exv10w5






Exhibit 10.5




BroadSoft, Inc.




Amended and Restated 2009 Equity Incentive Plan



Adopted by the Board of Directors: April 29, 2009

Approved by the Stockholders: April 30, 2009

Amended and Restated by the Board of Directors: [IPO Date]

Approved by the Stockholders: [IPO Date]



Termination Date: April 28, 2019



1. General.




     (a) Eligible Award Recipients. The persons eligible to receive Awards are Employees,
Directors and Consultants.



     (b) Available Awards. This Plan provides for the grant of the following Awards: (i) Incentive
Stock Options, (ii) Nonstatutory Stock Options, (iii) Stock Appreciation Rights, (iv) Restricted
Stock Awards, (v) Restricted Stock Unit Awards, (vi) Performance Stock Awards, (vii) Performance
Cash Awards, and (viii) Other Stock Awards.



     (c) Purpose. The Company, by means of this Plan, seeks to secure and retain the services of
the group of persons eligible to receive Awards as set forth in Section 1(a), to provide incentives
for such persons to exert maximum efforts for the success of the Company and any Affiliate, and to
provide a means by which such eligible recipients may be given an opportunity to benefit from
increases in value of the Common Stock through the granting of Awards.



2. Administration.




     (a) Administration by Board. The Board shall administer this Plan unless and until the Board
delegates administration of this Plan to a Committee or Committees, as provided in Section 2(c).



     (b) Powers of Board. The Board shall have the power, subject to, and within the limitations
of, the express provisions of this Plan:



          (i) To determine from time to time (A) which of the persons eligible under this Plan shall be
granted Awards; (B) when and how each Award shall be granted; (C) what type or combination of types
of Award shall be granted; (D) the provisions of each Award granted (which need not be identical),
including the time or times when a person shall be permitted to receive cash or Common Stock
pursuant to a Stock Award; (E) the number of shares of Common Stock with respect to which a Stock
Award shall be granted to each such person; and (F) the Fair Market Value applicable to a Stock
Award.







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          (ii) To construe and interpret this Plan and Awards granted under it, and to establish, amend
and revoke rules and regulations for administration of this Plan. The Board, in the exercise of
this power, may correct any defect, omission or inconsistency in this Plan or in any Award
Agreement, in a manner and to the extent it shall deem necessary or expedient to make this Plan or
Award fully effective.




          (iii) To settle all controversies regarding this Plan and Awards granted under it.




          (iv) To accelerate the time at which an Award may first be exercised or the time during which
an Award or any part thereof will vest in accordance with this Plan, notwithstanding the provisions
in the Award stating the time at which it may first be exercised or the time during which it will
vest.




          (v) To suspend or terminate this Plan at any time. Suspension or termination of this Plan
shall not impair rights and obligations under any Award granted while this Plan is in effect except
with the written consent of the affected Participant.




          (vi) To amend this Plan in any respect the Board deems necessary, appropriate or desirable,
including, without limitation, relating to Incentive Stock Options and certain nonqualified
deferred compensation under Section 409A of the Code and/or to bring this Plan or Awards granted
under this Plan into compliance therewith, subject to the limitations, if any, of applicable law.
However, except as provided in Section 9(a) relating to Capitalization Adjustments, to the extent
required by applicable law or listing requirements, stockholder approval shall be required for any
amendment of this Plan that either (A) materially increases the number of shares of Common Stock
available for issuance under this Plan, (B) materially expands the class of individuals eligible to
receive Awards under this Plan, (C) materially increases the benefits accruing to Participants
under this Plan or materially reduces the price at which shares of Common Stock may be issued or
purchased under this Plan, (D) materially extends the term of this Plan, or (E) expands the types
of Awards available for issuance under this Plan. Except as provided above, rights under any Award
granted before amendment of this Plan shall not be impaired by any amendment of this Plan unless
(1) the Company requests the consent of the affected Participant, and (2) such Participant consents
in writing.




          (vii) To submit any amendment to this Plan for stockholder approval, including, but not
limited to, amendments to this Plan intended to satisfy the requirements of (A) Section 162(m) of
the Code regarding the exclusion of performance-based compensation from the limit on corporate
deductibility of compensation paid to Covered Employees, (B) Section 422 of the Code regarding
Incentive Stock Options or (C) Rule 16(b)-3.




          (viii) To approve forms of Award Agreements for use under this Plan and to amend the terms of
any one or more Awards, including, but not limited to, amendments to provide terms more favorable
to the Participant than previously provided in the Award Agreement, subject to any specified limits
in this Plan that are not subject to Board discretion; provided, however, that except with respect
to amendments that disqualify or impair the status of an Incentive Stock Option, a Participant’s
rights under any Award shall not be impaired by any such amendment unless (A) the Company requests
the consent of the affected Participant, and






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(B) such Participant consents in writing. Notwithstanding the foregoing, subject to the
limitations of applicable law, if any, the Board may amend the terms of any one or more Awards
without the affected Participant’s consent if necessary to maintain the qualified status of the
Award as an Incentive Stock Option or to bring the Award into compliance with Section 409A of the
Code.




          (ix) 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 this Plan or Awards.




          (x) To adopt such procedures and sub-plans as are necessary or appropriate to permit
participation in this Plan by Employees, Directors or Consultants who are foreign nationals or
employed outside the United States.




          (xi) To effect, at any time and from time to time, with the consent of any adversely affected
Participant, (A) the reduction of the exercise price or strike price of any outstanding Option or
SAR under this Plan, (B) the cancellation of any outstanding Option or SAR under this Plan and the
grant in substitution therefor of (1) a new Option or SAR under this Plan or another equity plan of
the Company covering the same or a different number of shares of Common Stock, (2) a Restricted
Stock Award, (3) a Restricted Stock Unit Award, (4) an Other Stock Award, (5) cash and/or (6) other
valuable consideration (as determined by the Board, in its sole discretion), or (C) any other
action that is treated as a repricing under generally accepted accounting principles.




     (c) Delegation to Committee.



          (i) General. The Board may delegate some or all of the administration of this Plan to a
Committee or Committees. If administration of this Plan is delegated to a Committee, the Committee
shall have, in connection with the administration of this Plan, the powers theretofore possessed by
the Board that have been delegated to the Committee, including the power to delegate to a
subcommittee of the Committee 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 this
Plan, as may be adopted from time to time by the Board. The Committee may, at any time, abolish
the subcommittee and/or revest in the Committee any powers delegated to the subcommittee. The
Board may retain the authority to concurrently administer this Plan with the Committee and may, at
any time, revest in the Board some or all of the powers previously delegated.




          (ii) Section 162(m) and Rule 16b-3 Compliance. The Committee may consist solely of two or
more Outside Directors, in accordance with Section 162(m) of the Code, and solely of two or more
Non-Employee Directors, in accordance with Rule 16b-3.




     (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 Options (and, to the extent



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permitted by applicable law, other Stock Awards) and the terms thereof, and (ii) determine the
number of shares of Common Stock to be subject to such Stock Awards granted to such Officers and
Employees; 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.




     (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 Awards granted (or not granted) pursuant
to this Plan or any disputes or claims relating to or arising out of this Plan shall be fully,
finally and exclusively resolved by binding and confidential arbitration conducted pursuant to the
Commercial Arbitration Rules of the American Arbitration Association in the location of the
Company’s principal headquarters. The Company shall pay the costs of filing the arbitration and
the arbitrator’s fees and expenses (but each side shall be responsible for paying their own
attorneys’ fees and expenses). By accepting an Award, Participants and the Company waive their
respective rights to have any such disputes or claims tried by a judge or jury.



3. Shares Subject to this Plan.




     (a) Share Reserve. Subject to Section 9(a) relating to Capitalization Adjustments, and to the
provisions in this Section 3(a) relating to automatic increases on January 1st of each
year, the aggregate number of shares of Common Stock that may be issued pursuant to Stock Awards
from and after the Original Effective Date shall not exceed 22,664,350 shares (which includes (i)
354,298 shares of Common Stock that were previously held in reserve under the Company’s 1999 Stock
Incentive Plan, but which were unused, and which have been transferred to this Plan, (ii) the
additional shares of Common Stock that may revert to this Plan pursuant to this Section 3(a) and
(iii) an additional 2,000,000 shares which were added to this Plan in connection with the amendment
and restatement of this Plan, effective on the IPO Date). If any outstanding stock option granted
under the Company’s 1999 Stock Incentive Plan should for any reason expire or otherwise terminate,
in whole or in part, without having been exercised in full, the shares of Common Stock that are not
acquired under any such stock option shall revert to, and become available for issuance under, this
Plan. If stock that has been issued to a Participant under the 1999 Stock Incentive Plan pursuant
to unrestricted or restricted stock awards is subsequently forfeited or reacquired by the Company
as a result of the failure to vest or satisfy any other contingency, such stock also shall revert
to this Plan and be available for future issuance hereunder. The maximum aggregate number of
additional shares of Common Stock that may revert to this Plan under these provisions is 18,310,052
shares. In addition, the number of shares of Common Stock available for issuance under this Plan
shall automatically increase on January 1st of each year for a period of nine (9) years
commencing on January 1, 2011 and ending on (and including) January 1, 2019, in an amount equal to
the lesser of (A) four and one-half percent (4.5%) of the total number of shares of Common Stock
outstanding on December 31st of the preceding calendar year, or (B) seven million five
hundred thousand (7,500,000)



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shares. Notwithstanding the foregoing, the Board may act, prior to the first day of any
calendar year, to provide that there shall be no increase in the share reserve for such calendar
year or that the increase in the share reserve for such calendar year shall be a lesser number of
shares of Common Stock than would otherwise occur pursuant to the preceding sentence. For clarity,
the limitation in this Section 3(a) is a limitation in the number of shares of Common Stock that
may be issued pursuant to this Plan. Accordingly, this Section 3(a) does not limit the granting of
Stock Awards except as provided in Section 7(a). Shares may be issued in connection with a merger
or acquisition as permitted by NASDAQ Listing Rule 5635(c) or, if applicable, NYSE Listed Company
Manual Section 303A.08, AMEX Company Guide Section 711 or other applicable rule, and such issuance
shall not reduce the number of shares available for issuance under this Plan.




     (b) Reversion of Shares to the Share Reserve. If any shares of Common Stock issued pursuant
to a Stock Award are forfeited back to the Company because of the failure to meet a contingency or
condition required to vest such shares in the Participant, then the shares which are forfeited
shall revert to and again become available for issuance under this Plan. Also, any shares
reacquired by the Company pursuant to Section 8(g) or as consideration for the exercise of an
Option shall again become available for issuance under this Plan. Furthermore, if a Stock Award
(i) expires or otherwise terminates without having been exercised in full or (ii) is settled in
cash (i.e., the holder of the Stock Award receives cash rather than stock), such expiration,
termination or settlement shall not reduce (or otherwise offset) the number of shares of Common
Stock that may be issued pursuant to this Plan. Notwithstanding the provisions of this Section
3(b), any such shares shall not be subsequently issued pursuant to the exercise of Incentive Stock
Options.



     (c) Incentive Stock Option Limit. Notwithstanding anything to the contrary in this Section 3
and subject to the provisions of Section 9(a) relating to Capitalization Adjustments, the aggregate
maximum number of shares of Common Stock that may be issued pursuant to the exercise of Incentive
Stock Options shall be 90,000,000 shares of Common Stock.



     (d) Section 162(m) Limitation on Annual Grants. Subject to the provisions of Section 9(a)
relating to Capitalization Adjustments, at such time as the Company may be subject to the
applicable provisions of Section 162(m) of the Code, a maximum of 16,500,000 shares of Common Stock
subject to Options, Stock Appreciation Rights and Other Stock Awards whose value is determined by
reference to an increase over an exercise or strike price of at least one hundred percent (100%) of
the Fair Market Value on the date any such Stock Award is granted may be granted to any Participant
during any calendar year. Notwithstanding the foregoing, if any additional Options, Stock
Appreciation Rights or Other Stock Awards whose value is determined by reference to an increase
over an exercise or strike price of at least one hundred percent (100%) of the Fair Market Value on
the date the Stock Award is granted to any Participant during any calendar year, compensation
attributable to the exercise of such additional Stock Awards shall not satisfy the requirements to
be considered “qualified performance-based compensation” under Section 162(m) of the Code unless
such additional Stock Award is approved by the Company’s stockholders.



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     (e) Source of Shares. The stock issuable under this Plan shall be shares of authorized but
unissued or reacquired Common Stock, including shares repurchased by the Company on the open market
or otherwise.



4. Eligibility.




     (a) Eligibility for Specific Stock Awards. Incentive Stock Options may be granted only to
employees of the Company or a “parent corporation” or “subsidiary corporation” thereof (as such
terms are defined in Sections 424(e) and (f) of the Code). Stock Awards other than Incentive Stock
Options may be granted to Employees, Directors and Consultants; provided, however, Nonstatutory
Stock Options and SARs may not be granted to Employees, Directors and Consultants who are providing
Continuous Service only to any “parent” of the Company, as such term is defined in Rule 405
promulgated under the Securities Act, unless the stock underlying such Stock Awards is treated as
“service recipient stock” under Section 409A of the Code because the Stock Awards are granted
pursuant to a corporate transaction (such as a spin off transaction) or unless such Stock Awards
comply with the distribution requirements of Section 409A of the Code.



     (b) Ten Percent Stockholders. 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 on the date of grant and the Option is not exercisable after the expiration
of five (5) years from the date of grant.



5. Provisions relating to Options and Stock Appreciation Rights.




     Each Option or SAR 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. If an Option is not specifically designated as an Incentive Stock Option, then
the Option shall be a Nonstatutory Stock Option. The provisions of separate Options or SARs need
not be identical; provided, however, that each Option Agreement or Stock Appreciation Right
Agreement shall conform to (through incorporation of provisions hereof by reference in the
applicable Award Agreement or otherwise) the substance of each of the following provisions:



     (a) Term. Subject to the provisions of Section 4(b) regarding Ten Percent Stockholders, no
Option or SAR shall be exercisable after the expiration of ten (10) years from the date of its
grant or such shorter period specified in the Award Agreement.



     (b) Exercise Price. Subject to the provisions of Section 4(b) regarding Ten Percent
Stockholders, the exercise price (or strike price) of each Option or SAR shall be not less than one
hundred percent (100%) of the Fair Market Value of the Common Stock subject to the Option or SAR on
the date the Option or SAR is granted. Notwithstanding the foregoing, an Option or SAR may be
granted with an exercise price (or strike price) lower than one hundred percent (100%) of the Fair
Market Value of the Common Stock subject to the Option or SAR if such



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Option or SAR is granted pursuant to an assumption of or substitution for another option or
stock appreciation right pursuant to a Corporate Transaction and in a manner consistent with the
provisions of Sections 409A and, if applicable, 424(a) of the Code. Each SAR will be denominated
in shares of Common Stock equivalents.




     (c) Purchase Price for Options. 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 permitted
methods of payment are as follows:



          (i) by cash, check, bank draft or money order payable to the Company;




          (ii) pursuant to a program developed under Regulation T as promulgated by the Federal Reserve
Board that, prior to the issuance of the stock subject to the Option, 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;




          (iii) by delivery to the Company (either by actual delivery or attestation) of shares of
Common Stock;




          (iv) if the option is a Nonstatutory Stock Option, by a “net exercise” arrangement pursuant to
which the Company will reduce the number of shares of Common Stock issuable 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, that shares of Common
Stock will no longer be subject to an Option and will not be exercisable thereafter to the extent
that (A) shares issuable upon exercise are reduced 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.




     (d) Exercise and Payment of a SAR. To exercise any outstanding Stock Appreciation Right, the
Participant must provide written notice of exercise to the Company in compliance with the
provisions of the Stock Appreciation Right Agreement evidencing such Stock Appreciation Right. The
appreciation distribution payable on the exercise of a Stock Appreciation Right will be not greater
than an amount equal to the excess of (i) the aggregate Fair Market Value (on the date of the
exercise of the Stock Appreciation Right) of a number of shares of Common Stock equal to the number
of Common Stock equivalents in which the Participant is vested under such Stock Appreciation Right,
and with respect to which the Participant is exercising the Stock Appreciation Right on such date,
over (ii) the strike price, if



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any, that will be determined by the Board at the time of grant of the Stock Appreciation
Right. The appreciation distribution in respect to a Stock Appreciation Right may be paid in
Common Stock, in cash, in any combination of the two or in any other form of consideration, as
determined by the Board and contained in the Stock Appreciation Right Agreement evidencing such
Stock Appreciation Right.




     (e) Transferability of Options and SARs. The Board may, in its sole discretion, impose such
limitations on the transferability of Options and SARs as the Board shall determine. In the
absence of such a determination by the Board to the contrary, the following restrictions on the
transferability of Options and SARs shall apply:



          (i) Restrictions on Transfer. An Option or SAR shall not be transferable except by will or by
the laws of descent and distribution and shall be exercisable during the lifetime of the
Participant only by the Participant; provided, however, that the Board may, in its sole discretion,
permit transfer of the Option or SAR in a manner that is not prohibited by applicable tax and
securities laws upon the Participant’s request. Except as explicitly provided herein, neither an
Option nor a SAR may be transferred for consideration.




          (ii) Domestic Relations Orders. Notwithstanding the foregoing, an Option or SAR may be
transferred pursuant to a domestic relations order; provided, however, that if an Option is an
Incentive Stock Option, such Option shall be deemed to be a Nonstatutory Stock Option as a result
of such transfer.




          (iii) Beneficiary Designation. Notwithstanding the foregoing, the Participant may, by
delivering written notice to the Company, in a form provided by or otherwise satisfactory to the
Company, designate a third party who, in the event of the death of the Participant, shall
thereafter be entitled to exercise the Option or SAR and receive the Common Stock or other
consideration resulting from such exercise. In the absence of such a designation, the executor or
administrator of the Participant’s estate shall be entitled to exercise the Option or SAR and
receive the Common Stock or other consideration resulting from such exercise.




     (f) Vesting Generally. The total number of shares of Common Stock subject to an Option or SAR
may vest and therefore become exercisable in periodic installments that may or may not be equal.
The Option or SAR may be subject to such other terms and conditions on the time or times when it
may or may not be exercised (which may be based on the satisfaction of Performance Goals or other
criteria) as the Board may deem appropriate. The vesting provisions of individual Options or SARs
may vary. The provisions of this Section 5(f) are subject to any Option or SAR provisions
governing the minimum number of shares of Common Stock as to which an Option or SAR may be
exercised.



     (g) Termination of Continuous Service. Except as otherwise provided in the applicable Award
Agreement or other agreement between the Participant and the Company, if a Participant’s Continuous
Service terminates (other than upon the Participant’s death or Disability), the Participant may
exercise his or her Option or SAR (to the extent that the Participant was entitled to exercise such
Award as of the date of termination of Continuous Service) but only within such period of time
ending on the earlier of (i) the date three (3) months



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following the termination of the Participant’s Continuous Service (or such longer or shorter
period specified in the applicable Award Agreement), or (ii) the expiration of the term of the
Option or SAR as set forth in the Award Agreement. If, after termination of Continuous Service,
the Participant does not exercise his or her Option or SAR within the time specified herein or in
the Award Agreement (as applicable), the Option or SAR shall terminate.




     (h) Extension of Termination Date. If the exercise of an Option or SAR following the
termination of the Participant’s Continuous Service (other than upon the Participant’s death or
Disability) would be prohibited at any time solely because the issuance of shares of Common Stock
would violate the registration requirements under the Securities Act, then the Option or SAR shall
terminate on the earlier of (i) the expiration of a total period of three (3) months (that need not
be consecutive) after the termination of the Participant’s Continuous Service during which the
exercise of the Option or SAR would not be in violation of such registration requirements, or (ii)
the expiration of the term of the Option or SAR as set forth in the applicable Award Agreement. In
addition, unless otherwise provided in a Participant’s Award Agreement, if the sale of any Common
Stock received upon exercise of an Option or SAR following the termination of the Participant’s
Continuous Service would violate the Company’s insider trading policy, then the Option or SAR shall
terminate on the earlier of (i) the expiration of a period equal to the applicable post-termination
exercise period after the termination of the Participant’s Continuous Service during which the sale
of the Common Stock received upon exercise of the Option or SAR would not be in violation of the
Company’s insider trading policy, or (ii) the expiration of the term of the Option or SAR as set
forth in the applicable Award Agreement.



     (i) Disability of Participant. Except as otherwise provided in the applicable Award Agreement
or other agreement between the Participant and the Company, if a Participant’s Continuous Service
terminates as a result of the Participant’s Disability, the Participant may exercise his or her
Option or SAR (to the extent that the Participant was entitled to exercise such Option or SAR as of
the date of termination of Continuous Service), but only within such period of time ending on the
earlier of (i) the date twelve (12) months following such termination of Continuous Service (or
such longer or shorter period specified in the Award Agreement), or (ii) the expiration of the term
of the Option or SAR as set forth in the Award Agreement. If, after termination of Continuous
Service, the Participant does not exercise his or her Option or SAR within the time specified
herein or in the Award Agreement (as applicable), the Option or SAR (as applicable) shall
terminate.



     (j) Death of Participant. Except as otherwise provided in the applicable Award Agreement or
other agreement between the Participant and the Company, if (i) a Participant’s Continuous Service
terminates as a result of the Participant’s death, or (ii) the Participant dies within the period
(if any) specified in the Award Agreement for exercisability after the termination of the
Participant’s Continuous Service (for a reason other than death), then the Option or SAR may be
exercised (to the extent the Participant was entitled to exercise such Option or SAR as of the date
of death) by the Participant’s estate, by a person who acquired the right to exercise the Option or
SAR by bequest or inheritance or by a person designated to exercise the Option or SAR upon the
Participant’s death, but only within the period ending on the earlier of (A) the date eighteen (18)
months following the date of death (or such longer or shorter period specified in the Award
Agreement), or (B) the expiration of the term of such



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Option or SAR as set forth in the Award Agreement. If, after the Participant’s death, the
Option or SAR is not exercised within the time specified herein or in the Award Agreement (as
applicable), the Option or SAR shall terminate.




     (k) Non-Exempt Employees. No Option or SAR, whether or not vested, granted to an Employee who
is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as amended, shall be
first exercisable for any shares of Common Stock until at least six (6) months following the date
of grant of the Option or SAR. Notwithstanding the foregoing, consistent with the provisions of the
Worker Economic Opportunity Act, (i) in the event of the Participant’s death or Disability, (ii)
upon a Corporate Transaction in which such Option or SAR is not assumed, continued, or substituted,
(iii) upon a Change in Control, or (iv) upon the Participant’s retirement (as such term may be
defined in the Participant’s Award Agreement or in another applicable agreement or in accordance
with the Company’s then current employment policies and guidelines), any such vested Options and
SARs may be exercised earlier than six (6) months following the date of grant. The foregoing
provision is intended to operate so that any income derived by a non-exempt employee in connection
with the exercise or vesting of an Option or SAR will be exempt from his or her regular rate of
pay.



     (l) Early Exercise. With respect to an Option granted prior to the IPO Date, the Option may,
but need not, include a provision whereby the Participant may elect at any time before the
Participant’s Continuous Service terminates to exercise the Option as to any part or all of the
shares of Common Stock subject to the Option prior to the full vesting of the Option. Any unvested
shares of Common Stock so purchased may be subject to a repurchase option in favor of the Company
or to any other restriction the Board determines to be appropriate. The Company shall not be
required to exercise its repurchase option until at least six (6) months (or such longer or shorter
period of time required to avoid classification of the Option as a liability for financial
accounting purposes) have elapsed following exercise of the Option unless the Board otherwise
specifically provides in the Option Agreement.



6. Provisions of Stock Awards other than Options and SARs.




     (a) Restricted Stock Awards. Each Restricted Stock Award Agreement shall be in such form and
shall contain such terms and conditions as the Board shall deem appropriate. To the extent
consistent with the Company’s Bylaws, at the Board’s election, shares of Common Stock may be (x)
held in book entry form subject to the Company’s instructions until any restrictions relating to
the Restricted Stock Award lapse; or (y) evidenced by a certificate, which certificate shall be
held in such form and manner as determined by the Board. The terms and conditions of Restricted
Stock Award Agreements may change from time to time, and the terms and conditions of separate
Restricted Stock Award Agreements need not be identical; provided, however, that each Restricted
Stock Award Agreement shall conform to (through incorporation of the provisions hereof by reference
in the agreement or otherwise) the substance of each of the following provisions:



          (i) Consideration. A Restricted Stock Award may be awarded in consideration for (A) cash,
check, bank draft or money order payable to the Company, (B) past services to the Company or an
Affiliate, or (C) any other form of legal consideration (including






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future services) that may be acceptable to the Board, in its sole discretion, and permissible
under applicable law.




          (ii) Vesting. Shares of Common Stock awarded under the Restricted Stock Award Agreement may
be subject to forfeiture to the Company in accordance with a vesting schedule to be determined by
the Board.




          (iii) Termination of Participant’s Continuous Service. If a Participant’s Continuous Service
terminates, the Company may receive through a forfeiture condition or a repurchase right any or all
of the shares of Common Stock held by the Participant that have not vested as of the date of
termination of Continuous Service under the terms of the Restricted Stock Award Agreement.




          (iv) Transferability. Rights to acquire shares of Common Stock under the Restricted Stock
Award Agreement shall be transferable by the Participant only upon such terms and conditions as are
set forth in the Restricted Stock Award Agreement, as the Board shall determine in its sole
discretion, so long as Common Stock awarded under the Restricted Stock Award Agreement remains
subject to the terms of the Restricted Stock Award Agreement.




          (v) Dividends. A Restricted Stock Award Agreement may provide that any dividends paid on
Restricted Stock will be subject to the same vesting and forfeiture restrictions as apply to the
shares subject to the Restricted Stock Award to which they relate.




     (b) Restricted Stock Unit Awards. Each Restricted Stock Unit Award Agreement shall be in such
form and shall contain such terms and conditions as the Board shall deem appropriate. The terms
and conditions of Restricted Stock Unit Award Agreements may change from time to time, and the
terms and conditions of separate Restricted Stock Unit Award Agreements need not be identical;
provided, however, that each Restricted Stock Unit Award Agreement shall conform to (through
incorporation of the provisions hereof by reference in the Agreement or otherwise) the substance of
each of the following provisions:



          (i) Consideration. At the time of grant of a Restricted Stock Unit Award, the Board will
determine the consideration, if any, to be paid by the Participant upon delivery of each share of
Common Stock subject to the Restricted Stock Unit Award. The consideration to be paid (if any) by
the Participant for each share of Common Stock subject to a Restricted Stock Unit Award may be paid
in any form of legal consideration that may be acceptable to the Board in its sole discretion and
permissible under applicable law.




          (ii) Vesting. At the time of the grant of a Restricted Stock Unit Award, the Board may impose
such restrictions on or conditions to the vesting of the Restricted Stock Unit Award as it, in its
sole discretion, deems appropriate.




          (iii) Payment. A Restricted Stock Unit Award may be settled by the delivery of shares of
Common Stock, their cash equivalent, any combination thereof or in any other form of consideration,
as determined by the Board and contained in the Restricted Stock Unit Award Agreement.







11









 








          (iv) Additional Restrictions. At the time of the grant of a Restricted Stock Unit Award, the
Board, as it deems appropriate, may impose such restrictions or conditions that delay the delivery
of the shares of Common Stock (or their cash equivalent) subject to a Restricted Stock Unit Award
to a time after the vesting of such Restricted Stock Unit Award.




          (v) Dividend Equivalents. Dividend equivalents may be credited in respect of shares of Common
Stock covered by a Restricted Stock Unit Award, as determined by the Board and contained in the
Restricted Stock Unit Award Agreement. At the sole discretion of the Board, such dividend
equivalents may be converted into additional shares of Common Stock covered by the Restricted Stock
Unit Award in such manner as determined by the Board. Any additional shares covered by the
Restricted Stock Unit Award credited by reason of such dividend equivalents will be subject to all
the terms and conditions of the underlying Restricted Stock Unit Award Agreement to which they
relate.




          (vi) Termination of Participant’s Continuous Service. Except as otherwise provided in the
applicable Restricted Stock Unit Award Agreement, such portion of the Restricted Stock Unit Award
that has not vested will be forfeited upon the Participant’s termination of Continuous Service.




     (c) Performance Awards.



          (i) Performance Stock Awards. A Performance Stock Award is a Stock Award that may vest or may
be exercised contingent upon the attainment during a Performance Period of certain Performance
Goals. A Performance Stock Award may, but need not, require the completion of a specified period
of Continuous Service. The length of any Performance Period, the Performance Goals to be achieved
during the Performance Period, and the measure of whether and to what degree such Performance Goals
have been attained shall be conclusively determined by the Committee, in its sole discretion. The
maximum number of shares covered by an Award that may be granted to any Participant in a calendar
year attributable to Stock Awards described in this Section 6(c)(i) (whether the grant, vesting or
exercise is contingent upon the attainment during a Performance Period of the Performance Goals)
shall not exceed 16,500,000 shares of Common Stock. The Board may provide for or, subject to such
terms and conditions as the Board may specify, may permit a Participant to elect for, the payment
of any Performance Stock Award to be deferred to a specified date or event. In addition, to the
extent permitted by applicable law and the applicable Award Agreement, the Board may determine that
cash may be used in payment of Performance Stock Awards.




          (ii) Performance Cash Awards. A Performance Cash Award is a cash award that may be paid
contingent upon the attainment during a Performance Period of certain Performance Goals. A
Performance Cash Award may also require the completion of a specified period of Continuous Service.
At the time of grant of a Performance Cash Award, the length of any Performance Period, the
Performance Goals to be achieved during the Performance Period, and the measure of whether and to
what degree such Performance Goals have been attained shall be conclusively determined by the
Committee, in its sole discretion. In any calendar year, the Committee may not grant a Performance
Cash Award that has a maximum value that may be paid to any Participant in excess of $1,000,000.
The Board may provide for or, subject to such






12









 







terms and conditions as the Board may specify, may permit a Participant to elect for, the
payment of any Performance Cash Award to be deferred to a specified date or event. The Board may
specify the form of payment of Performance Cash Awards, which may be cash or other property, or may
provide for a Participant to have the option for his or her Performance Cash Award, or such portion
thereof as the Board may specify, to be paid in whole or in part in cash or other property.




          (iii) Board Discretion. The Committee retains the discretion to reduce or eliminate the
compensation or economic benefit due upon attainment of Performance Goals and to define the manner
of calculating the Performance Criteria it selects to use for a Performance Period.




          (iv) Section 162(m) Compliance. Unless otherwise permitted in compliance with the
requirements of Section 162(m) of the Code with respect to an Award intended to qualify as
“performance-based compensation” thereunder, the Committee shall establish the Performance Goals
applicable to, and the formula for calculating the amount payable under, the Award no later than
the earlier of (a) the date ninety (90) days after the commencement of the applicable Performance
Period, or (b) the date on which twenty-five percent (25%) of the Performance Period has elapsed,
and in either event at a time when the achievement of the applicable Performance Goals remains
substantially uncertain. Prior to the payment of any compensation under an Award intended to
qualify as “performance-based compensation” under Section 162(m) of the Code, the Committee shall
certify the extent to which any Performance Goals and any other material terms under such Award
have been satisfied (other than in cases where such relate solely to the increase in the value of
the Common Stock). Notwithstanding satisfaction of any completion of any Performance Goals, to the
extent specified at the time of grant of an Award to “covered employees” within the meaning of
Section 162(m) of the Code, the number of shares of Common Stock, Options, cash or other benefits
granted, issued, retainable and/or vested under an Award on account of satisfaction of such
Performance Goals may be reduced by the Committee on the basis of such further considerations as
the Committee, in its sole discretion, shall determine.




     (d) Other Stock Awards. Other forms of Stock Awards valued in whole or in part by reference
to, or otherwise based on, Common Stock, including the appreciation in value thereof (e.g., options
or stock rights with an exercise price or strike price less than 100% of the Fair Market Value of
the Common Stock at the time of grant) may be granted either alone or in addition to Stock Awards
provided for under Section 5 and the preceding provisions of this Section 6. Subject to the
provisions of this Plan, the Board shall have sole and complete authority to determine the persons
to whom and the time or times at which such Other Stock Awards will be granted, the number of
shares of Common Stock (or the cash equivalent thereof) to be granted pursuant to such Other Stock
Awards and all other terms and conditions of such Other Stock Awards.



13









 





7. Covenants of the Company.




     (a) Availability of Shares. During the terms of the Stock Awards, the Company shall keep
available at all times the number of shares of Common Stock reasonably required to satisfy such
Stock Awards.



     (b) Securities Law Compliance. The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over this Plan such authority as may be required to grant
Stock Awards and to issue and sell shares of Common Stock upon exercise of the Stock Awards;
provided, however, that this undertaking shall not require the Company to register under the
Securities Act this Plan, any Stock Award or any Common Stock issued or issuable pursuant to any
such Stock Award. If, after reasonable efforts, the Company is unable to obtain from any such
regulatory commission or agency the authority that counsel for the Company deems necessary for the
lawful issuance and sale of Common Stock under this Plan, the Company shall be relieved from any
liability for failure to issue and sell Common Stock upon exercise of such Stock Awards unless and
until such authority is obtained. A Participant shall not be eligible for the grant of a Stock
Award or the subsequent issuance of Common Stock pursuant to the Stock Award if such grant or
issuance would be in violation of any applicable securities law.



     (c) No Obligation to Notify or Minimize Taxes. The Company shall have no duty or obligation
to any holder of an Award to advise such holder as to the time or manner of exercising such Stock
Award. Furthermore, the Company shall have no duty or obligation to warn or otherwise advise such
holder of a pending termination or expiration of a Stock Award or a possible period in which the
Stock Award may not be exercised. The Company has no duty or obligation to minimize the tax
consequences of a Stock Award to the holder of such Stock Award.



8. Miscellaneous.




     (a) Use of Proceeds from Sales of Common Stock. Proceeds from the sale of shares of Common
Stock pursuant to Stock Awards shall constitute general funds of the Company.



     (b) Corporate Action Constituting Grant of Stock Awards. Corporate action constituting a
grant by the Company of a Stock Award to any Participant shall be deemed completed as of the date
of such corporate action, unless otherwise determined by the Board, regardless of when the
instrument, certificate or letter evidencing the Stock Award is communicated to, or actually
received or accepted by, the Participant.



     (c) Stockholder Rights. No Participant shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares of Common Stock subject to such Stock Award
unless and until such Participant has satisfied all requirements for exercise of the Stock Award
pursuant to its terms and the Participant shall not be deemed to be a stockholder of record until
the issuance of the Common Stock pursuant to such exercise has been entered into the books and
records of the Company.



14









 





     (d) No Employment or Other Service Rights. Nothing in this Plan, any Award Agreement or any
other instrument executed thereunder or in connection with any Award granted pursuant thereto shall
confer upon any Participant any right to continue to serve the Company or an Affiliate in the
capacity in effect at the time the Award was granted or shall affect the right of the Company or an
Affiliate to terminate (i) the employment of an Employee with or without notice and with or without
cause, (ii) the service of a Consultant pursuant to the terms of such Consultant’s agreement with
the Company or an Affiliate, or (iii) the service of a Director pursuant to the Bylaws of the
Company or an Affiliate, and any applicable provisions of the corporate law of the state in which
the Company or the Affiliate is incorporated, as the case may be.



     (e) Incentive Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market
Value (determined at the time of grant) of Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by any Optionholder during any calendar year (under all
plans of the Company and any Affiliates) exceeds one hundred thousand dollars ($100,000), the
Options or portions thereof that exceed such limit (according to the order in which they were
granted) shall be treated as Nonstatutory Stock Options, notwithstanding any contrary provision of
the applicable Option Agreement(s).



     (f) Investment Assurances. The Company may require a Participant, as a condition of
exercising or acquiring Common Stock under any Stock Award, (i) to give written assurances
satisfactory to the Company as to the Participant’s knowledge and experience in financial and
business matters and/or to employ a purchaser representative reasonably satisfactory to the Company
who is knowledgeable and experienced in financial and business matters and that he or she is
capable of evaluating, alone or together with the purchaser representative, the merits and risks of
exercising the Stock Award; and (ii) to give written assurances satisfactory to the Company stating
that the Participant is acquiring Common Stock subject to the Stock Award for the Participant’s own
account and not with any present intention of selling or otherwise distributing the Common Stock.
The foregoing requirements, and any assurances given pursuant to such requirements, shall be
inoperative if (A) the issuance of the shares upon the exercise or acquisition of Common Stock
under the Stock Award has been registered under a then currently effective registration statement
under the Securities Act, or (B) as to any particular requirement, a determination is made by
counsel for the Company that such requirement need not be met in the circumstances under the then
applicable securities laws. The Company may, upon advice of counsel to the Company, place legends
on stock certificates issued under this Plan as such counsel deems necessary, appropriate or
desirable to comply with applicable securities laws, including, but not limited to, legends
restricting the transfer of the Common Stock.



     (g) Withholding Obligations. Unless prohibited by the terms of an Award Agreement, the
Company may, in its sole discretion, satisfy any federal, state or local tax withholding obligation
relating to an Award by any of the following means (in addition to the Company’s right to withhold
from any compensation paid to the Participant by the Company) or by a combination of such means:
(i) causing the Participant to tender a cash payment; (ii) withholding shares of Common Stock from
the shares of Common Stock issued or otherwise issuable to the Participant in connection with the
Stock Award; provided, however, that no shares of Common Stock are withheld with a value exceeding
the minimum amount of tax required to



15









 




be withheld by law (or such lower amount as may be necessary to avoid classification of the
Stock Award as a liability for financial accounting purposes); (iii) withholding payment from any
amounts otherwise payable to the Participant; (iv) withholding cash from an Award settled in cash;
or (v) by such other method as may be set forth in the Award Agreement.




     (h) Electronic Delivery. Any reference herein to a “written” agreement or document shall
include any agreement or document delivered electronically or posted on the Company’s intranet (or
other shared electronic medium controlled by the Company to which the Participant has access).



     (i) Deferrals. To the extent permitted by applicable law, the Board, in its sole discretion,
may determine that the delivery of Common Stock or the payment of cash, upon the exercise, vesting
or settlement of all or a portion of any Award may be deferred and may establish programs and
procedures for deferral elections to be made by Participants. Deferrals by Participants will be
made in accordance with Section 409A of the Code. Consistent with Section 409A of the Code, the
Board may provide for distributions while a Participant is still an employee or otherwise providing
services to the Company. The Board is authorized to make deferrals of Awards and determine when,
and in what annual percentages, Participants may receive payments, including lump sum payments,
following the Participant’s termination of Continuous Service, and implement such other terms and
conditions consistent with the provisions of this Plan and in accordance with applicable law.



     (j) Compliance with Section 409A. To the extent that the Board determines that any Award
granted hereunder is subject to Section 409A of the Code, the Award Agreement evidencing such Award
shall incorporate the terms and conditions necessary to avoid the consequences specified in Section
409A(a)(1) of the Code. To the extent applicable, this Plan and Award Agreements shall be
interpreted in accordance with Section 409A of the Code. Notwithstanding anything to the contrary
in this Plan (and unless the Award Agreement specifically provides otherwise), if the shares of
Common Stock are publicly traded and a Participant holding an Award that constitutes “deferred
compensation” under Section 409A of the Code is a “specified employee” for purposes of Section 409A
of the Code, no distribution or payment of any amount shall be made upon a “separation from
service” before a date that is six (6) months following the date of such Participant’s “separation
from service” (as defined in Section 409A of the Code without regard to alternative definitions
thereunder) or, if earlier, the date of the Participant’s death.



9. Adjustments upon Changes in Common Stock; Other Corporate Events.




     (a) Capitalization Adjustments.



          (i) Reverse Stock Split. In the event of a Reverse Stock Split, the maximum number of
securities subject to this Plan pursuant to Section 3(a) (including the number of securities that
may be added to the shares available for issuance each year and the maximum aggregate number of
securities that may become available for issuance under this Plan pursuant to the annual evergreen
clause in Section 3(a)), the maximum number of securities that may be issued pursuant to the
exercise of Incentive Stock Options pursuant to Section 3(c), the






16









 







maximum number of securities that may be awarded to any person pursuant to Sections 3(d) and
6(c)(i) and the number of securities and price per share of stock subject to outstanding Stock
Awards shall be automatically adjusted to take into account the Reverse Stock Split.




          (ii) Capitalization Adjustments. In the event of a Capitalization Adjustment except for the
Reverse Stock Split, the Board shall appropriately and proportionately adjust: (A) the class(es)
and maximum number of securities subject to this Plan pursuant to Section 3(a), (B) the class(es)
and maximum number of securities that may be issued pursuant to the exercise of Incentive Stock
Options pursuant to Section 3(c), (C) the class(es) and maximum number of securities that may be
awarded to any person pursuant to Sections 3(d) and 6(c)(i), and (iv) the class(es) and number of
securities and price per share of stock subject to outstanding Stock Awards. The Board shall make
such adjustments, and its determination shall be final, binding and conclusive.




     (b) Dissolution or Liquidation. Except as otherwise provided in the Stock Award Agreement, in
the event of a dissolution or liquidation of the Company, all outstanding Stock Awards (other than
Stock Awards consisting of vested and outstanding shares of Common Stock not subject to a
forfeiture condition or the Company’s right of repurchase) shall terminate immediately prior to the
completion of such dissolution or liquidation, and the shares of Common Stock subject to the
Company’s repurchase rights or subject to a forfeiture condition may be repurchased by or
reacquired by the Company notwithstanding the fact that the holder of such Stock Award is providing
Continuous Service; provided, however, that the Board may, in its sole discretion, cause some or
all Stock Awards to become fully vested, exercisable and/or no longer subject to repurchase or
forfeiture (to the extent such Stock Awards have not previously expired or terminated) before the
dissolution or liquidation is completed but contingent on its completion.



     (c) Corporate Transaction. The following provisions shall apply to Stock Awards in the event
of a Corporate Transaction unless otherwise provided in the instrument evidencing the Stock Award
or any other written agreement between the Company or any Affiliate and the Participant or unless
otherwise expressly provided by the Board at the time of grant of a Stock Award. If there is a
Corporate Transaction, then the Board, or the board of directors of any corporation or entity
assuming the obligations of the Company, shall take any one or more of the following actions as to
outstanding Stock Awards in its sole and absolute discretion:



          (i) Stock Awards May Be Continued, Assumed or Substituted. Any surviving corporation or
acquiring corporation (or the surviving or acquiring corporation’s parent company) may assume or
continue any or all Stock Awards outstanding under this Plan or may substitute similar stock awards
for Stock Awards outstanding under this Plan (including but not limited to, awards to acquire the
same consideration paid to the stockholders of the Company pursuant to the Corporate Transaction),
and any reacquisition or repurchase rights held by the Company in respect of Common Stock issued
pursuant to Stock Awards may be assigned by the Company to the successor of the Company (or the
successor’s parent company, if any), in connection with such Corporate Transaction. A surviving
corporation or acquiring corporation (or its parent) may choose to assume or continue only a
portion of a Stock Award or substitute a similar stock award for only a portion of a Stock Award,
or may assume, continue




17









 







or substitute some Stock Awards and not others. The terms of any assumption, continuation or
substitution shall be set by the Board in accordance with the provisions of Section 2.




          (ii) Accelerated Vesting of Stock Awards. The vesting of any or all Stock Awards (and, with
respect to Options and Stock Appreciation Rights, the time at which such Stock Awards may be
exercised) may be accelerated in full or in part to a date on or prior to the effective time of
such Corporate Transaction (contingent upon the effectiveness of the Corporate Transaction) as the
Board shall determine, and the Board may further determine that any reacquisition or repurchase
rights held by the Company with respect to a Stock Award shall lapse in full or in part as of a
date on or prior to the effective time of such Corporate Transaction (contingent upon the
effectiveness of the Corporate Transaction). Any Stock Award whose vesting has been fully
accelerated under this provision may be terminated by the Board in its discretion if such Award is
not exercised, if applicable, on or prior to the effective time of the Corporate Transaction.




          (iii) Termination of Stock Awards. The Board may provide that all Stock Awards (including
vested Awards that are not exercised) shall immediately terminate without the payment of any
consideration and shall be of no further force or effect as of the effective time of a Corporate
Transaction that is also a Change in Control.




          (iv) Payment for Stock Awards in Lieu of Exercise. The Board may provide that the holder of a
Stock Award may not exercise such Stock Award but will receive a payment, in such form as may be
determined by the Board, equal in value to the excess, if any, of (A) the value of the property the
holder of the Stock Award would have received upon the exercise of the Stock Award (including, at
the discretion of the Board, any unvested portion of such Stock Award), over (B) any exercise price
payable by such holder in connection with such exercise. The Board may provide that part or all of
such payment may be delayed in recognition of escrows, earn outs or other contingencies or hold
backs applicable to the holders of Common Stock as part of the Corporate Transaction.



The Board need not take the same action or actions with respect to all Stock Awards or portions
thereof or with respect to all Participants. The Board may take different actions with respect to
the vested and unvested portions of a Stock Award.




     (d) Change in Control. A Stock Award may be subject to additional acceleration of vesting and
exercisability upon or after a Change in Control as may be provided in the Stock Award Agreement
for such Stock Award or as may be provided in any other written agreement between the Company or
any Affiliate and the Participant, but in the absence of such provision, no such acceleration shall
occur.



10. Termination or Suspension of this Plan.




     (a) Plan Term. The Board may suspend or terminate this Plan at any time. Unless terminated
sooner by the Board, this Plan shall automatically terminate on April 28, 2019, which is the day
before the tenth (10th) anniversary of the Original Effective Date. No Awards may be granted under
this Plan while this Plan is suspended or after it is terminated.



18









 





     (b) No Impairment of Rights. Suspension or termination of this Plan shall not impair rights
and obligations under any Award granted while this Plan is in effect except with the written
consent of the affected Participant.



11. Effective Date of Plan.




     This Plan initially became effective on the Original Effective Date. Prior to the initial
public offering of the Common Stock, the Board amended and restated this Plan and the stockholders
approved the amendment and restatement. The Amended and Restated 2009 Equity Incentive Plan shall
become effective on the IPO Date.



12. Choice of Law.




     The law of the State of Delaware shall govern all questions concerning the construction,
validity and interpretation of this Plan, without regard to that state’s conflict of laws rules.



13. Definitions. As used in this Plan, the following definitions shall apply to the
capitalized terms indicated below:




     (a) “Affiliate” means, at the time of determination, any “parent” or “subsidiary” of the
Company, as such terms are defined in Rule 405 promulgated under the Securities Act. The Board
shall have the authority to determine the time or times at which “parent” or “subsidiary” status is
determined within the foregoing definition.



     (b) “Award” means a Stock Award or a Performance Cash Award.



     (c) “Award Agreement” means a written agreement between the Company and a Participant
evidencing the terms and conditions of an Award.



     (d) “Board” means the Board of Directors of the Company.



     (e) “Capitalization Adjustment” means any change that is made in, or other events that occur
with respect to, the Common Stock subject to this Plan or subject to any Stock Award after the
Original Effective Date without the receipt of consideration by the Company through merger,
consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in
property other than cash, large nonrecurring cash dividend, stock split, liquidating dividend,
combination of shares, exchange of shares, change in corporate structure or any similar equity
restructuring transaction, as that term is used in Statement of Financial Accounting Standards No.
123 (revised). Notwithstanding the foregoing, the conversion of any convertible securities of the
Company shall not be treated as a Capitalization Adjustment.



     (f) “Cause” shall have the meaning ascribed to such term in any then effective employment
agreement or other letter between the Participant and the Company, or if no such agreement or
letter exists, or if the term is not defined, shall mean with respect to a Participant, the
occurrence of any of the following events: (i) such Participant’s commission of any felony or any
crime involving fraud, embezzlement, theft, dishonesty or other criminal act under the laws of the
United States or any state thereof; or (ii) such Participant’s insubordination or willful



19









 




failure to comply with the reasonable material directions of an officer of the Company or the
continued willful neglect or refusal by Participant to perform such Participant’s duties or
responsibilities (unless such duties or responsibilities are significantly and adversely changed
and Participant has objected to such changes in a writing presented to an officer of the Company).
The determination that a termination of the Participant’s Continuous Service is either for Cause or
without Cause shall be made by the Company in its sole discretion. Any determination by the
Company that the Continuous Service of a Participant was terminated by reason of dismissal without
Cause for the purposes of outstanding Stock Awards held by such Participant shall have no effect
upon any determination of the rights or obligations of the Company or such Participant for any
other purpose.




     (g) “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 an investor, any affiliate thereof or any other
Exchange Act Person that acquires the Company’s securities in a transaction or series of related
transactions the primary purpose of which is to obtain financing for the Company through the
issuance of equity securities (which includes an offering of Common Stock to the general public
through a registration statement filed with the Securities and Exchange Commission), 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 subsection (B)) 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 and, 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, in each
case in substantially the same proportions as their Ownership of the outstanding voting securities
of the Company immediately prior to such transaction;




20









 








          (iii) there is consummated a sale, lease, exclusive 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 proportions as their Ownership of the outstanding voting securities of the Company
immediately prior to such sale, lease, license or other disposition; or




          (iv) individuals who, on the IPO Date, are members of the Board (the “Incumbent Board”) cease
for any reason to constitute at least a majority of the members of the Board; provided, however,
that if the appointment or election (or nomination for election) of any new Board member was
approved or recommended by a majority vote of the members of the Incumbent Board then still in
office, such new member shall, for purposes of this Plan, be considered as a member of the
Incumbent Board.




          Notwithstanding the foregoing definition or any other provision of this Plan, (A) 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, and (B) 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; provided, 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.




     (h) “Code” means the Internal Revenue Code of 1986, as amended, including any applicable
regulations and guidance thereunder.



     (i) “Committee” means a committee of two (2) or more Directors to whom authority has been
delegated by the Board in accordance with Section 2(c).



     (j) “Common Stock” means the common stock of the Company.



     (k) “Company” means BroadSoft, Inc., a Delaware corporation.



     (l) “Consultant” means any person, including an advisor, who is (i) engaged by the Company or
an Affiliate to render consulting or advisory services and is compensated for such services, or
(ii) serving as a member of the board of directors of an Affiliate and is compensated for such
services. However, service solely as a Director, or payment of a fee for such service, shall not
cause a Director to be considered a “Consultant” for purposes of this Plan. Notwithstanding the
foregoing, a person is treated as a Consultant under this Plan only if a Form S-8 Registration
Statement under the Securities Act is available to register either the offer or the sale of the
Company’s securities to such person.



     (m) “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



21









 




an Employee, Director, or Consultant 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, shall not terminate a Participant’s Continuous Service;
provided, however, if the Entity for which a Participant is rendering service ceases to qualify as
an Affiliate, as determined by the Board in its sole discretion, such Participant’s Continuous
Service shall be considered to have terminated on the date such Entity ceases to qualify as an
Affiliate. For example, a change in status from an employee of the Company to a consultant of an
Affiliate or to a Director shall not constitute an interruption of Continuous Service. To the
extent permitted by law, 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 in the
case of any leave of absence approved by that party, including sick leave, military leave or any
other personal leave. Notwithstanding the foregoing, a leave of absence shall be treated as
Continuous Service for purposes of vesting in a Stock Award only to such extent as may be provided
in the Company’s leave of absence policy, in the written terms of any leave of absence agreement or
policy applicable to the Participant, or as otherwise required by law.




     (n) “Corporate Transaction” means the consummation, 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
sole discretion, of the consolidated assets of the Company and its Subsidiaries;




          (ii) a sale or other disposition of at least fifty percent (50%) 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.




     (o) “Covered Employee” shall have the meaning provided in Section 162(m)(3) of the Code.



     (p) “Director” means a member of the Board.



     (q) “Disability” means, with respect to a Participant, the inability of such Participant to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or that has lasted or can be expected to
last for a continuous period of not less than twelve (12) months, as provided in Sections 22(e)(3)
and 409A(a)(2)(c)(i) of the Code, and shall be determined by the Board on the basis of such medical
evidence as the Board deems warranted under the circumstances.



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     (r) “Employee” means any person employed by the Company or an Affiliate. However, service
solely as a Director, or payment of a fee for such services, shall not cause a Director to be
considered an “Employee” for purposes of this Plan.



     (s) “Entity” means a corporation, partnership, limited liability company or other entity.



     (t) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



     (u) “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
(i) the Company or any Subsidiary of the Company, (ii) 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, (iii) an underwriter
temporarily holding securities pursuant to a registered public offering of such securities, (iv) 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; or (v) any natural person, Entity or
“group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) that, as of the Original
Effective Date of this Plan as set forth in Section 11, is 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.



     (v) “Fair Market Value” means, as of any date, the value of the Common Stock determined as
follows:



          (i) If the Common Stock is listed on any established stock exchange or traded on any
established market, the Fair Market Value of a share of Common Stock, unless otherwise determined
by the Board, shall be the closing sales price for such stock as quoted on such exchange or market
(or the exchange or market with the greatest volume of trading in the Common Stock) on the date of
determination, as reported in a source the Board deems reliable;




          (ii) Unless otherwise provided by the Board, if there is no closing sales price for the Common
Stock on the date of determination, then the Fair Market Value shall be the closing selling price
on the last preceding date for which such quotation exists; or




          (iii) In the absence of such markets for the Common Stock, the Fair Market Value shall be
determined by the Board in good faith and in a manner that complies with Sections 409A and 422 of
the Code.




     (w) “Incentive Stock Option” means an option granted pursuant to Section 5 of this Plan that
is intended to be, and qualifies as, an “incentive stock option” within the meaning of Section 422
of the Code.



     (x) “IPO Date” means the date of the underwriting agreement between the Company and the
underwriter(s) managing the initial public offering of the Common Stock, pursuant to which the
Common Stock is priced for the initial public offering.



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     (y) “Non-Employee Director” means a Director who either (i) is not a current employee or
officer of the Company or an Affiliate, does not receive compensation, either directly or
indirectly, from the Company or an Affiliate for services rendered as a consultant or in any
capacity other than as a Director (except for an amount as to which disclosure would not be
required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act
(“Regulation S-K”)), does not possess an interest in any other transaction for which disclosure
would be required under Item 404(a) of Regulation S-K, and is not engaged in a business
relationship for which disclosure would be required pursuant to Item 404(b) of Regulation S-K; or
(ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3.



     (z) “Nonstatutory Stock Option” means any option granted pursuant to Section 5 of this Plan
that does not qualify as an Incentive Stock Option.



     (aa) “Officer” means a person who is an officer of the Company within the meaning of Section
16 of the Exchange Act.



     (bb) “Option” means an Incentive Stock Option or a Nonstatutory Stock Option to purchase
shares of Common Stock granted pursuant to this Plan.



     (cc) “Option Agreement” means a written agreement between the Company and an Optionholder
evidencing the terms and conditions of an Option grant. Each Option Agreement shall be subject to
the terms and conditions of this Plan.



     (dd) “Optionholder” means a person to whom an Option is granted pursuant to this Plan or, if
applicable, such other person who holds an outstanding Option.



     (ee) “Original Effective Date” means April 29, 2009, which is the date this Plan was initially
approved by the Board and became effective.



     (ff) “Other Stock Award” means an award based in whole or in part by reference to the Common
Stock that is granted pursuant to the terms and conditions of Section 6(d).



     (gg) “Other Stock Award Agreement” means a written agreement between the Company and a holder
of an Other Stock Award evidencing the terms and conditions of an Other Stock Award grant. Each
Other Stock Award Agreement shall be subject to the terms and conditions of this Plan.



     (hh) “Outside Director” means a Director who either (i) is not a current employee of the
Company or an “affiliated corporation” (within the meaning of Treasury Regulations promulgated
under Section 162(m) of the Code), is not a former employee of the Company or an “affiliated
corporation” who receives compensation for prior services (other than benefits under a
tax-qualified retirement plan) during the taxable year, has not been an officer of the Company or
an “affiliated corporation,” and does not receive remuneration from the Company or an “affiliated
corporation,” either directly or indirectly, in any capacity other than as a Director, or (ii) is
otherwise considered an “outside director” for purposes of Section 162(m) of the Code.



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     (ii) “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.



     (jj) “Participant” means a person to whom an Award is granted pursuant to this Plan or, if
applicable, such other person who holds an outstanding Stock Award.



     (kk) “Performance Cash Award” means an award of cash granted pursuant to the terms and
conditions of Section 6(c)(ii).



     (ll) “Performance Criteria” means the one or more criteria that the Committee shall select for
purposes of establishing the Performance Goals for a Performance Period. The Performance Criteria
that shall be used to establish such Performance Goals may be based on any one of, or combination
of, the following as determined by the Committee: (i) earnings (including earnings per share and
net earnings); (ii) earnings before interest and taxes; (iii) earnings before interest, taxes and
depreciation; (iv) earnings before interest, taxes, depreciation and amortization; (v) total
stockholder return; (vi) return on equity or average stockholder’s equity; (vii) return on assets,
investment, or capital employed; (viii) stock price; (ix) margin (including gross margin); (x)
income (before or after taxes); (xi) operating income; (xii) operating income after taxes; (xiii)
pre-tax profit; (xiv) operating cash flow; (xv) sales or revenue (including deferred revenue)
targets; (xvi) increases in revenue or product revenue (including deferred revenue and deferred
product revenue); (xvii) expenses and cost reduction goals; (xviii) improvement in or attainment of
working capital levels; (xix) economic value added (or an equivalent metric); (xx) market share;
(xxi) cash and cash equivalents; (xxii) cash flow; (xxiii) cash flow per share; (xxiv) share price
performance; (xxv) debt reduction; (xxvi) implementation or completion of projects or processes;
(xxvii) customer satisfaction; (xxviii) stockholders’ equity; (xxix) capital expenditures; (xxx)
debt levels; (xxxi) operating profit or net operating profit; (xxxii) workforce diversity; (xxxiii)
growth of net income or operating income; (xxxiv) billings; and (xxxv) to the extent that an Award
is not intended to comply with Section 162(m) of the Code, other measures of performance selected
by the Board or the Committee.



     (mm) “Performance Goals” means, for a Performance Period, the one or more goals established by
the Committee for the Performance Period based upon the Performance Criteria. Performance Goals
may be based on a Company-wide basis, with respect to one or more business units, divisions,
Affiliates, or business segments, and in either absolute terms or relative to the performance of
one or more comparable companies or the performance of one or more relevant indices. Unless
specified otherwise by the Committee (i) in the Award Agreement at the time the Award is granted or
(ii) in such other document setting forth the Performance Goals at the time the Performance Goals
are established, the Committee shall appropriately make adjustments in the method of calculating
the attainment of Performance Goals for a Performance Period as follows: (1) to exclude
restructuring and/or other nonrecurring charges; (2) to exclude exchange rate effects, as
applicable, for non-U.S. dollar denominated Performance Goals; (3) to exclude the effects of
changes to generally accepted accounting principles; (4) to exclude the



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effects of any statutory adjustments to corporate tax rates; and (5) to exclude the effects of
any “extraordinary items” as determined under generally accepted accounting principles.




     (nn) “Performance Period” means the period of time selected by the Committee over which the
attainment of one or more Performance Goals will be measured for the purpose of determining a
Participant’s right to and the payment of a Stock Award or a Performance Cash Award. Performance
Periods may be of varying and overlapping duration, at the sole discretion of the Committee.



     (oo) “Performance Stock Award” means a Stock Award granted under the terms and conditions of
Section 6(c)(i).



     (pp) “Plan” means this BroadSoft, Inc. Amended and Restated 2009 Equity Incentive Plan.



     (qq) “Restricted Stock Award” means an award of shares of Common Stock that is granted
pursuant to the terms and conditions of Section 6(a).



     (rr) “Restricted Stock Award Agreement” means a written agreement between the Company and a
holder of a Restricted Stock Award evidencing the terms and conditions of a Restricted Stock Award.
Each Restricted Stock Award Agreement shall be subject to the terms and conditions of this Plan.



     (ss) “Restricted Stock Unit Award” means a right to receive shares of Common Stock that is
granted pursuant to the terms and conditions of Section 6(b).



     (tt) “Restricted Stock Unit Award Agreement” means a written agreement between the Company and
a holder of a Restricted Stock Unit Award evidencing the terms and conditions of a Restricted Stock
Unit Award grant. Each Restricted Stock Unit Award Agreement shall be subject to the terms and
conditions of this Plan.



     (uu) “Reverse Stock Split” means the reverse stock split of the Company’s capital stock to be
effected in connection with the Company’s initial public offering of the Common Stock, which will
become effective after June 1, 2010 and prior to the IPO Date.



     (vv) “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule
16b-3, as in effect from time to time.



     (ww) “Securities Act” means the Securities Act of 1933, as amended.



     (xx) “Stock Appreciation Right” or “SAR” means a right to receive the appreciation on Common
Stock that is granted pursuant to the terms and conditions of Section 5.



     (yy) “Stock Appreciation Right Agreement” means a written agreement between the Company and a
holder of a Stock Appreciation Right evidencing the terms and conditions of a Stock Appreciation
Right grant. Each Stock Appreciation Right Agreement shall be subject to the terms and conditions
of this Plan.



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     (zz) “Stock Award” means any right to receive Common Stock granted under this Plan, including
an Incentive Stock Option, a Nonstatutory Stock Option, a Restricted Stock Award, a Restricted
Stock Unit Award, a Stock Appreciation Right, a Performance Stock Award or any Other Stock Award.



     (aaa) “Stock Award Agreement” means a written agreement between the Company and a Participant
evidencing the terms and conditions of a Stock Award grant. Each Stock Award Agreement shall be
subject to the terms and conditions of this Plan.



     (bbb) “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, limited liability company or other entity 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%) .



     (ccc) “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 any Affiliate.




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