EXHIBIT 99.6
WHITE PINE SOFTWME, INC,
STOCK OPTION AGREEMENT
UNDER ITS
STOCK OPTION PLAN (1994)
THIS STOCK OPTION AGREEMENT is issued to the Optionee hereinbelow set
forth pursuant to the Stock Option Plan (1994) (the "Plan") of White Pine
Software, Inc., a Delaware corporation (the "Company").
1. Optionees; Basic Terms. The Optionee is hereby granted an
option to purchase the number of fully paid and non-assessable shares of the
Common Stock of the Company at the option price hereinbelow set forth, subject
to the following additional terms and conditions:
A. Definitions.
(i) "Code" shall mean the Internal. Revenue Code of 1986,
and as amended from time to time.
(ii) "Incentive option" shall mean. an option described
in Section 422 of the Code. To qualify for favorable tax treatment Provided by
an incentive option, the shares purchased upon exercise must be held for a
period of (2) years from the date of the option grant and for a period of one
(1) year after the shares are transferred to Optionee.
(iii) "Non-Qualified Option" shall mean an option other
than an Incentive Option, the exercise of which generally results in an
immediate taxable event.
(iv) "Optionee is Xxxxxxx Xxxxxx.
(v) "Purchase Price" per share is $5.00
(vi) Unless otherwise indicated, all capitalized terms
set forth in this Agreement shall have the meaning provided to them under the
Plan, a copy of which Optionee acknowledges having received.
X. Xxxxx of Option.
(i) The Company hereby grants to the Optionee an option
(the "Option") to purchase 3,000 shares of the Common Stock of the Company (the
"Optioned stock"), upon the terms and conditions set forth below. The date of
grant of the option is May 1, 1996 (the "Grant Date").
(ii) This Option is intended to be a(n):
X Incentive Option (to be received only by
---
employees of the Company).
___ Non-Qualified Option.
(iii) The Optionee is a(n) (if applicable, check more than
one):
X Employee Officer Other Person
----- ------- ------- providing services
Director Consultant
----- -------
C. Duration of Option.
(i) incentive option: If this Option is an Incentive
Option, as set forth above, it shall expire one day short of ten (10) years
from the Grant Date, provided, however, for any Optionee who owns more than ten
percent (10%) of the total combined voting power or value of all classes of
stock of the Company, the duration of this option shall be five (5) years.
(ii) Non-Qualified Option: It this Option is a
Non-Qualified Option, as set forth above, it shall expire years after the Grant
Date.
D. Purchase Price.
The Purchase Price for the shares subject to the option is either: (a)
determined by the Board of Directors of the Company and may be less than the
Fair Market Value on the grant date if the option is a Non-Qualified Option, (b)
equal to at least one-hundred percent (100%) of Fair Market Value if the Option
is an incentive option, or (c) equal to at least one-hundred ten percent (110%)
of Fair Market Value if the Option is an Incentive option and Optionee holds
more than ten percent (10%) of the total combined voting power or value of all
classes of stock of the Company or of its Parent or any subsidiary.
2. Exercisability. Subject to Section 6 regarding termination of
Optionee's employment, consulting or other relationship with the Company and
Section 10.B.ragarding Incentive options, this Option shall become exercisable,
in one to the extent or more installments (to the nearest whole number) to the
extent of 1/36th the total number of Optioned Stock, on a monthly basis
commencing on May 1, 1996 and continuing on the corresponding day of each of the
next succeeding thirty-five (35) -months. The number of shares of Optioned Stock
which become exercisable each month, to the extent not previously exercised,
shall accumulate until exercised in accordance with and subject to the terms and
conditions of this Agreement.
3, Method of Exercise and Payment. This Option may be exercised
from time to time, in whole or in part, to the extent exercisable, only by
delivery to an officer of the Company of the original of this option with an
appropriate Notice of Exercise duly signed by the holder, together with the
full purchase price of the shares purchased pursuant to the exercise of the
option; provided, however, that this option may not be exercised if such
exercise would violate any law or governmental order or regulation. Payment for
the shares purchased pursuant to any exercise shall be made in full at the time
of such. exercise, in any of the following methods, as determined by the Board
of Directors and as may be elected by the Optionee:
(i) may X or may not __ pay in cash or by check payable to
the order of the Company;
(ii) may _ or may not X pay in Common Stock of the Company
already owned by the Optionee for a period of six (6) months prior to such
exercise, valued as of the date of exercise of the Option at Fair Market Value;
or
(iii) may ___ or may not X pay by a promissory note payable to
the order of the Company; if a promissory note is tendered, such note shall bear
interest at an interest rate determined by, and shall be subject to such terms
and conditions as are prescribed by, the Board as. set forth in the form of
promissory note then utilized under the Plan.
Optionee agrees to have withheld from any remuneration payable to him
by the Company and/or to pay to the Company, at the time of exercise of the
Option, an amount which is required to be withheld or paid pursuant to any
Federal, State or local tax or revenue laws or regulations, as may be determined
by the Company. The Optionee may or may not X satisfy such tax withholding by
instructing the company to withhold such number of option shares exercised
which, when valued at Fair Market Value on the date of Exercise, equal the total
tax obligations required to be withheld.
4. Non-Transferability. This option shall not be transferred,
sold, pledged, assigned, hypothecated, or disposed of in any manner by Optionee
other than by will or the laws of descent and distribution to the extent
hereinafter set forth; provided, however, that a transfer hereof may be made
pursuant to a qualified domestic relations order (as defined in the Code or as
permitted by Title I of the Employee Retirement income Security Act (IIERISA")
or the rules thereunder) and, provided further, that Optionee may designate a
beneficiary (which may be an individual or trustee) who may exercise the Option
after Optionee's death and enjoy the economic benefits thereof, subject to the
consent of Optionee's spouse where required by law. This Option may be
exercised during the holder's lifetime only by the holder hereof or, upon the
holder's legal incapacity to act on his/her own behalf, by the holder's
conservator or other lawful representative. The Option shall be null and void
and without effect upon any attempted assignment or transfer, except as
hereinabove provided, including without limitation, any purported assignment,
whether voluntary of by operation of law, pledge, hypothecation or other
disposition contrary to the provisions hereof, or levy of execution,
attachment, trustee! process or similar process, whether legal or equitable,
upon the option.
5. Termination. To the extent that this Option shall not have
been exercised in full prior to its termination or expiration date, whichever
shall be sooner, it shall terminate and become void and of no effect.
6. Cessation of Continuous Status -- Termination, Retirement,
Death or Disability. If the holder Shall voluntarily or involuntarily cease
his/her Continuous Status (as such term is defined in the Plan) (hereinafter
referred to as a "Termination"), the option of the holder shall terminate
forthwith, except that the holder shall have thirty (30) days (or such longer
period as the Board may approve) following the Termination to exercise this
option or any shorter portion
thereof which the holder could have exercised on the date of Termination;
provided, however, that if the Termination is due to (i) retirement by the
holder on or after attaining the age of sixty-five (65) years, (ii) the
disability of the holder or (iii) the death of the holder, the holder or the
representative of the estate of the holder shall have the privilege of
exercising the -entire unexercised vested portion of this option, provided that
such exercise be accomplished (a) prior to the expiration of this Option and
(b) either within thirty (30) days of the holder's retirement, within twelve
(12) months of the holder's disability, within twelve (12) months after the
date of death of the of the holder, as the case may be. Notwithstanding any of
the foregoing, if the Termination is "for cause" (as such term is defined in
Section 7(d) of the Plan), or is terminated due to his expropriation of, or
after termination he expropriates, Company property (including trade secrets or
other proprietary rights) or Optionee breaches (before or after termination)
any of his duties be under Section 12 hereof, the existence of which shall be
determined by the Board of Directors or the Committee established to administer
the Plan (such decision to be made by the Board or Committee in its sole
discretion and which determination shall be conclusive), this option shall
terminate immediately upon the Termination and the holder in such event shall
have no right after such Termination to exercise any unexercised Option he
might have exercised on or prior to the Termination.
7. Stock Option and Capital Adjustments. If, prior to the
complete exercise of this option, there shall be declared and paid a stock
dividend upon the Common stock of the Company or if such stock shall be split
up, converted, exchanged or reclassified, this Option, to the extent that it
has not been exercised, shall entitle the holder, upon the future exercise of
this Option, to such number and kind of securities or other property, subject
to the terms of the Option, to which the holder would be entitled had he
actually owned the stock subject to the unexercised portion of the option at
the time of the occurrence of such stock dividend, split up, conversion,
exchange, reclassification or substitution; and the aggregate purchase price
upon the future exercise of the Option shall be the same as if shares of Common
Stock of the Company originally optioned were being purchased as provided
herein.
8. Acceleration of Exercise Date.
A. Sale of Assets, Merger, Consolidation and Change of
Control. Notwithstanding anything herein to the contrary contained in this
Agreement, all outstanding unexercised Options may become fully vested upon
action by the Board of Directors of the Company in the event of any merger,
acquisition or sale of the Company (other than a merger, acquisition or sale
with respect to which a majority of the members of the Board of Directors of
the Company prior to the merger, acquisition or sale continue to be a majority
of the Board of Directors of the resulting corporation after such merger,
acquisition or sale), all pursuant to and subject to the-terms and conditions
of the Plan including, without limitation, the limitations upon vesting imposed
by Section 8 of the Plan. In the event of any such merger, acquisition or sale
with respect to which immediate vesting of the options does not occur, and in
the further event that the Optionee is terminated within twelve (12) months
after such merger, acquisition or sale as a result of an actual or constructive
discharge (as defined in Section 12(b) of the Plan) for any reason or no reason
(other than for "Cause" as defined in Section 12(b) of the Plan), then
Optionee's Option shall vest immediately and may be exercised without regard to
the normal vesting schedule for a period of two (2) years commencing on the
date of such termination, or, if
shorter, for the duration of the balance of the term of the Option; provided,
however, that if the Option is an Incentive Option, then Optionee shall only be
entitled to exercise the option for a period of ninety (90) days commencing on
the date of such termination, or, if shorter, for the duration of the balance
of the term of the Option.
9. Compliance With securities Laws.
A. Postpone issuance. Notwithstanding, any provision of
this option to the contrary, the Company may postpone the issuance and delivery
of shares upon any exercise of this Option until one of the following conditions
shall be met:
(i) The shares with respect to which such Option
has been exercised are at the time of the issue of such shares effectively
registered under applicable Federal and state securities laws now in force or
hereafter enacted or amended; or
(ii) Counsel for the company shall. have given an
opinion that registration of such shares under applicable Federal and state
securities laws, as now in force or hereafter enacted or amended, is not
required.
B. Investment Representation. In the event that for t
any reason the shares to be issued upon exercise of the option shall not be
effectively registered under the Securities Act of 1933 (the 111933 Act"), upon
any date on which the option is exercised in whole or in part, the Company shall
be under no further obligation to issue shares covered by the option, unless the
Optionee shall give a written representation to the Company, in form
satisfactory to the Company, that such person is acquiring the shares issued
pursuant to such exercise of the option for investment and not with a view to,
or for sale in connection with, the-distribution of any such shares, and that
he/she will make no transfer of the same except in compliance with the 1933 Act
and the rules and regulations promulgated thereunder and then in force, and in
such event-1 the Company may place an "investment legend" upon any certificate
for the shares issued by reason of such exercise.
10. Special Rules Regarding Incentive Options.
A. Notice-of Transfer. If this Option is an Incentive
Option, the employee-optionee hereby agrees to notify the Company in writing
within three (3) days after any sale, transfer or other disposition of shares
acquired upon the exercise of this Option which occurs within either twelve (12)
months following the date of-exercise or twenty-four (24) months following the
date of grant.
B. $100.000 Per Year Exercise Limit. If this option is
an Incentive option, it shall be exercisable in accordance with the above
schedule of Section 2, but in no event shall it be exercised to the extent that
the aggregate fair market value of Common Stock covered by such option which is
exercisable for the first time during any calendar year, when combined with the
aggregate fair market value of all stock covered by incentive stock options (as
defined in the Code) granted to Optionee after December 31, 1986 by the Company,
its parent or a subsidiary
of the Company which are exercisable for the first time during the same
calendar year, exceeds $100,000.
11. No Agreement of Employment. Neither the grant of this option
nor this Agreement shall be deemed to create any agreement with, or obligation
by, the Company to employ the Optionee for any period of time, it being
understood that employment is strictly "at will" in the absence of any written
agreement to the contrary and, in the absence of such written agreement, such
person may be terminated by the Company at any time, with or without cause.
12. Assignment of Inventions, Etc.: Non-Disclosure of
Confidential Information. As further consideration for the issuance of the
Option, the Optionees, if he is an Employee of the Company, agrees as follows:
A. Assignment of Inventions. Any and all trade secrets,
inventions and proprietary information which either (i) relates at the time of
conception or reduction to practice to the company or its business, or actual
or demonstrably anticipated research or development of the company or (ii)
results from any work performed by the Optionee for the Company is hereby
assigned to, and shall become the absolute property of, the Company and shall
at all times and for all purposes be regarded as acquired and held by the
optionee in a fiduciary capacity for the sole benefit of the Company, and the
Optionee agrees that, upon request, he will promptly make all disclosures,
execute all assignments, instruments and papers, and perform all acts
whatsoever necessary or desired by the Company to vest and confirm in it, its
successors, assigns and nominees, all rights created or contemplated by this
subparagraph A and which may be necessary or desirable to enable the Company,
its, successors, assigns, and nominees to secure and enjoy the full benefits
and advantages thereof.
B. Nondisclosure of Confidential Information. The
Optionee shall not, during his employment by the Company or at any time
thereafter, directly or indirectly use, divulge, furnish or make accessible to
anyone other than the Company, its directors and officers other than in the
regular course of the business of the Company or any of its subsidiaries, any
knowledge or information with respect to (i) confidential, secret or
proprietary plans, data (including cost data), specifications, procedures and
techniques, methods, technology, "know-how," or material relating to the
business, products, services (whether existing or under development) or
activities of the Company or its subsidiaries, (ii) any confidential business
plans or surveys of the Company or its subsidiaries, (iii) any other
confidential or secret aspect of the business, products, services or activities
of the Company or its subsidiaries, or (iv) any customer usage's and
requirements or any customer lists of the Company or its subsidiaries. The
Optionee shall not, upon leaving the employ of the Company, without the prior
written consent of an executive officer of the Company, take with him any data,
customer lists, reports, studies, compilations, business plans,
presentations/proposals, letters, memoranda, notes or other writings or
documents whatever, or copies hereof, which reflect or deal with any of the
confidential information described in this Section 12B.
C. Remedies. The Optionee acknowledges that a breach of
the provisions of this Agreement will cause the Cowpony irreparable injury for
which the Company cannot be reasonably or adequately compensated in damages.
The Company shall, therefore, be entitled, in
addition to all other remedies available to it, to injunctive and/or other
equitable relief to prevent a breach of this Agreement, or any part of it, and
to secure its enforcement, and any termination of Optionee as a result of a
violation of this Section 12 shall be deemed 11foi. cause."
13. Subject to Plan. This Option is issued subject and pursuant
to the provisions of the Plan, receipt of a copy of which the holder
acknowledges. A determination of the Board of Directors or the Committee
established pursuant to the Plan as to any questions which may arise with
respect to thc interpretation of the provisions of this option and of the Plan
shall be final. The Board of Directors or the Committee may authorize and
establish such rules and regulations, and revisions thereof, not inconsistent
with the provisions of the Plan, as it may deem advisable. Any provision hereof
which is inconsistent with, or contrary to, the terms and conditions of the
Plan shall be superseded and governed by the Plan.
14. Severability. If any condition, term or provision of this
Agreement is determined by a court to be illegal or in conflict with any law,
state or federal, the validity of the remaining portions or provisions shall
not be affected, and the rights and obligations of the parties shall be
construed and enforced as if this Agreement did not contain the particular
condition, term or provision determined to be unenforceable.
15. Entire Agreement; Delaware Law. This Agreement contains the
entire understanding and agreement between the parties hereto respecting the
within subject matter, and there are no representations, agreements,
arrangements or understandings, oral or written, between the parties hereto
relating 1:-.o the subject matter of this Agreement that are not fully
expressed herein. The Company is a Delaware corporation, and this Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware.
WITNESS the signature of its duly authorized officer of the Company as
of the date of grant hereof.
THE COMPANY:
WHITE PINE SOFTWARE, INC.
By: /s/ Illegible
---------------------------------
Title:
------------------------------
THE OPTIONEE:
Acknowledged and Agreed to*:
/s/ Xxxxxxx Xxxxxx
------------------------------------
SIGNATURE
Xxxxxxx Xxxxxx
------------------------------------
Print Name
00 Xxxxx xx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxx
00000 BIOT (France)
------------------------------------
City, State, Zip Code
162 1021 27 006677
------------------------------------
Social Security No.
*IF you have any "Inventions" to except from Section 12, you must IDENTIFY ALL
SUCH INVENTIONS below, or, if the statement is not applicable, you must write
NONE below.
None
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AMENDMENT TO STOCK OPTION AGREEMENT
This Amendment to Stock Option Agreement (this "Amendment") is entered
into as of February 1997, between White Pine Software, Inc., a Delaware
corporation (the "Company'), and Xxxxxxx Xxxxxx (the "Optionee").
WHEREAS, the Company has issued to the Optionee a stock option
agreement, a copy of which is attached hereto (the "Stock Option Agreement"),
to purchase up to an aggregate of 3,000 shares (post-split) of the Company's
common stock, par value $.01 per share, at an exercise price of $5.00
per-split) on the terms and conditions set forth therein; and share
(post-split) in the terms and conditions set forth herein; and
WHEREAS, the Company and the Optionee have determined that it is
desirable to clarify certain terms of the Stock Option Agreement,
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Optionee agree as follows:
1. Section l(B)(i) of the Stock Option Agreement is hereby
deleted in. its entirety, and the following clause is substituted therefor.
"(i) The Company hereby grants to the Optionee an option (the
"Option") to purchase 3,000 shares of Common Stock of the Company (the "Optioned
Stock"), upon the terms and conditions set forth below. The date of grant of the
Option is May 6, 1996."
2. Section l(B)(i) of the Stock Option Agreement is hereby
deleted in its entirety, and the following clause is substituted therefor:
"(ii) This Option is intended to be a Non-Qualified Option."
3. Section I (C) of the Stock Option Agreement is hereby deleted
in its entirety, and the following clause is substituted therefor:
"I(C) Duration of Option. This Option shall expire ten years
after the Grant Date."
4. Section 2 of the Stock Option Agreement is hereby deleted in
its entirety, and the following clause is substituted therefor:
"2. Exercisability. Subject to Section 6 regarding termination of
Optionee's employment, consulting or other relationship with the Company, this
Option shall become exercisable, in one or more installments (to the nearest
whole number), so that 1136th of the total number of Optioned Stock shall vest
on a monthly basis commencing on May 6, 1996 and continuing on the corresponding
day of each of the next succeeding 34 months, with the balance vesting on April
6, 1999. The number of shares of Optioned Stock which becomes exercisable each
month, to the
extent not previously exercised, shall accumulate until exercised in accordance
with and subject to the terms and conditions of this Agreement."
5. The parties hereby agree that the Stock Option Agreement has
not because issued pursuant to the Company's 1994 Stock Option Plan.
Notwithstanding the preceding sentence, the parties agree that the definitions,
terms and provisions of the Stock Option Agreement shall be interpreted as if
the terms and conditions of the Company's 1994 Stock Option Plan had been
expressly set forth in the Stock Option Agreement, in order that the Stock
Option Agreement has the same terms and conditions as if it had been issued
under the Company's 1994 Stock Options Plan.
6. As modified by this Amendment, the Stock Option Agreement
shall remain in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the undersigned have duly executed, or caused to be
executed, this Amendment under seal as of the date first set forth above.
WHITE PINE SOFTWARE, INC.
By: /s/ Illegible /s/ Xxxxxxx Xxxxxx
---------------------------- ------------------------------------
Title: Treasurer Xxxxxxx Xxxxx
AMENDMENT TO STOCK OPTION AGREEMENT
This Amendment to Stock Option Agreement (this "Amendment') is entered
into as of August 5, 1997 between White Pine Software, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx Xxxxx (the "Optionee").
WHEREAS, the Company has issued to the Optionee, pursuant to a letter
agreement between the Company and the Optionee dated 516/96, a stock agreement
(the "Option Agreement"), a copy of which is attached hereto, to purchase up to
an aggregate of 3,000 (post-split) of the Company, ' s common stock, par value
$.01 per share, at an exercise price of $5.00 per share (post-split) on the
terms and conditions set forth therein, and
WHEREAS, in connection with a resolution of the Board of Directors of
the Company duly addptedonAugu7st5,1997iorevi~etliii~C6ir,i"sepncean
vestingsched e of certain outstanding stock options, the parties have agreed to
modify the terms of the Option Agreement as se-t forth herein;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged d, the Company and the Optionee agree as follows:
1. Section 4 of Schedule A to the Stock Option Agreement is
hereby deleted in its entirety and replaced with the following:
"4, Exercise (purchase) price per share: $2.501~
2. Section 5 of Schedule A to the Stock Option Agreement is
hereby deleted in its entirety and replaced with the following:
"5. Vesting Schedule: (i) 118 of the shares
granted hereunder (rounded down to 1he
nearest integer) shall vest on 1 RIM; (ii)
an additional 1/8 of the shares granted
hereunder (rounded down to the nearest
integer) shall vest on each of the next six
(6) semi-annual anniversary dates of 5/6/97,
22/6/97, 5/6/98, 11/6/98, 5/6/99, 11/6/99;
and the balance thereof shall vest on
5/6/00."
3. As modified by this Amendment, the Option Agreement shall
remain in fall force and effect in accordance with its terms.
IN WITNESS WHEREOF, the undersigned have duly executed, or caused to be
executed, this Amendment under seal as of the date first set forth above.
WHITE PINE SOFTWARE, INC.
By: /s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxx
------------------------------- ------------------------------
Xxxxxx Xxxxxxxxx, President Xxxxxxx Xxxxx
