Exhibit 99.7
WHITE PINE SOFTWARE, 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. OPTIONEE; 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 ad1ditional 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 TWO (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 Xxxxxxxx.
(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 5,000 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: If 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 regarding Incentive Options, this Option shall become exercisable,
in one 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 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 ("ERISA") 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 r 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 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, or within twelve (12) months after the date of death 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
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 SPLITS 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 a 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 any
reason the shares to be issued upon exercise of the option shall not be
effectively registered under the Securities Act of 1933 (the "1933 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, 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
Optionee, 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 or 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, "knowhow," 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 usages 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 thereof, which reflect or deal with any of the
confidential information described in this Section 12B.
C. REMEDIES. The Optionee acknowledges the provisions of this
Agreement will cause the Company 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 "for
cause."
13. SUBJECT TO PLAN. This Option is issued subject and a copy of
pursuant to the provisions of the Plan, receipt 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 the 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 to 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:
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THE OPTIONEE:
Acknowledged and Agreed to:
/s/ Xxxxxxx Xxxxxxxx
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Signature
XXXXXXX XXXXXXXX
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Print Name
39 Xxxxxxx Form Dr.
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Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
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City, State, Zip Code
###-##-####
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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 August 5, 1997 between White Pine Software, Inc., a Delaware
corporation (the "Company") and Xxxxxxx Xxxxxxxx (the "Optionee").
WHEREAS, the Company has issued to the Optionee, pursuant to a letter
agreement between the Company and the Optionee dated 5/6/96, a stock agreement
(the "Option Agreement"), a copy of which is attached hereto, to purchase up to
an aggregate of 5,000 (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 adopted on August 5, 1997 to revise the exercise price and
vesting schedule of certain outstanding stock options, the parties have agreed
to modify the terms of the Option Agreement as set 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, 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: $2.50"
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) 1/8 of the shares granted
hereunder (rounded down to
the nearest integer) shall
vest on 1 11/6/96; (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,
11/6/97,5/6/98,
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 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/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxxx, President Xxxxxxx Xxxxxxxx
