Blue Sky Software Corporation 1995 Stock Option Plan



 BLUE SKY SOFTWARE CORPORATION 
  
 1995 STOCK OPTION PLAN 
  
 ADOPTED JUNE 2, 1995 
  
 AMENDED AS OF NOVEMBER 5, 1996 
  

	1.	PURPOSES. 

  
 (a) The purpose of the Plan is to provide a means by which selected Employees and Directors of and Consultants to the Company, and its Affiliates, may be
given an opportunity to purchase stock of the Company. 
  
 (b) The
Company, by means of the Plan, seeks to retain the services of persons who are now Employees or Directors of or Consultants to the Company or its Affiliates, to secure and retain the services of new Employees, Directors and Consultants, and to
provide incentives for such persons to exert maximum efforts for the success of the Company and its Affiliates. 
  
 (c) The Company intends that the Options issued under the Plan shall be Nonstatutory Stock Options. All Options shall be designated Nonstatutory Stock
Options at the time of grant, and in such form as issued pursuant to Section 6. 
  

	2.	DEFINITIONS. 

  
 (a) “Affiliate” means any parent corporation or subsidiary corporation, 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) “Code” means the Internal Revenue Code of 1986, as amended. 
  
 (d) “Committee” means a Committee appointed by the Board in accordance with subsection 3(c) of the Plan. 
  
 (e) “Company” means Blue Sky Software Corporation, a Delaware corporation. 
  
 (f) “Consultant” means any person, including an advisor, engaged by the Company or an Affiliate to render
consulting services and who is compensated for such services, provided that the term “Consultant” shall not include Directors who are paid 







 only a director’s fee by the Company or who are not compensated by the Company for their services as Directors.

  
 (g) “Continuous Status as an Employee, Director or
Consultant” means the employment or relationship as a Director or Consultant is not interrupted or terminated. The Board, in its sole discretion, may determine whether Continuous Status as an Employee, Director or Consultant shall be
considered interrupted in the case of: (i) any leave of absence approved by the Board, including sick leave, military leave, or any other personal leave; or (ii) transfers between locations of the Company or between the Company, Affiliates or their
successors. 
  
 (h) “Director” means a member of
the Board. 
  
 (i) “Disinterested Person” means a
Director: (i) who either (A) was not during the one year prior to service as an administrator of the Plan granted or awarded equity securities pursuant to the Plan or any other plan of the Company or any Affiliate entitling the participants therein
to acquire equity securities of the Company or any Affiliate except as permitted by Rule 16b-3(c)(2)(i); or (B) is otherwise considered to be a “disinterested person” in accordance with Rule 16b-3(c)(2)(i), or any other applicable rules,
regulations or interpretations of the Securities and Exchange Commission; and may also mean in the discretion of the Board (ii) effective upon the first meeting of stockholders of the Company at which directors are to be elected on or after January
1, 1996, an Outside Director. 
  
 (j) “Employee”
means any person, including Officers and Directors, employed by the Company or any Affiliate of the Company. Neither service as a Director nor payment of a director’s fee by the Company shall be sufficient to constitute
“employment” by the Company. 
  
 (k)
“Exchange Act” means the Securities Exchange Act of 1934, as amended. 
  
 (l) “Fair Market Value” means, as of any date, the value of the common stock of the Company determined as follows and in each case in a manner consistent with Section 260.140.50 of Title 10 of the
California Code of Regulations: 
  
 (i) If the
common stock is listed on any established stock exchange or a national market system, including without limitation the National Market System of the National Association of Securities Dealers, Inc. Automated Quotation (“NASDAQ”) System,
the Fair Market Value of a share of common stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such system or exchange (or the exchange with the greatest volume of trading in common
stock) on the last market trading day prior to the day of determination, as reported in the Wall Street Journal or such other source as the Board deems reliable; 
  

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 (ii) If the common stock is quoted on the NASDAQ System (but not on the National Market
System thereof) or is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a share of common stock shall be the mean between the bid and asked prices for the common stock on the last market
trading day prior to the day of determination, as reported in the Wall Street Journal or such other source as the Board deems reliable; 
  
 (iii) In the absence of an established market for the common stock, the Fair Market Value shall be determined in good faith by the Board.

  
 (m) “Nonstatutory Stock Option” means an
Option that is not intended to qualify and will not be treated as an incentive stock option within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended. 
  
 (n) “Officer” means a person who is an officer of the Company within the meaning of Section 16 of the
Exchange Act and the rules and regulations promulgated thereunder. 
  
 (o) “Option” means a stock option granted pursuant to the Plan. 
  
 (p) “Option Agreement” means a written agreement between the Company and an Optionee evidencing the terms and conditions of an individual Option grant. Each Option Agreement shall be subject to the
terms and conditions of the Plan. 
  
 (q) “Optionee”
means an Employee, Director or Consultant who holds an outstanding Option. 
  
 (r) “Outside Director” means a Director who either (i) is not a current employee of the Company or an “affiliated corporation” (within the meaning of the Treasury regulations promulgated
under Section 162(m) of the Code), is not a former employee of the Company or an “affiliated corporation” receiving compensation for prior services (other than benefits under a tax qualified pension plan), was not an officer of the Company
or an “affiliated corporation” at any time, and is not currently receiving direct or indirect remuneration from the Company or an “affiliated corporation” for services 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. 
  
 (s) “Plan” means this 1995 Stock Option Plan. 
  
 (t) “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised
with respect to the Plan. 
  

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	3.	ADMINISTRATION. 

  
 (a) The Plan shall be administered by the Board unless and until the Board delegates administration to a Committee, as provided in subsection 3(c).

  
 (b) 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 Options; when and how each Option shall be granted; the provisions of each Option granted (which need not be identical), including the time or
times such Option may be exercised in whole or in part; and the number of shares for which an Option shall be granted to each such person. 
  
 (ii) To construe and interpret the Plan and Options 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 Option Agreement, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective.

  
 (iii) To amend the Plan or an Option as
provided in Section 11. 
  
 (c) The Board may delegate
administration of the Plan to a committee composed of not fewer than two (2) members (the “Committee”), all of the members of which Committee shall be Disinterested Persons and may also be, in the discretion of the Board, Outside
Directors. 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 (and references in this Plan to the Board shall thereafter be to the
Committee), 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. Notwithstanding anything in this Section 3 to the contrary, the Board may expressly determine that the requirement that the Committee be composed of two (2) members be waived and may delegate to a committee of one or more members of the Board
the authority to grant options to eligible persons who (i) are not then subject to Section 16 of the Exchange Act and/or (ii) are either (1) not then “covered employees” and not expected to be “covered employees” at the time of
recognition of income resulting from such option, or (2) not persons with respect to whom the Company wishes to comply with Section 162(m) of the Code. For this purpose, “covered employee” means the Company’s Chief Executive Officer
and the four (4) other highest compensated officers for whom total compensation is required to be reported to shareholders under the Exchange Act. 
  

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 (d) Any requirement that an administrator of the Plan be a Disinterested Person shall not apply (i) prior
to the date of the first registration of an equity security of the Company under Section 12 of the Exchange Act, or (ii) if the Board or the Committee expressly declares that such requirement shall not apply. Any Disinterested Person shall otherwise
comply with the requirements of Rule 16b-3. 
  

	4.	SHARES SUBJECT TO THE PLAN. 

  
 (a) Subject to the provisions of Section 10 relating to adjustments upon
changes in stock, the stock that may be sold pursuant to Options shall not exceed in the aggregate one million (1,000,000) shares of the Company’s common stock. If any Option shall for any reason expire or otherwise terminate, in whole or in
part, without having been exercised in full, the stock not purchased under such Option shall revert to and again become available for issuance under the Plan. 
  

(b) The stock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. 
  

	5.	ELIGIBILITY. 

  
 (a) Options may be granted only to Employees, Directors or Consultants. 
  
 (b) A Director shall in no event be eligible for the benefits of the Plan unless at the time discretion is exercised in the
selection of the Director as a person to whom Options may be granted, or in the determination of the number of shares which may be covered by Options granted to the Director: (i) the Board has delegated its discretionary authority over the Plan to a
Committee which consists solely of Disinterested Persons; or (ii) the Plan otherwise complies with the requirements of Rule 16b-3. The Board shall otherwise comply with the requirements of Rule 16b-3. This subsection 5(b) shall not apply (i) prior
to the date of the first registration of an equity security of the Company under Section 12 of the Exchange Act, or (ii) if the Board or Committee expressly declares that it shall not apply. 
  
 (c) In any calendar year, no employee shall be eligible to be granted options
under the Plan covering an aggregate number of shares of the Company’s common stock outstanding greater than 5%. 
  

	6.	OPTION PROVISIONS. 

  
 Each Option shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The provisions of separate Options need
not be identical, but each Option shall include (through incorporation of provisions hereof by reference in the Option or otherwise) the substance of each of the following provisions: 
  
 (a) Term. No Option shall be exercisable after the expiration of ten
(10) years from the date it was granted. 
  

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 (b) Price. The exercise price of each Nonstatutory Stock Option shall be not less than eighty-five
percent (85%) of the Fair Market Value of the stock subject to the Option on the date the Option is granted. 
  
 (c) Consideration. The purchase price of 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 or the Committee, at the time of the grant of the Option, (A) by delivery to the Company of other common stock of the Company, (B) according
to a deferred payment or other arrangement (which may include, without limiting the generality of the foregoing, the use of other common stock of the Company) with the person to whom the Option is granted or to whom the Option is transferred
pursuant to subsection 6(d), or (C) in any other form of legal consideration that may be acceptable to the Board. 
  
 In the case of any deferred payment arrangement, interest shall be payable at least annually and shall be charged at the minimum rate of interest
necessary to avoid 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.  
  
 (d) Transferability. An 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 person to whom the Option is granted only by such person. The person to whom the Option is granted 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 Optionee, shall thereafter be entitled to exercise the Option. 
  
 (e) Vesting. The total number of shares of stock subject to an Option may, but need not, be allotted in periodic
installments (which may, but need not, be equal). The Option Agreement may provide that from time to time during each of such installment periods, the Option may become exercisable (“vest”) with respect to some or all of the shares
allotted to that period, and may be exercised with respect to some or all of the shares allotted to such period and/or any prior period as to which the Option became vested but was not fully exercised. 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 subsection 6(e) are
subject to any Option provisions governing the minimum number of shares as to which an Option may be exercised. 
  

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 (f) Securities Law Compliance. The Company may require any Optionee, or any person
to whom an Option is transferred under subsection 6(d), as a condition of exercising any such Option, (i) to give written assurances satisfactory to the Company as to the Optionee’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 Option; and (ii) to give written assurances satisfactory to the Company stating that such person is acquiring the stock subject to the Option for such person’s own account and not with any
present intention of selling or otherwise distributing the stock. The foregoing requirements, and any assurances given pursuant to such requirements, shall be inoperative if (i) the issuance of the shares upon the exercise of the Option has been
registered under a then currently effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”), or (ii) 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 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 stock. 
  
 (g) Termination of Employment or Relationship as a Director or Consultant. In the event an Optionee’s Continuous Status as an
Employee, Director or Consultant terminates (other than upon the Optionee’s death or disability), the Optionee may exercise his or her Option (to the extent that the Optionee was entitled to exercise it at the date of termination) but only
within such period of time ending on the earlier of (i) the date three (3) months after the termination of the Optionee’s Continuous Status as an Employee, Director or Consultant, or such longer or shorter period, which in no event shall be
less than thirty (30) days, specified 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 Optionee does not exercise his or her Option within the time specified
in the Option Agreement, the Option shall terminate, and the shares covered by such Option shall revert to and again become available for issuance under the Plan. 
  
 (h) Disability of Optionee. In the event an Optionee’s Continuous Status as an Employee, Director
or Consultant terminates as a result of the Optionee’s disability, the Optionee may exercise his or her Option (to the extent that the Optionee was entitled to exercise it at 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, which in no event shall be less than six (6) months, specified in the Option Agreement), or (ii) the expiration of the term of the Option
as set forth in the Option Agreement. If, at the date of termination, the Optionee is not entitled to exercise his or 
  

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 her entire Option, the shares covered by the unexercisable portion of the Option shall revert to and again become
available for issuance under the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate, and the shares covered by such Option shall revert to and again become
available for issuance under the Plan. 
  
 (i)
Death of Optionee. In the event of the death of an Optionee during, or within a period specified in the Option after the termination of, the Optionee’s Continuous Status as an Employee, Director or Consultant, the Option may be exercised
(to the extent the Optionee was entitled to exercise the Option at the date of death) by the Optionee’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 Optionee’s death pursuant to subsection 6(d), but only within the period ending on the earlier of (i) the date eighteen (18) months following the date of death (or such longer or shorter period, which in no event shall be less than six
(6) months, specified in the Option Agreement), or (ii) the expiration of the term of such Option as set forth in the Option Agreement. If, at the time of death, the Optionee was not entitled to exercise his or her entire Option, the shares covered
by the unexercisable portion of the Option shall revert to and again become available for issuance under the Plan. If, after death, the Option is not exercised within the time specified herein, the Option shall terminate, and the shares covered by
such Option shall revert to and again become available for issuance under the Plan. 
  
 (j) Withholding. To the extent provided by the terms of an Option Agreement, the Optionee may satisfy any federal, state or local tax withholding obligation relating to the exercise of such Option
by any of the following means or by a combination of such means: (1) tendering a cash payment; (2) authorizing the Company to withhold shares from the shares of the common stock otherwise issuable to the participant as a result of the exercise of
the Option; or (3) delivering to the Company owned and unencumbered shares of the common stock of the Company. 
  

	7.	COVENANTS OF THE COMPANY. 

  
 (a) During the terms of the Options, the Company shall keep available at all times the number of shares of
stock required to satisfy such Options. 
  
 (b) The
Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to issue and sell shares of stock upon exercise of the Options; provided, however, that this
undertaking shall not require the Company to register under the Securities Act either the Plan, any Option or any stock issued or issuable pursuant to any such Option. 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 stock under the Plan, the Company shall be relieved from any liability for failure 
  

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 to issue and sell stock upon exercise of such Options unless and until such authority is obtained. 
  

	8.	USE OF PROCEEDS FROM STOCK. 

  
 Proceeds from the sale of stock pursuant to Options shall constitute general
funds of the Company. 
  

	9.	MISCELLANEOUS. 

  
 (a) Neither an Optionee nor any person to whom an Option is transferred under subsection 6(d) of the Plan shall be deemed to be the holder
of, or to have any of the rights of a holder with respect to, any shares subject to such Option unless and until such person has satisfied all requirements for exercise of the Option pursuant to its terms. 
  
 (b) Nothing in the Plan or any instrument executed or Option
granted pursuant thereto shall confer upon any Employee, Director, Consultant or Optionee any right to continue in the employ of the Company or any Affiliate (or to continue acting as a Director or Consultant) or shall affect the right of the
Company or any Affiliate to terminate the employment or relationship as a Director or Consultant of any Employee, Director, Consultant or Optionee with or without cause. 
  
 (c) (i) The Board or the Committee shall have the authority to effect, at any time and from time
to time (i) the repricing of any outstanding Options under the Plan and/or (ii) with the consent of the affected holders of Options, the cancellation of any outstanding Options and the grant in substitution therefor of new Options under the Plan
covering the same or different numbers of shares of Common Stock, but having an exercise price per share not less than eighty-five percent (85%) of the Fair Market Value per share of Common Stock on the new grant date. 
  
 (ii) Shares subject to an Option canceled
under this subsection 9(c) shall continue to be counted against the maximum award of Options permitted to be granted pursuant to subsection 4(a) of the Plan. The repricing of an Option under this subsection 9(c), resulting in a reduction of the
exercise price, shall be deemed to be a cancellation of the original Option and the grant of a substitute Option; in the event of such repricing, both the original and the substituted Options shall be counted against the maximum awards of Options
permitted to be granted pursuant to subsection 4(a) of the Plan. The provisions of this subsection 9(c) shall be applicable only to the extent required by Section 162(m) of the Code. 
  

	10.	ADJUSTMENTS UPON CHANGES IN STOCK. 

  
 (a) If any change is made in the stock subject to the Plan, or
subject to any Option (through merger, consolidation, reorganization, recapitalization, stock dividend, 
  

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 dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares,
change in corporate structure or otherwise), the Plan will be appropriately adjusted in the class(es) and maximum number of shares subject to the Plan pursuant to subsection 4(a), and the outstanding Options will be appropriately adjusted in the
class(es) and number of shares and price per share of stock subject to such outstanding Options. 
  
 (b) In the event of: (1) a merger or consolidation in which the Company is not the surviving corporation or (2) a reverse merger in which
the Company is the surviving corporation but the shares of the Company’s common stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise
(collectively, “Events”) then, to the extent permitted by applicable law, any surviving corporation shall assume any Options outstanding under the Plan or shall substitute similar Options for those outstanding under the Plan. In the event
any surviving corporation refuses to assume or continue such Options, or to substitute similar options for those outstanding under the Plan, then, with respect to Options held by persons then performing services as Employees, Directors or
Consultants, the Company must give notice to such Employees, Directors and Consultants of the intention of the surviving corporation to refuse to assume or continue such Options, or to substitute similar options, at least fifteen (15) calendar days
prior to the closing of an Event. Upon such notice such Options shall be accelerated and the Options terminated if not exercised prior to the closing of such an Event. 
  

	11.	AMENDMENT OF THE PLAN AND OPTIONS. 

  
 (a) The Board at any time, and from time to time, may amend
the Plan. However, except as provided in Section 10 relating to adjustments upon changes in stock, no amendment shall be effective unless approved by the stockholders of the Company within twelve (12) months before or after the adoption of the
amendment, where the amendment will: 
  
 (i) Increase the number of shares reserved for Options under the Plan; or 
  
 (ii) Modify the Plan in any other way if such modification requires stockholder approval in order for the Plan to comply
with the requirements of Rule 16b-3. 
  
 (b) The
Board may in its sole discretion submit any other amendment to the Plan for stockholder approval, including, but not limited to, amendments to the Plan intended to satisfy the requirements of Section 162(m) of the Code and the regulations
promulgated thereunder regarding the exclusion of performance-based compensation from the limit on corporate deductibility of compensation paid to certain executive officers. 
  
  

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 (c) It is expressly contemplated that the Board may amend the Plan in any respect the Board
deems necessary or advisable to provide Optionees with the maximum benefits provided or to be provided under the provisions of the Code and the regulations promulgated thereunder or to bring the Plan into compliance therewith. 
  
 (d) Rights and obligations under any Option 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 person to whom the Option was granted and (ii) such person consents in writing. 
  
 (e) The Board at any time, and from time to time, may amend the
terms of any one or more Options; provided, however, that the rights and obligations under any Option shall not be impaired by any such amendment unless (i) the Company requests the consent of the person to whom the Option was granted and
(ii) such person consents in writing. 
  

	12.	TERMINATION OR SUSPENSION OF THE PLAN. 

  
 (a) The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate on June 2, 2005, which shall be within ten (10) years from the date the Plan is adopted by the Board or approved by the stockholders of the Company, whichever is earlier. No Options may be granted
under the Plan while the Plan is suspended or after it is terminated. 
  
 (b) Rights and obligations under any Option granted while the Plan is in effect shall not be impaired by suspension or termination of the Plan, except with the consent of the person to whom the Option was granted. 

 

	13.	EFFECTIVE DATE OF PLAN. 

  
 The Plan shall become effective as determined by the Board, but no Options granted under the Plan shall be exercised 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. 
  

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