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Exhibit 99.4
ARROWPOINT COMMUNICATIONS, INC.
2000 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose.
The purpose of this 2000 Non-Employee Director Stock Option Plan (the
"Plan") of ArrowPoint Communications, Inc. (the "Company") is to encourage
ownership in the Company by non-employee directors of the Company whose services
are considered essential to the Company's future progress and to provide them
with a further incentive to remain as directors of the Company.
2. Administration.
The Board of Directors shall supervise and administer the Plan. All
questions concerning interpretation of the Plan or any options granted under it
shall be resolved by the Board of Directors and such resolution shall be final
and binding upon all persons having an interest in the Plan. The Board of
Directors may, to the full extent permitted by or consistent with applicable
laws or regulations, delegate any or all of its powers under the Plan to a
committee appointed by the Board of Directors, and if a committee is so
appointed, all references to the Board of Directors in the Plan shall mean and
relate to such committee.
3. Participation in the Plan.
Directors of the Company who are not employees of the Company or any
subsidiary of the Company ("non-employee directors") shall be eligible to
receive options under the Plan.
4. Stock Subject to the Plan.
(a) The maximum number of shares of the Company's Common Stock, par
value $.001 per share ("Common Stock"), which may be issued under the Plan shall
be 300,000 shares, subject to adjustment as provided in Section 7.
(b) If any outstanding option under the Plan for any reason expires or
is terminated without having been exercised in full, the shares covered by the
unexercised portion of such option shall again become available for issuance
pursuant to the Plan.
(c) All options granted under the Plan shall be non-statutory options
not entitled to special tax treatment under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code").
(d) Shares issued under the Plan may consist in whole or in part of
authorized but unissued shares or treasury shares.
5. Terms, Conditions and Form of Options.
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Each option granted under the Plan shall be evidenced by a written
agreement in such form as the Company shall from time to time approve, which
agreements shall comply with and be subject to the following terms and
conditions:
(a) Option Grant Dates. Options shall automatically be granted to the
Directors as follows:
(i) each person serving as a non-employee director on the date
(the "IPO Date") of the final prospectus relating to the Company's initial
public offering of Common Stock pursuant to an effective registration statement
under the Securities Act of 1933, as amended, shall be granted an option to
purchase 20,000 shares of Common Stock on the IPO Date;
(ii) each person who first becomes a non-employee director
following the IPO Date shall be granted an option to purchase 20,000 shares of
Common Stock on the date of his or her election to the Board of Directors; and
(iii) each non-employee director shall be granted an option to
purchase 10,000 shares of Common Stock on January 31 of each year, beginning
January 31, 2001, provided he or she attended at least 75% of the meetings of
the Board of Directors or any committees on which he or she served in the
preceding year.
Each date of grant of an option pursuant to this Section 5(a) is
hereinafter referred to as an "Option Grant Date."
(b) Option Exercise Price. The option exercise price per share for each
option granted under the Plan shall equal (i) the closing price on any national
securities exchange on which the Common Stock is listed, (ii) the closing price
of the Common Stock on the Nasdaq National Market or (iii) the average of the
closing bid and asked prices in the over-the-counter market, whichever is
applicable, as published in The Wall Street Journal, on the Option Grant Date.
If no sales of Common Stock were made on the Option Grant Date, the price of the
Common Stock for purposes of clauses (i) and (ii) above shall be the reported
price for the next preceding day on which sales were made.
(c) Transferability of Options. Except as the Board may otherwise
determine or provide in an option granted under the Plan, any option granted
under the Plan to an optionee shall not be transferable by the optionee other
than by will or the laws of descent and distribution, and shall be exercisable
during the optionee's lifetime only by the optionee or the optionee's guardian
or legal representative. References to an optionee, to the extent relevant in
the context, shall include references to authorized transferees.
(d) Vesting Period.
(i) General. Each option granted under the Plan pursuant to
Section 5(a) above shall become exercisable in full on the first anniversary of
the Option Grant Date; provided that the optionee is serving as a director of
the Company on such anniversary.
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(ii) Acceleration Upon a Change In Control. Notwithstanding the
foregoing, each outstanding option granted under the Plan shall immediately
become exercisable for 50% of the shares covered thereby upon the occurrence of
Change in Control Event (as defined in Section 8) with respect to the Company.
(iii) Right to Receive Restricted Stock. Notwithstanding the
provisions of Section 5(d)(i) above, the Board shall have the authority to grant
options (including options granted pursuant to Section 5(a) above) which are
immediately exercisable subject to the Company's right to repurchase any
unvested shares of stock acquired by the optionee on exercise of an option in
the event such optionee's service as a director terminates for any reason.
(e) Termination. Each option shall terminate, and may no longer be
exercised, on the earlier of (i) the date ten years after the Option Grant Date
of such option or (ii) the first anniversary of the date on which the optionee
ceases to serve as a director of the Company.
(f) Exercise Procedure. An option may be exercised only by written
notice to the Company at its principal office accompanied by (i) payment in cash
or by certified or bank check of the full consideration for the shares as to
which they are exercised, (ii) delivery of outstanding shares of Common Stock
(which have been outstanding for at least six months) having a fair market value
on the last business day preceding the date of exercise equal to the option
exercise price, or (iii) an irrevocable undertaking by a creditworthy broker to
deliver promptly to the Company sufficient funds to pay the exercise price or
delivery of irrevocable instructions to a creditworthy broker to deliver
promptly to the Company cash or a check sufficient to pay the exercise price.
(g) Exercise by Representative Following Death of Director. An optionee,
by written notice to the Company, may designate one or more persons (and from
time to time change such designation), including his or her legal
representative, who, by reason of the optionee's death, shall acquire the right
to exercise all or a portion of the option. If the person or persons so
designated wish to exercise any portion of the option, they must do so within
the term of the option as provided herein. Any exercise by a representative
shall be subject to the provisions of the Plan.
6. Limitation of Rights.
(a) No Right to Continue as a Director. Neither the Plan, nor the
granting of an option nor any other action taken pursuant to the Plan, shall
constitute or be evidence of any agreement or understanding, express or implied,
that the Company will retain the optionee as a director for any period of time.
(b) No Stockholders' Rights for Options. An optionee shall have no
rights as a stockholder with respect to the shares covered by his or her option
until the date of the issuance to him or her of a stock certificate therefor,
and no adjustment will be made for dividends or other rights (except as provided
in Section 7) for which the record date is prior to the date such certificate is
issued. Notwithstanding the foregoing, in the event the Company effects a split
of
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the Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to stock options are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such
dividend), then an optionee who exercises an option between the record date and
the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such option exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for
such stock dividend.
(c) Compliance with Securities Laws. Each option shall be subject to the
requirement that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the shares subject to such option
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental or regulatory body, or the disclosure of
non-public information or the satisfaction of any other condition is necessary
as a condition of, or in connection with, the issuance or purchase of shares
thereunder, such option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, or satisfaction of
such condition shall have been effected or obtained on conditions acceptable to
the Board of Directors. Nothing herein shall be deemed to require the Company to
apply for or to obtain such listing, registration or qualification, or to
satisfy such condition.
7. Adjustment Provisions for Mergers, Recapitalizations and Related
Transactions.
If, through or as a result of any merger, consolidation, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split, or other similar transaction, (i) the outstanding shares of Common Stock
are exchanged for a different number or kind of securities of the Company or of
another entity, or (ii) additional shares or new or different shares or other
securities of the Company or of another entity are distributed with respect to
such shares of Common Stock, the Board of Directors shall make an appropriate
and proportionate adjustment in (x) the maximum number and kind of shares
reserved for issuance under the Plan, (y) the number and kind of shares or other
securities subject to then outstanding options under the Plan, and (z) the price
for each share subject to any then outstanding options under the Plan (without
changing the aggregate purchase price for such options), to the end that each
option shall be exercisable, for the same aggregate exercise price, for such
securities as such optionholder would have held immediately following such event
if he had exercised such option immediately prior to such event. No fractional
shares will be issued under the Plan on account of any such adjustments.
8. Definition of "Change in Control Event". A "Change in Control Event"
shall mean:
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(a) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership of any capital stock of the
Company after the date of adoption of this Plan by the Board of
Directors if, after such acquisition, such Person beneficially
owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) 30% or more of either (x) the then-outstanding
shares of common stock of the Company (the "Outstanding Company
Common Stock") or (y) the combined voting power of the
then-outstanding securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company
Voting Securities"); provided, however, that for purposes of
this subsection (i), the following acquisitions shall not
constitute a Change in Control Event: (A) any acquisition
directly from the Company or an underwriter or agent of the
Company (excluding an acquisition pursuant to the exercise,
conversion or exchange of any security exercisable for,
convertible into or exchangeable for common stock or voting
securities of the Company, unless the Person exercising,
converting or exchanging such security acquired such security
directly from the Company or an underwriter or agent of the
Company), (B) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (C) any acquisition by
any corporation pursuant to a Business Combination (as defined
below) which complies with clauses (x) and (y) of subsection
(iii) of this definition; or
(b) such time as the Continuing Directors (as defined below) do not
constitute a majority of the Board (or, if applicable, the Board
of Directors of a successor corporation to the Company), where
the term "Continuing Director" means at any date a member of the
Board (x) who was a member of the Board on the date of the
initial adoption of this Plan by the Board or (y) who was
nominated or elected subsequent to such date by at least a
majority of the directors who were Continuing Directors at the
time of such nomination or election or whose election to the
Board was recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of such
nomination or election; provided, however, that there shall be
excluded from this clause (y) any individual whose initial
assumption of office occurred as a result of an actual or
threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation
of proxies or consents, by or on behalf of a person other than
the Board; or
(c) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the
Company or a sale or other disposition of all or substantially
all of the assets of the Company (a "Business Combination"),
unless, immediately following such Business Combination, each of
the following two conditions is satisfied: (x) all or
substantially all of the individuals and entities who were the
beneficial owners of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
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Business Combination beneficially own, directly or indirectly,
more than 50% of the then-outstanding shares of common stock and
the combined voting power of the then-outstanding securities
entitled to vote generally in the election of directors,
respectively, of the resulting or acquiring corporation in such
Business Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns the
Company or substantially all of the Company's assets either
directly or through one or more subsidiaries) (such resulting or
acquiring corporation is referred to herein as the "Acquiring
Corporation") in substantially the same proportions as their
ownership of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, respectively, immediately
prior to such Business Combination and (y) no Person (excluding
the Acquiring Corporation or any employee benefit plan (or
related trust) maintained or sponsored by the Company or by the
Acquiring Corporation) beneficially owns, directly or
indirectly, 30% or more of the then-outstanding shares of common
stock of the Acquiring Corporation, or of the combined voting
power of the then-outstanding securities of such corporation
entitled to vote generally in the election of directors (except
to the extent that such ownership existed prior to the Business
Combination).
9. Termination and Amendment of the Plan.
The Board of Directors may suspend or terminate the Plan or amend it in
any respect whatsoever.
10. Notice.
Any written notice to the Company required by any of the provisions of
the Plan shall be addressed to the Treasurer of the Company and shall become
effective when it is received.
11. Governing Law.
The Plan and all determinations made and actions taken pursuant hereto
shall be governed by the internal laws of the State of Delaware (without regard
to any applicable conflicts of laws or principles).
12. Effective Date.
The Plan shall become effective on the date hereof.
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