|
Exhibit 4.2
Bilaga 7 C
March, 2005
POINTSEC MOBILE TECHNOLOGIES
INC.
2005 STOCK OPTION PLAN
|
|
|
|
|
POINTSEC MOBILE TECHNOLOGIES INC., 2005 STOCK
OPTION PLAN
|
Pointsec
Mobile Technologies Inc., a California corporation (the
“Company” ), hereby adopts the Pointsec Mobile
Technologies Inc., 2005 Stock Option Plan (the
“Plan” );
WHEREAS,
Pointsec Mobile Technologies AB, company registration No.
556575-7415, (the “Parent” ), a Swedish limited
liability company, owns all of the issued and outstanding stock in
the Company;
WHEREAS,
Protect Data AB (publ), company registration No. 556315-8541, (
“PDAB” ), a Swedish limited liability company
which is quoted on the Stockholm Stock Exchange, owns all of the
issued and outstanding stock in the Parent;
WHEREAS,
a general meeting of PDAB has resolved to implement an incentive
program which, inter alia , covers employees and other
service providers connected with the Company;
WHEREAS,
in order to attract and retain qualified officers, directors,
employees, consultants and other service providers in the USA (the
“Service Providers” ) - each of whom, at the
time an Option is granted, does not own stock representing more
than fifty percent of the total combined voting power of all
classes of stock of the Company, or of its Parent, or of PDAB, or
of a subsidiary of the foregoing as of the time the Option is
granted (a “Major Shareholder” ) - PDAB,
the Parent and the Company have determined that it is necessary to
adopt a compensatory stock option plan; and
2
WHEREAS,
in order to adopt the equivalent of a stock option plan under
Swedish law, the Company has entered into a contract with PDAB
whereby the Company will acquire options to be issued by PDAB (the
“Options” ) to acquire 150,000 shares of PDAB
and has agreed to adopt the Plan and grant the Options, which may
be treated as incentive stock options or nonqualified stock
options, to Service Providers of the Company thereunder (the
General Agreement relating to the Options hereinafter the
“General Agreement” ).
3
NOW,
THEREFORE, the terms and conditions of the Plan shall be as
follows:
1.
Purpose of Plan . The purpose of the Plan is to advance the
interests of the Company, the Parent, PDAB and the shareholders of
PDAB by enabling the Company to attract and retain qualified
directors, officers, employees, consultants and other service
providers by providing them with an opportunity for investment in
shares of PDAB through the granting of Options (incentive stock
options or nonqualified stock options). The Options that may be
granted hereunder represent the right by the grantee thereof (each
an “Optionee” ) to acquire shares of PDAB (the
“Shares” ) always subject to the terms and
conditions of this Plan and the terms of the Options as set out in
“Conditions for Protect Data AB’s (publ) Options
2005/2011” (the “Option Conditions” which
are set out in free translation from the original Swedish language
in an exhibit annexed hereto) as well as a written stock option
agreement between the Company and the Optionee setting forth
certain special conditions for the Optionees (a “Stock
Option Agreement” ).
2.
Duration of Plan . This Plan shall commence on the date the
Plan is approved by the Company and its shareholders (the Parent),
and PDAB and its shareholders. This Plan shall remain in effect to
and including 31 December 2015 or such earlier day as the Company
decides in accordance with Section 12 of the Plan. However, no
Options shall be granted after 31 December 2015. All Options
subject to this Plan must be purchased or acquired pursuant to the
provisions of this Plan and the Stock Option Agreement.
4
3.
Eligibility . The Company may, always subject to
PDAB’s approval as set out in the General Agreement grant
Options (incentive stock options or nonqualified stock options)
under this Plan only to (i) persons who, at the time of such grant,
are directors, officers, or employees of the Company and (ii)
persons who at the time of such grant, are independent contractors,
consultants or advisers of the Company (which persons shall not
already be, direct or indirect, Major Shareholders) (hereinafter
collectively, “Eligible Participants” ). No
person or entity will be an Eligible Participant following his, her
or its Termination of Eligibility Status (as defined in Section 13
below), no Option may be granted to any person or entity other than
an Eligible Participant and no incentive stock option may be
granted to a person who is not an employee.
4.
Option Pool . In no event will the Company grant Options
entitling the Eligible Participants to purchase, in the aggregate,
more than 150,000 Shares, which correspond to the maximum number of
Options to be acquired by the Company from PDAB under its issue in
accordance with the Option Conditions and the General Agreement,
provided that PDAB shall have the right to increase the number to a
total of 300,000 Shares, provided such increase is resolved upon or
approved by the Company and its shareholders (the Parent) and the
Parent’s shareholders (PDAB). The Options to purchase Shares
may represent options which have not been issued heretofore or may
be reacquired options. However, Shares that have actually been
issued under the Plan, upon exercise of an Option, shall not be
returned to the Plan and shall not become available for future
distribution under the Plan, except that if the Shares are
repurchased by the Company or by a third party designated by the
Company at their original purchase price, such Shares shall become
available for future grant under the Plan.
If
an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an option exchange
program adopted by the Administrator, the unpurchased Shares which
were subject thereto shall become available for future grant or
sale under the Plan (unless the Plan has terminated).
5
5.
Administration . (a) General . This Plan and Options
granted pursuant to the Plan will be administered and interpreted
by the Company’s Board of Directors (the
“Board” ), or by a committee consisting of two
or more members of the Board, appointed by the Board for such
purpose (the Board, or such committee, referred to herein as the
“Administrator” ). Subject to the expressed
terms and conditions hereof and of the General Agreement (which
conditions, inter alia , provide that PDAB shall have the
right to approve a granting of Options), the Administrator is
authorized to (i) select the Eligible Participants to whom Options
will be granted from time to time hereunder, including the number
and type ( i.e. , incentive stock options and non-qualified
options), (ii) determine the strike price for acquiring Shares
under the Options (the “Strike Price” ) etc. for
Options to be granted to each Eligible Participant, (iii) determine
the dates on, or as the case may be the periods during which Option
Exercise Subscriptions (as defined in Section 7 hereof) will be
remitted to the appropriate government offices in Sweden for
compliance with the administrative registration procedures of the
Swedish Companies Registration Office (Bolagsverket), which dates
(periods) are expected to be determined to four times each year,
(iv) determine acceptable forms of payment, (v) determine the
procedures for the Company’s (or, for this purpose, a
designated third party’s) repurchase of unvested Shares upon
termination of employment etc, (vi) approve forms of agreement for
use under the Plan, (vii) reduce the Strike Price of any Option to
the then current Fair Market Value if the Fair Market Value of the
Shares covered by such Option has declined since the date the
Option was granted, (viii) initiate an option exchange program
whereby outstanding Options are exchanged for options with a lower
strike price, (ix) prescribe, amend and rescind rules and
regulations relating to the Plan, including rules and regulations
relating to sub-plans established for the purpose of qualifying for
preferred tax treatment under foreign tax laws. PDAB shall be
informed of, from time to time, the name of those selected and the
number of Options granted to each person and Options that have been
returned to the Company due to events under Section 13.
(b)
Effects of Administrator’s Decision . Subject to the
terms and conditions of the General Agreement, all decisions,
determinations and interpretations of the Administrator shall be
final and binding on all Optionees.
6
(c)
Exercisability of Options . The Administrator is authorized
to specify the extent to which any Option will be
“Exercisable” ( i.e. , meaning that the
right to exercise the Option has commenced) and the conditions (
e.g. , the passage of time or the occurrence of events) that
must be satisfied prior to such Option becoming Exercisable.
Non-Exercisable Options may not be exercised by an Optionee. No
Options, which are intended to be treated as incentive stock
options, shall be Exercisable after the expiration of ten years
from the date such options are granted. Furthermore, no Options,
which are intended to be treated as incentive stock options, shall
be Exercisable a) after the expiration of five years from the date
such options are granted or b) at a Strike Price of less than 110%
as specified in Section 6(b), should the Optionee own more than ten
percent of the total combined voting power of all classes of stock
of the Company, or of its Parent, or of PDAB, or of a subsidiary of
the foregoing as of the time the option is granted (a “Ten
Percent Shareholder” ).
If
the aggregate fair market value for the Shares (which shall be
deemed equal to the closing price of the Shares on the Stockholm
Stock Exchange (the “Fair Market Value” )), with
respect to which Options, intended to be treated as incentive stock
options, are Exercisable for the first time by an Optionee during
any calendar year, exceeds USD 100,000 (under all plans of the
Company, or of its Parent, or of PDAB, or of a subsidiary of the
foregoing), a part of such Options will be treated as nonqualified
stock options, i.e. , the part that does not meet such USD
100,000 limit. For purposes of this Section 5(c), Incentive Stock
Options shall be taken into account in the order in which they were
granted. The Fair Market Value of the Shares shall be determined as
of the time of grant of the Option and in USD at the applicable
exchange rate on said grant date.
(d)
Vesting of Shares . In addition, the Administrator is
authorized, by way of contract between the Company and the
Optionee, to provide for vesting restrictions regarding Shares
acquired pursuant to exercise of Options ( i.e. , confer
upon the Company, or a third party designated by the Company, a
right to repurchase certain Shares), as provided for in Section
6(e) below.
7
6.
Terms and Conditions of Stock Option Agreements . In
addition to the terms set out in the Option Conditions, the
following terms and conditions will be deemed to apply to each
Option as if expressly set forth in the Option Conditions, unless
otherwise expressly provided in a Stock Option Agreement (
i.e. , the following terms and conditions may be changed in
individual cases) based on the Administrator’s determination
pursuant to Sections 5 and 12 of this Plan.
(a)
ISOs . No Option will be treated as an incentive stock
option (an “ISO” ) for United States income tax
purposes unless treatment as an ISO is expressly provided for in a
Stock Option Agreement and such Option satisfies the conditions of
Section 422 (b) of the U.S. Internal Revenue Code.
(b)
ISO Strike Price . For Options intended to be treated as
ISO’s, the Strike Price shall, upon granting of Options, be
assessed in Swedish Kronor to the greater of the
following:
|
|
|
|
|
|
(i)
xx:xx Swedish Kronor; or
|
|
|
|
|
|
|
(ii)
the Fair Market Value of the Shares on the day the Option is
granted (or in the case of a Ten Percent Shareholder, 110% of such
Fair Market Value).
|
(c)
Non-ISO Strike Price . For Options not intended to be
treated as an ISO, the Strike Price shall, upon granting of
Options, be assessed in Swedish Kronor to the greater of the
following:
(i)
xx:xx Swedish Kronor; or
8
|
|
|
|
|
|
(ii)
a minimum of 85% of the Fair Market Value of the Shares on the day
the Option is granted (or in the case of a Ten Percent Shareholder,
110% of such Fair Market Value).
|
(d)
Exercisability of Options . Initially the Options will not
be Exercisable ( i.e. , meaning that the right to exercise
the Option is not presently allowed). Parts of the Options granted
will, subject to Section 5(c) above, b
|