Exhibit 99
August 30, 1999
CINTECH TELE-MANAGEMENT SYSTEMS, INC.
AMENDED AND RESTATED STOCK OPTION PLAN
1. Purpose
The purposes of this Amended and Restated Stock Option Plan are
to amend and restate in its entirety the Cintech Tele-Management
Systems, Inc. 1993 Stock Option Plan, as amended, to attract and retain
the best available personnel, to provide additional incentive to the
Employees, Directors and Consultants of Cintech Tele-Management Systems,
Inc. (the "Company") and to promote the success of the Company's
business.
2. Definitions
As used herein, the following definitions shall apply:
a. "Act" shall mean the Securities and Exchange Act of 1934, as
amended.
b. "Board" shall mean the Board of Directors of the Company.
c. "Committee" shall mean (a) the members of the Stock Option
Committee of the Board of Directors of the Company which shall be
comprised of not less than three (3) directors of the Company designated
by the Board of Directors in accordance with the Code of Regulations of
the Company and Rule 16(b)-3 of the Act..
d. "Common Stock" shall mean the Common Stock , without par
value, of the Company.
e. "Consultant" shall mean any person who is currently under
contract with or who has agreed on an ongoing basis to provide services
for the Company who is not an Employee or Director.
f. "Director" shall mean any member of the Board of Directors
that is also an employee of the Company.
g. "Effective Date" shall mean the date on which this Plan, in
its present form, shall become effective, as provided in Section 7
below.
h. "Employee" shall mean any person, including officers,
employed by the Company.
i. "Incentive Option" shall mean an Option granted under this
Plan which is an incentive stock option under the provisions of Section
422A of the Internal Revenue Code of 1986, as amended (the "Code"); and
any provisions elsewhere in this Plan or in any such Incentive Option
which would prevent such option from being an incentive stock option may
be deleted and/or voided retroactively to the date of the granting of
such option, by action of the Committee; and the Committee may
retroactively add provisions to this Plan or to any Incentive Option if
necessary to qualify such an option as an incentive stock option.
j. "Option" shall mean a stock option granted pursuant to the
Plan.
k. "Option Agreements" shall mean a written agreement between
the Company and an Optionee setting forth the terms of the Options in
such form as the Committee shall approve.
l. "Option Stock" shall mean the Common Stock subject to an
Option.
m. "Optionee" shall mean an Employee, Consultant or Director
who receives an Option or Options granted under the Plan, as well as
the holder of an Option or Options granted under this Plan prior to the
Effective Date.
n. "Non-Qualified Option" shall mean an Option granted under
this Plan which is not an Incentive Option. Such Non-Qualified Option
shall not be affected by any actions taken retrospectively as provided
in subsection 2(h) above with respect to Incentive Options.
o. "Plan" shall mean this Amended and Restated Stock Option
Plan, as amended.
p. "Share" shall mean a share of the Common Stock, as adjusted
in accordance with Section 12 of the Plan.
3. Scope of the Plan
An aggregate of [2,500,000] Shares, representing not greater
than [seventeen] percent (17%) of the Company's authorized Shares of
Common Stock, are hereby made available and shall be reserved for
issuance under this Plan. However, the aggregate number of Shares
available under this Plan shall be subject to adjustment on the
occurrence of any of the events and in the manner set forth in Section
12 hereof. If an Option shall expire or terminate for any reason
without having been exercised in full, the unpurchased Shares subject
thereto shall (unless the Plan shall have terminated) become available
for grants of other Options under the Plan.
The aggregate number of Shares available for issuance pursuant
to Options granted to insiders under the Plan (as that term is defined
in the Ontario Securities Act and Section 627 of the Toronto Securities
Exchange Company Manual) or pursuant to other outstanding options may
not exceed ten percent (10%) of the Common Stock then issued and
outstanding. The aggregate number of Shares issued under the Plan or
pursuant to other outstanding options to insiders, within a one-year
period, shall not exceed ten percent (10%) of the Common Stock then
issued and outstanding. The aggregate number of Shares issued under
the Plan or pursuant to other outstanding options to any one insider
and such insider's associates (as that term is defined in the Ontario
Securities Act and Section 627 of the Toronto Securities Exchange
Company Manual), within a one-year period, shall not exceed five percent
(5%) of the Common Stock then issued and outstanding.
Notwithstanding the foregoing, and as ___________ in Section
633(d), the aggregate number of shares at any time available for
issuance to any one person under the Plan or pursuant to other
outstanding options may not exceed five percent (5%) of the Common Stock
then issued and outstanding.
4. Administration of Plan
a. Procedure. The plan shall be administered by the Committee.
b. Powers of the Committee. The Committee shall have the
exclusive authority, in its discretion, but subject to the express
provisions of the Plan: (i) to grant Options; (ii) to determine, upon
review of relevant information and in accordance with Section 8 of the
Plan, the fair market value of the Common Stock; (iii) to determine the
exercise price per share of Options to be granted, which exercise price
shall be determined in accordance with Section 8 of the Plan; (iv) to
determine the individuals to whom, and the time or times at which,
Options shall be granted, and the number of shares to be represented by
each Option; (v) to cancel, with the consent of the Optionee,
outstanding Options and to grant new Options in substitution therefor;
(vi) to interpret the Plan; (vii) to accelerate or defer (with the
consent of Optionee) the exercise date of any Option; (viii) to
prescribe, amend and rescind rules and regulations relating to the Plan;
(ix) to determine the terms and provisions of the respective Option
Agreements (which need not be identical) by which Options shall be
evidenced and, with the consent of Optionee, modify or amend any
provisions (including provisions relating to the exercise price) of any
Option; and (x) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
Directors shall not be prohibited from receiving or
exercising Option grants under the Plan to the extent that such
Directors are otherwise eligible to participate in the Plan, except that
no Director shall participate in decisions related to Options granted or
to be granted to that Director.
c. Effect of the Committee's Decision. All decisions,
determinations and interpretations of the Committee shall be final and
binding on all Optionees.
5. Eligibility
a. Incentive Options may be granted only to any Employee or
Director as the Committee may from time to time designate. In
selecting the individuals to whom Incentive Options shall be granted, as
well as in determining the number of Incentive Options granted, the
Committee shall take into consideration such factors as it deems
relevant in connection with accomplishing the purpose of the Plan.
Subject to the provisions of Section 3 hereof, an Employee may, if he or
she is otherwise eligible, be granted an additional Incentive Option or
Incentive Options if the Committee shall so determine.
b. Non-Qualified Options may be granted to any Consultant,
Employee or Director or nonemployee Director as the Committee may from
time to time designate. In selecting the individuals to whom Non-
Qualified Options shall be granted, as well as in determining the number
of Non-Qualified Options granted, the Committee shall take into
consideration such factors as it deems relevant in connection with
accomplishing the purpose of the Plan. Subject to the provisions of
Section 3 hereof, a Consultant or Director may, if he or she is
otherwise eligible, be granted an additional Non-Qualified Option or
Non-Qualified Options if the Committee shall so determine.
6. No Contract of Employment Implied
The Plan shall not confer upon any Optionee any right with
respect to continuation of employment by or the rendition of services to
the Company, nor shall it interfere in any way with his or her right or
the Company's right to terminate his or her employment or services at
any time, with or without cause. The terms of this Plan or any Options
granted hereunder shall not be construed to give any Optionee the right
to any benefits not specifically provided by the Plan or in any manner
modify the Company's right to modify, amend or terminate any pension or
retirement plans.
7. Term of Plan
The Effective Date of this Plan shall be the date this Plan is
approved by the vote of the holders of a majority of the outstanding
Shares of the Company entitled to vote on the adoption of the Plan and
shall terminate ten (10) years after the Effective Date, and no grants
shall be made after such termination date under this Plan, provided,
however, that the Plan shall terminate at such earlier time as the
Committee may determine. Any terminations, either partial or complete,
shall not affect any Options then outstanding under the Plan.
8. Exercise Price and Consideration
a. Exercise Price. The per share exercise price for the Shares
to be issued pursuant to the exercise of an Option shall be determined
by the Committee but may not be less than the latest closing price of
the Company's Common Stock on any stock exchange on the last trading
day preceding the date of the grant of the Option. Such price shall be
subject to adjustment as provided in Section 12 hereof. In the event
that the Company's Common Stock is not listed on any stock exchange at
the exercise of an Option, the per share exercise price for the Shares
shall be as set by the Committee and shall, in the case of any Incentive
Option, not be less than the fair market value of the Shares on the date
the Option is granted, as determined under applicable provisions of the
Code.
b. Consideration. The consideration to be paid for the Shares
to be issued upon exercise of an Option and the method of payment
therefor, shall be determined by the Committee and may consist entirely
of: (i) cash; (ii) check; (iii) the Optionee's personal interest-
bearing, full recourse promissory note with such terms and provisions as
the Committee may authorize, provided however, that no such note shall
have a maturity date which exceeds thirty(30) days from date of issue
and no person who is not an employee of the Company may purchase Shares
with a promissory note; (iv) other Shares of Common Stock which (x)
either have been owned by the Optionee for more than six (6) months on
the date of surrender or were not acquired directly or indirectly from
the Company and (y) have a fair market value on the date of surrender
(determined without regard to any limitations on transferability imposed
by securities laws) equal to the aggregate exercise price of the Shares
as to which said Option shall be exercised; (v) any combination of such
methods of payment; or (vi) such other considerations and method of
payment for the issuance of Shares to the extent permitted under
applicable laws.
9. Options
a. Term of Option. The term of each Option granted shall be
for a period of no more than ten (10) years from the date of grant
thereof or such shorter term as may be provided in the Option Agreement
or herein.
b. More than one Incentive Option granted to a Participant.
More than one Option, and more than one form of Option, may be granted
to a participant under this Plan.
c. Exercise of Options.
(i) Procedure for Exercise: Rights as a Shareholder.
Subject to the provisions of Section 8, each Option shall be
exercisable at such times and under such conditions as determined by the
Committee, including performance criteria with respect to the Company
and/or the Optionee, and as shall be permissible under the terms of the
Plan.
An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed to be exercised when
written notice of such exercise has been given to the Company in
accordance with the terms of the Option Agreement by the person
entitled to exercise the Option and full payment for the Shares with
respect to which the Option is exercised has beenreceived by the
Company. Full payment may, as authorized by the Committee, consist of
any consideration and method of payment allowable under Section 8 of the
Plan. Until the issuance (as evidenced by the appropriate entry on the
books of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the shares received upon
exercise of the Option. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 12 of the Plan.
(ii) Period Within Which Option May be Exercised. No more
than the following percentages of each Option granted to Employees under
this Plan may be exercised prior to expiration of the following number
of years after the effective date of the grant of such Option:
Years After Percentage of Option Shares
Date of Grant Eligible for Exercise
Less than one * 0%
At least one but less than two 25%
At least two but less than three 50%
At least three but less than four 75%
At least four but no more than five 100%
* unless waived by the Committee
Subject to the terms and conditions of this Section 9,
Options granted to Directors or Consultants shall vest under this Plan
and may be exercised one year after the effective date of the grant of
an Option.
(iii) Termination of Status as an Employee, Director or
Consultant. In the event of the termination in an Optionee's status as
an Employee, Director or Consultant (as the case may be) for any reason
whatever, or expiration or termination of a contract or other agreement
with a Consultant, subsequent to such termination an Optionee may,
subject to the limitations set forth in the Option Agreement, exercise
Options to the extent that such Employee, Director, or Consultant was
entitled to exercise the Option or Options at the date of such
termination, pursuant to the terms of the Option Agreement. To the
extent that such Employee, Director, or Consultant was not entitled to
exercise the Option or Options at the date of such termination, or if
such Employee, Director or Consultant does not exercise such Option or
Options (which such Employee, Director or Consultant was entitled to
exercise) within the time specified in the Option Agreement, the Option
or Options shall terminate.
(iv) Partial Exercise. Unless otherwise provided in the
Option Agreement, any exercise of an Option granted under this Plan may
be made in whole or in part.
d. Incentive Options and Non-Qualified Options. Options may
be either Incentive Options or Non-Qualified Options at the discretion
of the Committee. Options not otherwise designated shall be Non-
Qualified Options. Notwithstanding any other provisions herein, the
following provisions shall apply to Incentive Options: (i) the exercise
price of any Incentive Option granted to any person who on the date of
grant owns (within the meaning of Section 425(d) of the Code) stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any subsidiary shall not be less than
110% of the fair market value of the Common Stock on the date of grant;
(ii) the maximum term of any Incentive Option granted hereunder shall be
ten years, except that the maximum term of any Incentive Option granted
to a person described in clause (i) above shall be five years; (iii) no
Incentive Option may be granted subsequent to the tenth anniversary of
the date of shareholder approval of this Plan; (iv) Incentive Options
may only be granted to persons who are employees of the Company or any
subsidiary within the meaning of the Code; (v) the aggregate fair market
value, determined as of the time of the grant, of the shares of Common
Stock with respect to which Incentive Stock Options held by any Optionee
which are exercisable for the first time by such Optionee during any
calendar year under the Plan and under any other benefit plans of the
Company shall not exceed $100,000, or if different, the maximum
limitation in effect at the time of grant under Section 422 of the Code,
or any successor provision, and any regulations promulgated thereunder;
and (vi) Incentive Options may not be granted with respect to more than
an aggregate of 2,000,000 shares of Common Stock under this Plan.
10. Non-Transferability of Options
An Option granted hereunder shall by its terms not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any
manner other than by will or the laws of descent and distribution. An
Option may be exercised during the Optionee's lifetime only by the
Optionee.
11. Withholding Taxes
Whenever under the Plan shares of Common Stock are to be issued,
the Company shall have the right to require the Optionee to remit to the
Company an amount sufficient to satisfy federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such Shares. Payment of such amount can be made:
a. In cash; or
b. By the transfer of free and clear shares of the Company's
Common Stock (which shares shall be promptly canceled), which shall be
valued at the fair market value of such Shares on the date of such
transfer; or
c. Any combination of (a) and (b); or
d. By the Optionee's election to permit the Company to retain
that number of Shares covered by the exercise of the Option, when valued
at the fair market value at the time of such exercise, sufficient to
meet the withholding tax requirements incurred on the exercise of the
stock Option, and the Company shall deposit in cash the Optionee's
withholding tax incurred, subject to the following restrictions:
(i) The election shall be irrevocable.
(ii) The election shall be subject to the disapproval of
the Committee.
(iii) The election shall be made prior to the date the tax
is required to be withheld.
(iv) If the Optionee is an officer of the Company, the
following additional restrictions shall apply:
a. The election shall be made six (6) months prior
to the date the tax is required to be withheld, or
b. The election shall be made in the ten (10) day
"window period" beginning on the third day following the release of the
Company's quarterly or annual financial information and ending on the
twelfth business day following such release.
12. Adjustments Upon Changes in Capitalization or Merger
a. Capitalization. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock which
have been authorized for issuance under the Plan but as to which no
Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, and the number of shares
of Common Stock subject to each outstanding Option, as well as the price
per share of Common Stock covered by each such outstanding Option, shall
be proportionately adjusted for any increase or decrease in the number
of issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the
Common Stock of the Company or the payment of a stock dividend with
respect to the Common Stock. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number
or price of shares of Common Stock subject to an Option.
b. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Option will terminate
immediately prior to the consummation of such proposed action, unless
otherwise provided by the Committee. The Committee may, in the exercise
of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Committee and give each Optionee the
right to exercise his or her Option as to all or any part of the Option
Stock, including Shares as to which the Option would not otherwise be
exercisable.
c. Sale or Merger. "Sale" means: (i) sale (other than a sale
by the Company) of securities entitled to more than 80% of the voting
power of the Company in a single transaction or a related series of
transactions; (ii) sale of substantially all of the assets of the
Company; or (iii) approval by the shareholders of the Company of a
reorganization, merger or consolidation of the Company, as a result of
which the persons who were the shareholders of the Company immediately
prior to such reorganization, merger or consolidation do not own
securities immediately after the reorganization, merger or consolidation
entitled to more than 80% of the voting power of the reorganized, merged
or consolidated Company. Immediately prior to a Sale, each Optionee may
exercise his or her Option as to all Shares then subject to the Option,
regardless of any vesting conditions expressed in the Option. Voting
power, as used in this Section 12(c), shall refer to those securities
entitled to vote generally in the election of directors, and securities
of the Company not entitled to vote generally in the election of
directors shall be counted as if converted or exercised, and each unit
of voting securities shall be counted in proportion to the number of
votes such unit is entitled to cast.
d. Purchased Shares. No adjustment under this Section 12 shall
apply to any purchased Shares already deemed issued at the time any
adjustment would occur.
e. Notice of Adjustments. Whenever the purchase price or the
number of kind of securities issuable upon the exercise of the Option
shall be adjusted pursuant to Section 12, the Company shall give
Optionee written notice setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, and the method
by which such adjustment was calculated.
13. Time of Granting Options
The date of grant of an Option shall, for all purposes, be the
date on which the Committee makes the determination granting such
Option. Notice of the determination shall be given to each Employee,
Director or Consultant to whom an Option is so granted within a
reasonable time after the date of such grant.
In the event the Committee cancels, with the consent of Optionee,
any Option granted under this Plan, and a new Option is substituted
therefor, the date that the cancelled Option was originally granted
shall be the date used to determine the earliest date for exercising the
new substituted Option under Section 8 so that the Optionee may exercise
the substituted Option at the same time as if the Optionee had held the
substituted Option since the date the cancelled Option was granted;
provided, however, that the foregoing premium on cancellation and
substitution shall be effected only in compliance with the rules and
regulations of any ___________ exchange on which the Common Stock of
this Company is listed.
14. Amendment and Termination of the Plan
a. Amendment and Termination. The Board of Directors may
terminate or amend the Plan from time to time in such respects as it
shall deem advisable; provided that, to the extent necessary to comply
with applicable laws or regulations, the Company shall obtain
shareholder approval of any Plan amendment. This Plan is intended to
comply with all applicable requirements of Rule 16b-3 under the Act or
any successor rule or regulation, insofar as participants subject to
Section 16 of that Act are concerned. To the extent any provision of the
Plan does not so comply, the provision may, to the extent permitted by
law and deemed advisable by the Committee, be deemed null and void with
respect to such participants.
b. Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted and
such Options shall remain in full force and effect as if this Plan had
not been amended or terminated, unless mutually agreed otherwise between
the Optionee and the Committee, which agreement must be in writing and
signed by Optionee and the Company.
15. Conditions Upon Issuance of Shares
Shares shall not be issued pursuant to the exercise of an Option
unless the exercise of such Option and the issuance and delivery of such
Shares pursuant thereto shall comply with all relevant provisions of
law, including, without limitation, the Securities Act of 1993, as
amended, the Act, and the rules and regulations promulgated thereunder,
and shall be further subject to the approval of counsel for the Company
with respect to such compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at
the time of any such exercise that the Shares are being purchased only
for investment and without any present intention to sell or distribute
such Shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned relevant
provisions of law.
16. Reservation of Shares
The Company, during the term of this Plan, will at all times
reserve and keep available such number of Shares as shall be sufficient
to permit the exercise of all Options outstanding under the Plan.
The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the
Company's counsel to be necessary to the lawful issuance and sales of
any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained.
17. Information to Optionees
To the extent required by applicable law, the Company shall
provide to each Optionee, during the period for which such Optionee has
one or more Options outstanding, copies of all annual reports and other
information which are provided to all shareholders of the Company.
18. Funding
Benefits payable under the Plan to any person shall be paid
directly by the Company. The Company shall not be required to fund or
otherwise segregate assets to be used for payment of benefits under the
Plan.
19. Indemnification of Committee
In addition to such other rights of indemnification as they may
have as members of the Board or as members of the Committee, the members
of the Committee shall be indemnified by the Company against all costs
and expenses reasonably incurred by them in connection with any action,
suit or proceeding to which they or any of them may be party by reason
of any action taken or failure to act under or in connection with the
Plan, or any Option granted thereunder, and against all amounts paid by
them in settlement thereof (provided such settlement is approved by
legal counsel selected by the Company) or paid by them in satisfaction
of a judgment in any such action, suit or proceeding, except a judgment
based upon finding of bad faith. Upon the institution of any such
action, suit or proceeding, a Committee member shall notify the Company
in writing, giving the Company an opportunity, at its own expense, to
handle and defend the same before such Committee member undertakes to
handle it on his own behalf.
20. Previously Granted Options
As of the Effective Date, Options to purchase a total of
1,114,313 shares have been granted to approximately fifty seven (57)
Employees, Directors and Consultants hereunder. Such Options shall
remain outstanding and effective after the Effective Date and shall be
subject to all terms and conditions of this Plan as herein amended and
restated with respect to such outstanding Options and such terms and
conditions as may be set forth in the relevant stock option agreements.
If the terms and conditions of any stock option agreements granted
prior to the Effective Date are more expansive than those authorized
under this Plan, the terms and conditions contained in such option
agreements shall remain effective. Hereafter, the Plan and the relevant
stock option agreements granted hereunder shall govern all option
grants.
21. Controlling Law
The Plan shall be governed by the laws of the state of Ohio
applicable to contracts made in Ohio.