding and conclusive on all persons.
(f) Arbitration.
Any dispute or claim concerning any
Stock Awards granted (or not granted) pursuant to the Plan or any
disputes or claims relating to or arising out of the Plan shall be
fully, finally and exclusively resolved by binding and confidential
arbitration conducted pursuant to the rules of Judicial Arbitration
and Mediation Services, Inc. (“JAMS”) in San Francisco,
California. The Company shall pay all arbitration fees. In addition
to any other relief, the arbitrator may award to the prevailing
party recovery of its attorneys’ fees and costs. By accepting
a Stock Award, Participants and the Company waive their respective
rights to have any such disputes or claims tried by a judge or
jury.
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4.
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S
HARES S UBJECT TO THE P LAN .
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(a) Share Reserve.
Subject to the provisions of
Section 11(a) relating to Capitalization Adjustments, the
Common Stock that may be issued pursuant to Stock Awards shall not
exceed in the aggregate thirteen million four hundred fifteen
thousand three hundred four (13,415,304) shares of Common
Stock.
7.
(b) Reversion of Shares to the
Share Reserve. If any
Stock Award shall for any reason expire or otherwise terminate, in
whole or in part, without having been exercised in full, or if any
shares of Common Stock issued to a Participant pursuant to a Stock
Award are forfeited back to or repurchased by the Company,
including, but not limited to, any repurchase or forfeiture caused
by the failure to meet a contingency or condition required for the
vesting of such shares, then the shares of Common Stock not
acquired under such Stock Award shall revert to and again become
available for issuance under the Plan. If any shares subject to a
Stock Award are not delivered to a Participant because such shares
are withheld for the payment of taxes or the Stock Award is
exercised through a reduction of shares subject to the Stock Award
(i. e. , “net exercised”), then the number of
shares that are not delivered shall revert to and again become
available for issuance under the Plan. If the exercise price of any
Stock Award is satisfied by tendering shares of Common Stock held
by the Participant (either by actual delivery or attestation), then
the number of such tendered shares shall revert to and again become
available for issuance under the Plan. Notwithstanding the
foregoing and subject to the provisions of Section 11(a)
relating to Capitalization Adjustments, the aggregate number of
shares of Common Stock that may be issued as Incentive Stock
Options shall be thirteen million four hundred fifteen thousand
three hundred four (13,415,304) shares of Common
Stock.
(c) Source of Shares.
The shares of Common Stock subject
to the Plan may be unissued shares or reacquired shares, bought on
the market or otherwise.
(d) Share Reserve
Limitation. To the extent
required by Section 260.140.45 of Title 10 of the California
Code of Regulations, the total number of shares of Common Stock
issuable upon exercise of all outstanding Options and the total
number of shares of Common Stock provided for under any stock bonus
or similar plan of the Company shall not exceed the applicable
percentage as calculated in accordance with the conditions and
exclusions of Section 260.140.45 of Title 10 of the California
Code of Regulations, based on the shares of Common Stock of the
Company that are outstanding at the time the calculation is
made.
(a) Eligibility for Specific
Stock Awards. Incentive
Stock Options may be granted only to Employees. Stock Awards other
than Incentive Stock Options may be granted to Employees, Directors
and Consultants.
(b) Ten Percent
Stockholders.
(i) A Ten Percent Stockholder shall not be granted
an Incentive Stock Option unless the exercise price of such Option
is at least one hundred ten percent (110%) of the Fair Market
Value of the Common Stock on the date of grant and the Option is
not exercisable after the expiration of five (5) years from
the date of grant.
(ii) A Ten Percent Stockholder shall not be granted a
Nonstatutory Stock Option unless the exercise price of such Option
is at least (i) one hundred ten percent (110%) of the
Fair Market Value of the Common Stock on the date of grant or
(ii) such lower percentage of the Fair Market Value of the
Common Stock on the date of grant as is permitted by
Section 260.140.41 of Title 10 of the California Code of
Regulations at the time of the grant of the Option.
8.
(iii) A Ten Percent Stockholder shall not be granted a
Restricted Stock Award or Stock Appreciation Right (if such award
could be settled in shares of Common Stock), unless the purchase
price of the restricted stock is at least (i) one hundred
percent (100%) of the Fair Market Value of the Common Stock on
the date of grant or (ii) such lower percentage of the Fair
Market Value of the Common Stock on the date of grant as is
permitted by Section 260.140.42 of Title 10 of the California
Code of Regulations at the time of the grant of the
award.
(c) Consultants.
A Consultant shall not be eligible
for the grant of a Stock Award if, at the time of grant, either the
offer or the sale of the Company’s securities to such
Consultant is not exempt under Rule 701 of the Securities Act
(“Rule 701”) because of the nature of the services that
the Consultant is providing to the Company, because the Consultant
is not a natural person, or because of some other provision of Rule
701.
Each Option shall be in such form
and shall contain such terms and conditions as the Board shall deem
appropriate. All Options shall be separately designated Incentive
Stock Options or Nonstatutory Stock Options at the time of grant,
and, if certificates are issued, a separate certificate or
certificates shall be issued for shares of Common Stock purchased
on exercise of each type of Option. The provisions of separate
Options need not be identical, but each Option shall include
(through incorporation of provisions hereof by reference in the
Option or otherwise) the substance of each of the following
provisions:
(a) Term. Subject to the provisions of Section 5(b)
regarding Ten Percent Stockholders, no Option shall be exercisable
after the expiration of ten (10) years from the date it was
granted.
(b) Exercise Price of an
Incentive Stock Option. Subject to the provisions of Section 5(b)
regarding Ten Percent Stockholders, the exercise price of each
Incentive Stock Option shall be not less than one hundred percent
(100%) of the Fair Market Value of the Common Stock subject to
the Option on the date the Option is granted. Notwithstanding the
foregoing, an Incentive Stock Option may be granted with an
exercise price lower than that set forth in the preceding sentence
if such Option is granted pursuant to an assumption or substitution
for another option in a manner satisfying the provisions of
Section 424(a) of the Code.
(c) Exercise Price of a
Nonstatutory Stock Option. Subject to the provisions of Section 5(b)
regarding Ten Percent Stockholders, the exercise price of each
Nonstatutory Stock Option shall be not less than one hundred
percent (100%) of the Fair Market Value of the Common Stock
subject to the Option on the date the Option is granted.
Notwithstanding the foregoing, a Nonstatutory Stock Option may be
granted with an exercise price lower than that set forth in the
preceding sentence if such Option is granted pursuant to an
assumption or substitution for another option in a manner
satisfying the provisions of Section 424(a) of the
Code.
9.
(d) Consideration.
The purchase price of Common Stock
acquired pursuant to the exercise of an Option shall be paid, to
the extent permitted by applicable law and as determined by the
Board in its sole discretion, by any combination of the methods of
payment set forth below. The Board shall have the authority to
grant Options that do not permit all of the following methods of
payment (or otherwise restrict the ability to use certain methods)
and to grant Options that require the consent of the Company to
utilize a particular method of payment. The methods of payment
permitted by this Section 6(d) are:
(i) by cash or check;
(ii) by delivery to the Company (either by actual
delivery or attestation) of shares of Common Stock;
(iii) pursuant to a program developed under Regulation
T as promulgated by the Federal Reserve Board that, prior to the
issuance of Common Stock, results in either the receipt of cash (or
check) by the Company or the receipt of irrevocable instructions to
pay the aggregate exercise price to the Company from the sales
proceeds;
(iv) by a “net exercise” arrangement
pursuant to which the Company will reduce the number of shares of
Common Stock issued upon exercise by the largest whole number of
shares with a Fair Market Value that does not exceed the aggregate
exercise price; provided, however, that the Company shall
accept a cash or other payment from the Participant to the extent
of any remaining balance of the aggregate exercise price not
satisfied by such reduction in the number of whole shares to be
issued; provided, further, however, that shares of Common
Stock will no longer be outstanding under an Option and will not be
exercisable thereafter to the extent that (A) shares are used
to pay the exercise price pursuant to the “net
exercise,” (B) shares are delivered to the Participant
as a result of such exercise, and (C) shares are withheld to
satisfy tax withholding obligations; or
(v) in any other form of legal consideration that
may be acceptable to the Board.
(e) Transferability of an
Incentive Stock Option. An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and
distribution and shall be exercisable during the lifetime of the
Optionholder only by the Optionholder. Notwithstanding the
foregoing, the Optionholder may, by delivering written notice to
the Company, in a form satisfactory to the Company, designate a
third party who, in the event of the death