EXHIBIT 4.4
-----------
E-CRUITER.COM INC.
EMPLOYEE AND DIRECTOR STOCK OPTION PLAN
(AS AMENDED AS OF OCTOBER 5, 2000)
1. PURPOSE OF THE PLAN
The purpose of the E-Cruiter.com Inc Employee and Director Stock Option
Plan is to develop the interest of and provide an incentive to eligible
employees and directors of E-Cruiter.com Inc (the "Corporation") in the
Corporation's growth and development by granting to eligible employees
and directors from time to time options to purchase Common Shares of
the Corporation, thereby advancing the interests of the Corporation and
its shareholders.
2. DEFINITIONS
In this Plan:
a) "Audit Committee" means the Audit Committee of the
Corporation's Board of Directors, as constituted from time to
time, and which shall at all times be composed of not less
than 2 members who shall be (i) "Non-Employee Directors"
within the meaning of Rule 16(b)-3(b)(3) (or any successor
rule) promulgated under the United States Securities Act of
1934, as amended and (ii) "Outside Directors" within the
meaning of Treasury Regulation section 1.162-27(e)(3) under
Section 162(m) of the Code;
b) "Board of Directors" means the Board of Directors of the
Corporation as constituted from time to time;
c) "Code" means the United States Internal Revenue Code of 1986,
as amended;
d) "Common Shares" means the common shares of the Corporation
issued and outstanding from time to time;
e) "Corporations Act" means the Canada Business Corporations Act,
as amended, and the regulations promulgated thereunder;
f) "Date of Grant" means, for any Option, the date specified by
the Audit Committee, or its designate, at the time it grants
the Option; provided that (a) such date shall not be prior to
the date the Audit Committee effects the Plan with approval of
a majority of the Corporation's shareholders, and (b) the
Option is granted within five (5) years from the date the Plan
is approved by the shareholders;
g) "Disability" means permanent and total disability as
determined under procedures established by the Audit Committee
for the purposes of the Plan;
h) "Exercise Date" means the date the Corporation receives from a
Participant a completed notice of exercise form with full
payment for the Option Shares being purchased;
<PAGE>
i) "Exercise Period" means, with respect to any Option Shares,
the period during which a Participant may purchase such Option
Shares ;
j) "Exercise Price" shall mean the price per Common Share as
determined herein from time to time;
k) "Incentive Stock Option" means an Option granted under this
Plan to a United States resident, designated as such by the
Audit Committee, and constitutes an "Incentive Stock Option"
within the meaning of section 422 of the Code.
l) "Non-Qualified Stock Option" means an option granted under
this Plan to a United States resident, designated as such by
the Audit Committee and does not constitute an Incentive Stock
Option within the meaning of section 422 of the Code;
m) "Option" means a non-transferable option to purchase Common
Shares granted pursuant to the Plan;
n) "Optionee" means a Participant who has been granted one or
more Options;
o) "Option Shares" means Common Shares which are subject to
purchase upon the exercise of outstanding Options;
p) "Participant" means a current or former full-time permanent
employee or director of the Corporation;
q) "Plan" means the E-Cruiter.com Inc Employee and Director Stock
Option Plan as set out herein and approved by majority of
shareholders of the Corporation;
r) "Plan Shares" means the 1,150,000 Common Shares reserved from
time to time for issuance pursuant to the exercise of Options.
The Plan shares may be granted as Incentive Stock Options,
Non-Qualified Options, or have no designation;
s) "Retirement" means retirement from active employment with the
Corporation at or after age 65, or with the consent for
purposes of the Plan of such officer of the Corporation as may
be designated by the Audit Committee, at or after such earlier
age and upon the completion of such years of service as the
Committee may specify;
t) "Third Party Offer" means the happening of any of the
following:
a) When a third party, acting at arm's length, as
defined in the Income Tax Act (Canada), as amended,
makes an offer to acquire the "beneficial ownership",
as defined in the Corporations Act, directly or
indirectly, of securities of the Corporation
representing 50.1 percent or more of the combined
voting power of the Corporation's then outstanding
securities; or
b) When a third party, acting at arm's length, as
defined in the Income Tax Act (Canada), as amended,
makes an offer to acquire the Corporation through the
purchase of all of its assets, by amalgamation or
otherwise.
2
<PAGE>
3. OPERATION OF THE PLAN
The Plan has been designed for both Canadian and United States
employees. For United States employees, the Option shall be designated,
at the Date of Grant, as an Incentive Stock Option or a Non-Qualified
Stock Option. For Canadian employees, no such designation shall be
made.
4. CURRENCY
All dollar amounts referred to in this Plan are in Canadian or United
States funds as specified.
5. EXTENDED MEANINGS
In this Plan, words importing the singular number include the plural
and vice versa and words importing the masculine gender include the
feminine and neuter genders.
6. HEADINGS
Article headings are not to be considered part of the Plan and are
included solely for convenience of reference and are not intended to be
full or accurate descriptions of the contents thereof.
7. ELIGIBILITY
All Participants shall be eligible to participate in the Plan.
Eligibility to participate shall not confer upon any Participant any
right to be granted Options pursuant to the Plan. The extent to which
any Participant shall be entitled to Options granted pursuant to the
Plan shall be determined in the sole and absolute discretion of the
Audit Committee.
8. NUMBER OF OPTION SHARES AVAILABLE FOR GRANTS
No Option may be granted by the Audit Committee which would have the
effect of causing the total number of all Option Shares subject to
purchase under outstanding Options to exceed the number of Plan Shares.
Upon the expiration, surrender, cancellation or termination, in whole
or in part, of an unexercised Option, the Option Shares subject to such
Option shall be available for other Options to be granted from time to
time.
9. GRANTING OF OPTIONS
The Audit Committee may from time to time grant Options to Participants
to purchase a specified number of Option Shares at a specified exercise
price per share. The number of Option Shares to be granted, the
exercise period, the exercise price, the Date of Grant, and such other
terms and conditions of the Option shall be as determined by the Audit
Committee.
Options granted to a 10% shareholder which are designated as Incentive
Stock Options shall have an exercise price equal to at least 110% of
the fair market value of the Common Shares on the date the Options are
granted.
3
<PAGE>
10. EXERCISE PRICE
The Exercise Price per Common Share purchasable under an Option shall
be determined by the Audit Committee but in any event shall not be
lower than the fair market value of a Common Share on the Date of
Grant. Fair market value shall be determined in good faith using common
practices for such determination without regard to any restriction on
the Common Shares.
11. EXERCISE PERIOD
Unless otherwise specified by the Audit Committee at the time of
granting an Option, and except as otherwise provided in the Plan, each
Option shall be exercisable in the following installments:
Percentage of Total Number of Exercise Period
Option Shares Which May be Purchased
------------------------------------
33 1/3%........... After the first anniversary of the Date of Grant
and up to immediately before the fifth
anniversary of the Date of Grant
33 1/3%........... After the second anniversary of theDate of Grant
and up to immediately before the fifth
anniversary of the Date of Grant
33 1/3%........... After the third anniversary of the Date of Grant
and up to immediately before the fifth
anniversary of the Date of Grant
Once an installment becomes exercisable it shall remain exercisable
until expiration or termination of the Option, unless otherwise
specified by the Audit Committee. Each Option or installment may be
exercised at any time or from time to time, in whole or in part, for up
to the total number of Common Shares with respect to which it is then
exercisable. The Audit Committee shall have the right to accelerate the
date which any installment of any Option is exercisable.
12. TERM OF OPTIONS
Subject to accelerated termination as provided for in the Plan, each
Option shall, unless otherwise specified by the Audit Committee, expire
on the fifth anniversary of the Date of Grant.
4
<PAGE>
13. EXERCISE OF OPTIONS
An Optionee may at any time within the Exercise Period elect to
purchase all or a portion of the Option Shares which such Optionee is
then entitled to purchase by delivering to the Corporation a completed
Notice of Exercise, specifying the Date of Grant of the Option being
exercised, the exercise price of the Option and the number of Option
Shares the Optionee desires to purchase. The Notice of Exercise shall
be accompanied by payment in full of the purchase price for such Option
Shares. Payment can be made by cash, certified cheque, bank draft,
money order or the equivalent payable to the order of the Corporation
or by such other means as may be specified by the Audit Committee.
14. WITHHOLDING OF TAX
If the Corporation determines that under the requirements of applicable
taxation laws it is obliged to withhold for remittance to a taxing
authority any amount upon exercise of an Option, the Corporation may,
prior to and as a condition of issuing the Option Shares, require the
Optionee exercising the Option to pay to the Corporation, in addition
to and in the same manner as the purchase price for the Option Shares,
such amount as the Corporation is obliged to remit to such taxing
authority in respect of the exercise of the Option. Any such additional
payment shall, in any event, be due no later than the date as of which
any amount with respect to the Option exercised first becomes
includable in the gross income of the Optionee for tax purposes.
15. LIMITATION ON DISPOSITION OF INCENTIVE STOCK OPTION SHARES
It is understood and intended that options granted under this plan may
qualify as an "incentive stock option" as defined in Section 422 of the
Code. Accordingly, the employee understands that in order to obtain the
benefits of an incentive stock option under section 421 of the Code, no
sale or disposition may be made of any shares acquired upon exercise of
the option within the one year period beginning on the day after the
day of the transfer of such shares to him, nor within the two year
period beginning on the day after the date an employee is granted
Options pursuant to this agreement. If the employee intends to dispose
or does dispose (whether by sale, exchange, gift, transfer or
otherwise) of any such shares within said periods, he or she will
notify the Company in writing within ten days after such disposition.
16. SHARE CERTIFICATES
Upon exercise of an Option and payment in full of the purchase price
and any applicable tax withholdings, the Corporation shall cause to be
issued and delivered to the Optionee within a reasonable period of time
a certificate or certificates in the name of or as directed by the
Optionee representing the number of Common Shares the Optionee has
purchased.
17. TERMINATION OF EMPLOYMENT
Unless otherwise determined by the Audit Committee, if an Optionee's
employment or services terminate for any reason other than death,
Disability or Retirement, any Option held by such Optionee shall
5
<PAGE>
thereupon terminate, except that each such Option, to the extent then
exercisable, may be exercised for the lessor of 60 days or the balance
of such Option's term.
Options shall not be affected by any change of employment within or
among the Corporation, its Subsidiaries or an Other Related Company, or
unless otherwise determined by the Audit Committee, so long as the
Participant continues to be an employee of the Corporation, a
Subsidiary or an Other Related Company.
18. TERMINATION BY REASON OF DEATH, DISABILITY OR RETIREMENT
If an Optionee's employment or services terminate by reason of death,
Disability or Retirement, any Option held by such Optionee may
thereafter be exercised, to the extent then exercisable or to such
other extent as the Audit Committee may determine, for a period of 180
days (or such other period as the Audit Committee may specify) from the
date of such death, Disability or Retirement or until the expiration of
the stated term of such Option, whichever period is the shorter.
19. TRANSFER
Options granted under the Plan are not assignable or transferable by
the Optionee or subject to any other alienation, sale, pledge or
encumbrance by such Optionee except by will or by the laws of descent
and distribution. During the Optionee's lifetime Options shall be
exercisable only by the Optionee. The obligations of each Optionee
shall be binding on his/her heirs, executors and administrators.
20. NO RIGHT TO EMPLOYMENT
The granting of an Option to a Participant under the Plan does not
confer upon the Participant any right to expectation of employment by,
or to continue in the employment of, the Corporation, or to be retained
as a consultant by the Corporation.
21. RIGHTS AS SHAREHOLDERS
The Optionee shall not have any rights as a shareholder with respect to
Option Shares until full payment has been made to the Corporation and a
share certificate or share certificates have been duly issued.
22. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Audit Committee which shall have
the authority to:
a) determine the individuals and entities (from among the class
of individuals and entities eligible to receive Options) to
whom Options may be granted;
b) determine the number of Option Shares to be subject to each
Option;
6
<PAGE>
c) determine the terms and conditions of any grant of Option,
including but not limited to:
- the time or times at which Options may be granted;
- the exercise price at which Option Shares subject to
each Option may be purchased;
- the time or times when each Option shall be come
exercisable and the duration of the Exercise Period
but, in any case shall not exceed five years from the
Date of Grant;
- whether restrictions or limitations are to be imposed
on Option Shares, and the nature of such restrictions
or limitations, if any; and
- any acceleration of exercisability or waiver of
termination regarding any Option, based on such
factors as the Audit Committee may determine; and
d) interpret the Plan and prescribe and rescind rules and
regulations relating to the Plan.
The interpretation and construction by the Audit Committee of any
provisions of the Plan or of any Option granted under it shall be final
and binding on all persons. Nothing in the Plan shall be interpreted,
amended or altered in such a manner as to disqualify the Plan under
section 422 of the Code. No members of the Audit Committee shall be
liable for any action or determination made in good faith with respect
to the Plan or any Option granted under it. The day-to-day
administration of the Plan may be delegated to such officers and
employees of the Corporation or any Subsidiary as the Audit Committee
shall determine.
23. RECAPITALIZATION AND REORGANIZATION
The number of Option Shares subject to each outstanding Option and the
purchase price for such Option Shares shall be appropriately adjusted
for any subdivision, redivision, consolidation or any similar change
affecting the Common Shares.
24. CONDITIONS
The Plan and each Option shall be subject to the requirement that, if
at any time the Audit Committee determines that the listing,
registration or qualification of the Common Shares subject to such
Option upon any securities exchange or under any provincial, state or
federal law, or the consent or approval of any governmental body,
securities exchange, or the holders of the Common Shares generally, is
necessary or desirable, as a condition of, or in connection with, the
granting of such Option or the issue or purchase of Common Shares
thereunder, no such Option may be granted or exercised in whole or in
part unless such listing, registration, qualification, consent or
approval shall have been affected or obtained free of any conditions
not acceptable to the Audit Committee.
7
<PAGE>
25. NOTICES
All written notices to be given by the Optionee to the Corporation
shall be delivered personally or by registered mail, postage prepaid,
addressed as follows:
E-CRUITER.COM INC
360 ALBERT STREET, SUITE 1510
OTTAWA, ON K1R 7X7
ATTENTION: SECRETARY - TREASURER
Any notice given by the Optionee pursuant to the terms of an Option
shall not be effective until actually received by the Corporation at
the above address.
26. CORPORATE ACTION
Nothing contained in the Plan or in an Option shall be construed so as
to prevent the Corporation from taking corporate action which is deemed
by the Corporation to be appropriate or in its best interest, whether
or not such action would have an adverse effect on the Plan or any
Option.
27. AMENDMENTS
The Audit Committee, with approval of a majority of shareholders, shall
have the right, in its sole discretion, to alter, amend, modify or
terminate the Plan or any Option granted under the Plan at any time
without notice. The Plan shall not, however, be altered, amended or
modified more often than once every six months other than to comport
with changes to applicable tax and employee benefit laws and the
respective rules and regulations thereunder. No such amendment,
however, may, without the consent of the Optionee, alter or impair any
rights or increase any obligations with respect to an Option previously
granted under the Plan.
28. THIRD PARTY OFFER
In the event of a Third Party Offer, which is accepted by a majority of
the shareholders of the Corporation, unless otherwise determined by the
Board of Directors prior to the occurrence of such Third Party Offer,
any options, outstanding as of the date of the Third Party Offer and
then not exercisable fix; shall become fully exercisable at the
Exercise Price, provided that Optionees are not required to exercise
the options if the Third Party Offer per Common Share is less than the
Exercise Price.
8
<PAGE>
29. TERMINATION OF PLAN
Except as otherwise provided herein, Options may be granted only within
the five year period from the date the Plan has been approved by a
majority of common shareholders. The termination of the Plan shall have
no effect on outstanding Options, which shall continue in effects in
accordance with their terms and conditions and the terms and conditions
of the Plan, provided that no Option may be exercised after the fifth
anniversary of its Date of Grant.
30. FURTHER ASSURANCES
Each Participant shall, when requested to do so by the Corporation,
sign and deliver all such documents relating to the granting or
exercise of Options deemed necessary or desirable by the Corporation.
31. GOVERNING LAW
The Plan is established under the laws of the Province of Ontario, and
the rights of all parties and the construction and effect of each
provision of the Plan shall be according to the laws of the Province of
Ontario.
DATED this 5th day of October 2000.
E-CRUITER.COM INC
President /s/John Gerard Stanton
--------------------------
J. Gerard Stanton
Secretary /s/Jeff Potts
-----------------------------------
J. Potts
9
