Unassociated Document











 

Exhibit
4.4

 

 

EXI
WIRELESS INC.

 

 

AMENDED
2000 SHARE OPTION PLAN

 

 

Dated for
Reference May 30, 2000 

 

PART
1

 

DEFINITIONS
AND INTERPRETATION

 

Definitions

 

1.1 In this
Share Option Plan:

 

(a) Accelerated
Vesting Event means
the occurrence of any one of

 

(i) a
take-over bid as defined in the Securities
Act (British
Columbia) is made for Common Shares or Convertible Securities which, if
successful would result (assuming the conversion, exchange or exercise of the
Convertible Securities, if any, that are the subject of the take-over bid) in
any person or persons acting jointly or in concert (as such phrase is defined in
the Securities
Act (British
Columbia)) or persons associated or affiliated with such person or persons
within the meaning of the Canada
Business Corporations Act
beneficially, directly or indirectly, owning shares that would, notwithstanding
any agreement to the contrary, entitle the holders thereof for the first time to
cast at least 50% of the votes attaching to all shares in the capital of the
Corporation that may be cast to elect Directors,

 

(ii) the
acquisition or continuing ownership by any person or persons acting jointly or
in concert (as such phrase is defined in the Securities
Act (British
Columbia)), directly or indirectly, of Common Shares or of Convertible
Securities, which, when added to all other securities of the Corporation at the
time held by such person or persons, or persons associated or affiliated with
such person or persons within the meaning of the Canada
Business Corporations Act
(collectively, the “Acquirors”), and assuming the conversion, exchange or
exercise of Convertible Securities beneficially owned by the Acquirors, results
in the Acquirors beneficially owning shares that would, notwithstanding any
agreement to the contrary, entitle the holders thereof for the first time to
cast at least 50% of the votes attaching to all shares in the capital of the
Corporation that may be cast to elect Directors,

 

(iii) the sale,
lease, exchange or other disposition of all or substantially all of the
Corporation’s assets, or



 






















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(iv) an
amalgamation, merger, arrangement or other business combination (a “Business
Combination”) involving the Corporation that results in the securityholders of
the parties to the Business Combination other than the Corporation owning,
directly or indirectly, shares of the continuing entity that entitle the holders
thereof to cast at least 50% of the votes attaching to all shares in the capital
of the continuing entity that may be cast to elect Directors;

 

(b) Associate has the
meaning ascribed thereto in the Securities
Act (British
Columbia);

 

(c) Board means
the board of directors of the Corporation;

 

(d) Common
Shares means
Common shares without par value in the capital of the Corporation;

 

(e) Convertible
Securities means
securities convertible into, exchangeable for or representing the right to
acquire Common Shares;

 

(f) Corporation means
EXI Technologies Inc.;

 

(g) Director means a
director of the Corporation;

 

(h) Effective
Date of an
Option means the date on which the Option is granted, whether or not the grant
is subject to any Regulatory Approval;

 

(i) Employee means an
employee of the Corporation or of a Subsidiary, and includes

 

(i) a
permanent part-time employee of the Corporation or a Subsidiary, or

 

(ii) a
consultant of the Corporation or of a Subsidiary who is approved for
participation in this Share Option Plan by the Board and in respect of whom the
Corporation has qualified by way of an exemption, or has obtained an order from
any securities commission or other regulatory authority having jurisdiction over
the granting of options to consultants, permitting granting of the
Option;

 

(j) Expiry
Date of an
Option means the day on which an Option lapses;

 

(k) Insider
means

 

(i) an
insider of the Corporation as defined in the Securities
Act (British
Columbia), other than a person who is an insider solely by virtue of being a
director or senior officer of a Subsidiary, and

 

(ii) an
Associate of a person who is an Insider by virtue of §(i);

 

(l) Officer means an
individual who is an officer of the Corporation;

 

(m) Option means a
right to purchase Common Shares granted under this Share Option Plan to a
Director, Officer or Employee;

 



 






















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(n) Outstanding
Issue means,
with respect to any issue of Common Shares, the number of Common Shares
outstanding on a non-diluted basis immediately before such issue, excluding
Common Shares issued pursuant to share compensation arrangements over the
preceding one-year period;

 

(o) Option
Commitment means
the notice of grant of an Option delivered by the Corporation to an Optionee and
substantially in the form of the Schedule hereto;

 

(p) Optioned
Shares means
Common Shares subject to an Option;

 

(q) Optionee means an
individual to whom an Option is granted by the Corporation under this Share
Option Plan;

 

(r) Regulatory
Approval means
the approval of the Canadian Venture Exchange and every other stock exchange or
securities regulatory agency whose approval is required in the
circumstances;

 

(s) Retired
means

 

(i) with
respect to an Officer or Employee, the retirement of the Officer or Employee
within the meaning of the Canada Pension Plan, after attainment of age 65,
and

 

(ii) with
respect to a Director, cessation of office as a Director, other than by reason
of death, after attainment of age 70;

 

(t) Share
Compensation Arrangement means
any stock option, stock option plan, employee stock purchase plan, share
distribution plan or any other compensation or incentive mechanism involving the
issuance or potential issuance of shares to any Director, Officer or Employee,
including a share purchase from treasury which is financially assisted by the
Corporation by way of a loan, guaranty or otherwise other than with regard to
options to acquire up to 900,000 Common Shares that have been granted by the
Corporation in connection with the recruitment of a Chief Executive Officer and
Chief Financial Officer that assume positions in 2000;

 

(u) Share
Option Plan means
this 2000 Share Option Plan;

 

(v) Subscription
Price means
the amount payable on an exercise of an Option;

 

(w) Subsidiary means a
subsidiary as determined under the Canada
Business Corporations Act;

 

(x) Totally
Disabled, with
respect to an Employee or Officer, means that, solely because of disease or
injury the Employee or Officer is deemed by a qualified physician selected by
the Corporation to be unable to work at any occupation which the Employee or
Officer is reasonably qualified to perform and, with respect to a Director,
means that, solely because of disease or injury, the Director is deemed by a
qualified physician


 






















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selected
by the Corporation to be unable to carry out his or her responsibilities on the
Board;

 

(y) a
reference to a statute includes all regulations made thereunder, all amendments
to the statute or regulations in force from time to time, and any statute or
regulation that supplements or supersedes such statute or regulations;
and

 

(z) the words
“the
last day on which the Officer or Employee worked for the Corporation or a
Subsidiary of the Corporation” means,
with respect to an Officer or Employee whose employment has been terminated by
the Corporation or a Subsidiary of the Corporation

 

(i) other
than for cause, either

 

(A) the day
specified by the Corporation or such Subsidiary in writing to the Officer or
Employee as being the last day on which the Officer or Employee is to report for
work for the Corporation or a Subsidiary of the Corporation, or

 

(B) if such
Officer or Employee is given pay in lieu of advance notice of a pending
effective date of termination, the day on which such notice of termination is
given in writing by the Corporation or such Subsidiary to the Officer or
Employee, and

 

(ii) for
cause, the day on which the notice of termination was given.

 

PART
2


 

SHARE
OPTION PLAN

 

Purpose
of Share Option Plan

 

2.1 The
purpose of this Share Option Plan is to recognize contributions made by
Directors, Officers and Employees and to provide for an incentive for their
continuing relationship with the Corporation and its Subsidiaries.

 

Eligibility

 

2.2 Options
to purchase unissued Common Shares may be granted from time to time under this
Share Option Plan by the Board, on the recommendation of the Chief Executive
Officer of the Corporation, to Directors, Officers and Employees.

 

Incorporation
of Terms of Share Option Plan

 

2.3 Subject
to specific variations approved by the Board, all terms and conditions set out
herein will be deemed to be incorporated into and form part of each Option
granted under this Share Option Plan.





 






















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Maximum
Shares to be Allotted

 

2.4 The
maximum aggregate number of Common Shares that may be allotted for issuance
under this Share Option Plan is 530,593, subject to adjustment in accordance
with §3.8. If Options are surrendered, terminated or expire in accordance with
the terms of the Plan without being exercised, new Options may be granted
covering Common Shares not purchased under such lapsed Options.

 

PART
3


 

TERMS
AND CONDITIONS OF OPTIONS

 

Subscription
Price

 

3.1 The
Subscription Price per Common Share to be acquired on the exercise of an Option
will be the closing price per share for the Common Shares on the Canadian
Venture Exchange on the last trading day on such exchange before the Effective
Date of the Option.

 

Term
of Options

 

3.2 The term
of an Option will be such period after the Effective Date thereof, not exceeding
5 years, as the Board determines at the time of granting of the
Option.

 

Vesting
of Option Rights

 

3.3 Except as
otherwise provided pursuant to §3.4, §3.5 or §3.6, an Option may be exercised
from time to time

 

(a) at any
time during the second, third and fourth year of the term of the Option as to a
total number of shares not exceeding 33 1/3% of the Optioned Shares in each such
year, and

 

(b) in
addition, during any year of the term of the Option, as to a total number of
shares not exceeding the number of Optioned Shares as to which the Option could
have been exercised but was not exercised during the preceding year, whether
pursuant to §(a) or this §(b).

 

Variation
of Vesting Periods

 

3.4 If the
Board determines with respect to an Optionee that it is desirable to grant to
the Optionee an Option for which the vesting of rights should be other than as
provided in §3.3 or that it is desirable to alter the vesting periods of any
particular Option, it may fix the vesting of that Option before or after its
grant in such manner as it determines in its discretion.

 

3.5 If there
occurs an Accelerated Vesting Event each Option held by an Optionee may be
exercised by the Optionee at any time or from time to time on or before the
Expiry Date of the Option, provided that with respect to an Option held by an
Officer or Employee the





 






















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Accelerated
Vesting Event must have occurred on or before the last day on which the Officer
or Employee worked for the Corporation or a Subsidiary of the
Corporation.

 

Limitation
on Right to Exercise

 

3.6 No Option
may be exercised after 

 

(a) in the
case of a Director, the time at which the Optionee ceases to be a Director, or


 

(b) in the
case of an Officer or Employee, 5:00 p.m. Pacific Standard Time on the last day
on which the Officer or Employee worked for the Corporation or a Subsidiary of
the Corporation

 

(each of
§(a) and (b) being the “particular time”), except as follows:

 

(i) an Option
that would otherwise so cease to be exercisable by reason of the death of the
Optionee at the particular time may be exercised by the personal representatives
of the Optionee, from time to time no later than the earlier of the Expiry Date
of the Option and three years (one year for Directors or consultants (as defined
in §1.1(i)(ii)) after the particular time, as to a total number of shares not
exceeding the number of shares as to which the Optionee did not exercise the
Option before the particular time, including shares as to which pursuant to §3.3
or §3.4 the Optionee was at the particular time not yet entitled to exercise the
Option;

 

(ii) an Option
that would otherwise so cease to be exercisable by reason that the particular
time is the effective time that the Optionee has Retired or become Totally
Disabled may be exercised by the Optionee or, if the Optionee dies after the
particular time, the personal representatives of the Optionee, from time to time
no later than the earlier of the Expiry Date of the Option and three years (one
year for Directors or consultants (as defined in §1.1(i)(ii)) after the
particular time, as to a total number of shares not exceeding the number of
shares as to which the Optionee did not exercise the Option before the
particular time, including shares as to which pursuant to §3.3 or §3.4 the
Optionee was at the particular time not yet entitled to exercise the
Option;

 

(iii) an Option
that would otherwise so cease to be exercisable by reason that, in circumstances
in which neither §(i) nor §(ii) applies,

 

(A) the
particular time is the effective time that the Optionee ceases to be a Director,
or

 

(B) the
particular time

 

(I) is 5:00
p.m. Pacific Standard Time on the last day on which the Officer or Employee
worked for the Corporation or a




 






















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Subsidiary
of the Corporation, except where the office or employment was terminated for
cause, and

 

(II) is not a
time immediately before which the office might have been terminated by the
Corporation or a Subsidiary of the Corporation, or the employment terminated by
the Corporation or a Subsidiary of the Corporation, for cause,

 

may be
exercised by the Optionee or, if the Optionee dies after the particular time,
the personal representatives of the Optionee, from time to time no later than
5:00 p.m. Pacific Standard Time on the earlier of the Expiry Date of the Option
and the day that is 30 days after the particular time, as to a total number of
shares not exceeding the number of shares as to which the Optionee was entitled
to and did not exercise the Option immediately before the particular
time.

 

Non
Assignability

 

3.7 Except as
provided in §3.6 or as permitted by applicable regulatory authorities in
connection with a transfer to a registered retirement savings plan or registered
retirement income fund established by or for the Optionee or under which the
Optionee is the beneficiary, an Option may be exercised only by the Optionee to
whom it is granted and will not be assignable.

 

Adjustment

 

3.8 The
number of Common Shares subject to an Option and the price per share payable on
exercise of an Option will be subject to adjustment in the events and in the
manner following:

 

(a) if the
Common Shares are subdivided or consolidated after the Effective Date of an
Option, or the Corporation pays to holders of Common Shares of record as of a
date after the Effective Date of an Option a dividend payable in Common Shares,


 

(i) the
number of Common Shares which would be acquired on any exercise of the Option
thereafter will be adjusted to the number of such shares that the Optionee would
hold through the combined effect of such exercise and such subdivision,
consolidation or stock dividend if the time of the subdivision or consolidation
or the record date of such stock dividend had been immediately after the
exercise,

 

(ii) the price
per share payable on such an exercise of such an Option will be adjusted in
inverse proportion to the adjustment under §(i) in the number of shares that may
be acquired or such exercise, 

 

and the
number of such shares referred to in §2.4 and §5.4(c) and considered as
previously allotted for the purposes of applying §2.4 and §5.4(c) will be
correspondingly adjusted;

 

(b) if there
is any capital reorganization, reclassification or other change or event
affecting the Common Shares to which §(a) does not apply, the Board will
determine




 






















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whether
in the circumstances it is just and equitable that there be some alteration in
the securities or other consideration to be acquired by Optionees on the
exercise of Options then outstanding and will make such amendments to the Share
Option Plan as the Board considers appropriate in the circumstances to ensure a
just and equitable result;

 

(c) the
Corporation will not be required to issue any fractional share in satisfaction
of its obligations hereunder or make any payment in lieu thereof.

 

Disputes

 

3.9 If any
question arises at any time with respect to the Subscription Price or number of
Optioned Shares deliverable upon exercise of an Option in any of the events set
out in §3.8, such question will be conclusively determined by the Corporation’s
auditors, or, if the auditors decline to so act, any other firm of chartered
accountants in Vancouver, British Columbia that the Corporation may designate,
and such auditors or other firm will have access to all appropriate records and
its determination will be binding upon the Corporation and each
Optionee.

 

PART
4


 

PROCEDURE

 

Option
Commitment

 

4.1 Upon the
granting of an Option hereunder the Chief Executive Officer and the President of
the Corporation will deliver to the Optionee an Option Commitment detailing the
terms of the Option and upon such delivery the Optionee will be a participant in
this Share Option Plan and have the right to purchase the Optioned Shares at the
Subscription Price set out therein, subject to the terms of this Share Option
Plan.

 

4.2 Upon the
occurrence of an event to which §3.8 applies, the Chief Executive Officer and
the President of the Corporation may, and if so directed by the Board will,
deliver to any Optionee with respect to any Option a revised Option Commitment,
identified as such, with respect to shares as to which the Option has not been
exercised, reflecting the application of §3.8 by reason of that
event.

 

Manner
of Exercise

 

4.3 An
Optionee being entitled to and wishing to exercise an Option may do so only by
delivering to the Corporation at its head office

 

(a) a written
notice addressed to the Corporation specifying the number of Optioned Shares
being acquired pursuant to the Option, and

 

(b) a
certified cheque or bank draft payable to the Corporation for the aggregate
Subscription Price for the Optioned Shares being acquired.



 






















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Share
Certificates

 

4.4 Upon an
exercise of an Option the Corporation will direct its transfer agent to issue a
share certificate to an Optionee for the appropriate number of Optioned Shares
not later than five days thereafter.

 

PART
5


 

GENERAL
PROVISIONS

 

Effective
Date of Plan

 

5.1 This
Share Option Plan will become effective, upon receipt of Regulatory Approval, as
of and from on May 30, 2000. 

 

Administration

 

5.2 Subject
to such limitations as may from time to time be imposed by the Board, the Chief
Executive Officer will be responsible for the general administration of this
Share Option Plan, the proper execution of its provisions, the interpretation of
this Share Option Plan and the determination of all questions arising pursuant
to this Share Option Plan, and without limiting the generality of the foregoing,
the Chief Executive Officer of the Corporation will have the power to grant
Options pursuant to this Share Option Plan and allot Common Shares for issuance
on the exercise of Options.

 

Amendment

 

5.3 Subject
to Regulatory Approval, the Board may amend, suspend, terminate or discontinue
this Share Option Plan, or revoke or alter any action taken pursuant to this
Share Option Plan, except that no amendment, suspension, termination or
discontinuance of this Share Option Plan will alter or impair any Option without
the written consent of the Optionee. 

 

Governing
Law

 

5.4 This
Share Option Plan will be construed in accordance with and the rights of the
Corporation and each Optionee will be governed by the laws of British Columbia
and the laws of Canada applicable therein.

 

Notice

 

5.5 Each
notice, demand or communication required or permitted to be given under this
Share Option Plan will be in writing and will be delivered to the person to whom
it is addressed, and the date of delivery of such notice, demand or
communication will be the date of receipt by the addressee.





 






















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Employment

 

5.6 Nothing
contained in this Share Option Plan will confer upon any Optionee or Employee
any right with respect to employment or continuance of employment with the
Corporation or a Subsidiary, or interfere in any way with the right of the
Corporation or a Subsidiary to terminate the Optionee’s or Employee’s employment
at any time. Participation in this Share Option Plan by an Optionee or Employee
will be voluntary.

 

No
Representation or Warranty

 

5.7 The
Corporation makes no representation or warranty as to the future market value of
Common Shares issued in accordance with the provisions of this Share Option
Plan.

 




 





























 

2000
SHARE OPTION PLAN

 

OPTION
COMMITMENT

 

 

Notice is
hereby given that, effective ______________ (the “Effective Date”) EXI Wireless
Inc. (the “Corporation”), pursuant to the Corporation’s 2000 Share Option Plan
(a copy of which is attached hereto) (the “Plan”), as it may have been amended
to the Effective Date, granted to ________________ (the
“Optionee”), of _______________, an Option (the “Option”) to acquire up to
___________ Common shares in the capital of the Corporation (the “Optioned
Shares”) on or before _______________ at a Subscription Price of
Cdn. _________per share.

 

The grant
of the Option is made on and subject to the vesting provisions and other terms
and conditions of the Plan, which are incorporated by reference herein. The
number of Optioned Shares will be adjusted if and to the extent required in
accordance with §3.8 of the Plan.

 

To
exercise the Option, the Optionee must deliver to the Corporation at its head
office a written notice addressed to the Corporation specifying the number of
Optioned Shares that the Optionee wishes to acquire, together with a certified
cheque or bank draft payable to the Corporation for the aggregate Subscription
Price for such shares. A share certificate evidencing the Optioned Shares
thereby acquired will be issued to the Optionee by the Corporation’s transfer
agent in accordance with the Plan.

 

EXI
WIRELESS INC.

 

 








Authorized
Signatory

 

 








Authorized
Signatory

 




 





	 
	
      The
      securities represented by the Option (as defined above) and/or acquired
      pursuant to the exercise of the Option may not be sold, transferred,
      hypothecated or otherwise traded on or through the facilities of the
      Canadian Venture Exchange or otherwise in Canada or to or for the benefit
      of a Canadian resident until __________ without the prior written approval
      of the Canadian Venture Exchange.