EXHIBIT 4.4
WEB21 STOCK OPTION PLAN
1. Purpose of the Plan. Under this Stock Option Plan (the "Plan") of
WEB21, a California corporation (the "Company"), options may be granted to
eligible employees to purchase shares of the Company's capital stock. The Plan
is designed to enable the Company to attract, retain and motivate its employees
by providing for increasing the proprietary interests of such employees in the
Company. The Plan provides for options which qualify as incentive stock options
("Incentive Options") under Section 422 of the Internal Revenue Code of 1986, as
amended, as well as options which do not so qualify.
2. Stock Subject to Plan. The maximum number of shares of stock
subject to this Plan and for which options granted hereunder may therefore be
exercised shall be One Million (1,000,000) shares of the Company's common stock
without par value, subject to the adjustments provided in Sections 6 and 12.
Shares of stock subject to the unexercised portions of any options granted under
this Plan which expire or terminate or are canceled may again be subject to
options under the Plan. When the exercise price for an option granted under this
Plan is paid with previously outstanding shares or with shares as to which the
option is being exercised, as permitted in Section 9, the total number of shares
of stock for which options granted under this Plan may thereafter be exercised
shall be irrevocably reduced by the total number of shares for which such option
is thus exercised, without regard to the number of shares received or retained
by the Company in connection with the exercise.
3. Eligible Employees. The employees eligible to be considered for
the grant of options hereunder are any persons regularly employed by the Company
on a full-time basis.
4. Minimum Exercise Price. The exercise price for each option granted
hereunder shall be not less than 100% of the Fair Market Value (defined
hereinbelow) of the stock being optioned at the date of the grant of the option.
5. Nontransferability. Any option granted under this Plan shall be
its terms be nontransferable by the optionee other than by will or the laws of
descent and distribution and shall be exercisable during the optionee's lifetime
only by the optionee or by the optionee's guardian or legal representative,
except that an option which is not intended to be an Incentive Option may, if
the instrument evidencing it so provides, also be transferable to members of the
optionee's Immediate Family (defined hereinbelow), to a partnership whose
members are only he optionee and/or members of the Optionee's Immediate Family,
or to a trust for the benefit of only the optionee and/or members of the
optionee's Immediate family.
6. Adjustments. If the outstanding shares of stock of the class then
subject to this plan are increased or decreased, or are changed into or
exchanged for a different number or kind of shares or securities or other forms
of property (including cash) or rights, as a result of one or more
reorganizations, recapitalizations, spin-offs, stock splits, reverse stock
splits, stock dividends or the like, appropriate adjustments shall be made in
the number and/or kind of shares or securities or other forms of property
(including cash) or rights for which options may thereafter be granted under
this Plan may thereafter be exercised. Any such adjustment in outstanding
options shall be made without changing the aggregate exercise price applicable
to the unexercised portions of such options.
In connection with any reorganization, recapitalization, spin-off or other
transaction in which the outstanding shares of stock of the class then subject
to options outstanding under this Plan are changed into or exchanged for
property (including cash), rights and/or securities other than, or in addition
to, stock of the Company's issue, an outstanding option may under this Section
entitled "Adjustments" be adjusted to become exercisable for either: (a) the
property (including cash), rights and/or securities receivable in that
transaction by a holder of the number and king of outstanding shares of stock
subject to the option immediately prior to the transaction; or (b) stock of the
Company or of a successor employer corporation, or a parent or subsidiary
thereof, provided, that (i) such adjustment may preserve but may not increase
any amount by which the Fair Market Value of the stock subject to the option
exceeds the option exercise price, comparing such excess immediately before and
immediately after the transaction, and (ii) such adjustment may preserve but may
not reduce the ratio of the option exercise price to the Fair Market Value of
the stock subject to the option, comparing such ration immediately before and
immediately after the transaction.
7. Maximum Option Term. No option granted under this Plan may be
exercised in whole or in part more than ten years after its date of grant.
8. Plan Duration. Options may not be granted under this Plan after
ten years after the adoption of the Plan, or stockholder approval thereof,
whichever is earlier.
9. Payment. Payment for sock purchased upon any exercise of an option
granted under this Plan shall be made in full in cash (including payment by
check) concurrently with such exercise, except that, if and to the extent the
instrument evidencing the option so provides and the Company is not the
prohibited from purchasing or acquiring shares of such stock, such payment may
be made in whole or in part with shares of the same call of stock as that then
subject to the option, delivered in lieu of cash concurrently with such
exercise, the shares so delivered to be valued on the basis of the Fair Market
Value of the stock on the date of exercise. If and while payment with stock is
permitted for the exercise of an option granted under this Plan in accordance
with the foregoing provision, the instrument evidencing the option may also
permit the person then entitled to exercise that option, in lieu of using
previously outstanding shares therefor, to use some of the shares as to which
the option is then being exercised.
10. Administration. The Plan shall be administered by the Company's
board of directors (the "Board") or, at the discretion of the Board, by a
committee (the "Committee") of not less than two members of the Board. The
interpretation and construction by the Committee of any term or provision of the
Plan or of any option granted under it, including without limitation any
determination of adjustments required pursuant to Section 6 hereof, shall be
conclusive, unless otherwise determined by the Board in which event such action
by the Board shall be conclusive, and such interpretation and construction shall
be binding upon all those who hold or are eligible to receive options under the
Plan, and all persons claiming under them. The Board or Committee may from time
to time adopt rules and regulations for carrying out this Plan and, subject to
the provisions of this Plan, may prescribe the form or forms of the instruments
evidencing any option granted under this Plan. Subject to the provisions of this
Plan, the Board, or, by delegation from the Board, the Committee, shall have
full and final authority in its discretion to select the employees to be granted
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options, to authorize granting such options and to determine the number of
shares to be subject thereto, the exercise prices, the terms of exercise,
expiration dates and other pertinent provision thereof.
11. Other Option Provisions. Options granted under this Plan shall contain
such other terms and provisions which are not inconsistent with this Plan as the
Board or Committee may authorize, including but not limited to (a) vesting
schedules governing the exercisability of such options, (b) provisions for
acceleration of such vesting schedules in certain events, (c) arrangements
whereby the Company may fulfill any tax withholding obligations it may have in
connection with the exercise of such options, (d) provisions imposing
restrictions upon the transferability of stock acquired on exercise of such
option, whether required by this Plan or applicable securities laws or imposed
for other reasons, and (e) provisions regarding the termination or survival of
any such option upon the optionee's death, retirement of other terminations of
employment and the extent, if any, to which any such option may be exercised
after such event. Incentive Options shall contain the terms an provisions
required of them under the Internal Revenue Code.
12. Corporate Reorganizations. Upon the dissolution or liquidation of the
Company, or upon a reorganization, merger or consolidation of the Company as a
result of which the outstanding securities of the class then subject to options
hereunder are changed into or exchanged for property (including cash), rights or
securities not of the Company's issue, or any combination thereof, or upon a
sale of substantially all the property of the Company to, or the acquisition of
stock representing more than eighty percent (80%) of the voting power of the
stock of the Company then outstanding by, another corporation or person, the
Plan shall terminate, and all options theretofore granted hereunder shall
terminate, unless provision be made in writing in connection with such
transaction for the continuance of the Plan and/or for the assumption of options
theretofore granted, or the substitution for such option of options covering the
stock of a successor employer corporation, or a parent or a subsidiary thereof,
with appropriate adjustments in accordance with Section 6 hereof as to the
number and kind of shares optioned and their exercise prices, in which event the
Plan and options theretofore granted shall continue in the manner and under the
terms so provided. The instrument evidencing any option may also provide for the
acceleration of otherwise unexercisable portions of the option (a) if the option
shall terminate pursuant to the foregoing sentence, such acceleration to become
effective at such time prior to the consummation of the transaction causing such
termination as the Company shall designate, and (b) upon other specified events
or occurrences, such as involuntary terminations of the option holder's
employment following certain changes in the control of the Company.
13. Financial Assistance. The Company is vested with authority under this
Plan to assist any employee to whom an option is granted hereunder (including
any director or officer of the Company or any of its subsidiaries who is also an
employee) in the payment of the purchase price payable on exercise of that
option, by lending the amount of such purchase price to such employee on such
terms and at such rates of interest and upon such security (or unsecured) as
shall have been authorized by or under authority of the Board.
14. Company's Right of First Purchase. While and so long as the stock of
the class subject to this Plan has not been Publicly Traded for at least ninety
days, any stock issued on exercise of any option granted under the Plan shall be
subject to the Company's right of first purchase. By virtue of
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that right, (a) such stock may not be transferred during the optionee's lifetime
to any person other than members of the optionee's Immediate Family, a
partnership whose members are the optionee and/or members of the optionee's
Immediate Family, or a trust for the benefit of the optionee and/or members of
the optionee's Immediate Family, unless such transfer occurs within fifteen days
following the expiration of thirty days after the Company has been given a
written notice which correctly identified the prospective transferee or
transferees and which offered the Company an opportunity to purchase such stock
at its Fair Market Value in cash, and such offer was not accepted within thirty
days after the Company's receipt of the notice; and (b) upon the optionee's
death, the Company shall have the right to purchase all or some of such stock at
its Fair Market Value within nine months after the date of death. This right of
first purchase shall continue to apply to any such stock after the transfer
during the optionee's lifetime of that stock to a member of the optionee's
Immediate Family or to a family partnership or trust as aforesaid, and after any
transfer of that stock with respect to which the Company expressly waived its
right of first purchase without also waiving it as to any subsequent transfers
thereof, but it shall not apply after a transfer of that stock with respect to
which the Company was offered but did not exercise or waive its right of first
purchase or more than nine months after the death. The Company may assign all or
any portion of its right of first purchase to any one or more of its
stockholders, or to a pension or retirement plan or trust for employees of the
Company, who may then exercise the right so assigned. Stock certificates
evidencing stock subject to this right of first purchase shall be appropriately
legended to reflect that right.
15. Limitations of Rights of Participants.
(a) A person to whom an option is granted under this Plan
shall not have any interest in the optioned shares or in any dividends
paid thereon, and shall not have any of the rights or privileges of a
stockholder with respect to such shares, until the certificates therefor
have been issued and delivered to him or her.
(b) No shares of stock issuable under the Plan shall be
issued and no certificate therefor delivered unless and until, in the
opinion of legal counsel for the Company, such securities may be issued
and delivered without causing the Company to be in violation of or to
incur any liability under any federal, state or other securities law, or
any other requirement of law or of any regulatory body having jurisdiction
over the Company.
(c) The receipt of an option does not give the optionee any
right to continued employment by the Company or a subsidiary for any
period, nor shall the granting of the option or the issuance of shares on
exercise thereof give the Company or any subsidiary any right to the
continued services of the optionee for any period.
(d) Nothing contained in this Plan shall constitute the
granting of an option hereunder, which shall occur only pursuant to
express authorization by the Board or the Committee.
16. Amendment and Termination. The Board may alter, amend, suspend or
terminate this Plan, provided that no such action shall deprive an optionee who
has not consented thereto of any option granted to the optionee pursuant to this
Plan or of any of the optionee's rights under such
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option. Except as herein provided, no such action of the Board, unless taken
with the approval of the stockholders of the Company, may:
(a) increase the maximum number of shares for which options granted
under this Plan may be exercised; (b) reduce the minimum permissible
exercise price; (c) extend the ten-year duration of the Plan set forth
herein; (d) alter the class of employees eligible to receive options under
the Plan; or (e) amend the Plan in any other manner which the Board, in
its discretion, determines should become effective only if approved by the
stockholders even though such stockholder approval is not expressly
required by this Plan.
17. Certain Definitions. The terms "Board," "Committee," and "Incentive
Options" have been defined hereinabove. In addition, as used in this Plan, the
following terms shall have the following meanings:
(a) The "Fair Market Value" of corporate stock shall mean:
(1) If the stock is then Publicly Trades: The closing price
of stock of that class as of the day in question (or, if such day is
not a trading day in the principal securities market or markets for
such stock, on the nearest preceding trading day), as reported with
respect to the market (or the composite of markets, if more than one)
in which shares of such stock are then traded, or, if no such closing
prices are reported, on the basis of the mean between the high bid and
low asked prices that day on the principal market or quotation system
on which shares of such stock are then quoted, or, if not so quoted,
as furnished by a professional securities dealer making a market in
such stock selected by the Board or the Committee.
(2) If the stock is then not Publicly Traded: The price at
which one could reasonably expect such stock to be sold in an arm's
length transaction, for cash, other than on an installment basis, to a
person not employed by, controlled by, in control of or under common
control with the issuer of such stock. Such Fair Market Value shall be
that which has currently or most recently been determined for this
purpose by the Board, or at the discretion of the Board by an
independent appraiser or appraisers selected by the Board, in either
case giving due consideration to recent transactions involving shares
of such stock, if any, the issuer's net worth, prospective earning
power and dividend-paying capacity, the goodwill of the issuer's
business, the issuer's industry position and its management, that
industry's economic outlook, the values of securities of issuers whose
stock is Publicly Traded and which are engaged in similar businesses,
the effect of transfer restrictions to which such stock may be subject
under law and under the applicable terms of any contract governing
such stock, the absence of a public market for such stock and such
other matters as the Board or its appraiser or appraisers of the Fair
Market Value shall, if not unreasonable, be conclusive and binding
notwithstanding the possibility that other person might make a
different, and also reasonable, determination. If the Fair Market
Value to be used was thus fixed more than sixteen months prior to the
day as of which Fair Market
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Value is being determined, it shall in any event be no less than the
book value of the stock being valued at the end of the most recent
period for which financial statements of the issuer are available.
(b) An individual's "Immediate Family" includes only his or her
spouse, parents or other ancestors, and children and other direct
descendants of that individual or of his or her spouse (including such
ancestors and descendants by adoption).
(c) Corporate stock is "Publicly Traded" if stock of that class is
listed or admitted to unlisted trading privileges on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. ("NASD") or if sales or bid and offer quotations are
reported for that class of stock in the automated quotation system
("NASDAQ") operated by the NASD.
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