Exhibit 4.4
WHITE PINE SOFTWARE, INC.
1997 DIRECTOR STOCK OPTION PLAN
SECTION 1. PURPOSE
This 1997 Director Stock Option Plan (the "Plan") is intended to
encourage ownership of capital stock of the Company by directors who are not
employees of the Company or any parent or subsidiary of the Company ("Outside
Directors") in order to help the Company attract and retain persons of
exceptional competence to the Company's Board of Directors and to furnish an
added incentive for such Outside Directors to whom options are granted (an
"Optionee") to increase their efforts on behalf of the Company. The Company
intends that this purpose will be effected by the granting of stock options
under the Plan.
SECTION 2. OPTIONS TO BE GRANTED AND ADMINISTRATION
2.1 OPTIONS TO BE GRANTED. Options granted under the Plan will not
constitute incentive stock options as defined in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
2.2 ADMINISTRATION. This Plan shall be administered by the Compensation
Committee or any other committee of the Board of Directors of the Company (the
"Board"), consisting of two or more "Independent Directors" (such committee may
hereinafter be referred to as the "Plan Administrator"). As used herein, the
term "Independent Director" means any director who: (i) is not an employee of
the Company or of any "affiliated group" (as such term is defined in Section
1504(a) of the Code) which includes the Company (an "Affiliate"); (ii) is not a
former employee of the Company or any Affiliate who is receiving compensation
for prior services (other than benefits under a tax-qualified retirement plan)
during the Company's or any Affiliate's taxable year; (iii) has not been an
officer of the Company or any Affiliate; and (iv) does not receive remuneration
from the Company or any Affiliate, either directly or indirectly, in any
capacity other than as a director.
Grants of options under the Plan and the amount of the awards to be
granted shall be automatic and non-discretionary in accordance with Section 4.
Except as so provided, the Plan Administrator shall have full and final
authority to operate, manage and administer the Plan on behalf of the Company.
This authority includes, but is not limited to: (i) the power to prescribe the
form or forms of the instrument evidencing options granted under this Plan; (ii)
the power to interpret the Plan; (iii) the power to prescribe regulations for
interpretation, management and administration of the Plan; (iv) the power to
delegate to other persons the responsibility for performing ministerial acts in
furtherance of the Plan's purpose; and (v) the power to engage the services of
persons or organizations in furtherance of the Plan's purpose, including but not
limited to banks, insurance companies, brokerage firms and consultants.
No member of the committee serving as Plan Administrator shall be
liable for any action or determination made in good faith with respect to the
Plan or any option granted thereunder.
2.3 APPOINTMENT AND PROCEEDINGS OF COMMITTEE. The Board may, from time
to time, appoint members of The committee serving as Plan Administrator in
substitution for, or in
addition to, members previously appointed and may fill vacancies, however
caused, in such committee; PROVIDED, HOWEVER, that each such appointee will
be an Independent Director, as described in Section 2.2. The committee
serving as Plan Administrator shall hold its meetings at such times and
places as it shall deem advisable. A majority of its members shall constitute
a quorum, and all actions of such committee shall require the affirmative
vote of a majority of its members. Any action may be taken by a written
instrument signed by all of the members, and any action so taken shall be as
fully effective as if it had been taken by a vote of a majority of the
members at a meeting duly called and held.
SECTION 3. STOCK
3.1 SHARES SUBJECT TO PLAN. The stock subject to the options granted
under the Plan shall be shares of the Company's authorized but unissued common
stock, par value $.01 per share ("Common Stock"), or shares of the Company's
Common Stock held in treasury. The total number of shares that may be issued
pursuant to options granted under the Plan shall not exceed an aggregate of
150,000 shares of Common Stock. Such numbers of shares shall be subject to
adjustment as provided in Section 7.
3.2 LAPSED OR UNEXERCISED OPTIONS. Whenever any outstanding option
under the Plan expires, is canceled or is otherwise terminated (other than by
exercise), the shares of Common Stock allocable to the unexercised portion of
such option shall be restored to the Plan and shall again become available
for the grant of other options under the Plan.
3.3 LIMITATION ON GRANTS. In no event may any Plan participant be
granted options under the Plan with respect to more than 25,000 shares
(subject to adjustments provided in Section 7) of Common Stock in any fiscal
year. The number of shares of Common Stock issuable pursuant to an option
granted to a Plan participant in a fiscal year that is subsequently
forfeited, canceled or otherwise terminated shall continue to count toward
the foregoing limitation in such fiscal year.
SECTION 4. ELIGIBILITY; AUTOMATIC GRANTS
4.1 ELIGIBLE OPTIONEES. Options may be granted under the Plan only to
Outside Directors of the Company, as described in Section 1.
4.2 OPTION GRANT DATE. Options shall be granted automatically to all
eligible directors as follows: (i) each person who is re-elected or initially
elected as an Outside Director on the date of the annual meeting of stockholders
(or special meeting in lieu thereof) at which the Plan is adopted by the
stockholders of the Company (the "Adoption Date") shall be granted on the
Adoption Date an option to purchase 15,000 shares of Common Stock (subject to
adjustment as provided in Section 7); (ii) each person initially elected
(whether by the stockholders or by the board of directors) as an Outside
Director at any time after the Adoption Date shall be granted, as of the date of
his or her initial election to the board of directors, an option to purchase
15,000 shares of Common Stock (subject to adjustment as provided in Section 7);
and (iii) each person who is re-elected as in Outside Director by the
stockholders of the Company at any time after the Adoption Date shall be
granted, on the date of the meeting or written consent of the stockholders at or
by which he or she is re-elected, an option to purchase 10,000 shares of Common
Stock
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(subject to adjustment as provided in Section 7), PROVIDED that he or she has
served as a director of the Company for at least the three months immediately
preceding that meeting.
4.3 OPTION VESTING DATES. An option granted under the Plan shall vest
in full immediately prior to the first annual meeting of stockholders (or
special meeting in lieu thereof at which Board members are elected following the
meeting of the stockholders or the board of directors at which such options were
granted, PROVIDED that the Optionee has served without interruption since the
grant date and continues to be a member of the Board at the time of vesting.
Notwithstanding the foregoing, if a director received an Initial Option within
three months of the next annual meeting (or special meeting, in lieu thereof) at
which Board members are elected, his or her Initial Option shall vest not at
that meeting, but at the subsequent annual meeting, of stockholders (or special
meeting in lieu thereof) at which Board members are elected.
SECTION 5. TERMS OF THE OPTION AGREEMENTS
5.1 MANDATORY TERMS. Each option agreement shall contain such
provisions as the Plan Administrator shall from time to time deem appropriate.
Option agreements need not be identical, but each option agreement by
appropriate language shall include the substance of all of the following
provisions:
(a) EXPIRATION. Notwithstanding any other provision of the
Plan or of any option agreement, each option shall expire on the tenth
anniversary of the date on which the option was granted.
(b) EXERCISE. Each option shall be exercisable in full or in
installments (which need not be equal) and at such times as designated
by the Plan Administrator. To the extent not exercised, installments
shall accumulate and be exercisable, in whole or in part, at any time
after becoming exercisable, but not later than the date the option
expires.
(c) PURCHASE PRICE. The purchase price per share of the Common
Stock under each option shall be equal to the fair market value of the
Common Stock on the date the option is granted. For the purpose of the
Plan, the fair market value of the Common Stock shall be the closing
price per share on the date of grant of the option as reported by a
nationally recognized stock exchange, or, if the Common Stock is not
listed on such an exchange, as reported by the Nasdaq Stock Market,
Inc. ("Nasdaq"), or, if the Common Stock is not quoted on Nasdaq, the
fair market value as determined by the Plan Administrator.
(d) TRANSFERABILITY OF OPTIONS. Options granted under the Plan
and the rights and privileges conferred thereby may not be transferred,
assigned, pledged or hypothecated in any manner (whether by operation
of law or otherwise) other than by will or by applicable laws of
descent and distribution, and shall not be subject to execution,
attachment or similar process. Upon any attempt so to transfer, assign,
pledge, hypothecate or otherwise dispose of any option under the Plan
or any right or privilege conferred hereby, contrary to the provisions
of the Plan, or upon the sale or levy or any
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attachment or similar process upon the rights and privileges conferred
hereby, such option shall thereupon terminate and become null and void.
(e) TERMINATION OF DIRECTORSHIP OR DISABILITY OR DEATH OF
OPTIONEE. Except as may be otherwise expressly provided in the terms
and conditions of the option granted to an Optionee, options granted
hereunder shall terminate on the earliest to occur of (i) the date of
expiration thereof and (ii) the first anniversary of the initial day on
which the Optionee no longer serves as a director of the Company for
any reason.
(f) RIGHTS OF OPTIONEES.
(i) NO STOCKHOLDER RIGHTS FOR OPTIONS. No Optionee
shall be deemed for any purpose to be the owner of any shares
of Common Stock subject to any option unless and until (A) the
option shall have been exercised with respect to such shares
pursuant to the terms thereof, and (B) the Company shall have
issued and delivered a certificate representing such shares.
Thereupon, the Optionee shall have full voting, dividend and
other ownership rights with respect to such shares of Common
Stock.
(ii) NO RIGHT TO CONTINUE AS A DIRECTOR. Neither the
Plan, nor the granting of an option, no any other action taken
pursuant to the Plan, shall constitute or be evidence of any
agreement or understanding, express or implied, that the
Company will retain an Optionee as a director for any period
of time.
5.2 CERTAIN OPTIONAL TERM. The Plan Administrator may in its discretion
provide, upon the grant of any option hereunder, that the Company shall have an
option to repurchase all or any number of shares purchased upon exercise of such
option. The repurchase price per share payable by the Company shall be such
amount or be determined by such formula as is fixed by the Plan Administrator at
the time the option for the shares subject to repurchase was granted. The Plan
Administrator may also provide that the Company shall have a right of first
refusal with respect to the transfer or proposed transfer of any shares
purchased upon exercise of an option granted hereunder. In the event the Plan
Administrator shall grant options subject to the Company's repurchase rights or
rights of first refusal, the certificate or certificates representing the shares
purchased pursuant to the exercise of such option shall carry a legend
satisfactory to counsel for the Company referring to such rights.
SECTION 6. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE
6.1 NOTICE OF EXERCISE. Any option granted under the Plan may be
exercised by the Optionee by delivering to the Company on any business day a
written notice specifying the number of shares of Common Stock the Optionee then
desires to purchase and specifying the address to which the certificates for
such shares are to be mailed, accompanied by payment for such shares.
6.2 MEANS OF PAYMENT AND DELIVERY. Common Stock purchased on exercise
of an option must be paid for as follows: (a) in cash or by check (acceptable to
the Company in accordance with guidelines established for this purpose), bank
draft or money order payable to the order of the Company, (b) if so permitted by
the instrument evidencing the option by the Plan
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Administrator on or after grant of the option, through the delivery of shares
of Common Stock (which in the case of shares acquired from the Company upon
exercise of an option, have been outstanding for at least six months) having
a fair market value on the last business day preceding the date of exercise
equal to the purchase price, (c) by delivery of an unconditional and
irrevocable undertaking by a broker to deliver promptly to the Company
sufficient funds to pay the exercise price, (d) if so permitted by the
instrument evidencing the option or by the Plan Administrator on or after
grant of the option, by delivery of a promissory note of the Optionee to the
Company, payable on such terms as are specified by the Plan Administrator, or
(e) by any combination of the permissible forms of payment; PROVIDED that if
the Common Stock delivered upon exercise of that option is an original issue
of authorized Common Stock, at least so much of the exercise price as
represents the par value of such Common Stock must be paid other than by the
Optionee's promissory note or personal check. In the event that payment of
the option price is made as contemplated by (b) above, the fair market value
of the shares of Common Stock so delivered to the Company shall be determined
in the manner specified in Section 5.1(c). As promptly as practicable after
receipt of such written notification and payment, the Company shall deliver
to the Optionee certificates for the number of shares with respect to which
such Option has been so exercised, issued in the Optionee's name; PROVIDED,
HOWEVER, that such delivery shall be deemed effected for all purposes when
the Company or a stock transfer agent of the Company shall have deposited
such certificates in the United States mail, addressed to the Optionee at the
address specified pursuant to Section 6.1.
SECTION 7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
7.1 NO EFFECT OF OPTIONS UPON CERTAIN CORPORATE TRANSACTIONS. The
existence of outstanding options shall not affect in any way the right or power
of the Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of Common Stock, or any issue of bonds, debentures, preferred or prior
preference stock ahead of or affecting the Common Stock or the rights thereof,
or the dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
7.2 STOCK DIVIDENDS, RECAPITALIZATIONS, ETC. If at any time after the
effective date of the Plan the Company shall effect a subdivision or
consolidation of shares or other capital readjustment, the payment of a stock
dividend, or other increase or reduction of the number of shares of the Common
Stock outstanding, without receiving compensation therefor in money, services or
property, then: (i) the number, class and per share price of shares of stock
subject to outstanding options hereunder shall be appropriately adjusted in such
a manner as to entitle an Optionee to receive upon exercise of an option, for
the same aggregate cash consideration, the same total number and class of shares
that the owner of an equal number of outstanding shares of Common Stock would
own as a result of the event requiring the adjustment; and (ii) the number and
class of shares with respect to which options may be granted under the Plan
shall be adjusted by substituting for the total number of shares of Common Stock
then reserved for issuance under the Plan that number and class of shares of
stock that the owner of an equal number of outstanding shares of Common Stock
would own as the result of the event requiring the adjustment.
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7.3 DETERMINATION OF ADJUSTMENT. Adjustments under this Section 7 shall
be determined by the Plan Administrator and such determinations shall be
conclusive. The Plan Administrator shall have the discretion and power in any
such event to determine and to make effective provision for acceleration of the
time or times at which any option or portion thereof shall become exercisable.
No fractional shares of Common Stock shall be issued under the Plan on account
of any adjustment specified above.
7.4 NO ADJUSTMENT IN CERTAIN CASES. Except as hereinbefore expressly
provided, the issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash or property
or for labor or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or obligations
of the Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock then subject to outstanding options.
SECTION 8. EFFECT OF CERTAIN TRANSACTIONS
If the Company is a party to a reorganization or merger with one or
more other corporations, whether or not the Company, is the surviving or
resulting corporation, or if the Company consolidates with or into one or more
other corporations, or if the Company is liquidated or sells or otherwise
disposes of substantially all of its assets to another corporation (each
hereinafter referred to as a "Transaction") in any such event while unexercised
options remain outstanding under the Plan, then: (i) subject to the provisions
of clause (1) below, after the effective date of such Transaction unexercised
options shall remain outstanding and shall be exercisable in shares of Common
Stock, or, if applicable, shares of such stock or other securities, cash or
property as the holders of shares of Common Stock received pursuant to the terms
of such Transaction: (ii) the Plan Administrator may accelerate the time for
exercise of all unexercised and unexpired options to and after a date prior to
the effective date of such Transaction; or (iii) any outstanding options may be
canceled by the Plan Administrator as of the effective date of such Transaction,
provided that: (x) notice of such cancellation shall be given to each holder of
an option; (y) the Plan Administrator shall have accelerated the time for
exercise of all unexercised and unexpired options that it proposes to cancel;
and (z) each holder of an option shall have the right to exercise such option in
full.
SECTION 9. AMENDMENT OR TERMINATION OF THE PLAN
The Board may terminate the Plan at any time, and may amend the Plan at
any time and from time to time, subject to the limitation that, except as
provided in Sections 7 and 8, no amendment shall be effective unless approved by
the stockholders of the Company in accordance with applicable law and
regulations, at an annual or special meeting held within twelve months before or
after the date of adoption of such amendment, in any instance in which such
amendment would: (i) increase the number or shares of Common Stock as to which
options may be granted under the Plan; or (ii) change in substance the
provisions of Section 4 relating to eligibility to participate in the Plan or to
the automatic grant of options.
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Except as provided in Sections 7 and 8, rights and obligations under
any option granted before termination or amendment of the Plan shall not be
altered or impaired by such termination or amendment except with the consent of
the Optionee.
SECTION 10. NON-EXCLUSIVITY OF THE PLAN; NON-UNIFORM DETERMINATIONS
Neither the adoption of the Plan by the Board nor the approval of the
Plan by the stockholders of the Company shall be construed as creating any
limitations on the power of the Board to adopt such other incentive arrangements
as it may deem desirable, including without limitation the granting of stock
options otherwise than under the Plan, and such arrangements may be either
applicable generally or only in specific cases.
The Plan Administrator's determinations under the Plan need not be
uniform and may be made by it selectively among persons who receive or are
eligible to receive options under the Plan (whether or not such persons are
similarly situated). Without limiting the generality of the foregoing, the Plan
Administrator shall be entitled, among other things, to make non-uniform and
selective determinations, and to enter into non-uniform and selective option
agreements, as to (i) the non-mandatory terms and provisions of options and (ii)
the exercise by the Plan Administrator of its discretion in respect of the
exercise of options pursuant to the terms of the Plan.
SECTION 11. GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW; WITHHOLDING TAXES
The obligation of the Company to sell and deliver shares of Common
Stock with respect to options granted under the Plan shall be subject to all
applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by government
agencies as may be deemed necessary or appropriate by the Plan Administrator.
All shares sold under the Plan shall bear appropriate legends. The Company may,
but shall in no event be obligated to, register or qualify any shares covered by
options under applicable federal and state securities laws; and in the event
that any shares are so registered or qualified the Company may remove any legend
on certificates representing such shares. The Company shall not be obligated to
take any other affirmative action in order to cause the exercise of an option or
the issuance of shares pursuant thereto to comply with any law or regulation of
any governmental authority. The Plan shall be governed by and construed in
accordance with the laws of the State of New Hampshire.
Whenever under the Plan shares are to be delivered upon exercise of an
option, the Company shall be entitled to require as a condition of delivery that
the Optionee remit an amount sufficient to satisfy all federal, state and other
governmental withholding tax requirements related thereto. An employee may elect
to have such tax withholding obligation satisfied, in whole or in part, by: (i)
authorizing the Company to withhold from shares of Common Stock to be issued
pursuant to the exercise of an option a number of shares with an aggregate fair
market value (as defined in Section 5.1(c), determined as of the date the
withholding is effected) that would satisfy the withholding amount due with
respect to such exercise; or (ii) transferring to the Company shares of Common
Stock owned by the employee with an aggregate fair market value
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(as defined in Section 5.1(c) determined as of the date the withholding is
effected) that would satisfy the withholding amount due.
SECTION 12. "LOCKUP" AGREEMENT
The Plan Administrator may in its discretion specify upon granting an
option that the Optionee shall agree, for a period of time (not to exceed 180
days) from the effective date of any registration of securities of the Company,
upon request of the Company or the underwriter or underwriters managing any
underwritten offering of the Company's, securities, not to sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise dispose of any
shares issued pursuant to the exercise of such option, without the prior written
consent of the Company and/or such underwriter or underwriters, as the case may
be.
SECTION 13. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective upon approval by the stockholders of
the Company. No option may be granted under the Plan after the tenth anniversary
of the effective date. The Plan shall terminate (i) when the total amount of
Common Stock with respect to which options may be granted shall have been issued
upon the exercise of options or (ii) by action of the Board pursuant to Section
9, whichever shall first occur.
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