exv4w1



 





Exhibit 4.1




Mobile 365, Inc.




2004 Equity Incentive Plan




Adopted: December 10, 2004

Approved By Stockholders: February 21, 2005

Share Reserve Increase Amended Effective as of March 30, 2005

Termination Date: December 10, 2014




1. Purposes.




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



     (b) Available Stock Awards. The purpose of the Plan is to provide a means by which eligible
recipients of Stock Awards may be given an opportunity to benefit from increases in value of the
Common Stock through the granting of the following Stock Awards: (i) Incentive Stock Options, (ii)
Nonstatutory Stock Options, (iii) stock bonuses and (iv) restricted stock.



     (c) General Purpose. The Company, by means of the Plan, seeks to retain the services of the
group of persons eligible to receive Stock Awards, to secure and retain the services of new members
of this group and to provide incentives for such persons to exert maximum efforts for the success
of the Company and its Affiliates.



2. Definitions.




     (a) “Affiliate” means any parent corporation or subsidiary corporation of the Company, whether
now or hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of
the Code.



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



     (c) “Capitalization Adjustment” has the meaning ascribed to that term in Section 11(a).



     (d) “Cause” shall have the meaning set forth in any written employment agreement between a
Participant and the Company or any Affiliate in which the term “Cause” is specifically defined. In
all other instances, “Cause” shall mean (i) Participant’s failure to perform duties consistent with
his or her position; (ii) indictment or conviction of a felony or any other crime involving moral
turpitude or dishonesty; (iii) failure or refusal to comply with Company policies, standards or
regulations; (iv) conduct by the Participant that demonstrates gross unfitness to serve in the
capacity in which the Participant is serving at the time of such conduct; (v) material violation of
any agreement with the Company (including, but not limited to, any proprietary information,
inventions, non-solicitation and/or non-competition agreements with the Company)



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or of any statutory duty to the Company; or (vi) the Participant’s willful dishonesty, fraud,
or misconduct with respect to the business or affairs of the Company.



     (e) “Change in Control” means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:



          (i) any Exchange Act Person becomes the Owner, directly or indirectly, of securities of the
Company representing more than fifty percent (50%) of the combined voting power of the Company’s
then outstanding securities other than by virtue of a merger, consolidation or similar transaction.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur (A) on account of
the acquisition of securities of the Company by any institutional investor, any affiliate thereof
or any other Exchange Act Person that acquires the Company’s securities in a transaction or series
of related transactions that are primarily a private financing transaction for the Company or (B)
solely because the level of Ownership held by any Exchange Act Person (the “Subject Person”)
exceeds the designated percentage threshold of the outstanding voting securities as a result of a
repurchase or other acquisition of voting securities by the Company reducing the number of shares
outstanding, provided that if a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of voting securities by the Company, and after such share
acquisition, the Subject Person becomes the Owner of any additional voting securities that,
assuming the repurchase or other acquisition had not occurred, increases the percentage of the then
outstanding voting securities Owned by the Subject Person over the designated percentage threshold,
then a Change in Control shall be deemed to occur;




          (ii) there is consummated a merger, consolidation or similar transaction involving (directly
or indirectly) the Company if, immediately after the consummation of such merger, consolidation or
similar transaction, the stockholders of the Company immediately prior thereto do not Own, directly
or indirectly, either (A) outstanding voting securities representing more than fifty percent (50%)
of the combined outstanding voting power of the surviving Entity in such merger, consolidation or
similar transaction or (B) more than fifty percent (50%) of the combined outstanding voting power
of the parent of the surviving Entity in such merger, consolidation or similar transaction;




          (iii) there is consummated a sale, lease, license or other disposition of all or substantially
all of the consolidated assets of the Company and its Subsidiaries, other than a sale, lease,
license or other disposition of all or substantially all of the consolidated assets of the Company
and its Subsidiaries to an Entity, more than fifty percent (50%) of the combined voting power of
the voting securities of which are Owned by stockholders of the Company in substantially the same
proportions as their Ownership of the Company immediately prior to such sale, lease, license or
other disposition.




          The term Change in Control shall not include a sale of assets, merger or other transaction
effected exclusively for the purpose of changing the domicile of the Company.




     Notwithstanding the foregoing or any other provision of this Plan, the definition of Change in
Control (or any analogous term) in an individual written agreement between the Company or any
Affiliate and the Participant shall supersede the foregoing definition with



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respect to Stock Awards subject to such agreement (it being understood, however, that if no
definition of Change in Control or any analogous term is set forth in such an individual written
agreement, the foregoing definition shall apply).



     (f) “Code” means the Internal Revenue Code of 1986, as amended.



     (g) “Committee” means a committee of one or more members of the Board appointed by the Board
in accordance with Section 3(c).



     (h) “Common Stock” refers to, collectively or generically (as applicable), the Company’s
Mobile 365, Inc. Common Stock and MW Common Stock. 



     (i) “Company” means Mobile 365, Inc., a Delaware corporation.



     (j) “Consultant” means any person, including an advisor, (i) engaged by the Company or an
Affiliate to render consulting or advisory services and who is compensated for such services or
(ii) serving as a member of the Board of Directors of an Affiliate and who is compensated for such
services. However, the term “Consultant” shall not include Directors who are not compensated by
the Company for their services as Directors, and the payment of a director’s fee by the Company for
services as a Director shall not cause a Director to be considered a “Consultant” for purposes of
the Plan.



     (k) “Continuous Service” means that the Participant’s service with the Company or an
Affiliate, whether as an Employee, Director or Consultant, is not interrupted or terminated. A
change in the capacity in which the Participant renders service to the Company or an Affiliate as
an Employee, Consultant or Director or a change in the entity for which the Participant renders
such service, provided that there is no interruption or termination of the Participant’s service
with the Company or an Affiliate, shall not terminate a Participant’s Continuous Service. For
example, a change in status from an Employee of the Company to a Consultant of an Affiliate or a
Director shall not constitute an interruption of Continuous Service. 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 or in the written
terms of the Participant’s leave of absence.



     (l) “Corporate Transaction” means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:  



          (i) a sale or other disposition of all or substantially all, as determined by the Board in its
discretion, of the consolidated assets of the Company and its Subsidiaries;




          (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




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          (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.




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



     (n) “Disability” means the permanent and total disability of a person within the meaning of
Section 22(e)(3) of the Code.



     (o) “Employee” means any person employed by the Company or an Affiliate. Service as a
Director or payment of a director’s fee by the Company for such service or for service as a member
of the Board of Directors of an Affiliate shall not be sufficient to constitute “employment” by the
Company or an Affiliate.



     (p) “Entity” means a corporation, partnership or other entity.



     (q) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     (r) “Exchange Act Person” means any natural person, Entity or “group” (within the meaning of
Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” shall not include
(A) the Company or any Subsidiary of the Company, (B) any employee benefit plan of the Company or
any Subsidiary of the Company or any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any Subsidiary of the Company, (C) an underwriter
temporarily holding securities pursuant to an offering of such securities, or (D) an Entity Owned,
directly or indirectly, by the stockholders of the Company in substantially the same proportions as
their Ownership of stock of the Company.



     (s) “Fair Market Value” means, as of any date, the value of a Unit determined in good faith by
the Board, and, to the extent applicable, in a manner consistent with Section 260.140.50 of Title
10 of the California Code of Regulations.



     (t) “Good Reason” shall mean (i) reduction of a Participant’s rate of Compensation as in
effect immediately prior to a Change in Control by greater than ten percent (10%) without the
Participant’s prior written consent, except to the extent such reduction is part of a general
reduction of Compensation affecting all or substantially all employees of the Company or affecting
all or substantially all employees at the same level as the Participant; (ii) a material reduction
of a Participant’s job duties, powers or responsibilities to a level below that which would
ordinarily be assigned to an employee at the Participant’s level without his or her prior written
consent (but not merely a change in title or reporting relationships), provided that an assignment
of specific duties and functions of a Participant to someone else as a result of Company growth
and/or reorganization of the business shall not, by itself, constitute “Good Reason” unless in the
aggregate there has been a material reduction of the Participant’s job functions; (iii) a
relocation of the Participant’s principal work site on other than a temporary basis to a location
that is more than fifty (50) miles away from his or her principal work site at the time of the
Change in Control, unless the new location is the same distance or closer to the Participant’s
personal residence; or (iv) a failure or refusal of any successor company to assume



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the obligations of the Company under an agreement with a Participant, or a material breach by
the successor company of any of the material provisions of an agreement with such Participant. The
term “Compensation” as used herein refers to a Participant’s base salary, as well as any target
bonus or commission opportunity that the Participant is eligible to receive upon the attainment of
performance goals or otherwise (although the non-payment of a bonus or commission because of a
failure to achieve the target performance goals shall not be considered “Good Reason”).



     (u) “Incentive Stock Option” means an Option intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code and the regulations promulgated thereunder.



     (v) “Mobile 365, Inc. Common Stock” means the Company’s class of Common Stock, par value
$0.001 per share.



     (w) “Listing Date” means the first date upon which any security of the Company is listed (or
approved for listing) upon notice of issuance on any securities exchange or designated (or approved
for designation) upon notice of issuance as a national market security on an interdealer quotation
system.



     (x) “MW Common Stock” means the Company’s class of MW Common Stock, par value $0.001 per
share.



     (y) “Nonstatutory Stock Option” means an Option not intended to qualify as an Incentive Stock
Option.



     (z) “Officer” means any person designated by the Company as an officer.



     (aa) “Option” means an Incentive Stock Option or a Nonstatutory Stock Option granted pursuant
to the Plan.



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



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



     (dd) “Own,” “Owned,” “Owner,” “Ownership” means that 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.



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



     (ff) “Plan” means this Mobile 365, Inc. 2004 Equity Incentive Plan.



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



     (hh) “Stock Award” means any right granted under the Plan, including an Option, a stock bonus,
or restricted stock.



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



     (jj) “Subsidiary” means, with respect to the Company, (i) any corporation of which more than
fifty percent (50%) of the outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether, at the time, stock
of any other class or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly, Owned by the Company,
and (ii) any partnership in which the Company has a direct or indirect interest (whether in the
form of voting or participation in profits or capital contribution) of more than fifty percent
(50%).



     (kk) “Ten Percent Stockholder” means a person who Owns (or is deemed to Own pursuant to
Section 424(d) of the Code) stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of any of its Affiliates.



     (ll) “Unit” means the designation pursuant to which the number and kind of shares of Common
Stock subject to Stock Awards is established. Subject to adjustment as provided in Section 11(a),
one (1) Unit shall consist of one (1) share of MW Common Stock and one (1) share of Mobile 365,
Inc. Common Stock.



3. Administration.




     (a) Administration by Board. The Board shall administer the Plan unless and until the Board
delegates administration to a Committee, as provided in Section 3(c).



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



          (i) To determine from time to time which of the persons eligible under the Plan shall be
granted Stock Awards; when and how each Stock Award shall be granted; what type or combination of
types of Stock Award shall be granted; the provisions of each Stock Award granted (which need not
be identical), including the time or times when a person shall be permitted to receive Common Stock
pursuant to a Stock Award; and the number of Units with respect to which a Stock Award shall be
granted to each such person.




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




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          (iii) To amend the Plan or a Stock Award as provided in Section 12.




          (iv) To terminate or suspend the Plan as provided in Section 13.




          (v) Generally, to exercise such powers and to perform such acts as the Board deems necessary
or expedient to promote the best interests of the Company and that are not in conflict with the
provisions of the Plan.




     (c) Delegation to Committee. The Board may delegate administration of the Plan to a Committee
or Committees of one (1) or more members of the Board, and the term “Committee” shall apply to any
person or persons to whom such authority has been delegated. If administration is delegated to a
Committee, the Committee shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board, including the power to delegate to a subcommittee any of the
administrative powers the Committee is authorized to exercise (and references in this Plan to the
Board shall thereafter be to the Committee or subcommittee), subject, however, to such resolutions,
not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board.
The Board may abolish the Committee at any time and revest in the Board the administration of the
Plan.



     (d) 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.



4. Shares Subject to the Plan.




     (a) Share Reserve. Subject to the provisions of Section 11(a) relating to Capitalization
Adjustments, the number of shares of MW Common Stock, and the number of shares of Mobile 365, Inc.
Common Stock, that are set aside and reserved for issuance as Units pursuant to Stock Awards under
this Plan shall be 4,045,049 shares of Mobile 365, Inc. Common Stock and 4,045,049 shares of MW
Common Stock, respectively. Additionally, shares of Common Stock that are currently subject to
outstanding stock options or other stock awards under the “MobileWay, Inc. 2000 Stock Option Plan,”
or the “Mobile 365, Inc. 2000 Equity Incentive Plan,” and which are subsequently forfeited or which
otherwise expire or terminate, in whole or part, automatically shall revert to and become available
for issuance under this Plan. The maximum aggregate number of additional shares of MW Common Stock
that may revert to this Plan under this provision is 7,686,958 shares, and the maximum additional
number of shares of Mobile 365, Inc. Common Stock that may revert to this Plan is 7,686,958 shares.
In the event that at any time all of the shares of either MW Common Stock or Mobile 365, Inc.
Common Stock under the Plan’s share reserve are depleted (i.e., are subject to outstanding
Stock Awards), then no further Units may be awarded under the Plan until the Board has authorized
an increase in the authorized number of depleted shares under the Plan.



     (b) Reversion of Shares to the Share Reserve. If any Stock Award shall for any reason expire
or otherwise terminate, in whole or in part, without having been exercised in full, or if any
shares of Common Stock issued to a Participant pursuant to a Stock Award are forfeited back to or
repurchased by the Company because of or in connection with the failure to meet a contingency or
condition required to vest such shares in the Participant, the shares of Common



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Stock that have not been acquired, as well as the shares of Common Stock that have been
forfeited or repurchased under such Stock Award shall revert to and again become available for
issuance under the Plan; provided, however, that subject to the provisions of Section 11(a)
relating to Capitalization Adjustments, the aggregate maximum number of shares of Common Stock that
may be issued as Incentive Stock Options shall be 17,000,000 shares of Common Stock.



     (c) Share Reserve Limitation. To the extent required by Section 260.140.45 of Title 10 of the
California Code of Regulations, the total number of shares of Common Stock issuable upon exercise
of all outstanding Options and the total number of shares of Common Stock provided for under any
stock award or similar plan of the Company shall not exceed the applicable percentage as calculated
in accordance with the conditions and exclusions of Section 260.140.45 of Title 10 of the
California Code of Regulations, based on the shares of Common Stock of the Company that are
outstanding at the time the calculation is made.



5. Eligibility.




     (a) Eligibility for Specific Stock Awards. Incentive Stock Options may be granted only to
Employees. Stock Awards other than Incentive Stock Options may be granted to Employees, Directors
and Consultants.



     (b) Ten Percent Stockholders.




          (i) A Ten Percent Stockholder shall not be granted an Incentive Stock Option unless the
exercise price of such Option is at least one hundred ten percent (110%) of the Fair Market Value
of the Units on the date of grant and the Option is not exercisable after the expiration of five
(5) years from the date of grant.




          (ii) To the extent required by Section 260.140.41 of Title 10 of the California Code of
Regulations, a Ten Percent Stockholder shall not be granted a Nonstatutory Stock Option unless the
exercise price of such Option is at least (i) one hundred ten percent (110%) of the Fair Market
Value of the Units on the date of grant or (ii) such lower percentage of the Fair Market Value of
the Units on the date of grant as is permitted by Section 260.140.41 at the time of the grant of
the Option.




          (iii) To the extent required by Section 260.140.41 of Title 10 of the California Code of
Regulations, a Ten Percent Stockholder shall not be granted a restricted stock award unless the
purchase price of the restricted stock is at least (i) one hundred percent (100%) of the Fair
Market Value of the Units on the date of grant or (ii) such lower percentage of the Fair Market
Value of the Units on the date of grant as is permitted by Section 260.140.42 at the time of the
grant of the restricted stock award.




     (c) Consultants. A Consultant shall not be eligible for the grant of a Stock Award if, at the
time of grant, either the offer or the sale of the Company’s securities to such Consultant is not
exempt under Rule 701 of the Securities Act (“Rule 701”) because of the nature of the services that
the Consultant is providing to the Company, because the Consultant is not a natural person, or
because of some other provision of Rule 701, unless the Company determines that such grant need not
comply with the requirements of Rule 701 and will satisfy another



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exemption under the Securities Act as well as comply with the securities laws of all other
relevant jurisdictions.



6. Option Provisions.




     Each Option shall be in such form and shall contain such terms and conditions as the Board
shall deem appropriate. All Options shall be separately designated Incentive Stock Options or
Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate
certificate or certificates shall be issued for shares of Common Stock purchased on exercise of
each type of Option pursuant to Units. The provisions of separate Options need not be identical,
but each Option shall include (through incorporation of provisions hereof by reference in the
Option or otherwise) the substance of each of the following provisions:



     (a) Designation in Units. Each Option shall designate the number of shares of MW Common
Stock, and Mobile 365, Inc. Common Stock, subject to the Option in “Units,” as defined herein.



     (b) Term. Subject to the provisions of Section 5(b) regarding Ten Percent Stockholders, no
Incentive Stock Option granted shall be exercisable after the expiration of ten (10) years from the
date on which it was granted.



     (c) Exercise Price of an Incentive Stock Option. Subject to the provisions of Section 5(b)
regarding Ten Percent Stockholders, the exercise price of each Incentive Stock Option shall be not
less than one hundred percent (100%) of the Fair Market Value of the Units on the date the Option
is granted. Notwithstanding the foregoing, an Incentive Stock Option may be granted with an
exercise price lower than that set forth in the preceding sentence if such Option is granted
pursuant to an assumption or substitution for another option in a manner satisfying the provisions
of Section 424(a) of the Code.



     (d) Exercise Price of a Nonstatutory Stock Option. The exercise price of each Nonstatutory
Stock Option shall be not less than eighty-five percent (85%) of the Fair Market Value of the Units
on the date the Option is granted. Notwithstanding the foregoing, a Nonstatutory Stock Option may
be granted with an exercise price lower than that set forth in the preceding sentence if such
Option is granted pursuant to an assumption or substitution for another option in a manner
satisfying the provisions of Section 424(a) of the Code.



     (e) Consideration. The purchase price of Common Stock acquired pursuant to an Option shall be
paid, to the extent permitted by applicable statutes and regulations, either (i) in cash at the
time the Option is exercised or (ii) at the discretion of the Board at the time of the grant of the
Option (or subsequently in the case of a Nonstatutory Stock Option) (1) by delivery to the Company
of other Common Stock, (2) according to a deferred payment or other similar arrangement with the
Optionholder or (3) in any other form of legal consideration that may be acceptable to the Board.
Unless otherwise specifically provided in the Option, the purchase price of Common Stock acquired
pursuant to an Option that is paid by delivery to the Company of other Common Stock acquired,
directly or indirectly from the Company, shall be paid only by shares of the Common Stock of the
Company that have been held for more than six (6) months



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(or such longer or shorter period of time required to avoid a charge to earnings for financial
accounting purposes).




     In the case of any deferred payment arrangement, interest shall be compounded at least
annually and shall be charged at the minimum rate of interest necessary to avoid (1) the treatment
as interest, under any applicable provisions of the Code, of any amounts other than amounts stated
to be interest under the deferred payment arrangement and (2) the treatment of the Option as a
variable award for financial accounting purposes.



     (f) Transferability of an Incentive Stock Option. An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and distribution and shall be exercisable
during the lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing,
the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the Optionholder, shall
thereafter be entitled to exercise the Option.



     (g) Transferability of a Nonstatutory Stock Option. A Nonstatutory Stock Option shall not be
transferable except by will or by the laws of a descent or distribution (and to the extent provided
in the Option Agreement at the time of grant of the Option, to such further extent as permitted by
Section 260.140.41(d) of Title 10 of the California Code of Regulations), and shall be exercisable
during the lifetime of the Optionholder only by the Optionholder. If the Nonstatutory Stock Option
does not provide for transferability, then the Nonstatutory Stock Option shall not be transferable
except by will or by the laws of descent and distribution and shall be exercisable during the
lifetime of the Optionholder only by the Optionholder. Notwithstanding the foregoing, the
Optionholder may, by delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the Optionholder, shall
thereafter be entitled to exercise the Option.



     (h) Vesting Generally. The total number of shares of Common Stock subject to an Option may,
but need not, vest and therefore become exercisable in periodic installments that may, but need
not, be equal. The Option may be subject to such other terms and conditions on the time or times
when it may be exercised (which may be based on performance or other criteria) as the Board may
deem appropriate. The vesting provisions of individual Options may vary. The provisions of this
Section 6(h) are subject to any Option provisions governing the minimum number of shares of Common
Stock as to which an Option may be exercised.



     (i) Minimum Vesting. Notwithstanding the foregoing Section 6(h), to the extent that the
following restrictions on vesting are required by Section 260.140.41(f) of Title 10 of the
California Code of Regulations at the time of the grant of the Option, then:



          (i) Options granted to an Employee who is not an Officer, Director or Consultant shall provide
for vesting of the total number of shares of Common Stock at a rate of at least twenty percent
(20%) per year over five (5) years from the date the Option was granted, subject to reasonable
conditions such as continued employment; and




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          (ii) Options granted to Officers, Directors or Consultants may be made fully exercisable,
subject to reasonable conditions such as continued employment, at any time or during any period
established by the Company.




     (j) Termination of Continuous Service. In the event that an Optionholder’s Continuous Service
terminates (other than upon the Optionholder’s death or Disability), the Optionholder may exercise
his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of
the date of termination) but only within such period of time ending on the earlier of (i) the date
three (3) months following the termination of the Optionholder’s Continuous Service (or such longer
or shorter period specified in the Option Agreement, including immediate forfeiture of the Option
upon termination of Continuous Service for any reason, if so provided in the Option Agreement), or
(ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after
termination, the Optionholder does not exercise his or her Option within the time specified in the
Option Agreement, the Option shall terminate.



     (k) Extension of Termination Date. An Optionholder’s Option Agreement may also provide that
if the exercise of the Option following the termination of the Optionholder’s Continuous Service
(other than upon the Optionholder’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 shall terminate on the earlier of (i) the expiration of the
term of the Option set forth in Section 6(b) or (ii) the expiration of a period of three (3) months
after the termination of the Optionholder’s Continuous Service during which the exercise of the
Option would not be in violation of such registration requirements.



     (l) Disability of Optionholder. In the event that an Optionholder’s Continuous Service
terminates as a result of the Optionholder’s Disability, the Optionholder may exercise his or her
Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of
termination), but only within such period of time ending on the earlier of (i) the date twelve (12)
months following such termination (or such longer or shorter period specified in the Option
Agreement, including immediate forfeiture of the Option upon termination of Continuous Service for
any reason, if so provided in the Option Agreement) or (ii) the expiration of the term of the
Option as set forth in the Option Agreement. If, after termination, the Optionholder does not
exercise his or her Option within the time specified herein, the Option shall terminate.



     (m) Death of Optionholder. In the event that (i) an Optionholder’s Continuous Service
terminates as a result of the Optionholder’s death or (ii) the Optionholder dies within the period
(if any) specified in the Option Agreement after the termination of the Optionholder’s Continuous
Service for a reason other than death, then the Option may be exercised (to the extent the
Optionholder was entitled to exercise such Option as of the date of death) by the Optionholder’s
estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a
person designated to exercise the option upon the Optionholder’s death pursuant to Section 6(f) or
6(g), but only within the period ending on the earlier of (1) the date eighteen (18) months
following the date of death (or such longer or shorter period specified in the Option Agreement,
including immediate forfeiture of the Option upon termination of Continuous Service for any reason,
if so provided in the Option Agreement) or (2) the expiration of the term of such Option as set
forth in the Option Agreement. If, after death, the Option is not exercised within the time
specified herein, the Option shall terminate.



11.









 





     (n) Early Exercise. The Option may, but need not, include a provision whereby the
Optionholder may elect at any time before the Optionholder’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. Subject to the “Repurchase Limitation” in Section 10(h), 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. Provided that the
“Repurchase Limitation” in Section 10(h) is not violated, the Company will not exercise its
repurchase option until at least six (6) months (or such longer or shorter period of time required
to avoid a charge to earnings for financial accounting purposes) have elapsed following exercise of
the Option unless the Board otherwise specifically provides in the Option.



     (o) Right of Repurchase. Subject to the “Repurchase Limitation” in Section 10(h), the Option
may, but need not, include a provision whereby the Company may elect, prior to the Listing Date, to
repurchase all or any part of the vested shares of Common Stock acquired by the Optionholder
pursuant to the exercise of the Option. Provided that the “Repurchase Limitation” in Section 10(h)
is not violated, the Company will not exercise its repurchase option until at least six (6) months
(or such longer or shorter period of time required to avoid a charge to earnings for financial
accounting purposes) have elapsed following exercise of the Option unless otherwise specifically
provided in the Option.



     (p) Right of First Refusal. Subject to the “Repurchase Limitation” in Section 10(h), the
Option may, but need not, include a provision whereby the Company may elect, prior to the Listing
Date, to exercise a right of first refusal following receipt of notice from the Optionholder of the
intent to transfer all or any part of the shares of Common Stock received upon the exercise of the
Option. Provided that the “Repurchase Limitation” in Section 10(h) is not violated, the Company
will not exercise its repurchase option until at least six (6) months (or such longer or shorter
period of time required to avoid a charge to earnings for financial accounting purposes) have
elapsed following exercise of the Option unless otherwise specifically provided in the Option.



7. Provisions of Stock Awards other than Options.




     (a) Stock Bonus Awards. Each stock bonus agreement shall be in such form and shall contain
such terms and conditions as the Board shall deem appropriate. The terms and conditions of stock
bonus agreements may change from time to time, and the terms and conditions of separate stock bonus
agreements need not be identical, but each stock bonus agreement shall include (through
incorporation of provisions hereof by reference in the agreement or otherwise) the substance of
each of the following provisions:



          (i) Designation in Units. Each stock bonus shall designate the number of shares of MW Common
Stock, and Mobile 365, Inc. Common Stock, subject to the stock bonus in “Units,” as defined herein.




          (ii) Consideration. A stock bonus may be awarded in consideration for past services actually
rendered to the Company or an Affiliate for its benefit.




12.









 








          (iii) Vesting. Subject to the “Repurchase Limitation” in Section 10(h), shares of Common
Stock awarded under the stock bonus agreement may, but need not, be subject to a share repurchase
option in favor of the Company in accordance with a vesting schedule to be determined by the Board.




          (iv) Termination of Participant’s Continuous Service. Subject to the “Repurchase Limitation”
in Section 10(h), in the event that a Participant’s Continuous Service terminates, the Company may
reacquire any or all of the shares of Common Stock held by the Participant that have not vested as
of the date of termination under the terms of the stock bonus agreement. Provided that the
“Repurchase Limitation” in Section 10(h) is not violated, the Company will not exercise its
repurchase option until at least six (6) months (or such longer or shorter period of time required
to avoid a charge to earnings for financial accounting purposes) have elapsed following receipt of
the stock bonus unless otherwise specifically provided in the stock bonus agreement.




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




     (b) Restricted Stock Awards. Each restricted stock purchase agreement shall be in such form
and shall contain such terms and conditions as the Board shall deem appropriate. The terms and
conditions of the restricted stock purchase agreements may change from time to time, and the terms
and conditions of separate restricted stock purchase agreements need not be identical, but each
restricted stock purchase agreement shall include (through incorporation of provisions hereof by
reference in the agreement or otherwise) the substance of each of the following provisions:



          (i) Designation in Units. Each restricted stock award shall designate the number of shares of
MW Common Stock, and Mobile 365, Inc. Common Stock, subject to the award in “Units,” as defined
herein.




          (ii) Purchase Price. Subject to the provisions of Section 5(b) regarding Ten Percent
Stockholders, at the time of the grant of a restricted stock award, the Board shall determine the
price to be paid by the Participant for each Unit subject to the award.




          (iii) Consideration. At the time of grant of a restricted stock award, the Board will
determine the consideration permissible for the payment of the purchase price of the Units. The
purchase price of Units acquired pursuant to the restricted stock purchase agreement shall be paid
either: (i) in cash at the time of purchase; (ii) at the discretion of the Board, according to a
deferred payment or other similar arrangement with the Participant that shall be evidenced by a
promissory note and appropriate loan documentation, as requested by the Company; or (iii) in any
other form of legal consideration that may be acceptable to the Board in its discretion; provided,
however, that to the extent applicable state corporate laws so require, payment of the Common
Stock’s “par value,” as defined by applicable state statutes, shall be made in cash or in another
form of acceptable consideration and not by deferred payment.




13.









 








          (iv) Vesting. Subject to the “Repurchase Limitation” in Section 10(h), shares acquired under
the restricted stock purchase agreement may, but need not, be subject to a share repurchase option
in favor of the Company in accordance with a vesting schedule to be determined by the Board.




          (v) Termination of Participant’s Continuous Service. Subject to the “Repurchase Limitation”
in Section 10(h), in the event that a Participant’s Continuous Service terminates, the Company may
repurchase or otherwise reacquire any or all of the Units and/or shares of Common Stock held by the
Participant that have not vested as of the date of termination under the terms of the restricted
stock purchase agreement. Provided that the “Repurchase Limitation” in Section 10(h) is not
violated, the Company will not exercise its repurchase option until at least six (6) months (or
such longer or shorter period of time required to avoid a charge to earnings for financial
accounting purposes) have elapsed following the purchase of the restricted stock unless otherwise
specifically provided in the restricted stock purchase agreement.




          (vi) Transferability. Rights to acquire Units and/or shares of Common Stock under the
restricted stock purchase agreement shall be transferable by the Participant only upon such terms
and conditions as are set forth in the restricted stock purchase agreement, as the Board shall
determine in its discretion, so long as the Units or Common Stock awarded under the restricted
stock purchase agreement remains subject to the terms of the restricted stock purchase agreement.




8. 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 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 the 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 the 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 which counsel for the Company deems necessary for the
lawful issuance and sale of Common Stock under the 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.



9. Use of Proceeds from Stock.




     Proceeds from the sale of Common Stock pursuant to Stock Awards shall constitute general funds
of the Company.



14.









 





10. Miscellaneous.




     (a) Acceleration of Exercisability and Vesting. The Board shall have the power to accelerate
the time at which a Stock Award may first be exercised or the time during which a Stock Award or
any part thereof will vest in accordance with the Plan, notwithstanding the provisions in the Stock
Award stating the time at which it may first be exercised or the time during which it will vest.



     (b) 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.



     (c) No Employment or other Service Rights. Nothing in the Plan or any instrument executed or
Stock 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 Stock 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.



     (d) 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 its 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
any Stock Award Agreement.



     (e) 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 (1) the issuance of the shares of Common Stock 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 (2) 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



15.









 







issued under the Plan as such counsel deems necessary or appropriate in order to comply with
applicable securities laws, including, but not limited to, legends restricting the transfer of the
Common Stock.



     (f) Withholding Obligations. To the extent provided by the terms of a Stock Award Agreement,
the Participant may satisfy any federal, state or local tax withholding obligation relating to the
exercise or acquisition of Common Stock under a Stock 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) tendering a cash payment; (ii) authorizing the
Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to
the Participant as a result of the exercise or acquisition of Common Stock under the Stock Award;
provided, however, that no shares of Common Stock are withheld with a value exceeding the minimum
amount of tax required to be withheld by law (or such lower amount as may be necessary to avoid
variable award accounting); or (iii) delivering to the Company owned and unencumbered shares of
Common Stock.



     (g) Information Obligation. To the extent required by Section 260.140.46 of Title 10 of the
California Code of Regulations, the Company shall deliver financial statements to Participants at
least annually. This Section 10(g) shall not apply to key Employees whose duties in connection
with the Company assure them access to equivalent information.



     (h) Repurchase Limitation. The terms of any repurchase option shall be specified in the Stock
Award, and the repurchase price may be either the Fair Market Value of the shares of Common Stock
on the date of termination of Continuous Service or the lower of (i) the Fair Market Value of the
shares of Common Stock on the date of repurchase or (ii) their original purchase price. To the
extent required by Section 260.140.41 and Section 260.140.42 of Title 10 of the California Code of
Regulations at the time a Stock Award is made, any repurchase option contained in a Stock Award
granted to a person who is not an Officer, Director or Consultant shall be upon the terms described
below:



          (i) Fair Market Value. If the repurchase option gives the Company the right to repurchase the
shares of Common Stock upon termination of Continuous Service at not less than the Fair Market
Value of the shares of Common Stock to be purchased on the date of termination of Continuous
Service, then (i) the right to repurchase shall be exercised for cash or cancellation of purchase
money indebtedness for the shares of Common Stock within ninety (90) days of termination of
Continuous Service (or in the case of shares of Common Stock issued upon exercise of Stock Awards
after such date of termination, within ninety (90) days after the date of the exercise) or such
longer period as may be agreed to by the Company and the Participant (for example, for purposes of
satisfying the requirements of Section 1202(c)(3) of the Code regarding “qualified small business
stock”) and (ii) the right terminates when the shares of Common Stock become publicly traded.




     (i) Original Purchase Price. If the repurchase option gives the Company the right to
repurchase the shares of Common Stock upon termination of Continuous Service at the lower of (i)
the Fair Market Value of the shares of Common Stock on the date of repurchase or (ii) their
original purchase price, then (x) the right to repurchase at the original purchase price shall
lapse at the rate of at least twenty percent (20%) of the shares of Common Stock per year over five
(5)



16.









 







years from the date the Stock Award is granted (without respect to the date the Stock Award
was exercised or became exercisable) and (y) the right to repurchase shall be exercised for cash or
cancellation of purchase money indebtedness for the shares of Common Stock within ninety (90) days
of termination of Continuous Service (or in the case of shares of Common Stock issued upon exercise
of Options after such date of termination, within ninety (90) days after the date of the exercise)
or such longer period as may be agreed to by the Company and the Participant (for example, for
purposes of satisfying the requirements of Section 1202(c)(3) of the Code regarding “qualified
small business stock”).



11. Adjustments upon Changes in Stock.




     (a) Capitalization Adjustments. If any change is made in, or other event occurs with respect
to, the Common Stock subject to the Plan or subject to any Stock Award without the receipt of
consideration by the Company (through merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate structure or other
transaction not involving the receipt of consideration by the Company (each a “Capitalization
Adjustment”), the Plan will be appropriately adjusted in the class(es) and maximum number of
securities subject to the Plan pursuant to Sections 4(a) and 4(b) and the maximum number of
securities subject to award to any person pursuant to Section 5(c), and the outstanding Stock
Awards will be appropriately adjusted in the class(es) and number of securities and price per share
of Common Stock subject to such outstanding Stock Awards. The Board shall make such adjustments,
and its determination shall be final, binding and conclusive. (The conversion of any convertible
securities of the Company shall not be treated as a transaction “without receipt of consideration”
by the Company.)



     (b) Dissolution or Liquidation. In the event of a dissolution or liquidation of the Company,
then all outstanding Options shall terminate immediately prior to the completion of such
dissolution or liquidation, and shares of Common Stock subject to the Company’s repurchase option
may be repurchased by the Company notwithstanding the fact that the holder of such stock is still
in Continuous Service.



     (c) Corporate Transaction. In the event of a Corporate Transaction, any surviving corporation
or acquiring corporation may assume or continue any or all Stock Awards outstanding under the Plan
or may substitute similar stock awards for Stock Awards outstanding under the Plan (it being
understood that similar stock awards include, but are not limited to, awards to acquire the same
consideration paid to the stockholders or the Company, as the case may be, 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 such successor’s parent company), if any, in connection with such Corporate
Transaction. In the event that any surviving corporation or acquiring corporation does not assume
or continue any or all such outstanding Stock Awards or substitute similar stock awards for such
outstanding Stock Awards, then with respect to Stock Awards that have not been assumed, continued
or substituted and that are held by Participants whose Continuous Service has not terminated prior
to the effective time of the Corporate Transaction, the vesting of such Stock Awards (and, if
applicable, the time at which such Stock Awards may be exercised) shall (contingent upon the
effectiveness of the Corporate Transaction)



17.









 







be accelerated in full to a date prior to the effective time of such Corporate Transaction as
the Board shall determine (or, if the Board shall not determine such a date, to the date that is
five (5) days prior to the effective time of the Corporate Transaction), the Stock Awards shall
terminate if not exercised (if applicable) at or prior to such effective time, and any
reacquisition or repurchase rights held by the Company with respect to such Stock Awards held by
Participants whose Continuous Service has not terminated shall (contingent upon the effectiveness
of the Corporate Transaction) lapse. With respect to any other Stock Awards outstanding under the
Plan that have not been assumed, continued or substituted, the vesting of such Stock Awards (and,
if applicable, the time at which such Stock Award may be exercised) shall not be accelerated unless
otherwise provided in a written agreement between the Company or any Affiliate and the holder of
such Stock Award, and such Stock Awards shall terminate if not exercised (if applicable) prior to
the effective time of the Corporate Transaction.



     (d) Change in Control—Termination of Continuous Service. A Stock Award held by any
Participant whose Continuous Service has not terminated prior to the effective time of a Change in
Control may be subject to additional acceleration of vesting and exercisability upon or after such
event 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, only the acceleration provided in this Section 11(d) below shall occur.



          (i) If the Continuous Service of a Participant is either involuntarily terminated without
Cause or is voluntarily terminated for a Good Reason on or within twelve (12) months after the date
of a Change in Control, then the vesting of such Participant’s Stock Award at the time of the
Change in Control (and, if applicable, the time during which such Stock Award may be exercised)
shall be accelerated as follows: 50% of any Units subject to a Stock Award that are unvested at
the time of the termination of Continuous Service of such Participant shall immediately become
vested.




          (ii) Any purported voluntarily termination of the Continuous Service of a Participant for Good
Reason shall be communicated by a notice of termination to the Company, and shall state the
specific termination provisions relied upon and set forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination.




          (iii) If any payment or benefit that the Participant would receive under this Plan when
combined with any other payment or benefit he or she receives pursuant to the termination of his
employment with the Company (collectively, the “Payment”) would (i) constitute a “parachute
payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject
to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall
be either (x) the full amount of such Payment or (y) such lesser amount (with cash payments being
reduced before stock compensation) as would result in no portion of the Payment being subject to
the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal,
state and local employment taxes, income taxes, and the Excise Tax, results in the Participant’s
receipt, on an after-tax basis, of the greater amount notwithstanding that all or some portion of
the Payment may be subject to the Excise Tax. Participant shall be solely responsible for the
payment of all personal tax liability that is incurred




18.









 







as a result of the payments and benefits received under this Plan or other applicable
agreements, and Participant will not be reimbursed by the Company for any such payment.




          (iv) All determinations required to be made under Section 11(d)(iii) shall be made by the
Company’s independent public accountants (the “Accountants”). The Company shall use reasonable
efforts to cause its Accountants to provide detailed supporting calculations both to the Company
and the Participant within thirty (30) business days of the date that the Participant’s employment
with the Company terminates or such earlier time as is requested by the Company. For purposes of
making the calculations required by Section 11(d)(iii), the Accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith
determinations concerning the application of the Code. The Company and the Participant shall
furnish to the Accountants such information and documents as the Accountants may reasonably request
in order to make a determination under Section 11(d)(iii). The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations contemplated by this Section.
Any such determination by the Accountants shall be binding upon the Company and Participant.
Within five (5) days after receipt of the calculations, the Company shall pay to or distribute to
or for the benefit of the Participant such amounts as are then due to him or her under this
Agreement.




          (v) As a result of the uncertainty in the application of Section 280G of the Code at the time
of the initial determination by the Accountants hereunder, it is possible that a Payment or
Payments, as the case may be, will have been made by the Company that should not have been made
(“Overpayment”) or that an additional Payment or Payments, as the case may be, which will not have
been made by the Company could have been made (“Underpayment”), in each case, consistent with the
calculations required to be made hereunder. In the event that the Accountants, based upon the
assertion of the deficiency by the Internal Revenue Service against Participant or the Company that
the Accountant believe has a high probability of success, determine that an Overpayment has been
made, any such overpayment paid or distributed by the Company to or for the benefit of Participant
shall be treated for all purposes as a loan ab initio to Participant that he shall repay to the
Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of
the Code; provided, however, that no such loan shall be deemed to have been made and no amount
shall be payable by the Participant to the Company if and to the extent such deemed loan and
payment would not either reduce the amount on which the Participant is subject to tax under Section
1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the
Accountants, based upon controlling precedent or other substantial authority, determine that an
Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for
the benefit of the Participant together with interest at the applicable federal rate provided for
in Section 7872(f)(2) of the Code.




12. Amendment of the Plan and Stock Awards.




     (a) Amendment of Plan. The Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 11(a) relating to Capitalization Adjustments, no amendment
shall be effective unless approved by the stockholders of the Company to the extent stockholder
approval is necessary to satisfy the requirements of Section 422 of the Code.



19.









 





     (b) Stockholder Approval. The Board, in its sole discretion, may submit any other amendment
to the Plan for stockholder approval.



     (c) Contemplated Amendments. It is expressly contemplated that the Board may amend the Plan
in any respect the Board deems necessary or advisable to provide eligible Employees with the
maximum benefits provided or to be provided under the provisions of the Code and the regulations
promulgated thereunder relating to Incentive Stock Options and/or to bring the Plan and/or
Incentive Stock Options granted under it into compliance therewith.



     (d) No Impairment of Rights. Rights under any Stock Award granted before amendment of the
Plan shall not be impaired by any amendment of the Plan unless (i) the Company requests the consent
of the Participant and (ii) the Participant consents in writing.



     (e) Amendment of Stock Awards. The Board at any time, and from time to time, may amend the
terms of any one or more Stock Awards; provided, however, that the rights under any Stock Award
shall not be impaired by any such amendment unless (i) the Company requests the consent of the
Participant and (ii) the Participant consents in writing.



13. Termination or Suspension of the Plan.




     (a) Plan Term. The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate on the day before the tenth (10th) anniversary of the date the
Plan is adopted by the Board or approved by the stockholders of the Company, whichever is earlier.
No Stock Awards may be granted under the Plan while the Plan is suspended or after it is
terminated.



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



14. Effective Date of Plan.




     The Plan shall become effective as determined by the Board, but no Stock Award shall be
exercised (or, in the case of a stock bonus, shall be granted) unless and until the Plan has been
approved by the stockholders of the Company, which approval shall be within twelve (12) months
before or after the date the Plan is adopted by the Board.



15. 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 such state’s conflict of laws rules.




20.









 








Mobile 365, Inc. 2004 Equity Incentive Plan History



1. 2004 Equity Incentive Plan adopted on December 10, 2004 by the Board of Directors. Share reserve
is initially 3,045,049 shares of Mobile 365, Inc. Common Stock, and 3,045,049 shares of MW Common
Stock. Shares of Common Stock and MW Common Stock that are subject to outstanding stock options
under the “MobileWay, Inc. 2000 Stock Option Plan,” or the “InphoMatch 2000 Equity Incentive Plan,”
and which are subsequently forfeited or which otherwise expire or terminate automatically revert to
and become available for issuance under this Plan; up to a maximum of 7,686,958 additional shares
of Common Stock and 7,686,958 shares of MW Common Stock.



2. 2004 Equity Incentive Plan initially approved by the stockholders on February 21, 2005.



3. 2004 Equity Incentive Plan minimum share reserve increase of 1,000,000 shares of Common Stock
and 1,000,000 shares of MW Common Stock to 4,045,049 shares of Common Stock and 4,045,049 shares of
MW Common Stock approved by the Board of Directors on March 30, 2005 and approved by the
stockholders of Mobile 365, Inc. on June 22, 2005.





1.