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EXHIBIT 4(a)
POPMAIL.COM INC.
SUBSIDIARY ADVISOR STOCK OPTION PLAN
1. PURPOSE. The purpose of the PopMail.com, inc. Subsidiary Advisor
Stock Option Plan (the "Plan") is to advance the interests of PopMail.com, inc.
(the "Parent"), its subsidiaries and Parent's shareholders by encouraging
ownership of Parent's common stock by consultants and advisors to the
subsidiaries of Parent, in order to promote long-term shareholder value through
continuing ownership of Parent's common stock.
2. ADMINISTRATION. The Plan shall be administered by the Subsidiary
Advisor Stock Option Plan Committee (the "Committee") appointed by Parent's
Board of Directors. Members of the Committee shall at all times serve at the
pleasure of Parent's Board of Directors, and Parent's Board of Directors may
appoint a Chairman of the Committee. If at any time a Committee has not been
appointed, the Board of Parent shall have all powers granted to the Committee
under this Plan. The Committee shall have all the powers vested in it by the
terms of the Plan, such powers to include authority (within the limitations
described herein) to prescribe the form of the agreement embodying awards of
nonqualified stock options made under the Plan ("Options"). The Chairman of the
Committee shall have the authority to grant Options under the Plan, provided,
however, that (i) the Chairman grants the Options to individuals included in a
list of optionees approved in advance by the Committee and (ii) the grants will
be subject to approval by the Committee, acting as a whole, in the event of any
proposed grant of shares in excess of 10% of the total shares of Common Stock
remaining available for grant under the Plan. The Committee shall have the power
to construe the Plan, to determine all questions arising thereunder and to adopt
and amend such rules and regulations for the administration of the Plan as it
may deem desirable. Any decisions of the Committee in the administration of the
Plan, as described herein, shall be final and conclusive. The Committee may act
only by a majority of its members in office, except that the members thereof may
authorize any one or more of their number or any other officer of Parent to
execute and deliver documents on behalf of the Committee. No member of the
Committee shall be liable for anything done or omitted to be done by him or by
any other member of the Committee in connection with the Plan, except for his
own willful misconduct or as expressly provided by statute.
3. PARTICIPATION. All consultants and advisors to the subsidiaries of
Parent who are not employees or directors of Parent or any of its subsidiaries
(each an "Advisor") shall be eligible to receive an Option in accordance with
Section 5 below.
4. AWARDS UNDER THE PLAN.
(a) Awards under the Plan shall include only Options, which are rights
to purchase common stock of Parent, having $.01 par value (the "Common Stock").
The Options under the Plan will not be incentive stock options within the
meaning of the Internal Revenue Code of 1986, as amended. Such Options are
subject to the terms, conditions and restrictions specified in Section 5 below.
(b) There may be issued under the Plan pursuant to the exercise of
Options an aggregate of not more than 500,000 shares of Common Stock, subject to
adjustment as provided in Section 6 below. If any Option is canceled, terminates
or expires unexercised, in whole or in part, any shares of Common Stock that
would otherwise have been issuable pursuant thereto will be available for
issuance under new Options.
(c) An Advisor to whom an Option is granted (and any person succeeding
to such Advisor's rights pursuant to the Plan) shall have no rights as a
shareholder with respect to any Common Stock issuable pursuant to any such
Option until the date of the issuance of a stock certificate to him for such
shares. Except as provided in Section 6 below, no adjustment shall be made for
dividends, distributions or other
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rights (whether ordinary or extraordinary, and whether in cash, securities or
other property) for which the record date is prior to the date such stock
certificate is issued.
5. NONQUALIFIED STOCK OPTIONS. Each Option granted under the Plan shall
be evidenced by an agreement in such form as the Committee shall prescribe from
time to time in accordance with the Plan and shall comply with the following
terms and conditions:
(a) The Option exercise price shall be the "Fair Market Value" (as
herein defined) of the Common Stock subject to such Option on the date the
Option is granted. Fair Market Value shall be the closing sales price of a share
of Common Stock on the date of grant as reported on the Nasdaq SmallCap Market
or, if the Nasdaq SmallCap Market is closed on that date, on the last preceding
date on which the Nasdaq Market was open for trading, but in no event will such
Option exercise price be less than the par value of the Common Stock.
(b) The Committee (or the Chairman if permitted under Section 2) shall
determine the number of shares of Common Stock subject to each Option granted to
an Advisor and, subject to Section 5(d) hereof, the vesting schedule of each
such Option. Notwithstanding the foregoing, once such Options become
outstanding, an Advisor will still be entitled to the anti-dilution adjustments
provided for in Section 6 hereof.
(c) The Option shall not be transferable by the optionee otherwise than
by will or the laws of descent and distribution, and shall be exercisable during
his lifetime only by him.
(d) Options shall not be exercisable:
(i) except pursuant to the vesting schedule established by the
Committee and after the expiration of ten years from the date it is granted.
(II) UNLESS PAYMENT IN FULL IS MADE FOR THE SHARES OF COMMON
STOCK BEING ACQUIRED THEREUNDER AT THE TIME OF EXERCISE, SUCH PAYMENT SHALL BE
MADE IN UNITED STATES DOLLARS BY CASH OR CHECK, OR IN LIEU THEREOF, BY TENDERING
TO THE COMPANY COMMON STOCK OWNED BY THE PERSON EXERCISING THE OPTION AND HAVING
A FAIR MARKET VALUE EQUAL TO THE CASH EXERCISE PRICE APPLICABLE TO SUCH OPTION,
OR BY A COMBINATION OF UNITED STATES DOLLARS AND COMMON STOCK AS AFORESAID; AND
(iii) unless the person exercising the Option has been an
Advisor at all times during the period beginning with the date of grant of the
Option and ending on the date of such exercise, except that if any person to
whom an Option has been granted shall die holding an Option that has not expired
and has not been fully exercised, his executors, administrators, heirs or
distributees, as the case may be, may, at any time within one year after the
date of such death (but in no event after the Option has expired under the
provisions of subparagraph 5(d)(i) above), exercise the Option with respect to
any shares subject to the Option.
6. DILUTION AND OTHER ADJUSTMENTS. In the event of any change in the
outstanding Common Stock of Parent by reason of any stock split, stock dividend,
split-up, split-off, spin-off, recapitalization, merger, consolidation, rights
offering, reorganization, combination or exchange of shares, a sale by Parent of
substantially all of its assets, any distribution to shareholders other than a
normal cash dividend, or other extraordinary or unusual event, the number or
kind of shares that may be issued under the Plan pursuant to subparagraph 4(b)
above, and the number or kind of shares subject to, and the Option price per
share under, all outstanding Options shall be automatically adjusted so that the
proportionate interest of the participant shall be maintained as before the
occurrence of such event; such adjustment in outstanding Options shall be made
without change in the total Option exercise price applicable to the unexercised
portion of such Options and with a corresponding adjustment in the Option
exercise price per share, and such adjustment shall be conclusive and binding
for all purposes of the Plan.
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7. MISCELLANEOUS PROVISIONS.
(a) Except as expressly provided for in the Plan, no Advisor or other
person shall have any claim or right to be granted an Option under the Plan.
Neither the Plan nor any action taken hereunder shall be construed as giving any
Advisor the right to be retained under contract by the Company or any of its
subsidiaries.
(b) An Advisor's rights and interest under the Plan may not be assigned
or transferred, hypothecated or encumbered in whole or in part either directly
or by operation of law or otherwise (except in the event of a participant's
death, by will or the laws of descent and distribution), including, but not by
way of limitation, execution, levy, garnishment, attachment, pledge, bankruptcy
or in any other manner, and no such right or interest of any participant in the
Plan shall be subject to any obligation or liability of such participant.
(c) Common Stock shall not be issued hereunder unless counsel for
Parent shall be satisfied that such issuance will be in compliance with
applicable federal, state, local and foreign securities, securities exchange and
other applicable laws and requirements.
(d) It shall be a condition to the obligation of Parent to issue Common
Stock upon exercise of an Option, that the participant (or any beneficiary or
person entitled to act under subsection 5(d)(iii)(B) above) pay to Parent, upon
its demand, such amount as may be requested by Parent for the purpose of
satisfying any liability to withhold federal, state, local or foreign income or
other taxes. If the amount requested is not paid, Parent may refuse to issue
such Common Stock.
(e) The expenses of the Plan shall be borne by Parent.
(f) By accepting any Option or other benefit under the Plan, each
Advisor and each person claiming under or through him shall be conclusively
deemed to have indicated his acceptance and ratification of, and consent to, any
action taken under the Plan by Parent or the Committee.
(g) The appropriate officers of Parent shall cause to be filed any
reports, returns or other information regarding Options hereunder or any Common
Stock issued pursuant hereto as may be required by Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, or any other applicable statute,
rule or regulation.
8. AMENDMENT OR DISCONTINUANCE. The Plan may be amended at any time and
from time to time by the Committee as the members thereof shall deem advisable;
provided, however, that no amendment shall become effective without shareholder
approval if such shareholder approval is required by law, rule or regulation,
and in no event shall the Plan be amended more than once every six months, other
than to comport with changes in the Internal Revenue Code of 1986, as amended,
the Employee Retirement Income Security Act or the rules thereunder. No
amendment of the Plan shall materially and adversely affect any right of any
participant with respect to any Option theretofore granted without such
participant's written consent.
9. TERMINATION. This Plan shall terminate upon the earlier of a
resolution of the Committee terminating the Plan or ten years from the Effective
Date. No termination of the Plan shall materially and adversely affect any of
the rights or obligations of any person, without his consent, under any Option
theretofore granted under the Plan.
10. EFFECTIVE DATE OF PLAN. The Plan will become effective on the date
of its approval by the Board of Directors of Parent (the "Effective Date").
APPROVED BY THE BOARD OF DIRECTORS ON MAY 31, 2000.
