EXHIBIT 4.4
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VECTOR INTERNET SERVICES, INC.
1999 STOCK OPTION PLAN
I. PURPOSE
Vector Internet Services, Inc. (the "Company") hereby adopts this stock
option plan (the "Plan") to promote the Company's welfare by encouraging key
employees of the Company to acquire a proprietary interest in the Company,
thereby creating an additional incentive on the part of such employees to
advance the progress and financial success of the Company and to continue in its
employ. Options granted under this Plan may be either incentive stock options
("Incentive Stock Options"), within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code") or options which are not Incentive
Stock Options ("Nonqualified Options").
II. SHARES SUBJECT TO PLAN
The shares subject to options under the Plan are shares of the
Company's authorized common stock, $.01 par value, (the "Stock"). Subject to
adjustment as provided in Section X, the maximum number of shares for which
options may be exercised is 400,000 shares. Any shares optioned hereunder which
remain unpurchased and as to which the option ceases to be exercisable by reason
of lapse, surrender, or other circumstance may be the subject of subsequent
options within the limitations herein set forth.
III. ADMINISTRATION OF THE PLAN
A. The Plan shall be administered by the Board of Directors of the
Company (the "Board"). At any time, the Board may authorize a committee of the
Board (the "Committee") to
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exercise the powers conferred on the Board under the Plan, other than the power
under Section XVIII hereof to terminate and amend the Plan.
B. The Board shall have full authority in its discretion, but subject
to the express provisions of this Plan: (i) to determine the purchase price of
the shares of Stock covered by each option, (ii) to determine the persons to
whom and the time or times at which such options shall be granted and the number
of shares to be subject to each option, (iii) to determine whether the options
granted are Incentive Stock Options or Nonqualified Options, (iv) to determine
the terms of exercise of each option, (v) to interpret the Plan, (vi) to
prescribe, amend, and rescind rules and regulations relating to the Plan, (vii)
to determine the terms and provisions (and amendments thereof) of each Stock
Option Certificate (the "Certificate") under this Plan (which Certificates need
not be identical), and (viii) to make all other determinations necessary or
advisable for the administration of the Plan. The Board may, in addition,
correct any defect, overcome any omission, or reconcile any inconsistency in the
Plan or in any Certificate in the manner and to the extent it may determine. No
member of the Board shall be liable for any action or determination made in good
faith with respect to the Plan or any rights granted hereunder.
IV. ELIGIBILITY
All key employees of the Company (including officers and directors who
are also employees) shall be eligible to participate in the Plan. In determining
the persons to whom options shall be granted and the number of shares subject to
each option, the Board may take into account the nature of the services rendered
by such persons, their present and potential contributions to the success of the
Company, and such other factors as the Board in its discretion shall deem
relevant. A person who has been granted an option under the Plan may be granted
an additional option or options under the Plan if the Board shall so determine.
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V. PRICE
The option price for all options granted under the Plan, whether
Incentive Stock Options or Nonqualified Options, shall be determined by the
Board; provided, however, that the option price for Incentive Stock Options
shall not be less than 100% (or, in the case of Incentive Stock Options granted
to employees owning stock processing more than 10% of the total combined voting
power of all classes of the Company's stock, 110%) of the fair market value of
the Stock on the date of granting of such option as determined by the Board in
good faith. Prior to such time as the Company's stock is regularly traded on a
public stock exchange, the Board may in good faith determine the fair market
value of the Stock to be equal to the book value of the Stock, determined by
dividing the total stockholders' equity set forth on the Company's balance
sheet, by the number of shares of Stock outstanding as the date of the balance
sheet or use other accepted means of valuation for non-public companies.
VI. TERM
Subject to the provisions of Sections VII and VIII, each option and all
rights and obligations thereunder shall expire on the date determined by the
Board and specified in the Certificate. The Board shall be under no duty to
provide terms of like duration for options granted under the Plan; provided,
however, that the term of an Incentive Stock Option shall not extend more than
10 years (or, in the case of an Incentive Stock Option granted to an employee
owning stock possessing more than 10% of the total combined voting power of all
classes of the Company's stock, 5 years from the date the option is granted.)
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VII. EXERCISE OF OPTIONS
A. Subject to Sections VIII and IX hereof, the Board shall have full
and complete authority to determine whether an option will be exercisable in
full at any time or from time to time during the term of the option ("Vesting
Dates"), or to provide for the exercise thereof in such installments and at such
times during the term of the option as the Board may determine; provided,
however, that the aggregate fair market value (determined as of the time the
option is granted) of the Stock with respect to which Incentive Stock Options
are exercisable for the first time by the holder during any calendar year shall
not exceed $100,000.
B. An optionee electing to exercise an option shall give written notice
to the Company of such election and of the number of shares subject to such
exercise. The full option price of such shares (whether paid in cash, in shares
of Stock or in any combination thereof) shall be tendered with such notice of
exercise. Payment may be made with shares of the Company's Stock which are
already owned by the optionee and which are properly surrendered to the Company
for transfer. Such shares shall be valued at their fair market value on the
exercise date. No option shall be exercisable with respect to fractional shares.
Until the optionee has been issued a certificate or certificates for the shares
subject to such exercise, the optionee shall possess no rights as a shareholder
with respect to such shares.
VIII. TERMINATION OF EMPLOYMENT
A. If an optionee shall cease to be employed by the Company for any
reason other than (i) gross and willful misconduct, (ii) disability, as defined
in C, below, or (iii) death, and if such optionee shall not have fully exercised
any option, such optionee shall have the right to exercise the option at any
time within 90 days after such termination of employment, to the extent of the
full number of shares such optionee was entitled to purchase under the option on
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the date of termination of employment, subject to the condition that no option
shall be exercisable after the expiration of the term of the option.
B. If an optionee shall cease to be employed by the Company by reason
of the optionee's gross and willful misconduct during the course of the
optionee's employment, including but not limited to dishonesty, substance abuse,
disloyalty, insubordination or failure to adequately perform optionee's duties,
the option shall be terminated as of the effective date of termination of
employment.
C. If an optionee shall cease to be employed by the Company by reason
of the optionee's death or disability, and if such optionee shall not have fully
exercised any option, such optionee (or the personal representative or
administrator of the estate, or the person or persons to whom the option is
transferred by will or the applicable laws of descent and distribution, or the
guardian of the optionee, as applicable) shall have the right to exercise the
option at any time within 180 days after such death or disability, to the extent
of the full number of shares such optionee was entitled to purchase under the
option on the date of death or disability, subject to the condition that no
option shall be exercisable after the expiration of the term of the option. For
purposes hereof, disability shall have the meaning given in Section 22(e)(3) of
the Internal Revenue Code of 1986. The determination of whether an optionee is
disabled within the meaning of Section 22(e)(3) of the Internal Revenue Code of
1986 shall be made by the Board in its sole discretion.
IX. CHANGE IN CONTROL
If a Change in Control, as defined in this Section, occurs while an
optionee is still employed by the Company, then a pro rata number of non-vested
options that, a) are not then exercisable by virtue of restrictions relating to
the period of time that has elapsed since the grant
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of the option and b) would have vested and become exercisable upon the next
Vesting Date described in the Option Certificate, shall become fully vested upon
the occurrence of the Change in Control, notwithstanding anything to the
contrary in the Plan or the Certificate ("accelerated options"). The number of
accelerated options shall be determined based upon the number of days elapsed
since the previous Vesting Date compared to the total days between the previous
and the next Vesting Date. Such options can be exercised in accordance with the
other provisions of the Plan and the Certificate. For purposes of this Plan, a
"Change in Control" shall mean the happening of any of the following:
(i) When any "person", as such term is used in Sections 13(d)
and 14(d) of the Exchange Act (other than the Company, or a Company
employee benefit plan, including any trustee of such plan acting as
trustee) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities
of the Company representing fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities; or
(ii) The occurrence of a transaction requesting shareholder
approval, and involving the sale of all or substantially all of the
assets of the Company or the merger of the Company with or into
another corporation under which the Company is not the surviving
entity.
X. ADJUSTMENT OF SHARES
A. The aggregate number and class of shares on which options may be
granted under this Plan, the number and class of shares covered by each
outstanding option and the option price shall all be proportionately adjusted
for any increase or decrease in the number of issued shares of Stock resulting
from a split-up or consolidation of shares or any like capital adjustment, or
the payment of any stock dividend, or any other increase or decrease in the
number of issued and outstanding shares of Stock without receipt of
consideration by the Company.
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B. If the outstanding shares of the Stock be changed into or exchanged
for a different number or kind of shares of stock or other securities of the
Company or of another corporation, whether through reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger or
consolidation, or otherwise, then there shall be substituted for the shares of
Stock covered by each outstanding option and for the shares available for
issuance pursuant to the Plan, but not yet covered by an option, the number and
kind of shares of stock or other securities which would have been substituted
therefor if such shares had been outstanding on the date fixed for determining
the list of shareholders entitled to receive such changed or substituted stock
or other securities.
C. If there be any change other than as specified above in the number
or kind of securities into which shares of Stock have been changed or for which
they will have been exchanged, then if the Board determines, in its discretion,
that such change equitably requires an adjustment in the number or kinds of
shares covered by the outstanding options or which are available for issuance
pursuant to the Plan, but not yet covered by an option, such adjustment shall be
made by the Board and shall be effective and binding on each outstanding
Certificate and for all purposes of the Plan.
D. In the event of any adjustment in the number of shares covered by an
option, any fractional shares resulting from such adjustment shall be
disregarded and each such option shall cover only the number of full shares
resulting from such adjustment.
E. All such adjustments shall be made by the Board, and its
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. Any adjustments under this Section X
shall be subject to the provisions of the Company's Articles of Incorporation,
as amended, and applicable law.
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XI. NO GUARANTY OF EMPLOYMENT
Nothing in this Plan nor the grant of any option shall be construed as
guaranteeing future employment to any optionee nor as being a contract of
employment. Each employee continues to be an employee of the Company solely at
the will of the Company as that term is broadly defined or subject to the terms
and conditions of any employment agreement between the employee and the Company.
Neither the Plan nor the grant of any option shall act as a limitation on the
right of the Company to terminate the employee for any reason, with or without
cause.
XII. NON-TRANSFERABILITY OF OPTIONS
No option granted under the Plan shall be transferable by the optionee,
in whole or in part, or subject to seizure or sale upon execution, attachment or
other legal process against the optionee. An option shall be exercisable only by
the optionee (or by a personal representative, administrator of the estate,
guardian, or the person entitled thereto by will or the laws of descent and
distribution, as hereinbefore provided). Upon any attempt by an optionee to
transfer, pledge, hypothecate, or otherwise dispose of an option or any right or
privilege conferred thereby, or upon any attempt by an adverse party to seize or
sell the same, contrary to the provisions hereof, the option shall lapse and
immediately become null and void.
XIII. REPURCHASE OF OPTION SHARES
At the time of the grant of options under this Plan, the Board may
require that any shares issued on the exercise of such options be subject to
repurchase in accordance with the terms and conditions of the Stock Repurchase
Agreement attached to this Plan as Exhibit A. In such event, the Company shall
not issue shares upon the exercise of an option unless and until the optionee
executes the Stock Repurchase Agreement.
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XIV. INCOME TAX WITHHOLDING
If the Company shall be required to withhold any amounts by reason of
any federal, state or local tax rules or regulations in respect of the payment
of cash or the issuance of the Stock pursuant to the exercise of an option, the
Company shall be entitled to deduct and withhold such amounts from any cash
payments to be made to the optionee. If cash payments are not available to meet
the withholding requirement, the optionee shall make available to the Company,
promptly when requested by the Company, sufficient funds to meet the
requirements of such withholding, and the Company shall be entitled to take and
authorize such steps as it may deem advisable, including, but not limited to,
delaying the issuance or transfer of the Stock, or withholding out of any funds
or property due or to become due to the holder, in order to have such funds made
available to the Company.
XV. LISTING AND REGISTRATION
A. If at any time the Board determines, in its discretion, that the
listing, registration, or qualification of the shares subject to an option upon
any securities exchange or under any federal or state law or the consent or
approval by any governmental regulatory body is necessary or desirable as a
condition of or in connection with the issuance or purchase of shares hereunder,
the option may not be exercised, in whole or in part, unless such listing,
registration, qualification, consent, or approval will have been effected or
obtained, and the same shall be free of any conditions not acceptable to the
Board.
B. Until and unless the shares purchased pursuant to the exercise of an
option be the subject of an effective registration statement filed with the
Securities and Exchange Commission, the optionee shall receive and hold the
shares for investment and shall not distribute or otherwise dispose of the same
without the Company's receipt of an opinion from its counsel to the effect that
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such distribution or other disposal will not be violative of any applicable law,
regulation, or rule. Each Certificate shall contain a commitment by the optionee
to comply with the foregoing limitation and the certificate(s) evidencing the
purchased shares shall bear an appropriate legend in conformity herewith.
XVI. INDEMNIFICATION OF BOARD
In addition to such other rights of indemnification as they may have as
directors of the Company, each and all directors and members of the Committee
shall be indemnified by the Company against all costs and expenses reasonably
incurred by them in connection with any action, suit, or proceeding to which
they or any of them may be party by reason of any action taken, or failure to
act, under or in connection with the Plan or any option granted thereunder, and
against all amounts paid by them or any of them in satisfaction of a judgment in
any such action, suit, or proceeding, except a judgment based upon a finding of
bad faith; provided that upon institution of any such action, suit, or
proceeding, the affected party shall, in writing, give the Company an
opportunity, at its own expense, to handle and defend the same before such
affected party undertakes to handle or defend on the party's own behalf.
XVII. APPLICATION OF FUNDS
The proceeds received by the Company from the sale of the Stock
pursuant to options under the Plan shall
be used for general corporate purposes.
XVIII. AMENDMENT OR DISCONTINUANCE OF THE PLAN
The Board may amend or discontinue the Plan at any time. Subject to the
provisions of Section X, however, no amendment of the Plan shall, without
shareholder approval, increase the maximum number of shares under the Plan as
provided in Section II, or decrease the minimum option price provided in Section
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V. Except as provided in Section X, the Board shall not impair any option
theretofore granted under the Plan, whether by reason of Plan termination or
otherwise, without the consent of the holder of the option.
XIX. TIME OF GRANTING
Nothing contained in the Plan or in any resolution adopted or to be
adopted by the Board or by the shareholders of the Company, and no action taken
by the Board (other than the execution and delivery of a Certificate) shall
constitute the granting of an option hereunder. The granting of an option
pursuant to the Plan shall take place only when a Certificate shall have been
duly executed and delivered by or on behalf of the Company to an eligible
optionee to whom such option is granted.
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XX. EFFECTIVE DATE OF PLAN
This Plan is adopted by the Board effective December 15th, 1999. Unless
approved by the shareholders of the Company within one year of the date hereof,
the provisions of the Plan permitting the grant of Incentive Stock Options shall
lapse and all Incentive Stock Options that may have been granted before that
date shall be deemed to be canceled. No Incentive Stock Option shall be
exercisable until shareholder approval is obtained. Unless the Plan shall be
discontinued as provided in Section XVIII, the Plan shall continue in full force
and effect until all shares reserved hereunder will have been purchased by
optionees; provided, however, no Incentive Stock Options shall be granted under
the Plan after July 31, 2009.
VECTOR INTERNET SERVICES, INC.
By____________________________________
Its:
