Exhibit 4.2
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the 4th day of October, 1999.
BETWEEN: SIDEWARE SYSTEMS INC.
102 - 930 West 1st Street
North Vancouver, B.C.
V7P 3N4
(the "Company") OF THE FIRST PART
AND: MICHAEL COLEN
10315 Thornbrush Lane
Bethesda, Maryland
20814
(the "Optionee") OF THE SECOND PART
WHEREAS the Optionee is a director, senior officer, employee or a permitted
consultant as defined in BOR #96/15 issued by the British Columbia Securities
Commission (a "permitted consultant") of either the Company or a subsidiary of
the Company (together the "Related Companies"), and the parties have agreed to
enter into this Incentive Stock Option Agreement on the terms and conditions
hereinafter set forth to provide incentive to the Optionee in acting in such
capacity;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
of the covenants and agreements herein contained the parties hereto covenant and
agree as follows:
1. From the date hereof and, subject to paragraphs 5 and 6, for so long as
the Optionee shall be a director, senior officer, employee or permitted
consultant of one of the Related Companies, the Optionee shall have and be
entitled to and the Company hereby grants to the Optionee the option to
purchase, on or before October 4, 2004, all or any portion of 200,000 fully paid
shares of the Company from treasury at the price of $2.66 per share (the
"Option").
2. The right to take up shares pursuant to the Option is exercisable by
notice in writing to the Company accompanied by a certified cheque, or other
form of payment satisfactory to the Company, in favour of the Company for the
full amount of the purchase price of the shares being then purchased. When such
payment is received, the Company covenants and agrees to issue and deliver to
the Optionee share certificates for the number of shares so purchased.
3. This is an option agreement only and does not impose upon the Optionee
any obligation to take up and pay for any of the shares under the Option.
4. The Option is non-assignable and non-transferable by the Optionee
otherwise than by
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Will or the law of intestacy and the Option may be exercised during the
lifetime of the Optionee only by the Optionee.
5. If the Optionee should die while a director, senior officer, employee
or permitted consultant of one of the Related Companies, the Option may then be
exercised by the Optionee's legal heirs or personal representatives to the same
extent as if the Optionee were alive and acting in such capacity, for a period
of one year after the Optionee's death but only for such shares as the Optionee
could have received upon due exercise at the date of death.
6. Subject to paragraph 5 hereof, the Option shall cease and become null
and void 30 days after the Optionee ceases to be a director, senior officer,
employee or permitted consultant of any of the Related Companies.
7. The Optionee hereby represents that
(a) he is a bona fide director, senior officer, employee or
permitted consultant of one of the Related Companies, and
(b) if he represents that he is an employee of one of the Related
Companies, then he is, with respect to that company, an
individual who is:
(i) considered an employee under the INCOME TAX ACT, for
whom deductions must be made at source by the
Company; or
(ii) a full-time dependent contractor, i.e. one who works
full-time for the Company providing services normally
provided by an employee and is subject to the same
control and direction by the company over the detail
and methods of work as an employee of the company,
but for whom income tax deductions are not made a
source; or
(iii) a part-time dependent contractor, i.e. one who works
for the company on a continuing and regular basis for
a minimum amount of time per week providing services
normally provided by an employee and is subject to
the same control and direction by the company over
the details and methods of work as an employee of the
company, but for whom income tax deductions are not
made at source, and
(c) if he represents that he is a permitted consultant, he meets
the definition of "permitted consultant" in blanket order
ruling #96/15 issued by the British Columbia Securities
Commission, and the Option is otherwise in accordance with
that blanket order ruling.
8. If the Option is granted to the Optionee in the capacity of employee of
the Company, the Company hereby represents that the Optionee is a BONA FIDE
employee of the Company.
9. This Agreement is subject to the approval of the Vancouver Stock
Exchange and, if the
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Optionee is an insider of the Company, the approval of the members of the
Company, which approval may have already been given in the form of a general
approval by the members at a general meeting of the Company preceding the
date of this Agreement. In the event that both of the foregoing approvals
have not been received within one year of the date of this Agreement, this
Agreement shall thereafter be null and void and of no further force and
effect.
10. This Agreement may only be amended by an instrument in writing signed
by the parties hereto, and such amendment shall be subject to the approval of
the Vancouver Stock Exchange. In the event of such an amendment, if the Optionee
is then an insider of the Company or if this Agreement was originally approved
by the members, such amendment shall also be subject to the approval of the
members of the Company, which approval may have already been given in the form
of a general approval by the members at a general meeting of the Company
preceding the date of the amendment.
11. In the event of any subdivision, consolidation or other change in the
share capital of the Company while any portion of the Option is outstanding, the
number of shares under option to the Optionee and the price thereof shall be
deemed adjusted in accordance with such subdivision, consolidation or other
change in the share capital of the Company as if the Option had been exercised
immediately prior to such subdivision, consolidation or other change.
12. The Company hereby covenants and agrees to reserve in its treasury
sufficient shares to permit the issuance and allotment of shares to the Optionee
in the event the Optionee exercises the Option.
13. Time shall be of the essence of this Agreement.
14. This Agreement shall enure to the benefit of and be binding upon the
Company, its successors and assigns and the Optionee and the Optionee's personal
representatives to the extent provided in paragraph 5.
IN WITNESS WHEREOF the parties have hereunto caused these presents to be
executed as of the day and year first above written.
SIDEWARE SYSTEMS INC.
Per: "signed"
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SIGNED, SEALED AND DELIVERED
by the Optionee in the presence of:
"signed"
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MICHAEL COLEN