Exhibit 99.1
TIDAL SOFTWARE,
INC.
1995 STOCK OPTION
PLAN
1. Purposes of the Plan . The
purposes of this Stock Option Plan are to attract and retain the
best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees and
Consultants of the Company and its Subsidiaries and to promote the
success of the Company’s business. Options granted under the
Plan may be incentive stock options (as defined under
Section 422 of the Code) or nonstatutory stock options, as
determined by the Administrator at the time of grant of an option
and subject to the applicable provisions of Section 422 of the
Code, as amended, aid the regulations promulgated
thereunder.
2. Definitions . As used
herein, the following definitions shall apply:
(a) “ Administrator
” means the Board or any of its Committees appointed pursuant
to Section 4 of the Plan.
(b) “ Board ”
means the Board of Directors of the Company.
(c) “ Code ”
means the Internal Revenue Code of 1986, as amended.
(d) “ Committee ”
means a Committee appointed by the Board of Directors in accordance
with Section 4 of the Plan.
(e) “ Common Stock
” means the Common Stock of the Company.
(f) “ Company ”
means TIDAL Software, Inc., a California corporation.
(g) “ Consultant
” means any person who is engaged by the Company or any
Parent or Subsidiary to render consulting or advisory services and
is compensated for such services, and any director of the Company
whether compensated for such services or not. If and in the event
the Company registers any class of any equity security pursuant to
the Exchange Act, the term Consultant shall thereafter not include
directors who are not compensated for their services or are paid
only a director’s fee by the Company.
(h) “ Continuous Status as
an Employee or Consultant ” means that the employment or
consulting relationship with the Company, any Parent, or
Subsidiary, is not interrupted or terminated. Continuous Status as
an Employee or Consultant shall not be considered interrupted in
the case of (i) any leave of absence approved by the Company
or (ii) transfers between locations of the Company or between
the Company, its Parent, any Subsidiary, or any successor. A leave
of absence approved by the Company shall include sick leave,
military leave, or any other personal leave approved by an
authorized representative of the Company. For purposes of Incentive
Stock Options, no such leave may exceed 90 days, unless
reemployment upon expiration of such leave is guaranteed by statute
or contract, including Company policies. If reemployment upon
expiration of a leave of absence approved by the Company is not so
guaranteed, on the 91st day of such leave any Incentive Stock
Option held by the Optionee shall cease to be treated as an
Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option.
(i) “ Employee ”
means any person, including Officers and directors, employed by the
Company or any Parent or Subsidiary of the Company. The payment of
a director’s fee by the Company shall not be sufficient to
constitute “employment” by the Company.
(j) “ Exchange Act
” means the Securities Exchange Act of 1934, as
amended.
(k) “ Fair Market Value
” means, as of any date, the value of Common Stock determined
as follows:
(i) If the Common Stock is listed on
any established stock exchange or a national market system,
including without limitation the NASDAQ National Market of the
National Association of Securities Dealers, Inc. Automated
Quotation (“ NASDAQ ”) System, its Fair Market
Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange
or system for the last market trading day prior to the time of
determination, as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted
on the NASDAQ System (but not on the NASDAQ National Market
thereof) or regularly quoted by a recognized securities dealer but
selling prices are not reported, its Fair Market Value shall be the
mean between the high bid and low asked prices for the Common Stock
on the last market trading day prior to the day of determination,
or;
(iii) In the absence of an
established market for the Common Stock, the Fair Market Value
thereof shall be determined in good faith by the
Administrator.
(l) “ Incentive Stock
Option ” means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of
the Code.
(m) “ Nonstatutory Stock
Option ” means an Option not intended to qualify as an
Incentive Stock Option.
(n) “ Officer ”
means a person who is an officer of the Company within the meaning
of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(o) “ Option ”
means a stock option granted pursuant to the Plan.
(p) “ Optioned Stock
” means the Common Stock subject to an Option.
(q) “ Optionee ”
means an Employee or Consultant who receives an Option.
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(r) “ Parent ”
means a “parent corporation”, whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(s) “ Plan ”
means this 1995 Stock Option Plan.
(t) “ Share ”
means a share of the Common Stock, as adjusted in accordance with
Section 11 below.
(u) “ Subsidiary
” means a “subsidiary corporation”, whether now
or hereafter existing, as defined in Section 424(f) of the
Code.
3. Stock Subject to the Plan
. Subject to the provisions of Section 11 of the Plan, the
maximum aggregate number of shares which may be optioned and sold
under the Plan is 1,080,000 shares of Common Stock. The shares may
be authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become
unexercisable for any reason without having been exercised in full,
the unpurchased Shares which were subject thereto shall, unless the
Plan shall have been terminated, become available for future grant
under the Plan.
4. Administration of the Plan
.
(a) Initial Plan Procedure .
Prior to the date, if any, upon which the Company becomes subject
to the Exchange Act, the Plan shall be administered by the Board or
a committee appointed by the Board.
(b) Plan Procedure after the
Date, if any, upon Which the Company becomes Subject to the
Exchange Act .
(i) Administration with Respect
to Directors and Officers . With respect to grants of Options
to Employees who are also Officers or directors of the Company, the
Plan shall be administered by (A) the Board if the Board may
administer the Plan in compliance with Rule 16b-3 promulgated under
the Exchange Act or any successor thereto (“Rule
16b-3”) with respect to a plan intended to qualify thereunder
as a discretionary plan, or (B) a Committee designated by the
Board to administer the Plan, which Committee shall be constituted
in such a manner as to permit the Plan to comply with Rule
16b-3 with respect to a plan intended to qualify thereunder as a
discretionary plan. Once appointed, such Committee shall continue
to serve in its designated capacity until otherwise directed by the
Board. From time to time the Board may increase the size of the
Committee and appoint additional members thereof, remove members
(with or without cause) and appoint new members in substitution
therefor, fill vacancies, however caused, and remove all members of
the Committee and thereafter directly administer the Plan, all to
the extent permitted by Rule 16b-3 with respect to a plan intended
to qualify thereunder as a discretionary plan.
(ii) Multiple Administrative
Bodies . If permitted by Rule 16b-3, the Plan may be
administered by different bodies with respect to directors,
non-director Officers and Employees who are neither directors nor
Officers.
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(iii) Administration With Respect
to Consultants and Other Employees . With respect to grants of
Options to Employees or Consultants who are neither directors nor
Officers of the Company, the Plan shall be administered by
(A) the Board or (B) a committee designated by the Board,
which committee shall be constituted in such a manner as to satisfy
the legal requirements relating to the administration of incentive
stock option plans, if any, of Delaware corporate and securities
laws, of the Code, and of any applicable stock exchange (the
“Applicable Laws”). Once appointed, such Committee
shall continue to serve in its designated capacity until otherwise
directed by the Board. From time to time the Board may increase the
size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in
substitution therefor, fill vacancies, however caused, and remove
all members of the Committee and thereafter directly administer the
Plan, all to the extent permitted by the Applicable
Laws.
(c) Powers of the
Administrator . Subject to the provisions of the Plan and, in
the case of a Committee, the specific duties delegated by the Board
to such Committee, and subject to the approval of any relevant
authorities, including the approval, if required, of any stock
exchange upon which the Common Stock is listed, the Administrator
shall have the authority, in its discretion:
(i) to determine the Fair Market
Value of the Common Stock, in accordance with Section 2(k) of
the Plan;
(ii) to select the Consultants and
Employees to whom Options may from time to time be granted
hereunder;
(iii) to determine whether and to
what extent Options are granted hereunder;
(iv) to determine the number of
shares of Common Stock to be covered by each such award granted
hereunder;
(v) to approve forms of agreement
for use under the Plan;
(vi) to determine the terms and
conditions of any award granted hereunder;
(vii) to determine whether and under
what circumstances an Option may be settled in cash under
subsection 9(f) instead of Common Stock; and
(viii) to construe and interpret the
terms of the Plan and awards granted pursuant to the
Plan.
(d) Effect of
Administrator’s Decision . All decisions, determinations
and interpretations of the Administrator shall be final and binding
on all Optionees and any other holders of any Options.
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5. Eligibility .
(a) Nonstatutory Stock Options may
be granted to Employees and Consultants. Incentive Stock Options
may be granted only to Employees. An Employee or Consultant who has
been granted an Option may, if otherwise eligible, be granted
additional Options.
(b) Each Option shall be designated
in the written option agreement as either an Incentive Stock Option
or a Nonstatutory Stock Option. However, notwithstanding such
designations, to the extent that the aggregate Fair Market
Value:
(i) of Shares subject to an
Optionee’s Incentive Stock Options granted by the Company,
any Parent or Subsidiary, which
(ii) become exercisable for the
first time during any calendar year (under all plans of the Company
or any Parent or Subsidiary)
exceeds $100,000, such excess
Options shall be treated as Nonstatutory Stock Options. For
purposes of this Section 5(b), Incentive Stock Options shall
be taken into account in the order in which they were granted, and
the Fair Market Value of the Shares shall be determined as of the
time the Option with respect to such Shares is granted.
(c) The Plan shall not confer upon
any Optionee any right with respect to continuation of employment
or consulting relationship with the Company, no
