Exhibit 99.3
TIDAL SOFTWARE,
INC.
2009 EQUITY INCENTIVE
PLAN
SECTION 1 . INTRODUCTION
.
The Tidal Software, Inc. 2009 Equity
Incentive Plan became effective upon its adoption by the
Company’s Board of Directors on the Effective Date, and must
be approved by the stockholders of the Company, when required by
applicable laws, within twelve (12) months following such
date. If the Company’s stockholders do not approve this Plan,
no Awards will be granted under this Plan.
The purpose of the Plan is to
promote the long-term success of the Company and the creation of
stockholder value by offering designated Employees and Consultants
an opportunity to share in such long-term success by acquiring a
proprietary interest in the Company. The Plan seeks to achieve this
purpose by providing for discretionary long-term incentive awards
in the form of Awards and Stock Units.
The Plan shall be governed by, and
construed in accordance with, the laws of the State of California
(except its choice-of-law provisions). Capitalized terms shall have
the meaning provided in Section 2 unless otherwise provided in
this Plan or any related Stock Option Agreement or Stock Unit
Agreement.
SECTION
2. DEFINITIONS .
(a) “Affiliate” means
any entity other than a Subsidiary, if the Company and/or one or
more Subsidiaries own not less than 50% of such entity.
(b) “Award” means any
award of an Option, Stock Grant or Stock Unit under the
Plan.
(c) “Board” means the
Board of Directors of the Company, as constituted from time to
time.
(d) “Cashless Exercise”
means, to the extent that a Stock Option Agreement so provides and
as permitted by applicable law, a program approved by the Committee
in which payment may be made all or in part by delivery (on a form
prescribed by the Committee) of an irrevocable direction to a
securities broker to sell Shares and to deliver all or part of the
sale proceeds to the Company in payment of the aggregate Exercise
Price and, if applicable, the amount necessary to satisfy the
Company’s withholding obligations at the minimum statutory
withholding rates, including, but not limited to, U.S. federal and
state income taxes, payroll taxes, and foreign taxes, if
applicable.
(e) “Cause” means,
except as may otherwise be provided in a Participant’s
employment agreement or option agreement, a conviction of a
Participant for a felony crime or the failure of a Participant to
contest prosecution for a felony crime, or a Participant’s
misconduct, fraud or dishonesty (as such terms are defined by the
Committee in its sole discretion), or any unauthorized use or
disclosure of confidential information or trade secrets, in each
case as determined by the Committee, and the Committee’s
determination shall be conclusive and binding.
(f) “Change In Control”
means, except as may otherwise be provided in a Participant’s
employment agreement, Stock Option Agreement or Stock Unit
Agreement, the occurrence of any of the following:
(i) A change in the composition of
the Board over a period of thirty-six consecutive months or less
such that a majority of the Board members ceases, by reason of one
or more contested elections for Board membership, to be comprised
of individuals who either (A) have been Board members
continuously since the beginning of such period or (B) have
been elected or nominated for election as Board members during such
period by at least a majority of the Board members described in
clause (A) who were still in office at the time the Board
approved such election or nomination; or
(ii) The acquisition, directly or
indirectly, by any person or related group of persons (other than
the Company or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Company) of
beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of securities of the Company representing more than
35% of the total combined voting power of the Company’s then
outstanding securities pursuant to a tender or exchange offer made
directly to the Company’s shareholders which the Board does
not recommend such shareholders accept.
(g) “Code” means the
Internal Revenue Code of 1986, as amended, and the regulations and
interpretations promulgated thereunder.
(h) “Committee” means a
committee described in Section 3.
(i) “Common Stock” means
the Company’s common stock.
(j) “Company” means
Tidal Software, Inc., a California corporation.
(k) “Consultant” means
an individual who performs bona fide services to the Company, a
Parent, a Subsidiary or an Affiliate, other than as an Employee or
Director or Non-Employee Director.
(l) “Corporate
Transaction” means, except as may otherwise be provided in a
Participant’s employment agreement or Award agreement, the
occurrence of any of the following shareholder approved
transactions:
(i) The consummation of a merger or
consolidation of the Company with or into another entity or any
other corporate reorganization, if more than 50% of the combined
voting power of the continuing or surviving entity’s
securities outstanding immediately after such merger, consolidation
or other reorganization is owned by persons who were not
shareholders of the Company immediately prior to such merger,
consolidation or other reorganization; or
(ii) The sale, transfer or other
disposition of all or substantially all of the Company’s
assets.
A transaction shall not constitute a
Corporate Transaction if its sole purpose is to change the state of
the Company’s incorporation or to create a holding company
that will be owned in substantially the same proportions by the
persons who held the Company’s securities immediately before
such transactions.
(m) “Director” means a
member of the Board who is also an Employee.
(n) “Disability” means
that the Participant is classified as disabled under a long-term
disability policy of the Company or, if no such policy applies, the
Participant 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 which has
lasted or can be expected to last for a continuous period of not
less than 12 months.
(o) “Effective Date”
means April 8, 2009, the date the Plan was adopted by the
Company’s Board of Directors.
(p) “Employee” means any
individual who is a common-law employee of the Company, a Parent, a
Subsidiary or an Affiliate.
(q) “Exchange Act” means
the Securities Exchange Act of 1934, as amended.
(r) “Exercise Price”
means, in the case of an Option, the amount for which a Share may
be purchased upon exercise of such Option, as specified in the
applicable Stock Option Agreement.
(s) “Fair Market Value”
means the market price of a Share as determined in good faith by
the Committee. The Fair Market Value shall be determined by the
following:
(i) If the Shares were traded
over-the-counter or listed with NASDAQ on the date in question,
then the Fair Market Value shall be equal to the last transaction
price quoted by the NASDAQ system for the date in question;
or
(ii) if the Common Stock is listed
on the New York Stock Exchange or the American Stock Exchange on
the date in question, the Fair Market Value is the closing selling
price for the Common Stock as such price is officially quoted in
the composite tape of transactions on the exchange determined by
the Committee to be the primary market for the Common Stock for the
date in question.
If neither (i) or (ii) are
applicable, then the Fair Market Value shall be determined by the
Committee in good faith on such basis as it deems appropriate;
provided, however, that if there is no such reported price for the
Common Stock for the date in question under (i) or (ii), then
if available such price on the last preceding date for which such
price exists shall be determinative of Fair Market
Value.
Whenever possible, the determination
of Fair Market Value by the Committee shall be based on the prices
reported in the Western Edition of The Wall Street Journal .
Such determination shall be conclusive and binding on all
persons.
(t) “Fiscal Year” means
the Company’s fiscal year.
(u) “Grant” means any
grant of an Award under the Plan.
(v) “Incentive Stock
Option” or “ISO” means an incentive stock option
described in Code 422.
(w) “Specified Employee”
means an Employee, Director, Non-Employee Director or Consultant
who has been selected by the Committee to receive a Stock Unit
under the Plan.
(x) “Non-Employee
Director” means a member of the Board who is not an
Employee.
(y) “Nonstatutory Stock
Option” or “NSO” means a stock option that is not
an ISO.
(z) “Option” means a
stock option granted under the Plan entitling the Optionee to
purchase Shares.
(aa) “Optionee” means an
individual, estate or other entity that holds an Option.
(bb) “Parent” means any
corporation (other than the Company) in an unbroken chain of
corporations ending with the Company, if each of the 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. A corporation that attains the
status of a Parent on a date after the adoption of the Plan shall
be considered a Parent commencing as of such date.
(cc) “Participant” means
an individual or estate or other entity that holds an
Award.
(dd) “Plan” means this
Tidal Software, Inc. 2009 Equity Incentive Plan, as it may be
amended from time to time.
(ee) “SEC” means the
Securities and Exchange Commission.
(ff) “Securities Act”
means the Securities Act of 1933, as amended.
(gg) “Service” means
service as an Employee, Director, Non-Employee Director or
Consultant. A Participant’s Service does not terminate when
continued service crediting is required by applicable law. Service
terminates in any event when the approved leave ends, unless such
Employee immediately returns to active work. The Committee
determines which leaves count toward Service, and when Service
terminates for all purposes under the Plan. Further, unless
otherwise determined by the Committee, a Participant’s
Service shall not be deemed to have terminated merely because of a
change in the capacity in which the Participant provides service to
the Company, a Parent, Subsidiary or Affiliate, or a transfer
between entities (the Company or any Parent, Subsidiary, or
Affiliate); provided that there is no interruption or other
termination of Service.
(hh) “Share” means one
share of Common Stock, as adjusted pursuant to Sections 8 and 9,
and any successor security.
(ii) “Stock Option
Agreement” means the agreement described in Section 6
evidencing each award of an Option.
(jj) “Stock Unit” means
a bookkeeping entry representing the equivalent of one Share, as
awarded under the Plan.
(kk) “Stock Unit
Agreement” means the agreement described in Section 8
evidencing each Award of a Stock Unit.
(ll) “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. A corporation that attains the status of a Subsidiary
on a date after the adoption of the Plan shall be considered a
Subsidiary commencing as of such date.
SECTION
3. ADMINISTRATION .
(a) General . The Board or a
Committee appointed by the Board shall administer the Plan. Members
of the Committee shall serve for such period of time as the Board
may determine and shall be subject to removal by the Board at any
time. The Board may also at any time terminate the functions of the
Committee and reassume all powers and authority previously
delegated to the Committee.
(b) Authority of the
Committee . Subject to the provisions of the Plan, the
Committee shall have full authority and sole discretion to take any
actions it deems necessary or advisable for the administration of
the Plan. Such actions shall include:
(i) selecting individuals who are to
receive Options under the Plan;
(ii) determining the type, number,
vesting requirements and other features and conditions of such
Options and amending such Options;
(iii) selecting Specified Employees
who are to receive Stock Units under the Plan;
(iv) determining the type, number,
vesting requirements and other features and conditions of such
Stock Units and amending such Stock Units;
(v) correcting any defect, supplying
any omission, or reconciling any inconsistency in the Plan or any
Award agreement;
(vi) accelerating the vesting, or
extending the post-termination exercise term, of Awards at any time
and under such terms and conditions as it deems
appropriate;
(vii) interpreting the Plan;
and
(viii) making all other decisions
relating to the operation of the Plan; and
(ix) adopting such plans or subplans
as may be deemed necessary or appropriate to provide for the
participation by Participants of the Company and its Subsidiaries
and Affiliates who reside outside the U.S., which plans and/or
subplans shall be attached hereto as Appendices.
The Committee may adopt such rules
or guidelines as it deems appropriate to implement the Plan. The
Committee’s determinations under the Plan shall be final and
binding on all persons.
(c) Indemnification . To the
maximum extent permitted by applicable law, each member of the
Committee, or of the Board, shall be indemnified and held harmless
by the Company against and from (i) any loss, cost, liability,
or expense that may be imposed upon or reasonably incurred by him
or her 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 involved by reason of any action taken or failure
to act under the Plan or any Stock Option Agreement or Stock Unit
Agreement, and (ii) from any and all amounts paid by him or
her in settlement thereof, with the Company
