EXHIBIT 4.1
INFOWAVE SOFTWARE, INC.
STOCK OPTION PLAN
February 26, 1997
(As Amended on September 3, 1997, March 27, 1998,
December 4, 1998 and June 5, 2000)
1. PURPOSE OF PLAN
1.1. The purpose of the Plan is to assist Eligible Persons of the Company and
its Subsidiaries to participate in the growth and development of the Company and
its Subsidiaries by providing such persons with the opportunity, through
Options, to acquire an increased proprietary interest in the Company.
2. DEFINED TERMS
In the Plan, the following terms shall have the following meanings,
respectively:
2.1. "Board" means the board of directors of the Company or, if established and
duly authorized to act, the Executive Committee of the board of directors of the
Company;
2.2. "Business Day" means any day, other than a Saturday or a Sunday, on which
the Exchange is open for trading;
2.3. "Company" means INFOWAVE SOFTWARE, INC., formerly Infowave Wireless
Messaging Incorporated, a company incorporated under the Company Act (British
Columbia);
2.4. "Change of Control" means:
(a) any Person, or combination of Persons acting jointly or in concert,
acquiring or becoming the beneficial owner of, directly or indirectly,
more than 50% of the voting securities of the Company, whether through
the acquisition of previously issued and outstanding voting securities
of the Company or of voting securities of the Company that have not
been previously issued, or any combination thereof or any other
transaction having a similar effect; and
(b) amalgamation, merger or arrangement of the Company with or into
another where the holders of Shares immediately prior to the
transaction will hold less than 51% of the voting securities of the
resulting entity upon completion of the transaction;
2.5. "Eligible Person" means a person who is, at the time the Option is granted:
(a) a director, senior officer or full-time employee of the Company or its
Subsidiary;
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(b) a consultant who:
(i) provides ongoing consulting services to the Company or the
Subsidiary under a written contract;
(ii) possesses technical, business or management expertise of
value to the Company or the Subsidiary;
(iii) spends a significant amount of time and attention on the
business and affairs of the Company or the Subsidiary; and
(iv) has a relationship with the Company or Subsidiary that
enables the individual to be knowledgeable concerning the
business and affairs of the Company; or
(c) an employee of a management company providing services (other than
investor relations) to the Company or its Subsidiary;
2.6. "Exchange" means The Toronto Stock Exchange;
2.7. "Insider" has the meaning ascribed thereto in the Securities Legislation
and regulation of British Columbia and Ontario;
2.8. "Option" means an option to purchase Shares granted under the Plan;
2.9. "Option Price" means the price per share at which Shares may be purchased
under the Option, as the same may be adjusted from time to time in accordance
with Article 7 or 8;
2.10. "Optionee" means a person to whom an Option has been granted;
2.11."Person" has the meaning ascribed thereto in the Securities Act (British
Columbia), as amended from time to time;
2.12. "Plan" means this stock option plan, as amended from time to time;
2.13."Shares" means the common shares of the Company, or, in the event of an
adjustment contemplated by Article 8, such other shares or securities to which
an Optionee may be entitled upon the exercise of an Option as a result of such
adjustment; and
2.14."Subsidiary" means a subsidiary of the Company within the meaning of the
Securities Act (British Columbia).
3. ADMINISTRATION OF THE PLAN
3.1. The Plan shall be administered by the Board.
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3.2. The Board shall have the power, where consistent with the general purpose
and intent of the Plan and subject to the specific provisions of the Plan and
the policies of the Exchange from time to time in effect:
(a) to establish policies and procedures for carrying out the purposes,
provisions and administration of the Plan;
(b) to interpret and construe the Plan and to determine all questions
arising out of the Plan and any Option granted pursuant to the Plan,
and any such interpretation, construction or termination made by the
Board shall be final, binding and conclusive for all purposes;
(c) to determine which Eligible Persons are granted Options and to grant
Options;
(d) to determine the number of Shares covered by each Option;
(e) to determine the Option Price;
(f) to determine the time or times when Options will be granted, vest and
be exercisable;
(g) to determine if the Shares that are subject to an option will be
subject to any restrictions upon the exercise of such Option; and
(h) to prescribe the form of the instruments relating to the grant,
exercise and other terms of options.
3.3. A director of the Company to whom an Option may be granted shall not
participate in the decision of the Board to grant such Option.
4. SHARES SUBJECT TO PLAN
(a) The number of Shares reserved for issuance pursuant to this Plan
(together with those Shares which may be issued pursuant to any other
employee-related plan of the Company or options for services granted
by the Company) is 4,619,578 Shares;
(b) The number of Shares reserved for issuance pursuant to this Plan
(together with those Shares which may be issued pursuant to any other
employee-related plan of the Company or options for services granted
by the Company) to any one Person shall not exceed 5% of the Shares
outstanding on a non-diluted basis from time to time;
(c) The number of Shares which may be reserved for issuance pursuant to
this Plan (together with those Shares which may be issued pursuant to
any other employee-related plan of the Company or options for services
granted by the Company) to
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all Insiders shall not exceed 10% of the Shares outstanding on a
non-diluted basis from time to time;
(d) The number of Shares which may be issued pursuant to this Plan
(together with those Shares which may be issued pursuant to any other
employee-related plan of the Company or options for services granted
by the Company) to all Insiders within a one-year period shall not
exceed 10% of the Shares outstanding on a non-diluted basis from time
to time; and
(e) The number of Shares which may be issued pursuant to this Plan
(together with those Shares which may be issued pursuant to any other
employee-related plan of the Company or options for services granted
by the Company) to any one Insider and such Insider's associates
within a one-year period shall not exceed 5% of the Shares outstanding
on a non-diluted basis from time to time.
5. ELIGIBILITY, GRANT AND TERMS OF OPTIONS
5.1 Options may be granted to Eligible Persons, including to persons who are
Insiders of the Company.
5.2 Except as otherwise provided in this Plan, the number of Shares subject to
each Option, the Option Price, the expiration date of each Option, the extent to
which each Option is exercisable from time to time during the term of the Option
and other terms and conditions relating to each such option shall be determined
by the Board; provided, however, that Options shall have the following minimum
attributes:
(a) all Options must be exercisable during a period not extending beyond 5
years from the time the Option was granted;
(b) the Option Price must not be lower than the closing market price of
the shares on The Toronto Stock Exchange on the date prior to the
grant of the Option;
(c) all Options are non-transferable or assignable by the Optionee
otherwise than by will or the law of intestacy and the Option may be
exercised during the lifetime of the Optionee only by the Optionee;
(d) if the Optionee should die while an Eligible Person, the Option may
then be exercised by the legal heirs or personal representatives of
the Optionee, to the same extent as if the Optionee were alive and an
Eligible Person for a period not exceeding the earlier of 6 months
after the death of the Optionee, or the expiry of the Option but only
for such shares as the Optionee was entitled to at the date of the
death of the Optionee; and
(e) subject to paragraph (e) hereof, each Option held by an Optionee will
terminate on the earlier of 30 days after the Optionee ceases to be an
Eligible Person and the expiry date of the applicable Option.
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6. EXERCISE OF OPTIONS
6.1. Subject to the provisions of the Plan, an Option may be exercised from time
to time by delivery to the Company at its registered office of a written notice
of exercise addressed to the Secretary of the Company specifying the number of
Shares with respect to which the Option is being exercised and accompanied by
payment in full of the Option Price of the Shares to be purchased. Certificates
for such Shares shall be issued and delivered to the Optionee within a
reasonable time following the receipt of such notice and payment.
6.2. Notwithstanding any of the provisions contained in the Plan or in any
Option, the Company's obligation to issue Shares to an Optionee pursuant to the
exercise of an Option shall be subject to:
(a) completion of such registration or other qualification of such Shares
or obtaining approval of such governmental authority as the Company
shall determine to be necessary or advisable in connection with the
authorization, issuance or sale thereof;
(b) the listing of such Shares on any stock exchange on which the Shares
may then be listed; and
(c) the receipt from the Optionee of such representations, agreements and
undertakings, including as to future dealings in such Shares, as the
Company or its counsel determines to be necessary or advisable in
order to safeguard against the violation of the securities laws of any
jurisdiction.
In this connection the Company shall, to the extent necessary, take all
reasonable steps to obtain such approvals, registrations and qualifications as
may be necessary for the issuance of such Shares in compliance with applicable
securities laws and for the listing of such Shares on any stock exchange on
which the Shares are then listed.
7. VESTING
7.1. The Board may determine, in its sole discretion, subject to Article 11
hereof, the vesting schedule applicable to each Option, which vesting schedule
will be set out in the documents relating to the grant of the Option.
7.2. The Board may, in its sole discretion, and in certain circumstances, amend,
abridge, or otherwise eliminate any vesting schedule as its applies to any
outstanding stock options issued to Eligible Persons pursuant to the Plan, so
that any such stock options, whether vested or unvested, may have an amended
vesting schedule or may immediately vest and become exercisable.
8. CERTAIN ADJUSTMENTS
8.1. Appropriate adjustments in the number of Shares subject to the Plan, and as
regards Options granted or to be granted, in the number of Shares optioned and
in the Option
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Price, shall be made by the Board to give effect to adjustments in the number of
Shares of the Company resulting from subdivisions, consolidations or
reclassifications of the Shares of the Company, the payment of stock dividends
by the Company (other than dividends in the ordinary course) or other relevant
changes in the capital stock of the Company. The appropriate adjustment in any
particular circumstance shall be conclusively determined by the Board in its
sole discretion.
9. AMENDMENT OR DISCONTINUANCE OF PLAN
9.1. The Board may amend or discontinue the Plan at any time; provided, however,
that no such amendment may increase the maximum number of Shares that may be
optioned under the Plan, change the manner of determining the Option Price or,
without the consent of the optionee, alter or impair any Option previously
granted to an Optionee under the Plan. No amendment to this Plan shall be
applicable to any Option granted or to be granted to an Insider of the Company
until the amendment is approved by the holders of the Shares.
10. LOANS TO OPTIONEES
10.1.Subject to applicable law and other applicable rules of any stock exchange
in Canada upon which Shares of the Company are listed, the Company may in its
sole discretion arrange for the Company or any Subsidiary to make loans or
provide guarantees for loans by financial institutions to assist Optionees to
purchase Shares upon the exercise of the Options so granted or to assist the
Optionees to pay any income tax eligible upon exercise of the Options. Such
loans may be secured or unsecured, and shall bear interest at such rates, if
any, and be on such other terms as may be determined by the Company.
Notwithstanding the foregoing, this Section 9.1 shall not apply so long as the
Company is listed on The Toronto Stock Exchange unless The Toronto Stock
Exchange gives specific approval to such a loan.
11. CHANGE OF CONTROL
11.1.Without limiting Section 7 of this Plan and notwithstanding that directors
of the Company may hold unvested Options, in the event of an offer being made,
either to the Company or to the shareholders of the Company, by a person acting
at arm's length to the Company, as that term is defined in the Income Tax Act
(Canada), by which a Change of Control is proposed, whether with the
co-operation of the Board or otherwise, then prior to the completion of such
Change of Control, the Board may, in its sole and absolute discretion, cause any
or all outstanding stock options issued to Eligible Persons pursuant to the Plan
(except only those which are subject to cancellation), whether vested or
unvested, to vest and be exercisable as at such time as the Board may determine.
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12. MISCELLANEOUS
12.1.The holder of an Option shall not have any rights as a shareholder of the
Company with respect to any of the Shares covered by such Option until such
holder shall have exercised such Option in accordance with the terms of the Plan
and the issuance of the Shares by the Company.
12.2.Nothing in the Plan or any Option shall confer upon any Optionee any right
to continue in the employ of the Company or any Subsidiary of the Company or
affect in any way the right of the Company or any such Subsidiary to terminate
his employment at any time; nor shall anything in the Plan or any Option be
deemed or construed to constitute an agreement, or an expression of intent, on
the part of the Company or any such Subsidiary to extend the employment of any
Optionee beyond the time that he would normally be retired pursuant to the
provisions of any present or future retirement plan of the Company or any
Subsidiary or any present or future retirement policy of the Company or any
Subsidiary, or beyond the time at which he would otherwise be retired pursuant
to the provisions of any contract of employment with the Company or any
Subsidiary.
12.3.To the extent required by law or regulatory policy or necessary to allow
Shares issued on exercise of an option to be free of resale restrictions, the
Company shall report the grant, exercise or termination of the Option to the
Exchange and the appropriate securities regulatory authorities.
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