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Exhibit 4.2
AMENDED AND RESTATED
UFORCE COMPANY - SOCIETE UFORCE
STOCK OPTION PLAN
PLAN DESCRIPTION
1. PURPOSE OF THE PLAN
The purpose of the Stock Option Plan is to develop the interest and
incentive of eligible employees, directors and other service providers of UForce
Company - Societe UForce (the "Company") in the Company's growth and development
by giving eligible employees, directors and other service providers an
opportunity to purchase Common Shares on a favourable basis, thereby advancing
the interests of the Company, enhancing the value of the Common Shares for the
benefit of all the shareholders and increasing the ability of the Company to
attract and retain skilled and motivated individuals in the service of the
Company.
The Board of Directors has approved the terms of this Plan.
2. DEFINITIONS
In this Plan:
(a) "Associate" has the meaning assigned by the Securities Act
(Quebec), as amended from time to time;
(b) "Board of Directors" means the board of directors of the
Company;
(c) "Committee" means the appropriate compensation committee
appointed by the Board of Directors to administer the Plan. All references in
the Plan to the Committee means the Board of Directors if no Committee has been
appointed;
(d) "Common Shares" means the Common Stock of 8x8, Inc., a
Delaware corporation doing business as Netergy Networks, or, in the event of an
adjustment contemplated in Section 8 hereof, such other Common Shares to which a
Participant may be entitled upon the exercise of an Option as a result of such
adjustment;
(e) "Date of Grant" means the date a Participant is granted an
Option to purchase Option Shares;
(f) "Director" means a person occupying the position of director
on the Board of Directors;
(g) "Employee" means a full time permanent employee of the
Company or its subsidiaries;
(h) "Exchange" means The Toronto Stock Exchange or, if the Common
Shares are not then listed and posted for trading on The Toronto Stock Exchange,
on such stock exchange or
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quotation system (including Nasdaq) on which such shares are listed, posted for
trading or quoted as may be selected by the Committee;
(i) "Exercise Date" means the date the Company receives from the
Participant a completed Stock Option Purchase Form with payment for the Option
Shares being purchased;
(j) "Fair Market Value" at any date in respect of the Common
Shares shall be determined by the Committee in its sole discretion, unless the
Common Shares become listed and posted for trading on the Exchange, in which
case the Fair Market Value shall be equal to the closing price of the Common
Shares on the Exchange on the trading day immediately preceding the Date of
Grant;
(k) "Option" means an option to purchase Common Shares granted to
a Participant;
(l) "Option Price" means the price per share at which a
Participant may purchase Option Shares;
(m) "Option Shares" means the Common Shares which a Participant
is entitled to purchase under the Plan;
(n) "Outstanding Issue" means the number of Common Shares that
are outstanding immediately prior to any issuance of Option Shares, excluding
Option Shares issued pursuant to the Plan during the preceding one year period;
(o) "Parent" shall mean 8x8, Inc., a Delaware corporation doing
business as Netergy Networks;
(p) "Participants" means Directors, Employees and Service
Providers to whom Option Shares are granted pursuant to the Plan and which
remain unexercised;
(q) "Plan" means the Amended and Restated UForce Company -
Societe UForce Stock Option Plan;
(r) "Service Provider" means any person other than an Employee or
Director, engaged to provide ongoing management, advisory or consulting services
for the Company or for a subsidiary of the Company;
(s) "Stock Option Agreement" means the stock option agreement to
be entered into between the Company and a Participant of the Plan upon the grant
of an Option to a Participant in the form of Appendix "A"; and
(t) "Vesting Period" for a Participant means, the four-year
period during which the Option Shares vest as follows: up to 25% of the Option
Shares vest on the first anniversary of the Date of Grant and 1/36 of the
remaining Optioned Shares subject to such Option vest each month thereafter.
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3. ELIGIBILITY
Participation in the Plan shall be limited to Participants who are
designated from time to time by the Committee. Participation shall be voluntary
and the extent to which any Participant shall be entitled to participate in the
Plan shall be determined by the Committee.
4. PRICE FOR OPTION SHARES
The Committee shall advise each Participant designated to participate in
the Plan of the number of Option Shares such Participant is entitled to purchase
and the Option Price at which the Option Shares may be purchased and the Vesting
Period. The Option Price at which the Option Shares may be purchased under the
Plan shall be fixed by the Committee based upon the Fair Market Value of the
Common Shares. The Committee may impose performance thresholds which will need
to be met prior to vesting of any Options granted.
5. EXERCISE
Options granted under the Plan must be exercised within such period as
fixed by the Committee, not exceeding 10 years from the Date of Grant, failing
which the Participant's right to purchase such Option Shares lapses.
Notwithstanding any other provision in this Plan, unless otherwise determined by
the Committee, no options may be exercised unless the Option Shares are publicly
traded or control of the Company has been acquired in a takeover transaction.
Subject to the foregoing, the Vesting Periods during which Options or a portion
thereof vest and may be exercised by the Participant shall be set forth in the
Stock Option Agreement to be executed by the Participant, in the form attached
hereto as Appendix "A," as amended by the Company and the Participant.
Notwithstanding the Vesting Period set forth in the Stock Option
Agreement, the Committee may, in its sole discretion, by written notice to any
Participant, accelerate the vesting of all or any of the Options such that the
Options become immediately fully vested. In such circumstances, the Committee
may by written notice compel the Participant to exercise the Options within 30
days of the date of such written notice to exercise, failing which the
Participant's right to purchase such Option Shares lapses.
The Committee in its discretion may require that the exercise of an
Option shall be subject to the Option holder signing a counterpart of the then
existing shareholders agreement of the Company or any other agreement which is
to apply to Option holders.
6. PAYMENT
Subject to Article 5 above, the Participant from time to time and at any
time after the vesting of any Options and prior to the lapse of such Options,
may elect to purchase all or a portion of the Option Shares available for
purchase by lump sum payment by delivering to the Company at its head office, a
completed stock option purchase form in the form attached hereto as Appendix
"A.1". Payment may be made by cash, certified cheque, bank draft, money order or
the equivalent payable to the order of Netergy in United States dollars.
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7. SHARE CERTIFICATE
Upon exercise of the Option and payment in full of the purchase price
the Company shall cause to be delivered to the Participant within a reasonable
period of time a duplicate certificate or certificates in the name of the
Participant representing the number of Option Shares the Participant has
purchased. The original share certificate shall be held in trust by the Company
for delivery to the holder when the shares are to be transferred, as authorized
by the Plan.
8. ADJUSTMENT IN SHARES
The Committee will make appropriate adjustments in the number of Common
Shares subject to the Plan and, as regards Options granted or to be granted, in
the number of Common Shares optioned and in the Option Price, to give effect to
the adjustments in the number of Common Shares resulting from sub-divisions,
consolidations or re-classification of the Common Shares or other relevant
changes (an "Event") in the authorized or issued capital of the Parent. No
fractions of shares need be issued on the exercise of the Options and,
accordingly, if after an Event a Participant has a right to a fraction of a
share, he will only have the right to purchase the next lower whole number of
shares and no payment or other adjustment will be effected with respect to the
right to participate in the fraction which was not taken into account. When an
Event occurs, the number of shares that the Board of Directors authorized under
the Plan shall be adjusted appropriately.
In the event that the Parent proposes to liquidate, dissolve or wind-up,
the Company may give written notice thereof to each Participant holding Options
under the Plan and in such case Participants shall be entitled to exercise all
or a portion of the Options granted to such Participants, whether or not such
Options have vested, within the 30-day period next following the giving of such
notice. Upon the expiration of such 30 day period, all rights of the
Participants to the Option Shares or to the exercise of the Options shall
terminate and cease to have any further force and effect.
In the event of a merger of the Parent with or into another corporation,
or the sale of substantially all of the assets of the Parent, each outstanding
Option shall be assumed or an equivalent option or right substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute the
Option, the Option shall fully vest and the Participant shall have the right to
exercise the Option as to all of the Option Shares, including Option Shares
which would not otherwise be vested or exercisable. If an Option becomes fully
vested and exercisable in lieu of assumption or substitution in the event of a
merger or sale of assets, the Committee shall notify the Participant in writing
or electronically that the Option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the Option shall
terminate upon the expiration of such period. For the purposes of this
paragraph, the Option shall be considered assumed if, following such merger or
sale of assets, the option or right confers the right to purchase or receive,
for each share of Option Shares, immediately prior to the merger or sale of
assets, the consideration (whether stock, cash, or other securities or property)
received in the merger or sale of assets by holders of Common Shares for each
share held on the effective date of the transaction (and if holders were offered
a choice of consideration, the type of consideration chosen by the holders of a
majority of the outstanding Common Shares); provided, however, that if such
consideration received in the merger or sale of
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assets is not solely common stock of the successor corporation or its parent,
the Committee may, with the consent of the successor corporation, provide for
the consideration to be received upon the exercise of the Option, for each share
of Optioned Shares to be solely common stock of the successor corporation or its
parent equal in fair market value to the per share consideration received by
holders of Common Shares in the merger or sale of assets.
9. TERMINATION OF PARTICIPANT FOR ANY REASON
Subject to Article 5 above, in the event that an Employee's employment
with the Company, the Parent or any of their subsidiaries is terminated for any
reason, a Director shall cease to be a Director on the Board of Directors for
any reason or a Service Provider ceases to provide services to the Company, the
Participant or the Participant's legal representative, as the case may be, may
elect to purchase at the Option Price all or a portion of the remaining Option
Shares subject to Options that have vested at the time such employment, position
on the Board of Directors or services with the Company is terminated at any time
during the 30 day period, or such later date as determined by the Board of
Directors, following the date of such termination of employment or position on
the Board of Directors or termination of services of a Service Provider (but in
no event after the lapse of any Options held), failing which the exercise of any
such Options shall lapse. Any Options not vested shall lapse, unless otherwise
determined by the Committee at the time the Employee's employment is terminated,
the Director ceases to be a Director on the Board of Directors or the Service
Provider ceases to provide services to the Company. To the extent the Common
Shares are not listed on any Exchange, the Company may, at any time within one
year after termination, elect to purchase at the same Option Price paid by the
Participant or the Participant's legal representative all of the Common Shares
purchased by such Participant under this Plan. For the purposes of this Plan,
the transfer of the Employee's employment to the Company, the Parent or to any
subsidiary of the Company or the Parent shall not be considered a termination of
employment and the Employee's rights under the Option shall be the same as if
such transfer had not occurred.
10. TRANSFER AND ASSIGNMENT
The Participant's rights under Options granted under the Plan are not
assignable or transferable by the Participant or subject to any other
alienation, sale, pledge or encumbrance by such Participant during the
Participant's lifetime and therefore the Options are exercisable during the
Participant's lifetime only by the Participant. The obligations of each
Participant shall be binding on his or her heirs, executors and administrators.
11. EMPLOYMENT AND BOARD OF DIRECTORS POSITION NON-CONTRACTUAL
The granting of an Option to a Participant under the Plan does not
confer upon the Participant any right to continue in the employment of the
Company or any subsidiary of the Company or as a member of the Board of
Directors or as a Service Provider, as the case may be, nor does it interfere in
any way with the rights of the Employee or of the Company's rights to terminate
the Employee's employment at any time or of the shareholders' right to elect
Directors.
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12. RIGHTS AS SHAREHOLDERS
Participants shall not have any rights as a shareholder with respect to
Option Shares until full payment has been made to the Parent and a share
certificate or share certificates have been duly issued.
13. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee. The Committee shall
have the power to interpret and construe the terms and conditions of the Plan
and the Options. Any determination by the Committee shall be final and
conclusive on all persons affected thereby unless otherwise determined by the
Board of Directors. The day-to-day administration of the Plan may be delegated
to such officers and employees of the Company or any subsidiary of the Company
as the Committee shall determine.
14. EMPLOYEE LOANS
The Board of Directors may authorize the Company to lend or cause to be
lent to Employees such portion of the purchase price of the Option Shares under
the Plan as an Employee may request and as the Committee administering the Plan
may approve for authorization by the Board of Directors. The terms and
conditions of such loan which may be interest free, are to be determined by the
Committee.
15. NOTICES
All written notices to be given by the Participant to the Company may be
delivered personally or by registered mail, postage prepaid, addressed as
follows:
UForce Company - Societe UForce
1001 de Maisonneuve Blvd. West
5th Floor
Montreal, Quebec H3A 3C8
Attention: Chief Financial Officer
Any notice given by the Participant pursuant to the terms of the Option shall
not be effective until actually received by the Company at the above address.
Any notice to be given to the Participant shall be sufficiently given if
delivered personally or by postage prepaid mail to the last address of the
Participant on the records of the Company and shall be effective seven days
after mailing.
16. CORPORATE ACTION
Nothing contained in the Plan or in the Option shall be construed so as
to prevent the Company or any subsidiary of the Company from taking corporate
action which is deemed by the Company or the subsidiary to be appropriate or in
its best interest, whether or not such action would have an adverse effect on
the Plan.
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17. AMENDMENTS
The Board of Directors of the Company shall have the right, in its sole
discretion, to alter, amend or discontinue the Plan from time to time and at any
time. No such amendment or discontinuation, however, may, without the consent of
the Participant, alter or impair the rights or increase the obligations of a
Participant under the Plan. Any amendment to the Plan may require the prior
approval of the Exchange and may require the approval of the Company's
shareholders.
18. GOVERNING LAW
The Plan is established under the laws of the Province of Quebec and the
rights of all parties and the construction and effect of each provision of the
Plan shall be according to the laws of the Province of Quebec and the laws of
Canada applicable therein.
19. GOVERNMENT REGULATION
The Company's obligation to cause the issuance and deliver Common Shares
under any Option is subject to:
(a) the satisfaction of all requirements under applicable
securities law in respect thereof and obtaining all regulatory approvals as the
Company shall determine to be necessary or advisable in connection with the
authorization, issuance or sale thereof, including shareholder approval, if
required;
(b) the admission of such Common Shares to listing on any stock
exchange on which Common Shares may then be listed; and
(c) the receipt from the Participant of such representations,
agreements and undertakings as to future dealings in such Common Shares as the
Company determines to be necessary or advisable in order to safeguard against
the violation of the securities law of any jurisdiction.
In this connection, the Company shall take all reasonable steps to obtain such
approvals and registrations as may be necessary for the issuance of such Common
Shares in compliance with applicable securities law and for the listing of such
Common Shares on any stock exchange on which such Common Shares are then listed.
AMENDED AND RESTATED this 30th day of June, 2000.
UFORCE COMPANY - SOCIETE UFORCE
/s/ Jean-Luc Calonne
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Name: Jean-Luc Calonne
Title: President
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APPENDIX "A"
UFORCE COMPANY - SOCIETE UFORCE
AMENDED AND RESTATED STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Date: _______________
Dear _______________:
This is to advise you that you have been granted an option (the
"Option") to purchase __________ Common Shares at a price of $__________ per
share under the UForce Company -Societe UForce Stock Option Plan (the "Plan").
This option expires the later of 3 years following the date of vesting
and 3 years after an initial public offering of the shares or a takeover
transaction, subject to other conditions of the Plan.
The options granted hereunder shall vest, as to 25% of the Common Shares
under Option, on the first anniversary of the date of grant, and thereafter 1/36
of the remaining Common Shares subject to the Option shall vest each month.
Subject to such expiry and the other provisions of the Plan, this
option, for the instalments vested, is exercisable after vesting for a period of
3 years following the later of vesting and 3 years after an initial public
offering of the shares or a takeover transaction.
This option is subject to the terms of the Plan and the approval of the
Board of Directors. It is understood that you will not benefit from any right
under any UForce shareholders' agreement in force at the time of exercising this
Option, and that its exercise may be subject to the execution of an agreement
governing the terms of your shareholding, as per Section 5 of the Plan.
Please refer to the Plan explanatory document for any additional
information regarding the exercise of your option and completion of the Option
Exercise Form.
Sincerely,
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Please execute a copy of this grant and deliver it to _______________,
to acknowledge your acceptance of the terms hereof.
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APPENDIX "A.1"
UFORCE COMPANY - SOCIETE UFORCE
AMENDED AND RESTATED STOCK OPTION PLAN
OPTION EXERCISE FORM
PART 1: IDENTIFICATION
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Name of Beneficiary Service
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Address Office Phone Number
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Social Insurance Number Home Phone Number
PART 2: OPTION
I hereby exercise the Option granted to me by letter dated
_______________ under the Plan.
Total number of option stock exercised: _______________________
Method of payment: (a) Cash
(b) Other: (subject to committee approval)
Cash amount: _______________________
I hereby acknowledge that I have read, understood and accepted each and
all the conditions described in a document called "UForce Company - Societe
UForce Stock Option Plan", and agree to execute, upon request, an agreement
governing the terms of my shareholding.
Given at ____________________, this _______ day of _______________.
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Signature