<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 17, 2000
REGISTRATION NO. 333-_____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
-------------------------
CERTICOM CORP.
(Exact name of Registrant as Specified in its Charter)
YUKON TERRITORY, CANADA 7371 NOT APPLICABLE
(Province or Other (Primary Standard Industrial (I.R.S. Employer
Jurisdiction of Classification Code Number) Identification Number)
Incorporation or
Organization)
5520 EXPLORER DRIVE, MISSISSAUGA, ONTARIO L4W 5L1 CANADA (905) 507-4220
(Address and telephone number of Principal Executive Offices)
CERTICOM CORP. EMPLOYEE STOCK PURCHASE PLAN
CERTICOM CORP. 2000 UNITED STATES STOCK PLAN
(Full title of the Plans)
-------------------------
RICHARD D. BROUNSTEIN
SENIOR VICE PRESIDENT FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY,
CERTICOM CORP., A DELAWARE CORPORATION AND WHOLLY OWNED
SUBSIDIARY OF THE REGISTRANT
25801 INDUSTRIAL BOULEVARD, HAYWARD, CALIFORNIA 94545
(Name and Address of Agent for Service)
(510) 780-5400
(Telephone number, including area code, of agent for service)
-------------------------
Copies to:
GREGORY T. DAVIDSON
GIBSON, DUNN & CRUTCHER LLP
1530 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 849-5300
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1)(3) PER SHARE(2) OFFERING PRICE(2) FEE
- ----------------------------------------------- ------------------ ----------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Shares 1,500,000 shares $46.16 $69,240,000.00 $18,280.00
=======================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional Common Shares
which become issuable under the Certicom Corp. Employee Stock Purchase Plan
and the Certicom Corp. 2000 United States Stock Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the outstanding Certicom Corp. Common Shares.
(2) Calculated solely for purposes of this offering under Rule 457(h) and
457(c) of the Securities Act of 1933, as amended, based on the average of
the high and low prices of the Common Shares on Nasdaq National Market on
May 12, 2000, which was $46.16.
(3) The Certicom Corp. Employee Stock Purchase Plan authorizes the issuance of
up to 500,000 Common Shares, and the Certicom Corp. 2000 United States
Stock Plan authorizes the issuance of up to 1,000,000 Common Shares, none
of which were subject to outstanding options as of the date of filing this
Registration Statement on Form S-8.
================================================================================
<PAGE>
PART I
Item 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
Item 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) the Registrant's Registration Statement on Form F-10 (Registration
No. 333-11586) filed on March 2, 2000, and all amendments and supplements
thereto; and
(2) the description of our Common Shares, which is contained in our
Registration Statement on Form 8-A (File No. 1-15010), filed on March 14, 2000.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all securities offered hereunder have
been sold or which deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such reports and documents.
Any document, and any statement contained in a document, incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein, or in any other subsequently filed document that
also is incorporated or deemed to be incorporated by reference herein, modifies
or supersedes such document or statement. Any such document or statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement. Subject to the foregoing,
all information appearing in this Registration Statement is qualified in its
entirety by the information appearing in the documents incorporated by
reference.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Business Corporations Act (Yukon) (the "YBCA"), the
Registrant may indemnify a present or former director or officer of the
Registrant or person who acts or acted at the Registrant's request as a director
or
<PAGE>
officer of another body corporate of which the Registrant is or was a
shareholder or creditor, and his or her heirs and legal representatives:
(a) against all costs, charges and expenses, including an amount paid
to settle an action or satisfy a judgment, reasonably incurred by
him or her in respect of any civil, criminal or administrative
action or proceeding to which he or she is made a party by reason
of being or having been a director or officer of the Registrant;
(b) with court approval, against all costs, charges and expenses
reasonably incurred by him or her in connection with an action
brought by or on behalf of the Registrant or body corporate to
procure a judgment in its favor, to which he or she is made a
party by reason of being or having been a director or officer of
the Registrant or body corporate; and
(c) in respect of all costs, charges and expenses reasonably incurred
by him or her in connection with the defense of any civil,
criminal or administrative action or proceeding to which he or
she is made a party by reason of having been a director or
officer of the Registrant or body corporate, if he or she was
substantially successful on the merits of his or her defense of
the action or proceeding;
PROVIDED, in all cases, such director or officer (i) acted honestly and in good
faith with a view to the best interests of the Registrant, and (ii) in the case
of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, such director or officer had reasonable grounds for believing
that his or her conduct was lawful.
The By-laws of the Registrant provide that the Registrant shall
indemnify every director or officer of the Registrant, every former director or
officer of the Registrant or a person who acts or acted at the Registrant's
request as a director or officer of a body corporate of which the Registrant is
or was a shareholder or creditor, and his or her heirs and legal representatives
to the extent permitted by YBCA.
The Company maintains insurance for the benefit of its directors and
officers against liability in their respective capacities as directors and
officers that covers, among other things, U.S. SEC claims, subject to certain
corporate deductibles. The annual premium payable by the Company in respect of
such insurance is approximately $504,000. The directors and officers are not
required to pay any premium in respect of the insurance. The policy contains
standard industry exclusions and no claims have been made thereunder to date.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
<TABLE>
<S> <C>
4.1 Certicom Corp. Employee Stock Purchase Plan
4.2 Certicom Corp. 2000 United States Stock Plan
5 Opinion of Anton Campion MacDonald Oyler
23.1 Consent of Anton Campion MacDonald Oyler (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on the signature page hereof)
</TABLE>
Item 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
2
<PAGE>
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold upon the
termination of the Certicom Corp. Employee Stock Purchase Plan and the Certicom
Corp. 2000 United States Stock Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference into this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in Securities Act of
1933 and will be governed by the final adjudication of such issue.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Hayward, State of California, on May 16, 2000.
CERTICOM CORP.
By \s\ Richard P. Dalmazzi
--------------------------------------
Richard P. Dalmazzi
President and Chief Executive Officer
4
<PAGE>
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS
Each person whose signature appears below constitutes and appoints
Richard P. Dalmazzi and Richard D. Brounstein, and each of them, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This power of attorney may be signed in several counterparts.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
indicated on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
\s\ Richard P. Dalmazzi President, Chief Executive Officer and
- ------------------------------------- Director (Principal Executive Officer) May 16, 2000
Richard P. Dalmazzi
\s\ Richard D. Brounstein Senior Vice President Finance,
- ------------------------------------- Chief Financial Officer and Secretary May 16, 2000
Richard D. Brounstein (Principal Financial Officer and
Principal Accounting Officer)
\s\ Bernard Crotty Director
- -------------------------------------
Bernard W. Crotty May 16, 2000
Director
- -------------------------------------
Philip C. Deck
\s\ William T. Dodds Director
- -------------------------------------
William T. Dodds May 16, 2000
\s\ Erling E. Rasmussen Director
- -------------------------------------
Erling E. Rasmussen May 11, 2000
\s\ Louis E. Ryan Director
- -------------------------------------
Louis E. Ryan May 16, 2000
Director
- -------------------------------------
William J. Stewart
\s\ Scott A. Vanstone Director
- -------------------------------------
Scott A. Vanstone May 11, 2000
</TABLE>
5
<PAGE>
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the Authorized Representative has signed this Registration Statement on
Form S-8, solely in his capacity as the duly authorized representative of
Certicom Corp. in the United States in the City of Hayward, State of California
on May 16, 2000.
By: \s\ Richard D. Brounstein
--------------------------------------------
Richard D. Brounstein
Senior Vice President Finance,
Chief Financial Officer and Secretary
Certicom Corp., a Delaware corporation
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
- ------- -----------
<S> <C>
4.1 Certicom Corp. Employee Stock Purchase Plan
4.2 Certicom Corp. 2000 United States Stock Plan
5 Opinion of Anton Campion MacDonald Oyler
23.1 Consent of Anton Campion MacDonald Oyler (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on the signature page hereof)
</TABLE>
<PAGE>
EX-4.1
CERTICOM CORP.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
The purpose of this Plan is to provide eligible employees of the Company
and Participating Subsidiaries with a convenient means of acquiring an equity
interest in the Company through payroll deductions and to enhance such
employees' sense of participation in the affairs of the Company and
Participating Subsidiaries. The Company intends this Plan to qualify as an
"employee stock purchase plan" under Section 423 of the Code (including any
amendments to or replacements of such Section) and as an "employee stock option
plan" for purposes of the ITA, and this Plan shall be so construed. Any term not
expressly defined in this Plan but defined for purposes of Section 423 of the
Code shall have the same definition herein. A total of 500,000 Common Shares are
reserved for issuance under this Plan. Such number shall be subject to
adjustments effected in accordance with Section 14 of this Plan.
2. DEFINITIONS
In this Plan, unless something in the subject matter or context is
inconsistent therewith:
(a) "BOARD" means the Board of Directors of the Company;
(b) "BUSINESS DAY" means any day on which the TSE or NASDAQ is open
for trading;
(c) "CODE" means the United States INTERNAL REVENUE CODE OF 1986, as
amended;
(d) "COMMON SHARES" means common shares of the Company;
(e) "COMPANY" means Certicom Corp.;
(f) "FIRST OFFERING DATE" means July 1, 2000;
(g) "ITA" means the INCOME TAX ACT (Canada), as amended;
(h) "MAXIMUM SHARE AMOUNT" means the maximum number, if any, of
Common Shares which may be purchased by any employee at any single Purchase
Date;
(i) "NASDAQ" means the NASDAQ National Market;
(j) "OFFERING" means each offering of this Plan;
(k) "OFFERING DATE" means the first business day of each Offering
Period;
(l) "OFFERING PERIOD" means each offering period of this Plan as
described in Section 5;
(m) "PARENT CORPORATION" has the same meaning as in "PARENT
CORPORATION" in Section 424(e) of the Code;
<PAGE>
(n) "PARTICIPATING SUBSIDIARIES" means the Parent Corporation and
Parent Corporations or Subsidiaries that the Board designates from time to time
as corporations that shall participate in this Plan;
(o) "PLAN" means this Employee Stock Purchase Plan, as amended from
time to time;
(p) "PURCHASE DATE" means the last business day of each Purchase
Period;
(q) "PURCHASE PERIOD" means each six-month purchase period under
this Plan;
(r) "RESERVES" means the number of Common Shares covered by each
option granted under this Plan which has not yet been exercised and the number
of Common Shares which has been authorized for issuance under this Plan but has
not been placed under option;
(s) "SECRETARY" means secretary of the Company, as appointed from
time to time;
(t) "SECURITIES ACT" means the United States SECURITIES ACT OF 1933,
as amended;
(u) "SUBSIDIARY" has the same meaning as in "SUBSIDIARY
CORPORATIONS" in Section 424(f) of the Code; and
(v) "TSE" means The Toronto Stock Exchange.
3. ADMINISTRATION
This Plan shall be administered by the Board. The Board may, from time
to time, appoint a committee for the purpose of interpreting, administering and
implementing this Plan and, in such event, any references to the Board in this
Plan shall be deemed to be a reference to such committee, subject to any
limitations imposed by the Board in such appointment. Subject to the provisions
of this Plan and the limitations of Section 423 of the Code or any successor
provision in the Code, all questions of interpretation or application of this
Plan shall be determined by the Board and its decisions shall be final and
binding upon all participants. All expenses incurred in connection with the
administration of this Plan shall be paid by the Company.
4. ELIGIBILITY
Any employee of the Company or the Participating Subsidiaries is
eligible to participate in an Offering Period (as hereinafter defined) under
this Plan except as follows:
(a) employees who are not employed by the Company or Participating
Subsidiaries prior to the beginning of such Offering Period;
(b) employees who are customarily employed for twenty (20) hours or
less per week;
(c) employees who are customarily employed for five (5) months or
less in a calendar year;
(d) employees who, together with any other person whose shares would
be attributed to such employee pursuant to Section 424(d) of the Code, own
shares or hold options to purchase shares possessing five percent (5%) or more
of the total combined voting power or value of all classes of shares of the
Company or any of its Participating Subsidiaries or who, as a result of being
granted an option under this Plan with respect to such Offering Period, would
own shares or hold options to purchase shares possessing five percent (5%) or
more of the total combined voting power or value of all classes of shares of the
Company or any of its Participating Subsidiaries; and
2
<PAGE>
(e) individuals who provide services to the Company or any of its
Participating Subsidiaries as independent contractors who are reclassified as
common law employees for any reason except for United States federal income and
employment tax purposes.
5. OFFERING DATES
Each Offering Period shall be of twelve (12) months duration commencing
on July 1 and January 1 of each year and ending on June 30 and December 31 of
each year. Each Offering Period shall consist of two (2) Purchase Periods during
which payroll deductions of the participants are accumulated under this Plan.
The Board shall have the power to change the duration of Offering Periods or
Purchase Periods with respect to offerings without shareholder approval if such
change is announced at least fifteen (15) days prior to the scheduled beginning
of the first Offering Period or Purchase Period to be affected.
6. PARTICIPATION IN THIS PLAN
Eligible employees may become participants in an Offering Period under
this Plan on the first Offering Date after satisfying the eligibility
requirements set forth in Section 4 hereof by delivering a subscription
agreement to the Secretary not later than five (5) days before such Offering
Date unless a later time for filing the subscription agreement authorizing
payroll deductions is set by the Board for all eligible employees with respect
to a given Offering Period. An eligible employee who does not deliver a
subscription agreement to the Secretary by such date after becoming eligible to
participate in such Offering Period shall not participate in that Offering
Period or any subsequent Offering Period unless such employee enrolls in this
Plan by filing a subscription agreement with the Secretary not later than five
(5) days preceding a subsequent Offering Date. Once an employee becomes a
participant in an Offering Period, such employee will automatically participate
in the Offering Period commencing immediately following the last day of the
prior Offering Period unless the employee withdraws or is deemed to withdraw
from this Plan or terminates further participation in the Offering Period as set
forth in Section 11 below.
7. GRANT OF OPTION ON ENROLLMENT
Enrollment by an eligible employee in this Plan with respect to an
Offering Period will constitute the grant, as of the Offering Date, by the
Company to such employee of an option to purchase on the Purchase Date up to
that number of Common Shares determined by dividing (a) the amount accumulated
in such employee's payroll deduction account during such Purchase Period by (b)
the lesser of (i) eighty-five percent (85%) of the fair market value of a Common
Share on the Offering Date, and (ii) eighty-five percent (85%) of the fair
market value of a Common Share on the Purchase Date, provided, however, that the
number of Common Shares subject to any option granted pursuant to this Plan
shall not exceed the lesser of (a) the maximum number of shares set by the Board
pursuant to Section 10(c) below with respect to the applicable Purchase Date,
and (b) the maximum number of Common Shares which may be purchased pursuant to
Section 10(b) below with respect to the applicable Purchase Date. The fair
market value of a Common Share shall be determined as provided in Section 8
hereof.
8. PURCHASE PRICE
(a) The purchase price per share at which a share of Common Share
will be sold in any Offering Period shall be eighty-five percent (85%) of the
lesser of:
(i) the fair market value on the Offering Date; and
(ii) the fair market value on the Purchase Date.
3
<PAGE>
(b) For purposes of this Plan, the term "fair market value" means,
as of any date, the value of a Common Share determined as follows:
(i) if the participant is a resident of the United States,
and:
A. the Common Shares are then quoted on NASDAQ,
their closing price on the NASDAQ on the date of determination as reported in
The Wall Street Journal;
B. the Common Shares are publicly traded and are
then listed on a national securities exchange, their closing price on the
date of determination on the principal national securities exchange on which
the Common Shares listed or admitted to trading as reported in The Wall
Street Journal; or
C. the Common Shares are publicly traded but are
not quoted on NASDAQ nor listed or admitted to trading on a national
securities exchange in the United States, the average of the closing bid and
key prices on the date of determination as reported in The Wall Street
Journal.
(ii) if the participant is a resident of Canada or any other
jurisdiction (other than the United States), and:
A. the Common Shares are then listed and posted for
trading on the TSE, the closing price of the Common Shares on the date of
determination as reported by the TSE; or
B. the Common Shares are not then listed and posted
for trading on the TSE, the provisions of Section 8(b) above shall apply and the
fair market value of the Common Share shall be expressed in Canadian dollars
based upon the Bank of Canada Noon rate Canadian dollar/U.S. dollar exchange
rate on the date of determination.
(iii) if none of the foregoing is applicable, by the Board in
good faith.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF
COMMON SHARES
(a) The purchase price of the Common Shares purchased under this
Plan will be accumulated by regular payroll deductions made during each Offering
Period. The deductions will be made as a percentage of the participant's
compensation in one percent (1%) increments but not less than two percent (2%),
nor greater than fifteen percent (15%) or such lower limit set by the Board. For
the purposes of this Plan, "participant's compensation" shall mean base salary,
commissions, bonuses, incentive compensation and shift premiums not to exceed
U.S.$250,000 (or the equivalent in Canadian dollars) per calendar year; provided
however, that, if applicable, for purposes of determining a participant's
compensation, any election by such participant to reduce his or her regular cash
remuneration under Sections 125 or 401(k) of the Code shall be treated as if the
participant did not make such election. Payroll deductions shall commence on the
first payday of the Offering Period and shall continue to the end of the
Offering Period unless sooner altered or terminated as provided in this Plan.
(b) A participant may decrease or increase the rate of payroll
deductions during an Offering Period by filing with the Secretary a new
authorization for payroll deductions, in which case the new rate shall become
effective for the next payroll period commencing more than fifteen (15) days
after the Secretary's receipt of the authorization and shall continue for the
remainder of the Offering Period unless changed as described below. Such change
in the rate of payroll deductions may be made at any time during an Offering
Period, but not more than one (1) change may be made effective during any
Offering Period. A participant may increase or decrease the rate of payroll
deductions for any subsequent Offering
4
<PAGE>
Period by filing with the Secretary a new authorization for payroll deductions
not later than fifteen (15) days before the beginning of such Offering Period.
(c) All payroll deductions made for a participant under this Plan
will be credited to his or her account under this Plan and will be deposited
with the general funds of the Company. No interest will accrue on such payroll
deductions. All payroll deductions received or held by the Company may be used
by the Company for any corporate purpose, and the Company shall not be obligated
to segregate such payroll deductions.
(d) On each Purchase Date, so long as this Plan remains in effect
and provided that the participant has not submitted a signed and completed
withdrawal form before that date which notifies the Company that the participant
wishes to withdraw from that Offering Period under this Plan and have all
payroll deductions accumulated in the account maintained on behalf of the
participant as of that date returned to the participant, the Company shall apply
the funds then in the participant's account to the purchase of whole Common
Shares reserved under the option granted to such participant with respect to the
Offering Period to the extent that such option is exercisable on the Purchase
Date. The purchase price per share shall be as specified in Section 8 of this
Plan. Any cash remaining in a participant's account after such purchase of
shares shall be refunded to such participant in cash, without interest;
provided, however that any amount remaining in such participant's account on a
Purchase Date which is less than the amount necessary to purchase a Whole Common
Share shall be carried forward, without interest, into the next Purchase Period
or Offering Period, as the case may be. In the event that this Plan has been
oversubscribed, all funds not used to purchase shares on the Purchase Date shall
be returned to the participant, without interest. No Common Shares shall be
purchased on a Purchase Date on behalf of any employee whose participation in
this Plan has terminated prior to such Purchase Date.
(e) As promptly as practicable after the Purchase Date, the Company
shall issue Common Shares for the participant's benefit representing the Common
Shares purchased upon exercise of his or her option.
(f) During a participant's lifetime, such participant's option to
purchase Common Shares hereunder is exercisable only by him or her. The
participant will have no interest or voting right in Common Shares covered by
his or her option until such option has been exercised.
10. LIMITATIONS ON SHARES TO BE PURCHASED
(a) No participant shall be entitled to purchase Common Shares under
this Plan at a rate which, when aggregated with his or her rights to purchase
Common Shares under all other employee share purchase plans of the Company or
any Subsidiary, exceeds U.S.$25,000 (or the equivalent in Canadian dollars) in
fair market value, determined as of the Offering Date (or such other limit as
may be imposed by the Code) for each calendar year in which the employee
participates in this Plan. The Company shall automatically suspend the payroll
deductions of any participant as necessary to enforce such limit provided that
when the Company automatically resumes such payroll deductions, the Company must
apply the rate in effect immediately prior to such suspension.
(b) No participant shall be entitled to purchase more than the
Maximum Share Amount (as defined below) on any single Purchase Date. Not less
than thirty (30) days prior to the commencement of any Offering Period, the
Board may, in its sole discretion, set a maximum number of Common Shares which
may be purchased by any employee at any single Purchase Date (hereinafter the
"MAXIMUM SHARE AMOUNT"). Until otherwise determined by the Board, there shall be
no Maximum Share Amount. If a new Maximum Share Amount is set, then all
participants must be notified of such Maximum Share Amount prior to the
commencement of the next Offering Period. Once the Maximum Share Amount is
5
<PAGE>
set, it shall continue to apply with respect to all succeeding Purchase Dates
and Offering Periods unless revised by the Committee as set forth above.
(c) If the number of Common Shares to be purchased on a Purchase
Date by all employees participating in this Plan exceeds the number of shares
then available for issuance under this Plan, then the Company will make a pro
rata allocation of the remaining shares in as uniform a manner as shall be
reasonably practicable and as the Board shall determine to be equitable. In such
event, the Company shall give written notice of such reduction of the number of
shares to be purchased under a participant's option to each participant affected
thereby.
(d) Any payroll deductions accumulated in a participant's account
which are not used to purchase shares due to the limitations in this Section 10
shall be returned to the participant as soon as practicable after the end of the
applicable Purchase Period, without interest.
11. WITHDRAWAL
(a) Each participant may withdraw from an Offering Period under this
Plan by signing and delivering to the Secretary a written notice to that effect
on a form provided for such purpose. Such withdrawal may be elected at any time
at least fifteen (15) days prior to the end of an Offering Period.
(b) Upon withdrawal from this Plan, the accumulated payroll
deductions shall be returned to the withdrawn participant, without interest, and
his or her interest in this Plan shall terminate. In the event a participant
voluntarily elects to withdraw from this Plan, he or she may not resume his or
her participation in this Plan during the same Offering Period, but he or she
may participate in any Offering Period under this Plan which commences on a date
subsequent to such withdrawal by filing a new authorization for payroll
deductions in the same manner as set forth above for initial participation in
this Plan.
12. TERMINATION OF EMPLOYMENT
Termination of a participant's employment for any reason, including
retirement, death or the failure of a participant to remain an eligible employee
of the Company or of a Participating Subsidiary, immediately terminates his or
her participation in this Plan. In such event, the payroll deductions credited
to the participant's account will be returned to him or her or, in the case of
his or her death, to his or her legal representative, without interest. For
purposes of this Section 12, an employee will not be deemed to have terminated
employment or failed to remain in the continuous employ of the Company or of a
Participating Subsidiary in the case of sick leave, military leave, or any other
leave of absence approved by the Board; provided that such leave is for a period
of not more than ninety (90) days or reemployment upon the expiration of such
leave is guaranteed by contract or statute.
13. RETURN OF PAYROLL DEDUCTIONS
In the event a participant's interest in this Plan is terminated by
withdrawal, termination of employment or otherwise, or in the event this Plan is
terminated by the Board, the Company shall promptly deliver to the participant
all payroll deductions credited to such participant's account. No interest shall
accrue on the payroll deductions of a participant in this Plan.
14. CAPITAL CHANGES
Subject to any required action by the shareholders of the Company and
any required regulatory approval, the Reserves and the price per Common Share
covered by each option under this Plan which
6
<PAGE>
has not yet been exercised, shall be proportionately adjusted for any increase
or decrease in the number of issued and outstanding Common Shares resulting from
a stock split or the payment of a stock dividend (but only on the Common Shares)
or any other increase or decrease in the number of issued and outstanding Common
Shares effected without receipt of any consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination shall be final,
binding and conclusive. Except as expressly provided herein, no issue by the
Company of shares of any class, or securities convertible into shares of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Common Shares subject to an option. In the
event of the proposed dissolution or liquidation of the Company, the Offering
Period will terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Board. The Board may, in the exercise
of its sole discretion in such instances, declare that this Plan shall terminate
as of a date fixed by the Board and give each participant the right to purchase
shares under this Plan prior to such termination. In the event of (i) an
amalgamation, arrangement, merger or consolidation in which the Company is not
the surviving corporation (other than an amalgamation, arrangement, merger or
consolidation with a wholly-owned subsidiary, a reincorporation of the Company
in a different jurisdiction, or other transaction in which there is no
substantial change in the shareholders of the Company or their relative
shareholdings and the options under this Plan are assumed, converted or replaced
by the successor corporation, which assumption will be binding on all
participants), (ii) an amalgamation, arrangement or merger in which the Company
is the surviving corporation but after which the shareholders of the Company
immediately prior to such amalgamation, arrangement or merger (other than any
shareholder that amalgamates or merges, or which owns or controls another
corporation that amalgamates or merges, with the Company in such amalgamation,
arrangement or merger) cease to own their shares or other equity interest in the
Company, (iii) the sale of all or substantially all of the assets of the
Company, or (iv) the acquisition, sale, or transfer of more than 50% of the
outstanding shares of the Company by take-over bid or similar transaction, the
Plan shall continue for all Offering Periods which began prior to the
transaction and shares will be purchased based on the fair market value of the
surviving corporation's shares on each Purchase Date (taking into account the
exchange ratio, where necessary) or the Board may in the exercise of its sole
discretion in such instances, declare that this Plan shall terminate immediately
prior to the consummation of such event and give each Participant the right to
purchase shares under this Plan prior to such termination. The Board may, if it
so determines in the exercise of its sole discretion, also make provision for
adjusting the Reserves, as well as the price per share of Common Shares covered
by each outstanding option, in the event that the Company effects one or more
reorganizations, recapitalizations, rights offerings or other increases or
reductions of Common Shares, or in the event of the Company being consolidated
with or amalgamated or merged into any other corporation.
15. NONASSIGNABILITY
Neither payroll deductions credited to a participant's account nor any
rights with regard to the exercise of an option or to receive shares under this
Plan may be assigned, transferred, pledged or otherwise disposed of in any way
(other than by will, the laws of descent and distribution or as provided in
Section 22 hereof) by the participant. Any such attempt at assignment, transfer,
pledge or other disposition shall be void and without effect.
16. REPORTS
Individual accounts will be maintained for each participant in this
Plan. Each participant shall receive promptly after the end of each Purchase
Period a report of his or her account setting forth the total payroll deductions
accumulated, the number of shares purchased, the per share price thereof and the
7
<PAGE>
remaining cash balance, if any, carried forward to the next Purchase Period or
Offering Period, as the case may be.
17. NOTICE OF DISPOSITION
If requested by the Company in writing each participant shall notify the
Company if the participant disposes of any of the shares purchased in any
Offering Period pursuant to this Plan if such disposition occurs within two (2)
years from the Offering Date or within one (1) year from the Purchase Date on
which such shares were purchased (the "Notice Period"). Unless such participant
is disposing of any of such shares during the Notice Period, such participant
shall keep the certificates representing such shares in his or her name (and not
in the name of a nominee) during the Notice Period. The Company may, at any time
during the Notice Period, place a legend or legends on any certificate
representing shares acquired pursuant to this Plan requesting the Company's
transfer agent to notify the Company of any transfer of the shares. The
obligation of the participant to provide such notice shall continue
notwithstanding the placement of any such legend on the certificates.
18. NO RIGHTS TO CONTINUED EMPLOYMENT
Neither this Plan nor the grant of any option hereunder shall confer any
right on any employee to remain in the employ of the Company or any
Participating Subsidiary, or restrict the right of the Company or any
Participating Subsidiary to terminate such employee's employment.
19. EQUAL RIGHTS AND PRIVILEGES
All eligible employees shall have equal rights and privileges with
respect to this Plan so that this Plan qualifies as an "employee stock purchase
plan" within the meaning of Section 423 or any successor provision of the Code
and the related regulations. Any provision of this Plan which is inconsistent
with Section 423 or any successor provision of the Code shall, without further
act or amendment by the Company, the Committee or the Board, be reformed to
comply with the requirements of Section 423. This Section 19 shall take
precedence over all other provisions in this Plan.
20. NOTICES
All notices or other communications by a participant to the Company
under or in connection with this Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by the
person, designated by the Company for the receipt thereof.
21. TERM; SHAREHOLDER APPROVAL
After this Plan is adopted by the Board, this Plan will become effective
on the date that is the First Offering Date. This Plan shall be approved by the
shareholders of the Company, in any manner permitted by applicable corporate
law, within twelve (12) months before or after the date this Plan is adopted by
the Board. No purchase of shares pursuant to this Plan shall occur prior to such
shareholder approval. This Plan shall continue until the earlier to occur of (a)
termination of this Plan by the Board (which termination may be effected by the
Board at any time), (b) issuance of all of the Common Shares reserved for
issuance under this Plan, or (c) ten (10) years from the adoption of this Plan
by the Board.
22. DESIGNATION OF BENEFICIARY
(a) A participant may file a written designation of a beneficiary
who is to receive any shares and cash, if any, from the participant's account
under this Plan in the event of such participant's death
8
<PAGE>
subsequent to the end of a Purchase Period but prior to delivery to him or her
of such shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the participant's
account under this Plan in the event of such participant's death prior to a
Purchase Date.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under this
Plan who is living at the time of such participant's death, the Company shall
deliver such shares or cash to the executor or administrator of the estate of
the participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver such
shares or cash to the spouse or to any one or more dependents or relatives of
the participant, or if no spouse, dependent or relative is known to the Company,
then to such other person as the Company may designate.
23. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES
Shares shall not be issued with respect to an option unless the
exercise of such option and the issuance and delivery of such shares pursuant
thereto shall comply with all applicable provisions of law, domestic or
foreign, including, without limitation, the SECURITIES ACT (Ontario), the
SECURITIES ACT, the SECURITIES EXCHANGE ACT OF 1934, the rules and
regulations promulgated thereunder, and the requirements of any stock
exchange or automated quotation system upon which the Common Shares may then
be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
24. APPLICABLE LAW
The Plan shall be governed by the substantive laws (excluding the
conflict of laws rules) of the Province of Ontario.
25. AMENDMENT OR TERMINATION OF THIS PLAN
The Board may at any time amend, terminate or extend the term of this
Plan, except that any such termination cannot affect options previously granted
under this Plan, nor may any amendment make any change in an option previously
granted which would adversely affect the right of any participant, nor may any
amendment be made without approval of the shareholders of the Company obtained
in accordance with Section 21 hereof within twelve (12) months of the adoption
of such amendment (or earlier if required by Section 21) if such amendment
would:
(a) increase the number of shares that may be issued under this
Plan; or
(b) change the designation of the employees (or class of employees)
eligible for participation in this Plan.
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<PAGE>
CERTICOM CORP.
EMPLOYEE STOCK PURCHASE PLAN
Check One: Complete:
/ / New Enrollment Social Security No./Social Insurance No. ___________
/ / Change Employee No. _______________________________________
1. Name of Participant _______________________________________________________
2. Common Shares purchased under the plan should be held in account with the
broker selected by Certicom Corp. (the "Designated Broker") in my name or
in my name together with the name(s) indicated below/*/:
Name ______________________________________________________________________
Social Security No./Social Insurance No. __________________________________
Name ______________________________________________________________________
Social Security No./Social Insurance No. __________________________________
If the account is to be in your name and another's, it will be held in
joint tenancy, unless you specifically designate otherwise.
PLEASE NOTIFY THE DESIGNATED BROKER DIRECTLY TO TRANSFER OR SELL YOUR
STOCK.
3. Payroll Deduction Level (from 2% to 10% in whole percentages): _____
(Deductions will be made from your base salary, commissions, bonuses,
incentive compensation and shift premiums (up to $250,000 per year)
unreduced for Section 401(k) or 125 Plan payroll deferrals.)
4. I hereby designate the following person(s) as my beneficiary(ies) to
receive all payments and/or shares attributable to my interest under the
Plan:
<TABLE>
<S> <C> <C>
NAME *To be divided as ADDRESS
follows:
- ------------------------------------ ----------------------------------------
Last First M.I. Number Street
- ------------------------------------ -------------- ----------------------------------------
Social Security No./ Relationship City State/Province Zip/Postal Code
Social Insurance No. Relationship
NAME *To be divided as ADDRESS
follows:
- ------------------------------------ ----------------------------------------
Last First M.I. Number Street
- ------------------------------------ -------------- ----------------------------------------
Social Security No./ Relationship City State/Province Zip/Postal Code
Social Insurance No. Relationship
</TABLE>
10
<PAGE>
*If more than one beneficiary: (1) insert "in equal shares", or (2)
insert percentage to be paid to each beneficiary.
5. The information provided on this Enrollment Form will remain in effect
unless and until I complete and submit to the Secretary a new enrollment
form.
CERTICOM CORP. OFFICE USE:
Signature:______________________________________________________________________
Date received by the Secretary:_________________________________________________
Name:___________________________________________________________________________
Date entered into system:_______________________________________________________
*If resident in the United States and you name someone other than your spouse,
you will cause a "disqualifying disposition" of the shares and you will be
deemed to have received ordinary income in the amount that the fair market value
of the shares on the date of purchase was greater than the amount you paid for
the shares.
PLEASE RETURN THIS FORM TO THE SECRETARY
11
<PAGE>
CERTICOM CORP.
EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
1. I elect to participate in the Certicom Corp. (the "Company")
Employee Stock Purchase Plan (the "Plan") and to subscribe to purchase Common
Shares of the Company (the "Shares") in accordance with this Subscription
Agreement and the Plan.
2. I authorize payroll deductions from each of my paychecks in that
percentage of my gross compensation as shown on my Enrollment Form, in
accordance with the Plan.
3. I understand that such payroll deductions shall be accumulated
for the purchase of Shares under the Plan at the applicable purchase price
determined in accordance with the Plan. I further understand that except as
otherwise set forth in the Plan, Shares will be purchased for me automatically
at the end of each Purchase Period unless I withdraw from the Plan or otherwise
become ineligible to participate in the Plan.
4. I understand that this Subscription Agreement will automatically
re-enroll me in all subsequent Offering Periods unless I withdraw from the Plan
or I become ineligible to participate in the Plan.
5. I acknowledge that I have a copy of and am familiar with the
Company's most recent Prospectus which describes the Plan. A copy of the
complete Plan and the Prospectus is on file with the Company.
6. I understand that Shares purchased for me under the Plan will be
held in a personal account with the Plan Designated Broker unless I request
otherwise.
7. I hereby agree to be bound by the terms of the Plan. The
effectiveness of this Subscription Agreement is dependent upon my eligibility to
participate in the Plan.
8. I have read and understood this Subscription Agreement.
Signature:________________________________
Name:_____________________________________
Date:_____________________________________
PLEASE RETURN THIS FORM TO THE SECRETARY
12
<PAGE>
CERTICOM CORP.
EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
I, _____________________________, the undersigned participant in the
Offering Period of the Certicom Corp. Employee Stock Purchase Plan (the "Plan")
which began on ____________________, hereby notify the Company that I wish to
withdraw from the Offering Period. I direct the Company to pay to me as promptly
as practicable all payroll deductions credited to my account with respect to
such Offering Period. I understand and agree that my participation in the Plan
will terminate and no shares will be purchased for me at the end of the Purchase
Period so long as I submit this Notice of Withdrawal to the Company at least 15
days prior to the end of the Purchase Period. I understand and agree that if I
submit this Notice of Withdrawal to the Company less than 15 days prior to the
end of the Purchase Period, shares will be purchased for me at the end of the
Purchase Period, and my participation in the Plan will end at the beginning of
the next Purchase Period or Offering Period, as the case may be. I further
understand that no additional payroll deductions will be made for the purchase
of shares in the current Offering Period, and I shall be eligible to participate
in succeeding Offering Periods only by timely delivering to the Company a new
Subscription Agreement and Enrollment Form.
Name and address of Participant (please print):
Name:___________________________________________________________________________
Street Address or P.O. Box:_____________________________________________________
City, State/Province/Zip/Postal Code:___________________________________________
_____________________________________________________
Signature Date
PLEASE RETURN THIS FORM TO THE SECRETARY
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<PAGE>
EX-4.2
CERTICOM CORP.
2000 UNITED STATES STOCK PLAN
1. ADOPTION AND PURPOSE OF THE PLAN
This stock plan, to be known as the Certicom Corp. 2000 United States
Stock Plan (but referred to herein as the "PLAN"), has been adopted by the board
of directors (the "BOARD") of Certicom Corp., a corporation organized under the
laws of the Yukon Territory (the "COMPANY"), and is subject to the approval of
its shareholders pursuant to Section 15. The purpose of the Plan is to encourage
Directors, Officers, Employees and Consultants of the Company or any of its
Subsidiaries who are residents of the United States: (a) to promote the
interests, growth and development of the Company by providing them with the
opportunity through options (the "OPTIONS") for Shares (the "OPTION SHARES") to
acquire a proprietary interest in the Company; (b) to recognize the contribution
of such Directors, Officers, Employees and other persons; and (c) to encourage
such Directors, Officers, Employees and other persons to acquire Shares of the
Company through the grant of Options and Stock Purchase Rights. Options granted
hereunder may be either ISOs or Nonstatutory Stock Options and Shares may be
sold to Employees or Consultants pursuant to Stock Purchase Rights hereunder, at
the discretion of the Administrator and as reflected in the terms of a written
Option Agreement or a Restricted Stock Purchase Agreement, as applicable.
2. CERTAIN DEFINITIONS
The defined terms set forth in EXHIBIT A attached hereto and
incorporated herein (together with other capitalized terms defined elsewhere in
the Plan) will govern the interpretation of the Plan.
3. ELIGIBILITY
The Company may grant Options and Stock Purchase Rights under the Plan
only to (a) persons who, at the time of such grant, are Directors, Officers and
Employees of the Company and/or any of its Subsidiaries and (b) Consultants of
the Company (collectively, "ELIGIBLE PARTICIPANTS"); provided that, no grant of
Options or Stock Purchase Rights may be made to any person who is not a United
States resident on the date such Options or Stock Purchase Rights are approved
for grant by the Administrator. No person will be an Eligible Participant
following his or her Termination of Eligibility Status and no Option or Stock
Purchase Right may be granted to any person other than an Eligible Participant.
A person who has been granted an Option or Stock Purchase Right may, if he or
she is otherwise eligible, be granted additional Options or Stock Purchase
Rights.
4. SHARES SUBJECT TO THE PLAN
(a) Subject to the provisions of Section 16, the maximum
aggregate number of Shares that may be optioned and/or sold under the Plan is
1,000,000. If any Option or Stock Purchase Right shall for any reason expire
or otherwise terminate, in whole or in part, without having been exercised in
full, the Shares not purchased under such Option or Stock Purchase Right
shall revert to again become available for issuance under the Plan. The
following restrictions shall also collectively apply to the Plan and to all
other plans or stock option agreements, including the 1997 Stock Option Plan,
to which the Company may be a party:
<PAGE>
(i) no Participant together with such Participant's
Associates shall be issued, within any one-year period, a number of Option
Shares under all such plans and agreements which exceeds 5% of the Outstanding
Issue.
(ii) the number of Option Shares under all such plans and
agreements reserved for issuance pursuant to Options under all such plans and
agreements to any one Participant shall not exceed 5% of the Outstanding Issue.
(b) The Company, during the term of the Plan, will at all times
reserve and keep available such number of Shares as shall be sufficient to
satisfy the requirements of the Plan.
5. ADMINISTRATION
(a) The Plan will be administered and interpreted by the Board, or
by a Committee appointed by the Board for such purpose in accordance with
Section 5(c) (the Board, or such Committee, referred to herein as the
"ADMINISTRATOR"). A majority of the members of the Board, or a Committee if so
appointed, shall constitute a quorum and all actions of the Board or Committee
shall be taken by a majority of the members present at any meeting. Any action
of the Board, or a Committee, may be taken by an instrument or instruments in
writing signed by all the members of the Board, or a Committee, and any actions
so taken shall be as effective as if it had been passed by a majority of the
votes cast by the members of the Board, or a Committee, present at a meeting of
such members duly called and held.
(b) Subject to the express terms and conditions hereof, the
Administrator is authorized to prescribe, amend and rescind rules and
regulations relating to the Plan, and to make all other determinations necessary
or advisable for its administration and interpretation. Specifically, the
Administrator will have full and final authority in its discretion, subject to
the specific limitations on that discretion as are set forth herein and in the
organic instruments of the Company, at any time:
(i) to select and approve the Eligible Participants to whom
Options will be granted from time to time hereunder.
(ii) to grant Stock Purchase Rights; to determine the price
per share and the method of payment for any Shares to be sold pursuant to a
Stock Purchase Right; to determine the Eligible Participants to whom and the
time or times at which Shares may be sold under Stock Purchase Rights; and to
determine the number of Shares to be sold and all additional terms of the
Restricted Stock Purchase Agreement.
(iii) with respect to each Option it decides to grant, to
determine the terms and conditions of that Option to be set forth in the Option
Agreement evidencing that Option (the form of which also being subject to
approval by the Administrator), which may vary from the "default" terms and
conditions set forth in Section 9, except to the extent otherwise provided in
the Plan, including, without limitation, as follows:
(A) the total number of Option Shares that may be
acquired by the Optionee pursuant to the Option;
(B) if the Option satisfies the conditions under
Section 422(b) of the Code, whether the Option will be treated as an ISO;
(C) the per share purchase price to be paid and the
method of payment to the Company by the Optionee to acquire the Option Shares
issuable upon exercise of the Option (the "OPTION PRICE"), PROVIDED THAT the
Option Price will not be less than the Market Value of the Shares as
2
<PAGE>
of the Grant Date, unless the Optionee is a 10% shareholder, in which case the
Option Price will not be less than 110% of such Market Value;
(D) the maximum period or term during which the
Option will be exercisable (the "OPTION TERM"), PROVIDED THAT in no event may
the Option Term be longer than 10 years from the Grant Date;
(E) the maximum period following any Termination of
Eligibility Status, whether resulting from an Optionee's death, disability or
any other reason, during which period (the "GRACE PERIOD") the Option will be
exercisable, subject to Vesting and to the expiration of the Option Term,
PROVIDED THAT in no event may the Administrator designate a Grace Period that is
shorter than one hundred eighty days after such Termination of Eligibility
Status by reason of the Optionee's death or disability or 30 days after such
Termination of Eligibility for any other reason, except in the event of a
Termination for Cause, in which case no Grace Period will be required (I.E., the
Option will terminate immediately);
(F) the conditions (E.G., the passage of time or the
occurrence of events), if any, that must be satisfied prior to the vesting of
the right to exercise all or specified portions of an Option (such portions
being described as the number of Option Shares or the percentage of the total
number of Option Shares that may be acquired by the Optionee pursuant to the
Option; the vested portion being referred to as a "VESTED OPTION" and the
unvested portion being referred to as an "UNVESTED OPTION"); and
(G) to prescribe the form of the instruments
relating to the grant, exercise and other terms of Option Shares and the persons
to receive Option Shares.
(iv) to delegate all or a portion of the Administrator's
authority under this Section 5 to one or more members of the Board who also are
executive officers of the Company, subject to such restrictions and limitations
as the Administrator may decide to impose on such delegation.
(c) The Board may delegate administration of the Plan to a Committee
or Committees of one or more members of the Board. In the discretion of the
Board, a Committee may consist solely of two or more Outside Directors, in
accordance with Code Section 162(m), or solely of two or more Non-Employee
Directors, in accordance with Rule 16b-3. If administration is delegated to a
Committee, the Committee shall have, in connection with the administration of
the Plan, the powers theretofore possessed by the Board (and references in the
Plan to the Board shall thereafter be to the Committee), subject, however, to
such resolutions, not inconsistent with the provisions of the Plan, as may be
adopted from time to time by the Board. The Board may abolish the Committee at
any time and revest in the Board the administration of the Plan. Within the
scope of this authority, the Board or the Committee may delegate to a committee
of one or more members of the Board the authority to grant Options and Stock
Purchase Rights to eligible persons who (i) are not then subject to Section 16
of the Exchange Act and/or (ii) are either (A) not then Covered Employees and
are not expected to be Covered Employees at the time of recognition of income
resulting from such Option or (B) not persons with respect to whom the Company
wished to comply with Section 162(m) of the Code.
6. STOCK PURCHASE RIGHTS
(a) Stock Purchase Rights may be issued either alone, in addition
to, or in tandem with other awards granted under the Plan. After the
Administrator determines that it will offer Stock Purchase Rights under the
Plan, it shall advise the offeree in writing, by means of a Notice of Grant, of
the terms, conditions and restrictions related to the offer, including the
number of Shares that the offeree shall be entitled to purchase, the price to be
paid and the time within which the offeree must accept such offer.
3
<PAGE>
The offer shall be accepted by execution of a Restricted Stock Purchase
Agreement in the form determined by the Administrator.
(b) Unless the Administrator determines otherwise, the Restricted
Stock Purchase Agreement shall grant the Company a repurchase option exercisable
upon the voluntary or involuntary termination of the purchaser's service with
the Company for any reason (including death or disability). The purchase price
for Shares repurchased pursuant to the Restricted Stock Purchase Agreement shall
be the original price paid by the purchaser and may be paid by cancellation of
any indebtedness of the purchaser to the Company. The repurchase option shall
lapse at a rate determined by the Administrator.
(c) The Restricted Stock Purchase Agreement shall contain such other
terms, provisions and conditions not inconsistent with the Plan as may be
determined by the Administrator in its sole discretion.
(d) Once the Stock Purchase Right is exercised, the purchaser shall
have the rights equivalent to those of a shareholder, and shall be a shareholder
when his or her purchase is entered upon the records of the duly authorized
transfer agent of the Company. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the Stock Purchase
Right is exercised, except as provided in Section 16 of the Plan.
7. PAYMENT
The Participant from time to time may elect to purchase all or a portion
of the Option Shares available for purchasing during the relevant Option Period
or the Shares which he or she is eligible to purchase pursuant to a Stock
Purchase Right by lump sum payment by delivering to the Company at its corporate
office in the United States, a notice in writing which shall specify the number
of Option Shares or Shares the Participant desires to purchase and shall be
accompanied by payment in full of the purchase price of such Option Shares or
Shares. Payment can be made by (a) cash, certified check, bank draft, money
order or the equivalent in U.S. dollars payable to the order of Certicom Corp.;
(b) delivery of other Shares which (i) in the case of Shares acquired upon
exercise of an option, have been owned by the Optionee for more than six months
on the date of surrender and (ii) have a Market Value on the date of surrender
equal to the aggregate Option Price of the Shares as to which said Option shall
be exercised; (c) consideration received by the Company under a cashless
exercise program implemented by the Administrator in connection with the Plan;
or (d) such other consideration approved by the Administrator.
8. BUYOUT PROVISIONS
The Administrator may at any time offer to buy out for a payment in cash
or Shares an Option or Stock Purchase Right previously granted based on such
terms and conditions as the Administrator shall establish and communicate to the
Participant at the time that such offer is made.
9. DEFAULT TERMS AND CONDITIONS OF OPTION AGREEMENTS
Unless otherwise expressly provided in an Option Agreement based on the
Administrator's determination pursuant to Section 5, the following terms and
conditions will be deemed to apply to each Option as if expressly set forth in
the Option Agreement:
9.1 ISO. If granted to an Eligible Participant who, as of the Grant
Date, is an Employee of the Company or any Subsidiary, and expressly designated
as an ISO, the Option will be an ISO, subject to the following additional terms
and conditions:
4
<PAGE>
(a) The Market Value of Option Shares (determined as of the Grant
Date) with respect to which all ISOs are exercisable for the first time by any
individual during any calendar year (pursuant to the Plan and all other plans of
the Company and/or its Subsidiaries) cannot exceed $100,000.
(b) The Option Price will not be less than 100% of the Market Value
of the Shares as of the Grant Date, except that if the Optionee is a 10%
shareholder the Option Price will not be less than 110% of the Market Value of
the Shares as of the Grant Date, and the Option Term may not be more than 5
years.
(c) Notwithstanding any Grace Period selected by the Administrator
pursuant to Section 5(b)(iii)(E) above, or the default provisions of Section 9.3
below, the tax treatment available pursuant to Section 422 of the Code upon the
exercise of the ISO will not be available to an Optionee who exercises the
Option more than (i) three months following the Optionee's Termination of
Eligibility Status OTHER THAN by reason of his or her death or permanent and
total disability (within the meaning of Section 22(e)(3) of the Code), or (ii)
12 months following such Optionee's Termination of Eligibility Status by reason
or his or her permanent and total disability.
9.2 OPTION TERM. The Option Term will be for a period of 5 years
beginning on the Grant Date. In the case of an ISO granted to a 10% shareholder,
the Option Term will not exceed a period of 5 years beginning on the Grant Date.
9.3 GRACE PERIODS. Following a Termination of Eligibility Status,
the Vesting in respect of Options held by that Participant shall immediately
cease but:
(a) the Grace Period will be ninety (90) days, unless the
Termination of Eligibility Status is a result of a Termination for Cause or the
death or disability of the Optionee;
(b) the Grace Period will be one hundred eighty (180) days if the
Termination of Eligibility Status is a result of the death or disability of the
Optionee;
(c) the Option will terminate, and there will be no Grace Period,
effective immediately as of the date and time of a Termination for Cause of the
Optionee, regardless of whether the Option is Vested or Unvested; and
(d) to the extent permitted by the Code at any time before or after
the expiration of the Grace Period set forth in Sections 9.3(a), 9.3(b) and
9.3(c), the Administrator may extend such period as it applies to any
Participant to a date which is not later than the expiration of the term of such
Options.
9.4 VESTING. The Option initially will be deemed an entirely
Unvested Option, but portions of the Option will vest and become a Vested Option
("VESTING") on the following schedule: 25% of the Option Shares shall vest on
the first anniversary of the Grant Date of the Option and thereafter a further
2.083333% of the Shares covered by the Option following the expiration of each
one-month period following the expiration of the initial 12-month period from
the Grant Date; PROVIDED THAT the Optionee does not suffer a Termination of
Eligibility Status prior to each such vesting date and PROVIDED FURTHER THAT
additional vesting will be suspended during any period while the Optionee is on
a leave of absence from the Company or its Subsidiaries, as determined by the
Administrator.
9.5 EXERCISE OF THE OPTION; ISSUANCE OF SHARES.
(a) The portion of the Option that is an Unvested Option may not be
exercised. The portion of the Option that is a Vested Option may be exercised by
giving written notice thereof to the Company, on such form as may be specified
by the Administrator, but in any event stating: the Optionee's intention
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to exercise the Option; the date of exercise; the number of full Option Shares
to be purchased; the amount and form of payment of the Option Price; and such
assurances of the Optionee's investment intent as the Company may require to
ensure that the transaction complies in all respects with the requirements of
the 1933 Act and other applicable securities laws. The notice of exercise will
be signed by the person or persons exercising the Option. In the event that the
Option is being exercised by the representative of the Optionee, the notice will
be accompanied by proof satisfactory to the Company of the representative's
right to exercise the Option. The notice of exercise will be accompanied by full
payment of the Option Price for the number of Option Shares in the manner set
forth in Section 7.
(b) To the extent required by applicable United States federal,
state, local or Canadian law, and as a condition to the Company's obligation to
issue any Shares upon the exercise of the Option in full, the Optionee will make
arrangements satisfactory to the Company for the payment of any applicable Tax
Withholding Liability that may arise by reason of or in connection with the
exercise, sale or repurchase of Options or Option Shares. Such arrangements may
include, in the Company's sole discretion, that the Optionee tender to the
Company the amount of such Tax Withholding Liability, in a manner set forth in
Section 7 of the Plan.
(c) After receiving a proper notice of exercise and payment of the
applicable Option Price and Tax Withholding Liability, the Company will cause to
be issued the Option Shares as to which the Option has been exercised.
10. COMPLIANCE WITH LAW
Notwithstanding any other provision of the Plan, Options and Stock
Purchase Rights may be granted pursuant to the Plan, and Option Shares and
Shares may be issued pursuant to the exercise thereof by an Optionee or grantee,
only after and on the condition that there has been compliance with all
applicable United States federal and state securities laws, applicable Canadian
and provincial laws and, to the extent applicable, all applicable rules and
regulations of all stock exchanges or quotation systems on which the Shares are
listed or posted for trading (together "APPLICABLE LAWS"). The Company's
obligation to issue and deliver Shares under any Option or Stock Purchase Right
or to sell any Shares is subject to:
(a) the satisfaction of all requirements under Applicable Laws in
respect thereof and obtaining all regulatory approvals as the Company shall
determine to be necessary or advisable in connection with the authorization,
issuance and sale thereof;
(b) the admission of such Shares to listing on the Nasdaq National
Market; and
(c) the registration of the Plan and the Shares to be issued
pursuant to the Plan with the United States Securities and Exchange Commission
on a Form S-8 Registration Statement under the 1933 Act, or any successor form
thereto.
In this connection, the Company shall take all reasonable steps to
obtain such approvals and registrations as may be necessary for the issuance of
such Shares in compliance with Applicable Laws and for the registration of such
Shares. As a condition to the exercise of an Option or the sale of any Shares,
the Company may impose various conditions, including a requirement that the
person exercising such Option or purchasing such Shares represents and warrants,
at the time of any such exercise or purchase, that the Shares are being
purchased only for investment and without any present intention to sell or
distribute such Shares and other restrictions on such Shares relating to
employment or other matters as may be determined by the Board. The Company may,
upon advice of counsel to the Company, place legends on share certificates
issued under the Plan as counsel to the Company deems necessary or
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advisable in order to comply with applicable securities laws, including, but not
limited to, legends restricting the transfer of the Shares.
11. RESTRICTIONS ON TRANSFER
An Option shall not be transferable except by will or the laws of
descent and distribution. During the lifetime of a natural person who is granted
an Option under the Plan, the Option will be exercisable only by him or her.
Notwithstanding anything else in the Plan to the contrary, no Option Agreement
will contain any provision which is contrary to, or which modifies, the
provisions of this Section 11.
12. CORPORATE REORGANIZATIONS
In the case of a proposed merger or amalgamation of the Company with one
or more other corporations or other entities, the making of a takeover bid (as
defined in the SECURITIES ACT (Ontario)) for any of the outstanding Shares, the
sale or distribution of all or substantially all of the Company's assets or a
proposed corporate arrangement or reorganization, the Board may, in its absolute
discretion, determine the manner in which all unexercised Options granted under
the Plan shall be treated including, notwithstanding Section 19 hereof, changing
the Option Period.
13. NOTICES
Any notice to be given to the Company under the terms of an Option
Agreement or a Restricted Stock Purchase Agreement will be addressed to the
Company at its corporate office in the United States: Attention: Secretary, or
at such other address as the Company may designate in writing. Any notice to be
given to an Optionee or grantee will be addressed to him or her at the address
provided to the Company by such person. Any such notice will be deemed to have
been duly given if and when enclosed in a properly sealed envelope, addressed as
aforesaid, deposited, postage prepaid, in a post office or branch post office
regularly maintained by the local postal authority.
14. OTHER PROVISIONS
Each Option Agreement and Stock Purchase Right may contain such other
terms and provisions not inconsistent with the Plan and Applicable Law, as may
be determined by the Administrator in its sole discretion.
15. TERM OF THE PLAN
The Plan will become effective on the date of its adoption by the
Shareholders of the Company. The Plan will expire on the tenth (10th)
anniversary of the date of its adoption by the shareholders of the Company
unless it is terminated earlier pursuant to Section 19 of the Plan, after which
no more Options or Stock Purchase Rights may be granted under the Plan, although
all outstanding Options and Stock Purchase Rights granted prior to such
expiration or termination will remain subject to the provisions of the Plan, and
no such expiration or termination of the Plan will result in the expiration or
termination of any such Option or Stock Purchase Right prior to the expiration
or early termination of the applicable Option Term or the term set forth in the
Stock Purchase Right, as applicable.
16. ADJUSTMENTS UPON CHANGES IN SHARES
The number of Shares subject to the Plan, the number of Shares available
under Options and the Stock Purchase Rights granted and the Option Price and the
price payable for Shares under the Stock Purchase Right shall be adjusted
automatically from time to time to reflect adjustments in the number of Shares
arising as a result of subdivisions, stock dividends, consolidations or
reclassifications of the Shares
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or other relevant changes in the authorized or issued capital of the Company. No
such adjustments will be required by reason of the issuance or sale by the
Company for cash or other consideration of additional Shares or securities
convertible into or exchangeable for Shares. No fractional Shares may be
purchased or issued hereunder. If a Participant is entitled to purchase a
fraction of a Share pursuant to an Option or Stock Purchase Right such
entitlement shall be rounded down to the nearest whole number.
17. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS
Subject to the terms and conditions and within the limitations of the
Plan and any required regulatory approval, the Administrator may modify, extend
or renew outstanding Options granted under the Plan, or accept the surrender of
outstanding Options (to the extent not theretofore exercised) and authorize the
granting of new Options in substitution therefor (to the extent not theretofore
exercised). Notwithstanding the foregoing, however, no modification of any
Option will, without the consent of the Optionee, alter or impair any rights or
obligations under any outstanding Option.
18. GOVERNING LAW
The internal laws of the Province of Ontario (irrespective of its choice
of law principles) will govern the validity of the Plan, the construction of its
terms and the interpretation of the rights and duties of the parties hereunder
and under any Option Agreement.
19. AMENDMENT AND DISCONTINUANCE
The Board may amend, suspend or discontinue the Plan at any time or from
time to time; PROVIDED THAT no action of the Board will, without the approval of
the shareholders of the Company, materially increase (other than by reason of an
adjustment pursuant to Section 16 hereof) the maximum aggregate number of Shares
subject to the Plan, materially increase the benefits accruing to Eligible
Participants, or materially modify the category of, or eligibility requirements
for persons who are Eligible Participants. However, no such action may alter or
impair any Option or Stock Purchase Right previously granted under the Plan
without the consent of the Optionee or grantee, nor may the number of Shares
subject to the Plan be reduced to a number that is less than the aggregate
number of Option Shares and Shares (i) that may be issued pursuant to the
exercise of all outstanding and unexpired Options or Stock Purchase Rights
granted hereunder and (ii) that have been issued and are outstanding pursuant to
the exercise of Options or Stock Purchase Rights granted hereunder. The Board
may in its sole discretion submit any other amendment to the Plan for
shareholder approval, including, but not limited to, amendments to the Plan
intended to satisfy the requirements of Section 162(m) of the Code and the
regulations promulgated thereunder regarding the exclusion of performance-based
compensation from the limit on corporate deductibility of compensation paid to
certain executive officers.
20. NO SHAREHOLDER OR EMPLOYMENT RIGHTS; CORPORATE ACTION
No rights or privileges of a shareholder in the Company are conferred by
reason of the granting of an Option or Stock Purchase Right. No Optionee will
become a shareholder in the Company with respect to any Option Shares unless and
until the Option has been properly exercised, the Option Price has been fully
paid as to the portion of the Option exercised and the name of the person
rightfully exercising the Option has been entered in the register of
shareholders of the Company. The granting of an Option or the sale of Shares to
a Participant pursuant to a Stock Purchase Right does not confer upon the
Participant any right to continue in the employment of the Company or any
Subsidiary of the Company or on the Board, as the case may be, nor does it
interfere in any way with the right of the Participant or the Company to
terminate the Participant's employment at any time or shareholders' right to
elect directors. Nothing contained in the Plan or in the Option Agreement or
Restricted Stock Purchase Agreement shall be construed so as to prevent the
Company or any Subsidiary from taking corporate action which is deemed
8
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by the Company or the Subsidiary to be appropriate or in the Company's best
interest, whether or not such action would have an adverse effect on the Plan.
21. COPIES OF PLAN; ELECTRONIC DELIVERY
A copy of the Plan will be delivered to each Optionee and grantee of a
Stock Purchase Right at or before the time he, she or it executes an Option
Agreement or Restricted Stock Purchase Agreement, as applicable. Notwithstanding
any other provision of the Plan, to the extent permitted by Applicable Law, the
Company may provide copies of the Plan and any other documentation or writing to
be delivered to any Participant or Eligible Participant (including Option
Agreements and Restricted Stock Purchase Agreements) electronically, and, as
determined by the Administrator and permitted by Applicable Law, all notices and
other documentation or writing required to be provided by a Participant or
Eligible Participant to the Company may be transmitted electronically.
Date Plan Adopted by Board of Directors: March 26, 2000
Date Plan Approved by the Shareholders: April 27, 2000
9
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CERTICOM CORP.
2000 UNITED STATES STOCK PLAN
EXHIBIT A
DEFINITIONS
1. "10% SHAREHOLDER" means a person who owns, either directly or
indirectly by virtue of the ownership attribution provisions set forth in
Section 424(d) of the Code at the time he or she is granted an Option, shares
possessing more than 10% of the total combined voting power or value of all
classes of equity of the Company and/or of its Subsidiaries.
2. "1997 STOCK OPTION PLAN" means the Company's 1997 Stock Option
Plan, as may be amended from time to time.
3. "1933 ACT" means the United States Securities Act of 1933, as
amended.
4. "ADMINISTRATOR" has the meaning set forth in Section 5(a) of the
Plan.
5. "AFFILIATE" means any parent corporation or subsidiary
corporation of the Company, whether now or hereafter existing, as those terms
are defined in Sections 424(e) and (f), respectively, of the Code.
6. "ASSOCIATE" has the meaning assigned by the SECURITIES ACT
(Ontario), as amended from time to time.
7. "BOARD" has the meaning set forth in Section 1 of the Plan.
8. "CODE" means the United States Internal Revenue Code of 1986, as
amended (references herein to Sections of the Code are intended to refer to
Sections of the Code as enacted at the time of the Plan's adoption by the Board
and as subsequently amended, or to any substantially similar successor
provisions of the Code resulting from recodification, renumbering or otherwise).
9. "COMMITTEE" means a committee appointed by the Board in
accordance with Section 5(c) of the Plan.
10. "COMPANY" has the meaning set forth in Section 1 of the Plan.
11. "CONSULTANT" is as an individual who is a Contractor or who:
(a) provides ongoing consulting services to the Company or an
Affiliate under a written contract;
(b) possesses technical, business or management expertise of value
to the Company or an Affiliate;
(c) spends a significant amount of time and attention on the
business and affairs of the Company or on an Affiliate; and
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(d) has a relationship with the Company or an Affiliate that enables
the individual to be knowledgeable concerning the business and affairs of the
Company.
12. "CONTRACTOR" means an individual who is not an Employee but
works full-time or part-time for the Company providing services normally
provided by an Employee.
13. "COVERED EMPLOYEE" means the chief executive officer and the
four other highest compensated officers of the Company for whom total
compensation is required to be reported to shareholders under the Exchange Act,
as determined for purposes of Section 162(m) of the Code.
14. "DISABILITY" means any physical or mental disability which
results in a Termination of Eligibility Status under applicable law, except that
for purposes of Section 9.3(a) of the Plan, the term "disability" means
permanent and total disability within the meaning of Section 22(e)(3) of the
Code.
15. "DIRECTOR" means a member of the Board.
16. "ELIGIBLE PARTICIPANTS" has the meaning set forth in Section 3
of the Plan.
17. "EMPLOYEE" means any person, including Officers and Directors,
employed by the Company or any Affiliate. Neither service as a Director nor
payment of a director's fee by the Company shall be sufficient to constitute
"employment" by the Company.
18. "EXCHANGE ACT" means the United States Securities Exchange Act
of 1934, as amended.
19. "GRACE PERIOD" has the meaning set forth in Section 5(b)(iii)(E)
of the Plan.
20. "GRANT DATE" means, with respect to an Option, the date on which
the Option Agreement evidencing that Option is entered into between the Company
and the Optionee, or such other date as may be set forth in that Option
Agreement as the "Grant Date" which will be the effective date of that Option
Agreement.
21. "ISO" means an "incentive stock option" as defined in Section
422 of the Code.
22. "MARKET VALUE" per Share at any date shall be the closing price
of the Shares on the Nasdaq National Market (the "NNM") (or if the Shares are
not then listed and posted for trading on the NNM, on such stock exchange on
which such Shares are then listed and posted for trading as may be selected for
such purpose by the Administrator) on the trading day immediately preceding the
Grant Date or, in the event of a measurement of Share price pursuant to Section
7(b), the trading day immediately preceding the surrender of the Shares. In the
event that the Shares are not listed and posted for trading on the NNM or any
stock exchange, the Market Value shall be determined by the Administrator in its
sole discretion; provided that, such determination is consistent with the
requirements of Section 422 of the Code. Notwithstanding the preceding, in the
event that the Shares are listed in a currency other than U.S. dollars, the
Market Value shall be converted into U.S. dollars from such currency based on
the New York foreign exchange mid-range rates applying to trading among banks in
the amounts of $1 million and more as quoted at 4 p.m. New York time on the
trading day preceding the Grant Date (or, in the event of a measurement of Share
price pursuant to Section 7(b), the date prior to the surrender of the Shares)
as reported by Reuters and other sources or, if not available, such other
exchange rate as determined by the Administrator in its sole discretion.
23. "NON-EMPLOYEE DIRECTOR" means a Director who either (i) is not a
current Employee or Officer of the Company or its parent or Subsidiary, does not
receive compensation (directly or indirectly) from the Company or its parent or
Subsidiary for services rendered as a Consultant or in any capacity
11
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other than as a Director (except for an amount as to which disclosure would not
be required under Item 404(a) of Regulation S-K promulgated pursuant to the 1933
Act), does not possess an interest in any other transaction as to which
disclosure would be required under Item 404(a) of Regulation S-K, and is not
engaged in a business relationship as to which disclosure would be required
under Item 404(b) of Regulation S-K or (ii) is otherwise considered a
"non-employee director" for purposes of Rule 16b-3.
24. "NONSTATUTORY STOCK OPTION" means an Option not intended to
qualify as an ISO.
25. "NOTICE OF GRANT" means a written notice evidencing certain
terms and conditions of an individual Stock Purchase Right grant.
26. "OFFICER" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
27. "OPTION AGREEMENT" means an agreement pursuant to which an
Optionee is granted Options to purchase Option Shares pursuant to the Plan.
28. "OPTION PRICE" has the meaning set forth in Section 5(b)(iii)(C)
of the Plan.
29. "OPTION SHARES" has the meaning set forth in Section 1 of the
Plan, provided that for purposes of Section 12 of the Plan, the term "Option
Shares" includes all Shares issued by the Company to a Participant (or his, her
or its predecessor) by reason of such holdings, including any securities which
may be acquired as a result of a stock split, stock dividend and other
distributions of Shares in the Company made upon, or in exchange for, other
securities of the Company.
30. "OPTION TERM" has the meaning set forth in Section 5(b)(iii)(D)
of the Plan.
31. "OPTIONEE" means a person who is granted an Option pursuant to
the Plan.
32. "OPTIONS" has the meaning set forth in Section 1 of the Plan.
33. "OUTSIDE DIRECTOR" means a Director who either (i) is not a
current Employee of the Company or an "affiliated corporation" (within the
meaning of the Treasury regulations promulgated under Section 162(m) of the
Code), is not a former Employee of the Company or an "affiliated corporation"
receiving compensation for prior services (other than benefits under a tax
qualified pension plan), was not an Officer of the Company or an "affiliated
corporation" at any time, and is not currently receiving direct or indirect
remuneration from the Company or an "affiliated corporation" for services in any
capacity other than as a Director, or (ii) is otherwise considered an "outside
director" for purposes of Section 162(m) of the Code.
34. "OUTSTANDING ISSUE" means the number of Shares that are
outstanding immediately prior to any issuance of Options under the Plan or any
issuance of Option Shares, as the case may be, excluding Option Shares issued
pursuant to the Plan and all other plans or stock option agreements, including
the 1997 Stock Option Plan, to which the Company may be a party during the
preceding one-year period.
35. "PARTICIPANT" means Eligible Participants to whom Options are
granted pursuant to the Plan which remain unexercised or to whom a Stock
Purchase Right has been granted which remains unexercised.
36. "PLAN" has the meaning set forth in Section 1 of the Plan.
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37. "RESTRICTED STOCK PURCHASE AGREEMENT" means a written agreement
between the Company and the grantee of a Stock Purchase Right evidencing the
terms and restrictions applying to Shares to be purchased under a Stock Purchase
Right. The Restricted Stock Purchase Agreement is subject to the terms and
conditions of the Plan and the Notice of Grant.
38. "RULE 16b-3" means Rules 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
39. "SHARES" means the Common Shares of the Company or, in the event
of an adjustment contemplated in Section 16 hereof, such other securities to
which an Eligible Participant may be entitled upon the exercise of an Option or
a Stock Purchase Right as a result of such adjustment.
40. "STOCK PURCHASE RIGHT" means the right to purchase Shares
pursuant to Section 6 of the Plan, as evidenced in the Notice of Grant.
41. "SUBSIDIARY" for purposes of Section 3 of the Plan only, has the
same meaning as "subsidiary corporation" as defined in the SECURITIES ACT
(Ontario); for all other purposes under the Plan, "Subsidiary" means a
corporation or other entity that is both (i) a "subsidiary corporation" as
defined in the SECURITIES ACT (Ontario) and (ii) a "subsidiary corporation" as
defined in Section 424(f) of the Code.
42. "TAX WITHHOLDING LIABILITY" in connection with the exercise,
sale or repurchase of any Option or Option Shares means all Canadian or United
States federal, state or provincial income taxes, social security taxes,
employment taxes and any other taxes (together with any interest or penalties
applicable thereon) related to any compensation income arising from the
transaction required by applicable law to be withheld by the Company.
43. "TERMINATION OF ELIGIBILITY STATUS" means (i) in the case of any
Employee of the Company and/or any of its Subsidiaries, a termination of his or
her employment, whether by the Employee or employer, and whether voluntary or
involuntary, including without limitation as a result of the death or disability
of the Employee; (ii) in the case of any Consultant of the Company and/or any of
its Subsidiaries, the termination of the services relationship pursuant to any
contract between the parties or otherwise under applicable law; and (iii) in the
case of any director of the Company and/or any of its Subsidiaries, the death of
or resignation by the director or his or her removal from the Board in the
manner provided by the organic instruments of the Company or Subsidiary or
otherwise in accordance with applicable law.
44. "TERMINATION FOR CAUSE" means (i) in the case of an Optionee who
is an Employee of the Company and/or any of its Subsidiaries, a termination by
the employer of the Optionee's employment for "cause" as defined by applicable
law, by any contract of employment or the Option Agreement or the Restricted
Stock Purchase Agreement, or if not defined therein, pursuant to the "For Cause
Standard" set forth below, (ii) in the case of an Optionee who is or which is a
Consultant to the Company and/or any of its Subsidiaries, a termination of the
services relationship by the hiring party for "cause" or breach of contract, as
defined by applicable law, by any contract between the parties or the Option
Agreement or the Restricted Stock Purchase Agreement, or if not defined therein,
pursuant to the "For Cause Standard" set forth below, and (iii) in the case of
an Optionee who is a Director of the Company and/or any of its Subsidiaries,
removal of him or her from the Board by action of the shareholders or, if
permitted by applicable law and the articles, bylaws or other organic
instruments of the Company or the Subsidiary, as the case may be, or pursuant to
applicable law, by the other Directors, in connection with the good faith
determination of the Board (or of the Company's or Subsidiary's shareholders if
so required, but in either case excluding the vote of the subject individual if
he or she is a Director or a shareholder) that the Optionee has engaged in any
acts which breach any fiduciary duty to the Company, any of its Subsidiaries or
their shareholders, or in any acts involving dishonesty or moral turpitude or in
any acts that materially
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and adversely affect the business, affairs or reputation of the Company or any
of its Subsidiaries (the "FOR CAUSE STANDARD").
45. "UNVESTED OPTIONS" has the meaning set forth in Section
5(b)(iii)(F) of the Plan.
46. "VESTED OPTION" has the meaning set forth in Section
5(b)(iii)(F) of the Plan.
47. "VESTING" has the meaning set forth in Section 9.4 of the Plan.
14
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EX-5
[LETTERHEAD OF ANTON CAMPION MACDONALD OYLER APPEARS HERE]
May 16, 2000
Certicom Corp.
5520 Explorer Drive
Mississauga, Ontario
L4W 5L1
Canada
Dear Sirs/Mesdames:
Re: Registration Statement on Form S-8
We have acted as Yukon Territory counsel for Certicom Corp., a
corporation organized under the laws of the Yukon Territory, Canada (the
"Company"), in connection with the registration of 1,500,000 Common Shares of
the Company (the "Common Shares") issuable under the Certicom Corp. Employee
Stock Purchase Plan and the Certicom Corp. 2000 United States Stock Plan
(collectively, the "Plans"). In connection therewith, we have examined, among
other things, the Registration Statement on Form S-8 (the "Registration
Statement") proposed to be filed by the Company with the Securities and Exchange
Commission on or about May 17, 2000. We have also examined the proceedings and
other actions taken by the Company in connection with the authorization of the
Common Shares issuable under the Plans and such other matters as we deemed
necessary for purposes of rendering this opinion.
Based upon the foregoing, and in reliance thereon, we are of the
opinion, as of the date hereof, that the Common Shares issuable under the Plans,
when issued, delivered and paid for in accordance with the Plans and in the
manner described in the Registration Statement, will be validly issued, fully
paid and nonassessable.
In rendering this opinion we express no opinion as to the laws of any
jurisdiction other than the laws of the Yukon Territory.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the General Rules and Regulations of the
Securities and Exchange Commission.
Yours truly,
ANTON CAMPION MACDONALD OYLER
\s\ Gareth C. Howells
<PAGE>
EX-23.2
CONSENT OF DELOITTE & TOUCHE LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Certicom Corp. (the "Company") on Form S-8 of the following reports appearing in
the Prospectus on Form F-10:
- Our report dated June 7, 1999 (except for Note 14 which is as of
March 1, 2000) on the consolidated financial statements of the
Company (expressed in U.S. dollars and presented in accordance
with United States generally accepted accounting principles ("US
GAAP"))
- Our report dated September 24, 1999 on the financial statements
of Consensus Development Corporation
- Our report dated February 10, 2000 on the financial statements
of Trustpoint
We also consent to the incorporation by reference in this Registration Statement
of the Company on Form S-8 of the following reports included and incorporated by
reference in the Prospectus on Form F-10:
- Our report dated June 7, 1999 on the consolidated financial
statements of the Company for the year ended April 30, 1999
(expressed in Canadian dollars and presented in accordance with
Canadian generally accepted accounting principles ("Canadian
GAAP"))
- Our report dated June 7, 1999 (except for Note 15 which is as of
March 1, 2000) on the consolidated financial statements of the
Company for the year ended April 30, 1999 (expressed in US
dollars and presented in accordance with Canadian GAAP)
We also consent to the incorporation by reference in this Registration Statement
of the Company on Form S-8 of our report dated June 7, 1999, included and
incorporated by reference in the Company's renewal Annual Information Form dated
June 7, 1999.
We also consent to the use in this Registration Statement of the Company on Form
S-8 of the following reports appearing in the Prospectus on Form F-10:
- Our compilation report dated March 1, 2000 on the pro forma
condensed consolidated statement of operations of the Company
for the year ended April 30, 1999 and nine months ended January
31, 2000 (expressed in US dollars prepared in accordance with
Canadian GAAP)
- Our compilation report dated March 1, 2000 on the pro forma
condensed consolidated statement of operations of the Company
for the year ended April 30, 1999 and nine months ended January
31, 2000 (expressed in US dollars and prepared in accordance
with US GAAP)
We also consent to the reference to us under the heading "Selected Financial
Data" in the Preliminary Prospectus on Form F-10.
\s\ Deloitte & Touche LLP
Charted Accountants
Toronto, Ontario
May 17, 2000
