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EXHIBIT 4.4
MICROSCRIPT, INC. 1997
STOCK OPTION PLAN
ARTICLE I
PURPOSE OF THE PLAN
The purpose of this Plan is to encourage and enable employees,
consultants, directors and others who are in a position to make significant
contributions to the success of the Corporation and of its affiliated
corporations upon whose judgment, initiative and efforts the Corporation depends
for the successful conduct of its business, to acquire a closer identification
of their interests with those of the Corporation by providing them with
opportunities to purchase stock in the Corporation pursuant to options granted
hereunder, thereby stimulating their efforts on behalf of the Corporation and
strengthening their desire to remain involved with the Corporation.
ARTICLE II
DEFINITIONS
2.1 "Affiliated Corporation" means any stock corporation of which a
majority of the voting common or capital stock is owned directly or indirectly
by the Corporation.
2.2 "Award" means an option granted under Article V hereinbelow.
2.3 "Board" means the Board of Directors of the Corporation.
2.4 "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
2.5 "Corporation" means MicroScript, Inc., a Massachusetts corporation,
or its successor.
2.6 "Employee" means any person who is a regular full-time or part-time
employee of the Corporation or an Affiliated Corporation on or after December 1,
1996.
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2.7 "Option" means an Incentive Stock Option or Non-Qualified Option
granted by the Board under Article V of this Plan in the form of a right to
purchase Stock evidenced by an instrument containing such provisions as the
Board may establish.
2.8 "Optionee" means an individual who has been granted an Option.
2.9 "Plan" means this 1997 Stock Option Plan.
2.10 "Incentive Stock Option" ("ISO") means an Option which qualifies
as an incentive stock Option as defined in Section 422 of the Code, as
amended.2.11 "Non-Qualified Option" means any Option not intended to qualify as
an Incentive Stock Option.
2.12 "Stock" means the Common Stock, with $0.05 par value, of the
Corporation or any successor, including any adjustments in the event of changes
in capital structure of the type described in Article X hereinbelow.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1 Administration by Board. This Plan shall be administered by the
Board of Directors of the Corporation. The Board may, from time to time,
delegate any of its functions under this Plan to one or more committees. All
references in this Plan to the Board shall also include the committee or
committees, if one or more have been appointed by the Board. From time to time
the Board may increase the size of the committee or committees and appoint
additional members thereto, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies however caused, or remove
all members of the committee or committees and thereafter directly administer
the Plan. No member of the Board or a committee shall be liable for any action
or determination made in good faith with respect to the Plan or any Options
granted under it.
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3.2 Powers. The Board of Directors and/or any committee appointed by
the Board shall have full and final authority to operate, manage and administer
the Plan on behalf of the Corporation. This authority includes, but is not
limited to:
(a) The power to grant Awards conditionally or
unconditionally;
(b) The power to prescribe the form or forms of the
instruments evidencing Awards granted under this Plan;
(c) The power to interpret and amend the Plan in any and all
respects except as provided in Article IX hereinbelow;
(d) The power to provide regulations for the operation of the
incentive features of the Plan, and otherwise to prescribe and rescind
regulations for interpretation, management and administration of the Plan;
(e) The power to delegate responsibility for Plan operation,
management and administration on such terms, consistent with the Plan, as the
Board may establish;
(f) The power to delegate to other persons the responsibility
of performing ministerial acts in furtherance of the Plan's purpose; and
(g) The power to engage the services of persons, companies, or
organizations in furtherance of the Plan's purpose, including but not limited
to, banks, insurance companies, accountants, attorneys, brokerage firms and
consultants.
3.3 Additional Powers. In addition, as to each Option to purchase Stock
of the Corporation, the Board shall have full and final authority in its
discretion: (a) to determine the number of shares of Stock subject to each
Option; (b) to determine the time or times at which Options will be granted; (c)
to determine the Option price of the shares of Stock subject to each Option,
which price shall be not less than the minimum price specified in Article V of
this Plan;
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(d) to determine the time or times when each Option shall become exercisable and
the duration of the exercise period (including the acceleration of any exercise
period for any events which the Board deems appropriate, including, but not
limited to, public offerings of the Corporation's stock and sales of all or
substantially all of the Corporation's assets or stock or the extension of any
period), which shall not exceed the maximum period specified in Article V; and
(e) to determine whether each Option granted shall be an Incentive Stock Option
or a Non-qualified Option.
In no event may the Corporation grant an Employee any Incentive Stock
Option that is first exercisable during any one calendar year to the extent the
aggregate fair market value of the Stock (determined at the time the Options are
granted) exceeds $100,000 (under all stock Option plans of the Corporation and
any Affiliated Corporation); provided, however, that this paragraph shall have
no force and effect if its inclusion in the Plan is not necessary for Incentive
Stock Options issued under the Plan to qualify as such pursuant to Section
422(d) of the Code.
ARTICLE IV
ELIGIBILITY
4.1 Eligible Employees. All Employees (including Directors who are
Employees) are eligible to be granted Incentive Stock Option and Non-Qualified
Option Awards under this Plan.
4.2 Consultants, Directors and other Non-Employees. Any Consultant,
Director (whether or not an Employee) and any other Non-Employee is eligible to
be granted Non-Qualified Option Awards under the Plan.
4.3 Relevant Factors. In selecting individual Employees, Consultants,
Directors and Non-Employees to whom Awards shall be granted, the Board shall
weigh such factors as are relevant to accomplish the purpose of the Plan as
stated in Article I. An individual who has been granted an Award may be granted
one or more additional Awards, if the Board so determines. The granting of an
Award to any individual shall neither entitle that individual to, nor disqualify
him/her from, participation in any other grant of Awards.
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ARTICLE V
STOCK OPTION AWARDS
5.1 Number of Shares. Subject to the provisions of Articles III and IX
of this Plan, the aggregate number of shares of Stock for which Options may be
granted under this Plan shall not exceed one million, five hundred thousand
(1,500,000) shares. The shares to be delivered upon exercise of Options under
this Plan shall be made available, at the discretion of the Board, either from
authorized but unissued shares or from previously issued and reacquired shares
of Stock held by the Corporation as treasury shares, including shares purchased
in the open market.
Stock issuable upon exercise of an Option granted under the Plan may be
subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Board of Directors.
5.2 Effect of Expiration, Termination or Surrender. If an Option under
this Plan shall expire or terminate unexercised as to any shares covered
thereby, or shall cease for any reason to be exercisable in whole or in part, or
if the Corporation shall reacquire any unvested shares issued pursuant to
Options under the Plan, such shares shall thereafter be available for the
granting of other Options under this Plan.
5.3 Term of Options. The full term of each Option granted hereunder
shall be for such period as the Board shall determine. In the case of Incentive
Stock Options granted hereunder, the term shall not exceed ten (10) years from
the date of granting thereof. Each Option shall be subject to earlier
termination as provided in Sections 6.3 and 6.4 hereof. Notwithstanding the
foregoing, Options intended to qualify as "Incentive Stock Options" may not be
granted to any employee who
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at the time such Option is granted owns more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company unless such Option
must be exercisable within five (5) years from the date such Option is granted.
5.4 Option Price. The Option price shall be determined by the Board at
the time any Option is granted. In the case of Incentive Stock Options, the
exercise price shall not be less than 100% of the fair market value of the
shares covered thereby at the time the Incentive Stock Option is granted (but in
no event less than par value), provided that no Incentive Stock Option shall be
granted hereunder to any Employee if at the time of grant the Employee, directly
or indirectly, owns Stock possessing more than 10% of the combined voting power
of all classes of stock of the Corporation and its Affiliated Corporations
unless the Incentive Stock Option exercise price equals not less than 110% of
the fair market value of the shares covered thereby at the time the Incentive
Stock Option is granted.
5.5 Fair Market Value. If, at the time an Option is granted under the
Plan, the Corporation's Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Stock on the principal national securities exchange on which the Stock is
traded, if the Stock is then traded on a national securities exchange; or (ii)
the last reported sale price (on that date) of the Stock on the NASDAQ National
Market List, if the Stock is not then traded on a national securities exchange;
or (iii) the closing bid price (or average of bid prices) last quoted (on that
date) by an established quotation service for over-the-counter securities, if
the Stock is not reported on the NASDAQ National Market List. However, if the
Stock is not publicly traded at the time an Option is granted under the Plan,
"fair market value" shall be deemed to be the fair market value of the
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Stock as determined by the Board after taking into consideration all factors
which it deems appropriate, including, without limitation, recent sale and offer
prices of the Stock in private transactions negotiated at arm's length, the
ownership percentage which the Optionee shall obtain if the Optionee exercises
his/her option and the economic conditions for the Corporation's business at the
time the Option is granted.
5.6 Non-Transferability of Options. No Option granted under this Plan
shall be transferable by the Optionee otherwise than by will or the laws of
descent and distribution, and such Option may be exercised during the Optionee's
lifetime only by the Optionee.
5.7 Requirement for Shareholder Assent. Options may be awarded only if
each holder of 25 percent or more of the common stock of the Company ("Major
Shareholder"), or the holder of his or her duly authorized proxy or other duly
authorized representative, has assented to the award in one of the following
three ways: (1) by voting in favor of the award while present at a meeting of
the Board; or (2) by approving the award in writing; or (3) by electing in
writing not to participate in the Option award process. The Board shall record
the means of Major Shareholder assent for each Option award.
ARTICLE VI
EXERCISE OF OPTION
6.1 Exercise. Each Option granted under this Plan shall be exercisable
on such date or dates and during such period and for such number of shares as
shall be determined pursuant to the provisions of the instrument evidencing such
Option. The Board shall have the right to accelerate the date of exercise of any
Option, provided that, the Board shall not accelerate the exercise date of any
Incentive Stock Option granted if such acceleration would violate the annual
Option exercise limitation contained in Section 422(d) of the Code.
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6.2 Notice of Exercise and Surrender of Option. A person electing to
exercise an Option shall give written notice to the Corporation of such election
and of the number of shares he or she has elected to purchase and shall at the
time of exercise tender the full exercise price for the shares he or she has
elected to purchase. The exercise price can be paid partly or completely in
shares of the Corporation's stock valued at Fair Market Value as defined in
Section 5.5 hereof. Prior to receiving any stock certificate for Options that
have been exercised, the Option holder must surrender the Option certificate to
the Corporation or if such Option certificate is lost, sign all documents
reasonably requested by the Corporation relating to the lost certificate. The
Option holder must also execute any shareholder agreements then in force or
other documents reasonably requested by the Corporation prior to receipt of the
stock certificates. Until such person has been issued a certificate or
certificates for the shares so purchased and executed and delivered to the
Corporation the documents referred to in the prior sentence, he or she shall
possess no rights of a record holder with respect to any of such shares.
6.3 Cessation of Employment. No Incentive Stock Option (and, unless
otherwise determined by the Board of Directors, no Non-Qualified Option granted
to a person who is, on the date of the grant, an Employee of the Corporation or
an Affiliated Corporation) shall be affected by any change of duties or position
of the Optionee (including transfer to or from an Affiliated Corporation), so
long as he or she continues to be an Employee. Employment shall be considered as
continuing uninterrupted during any bona fide leave of absence (such as those
attributable to illness, military obligations or governmental service) provided
that the period of such leave does not exceed ninety (90) days or, if longer,
any period during which such Optionee's right to reemployment is guaranteed by
statute. A bona fide leave of absence with the written approval of the Board
shall not be considered an interruption of employment under the Plan, provided
that such written approval
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contractually obligates the Corporation or any Affiliated Corporation to
continue the employment of the Optionee after the approved period of absence.
If the Optionee shall cease to be an Employee for any reason other than
death or disability, then any remaining Options which are vested shall terminate
upon the earlier of (A) the expiration of the original term of the Options; or
(B) the date of termination of the Employee's term of employment with the
Corporation, provided however that the Board may vary or depart from or extend
these time limits by the terms of its option grant or otherwise in its sole
discretion.
6.4 Death and Disability of Optionee. If the Employee's term of
employment with the Corporation terminates due to the disability of the
Employee, then any remaining Options of the Employee which are vested shall
terminate upon the earlier of (A) the expiration of the original term of the
Option; or (B) one (1) year from the date in which the Employee's term of
employment with the Corporation is terminated. For purpose of the Plan, the term
"disability" shall mean "permanent and total disability" as defined in Section
22(e)(3) of the Code.
Should an Optionee die while in possession of the legal right to
exercise an Option or Options under this Plan, such persons as shall have
acquired, by will or by the laws of descent and distribution, the right to
exercise any Options theretofore granted, may, unless otherwise provided by the
Board in any instrument evidencing any Option, exercise such Options at any time
prior to ninety (90) days from the date of death; provided, that such Option or
Options shall expire in all events no later than the last day of the original
term of such Option; provided, further, that any such exercise shall be limited
to the Options which have become vested as of the date when the Optionee ceased
to be an Employee by reason of death, unless the Board provides in the
instrument evidencing such Option that, in the discretion of the Board,
additional shares covered by such Option may become subject to purchase
immediately upon the death of the Optionee. Notwithstanding anything in this
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Article to the contrary, in the case of an Incentive Stock Option, such Option
or Options shall expire in all events no later than ninety (90) days from the
date of death.
ARTICLE VII
TERMS AND CONDITIONS OF OPTIONS
Options shall be evidenced by instruments (which need not be identical)
in such forms as the Board may from time to time approve. Such instruments shall
conform to the terms and conditions set forth in Articles V and VI hereof and
may contain such other provisions as the Board deems advisable which are not
inconsistent with the Plan, including restrictions applicable to shares of Stock
issuable upon exercise of Options. In granting any Non-Qualified Option, the
Board may specify that such Non-Qualified Option shall be subject to the
restrictions set forth herein with respect to Incentive Stock Options, or to
such other termination and cancellation provisions as the Board may determine.
The Board may from time to time confer authority and responsibility on one or
more of its own members and/or one or more officers of the Corporation to
execute and deliver such instruments. The proper officers of the Corporation are
authorized and directed to take any and all action necessary or advisable from
time to time to carry out the terms of such instruments.
ARTICLE VIII
BENEFIT PLANS
Awards under the Plan are discretionary and are not a part of regular
salary. Awards may not be used in determining the amount of compensation for any
purpose under the benefit plans of the Corporation, or an Affiliated
Corporation, except as the Board may from time to time expressly provide.
Neither the Plan, an Option or any instrument evidencing an Option confers upon
any Employee the right to continued employment with the Corporation or an
Affiliated Corporation.
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ARTICLE IX
AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Board may suspend the Plan or any part thereof at any time or may
terminate the Plan in its entirety. Awards shall not be granted after Plan
termination.
The Board may also amend the Plan from time to time, except that
amendments which change the requirements as to eligibility for grant of Options
in the Plan must be approved by a majority in interest of the stockholders of
the Corporation entitled it to vote, and any suspension of, alteration of, or
amendment to Section 5.7 of this Plan must be approved by the affirmative vote
of 75 percent of issued and outstanding common shares.
Awards granted prior to suspension or termination of the Plan may not
be canceled solely because of such suspension or termination, except with the
consent of the grantee of the Award.
ARTICLE X
CHANGES IN CAPITAL STRUCTURE
The instruments evidencing Options granted hereunder shall be subject
to adjustment, at the sole discretion of the Board, in the event of changes in
the outstanding Stock of the Corporation by reason of: Stock dividends, Stock
splits, recapitalizations, reorganizations, mergers, consolidations,
combinations, exchanges or other relevant changes in capitalization occurring
after the date of an Award to the same extent as would affect an actual share of
Stock issued and outstanding on the effective date of such change. Such
adjustment to outstanding Options shall be made without change in the total
price applicable to the unexercised portion of such Options, and a corresponding
adjustment in the applicable Option price per share shall be made. In the event
of any such change, the aggregate number and classes of shares for which Options
may thereafter be granted under
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Section 5.1 of this Plan may be appropriately adjusted as determined by the
Board so as to reflect such change.
Notwithstanding the foregoing, any adjustments made pursuant to this
Article X with respect to Incentive Stock Options shall be made only after the
Board, after consulting with counsel for the Corporation, determines whether
such adjustments would constitute a "modification" of such Incentive Stock
Options (as that term is defined in Section 425 of the Code) or would cause any
adverse tax consequences for the holders of such Incentive Stock Options. If the
Board determines that such adjustments made with respect to Incentive Stock
Options would constitute a modification of such Incentive Stock Options, it may
refrain from making such adjustments.
In the event of the proposed dissolution or liquidation of the
Corporation, each Option will terminate immediately prior to the consummation of
such proposed action or at such other time and subject to such other conditions
as shall be determined by the Board.
Except as expressly provided herein, no issuance by the Corporation 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 subject to any outstanding Options. No
adjustments shall be made for dividends paid in cash or in property other than
securities of the Corporation.
No fractional shares shall be issued under the Plan and the Optionee
shall receive from the Corporation cash in lieu of such fractional shares.
ARTICLE XI
EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective upon the date of its adoption by the
Stockholders and the Board of Directors. The Plan shall continue until such time
as it may be terminated by action of the
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Board; provided, however, that no Options may be granted under this Plan on or
after the tenth anniversary of the effective date hereof.
ARTICLE XII
CONVERSION OF ISOS INTO NON-QUALIFIED OPTIONS; TERMINATION OF ISOS
The Board, at the written request of any Optionee, may in its
discretion take such actions as may be necessary to convert such Optionee's
Incentive Stock Options, that have not been exercised on the date of conversion,
into Non-Qualified Options at any time prior to the expiration of such Incentive
Stock Options, regardless of whether the Optionee is an Employee of the
Corporation or an Affiliated Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of such Options. At the time of such conversion, the
Board (with the consent of the Optionee) may impose such conditions on the
exercise of the resulting Non-Qualified Options as the Board in its discretion
may determine, provided that such conditions shall not be inconsistent with the
Plan. Nothing in the Plan shall be deemed to give any Optionee the right to have
such Optionee's Incentive Stock Options converted into Non-Qualified Options,
and no such conversion shall occur until and unless the Board takes appropriate
action. The Board, with the consent of the Optionee, may also terminate any
portion of any Incentive Stock Option that has not been exercised at the time of
such termination.
ARTICLE XIII
APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of shares
pursuant to Options granted under the Plan shall be used for general corporate
purposes.
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ARTICLE XIV
GOVERNMENTAL REGULATION
The Corporation's obligation to sell and deliver shares of Stock under
this Plan is subject to the approval of any governmental authority required in
connection with the authorization, issuance or sale of such shares.
ARTICLE XV
WITHHOLDING OF ADDITIONAL INCOME TAXES
Upon the exercise of a Non-Qualified Option or the making of a
Disqualifying Disposition (as defined in Article XVI) the Corporation, in
accordance with Section 3402(a) of the Code, may require the Optionee to pay
additional withholding taxes in respect of the amount that is considered
compensation includible in such person's gross income. The Board in its
discretion may condition the exercise of an Option on the payment of such
additional withholding taxes.
ARTICLE XVI
NOTICE TO THE CORPORATION OF DISQUALIFYING DISPOSITION
Each Employee who receives an Incentive Stock Option must agree to
notify the Corporation in writing immediately after the Employee makes a
disqualifying disposition (as defined herein) of any Stock acquired pursuant to
the exercise of an Incentive Stock Option. A Disqualifying Disposition is any
disposition (including any sale) of such Stock before the later of (a) two years
after the date the Employee was granted the Incentive Stock Option or (b) one
year after the date the Employee acquired Stock by exercising the Incentive
Stock Option. If the Employee has died before such stock is sold, these holding
period requirements do not apply and no Disqualifying Disposition can occur
thereafter.
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ARTICLE XVII
GOVERNING LAW; CONSTRUCTION
The validity and construction of the Plan and the instruments evidencing Options
shall be governed by the laws of the Commonwealth of Massachusetts and all
disputes related thereto shall be adjudicated in the state or federal courts
located in Boston, Massachusetts. In construing this Plan, the singular shall
include the plural and the masculine gender shall include the feminine and
neuter, unless the context otherwise requires.
AS STOCKHOLDERS:
/s/ Francis D. Privitera
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Francis D. Privitera, as Trustee of
The 26 Frost Street Trust
/s/ Phillip K. Ciolfi
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Phillip K. Ciolfi
AS DIRECTORS:
/s/ John Moriarty
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John Moriarty
/s/ Phillip K. Ciolfi
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Phillip K. Ciolfi
/s/ Francis D. Privitera
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Francis D. Privitera
/s/ Stephen Sweeney
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Stephen Sweeney
/s/ James Coppersmith
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James Coppersmith