<PAGE> 1
As filed with the Securities and Exchange Commission on June 9, 1999.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
---------------
INTERNET AMERICA, INC.
(Exact name of registrant as specified in its charter)
Texas 86-0778979
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
One Dallas Centre
350 N. St. Paul, Suite 3000
Dallas, Texas 75201
(Address of principal executive offices)
---------------
INTERNET AMERICA, INC.
NONQUALIFIED STOCK OPTION AGREEMENT - MICHAEL T. MAPLES
NONQUALIFIED STOCK OPTION AGREEMENT - MICHAEL T. MAPLES
NONQUALIFIED STOCK OPTION AGREEMENT - GARY L. CORONA
OPTION SETTLEMENT AGREEMENT - MICHAEL S. MAY
OPTION SETTLEMENT AGREEMENT - KAMI DOYLE
OPTION SETTLEMENT AGREEMENT - KEITH WEINBERGER
(Full title of the Plan)
---------------
MICHAEL T. MAPLES
One Dallas Centre
350 N. St. Paul, Suite 3000
Dallas, Texas 75201
(Name and address of agent for service of agent for service)
(214) 861-2500
(Telephone number, including area code,
of agent for service)
----------------
COPY TO:
RICHARD F. DAHLSON
Jackson Walker L.L.P.
901 Main Street
Suite 6000
Dallas, Texas 75202
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1) Price (1) Fee (1)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 67,500 shares $1.67 $112,725.00
157,500 shares $1.67 $263,025.00
75,000 shares $25.00 $ 1,875,000
80,000 shares $1.67 $133,600.00
42,750 shares $1.67 $ 71,392.50
25,000 shares $0.09 $ 2,250.00 $683.34
==================================================================================================================
</TABLE>
(1) Computed pursuant to Rule 457 solely for the purpose of calculating the
registration fee, based upon the prices at which the options may be
exercised.
<PAGE> 2
PROSPECTUS
INTERNET AMERICA, INC.
300,000 SHARES OF COMMON STOCK
This Prospectus relates to the offer and sale of up to 300,000 shares
(the "Shares") of common stock, par value $0.01 per share (the "Common Stock")
of Internet America, Inc. (the "Company"), issued pursuant to the provisions of
various Nonqualified Stock Option Agreements between the Company and one of its
officers and directors (the "Agreements").
The Shares may be sold from time to time by the Selling Shareholder or
by permitted transferees. The Common Stock is quoted through the National
Association of Securities Dealers Automated Quotation National Market System
(the "Nasdaq/NMS") under the symbol "GEEK" and may be sold from time to time by
the Selling Shareholder either directly in private transactions, or through one
or more brokers or dealers on the Nasdaq/NMS, or any other over-the-counter
market or exchange on which the Common Stock is quoted or listed for trading, at
such prices and upon such terms as may be obtainable. On June 1, 1999, the last
reported sale price of the Common Stock, as reported on the Nasdaq/NMS, was
$17.88.
Upon any sale of the Common Stock offered hereby, the Selling
Shareholder and participating agents, brokers, dealers or marketmakers may be
deemed to be underwriters as that term is defined in the Securities Act of 1933,
as amended (the "Securities Act"), and commissions or discounts or any profit
realized on the resale of such securities purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. See "Plan of
Distribution." The Company will not receive any of the proceeds from the sales
by the Selling Shareholder.
No underwriter is being utilized in connection with this offering. The
Company will pay all expenses incurred within this offering. The expenses
incurred in connection with the offering are estimated to be approximately
$4,000.
-----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is June 9, 1999.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549; at the Commission's Chicago Regional office located at Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511; and at the Commission's New York Regional office located at 7 World
Trade Center, Room 1300, New York, New York 10048. Copies of such material may
also be obtained at prescribed rates from the Public Reference Section of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549. Additionally, the Commission maintains a website
(http://www.sec.gov) that contains reports, proxy statements and information
statements and other information regarding registrants that file electronically
with the Commission. The Common Stock is listed on the Nasdaq/NMS. Reports,
proxy statements and other information concerning the Company can be inspected
at the offices of the Nasdaq/NMS.
The Company has filed with the Commission in Washington, D.C., a
Registration Statement on Form S-8 (the "Registration Statement") in connection
with the offer and sale of the Common Stock offered hereby under the Securities
Act. This Prospectus does not contain all of the information set forth or
incorporated by reference in the Registration Statement and the exhibits
thereto. For further information with respect to the Company and the Common
Stock, reference is made to the Registration Statement and the exhibits thereto.
Copies of the Registration Statement are available from the Commission.
Statements contained in this Prospectus concerning the provisions of documents
filed with the Registration Statement are necessarily summaries of such
documents, and each statement is qualified in its entirety by reference to the
copy of the applicable document filed with the Commission.
The Company's principal executive offices are located at One Dallas
Centre, 350 N. St. Paul, Suite 3000, Dallas, Texas 75201 and its telephone
number is (214) 861-2500.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission by
the Company, are incorporated herein by reference and made a part hereof:
(i) Prospectus dated June 7, 1999 and filed with the Commission
pursuant to Rule 424(b) on June 8, 1999 (the "424(b) Prospectus");
(ii) All other reports filed with the Commission pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the 424(b)
Prospectus; and
(iii) Description of the Common Stock contained in the Company's
Registration Statement on Form SB-2 (No. 333-78615), effective as of
June 7, 1999.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the
2
<PAGE> 4
Common Stock to be made hereunder shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom a copy
of this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all of the documents incorporated herein by reference
(other than exhibits to such documents unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates). Written or telephone requests for such documents should be
directed to James T. Chaney, One Dallas Centre, 350 N. St. Paul, Suite 3000,
Dallas, Texas 75201, telephone number (214) 861-2500.
SELLING SHAREHOLDERS
This Prospectus covers the offer and resale of Shares issued to a
certain Shareholder pursuant to the Agreements. The table below sets forth
information concerning the Common Stock owned by the following Selling
Shareholder, who does not have, and within the past three years has not had, any
position, office or other material relationship with the Company or any of its
predecessors or affiliates, except as set forth below:
<TABLE>
<CAPTION>
COMMON STOCK AMOUNT AND PERCENTAGE
OWNERSHIP OF OFFERED FOR SELLING OF CLASS AFTER
NAME COMMON STOCK(1) SHAREHOLDERS OFFERING(2)
- ---- --------------- ------------ -----------
<S> <C> <C> <C>
Michael T. Maples 308,688 225,000 83,688
President and Chief Executive (1.2%)
Officer
Gary L. Corona 152,624 75,000 77,624
Director (1.1%)
</TABLE>
- ------------------
(1) Based on ownership as of May 28, 1999. Includes Shares to be acquired upon
exercise of Options granted under the Agreements, some of which may not be
exercisable within 60 days of the date of this Prospectus.
(2) Based on 6,893,530 shares of Common Stock outstanding on May 28, 1999.
Assumes the exercise of all Options granted under the Agreements, the exercise
of which are covered by this Prospectus, and the sale of the Shares acquired
thereby.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common
Stock hereby.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Shareholder, or
permitted transferees. The Shares may be disposed of from time to time in one or
more transactions through any one or more of the following: (i) to purchasers
directly, (ii) in ordinary brokerage transactions and transactions in which the
broker solicits purchasers, (iii) through underwriters or dealers who may
receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Shareholder or such permitted transferees or from
the purchasers of the Shares for whom they may act as agent, (iv) the writing of
options on the Shares, (v) the pledge of the Shares as security for any loan or
obligation, including
3
<PAGE> 5
pledges to brokers or dealers who may, from time to time, themselves effect
distributions of the Shares or interests therein, (vi) purchases by a broker or
dealer as principal and resale by such broker or dealer for its own account
pursuant to this Prospectus, (vii) a block trade in which the broker or dealer
so engaged will attempt to sell the Shares as agent but may position and resell
a portion of the block as principal to facilitate the transaction and (viii) an
exchange distribution in accordance with the rules of such exchange, including
the Nasdaq/NMS, or in transactions in the over the counter market. Such sales
may be made at prices and at terms then prevailing or at prices related to the
then current market price or at negotiated prices and terms. In effecting sales,
brokers or dealers may arrange for other brokers or dealers to participate. The
Selling Shareholder or such successors in interest, and any underwriters,
brokers, dealers or agents that participate in the distribution of the Shares,
may be deemed to be "underwriters" within the meaning of the Securities Act, and
any profit on the sale of the Shares by them and any discounts, commissions or
concessions received by any such underwriters, brokers, dealers or agents may be
deemed to be underwriting commissions or discounts under the Securities Act.
The Company will pay all expenses incident to the offering and sale of
the Shares to the public and all underwriting discounts or commissions, brokers'
fees and the fees and expenses of any counsel to the Selling Shareholder related
thereto.
In the event of a material change in the plan of distribution disclosed
in this Prospectus, the Selling Shareholder will not be able to effect
transactions in the Shares pursuant to this Prospectus until such time as a
post-effective amendment to the Registration Statement is filed with, and
declared effective by, the Commission.
LEGAL MATTERS
Certain legal matters in connection with the Common Stock offered
hereby have been passed upon for the Company by Jackson Walker L.L.P., 901 Main
Street, Suite 6000, Dallas, Texas 75202.
EXPERTS
The financial statements of Internet America, Inc. as of June 30, 1997
and 1998 and for each of the years then ended, incorporated in this prospectus
by reference from the Company's Registration Statement on Form SB-2 (No.
333-78615) and the financial statements of CompuNet, Inc. and CyberRamp, L.L.C.
as of December 31, 1997 and 1998 and for each of the years then ended,
incorporated by reference from the Company's Current Reports on Form 8-K/A dated
April 16, 1999 and May 5, 1999, respectively, have been audited by Deloitte &
Touche, LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
INDEMNIFICATION
The Articles of Incorporation of the Company provide that to the
fullest extent permitted by applicable law, a director of the Company will not
be liable to the Company or its shareholders for monetary damages for an act or
omission in the director's capacity as a director.
The Texas Business Corporation Act ("TBCA") permits the indemnification
of directors, employees, officers and agents to Texas corporations. The
Company's Articles and Bylaws provide that the Company shall indemnify any
person to the fullest extent permitted by law. Under the TBCA, an officer or
director may be indemnified if he acted in good faith and reasonably believed
that his conduct (i) was in the best interests of the Company if he acted in his
official capacity or (ii) was not opposed to the best interests of the Company
in all other cases. In addition, the indemnitee may not have reasonable cause to
believe that his conduct was unlawful in the case of a criminal proceeding. In
any case, the
4
<PAGE> 6
indemnitee may not have been found liable to the Company for improperly
receiving a personal benefit or for willful or intentional misconduct in the
performance of his duty to the Company. The Company (i) must indemnify an
officer or director for reasonable expenses if he is successful, (ii) may
indemnify an officer or director for such reasonable expenses unless he was
found liable for willful or intentional misconduct in the performance of his
duty to the Company and (iii) may advance reasonable defense expenses if the
officer or director undertakes to reimburse the Company if he is later found not
to satisfy the standard for indemnification expenses. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. This
provision in the Articles does not eliminate the duty of care, and in
appropriate circumstances equitable remedies such as an injunction or other
forms of nonmonetary relief would remain available under Texas law. This
provision also does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
5
<PAGE> 7
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and if given or
made, such information or representations must not be relied upon. This
Prospectus does not constitute an offer to sell or a solicitation to buy any
securities other than registered securities to which it relates, or an offer to
or a solicitation of any person in any jurisdiction where such offer or
solicitation would be unlawful. The delivery of this Prospectus at any time does
not imply that the information herein is correct as of any time subsequent to
its date.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information.............................2
Incorporation of Certain Documents
by Reference...................................2
Selling Shareholders..............................3
Use of Proceeds...................................3
Plan of Distribution..............................3
Legal Matters.....................................4
Experts...........................................4
Indemnification...................................4
</TABLE>
300,000 Shares
Common Stock
INTERNET AMERICA, INC.
June 9, 1999
6
<PAGE> 8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Commission by
Internet America, Inc. (the "Company"), are incorporated herein by reference and
made a part hereof:
(i) Prospectus dated June 7, 1999 and filed with the Commission
pursuant to Rule 424(b) on June 8, 1999 (the "424(b) Prospectus");
(ii) All other reports filed with the Commission pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the 424(b)
Prospectus; and
(iii) Description of the Common Stock contained in the Company's
Registration Statement on Form SB-2 (No. 333-78615) effective as of
June 7, 1999.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment that indicates
that all of the Common Stock offered hereunder has been sold or which
deregisters all of such Common Stock then remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE> 9
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation of the Company provide that to the
fullest extent permitted by applicable law, a director of the Company will not
be liable to the Company or its shareholders for monetary damages for an act or
omission in the director's capacity as a director.
The Texas Business Corporation Act ("TBCA") permits the indemnification
of directors, employees, officers and agents to Texas corporations. The
Company's Articles and Bylaws provide that the Company shall indemnify any
person to the fullest extent permitted by law. Under the TBCA, an officer or
director may be indemnified if he acted in good faith and reasonably believed
that his conduct (i) was in the best interests of the Company if he acted in his
official capacity or (ii) was not opposed to the best interests of the Company
in all other cases. In addition, the indemnitee may not have reasonable cause to
believe that his conduct was unlawful in the case of a criminal proceeding. In
any case, the indemnitee may not have been found liable to the Company for
improperly receiving a personal benefit or for willful or intentional misconduct
in the performance of his duty to the Company. The Company (i) must indemnify an
officer or director for reasonable expenses if he is successful, (ii) may
indemnify an officer or director for such reasonable expenses unless he was
found liable for willful or intentional misconduct in the performance of his
duty to the Company and (iii) may advance reasonable defense expenses if the
officer or director undertakes to reimburse the Company if he is later found not
to satisfy the standard for indemnification expenses. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. This
provision in the Articles does not eliminate the duty of care, and in
appropriate circumstances equitable remedies such as an injunction or other
forms of nonmonetary relief would remain available under Texas law. This
provision also does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- -------- ----------------------
<S> <C>
3.1 Internet America, Inc.'s Articles of Incorporation (1)
</TABLE>
II-2
<PAGE> 10
<TABLE>
<S> <C>
3.2 Internet America, Inc.'s Article of Amendment to Articles of Incorporation (1)
3.3 Internet America, Inc.'s Bylaws (1)
3.4 Internet America Inc.'s Amendment to Bylaws (1)
3.5 Application for Certificate of Withdrawal of Internet America, Inc.(1)
3.6 Articles of Merger merging Internet America, Inc., an Arizona corporation, with and into
INTRNTUSA, INC., a Texas corporation (1)
4.1 Specimen Common Stock certificate (1)
4.2 Certificate of Designation of the Series A Preferred Stock of Internet America, Inc.(1)
4.3 Amended Certificate of Designation of the Series A Preferred Stock of Internet America, Inc.(1)
4.4 Certificate of Designation of the Series B Preferred Stock of Internet America, Inc.(1)
5.1 Opinion of Jackson Walker L.L.P.*
23.1 Consent of Jackson Walker L.L.P. (included in its opinion filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP*
24 Power of Attorney (included in Part II hereof)
99.1 Non-Qualified Stock Option Agreement, dated as of October 27, 1996, by and between Internet
America, Inc. and Michael T. Maples.*
99.2 Non-Qualified Stock Option Agreement, dated as of March 24, 1998, by and between Internet
America, Inc. and Michael T. Maples.*
99.3 Option Settlement Agreement, dated as of May 20, 1999, by and between Internet America, Inc.
and Michael S. May.*
99.4 Option Settlement Agreement, dated as of May 20, 1999, by and between Internet America, Inc.
and Kami Doyle.*
99.5 Option Settlement Agreement, dated as of May 20, 1999, by and between Internet America, Inc.
and Keith Weinberger.*
99.6 Non-Qualified Stock Option Agreement, dated as of May 16, 1996, by and between Internet
America, Inc. and Michael S. May.*
</TABLE>
II-3
<PAGE> 11
<TABLE>
<S> <C>
99.7 Non-Qualified Stock Option Agreement, dated as of December 4, 1995, by and between Internet
America, Inc. and Kami Doyle.*
99.8 Non-Qualified Stock Option Agreement, dated as of April 5, 1996, by and between Internet
America, Inc. and Kami Doyle.*
99.9 Non-Qualified Stock Option Agreement, dated as of September 18, 1995, by and between Internet
America, Inc. and Keith Weinberger.*
99.10 Non-Qualified Stock Option Agreement, dated as of April 20, 1999, by and between Internet
America, Inc. and Gary L. Corona.*
</TABLE>
- -----------
* Filed herewith.
(1) Previously filed as an exhibit to the Company's Registration Statement
on Form SB-2 (file No. 333-59527) originally filed on July 21, 1998, as
amended, and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports
II-4
<PAGE> 12
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act
of 1934, as amended, that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act of 1934, as amended, that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-5
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas on the 4th day of June, 1999.
INTERNET AMERICA, INC.
By: /s/ James T. Chaney
-------------------------------------------
James T. Chaney, Vice President, Chief
Financial Officer, Secretary and Treasurer
(Principal Accounting and Financial Officer)
II-6
<PAGE> 14
POWER OF ATTORNEY
Each person whose signature appears below authorizes Michael T. Maples
and James T. Chaney, and each of them, each of whom may act without joinder of
the other, to execute in the name of each such person who is then an officer or
director of the Registrant, and to file any amendments to this Registration
Statement necessary or advisable to enable the Registrant to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Commission, in respect thereof, in connection with the registration of
the securities which are the subject of this Registration Statement, which
amendments may make such changes in such Registration Statement as such attorney
may deem appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Michael T. Maples Chief Executive Officer, June 4, 1999
- ------------------------------ President and Director
Michael T. Maples (Principal Executive Officer)
/s/ James T. Chaney Chief Financial Officer, Vice June 4, 1999
- ------------------------------ President, Secretary and Treasurer
James T. Chaney (Principal Financial and Accounting
Officer)
/s/ Douglas G. Sheldon Director June 4, 1999
- ------------------------------
Douglas G. Sheldon
/s/ Jack T. Smith Director June 4, 1999
- ------------------------------
Jack T. Smith
/s/ Gary L. Corona Director June 4, 1999
- ------------------------------
Gary L. Corona
</TABLE>
II-7
<PAGE> 15
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------- -----------
<S> <C>
3.1 Internet America, Inc.'s Articles of Incorporation (1)
3.2 Internet America, Inc.'s Article of Amendment to Articles of Incorporation (1)
3.3 Internet America, Inc.'s Bylaws (1)
3.4 Internet America Inc.'s Amendment to Bylaws (1)
3.5 Application for Certificate of Withdrawal of Internet America, Inc.(1)
3.6 Articles of Merger merging Internet America, Inc., an Arizona corporation, with and into
INTRNTUSA, INC., a Texas corporation (1)
4.1 Specimen Common Stock certificate (1)
4.2 Certificate of Designation of the Series A Preferred Stock of Internet America, Inc.(1)
4.3 Amended Certificate of Designation of the Series A Preferred Stock of Internet America, Inc.(1)
4.4 Certificate of Designation of the Series B Preferred Stock of Internet America, Inc.(1)
5.1 Opinion of Jackson Walker L.L.P.*
23.1 Consent of Jackson Walker L.L.P. (included in its opinion filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP*
24 Power of Attorney (included in Part II hereof)
99.1 Non-Qualified Stock Option Agreement, dated as of October 27, 1996, by and between Internet
America, Inc. and Michael T. Maples.*
99.2 Non-Qualified Stock Option Agreement, dated as of March 24, 1998, by and between Internet
America, Inc. and Michael T. Maples.*
99.3 Option Settlement Agreement, dated as of May 20, 1999, by and between Internet America, Inc.
and Michael S. May.*
99.4 Option Settlement Agreement, dated as of May 20, 1999, by and between Internet America, Inc.
and Kami Doyle.*
</TABLE>
<PAGE> 16
<TABLE>
<S> <C>
99.5 Option Settlement Agreement, dated as of May 20, 1999, by and between Internet America, Inc.
and Keith Weinberger.*
99.6 Non-Qualified Stock Option Agreement, dated as of May 16, 1996, by and between Internet
America, Inc. and Michael S. May.*
99.7 Non-Qualified Stock Option Agreement, dated as of December 4, 1995, by and between Internet
America, Inc. and Kami Doyle.*
99.8 Non-Qualified Stock Option Agreement, dated as of April 5, 1996, by and between Internet
America, Inc. and Kami Doyle.*
99.9 Non-Qualified Stock Option Agreement, dated as of September 18, 1995, by and between Internet
America, Inc. and Keith Weinberger.*
99.10 Non-Qualified Stock Option Agreement, dated as of April 20, 1999 by and between Internet
America, Inc. and Gary L. Corona.*
</TABLE>
- --------------
* Filed herewith.
(1) Previously filed as an exhibit to the Company's Registration Statement
on Form SB-2 (file No. 333-59527) originally filed on July 21, 1998,
as amended, and incorporated herein by reference.
<PAGE> 1
EXHIBIT 5.1
June 4, 1999
Internet America, Inc.
One Dallas Centre
350 N. St. Paul, Suite 3000
Dallas, Texas 75201
Re: Registration Statement on Form S-8 of Internet America, Inc.
Gentlemen:
We are acting as counsel for Internet America, Inc., a Texas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), and the offering and sale of up
to 447,750 shares of the Company's Common Stock, par value $0.01 per share (the
"Shares"), which Shares are issuable upon the exercise of options granted
pursuant to the provisions of the various Option Settlement Agreements and
Non-Qualified Stock Option Agreements by and between the Company, on the one
hand, and Michael T. Maples, Gary L. Corona, Michael S. May, Kami Doyle and
Keith Weinberger, respectively, on the other (collectively, the "Agreements"),
which Agreements are filed as exhibits to a Registration Statement on Form S-8
covering the offering and sale of the Shares (the "Registration Statement") that
is expected to be filed with the Securities and Exchange Commission on or about
the date hereof.
In reaching the conclusions expressed in this opinion, we have examined
and relied upon the originals or certified copies of all documents, certificates
and instruments as we have deemed necessary to the opinions expressed herein,
including the Articles of Incorporation, as amended, and the Bylaws of the
Company and copies of the Agreements. In making the foregoing examinations, we
have assumed the genuineness of all signatures on original documents, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all copies submitted to us.
Based solely upon the foregoing, subject to the comments hereinafter
stated, and limited in all respects to the laws of the State of Texas and the
federal laws of the United States of America, it is our opinion that the Shares
have been duly authorized and, when issued and delivered, against receipt by the
Company of the agreed consideration therefore, will be validly issued, fully
paid and nonassessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Jackson Walker L.L.P.
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Internet America, Inc. on Form S-8 of our report dated May 14, 1999, appearing
in the Registration Statement on Form SB-2 of Internet America, Inc. (No.
333-78615), to the incorporation by reference of our report dated April 14,
1999, appearing in the Current Report on Form 8-K/A dated April 16, 1999, and to
the incorporation by reference of our report dated April 30, 1999, appearing in
the Current Report on Form 8-K/A dated May 5, 1999.
We also consent to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Dallas, Texas
June 7, 1999
<PAGE> 1
EXHIBIT 99.1
NON-QUALIFIED STOCK OPTION AGREEMENT
Agreement made effective as of the 27th day of October, 1996 by and between
INTERNET AMERICA, INC. (the "Company") and MIKE MAPLES (the "Optionee").
1. Definitions. For purposes of this Agreement:
a. "Board" means the Board of Directors of the Company.
b. "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a
change in value) in the Shares or exchange of Shares for a different
number or kind of Shares or other securities of the Company, by reason
of a reclassification, recapitalization, merger, consolidation,
reorganization, stock dividend, stock split or reverse stock split,
combination or exchange of shares or other similar events.
c. "Change in Control" shall be deemed to have occurred when the
first of the following events occurs:
(i) when the Company acquires actual knowledge that any
person or group (as such terms are used in Sections
13(d) and 14(d)(2) of the Exchange Act), other than an
employee benefit plan established or maintained by the
Company or any of its subsidiaries or the current
largest stockholder, is or becomes the beneficial owner
(as defined under rule 13d-3 of the Exchange Act)
directly or indirectly, or securities of the Company
representing 30 percent or more of the combined voting
power of the Company's directors;
(ii) upon the approval by the Company's stockholders of (A) a
merger or consolidation of the Company with or into
another Corporation (other than a merger or
consolidation in which the Company is the surviving
corporation and which does not result in any capital
reorganization or reclassification or other change in
the Company's the outstanding shares of common stock),
(B) a sale of disposition of all or substantially all of
the Company's assets of (C) a plan of liquidation of
dissolution of the Company; or
(iii) if, at any time, two-thirds of the members of the Board
are not "Continuing Directors". For this purpose
"Continuing Directors" shall mean the members of the
Board of Directors as of September 30, 1995, and any
individual who becomes a member of the Board thereafter
if his or her election or nomination for election as a
director was approved by a vote of at least two-third of
the Continuing Directors then in office.
<PAGE> 2
d. "Code" means the Internal Revenue Code of 1986, as amended.
e. "Company" means Internet America, Inc., a Texas corporation.
f. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
g. "Fair Market Value" on any date means the closing price of
Shares on such date on the principal national securities exchange on
which Shares are listed or admitted to trading, the arithmetic mean of
the per Share closing bid priced and per Share closing asked price on
such date as quoted on the National Association of Securities Dealers
Automated Quotation System or such then market in which such prices are
regularly quoted, or, if there have been no published bid or asked
quotations with respect to Shares on such date, the Fair Market Value
shall be the value established by the Board in good faith and in
accordance with Section 422 of the Code.
h. "Shares" means the common stock, par value $.01 per share, of
the Company.
2. Grant of Option. The Company hereby grants to the Optionee, for valuable
consideration, receipt of which is hereby acknowledged, a Non-Qualified Stock
Option ("Option") to purchase from the Company an aggregate of 30,000 Shares at
a purchase price (the "Option Price") of $7.50 per share.
3. Exercise Period. The Option shall become non-forfeitable according to
the following schedule and shall hereafter be exercisable in whole or in part:
(i) First Installment: 15,000 immediately upon grant; and
(ii) Second Installment: 15,000 on October 27, 1997.
The Option may be exercised only with respect to full Shares and may
not be exercised after the close of business on the day (the "Termination Date")
preceding the tenth anniversary of the date hereof. The Option shall have no
effect after the Termination Date.
4. Exercise of an Option. The exercise of an Option shall be made only by a
written notice delivered in person or by mail to the Secretary of the Company at
the Company's principal executive office, specifying the number of Shares to be
purchased and accompanied by payment therefor. The purchase price for any Shares
purchased pursuant to the exercise of an Option shall be paid in full upon such
exercise by delivery of cash or personal check in amount of purchase price. The
written notice may provide instructions from the Optionee to the Company that
upon receipt of the purchase price in cash from the Optionee's broker or dealer,
designated as such on the written notice, in payment for any Shares purchased
pursuant to the exercise of an Option, the Company shall issue such Shares
directly to the broker or dealer. If requested by the Board, the Optionee shall
deliver this Agreement to the Secretary of the Company who shall endorse thereon
a notation of such exercise and return such Agreement to the Optionee. No
fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an
Option and the number of
<PAGE> 3
Shares that may be purchased upon exercise shall be rounded to the nearest
number of whole Shares.
5. Rights of Optionee. The Optionee shall not be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (i) the Option
shall have been exercised pursuant to the terms thereof, (ii) the Company shall
have issued and delivered the Shares to the Optionee and (iii) the Optionee's
name shall have been entered as a stockholder of record on the books of the
Company. Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such Shares.
6. Adjustment Upon Changes in Capitalization.
a. Subject to Section 7, in the event of a Change in
Capitalization, the number and class of Shares or other stock or
securities which are subject to the Option, and the purchase price
therefor, if applicable, shall be appropriately and equitably adjusted.
b. If, by reason of a Change in Capitalization, the Optionee shall
be entitled to exercise an Option with respect to new, additional or
different shares of stock or securities, such new, additional or
different shares shall thereupon be subject to all of the conditions
which were applicable to the Shares subject to the Option, as the case
may be, prior to such Change in Capitalization.
7. Effect of Certain Transactions. In the event of (i) the liquidation or
dissolution of the Company or (ii) a merger or consolidation of the Company (a
"Transaction"), the Option issued hereunder shall continue in effect in
accordance with its terms and the Optionee shall be entitled to receive in
respect of each Share subject to any outstanding Option, upon exercise of any
Option, the same number and kind of stock, securities, cash, property, or other
consideration that each holder of a Share was entitled to receive in the
Transaction in respect of a Share. In the event that, after a Transaction, there
occurs any Change in Capitalization with respect to the shares of a surviving or
resulting corporation, then adjustments similar to, and subject to the same
conditions as, those in Section 6 hereof shall be made by the Board.
8. Effect of Change in Control. Notwithstanding anything contained in the
Plan or an Agreement to the contrary, in the event of a Change in Control, all
Options outstanding on the date of such Change in Control shall become
immediately and fully exercisable.
9. Effect of Certain Transactions.
a. Notwithstanding anything to the contrary or in the Agreement,
the Optionee shall forfeit 100% of the Options granted pursuant to this
Agreement, whether or not vested, if the Optionee breaches the
provisions of subsections (b) or (d) of this Section 9.
b. During the period that the Optionee is employed by the Company
or any affiliate of the Company (the "Service Term") and for a period
of one year thereafter,
<PAGE> 4
the Optionee shall not, in the continental United States, directly or
indirectly, own, manage, operate, join, control, be employed by, or
participate in the ownership, management, operation or control of or be
connected in any manner, including but not limited to holding the
positions of shareholder, director, officer, consultant, independent
contractor, employee, partner, or investor, with any Competing
Enterprise. For purposes of this Section, the term "Competing
Enterprise" shall mean any person, corporation, partnership or other
entity engaged in the operation of an internet service provider. The
prohibition of this Section 9 shall not be deemed to prevent Optionee
from owning 2% or less of any class of equity securities registered
under Section 12 of the Exchange Act. During the Service Term and for a
period of one year thereafter, the Optionee shall not interfere with
the Company's relationship with, or endeavor to entice away from the
Company, any person who at any time during the Service Term was an
employee or customer of the Company or otherwise had a material
business relationship with the Company.
c. The necessity for protection of the Company and its affiliates
against the Optionee's competition, as well as the nature and scope of
such protection, has been carefully considered by the parties hereto in
light of the uniqueness of the Optionee's talent and his importance to
the Company. Accordingly, the Optionee agrees that, in addition to any
other relief to which the Company may be entitled, the Company shall be
entitled to seek and obtain injunctive relief (without the requirement
of any bond) from a court of competent jurisdiction for the purpose of
restraining the Optionee from any actual or threatened breach of the
covenant contained in this Section 9. If for any reason a final
decision of any court determines that the restrictions under this
Section 9 are not reasonable or that consideration therefor is
inadequate, such restrictions shall be interpreted, modified or
rewritten by such court to include as much of the duration, scope and
geographic area identified in this Section 9 as will render such
restrictions valid and enforceable.
d. The Optionee shall not intentionally disclose or reveal to an
unauthorized person, during the Service Term or for a two year period
thereafter, any information relating to the confidential affairs of the
company or any of its affiliates, including but not limited to
technical information, business and marketing plans, strategies,
customer information, other information concerning the Company's
products, promotions, development, financing, expansion plans, business
policies and practices, and other forms of information considered by
the Company to be confidential and in the nature of trade secrets. The
Optionee shall hold as property of the Company and its affiliates all
memoranda, books, papers, letters and other data, and all copies
thereof or therefrom, which are in any way substantially related to the
business of the company or its affiliates, whether made by him or
otherwise coming into his possession and, on a prior written demand of
the Company made within two years after the end of the Service Term,
shall deliver the same to the company.
<PAGE> 5
10. General Rules
a. The obligation of the Company to sell or deliver Shares with
respect to the Options granted shall be subject to all applicable laws,
rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by
governmental agencies as may be deemed necessary or appropriate by the
Board.
b. The Company shall have the right to deduct from any
distribution of cash to Optionee, an amount equal to the federal, state
and local income taxes and other amounts as may be required by law to
be withheld (the "Withholding Taxes") with respect to any Option. If
Optionee is entitled to receive Shares upon exercise of an Option, the
Optionee shall pay the Withholding Taxes to the Company prior to the
issuance, or release from escrow, of such Shares. In satisfaction of
the Withholding Taxes to the Company, the Optionee may make a written
election (the "Tax Election"), which may be accepted or rejected in the
discretion of the Board, to have withheld a portion of the Shares
issuable to him or her upon exercise of the Option having an aggregate
Fair Market Value, on the date preceding the date of exercise, equal to
the Withholding Taxes, provided that in respect of an Optionee who may
be subject to liability under Section 16(b) of the Exchange Act either
(i)(A) the Optionee makes the Tax Election at least six (6) months
after the date the Option was granted, (B) the Option is exercised
during the ten day period beginning on the third business day and
ending on the twelfth business day following the release for
publication of the Company's quarterly or annual statements of earnings
(a "Window Period") and (C) the Tax Election is made during the Window
Period in which the Option is exercised prior to such Window Period and
subsequent to the immediately preceding Window Period or (ii)(A) the
Tax Election is made at least six (6) months prior to the date the
Option is exercised prior to the expiration of six (6) months following
an election to revoke the Tax Election. Notwithstanding the foregoing,
the Board may, by the adoption or rules or otherwise, (i) modify the
provisions in the preceding sentence or impose such other restrictions
or limitations on Tax Elections as may be necessary to ensure that the
Tax Elections will be exempt transactions under Section 16(b) of the
Exchange Act, an (ii) permit Tax Elections to be made at such other
times and subject to such other conditions as the Board determines will
constitute exempt transactions under Section 16b of the Exchange Act.
c. If Optionee makes a disposition, within the meaning of Section
424(c)of the Code and regulations promulgated thereunder, of any Share
or Shares issued to such Optionee pursuant to the exercise of an Option
within the two-year period commencing on the day after the date of the
grant or within the one-year period commencing on the day after the
date of transfer of such Share or Shares to the Optionee pursuant to
such exercise, the Optionee shall, within ten (10) days of such
disposition, notify the Company thereof, by delivery of written notice
to the Company at its principal executive office, and immediately
deliver to the Company the amount of Withholding Taxes.
d. No Option granted hereunder shall be transferable by the
Optionee to whom granted otherwise than by will or the laws of descent
and distribution, and an Option
<PAGE> 6
may be exercised during the lifetime of such Optionee only by the
Optionee or his or her guardian or legal representative. The terms of
such an Option shall be final, binding and conclusive upon the
beneficiaries, executors, administrators, heirs and successors of the
Optionee.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and the Optionee has hereunto set his hand, as of the day and year first above
written.
INTERNET AMERICA, INC.
/s/ ROBERT J. MAYNARD, JR.
--------------------------------------
Robert J. Maynard, Jr.
Chief Executive Officer
OPTIONEE
/s/ MIKE MAPLES
--------------------------------------
<PAGE> 1
EXHIBIT 99.2
NON-QUALIFIED STOCK OPTION AGREEMENT
Agreement made effective as of the 24th day of March, 1998 by and between
INTERNET AMERICA, INC. (the "Company") and MICHAEL T. MAPLES (the "Optionee").
1. Definitions. For purposes of this Agreement:
a. "Board" means the Board of Directors of the Company.
b. "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a
change in value) in the Shares or exchange of Shares for a different
number or kind of Shares or other securities of the Company, by reason
of a reclassification, recapitalization, merger, consolidation,
reorganization, stock dividend, stock split or reverse stock split,
combination or exchange of shares or other similar events.
c. "Change in Control" shall be deemed to have occurred when the
first of the following events occurs:
(i) when the Company acquires actual knowledge that any
person or group (as such terms are used in Sections
13(d) and 14(d)(2) of the Exchange Act), other than an
employee benefit plan established or maintained by the
Company or any of its subsidiaries or the current
largest stockholder, is or becomes the beneficial owner
(as defined under rule 13d-3 of the Exchange Act)
directly or indirectly, or securities of the Company
representing 30 percent or more of the combined voting
power of the Company's directors;
(ii) upon the approval by the Company's stockholders of (A)
a merger or consolidation of the Company with or into
another Corporation (other than a merger or
consolidation in which the Company is the surviving
corporation and which does not result in any capital
reorganization or reclassification or other change in
the Company's the outstanding shares of common stock),
(B) a sale of disposition of all or substantially all
of the Company's assets of (C) a plan of liquidation of
dissolution of the Company; or
(iii) if, at any time, two-thirds of the members of the
Board are not "Continuing Directors". For this purpose
"Continuing Directors" shall mean the members of the
Board of Directors as of September 30, 1995, and any
individual who becomes a member of the Board thereafter
if his or her election or nomination for election as a
director was approved by a vote of at least two-third
of the Continuing Directors then in office.
<PAGE> 2
d. "Code" means the Internal Revenue Code of 1986, as amended.
e. "Company" means Internet America, Inc., a Texas corporation.
f. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
g. "Fair Market Value" on any date means the closing price of
Shares on such date on the principal national securities exchange on
which Shares are listed or admitted to trading, the arithmetic mean of
the per Share closing bid priced and per Share closing asked price on
such date as quoted on the National Association of Securities Dealers
Automated Quotation System or such then market in which such prices
are regularly quoted, or, if there have been no published bid or asked
quotations with respect to Shares on such date, the Fair Market Value
shall be the value established by the Board in good faith and in
accordance with Section 422 of the Code.
h. "Shares" means the common stock, par value $.01 per share, of
the Company.
2. Grant of Option. The Company hereby grants to the Optionee, for
valuable consideration, receipt of which is hereby acknowledged, a Non-Qualified
Stock Option ("Option") to purchase from the Company an aggregate of 70,000
Shares at a purchase price (the "Option Price") of $3.75 per share.
3. Exercise Period. The Option shall become non-forfeitable according to
the following schedule and shall hereafter be exercisable in whole or in part:
(i) First Installment: 17,500 on March 24, 1999
(ii) Second Installment: 17,500 on March 24, 2000
(iii) Third Installment: 17,500 on March 24, 2001
(iv) Fourth Installment: 17,500 on March 24, 2002.
The Option may be exercised only with respect to full Shares and may not be
exercised after the close of business on the day (the "Termination Date")
preceding the tenth anniversary of the date hereof. The Option shall have no
effect after the Termination Date.
4. Exercise of an Option. The exercise of an Option shall be made only by
a written notice delivered in person or by mail to the Secretary of the Company
at the Company's principal executive office, specifying the number of Shares to
be purchased and accompanied by payment therefor. The purchase price for any
Shares purchased pursuant to the exercise of an Option shall be paid in full
upon such exercise by delivery of cash or personal check in amount of purchase
price. The written notice may provide instructions from the Optionee to the
Company that upon receipt of the purchase price in cash from the Optionee's
broker or dealer, designated as such on the written notice, in payment for any
Shares purchased pursuant to the exercise of an Option, the Company shall issue
such Shares directly to the broker or dealer. If requested by the Board, the
Optionee shall deliver this Agreement to the Secretary of the Company who shall
endorse thereon a notation of such exercise and return such Agreement to the
Optionee. No fractional
<PAGE> 3
Shares (or cash in lieu thereof) shall be issued upon exercise of an Option and
the number of Shares that may be purchased upon exercise shall be rounded to the
nearest number of whole Shares.
5. Rights of Optionee. The Optionee shall not be deemed for any purpose
to be the owner of any Shares subject to any Option unless and until (i) the
Option shall have been exercised pursuant to the terms thereof, (ii) the Company
shall have issued and delivered the Shares to the Optionee and (iii) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company. Thereupon, the Optionee shall have full voting, dividend and
other ownership rights with respect to such Shares.
6. Adjustment Upon Changes in Capitalization.
a. Subject to Section 7, in the event of a Change in
Capitalization, the number and class of Shares or other stock or
securities which are subject to the Option, and the purchase price
therefor, if applicable, shall be appropriately and equitably
adjusted.
b. If, by reason of a Change in Capitalization, the Optionee
shall be entitled to exercise an Option with respect to new,
additional or different shares of stock or securities, such new,
additional or different shares shall thereupon be subject to all of
the conditions which were applicable to the Shares subject to the
Option, as the case may be, prior to such Change in Capitalization.
7. Effect of Certain Transactions. In the event of (i) the liquidation or
dissolution of the Company or (ii) a merger or consolidation of the Company (a
"Transaction"), the Option issued hereunder shall continue in effect in
accordance with its terms and the Optionee shall be entitled to receive in
respect of each Share subject to any outstanding Option, upon exercise of any
Option, the same number and kind of stock, securities, cash, property, or other
consideration that each holder of a Share was entitled to receive in the
Transaction in respect of a Share. In the event that, after a Transaction, there
occurs any Change in Capitalization with respect to the shares of a surviving or
resulting corporation, then adjustments similar to, and subject to the same
conditions as, those in Section 6 hereof shall be made by the Board.
8. Effect of Change in Control. Notwithstanding anything contained in the
Plan or an Agreement to the contrary, in the event of a Change in Control, all
Options outstanding on the date of such Change in Control shall become
immediately and fully exercisable.
9. Effect of Certain Transactions.
a. Notwithstanding anything to the contrary or in the Agreement,
the Optionee shall forfeit 100% of the Options granted pursuant to
this Agreement, whether or not vested, if the Optionee breaches the
provisions of subsections (b) or (d) of this Section 9.
<PAGE> 4
b. During the period that the Optionee is employed by the Company
or any affiliate of the Company (the "Service Term") and for a period
of one year thereafter, the Optionee shall not, in the continental
United States, directly or indirectly, own, manage, operate, join,
control, be employed by, or participate in the ownership, management,
operation or control of or be connected in any manner, including but
not limited to holding the positions of shareholder, director,
officer, consultant, independent contractor, employee, partner, or
investor, with any Competing Enterprise. For purposes of this Section,
the term "Competing Enterprise" shall mean any person, corporation,
partnership or other entity engaged in the operation of an internet
service provider. The prohibition of this Section 9 shall not be
deemed to prevent Optionee from owning 2% or less of any class of
equity securities registered under Section 12 of the Exchange Act.
During the Service Term and for a period of one year thereafter, the
Optionee shall not interfere with the Company's relationship with, or
endeavor to entice away from the Company, any person who at any time
during the Service Term was an employee or customer of the Company or
otherwise had a material business relationship with the Company.
c. The necessity for protection of the Company and its affiliates
against the Optionee's competition, as well as the nature and scope of
such protection, has been carefully considered by the parties hereto
in light of the uniqueness of the Optionee's talent and his importance
to the Company. Accordingly, the Optionee agrees that, in addition to
any other relief to which the Company may be entitled, the Company
shall be entitled to seek and obtain injunctive relief (without the
requirement of any bond) from a court of competent jurisdiction for
the purpose of restraining the Optionee from any actual or threatened
breach of the covenant contained in this Section 9. If for any reason
a final decision of any court determines that the restrictions under
this Section 9 are not reasonable or that consideration therefor is
inadequate, such restrictions shall be interpreted, modified or
rewritten by such court to include as much of the duration, scope and
geographic area identified in this Section 9 as will render such
restrictions valid and enforceable.
d. The Optionee shall not intentionally disclose or reveal to an
unauthorized person, during the Service Term or for a two year period
thereafter, any information relating to the confidential affairs of
the company or any of its affiliates, including but not limited to
technical information, business and marketing plans, strategies,
customer information, other information concerning the Company's
products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information
considered by the Company to be confidential and in the nature of
trade secrets. The Optionee shall hold as property of the Company and
its affiliates all memoranda, books, papers, letters and other data,
and all copies thereof or therefrom, which are in any way
substantially related to the business of the company or its
affiliates, whether made by him or otherwise coming into his
possession and, on a prior written demand of the Company made within
two years after the end of the Service Term, shall deliver the same to
the company.
<PAGE> 5
10. General Rules
a. The obligation of the Company to sell or deliver Shares with
respect to the Options granted shall be subject to all applicable
laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by
governmental agencies as may be deemed necessary or appropriate by the
Board.
b. The Company shall have the right to deduct from any
distribution of cash to Optionee, an amount equal to the federal,
state and local income taxes and other amounts as may be required by
law to be withheld (the "Withholding Taxes") with respect to any
Option. If Optionee is entitled to receive Shares upon exercise of an
Option, the Optionee shall pay the Withholding Taxes to the Company
prior to the issuance, or release from escrow, of such Shares. In
satisfaction of the Withholding Taxes to the Company, the Optionee may
make a written election (the "Tax Election"), which may be accepted or
rejected in the discretion of the Board, to have withheld a portion of
the Shares issuable to him or her upon exercise of the Option having
an aggregate Fair Market Value, on the date preceding the date of
exercise, equal to the Withholding Taxes, provided that in respect of
an Optionee who may be subject to liability under Section 16(b) of the
Exchange Act either (i)(A) the Optionee makes the Tax Election at
least six (6) months after the date the Option was granted, (B) the
Option is exercised during the ten day period beginning on the third
business day and ending on the twelfth business day following the
release for publication of the Company's quarterly or annual
statements of earnings (a "Window Period") and (C) the Tax Election is
made during the Window Period in which the Option is exercised prior
to such Window Period and subsequent to the immediately preceding
Window Period or (ii)(A) the Tax Election is made at least six (6)
months prior to the date the Option is exercised prior to the
expiration of six (6) months following an election to revoke the Tax
Election. Notwithstanding the foregoing, the Board may, by the
adoption or rules or otherwise, (i) modify the provisions in the
preceding sentence or impose such other restrictions or limitations on
Tax Elections as may be necessary to ensure that the Tax Elections
will be exempt transactions under Section 16(b) of the Exchange Act,
an (ii) permit Tax Elections to be made at such other times and
subject to such other conditions as the Board determines will
constitute exempt transactions under Section 16b of the Exchange Act.
c. If Optionee makes a disposition, within the meaning of Section
424(c)of the Code and regulations promulgated thereunder, of any Share
or Shares issued to such Optionee pursuant to the exercise of an
Option within the two-year period commencing on the day after the date
of the grant or within the one-year period commencing on the day after
the date of transfer of such Share or Shares to the Optionee pursuant
to such exercise, the Optionee shall, within ten (10) days of such
disposition, notify the Company thereof, by delivery of written notice
to the Company at its principal executive office, and immediately
deliver to the Company the amount of Withholding Taxes.
<PAGE> 6
d. No Option granted hereunder shall be transferable by the
Optionee to whom granted otherwise than by will or the laws of descent
and distribution, and an Option may be exercised during the lifetime
of such Optionee only by the Optionee or his or her guardian or legal
representative. The terms of such an Option shall be final, binding
and conclusive upon the beneficiaries, executors, administrators,
heirs and successors of the Optionee.
e. Termination of Employment or Service. Unless otherwise
provided in the Agreement evidencing the Option, an option shall
terminate on or following an Optionee's termination of employment with
the Company and its Subsidiaries or service as a director of the
Company and its Subsidiaries as follows:
(i) If an Optionee's employment terminates for any reason
other than death, Disability or Cause, the Optionee may
at any time within three (3) months after his or her
termination of employment or service as a director,
exercise an option to the extent, and only to the
extent, that the Option or portion thereof was
exercisable at the date of such termination;
(ii) In the event the Optionee's employment or service as a
director terminates as a result of Disability, the
Optionee may at any time within one (1) year after such
termination exercise such Option to the extent, and
only to the extent, the Option or portion thereof was
exercisable at the date of such termination;
(iii) If an Optionee's employment or service as a director
terminates for Cause, the Option shall terminate
immediately and no rights thereunder may be exercised;
(iv) If an Optionee dies while an employee of the Company or
any Subsidiary or within three(3) months after
termination as described in clause (1) of this Section
10(e), the Option may be exercised any time within one
(1) year after the Optionee's death by the person or
persons to whom such rights under the Option pass by
will or by the laws of descent and distribution;
provided, however, that an option may be exercised to
the extent, and only to the extent, that the Option or
portion thereof was exercisable on the date of death or
earlier termination.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and the Optionee has hereunto set his hand, as of the day and year first above
written.
INTERNET AMERICA, INC.
/s/ ROBERT J. MAYNARD, JR.
-----------------------------
Robert J. Maynard, Jr.
Chief Executive Officer
OPTIONEE
/s/ MICHAEL T. MAPLES
-----------------------------
<PAGE> 1
EXHIBIT 99.3
May
OPTION SETTLEMENT AGREEMENT
This Option Settlement Agreement (this "Agreement") is made and entered
into as of the 20th day of May, 1999, by and between Michael S. May ("Claimant")
and Internet America, Inc., a Texas corporation (the "Company").
W I T N E S S E T H :
WHEREAS, disputes and controversies have arisen between Claimant and
the Company concerning, among other things, certain options and other rights
which Claimant and other former employees (the "Former Employees") of the
Company claim were granted and remain in effect (the "Former Options"); and
WHEREAS, in order to settle all disputes and controversies between
Claimant and the Company and to avoid the expense and uncertainty of litigation,
the Company is agreeable not to contest certain of the Former Options and to
register certain shares of common stock, par value $0.01 per share, of the
Company underlying the Former Options (the "Underlying Stock"), subject to the
terms and conditions of this Agreement and other agreements to be entered into
by certain other Former Claimants.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree to
settle their disputes on the following terms:
1. Agreement Regarding Former Options. Claimant represents and warrants
to the Company that Claimant is the legal and beneficial owner of any rights
relating to the option listed on Schedule I attached hereto ("Claimant's Former
Option"); and that beyond such rights Claimant has and will assert no other
rights or claims, directly or indirectly, oral or written, to acquire any
capital stock of the Company or any other security of the Company or to have any
of such securities owned or held by Claimant registered under the Securities Act
of 1933, as amended (the "Securities Act"). The parties hereby agree that the
rights of Claimant under the Claimant's Former Option are hereby modified,
amended and changed to provide that Claimant may exercise the Claimant's Former
Options to purchase only an aggregate of 80,000 shares of Common Stock (the
"Exercisable Portion of the Option"), which purchase must be during the exercise
period and at the exercise price of $1.67 per share. The parties expressly agree
that the only portion of the Claimant's Former Option that may be exercised is
the Exercisable Portion of the Option, and that any excess portion is forever
and completely terminated, canceled and rescinded. Claimant agrees to indemnify
and hold harmless the Company for any claim asserted by or through Claimant
under Claimant's Former Option, other than the Exercisable Portion of the
Option.
2. Registration of Underlying Stock. The Company hereby agrees to use
its best efforts to cause the registration under the Securities Act on Form S-8
or other appropriate form (the "Registration Statement"), the Common Stock
underlying the Exercisable Portion of the Option
<PAGE> 2
("Claimant's Underlying Stock") as soon as possible after the date hereof.
Claimant agrees to provide all such information as may be necessary to assist
the Company in such efforts. Claimant and the Company agree that Claimant may
sell Claimant's Underlying Stock under the Registration Statement according to
the following schedule:
<TABLE>
<CAPTION>
Shares eligible
Date for sale (cumulative)
---- ---------------------
<S> <C>
On or prior to July 1, 1999 20,000
After July 1, 1999, but
prior to August 1, 1999 40,000
After August 1, 1999, but prior
to September 1, 1999 60,000
After September 1, 1999 80,000
</TABLE>
Claimant agrees that the Company may place a restrictive legend on the
certificates representing Claimant's Underlying Stock to the foregoing effect
and may issue stop orders to its transfer agent with respect thereto. The
parties agree that if the Registration Statement has not become effective by
June 15, 1999, except by reason of Claimant's failure to comply with the
provisions of this Section 2, then this Agreement shall become null and void and
of no further force or effect.
3. Claimant Release. Claimant, on his own behalf and on behalf of his
attorneys, agents, successors, heirs, legal representatives and assigns
(collectively, the "Releasors") agrees to release and does hereby release,
acquit and forever discharge the Company and its officers, directors, agents,
employees and attorneys and the respective successors, heirs, legal
representatives and assigns of each of the foregoing (collectively, the
"Releasees") from, and extinguishes, any and all claims, demands, debts,
damages, costs, losses, expenses, commissions, actions, causes of action,
rights, liabilities, obligations and chooses in action of whatever nature or
type which any of the Releasors have, or may have, or which have been, or could
have been, or in the future otherwise might have been asserted, known and
unknown, in connection with actions or inactions of the Releasees or otherwise,
or any of them, occurring on or prior to the date hereof (collectively, the
"Claims"), except that in no event shall this paragraph operate to release from
any claims or liability resulting from a breach of the representations,
warranties, covenants and agreements of the Company contained in this Agreement.
Claimant further agrees that he will not sue any of the Releasees by asserting
in any way the rights, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, lawsuits, damages, liabilities and causes of action
released by this Agreement.
4. Company Release. The Company, on its own behalf and on behalf of its
officers, directors, attorneys, agents, successors and assigns (collectively,
the "Company Releasors") agrees to release and does hereby release, acquit and
forever discharge Claimant and his agents and attorneys and the respective
successors, heirs, legal representatives and assigns of each of the foregoing
(collectively, the "Company Releasees") from, and extinguishes, any and all
claims, demands, debts, damages, costs, losses, expenses, commissions, actions,
causes of action, rights, liabilities, obligations and chooses in action of
whatever nature or type which any of the Company Releasors have, or may have, or
which have been, or could have been, or in the future otherwise might have been
asserted, known and unknown, in connection with actions or inactions of the
-2-
<PAGE> 3
Company Releasees or otherwise, or any of them, occurring on or prior to the
date hereof (collectively, the "Company Claims"), except that in no event shall
this paragraph operate to release from any claims or liability resulting from a
breach of the representations, warranties, covenants and agreements of Claimant
contained in this Agreement. The Company further agrees that it will not sue any
of the Company Releasees, by asserting in any way the rights, claims, actions,
accounts, demands, contracts, debts, controversies, agreements, lawsuits,
damages, liabilities and causes of action released by this Agreement.
5. Representations and Warranties of Claimant. Claimant hereby
represents and warrants that the following are true and correct as of the date
hereof: (a) Claimant has the power and authority to execute, deliver and perform
his obligations under this Agreement, and this Agreement constitutes the valid
and binding obligation of Claimant enforceable against him in accordance with
the terms hereof; (b) none of the Releasors have assigned, sold, conveyed or
otherwise transferred all or any portion of the Claims; and (c) Claimant has
consulted or has had sufficient opportunity to discuss with any person,
including an attorney of his choice, all provisions of this Agreement, that he
has carefully read and fully understands all the provisions of this Agreement,
that he is competent to execute this Agreement, and that he is voluntarily
entering into this Agreement of his own free will and accord, without reliance
upon any statement or representation of any person or parties released, or their
representatives, concerning the nature and extent of the damages and/or legal
liability therefor.
6. Representations and Warranties of the Company. The Company hereby
represents and warrants that the following are true and correct as of the date
hereof: (a) the Company is a corporation validly existing and in good standing
under the laws of the State of Texas; and (b) the Company has the corporate
power and authority to execute, deliver and perform its obligations under this
Agreement, and the execution, delivery and performance by it of this Agreement
has been duly authorized by all necessary action, and this Agreement constitutes
the valid and binding obligation of the Company, enforceable against it in
accordance with the terms hereof.
7. Amendment and Assignment. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by the parties hereto.
This Agreement shall extend to and be binding upon each of the parties and their
respective heirs, successors, assigns, legal representatives and any corporation
or other entity into or with which any party hereto may merge or consolidate.
Notwithstanding the above, neither this Agreement nor any right created hereby
shall be assignable to any party hereto.
8. Notice. Any notice or communication must be in writing and given by
depositing the same in the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt
requested, or by delivering the same in person or by facsimile. Any such notice
or communication shall be deemed received, if not earlier received, on the third
business day following the date on which it is mailed, or on the day on which it
is hand delivered or delivered by facsimile, as the case may be.
-3-
<PAGE> 4
9. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, oral or written, relating to the subject
matter hereof.
10. Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, such
provisions shall be deemed severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provisions did not
comprise a part hereof unless the loss of such provision causes this Agreement
to fail of its essential purpose; and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom except as
aforesaid. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, the parties agree to meet to determine in good faith, or will ask the
court to determine, a provision as similar in its terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable and such provision so determined shall then be added as part of this
Agreement.
11. Governing Law. This Agreement and the rights and obligations of the
parties hereto, shall be governed, construed and enforced in accordance with the
laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ Michael S. May
----------------------------------------
Michael S. May
INTERNET AMERICA, INC.
By: /s/ Michael T. Maples
-------------------------------------
Michael T. Maples,
President
-4-
<PAGE> 5
Schedule I
<TABLE>
<CAPTION>
Number of shares originally
underlying Claimant's
Option Date Former Option (1) Exercise Price
- ----------- --------------------------- --------------
<S> <C> <C>
5/16/96 50,000 $3.75
</TABLE>
- ----------
(1) This number is prior to reflecting the Company's previous 2.25 for 1.00
stock split.
-5-
<PAGE> 1
EXHIBIT 99.4
Doyle
OPTION SETTLEMENT AGREEMENT
This Option Settlement Agreement (this "Agreement") is made and entered
into as of the 20th day of May, 1999, by and between Kami Doyle ("Claimant") and
Internet America, Inc., a Texas corporation (the "Company").
W I T N E S S E T H :
WHEREAS, disputes and controversies have arisen between Claimant and
the Company concerning, among other things, certain options and other rights
which Claimant and other former employees (the "Former Employees") of the
Company claim were granted and remain in effect (the "Former Options"); and
WHEREAS, in order to settle all disputes and controversies between
Claimant and the Company and to avoid the expense and uncertainty of litigation,
the Company is agreeable not to contest certain of the Former Options and to
register certain shares of common stock, par value $0.01 per share, of the
Company underlying the Former Options (the "Underlying Stock"), subject to the
terms and conditions of this Agreement and other agreements to be entered into
by certain other Former Claimants.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree to
settle their disputes on the following terms:
1. Agreement Regarding Former Options. Claimant represents and warrants
to the Company that Claimant is the legal and beneficial owner of any rights
relating to the option listed on Schedule I attached hereto ("Claimant's Former
Option"); and that beyond such rights Claimant has and will assert no other
rights or claims, directly or indirectly, oral or written, to acquire any
capital stock of the Company or any other security of the Company or to have any
of such securities owned or held by Claimant registered under the Securities Act
of 1933, as amended (the "Securities Act"). The parties hereby agree that the
rights of Claimant under the Claimant's Former Option are hereby modified,
amended and changed to provide that Claimant may exercise the Claimant's Former
Options to purchase only an aggregate of 42,750 shares of Common Stock (the
"Exercisable Portion of the Option"), which purchase must be during the exercise
period and at the exercise price of $1.67 per share. The parties expressly agree
that the only portion of the Claimant's Former Option that may be exercised is
the Exercisable Portion of the Option, and that any excess portion is forever
and completely terminated, canceled and rescinded. Claimant agrees to indemnify
and hold harmless the Company for any claim asserted by or through Claimant
under Claimant's Former Option, other than the Exercisable Portion of the
Option.
2. Registration of Underlying Stock. The Company hereby agrees to use
its best efforts to cause the registration under the Securities Act on Form S-8
or other appropriate form (the "Registration Statement"), the Common Stock
underlying the Exercisable Portion of the Option
<PAGE> 2
("Claimant's Underlying Stock") as soon as possible after the date hereof.
Claimant agrees to provide all such information as may be necessary to assist
the Company in such efforts. Claimant and the Company agree that Claimant may
sell Claimant's Underlying Stock under the Registration Statement according to
the following schedule:
<TABLE>
<CAPTION>
Shares eligible
Date for sale (cumulative)
---- ---------------------
<S> <C>
On or prior to July 1, 1999 10,688
After July 1, 1999, but
prior to August 1, 1999 21,375
After August 1, 1999, but prior
to September 1, 1999 32,062
After September 1, 1999 42,750
</TABLE>
Claimant agrees that the Company may place a restrictive legend on the
certificates representing Claimant's Underlying Stock to the foregoing effect
and may issue stop orders to its transfer agent with respect thereto. The
parties agree that if the Registration Statement has not become effective by
June 15, 1999, except by reason of Claimant's failure to comply with the
provisions of this Section 2, then this Agreement shall become null and void and
of no further force or effect.
3. Claimant Release. Claimant, on his own behalf and on behalf of his
attorneys, agents, successors, heirs, legal representatives and assigns
(collectively, the "Releasors") agrees to release and does hereby release,
acquit and forever discharge the Company and its officers, directors, agents,
employees and attorneys and the respective successors, heirs, legal
representatives and assigns of each of the foregoing (collectively, the
"Releasees") from, and extinguishes, any and all claims, demands, debts,
damages, costs, losses, expenses, commissions, actions, causes of action,
rights, liabilities, obligations and chooses in action of whatever nature or
type which any of the Releasors have, or may have, or which have been, or could
have been, or in the future otherwise might have been asserted, known and
unknown, in connection with actions or inactions of the Releasees or otherwise,
or any of them, occurring on or prior to the date hereof (collectively, the
"Claims"), except that in no event shall this paragraph operate to release from
any claims or liability resulting from a breach of the representations,
warranties, covenants and agreements of the Company contained in this Agreement.
Claimant further agrees that he will not sue any of the Releasees by asserting
in any way the rights, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, lawsuits, damages, liabilities and causes of action
released by this Agreement.
4. Company Release. The Company, on its own behalf and on behalf of its
officers, directors, attorneys, agents, successors and assigns (collectively,
the "Company Releasors") agrees to release and does hereby release, acquit and
forever discharge Claimant and his agents and attorneys and the respective
successors, heirs, legal representatives and assigns of each of the foregoing
(collectively, the "Company Releasees") from, and extinguishes, any and all
claims, demands, debts, damages, costs, losses, expenses, commissions, actions,
causes of action, rights, liabilities, obligations and chooses in action of
whatever nature or type which any of the Company Releasors have, or may have, or
which have been, or could have been, or in the future otherwise might have been
asserted, known and unknown, in connection with actions or inactions of the
-2-
<PAGE> 3
Company Releasees or otherwise, or any of them, occurring on or prior to the
date hereof (collectively, the "Company Claims"), except that in no event shall
this paragraph operate to release from any claims or liability resulting from a
breach of the representations, warranties, covenants and agreements of Claimant
contained in this Agreement. The Company further agrees that it will not sue any
of the Company Releasees, by asserting in any way the rights, claims, actions,
accounts, demands, contracts, debts, controversies, agreements, lawsuits,
damages, liabilities and causes of action released by this Agreement.
5. Representations and Warranties of Claimant. Claimant hereby
represents and warrants that the following are true and correct as of the date
hereof: (a) Claimant has the power and authority to execute, deliver and perform
his obligations under this Agreement, and this Agreement constitutes the valid
and binding obligation of Claimant enforceable against him in accordance with
the terms hereof; (b) none of the Releasors have assigned, sold, conveyed or
otherwise transferred all or any portion of the Claims; and (c) Claimant has
consulted or has had sufficient opportunity to discuss with any person,
including an attorney of his choice, all provisions of this Agreement, that he
has carefully read and fully understands all the provisions of this Agreement,
that he is competent to execute this Agreement, and that he is voluntarily
entering into this Agreement of his own free will and accord, without reliance
upon any statement or representation of any person or parties released, or their
representatives, concerning the nature and extent of the damages and/or legal
liability therefor.
6. Representations and Warranties of the Company. The Company hereby
represents and warrants that the following are true and correct as of the date
hereof: (a) the Company is a corporation validly existing and in good standing
under the laws of the State of Texas; and (b) the Company has the corporate
power and authority to execute, deliver and perform its obligations under this
Agreement, and the execution, delivery and performance by it of this Agreement
has been duly authorized by all necessary action, and this Agreement constitutes
the valid and binding obligation of the Company, enforceable against it in
accordance with the terms hereof.
7. Amendment and Assignment. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by the parties hereto.
This Agreement shall extend to and be binding upon each of the parties and their
respective heirs, successors, assigns, legal representatives and any corporation
or other entity into or with which any party hereto may merge or consolidate.
Notwithstanding the above, neither this Agreement nor any right created hereby
shall be assignable to any party hereto.
8. Notice. Any notice or communication must be in writing and given by
depositing the same in the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt
requested, or by delivering the same in person or by facsimile. Any such notice
or communication shall be deemed received, if not earlier received, on the third
business day following the date on which it is mailed, or on the day on which it
is hand delivered or delivered by facsimile, as the case may be.
-3-
<PAGE> 4
9. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, oral or written, relating to the subject
matter hereof.
10. Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, such
provisions shall be deemed severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provisions did not
comprise a part hereof unless the loss of such provision causes this Agreement
to fail of its essential purpose; and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom except as
aforesaid. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, the parties agree to meet to determine in good faith, or will ask the
court to determine, a provision as similar in its terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable and such provision so determined shall then be added as part of this
Agreement.
11. Governing Law. This Agreement and the rights and obligations of the
parties hereto, shall be governed, construed and enforced in accordance with the
laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ Kami Doyle
--------------------------------------
Kami Doyle
INTERNET AMERICA, INC.
By: /s/ Michael T. Maples
----------------------------------
Michael T. Maples,
President
-4-
<PAGE> 5
Schedule I
<TABLE>
<CAPTION>
Number of shares originally
underlying Claimant's
Option Date Former Option (1) Exercise Price
- ----------- --------------------------- --------------
<S> <C> <C>
12/4/96 5,000 $3.75
4/5/96 15,000 $3.75
</TABLE>
- ----------
(1) This number is prior to reflecting the Company's previous 2.25 for 1.00
stock split.
-5-
<PAGE> 1
EXHIBIT 99.5
Weinberger
OPTION SETTLEMENT AGREEMENT
This Option Settlement Agreement (this "Agreement") is made and entered
into as of the 20th day of May, 1999, by and between Keith Weinberger
("Claimant") and Internet America, Inc., a Texas corporation (the "Company").
W I T N E S S E T H :
WHEREAS, disputes and controversies have arisen between Claimant and
the Company concerning, among other things, certain options and other rights
which Claimant and other former employees (the "Former Employees") of the
Company claim were granted and remain in effect (the "Former Options"); and
WHEREAS, in order to settle all disputes and controversies between
Claimant and the Company and to avoid the expense and uncertainty of litigation,
the Company is agreeable not to contest certain of the Former Options and to
register certain shares of common stock, par value $0.01 per share, of the
Company underlying such Former Options (the "Underlying Stock"), subject to the
terms and conditions of this Agreement and other agreements to be entered into
by certain other Former Claimants.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree to
settle their disputes on the following terms:
1. Agreement Regarding Former Options. Claimant represents and warrants
to the Company that Claimant is the legal and beneficial owner of any rights
relating to the option listed on Schedule I attached hereto ("Claimant's Former
Option"); and that beyond such rights Claimant has and will assert no other
rights or claims, directly or indirectly, oral or written, to acquire any
capital stock of the Company or any other security of the Company or to have any
such securities owned or held by Claimant registered under the Securities Act of
1933, as amended (the "Securities Act"). The parties hereby agree that the
rights of Claimant under the Claimant's Former Option are hereby modified,
amended and changed to provide that Claimant may exercise the Claimant's Former
Options to purchase only an aggregate of 25,000 shares of Common Stock (the
"Exercisable Portion of the Option"), which purchase must be during the exercise
period and at the exercise price of $.09 per share. The parties expressly agree
that the only portion of the Claimant's Former Option that may be exercised is
the Exercisable Portion of the Option, and that any excess portion is forever
and completely terminated, canceled and rescinded. Claimant agrees to indemnify
and hold harmless the Company for any claim asserted by or through Claimant
under Claimant's Former Option, other than the Exercisable Portion of the
Option.
2. Registration of Underlying Stock. The Company hereby agrees to use
its best efforts to cause the registration under the Securities Act on Form S-8
or other appropriate form (the
<PAGE> 2
"Registration Statement"), the Common Stock underlying the Exercisable Portion
of the Option ("Claimant's Underlying Stock") as soon as possible after the date
hereof. Claimant agrees to provide all such information as may be necessary to
assist the Company in such efforts. The parties agree that if the Registration
Statement has not become effective by June 15, 1999, except by reason of
Claimant's failure to comply with the previous sentence, then this Agreement
shall become null and void and of no further force or effect.
3. Claimant Release. Claimant, on his own behalf and on behalf of his
attorneys, agents, successors, heirs, legal representatives and assigns
(collectively, the "Releasors") agrees to release and does hereby release,
acquit and forever discharge the Company and its officers, directors, agents,
employees and attorneys and the respective successors, heirs, legal
representatives and assigns of each of the foregoing (collectively, the
"Releasees") from, and extinguishes, any and all claims, demands, debts,
damages, costs, losses, expenses, commissions, actions, causes of action,
rights, liabilities, obligations and chooses in action of whatever nature or
type which any of the Releasors have, or may have, or which have been, or could
have been, or in the future otherwise might have been asserted, known and
unknown, in connection with actions or inactions of the Releasees or otherwise,
or any of them, occurring on or prior to the date hereof (collectively, the
"Claims"), except that in no event shall this paragraph operate to release from
any claims or liability resulting from a breach of the representations,
warranties, covenants and agreements of the Company contained in this Agreement.
Claimant further agrees that he will not sue any of the Releasees by asserting
in any way the rights, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, lawsuits, damages, liabilities and causes of action
released by this Agreement.
4. Company Release. The Company, on its own behalf and on behalf of its
officers, directors, attorneys, agents, successors and assigns (collectively,
the "Company Releasors") agrees to release and does hereby release, acquit and
forever discharge Claimant and his agents and attorneys and the respective
successors, heirs, legal representatives and assigns of each of the foregoing
(collectively, the "Company Releasees") from, and extinguishes, any and all
claims, demands, debts, damages, costs, losses, expenses, commissions, actions,
causes of action, rights, liabilities, obligations and chooses in action of
whatever nature or type which any of the Company Releasors have, or may have, or
which have been, or could have been, or in the future otherwise might have been
asserted, known and unknown, in connection with actions or inactions of the
Company Releasees or otherwise, or any of them, occurring on or prior to the
date hereof (collectively, the "Company Claims"), except that in no event shall
this paragraph operate to release from any claims or liability resulting from a
breach of the representations, warranties, covenants and agreements of Claimant
contained in this Agreement. The Company further agrees that it will not sue any
of the Company Releasees, by asserting in any way the rights, claims, actions,
accounts, demands, contracts, debts, controversies, agreements, lawsuits,
damages, liabilities and causes of action released by this Agreement.
5. Representations and Warranties of Claimant. Claimant hereby
represents and warrants that the following are true and correct as of the date
hereof: (a) Claimant has the power and authority to execute, deliver and perform
his obligations under this Agreement, and this Agreement constitutes the valid
and binding obligation of Claimant enforceable against him in accordance with
the terms hereof; (b) none of the Releasors have assigned, sold, conveyed or
otherwise transferred
-2-
<PAGE> 3
all or any portion of the Claims; and (c) Claimant has consulted or has had
sufficient opportunity to discuss with any person, including an attorney of his
choice, all provisions of this Agreement, that he has carefully read and fully
understands all the provisions of this Agreement, that he is competent to
execute this Agreement, and that he is voluntarily entering into this Agreement
of his own free will and accord, without reliance upon any statement or
representation of any person or parties released, or their representatives,
concerning the nature and extent of the damages and/or legal liability therefor.
6. Representations and Warranties of the Company. The Company hereby
represents and warrants that the following are true and correct as of the date
hereof: (a) the Company is a corporation validly existing and in good standing
under the laws of the State of Texas; and (b) the Company has the corporate
power and authority to execute, deliver and perform its obligations under this
Agreement, and the execution, delivery and performance by it of this Agreement
has been duly authorized by all necessary action, and this Agreement constitutes
the valid and binding obligation of the Company, enforceable against it in
accordance with the terms hereof.
7. Amendment and Assignment. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by the parties hereto.
This Agreement shall extend to and be binding upon each of the parties and their
respective heirs, successors, assigns, legal representatives and any corporation
or other entity into or with which any party hereto may merge or consolidate.
Notwithstanding the above, neither this Agreement nor any right created hereby
shall be assignable to any party hereto.
8. Notice. Any notice or communication must be in writing and given by
depositing the same in the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt
requested, or by delivering the same in person or by facsimile. Any such notice
or communication shall be deemed received, if not earlier received, on the third
business day following the date on which it is mailed, or on the day on which it
is hand delivered or delivered by facsimile, as the case may be.
9. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, oral or written, relating to the subject
matter hereof.
10. Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, such
provisions shall be deemed severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provisions did not
comprise a part hereof unless the loss of such provision causes this Agreement
to fail of its essential purpose; and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom except as
aforesaid. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, the parties agree to meet to determine in good faith, or will ask the
court to determine, a provision as similar in its terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and
enforceable and such provision so determined shall then be added as part of this
Agreement.
-3-
<PAGE> 4
11. Governing Law. This Agreement and the rights and obligations of the
parties hereto, shall be governed, construed and enforced in accordance with the
laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ Keith Weinberger
------------------------------------
Keith Weinberger
INTERNET AMERICA, INC.
By: /s/ Michael T. Maples
--------------------------------
Michael T. Maples,
President
-4-
<PAGE> 5
Schedule I
<TABLE>
<CAPTION>
Number of shares originally
underlying Claimant's
Option Date Former Option (1) Exercise Price
- ----------- --------------------------- --------------
<S> <C> <C>
9/18/95 15,000 $0.20
</TABLE>
- ----------
(1) This number is prior to reflecting the Company's previous 2.25 for 1.00
stock split.
<PAGE> 1
EXHIBIT 99.6
NON-QUALIFIED STOCK OPTION AGREEMENT
Agreement made effective as of the 16th day of May, 1996 by and between
INTERNET AMERICA, INC. (the "Company") and MICHAEL S. MAY (the "Optionee").
1. Definitions. For purposes of this Agreement:
a. "Board" means the Board of Directors of the Company.
b. "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a
change in value) in the Shares or exchange of Shares for a different
number or kind of Shares or other securities of the Company, by reason
of a reclassification, recapitalization, merger, consolidation,
reorganization, stock dividend, stock split or reverse stock split,
combination or exchange of shares or other similar events.
c. "Code" means the Internal Revenue Code of 1986, as amended.
d. "Company" means Internet America, Inc., a Texas corporation.
e. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
f. "Fair Market Value" on any date means the closing price of
Shares on such date on the principal national securities exchange on
which Shares are listed or admitted to trading, the arithmetic mean of
the per Share closing bid priced and per Share closing asked price on
such date as quoted on the National Association of Securities Dealers
Automated Quotation System or such then market in which such prices are
regularly quoted, or, if there have been no published bid or asked
quotations with respect to Shares on such date, the Fair Market Value
shall be the value established by the Board in good faith and in
accordance with Section 422 of the Code.
g. "Shares" means the common stock, par value $.01 per share, of
the Company.
2. Grant of Option.
The Company hereby grants to the Optionee, for valuable consideration,
receipt of which is hereby acknowledged, a Non-Qualified Stock Option ("Option")
to purchase from the Company an aggregate of 50,000 shares at a purchase price
(the "Option Price") of $3.75 per share.
3. Exercise Period. The Option shall become non-forfeitable according to
the following schedule and shall hereafter be exercisable in whole or in part:
<PAGE> 2
(i) First Installment: 25,000 immediately upon grant;
(ii) Second Installment: 12,500 on May 16, 1997; and
(iii) Third Installment: 12,500 on May 16, 1998.
The Option may be exercised only with respect to full Shares and may
not be exercised after the close of business on the day (the "Termination Date")
preceding the tenth anniversary of the date hereof. The Option shall have no
effect after the Termination Date.
4. Exercise of an Option. The exercise of an Option shall be made only by a
written notice delivered in person or by mail to the Secretary of the Company at
the Company's principal executive office, specifying the number of Shares to be
purchased and accompanied by payment therefor. The purchase price for any Shares
purchased pursuant to the exercise of an Option shall be paid in full upon such
exercise by delivery of cash or personal check in amount of purchase price. The
written notice may provide instructions from the Optionee to the Company that
upon receipt of the purchase price in cash from the Optionee's broker or dealer,
designated as such on the written notice, in payment for any Shares purchased
pursuant to the exercise of an Option, the Company shall issue such Shares
directly to the broker or dealer. If requested by the Board, the Optionee shall
deliver this Agreement to the Secretary of the Company who shall endorse thereon
a notation of such exercise and return such Agreement to the Optionee. No
fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an
Option and the number of Shares that may be purchased upon exercise shall be
rounded to the nearest number of whole Shares.
5. Rights of Optionee. The Optionee shall not be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (i) the Option
shall have been exercised pursuant to the terms thereof, (ii) the Company shall
have issued and delivered the Shares to the Optionee and (iii) the Optionee's
name shall have been entered as a stockholder of record on the books of the
Company. Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such Shares.
6. Adjustment Upon Changes in Capitalization.
a. Subject to Section 7, in the event of a Change in
Capitalization, the number and class of Shares or other stock or
securities which are subject to the Option, and the purchase price
therefor, if applicable, shall be appropriately and equitably adjusted.
b. If, by reason of a Change in Capitalization, the Optionee shall
be entitled to exercise an Option with respect to new, additional or
different shares of stock or securities, such new, additional or
different shares shall thereupon be subject to all of the conditions
which were applicable to the Shares subject to the Option, as the case
may be, prior to such Change in Capitalization.
<PAGE> 3
7. Effect of Certain Transactions.
In the event of (i) the liquidation or dissolution of the Company or
(ii) a merger or consolidation of the Company (a "Transaction"), the Option
issued hereunder shall continue in effect in accordance with its terms and the
Optionee shall be entitled to receive in respect of each Share subject to any
outstanding Option, upon exercise of any Option, the same number and kind of
stock, securities, cash, property, or other consideration that each holder of a
Share was entitled to receive in the Transaction in respect of a Share. In the
event that, after a Transaction, there occurs any Change in Capitalization with
respect to the shares of a surviving or resulting corporation, then adjustments
similar to, and subject to the same conditions as, those in Section 6 hereof
shall be made by the Board.
8. Effect of Change in Control. Notwithstanding anything contained in the
Plan or an Agreement to the contrary, in the event of a Change in Control, all
Options outstanding on the date of such Change in Control shall become
immediately and fully exercisable.
9. Effect of Certain Transactions.
a. Notwithstanding anything to the contrary or in the Agreement,
the Optionee shall forfeit 100% of the Options granted pursuant to this
Agreement, whether or not vested, if the Optionee breaches the
provisions of subsections (b) or (d) of this Section 9.
b. During the period that the Optionee is employed by the Company
or any affiliate of the Company (the "Service Term") and for a period
of one year thereafter, the Optionee shall not, in the continental
United States, directly or indirectly, own, manage, operate, join,
control, be employed by, or participate in the ownership, management,
operation or control of or be connected in any manner, including but
not limited to holding the positions of shareholder, director, officer,
consultant, independent contractor, employee, partner, or investor,
with any Competing Enterprise. For purposes of this Section, the term
"Competing Enterprise" shall mean any person, corporation, partnership
or other entity engaged in the operation of an internet service
provider. The prohibition of this Section 9 shall not be deemed to
prevent Optionee from owning 2% or less of any class of equity
securities registered under Section 12 of the Exchange Act. During the
Service Term and for a period of one year thereafter, the Optionee
shall not interfere with the Company's relationship with, or endeavor
to entice away from the Company, any person who at any time during the
Service Term was an employee or customer of the Company or otherwise
had a material business relationship with the Company.
c. The necessity for protection of the Company and its affiliates
against the Optionee's competition, as well as the nature and scope of
such protection, has been carefully considered by the parties hereto in
light of the uniqueness of the Optionee's talent and his importance to
the Company. Accordingly, the Optionee agrees that, in addition to any
other relief to which the Company may be entitled, the Company shall be
entitled to seek and obtain injunctive relief (without the requirement
of any bond)
<PAGE> 4
from a court of competent jurisdiction for the purpose of restraining
the Optionee from any actual or threatened breach of the covenant
contained in this Section 9. If for any reason a final decision of any
court determines that the restrictions under this Section 9 are not
reasonable or that consideration therefor is inadequate, such
restrictions shall be interpreted, modified or rewritten by such court
to include as much of the duration, scope and geographic area
identified in this Section 9 as will render such restrictions valid and
enforceable.
d. The Optionee shall not intentionally disclose or reveal to an
unauthorized person, during the Service Term or for a two year period
thereafter, any information relating to the confidential affairs of the
company or any of its affiliates, including but not limited to
technical information, business and marketing plans, strategies,
customer information, other information concerning the Company's
products, promotions, development, financing, expansion plans, business
policies and practices, and other forms of information considered by
the Company to be confidential and in the nature of trade secrets. The
Optionee shall hold as property of the Company and its affiliates all
memoranda, books, papers, letters and other data, and all copies
thereof or therefrom, which are in any way substantially related to the
business of the company or its affiliates, whether made by him or
otherwise coming into his possession and, on a prior written demand of
the Company made within two years after the end of the Service Term,
shall deliver the same to the company.
10. General Rules
a. The obligation of the Company to sell or deliver Shares with
respect to the Options granted shall be subject to all applicable laws,
rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by
governmental agencies as may be deemed necessary or appropriate by the
Board.
b. The Company shall have the right to deduct from any
distribution of cash to Optionee, an amount equal to the federal, state
and local income taxes and other amounts as may be required by law to
be withheld (the "Withholding Taxes") with respect to any Option. If
Optionee is entitled to receive Shares upon exercise of an Option, the
Optionee shall pay the Withholding Taxes to the Company prior to the
issuance, or release from escrow, of such Shares. In satisfaction of
the Withholding Taxes to the Company, the Optionee may make a written
election (the "Tax Election"), which may be accepted or rejected in the
discretion of the Board, to have withheld a portion of the Shares
issuable to him or her upon exercise of the Option having an aggregate
Fair Market Value, on the date preceding the date of exercise, equal to
the Withholding Taxes, provided that in respect of an Optionee who may
be subject to liability under Section 16(b) of the Exchange Act either
(i)(A) the Optionee makes the Tax Election at least six (6) months
after the date the Option was granted, (B) the Option is exercised
during the ten day period beginning on the third business day and
ending on the twelfth business day following the release for
publication of the Company's quarterly or annual statements of earnings
(a "Window Period") and (C) the
<PAGE> 5
Tax Election is made during the Window Period in which the Option is
exercised prior to such Window Period and subsequent to the
immediately preceding Window Period or (ii)(A) the Tax Election is
made at least six (6) months prior to the date the Option is exercised
prior to the expiration of six (6) months following an election to
revoke the Tax Election. Notwithstanding the foregoing, the Board may,
by the adoption or rules or otherwise, (i) modify the provisions in
the preceding sentence or impose such other restrictions or
limitations on Tax Elections as may be necessary to ensure that the
Tax Elections will be exempt transactions under Section 16(b) of the
Exchange Act, an (ii) permit Tax Elections to be made at such other
times and subject to such other conditions as the Board determines
will constitute exempt transactions under Section 16b of the Exchange
Act.
If Optionee makes a disposition, within the meaning of Section
424(c)of the Code and regulations promulgated thereunder, of any Share
or Shares issued to such Optionee pursuant to the exercise of an Option
within the two-year period commencing on the day after the date of the
grant or within the one-year period commencing on the day after the
date of transfer of such Share or Shares to the Optionee pursuant to
such exercise, the Optionee shall, within ten (10) days of such
disposition, notify the Company thereof, by delivery of written notice
to the Company at its principal executive office, and immediately
deliver to the Company the amount of Withholding Taxes.
c. No Option granted hereunder shall be transferable by the
Optionee to whom granted otherwise than by will or the laws of descent
and distribution, and an Option may be exercised during the lifetime of
such Optionee only by the Optionee or his or her guardian or legal
representative. The terms of such an Option shall be final, binding and
conclusive upon the beneficiaries, executors, administrators, heirs and
successors of the Optionee.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and the Optionee has hereunto set his hand, as of the day and year first above
written.
INTERNET AMERICA, INC.
/s/ ROBERT J. MAYNARD, JR.
---------------------------------
Robert J. Maynard, Jr.
Chief Executive Officer
OPTIONEE
/s/ MIKE S. MAY
---------------------------------
Mike S. May
<PAGE> 1
EXHIBIT 99.7
NON-QUALIFIED STOCK OPTION AGREEMENT
Agreement made effective as of the 4th day of December, 1995 by and
between Internet America, Inc. (the "Company") and Kami M. Doyle (the
"Optionee").
1. Definitions. For purposes of this Agreement:
a. "Board" means the Board of Directors of the Company.
b. "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a
change in value) in the Shares or exchange of Shares for a different
number or kind of Shares or other securities of the Company, by reason
of a reclassification, recapitalization, merger, consolidation,
reorganization, stock dividend, stock split or reverse stock split,
combination or exchange of shares or other similar events.
c. "Code" means the Internal Revenue Code of 1986, as amended.
d. "Company" means Internet America, Inc., a Texas corporation.
e. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
f. "Fair Market Value" on any date means the closing price of
Shares on such date on the principal national securities exchange on
which Shares are listed or admitted to trading, the arithmetic mean of
the per Share closing bid priced and per Share closing asked price on
such date as quoted on the National Association of Securities Dealers
Automated Quotation System or such then market in which such prices
are regularly quoted, or, if there have been no published bid or asked
quotations with respect to Shares on such date, the Fair Market Value
shall be the value established by the Board in good faith and in
accordance with Section 422 of the Code.
g. "Shares" means the common stock, par value $.01 per share, of
the Company.
2. Grant of Option.
The Company hereby grants to the Optionee, for valuable consideration,
receipt of which is hereby acknowledged, a Non-Qualified Stock Option ("Option")
to purchase from the Company an aggregate of 5,000 shares at a purchase price
(the "Option Price") of $3.75 per share.
3. Exercise Period. The Option shall become non-forfeitable according to
the following schedule and shall hereafter be exercisable in whole or in part:
<PAGE> 2
(i) First Installment: 2,500 December 4, 1995;
(ii) Second Installment: 2,500 on June 30, 1996.
The Option may be exercised only with respect to full Shares and may
not be exercised after the close of business on the day (the "Termination Date")
preceding the tenth anniversary of the date hereof. The Option shall have no
effect after the Termination Date.
4. Exercise of an Option. The exercise of an Option shall be made only by a
written notice delivered in person or by mail to the Secretary of the Company at
the Company's principal executive office, specifying the number of Shares to be
purchased and accompanied by payment therefor. The purchase price for any Shares
purchased pursuant to the exercise of an Option shall be paid in full upon such
exercise by delivery of cash or personal check in amount of purchase price. The
written notice may provide instructions from the Optionee to the Company that
upon receipt of the purchase price in cash from the Optionee's broker or dealer,
designated as such on the written notice, in payment for any Shares purchased
pursuant to the exercise of an Option, the Company shall issue such Shares
directly to the broker or dealer. If requested by the Board, the Optionee shall
deliver this Agreement to the Secretary of the Company who shall endorse thereon
a notation of such exercise and return such Agreement to the Optionee. No
fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an
Option and the number of Shares that may be purchased upon exercise shall be
rounded to the nearest number of whole Shares.
5. Rights of Optionee. The Optionee shall not be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (i) the Option
shall have been exercised pursuant to the terms thereof, (ii) the Company shall
have issued and delivered the Shares to the Optionee and (iii) the Optionee's
name shall have been entered as a stockholder of record on the books of the
Company. Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such Shares.
6. Adjustment Upon Changes in Capitalization.
a. Subject to Section 7, in the event of a Change in
Capitalization, the number and class of Shares or other stock or
securities which are subject to the Option, and the purchase price
therefor, if applicable, shall be appropriately and equitably
adjusted.
b. If, by reason of a Change in Capitalization, the Optionee
shall be entitled to exercise an Option with respect to new,
additional or different shares of stock or securities, such new,
additional or different shares shall thereupon be subject to all of
the conditions which were applicable to the Shares subject to the
Option, as the case may be, prior to such Change in Capitalization.
<PAGE> 3
7. Effect of Certain Transactions.
In the event of (i) the liquidation or dissolution of the Company or
(ii) a merger or consolidation of the Company (a "Transaction"), the Option
issued hereunder shall continue in effect in accordance with its terms and the
Optionee shall be entitled to receive in respect of each Share subject to any
outstanding Option, upon exercise of any Option, the same number and kind of
stock, securities, cash, property, or other consideration that each holder of a
Share was entitled to receive in the Transaction in respect of a Share. In the
event that, after a Transaction, there occurs any Change in Capitalization with
respect to the shares of a surviving or resulting corporation, then adjustments
similar to, and subject to the same conditions as, those in Section 6 hereof
shall be made by the Board.
8. Effect of Certain Transactions.
a. Notwithstanding anything to the contrary or in the Agreement,
the Optionee shall forfeit 100% of the Options granted pursuant to
this Agreement, whether or not vested, if the Optionee breaches the
provisions of subsections (b) or (d) of this Section 9.
b. During the period that the Optionee is employed by the Company
or any affiliate of the Company (the "Service Term") and for a period
of one year thereafter, the Optionee shall not, in the continental
United States, directly or indirectly, own, manage, operate, join,
control, be employed by, or participate in the ownership, management,
operation or control of or be connected in any manner, including but
not limited to holding the positions of shareholder, director,
officer, consultant, independent contractor, employee, partner, or
investor, with any Competing Enterprise. For purposes of this Section,
the term "Competing Enterprise" shall mean any person, corporation,
partnership or other entity engaged in the operation of an internet
service provider. The prohibition of this Section 9 shall not be
deemed to prevent Optionee from owning 2% or less of any class of
equity securities registered under Section 12 of the Exchange Act.
During the Service Term and for a period of one year thereafter, the
Optionee shall not interfere with the Company's relationship with, or
endeavor to entice away from the Company, any person who at any time
during the Service Term was an employee or customer of the Company or
otherwise had a material business relationship with the Company.
c. The necessity for protection of the Company and its affiliates
against the Optionee's competition, as well as the nature and scope of
such protection, has been carefully considered by the parties hereto
in light of the uniqueness of the Optionee's talent and his importance
to the Company. Accordingly, the Optionee agrees that, in addition to
any other relief to which the Company may be entitled, the Company
shall be entitled to seek and obtain injunctive relief (without the
requirement of any bond) from a court of competent jurisdiction for
the purpose of restraining the Optionee from any actual or threatened
breach of the covenant contained in this Section 9. If for any reason
a final decision of any court determines that the restrictions under
this Section 9 are not reasonable or that consideration therefor is
inadequate, such restrictions shall be interpreted, modified or
rewritten by such court to include as much of the duration,
<PAGE> 4
scope and geographic area identified in this Section 9 as will render
such restrictions valid and enforceable.
d. The Optionee shall not intentionally disclose or reveal to an
unauthorized person, during the Service Term or for a two year period
thereafter, any information relating to the confidential affairs of
the company or any of its affiliates, including but not limited to
technical information, business and marketing plans, strategies,
customer information, other information concerning the Company's
products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information
considered by the Company to be confidential and in the nature of
trade secrets. The Optionee shall hold as property of the Company and
its affiliates all memoranda, books, papers, letters and other data,
and all copies thereof or therefrom, which are in any way
substantially related to the business of the company or its
affiliates, whether made by him or otherwise coming into his
possession and, on a prior written demand of the Company made within
two years after the end of the Service Term, shall deliver the same to
the company.
9. General Rules
a. The obligation of the Company to sell or deliver Shares with
respect to the Options granted shall be subject to all applicable
laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by
governmental agencies as may be deemed necessary or appropriate by the
Board.
b. The Company shall have the right to deduct from any
distribution of cash to Optionee, an amount equal to the federal,
state and local income taxes and other amounts as may be required by
law to be withheld (the "Withholding Taxes") with respect to any
Option. If Optionee is entitled to receive Shares upon exercise of an
Option, the Optionee shall pay the Withholding Taxes to the Company
prior to the issuance, or release from escrow, of such Shares. In
satisfaction of the Withholding Taxes to the Company, the Optionee may
make a written election (the "Tax Election"), which may be accepted or
rejected in the discretion of the Board, to have withheld a portion of
the Shares issuable to him or her upon exercise of the Option having
an aggregate Fair Market Value, on the date preceding the date of
exercise, equal to the Withholding Taxes, provided that in respect of
an Optionee who may be subject to liability under Section 16(b) of the
Exchange Act either (i)(A) the Optionee makes the Tax Election at
least six (6) months after the date the Option was granted, (B) the
Option is exercised during the ten day period beginning on the third
business day and ending on the twelfth business day following the
release for publication of the Company's quarterly or annual
statements of earnings (a "Window Period") and (C) the Tax Election is
made during the Window Period in which the Option is exercised prior
to such Window Period and subsequent to the immediately preceding
Window Period or (ii)(A) the Tax Election is made at least six (6)
months prior to the date the Option is exercised prior to the
expiration of six (6) months following an election to revoke the Tax
Election. Notwithstanding the foregoing, the Board may, by the
adoption or rules
<PAGE> 5
or otherwise, (i) modify the provisions in the preceding sentence or
impose such other restrictions or limitations on Tax Elections as may
be necessary to ensure that the Tax Elections will be exempt
transactions under Section 16(b) of the Exchange Act, an (ii) permit
Tax Elections to be made at such other times and subject to such other
conditions as the Board determines will constitute exempt transactions
under Section 16b of the Exchange Act.
If Optionee makes a disposition, within the meaning of
Section 424(c)of the Code and regulations promulgated thereunder, of
any Share or Shares issued to such Optionee pursuant to the exercise
of an Option within the two-year period commencing on the day after
the date of the grant or within the one-year period commencing on the
day after the date of transfer of such Share or Shares to the
Optionee pursuant to such exercise, the Optionee shall, within ten
(10) days of such disposition, notify the Company thereof, by
delivery of written notice to the Company at its principal executive
office, and immediately deliver to the Company the amount of
Withholding Taxes.
c. No Option granted hereunder shall be transferable by the
Optionee to whom granted otherwise than by will or the laws of descent
and distribution, and an Option may be exercised during the lifetime
of such Optionee only by the Optionee or his or her guardian or legal
representative. The terms of such an Option shall be final, binding
and conclusive upon the beneficiaries, executors, administrators,
heirs and successors of the Optionee.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and the Optionee has hereunto set his hand, as of the day and year first above
written.
OPTIONEE INTERNET AMERICA, INC.
/s/ KAMI M. DOYLE /s/ ROBERT J. MAYNARD, JR.
----------------- -------------------------------
Optionee Robert J. Maynard, Jr.
Chief Executive Officer
<PAGE> 1
EXHIBIT 99.8
NON-QUALIFIED STOCK OPTION AGREEMENT
Agreement made this 5th day of April , 1996 by and between Internet
America, Inc. (the "Company") and KAMI M. DOYLE (the "Optionee").
1. Definitions. For purposes of this Agreement:
(a) "Board" means the Board of Directors of the Company.
(b) "Business Services Division" is defined as the scope of the
Business Services Division as configured on the execution date of this
agreement.
(c) "Business Services Revenues" is defined as the sum of all revenues
as reported under generally accepted accounting principles ("GAAP") for any
fiscal year ended June 30 ("Fiscal Year").
(d) "Change in Capitalization" means any increase or reduction in the
number of Shares, or any change (including, but not limited to, a change in
value) in the Shares or exchange of Shares for a different number or kind of
Shares or other securities of the Company, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, stock dividend, stock
split or reverse stock split, combination or exchange of shares or other similar
events.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Company" means Internet America, Inc., a Texas corporation.
(f) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(g) "Fair Market Value" on any date means the closing price of Shares
on such date on the principal national securities exchange on which Shares are
listed or admitted to trading, the arithmetic mean of the per Share closing bid
priced and per Share closing asked price on such date as quoted on the National
Association of Securities Dealers Automated Quotation System or such then market
in which such prices are regularly quoted, or, if there have been no published
bid or asked quotations with respect to Shares on such date, the Fair Market
Value shall be the value established by the Board in good faith and in
accordance with Section 422 of the Code.
(h) "Shares" means the common stock, par value $.01 per share, of the
Company.
(i) "Total Revenues" means the sum of revenues reported under GAAP for
any Fiscal Year ended June 30 ("Fiscal Year")
2. Grant of Option. The Company hereby grants to the Optionee, for valuable
consideration, receipt of which is hereby acknowledged, a Non-Qualified Stock
Option ("Option") to purchase from the Company an aggregate of 15,000 Shares at
a purchase price (the "Option Price") of $3.75 per share.
3. Exercise Period. The Option is non-forfeitable and shall hereafter be
exercisable in whole or in part on OCTOBER 8, 1996. The Option may be exercised
only with respect to full Shares and may not be exercised after the close of
business on the day (the "Termination Date") preceding the tenth anniversary of
the date hereof. The Option shall have no effect after the Termination Date.
4. Exercise of an Option. The exercise of an Option shall be made only by a
written notice delivered in person or by mail to the Secretary of the Company at
the Company's principal executive office, specifying the number of Shares to be
purchased and accompanied by payment therefor. The purchase price for any Shares
<PAGE> 2
purchased pursuant to the exercise of an Option shall be paid in full upon such
exercise by delivery of cash or personal check in amount of purchase price. The
written notice may provide instructions from the Optionee to the Company that
upon receipt of the purchase price in cash from the Optionee's broker or dealer,
designated as such on the written notice, in payment for any Shares purchased
pursuant to the exercise of an Option, the Company shall issue such Shares
directly to the broker or dealer. If requested by the Board, the Optionee shall
deliver this Agreement to the Secretary of the Company who shall endorse thereon
a notation of such exercise and return such Agreement to the Optionee. No
fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an
Option and the number of Shares that may be purchased upon exercise shall be
rounded to the nearest number of whole Shares.
5. Rights of Optionee. The Optionee shall not be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (i) the Option
shall have been exercised pursuant to the terms thereof, (ii) the Company shall
have issued and delivered the Shares to the Optionee and (iii) the Optionee's
name shall have been entered as a stockholder of record on the books of the
Company. Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such Shares.
6. Adjustment Upon Changes in Capitalization.
(a) Subject to Section 7, in the event of a Change in Capitalization,
the number and class of Shares or other stock or securities which are subject to
the Option, and the purchase price therefor, if applicable, shall be
appropriately and equitably adjusted.
(b) If, by reason of a Change in Capitalization, the Optionee shall be
entitled to exercise an Option with respect to new, additional or different
shares of stock or securities, such new, additional or different shares shall
thereupon be subject to all of the conditions which were applicable to the
Shares subject to the Option, as the case may be, prior to such Change in
Capitalization.
7. Effect of Certain Transactions. In the event of (i) the liquidation or
dissolution of the Company or (ii) a merger or consolidation of the Company (a
"Transaction"), the Option issued hereunder shall continue in effect in
accordance with its terms and the Optionee shall be entitled to receive in
respect of each Share subject to any outstanding Option, upon exercise of any
Option, the same number and kind of stock, securities, cash, property, or other
consideration that each holder of a Share was entitled to receive in the
Transaction in respect of a Share. In the event that, after a Transaction, there
occurs any Change in Capitalization with respect to the shares of a surviving or
resulting corporation, then adjustments similar to, and subject to the same
conditions as, those in Section 6 hereof shall be made by the Board.
8. Effect of Certain Transactions.
(a) Notwithstanding anything to the contrary or in the Agreement, the
Optionee shall forfeit 100% of the Options granted pursuant to this Agreement,
whether or not vested, if the Optionee breaches the provisions of subsections
(b) or (d) of this Section 8.
(b) During the period that the Optionee is employed by the Company or
any affiliate of the Company (the "Service Term") and for a period of one year
thereafter, the Optionee shall not, in the continental United States, directly
or indirectly, own, manage, operate, join, control, be employed by, or
participate in the ownership, management, operation or control of or be
connected in any manner, including but not limited to holding the positions of
shareholder, director, officer, consultant, independent contractor, employee,
partner, or investor, with any Competing Enterprise. For purposes of this
Section, the term "Competing Enterprise" shall mean any person, corporation,
partnership or other entity engaged in the operation of an internet service
provider. The prohibition of this Section 8 shall not be deemed to prevent
Optionee from owning 2% or less of any class of equity securities registered
under Section 12 of the Exchange Act. During the Service Term and for a period
of one year thereafter, the Optionee shall not interfere with the Company's
relationship with, or endeavor to entice away from the Company, any person who
at any time during the Service Term was an employee or customer of the Company
or otherwise had a material business relationship with the Company.
<PAGE> 3
(c) The necessity for protection of the Company and its affiliates
against the Optionee's competition, as well as the nature and scope of such
protection, has been carefully considered by the parties hereto in light of the
uniqueness of the Optionee's talent and his importance to the Company.
Accordingly, the Optionee agrees that, in addition to any other relief to which
the Company may be entitled, the Company shall be entitled to seek and obtain
injunctive relief (without the requirement of any bond) from a court of
competent jurisdiction for the purpose of restraining the Optionee from any
actual or threatened breach of the covenant contained in this Section 8. If for
any reason a final decision of any court determines that the restrictions under
this Section 8 are not reasonable or that consideration therefor is inadequate,
such restrictions shall be interpreted, modified or rewritten by such court to
include as much of the duration, scope and geographic area identified in this
Section 8 as will render such restrictions valid and enforceable.
9. General Rules
(a) The obligation of the Company to sell or deliver Shares with
respect to the Options granted shall be subject to all applicable laws, rules
and regulations, including all applicable federal and state securities laws, and
the obtaining of all such approvals by governmental agencies as may be deemed
necessary or appropriate by the Board.
(b) The Company shall have the right to deduct from any distribution of
cash to Optionee, an amount equal to the federal, state and local income taxes
and other amounts as may be required by law to be withheld (the "Withholding
Taxes") with respect to any Option. If Optionee is entitled to receive Shares
upon exercise of an Option, the Optionee shall pay the Withholding Taxes to the
Company prior to the issuance, or release from escrow, of such Shares. In
satisfaction of the Withholding Taxes to the Company, the Optionee may make a
written election (the "Tax Election"), which may be accepted or rejected in the
discretion of the Board, to have withheld a portion of the Shares issuable to
him or her upon exercise of the Option having an aggregate Fair Market Value, on
the date preceding the date of exercise, equal to the Withholding Taxes,
provided that in respect of an Optionee who may be subject to liability under
Section 16(b) of the Exchange Act either (i)(A) the Optionee makes the Tax
Election at least six (6) months after the date the Option was granted, (B) the
Option is exercised during the ten day period beginning on the third business
day and ending on the twelfth business day following the release for publication
of the Company's quarterly or annual statements of earnings (a "Window Period")
and (C) the Tax Election is made during the Window Period in which the Option is
exercised prior to such Window Period and subsequent to the immediately
preceding Window Period or (ii)(A) the Tax Election is made at least six (6)
months prior to the date the Option is exercised prior to the expiration of six
(6) months following an election to revoke the Tax Election. Notwithstanding the
foregoing, the Board may, by the adoption or rules or otherwise, (i) modify the
provisions in the preceding sentence or impose such other restrictions or
limitations on Tax Elections as may be necessary to ensure that the Tax
Elections will be exempt transactions under Section 16(b) of the Exchange Act,
an (ii) permit Tax Elections to be made at such other times and subject to such
other conditions as the Board determines will constitute exempt transactions
under Section 16b of the Exchange Act.
If Optionee makes a disposition, within the meaning of Section 424(c) of
the Code and regulations promulgated thereunder, of any Share or Shares issued
to such Optionee pursuant to the exercise of an Option within the two-year
period commencing on the day after the date of the grant or within the one-year
period commencing on the day after the date of transfer of such Share or Shares
to the Optionee pursuant to such exercise, the Optionee shall, within ten (10)
days of such disposition, notify the Company thereof, by delivery of written
notice to the Company at its principal executive office, and immediately deliver
to the Company the amount of Withholding Taxes.
(c) No Option granted hereunder shall be transferable by the Optionee
to whom granted otherwise than by will or the laws of descent and distribution,
and an Option may be exercised during the lifetime of such Optionee only by the
Optionee or his or her guardian or legal representative. The terms of such an
Option shall be final, binding and conclusive upon the beneficiaries, executors,
administrators, heirs and successors of the Optionee.
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Optionee has hereunto set his hand, as of the day and year
first above written.
INTERNET AMERICA, INC.
/s/ ROBERT J. MAYNARD, JR.
-------------------------------
Robert J. Maynard, Jr.
Chief Executive Office
OPTIONEE
/s/ KAMI M. DOYLE
-------------------------------
Kami M. Doyle
<PAGE> 1
EXHIBIT 99.9
NON-QUALIFIED STOCK OPTION AGREEMENT
Agreement made effective as of the 18th day of September, 1995 by and
between Internet America, Inc. (the "Company") and Keith Weinberger (the
"Optionee").
1. Definitions. For purposes of this Agreement:
a. "Board" means the Board of Directors of the Company.
b. "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a
change in value) in the Shares or exchange of Shares for a different
number or kind of Shares or other securities of the Company, by reason
of a reclassification, recapitalization, merger, consolidation,
reorganization, stock dividend, stock split or reverse stock split,
combination or exchange of shares or other similar events.
c. "Code" means the Internal Revenue Code of 1986, as amended.
d. "Company" means Internet America, Inc., a Texas corporation.
e. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
f. "Fair Market Value" on any date means the closing price of
Shares on such date on the principal national securities exchange on
which Shares are listed or admitted to trading, the arithmetic mean of
the per Share closing bid priced and per Share closing asked price on
such date as quoted on the National Association of Securities Dealers
Automated Quotation System or such then market in which such prices
are regularly quoted, or, if there have been no published bid or asked
quotations with respect to Shares on such date, the Fair Market Value
shall be the value established by the Board in good faith and in
accordance with Section 422 of the Code.
g. "Shares" means the common stock, par value $.01 per share, of
the Company.
2. Grant of Option.
The Company hereby grants to the Optionee, for valuable consideration,
receipt of which is hereby acknowledged, a Non-Qualified Stock Option ("Option")
to purchase from the Company an aggregate of 15,000 shares at a purchase price
(the "Option Price") of $.20 per share.
3. Exercise Period. The Option is non-forfeitable and shall hereafter be
exercisable in whole or in part. The option may be exercised only with respect
to full Shares and may not be
<PAGE> 2
exercised after the close of business on the day (the "Termination Date")
preceding the tenth anniversary of the date hereof. The Option shall have no
effect after the Termination Date.
4. Exercise of an Option. The exercise of an Option shall be made only by
a written notice delivered in person or by mail to the Secretary of the Company
at the Company's principal executive office, specifying the number of Shares to
be purchased and accompanied by payment therefor. The purchase price for any
Shares purchased pursuant to the exercise of an Option shall be paid in full
upon such exercise by delivery of cash or personal check in amount of purchase
price. The written notice may provide instructions from the Optionee to the
Company that upon receipt of the purchase price in cash from the Optionee's
broker or dealer, designated as such on the written notice, in payment for any
Shares purchased pursuant to the exercise of an Option, the Company shall issue
such Shares directly to the broker or dealer. If requested by the Board, the
Optionee shall deliver this Agreement to the Secretary of the Company who shall
endorse thereon a notation of such exercise and return such Agreement to the
Optionee. No fractional Shares (or cash in lieu thereof) shall be issued upon
exercise of an Option and the number of Shares that may be purchased upon
exercise shall be rounded to the nearest number of whole Shares.
5. Rights of Optionee. The Optionee shall not be deemed for any purpose
to be the owner of any Shares subject to any Option unless and until (i) the
Option shall have been exercised pursuant to the terms thereof, (ii) the Company
shall have issued and delivered the Shares to the Optionee and (iii) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company. Thereupon, the Optionee shall have full voting, dividend and
other ownership rights with respect to such Shares.
6. Adjustment Upon Changes in Capitalization.
a. Subject to Section 7, in the event of a Change in
Capitalization, the number and class of Shares or other stock or
securities which are subject to the Option, and the purchase price
therefor, if applicable, shall be appropriately and equitably
adjusted.
b. If, by reason of a Change in Capitalization, the Optionee
shall be entitled to exercise an Option with respect to new,
additional or different shares of stock or securities, such new,
additional or different shares shall thereupon be subject to all of
the conditions which were applicable to the Shares subject to the
Option, as the case may be, prior to such Change in Capitalization.
7. Effect of Certain Transactions.
In the event of (i) the liquidation or dissolution of the Company
or (ii) a merger or consolidation of the Company (a "Transaction"), the Option
issued hereunder shall continue in effect in accordance with its terms and the
Optionee shall be entitled to receive in respect of each Share subject to any
outstanding Option, upon exercise of any Option, the same number and kind of
stock, securities, cash, property, or other consideration that each holder of a
Share was entitled
<PAGE> 3
to receive in the Transaction in respect of a Share. In the event that, after a
Transaction, there occurs any Change in Capitalization with respect to the
shares of a surviving or resulting corporation, then adjustments similar to, and
subject to the same conditions as, those in Section 6 hereof shall be made by
the Board.
8. Effect of Certain Transactions.
a. Notwithstanding anything to the contrary or in the Agreement,
the Optionee shall forfeit 100% of the Options granted pursuant to
this Agreement, whether or not vested, if the Optionee breaches the
provisions of subsections (b) or (d) of this Section 9.
b. During the period that the Optionee is employed by the Company
or any affiliate of the Company (the "Service Term") and for a period
of one year thereafter, the Optionee shall not, in the continental
United States, directly or indirectly, own, manage, operate, join,
control, be employed by, or participate in the ownership, management,
operation or control of or be connected in any manner, including but
not limited to holding the positions of shareholder, director,
officer, consultant, independent contractor, employee, partner, or
investor, with any Competing Enterprise. For purposes of this Section,
the term "Competing Enterprise" shall mean any person, corporation,
partnership or other entity engaged in the operation of an internet
service provider. The prohibition of this Section 9 shall not be
deemed to prevent Optionee from owning 2% or less of any class of
equity securities registered under Section 12 of the Exchange Act.
During the Service Term and for a period of one year thereafter, the
Optionee shall not interfere with the Company's relationship with, or
endeavor to entice away from the Company, any person who at any time
during the Service Term was an employee or customer of the Company or
otherwise had a material business relationship with the Company.
c. The necessity for protection of the Company and its affiliates
against the Optionee's competition, as well as the nature and scope of
such protection, has been carefully considered by the parties hereto
in light of the uniqueness of the Optionee's talent and his importance
to the Company. Accordingly, the Optionee agrees that, in addition to
any other relief to which the Company may be entitled, the Company
shall be entitled to seek and obtain injunctive relief (without the
requirement of any bond) from a court of competent jurisdiction for
the purpose of restraining the Optionee from any actual or threatened
breach of the covenant contained in this Section 9. If for any reason
a final decision of any court determines that the restrictions under
this Section 9 are not reasonable or that consideration therefor is
inadequate, such restrictions shall be interpreted, modified or
rewritten by such court to include as much of the duration, scope and
geographic area identified in this Section 9 as will render such
restrictions valid and enforceable.
d. The Optionee shall not intentionally disclose or reveal to an
unauthorized person, during the Service Term or for a two year period
thereafter, any information
<PAGE> 4
relating to the confidential affairs of the company or any of its
affiliates, including but not limited to technical information,
business and marketing plans, strategies, customer information, other
information concerning the Company's products, promotions,
development, financing, expansion plans, business policies and
practices, and other forms of information considered by the Company to
be confidential and in the nature of trade secrets. The Optionee shall
hold as property of the Company and its affiliates all memoranda,
books, papers, letters and other data, and all copies thereof or
therefrom, which are in any way substantially related to the business
of the company or its affiliates, whether made by him or otherwise
coming into his possession and, on a prior written demand of the
Company made within two years after the end of the Service Term, shall
deliver the same to the company.
9. General Rules
a. The obligation of the Company to sell or deliver Shares with
respect to the Options granted shall be subject to all applicable
laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by
governmental agencies as may be deemed necessary or appropriate by the
Board.
b. The Company shall have the right to deduct from any
distribution of cash to Optionee, an amount equal to the federal,
state and local income taxes and other amounts as may be required by
law to be withheld (the "Withholding Taxes") with respect to any
Option. If Optionee is entitled to receive Shares upon exercise of an
Option, the Optionee shall pay the Withholding Taxes to the Company
prior to the issuance, or release from escrow, of such Shares. In
satisfaction of the Withholding Taxes to the Company, the Optionee may
make a written election (the "Tax Election"), which may be accepted or
rejected in the discretion of the Board, to have withheld a portion of
the Shares issuable to him or her upon exercise of the Option having
an aggregate Fair Market Value, on the date preceding the date of
exercise, equal to the Withholding Taxes, provided that in respect of
an Optionee who may be subject to liability under Section 16(b) of the
Exchange Act either (i)(A) the Optionee makes the Tax Election at
least six (6) months after the date the Option was granted, (B) the
Option is exercised during the ten day period beginning on the third
business day and ending on the twelfth business day following the
release for publication of the Company's quarterly or annual
statements of earnings (a "Window Period") and (C) the Tax Election is
made during the Window Period in which the Option is exercised prior
to such Window Period and subsequent to the immediately preceding
Window Period or (ii)(A) the Tax Election is made at least six (6)
months prior to the date the Option is exercised prior to the
expiration of six (6) months following an election to revoke the Tax
Election. Notwithstanding the foregoing, the Board may, by the
adoption or rules or otherwise, (i) modify the provisions in the
preceding sentence or impose such other restrictions or limitations on
Tax Elections as may be necessary to ensure that the Tax Elections
will be exempt transactions under Section 16(b) of the Exchange Act,
an (ii) permit Tax Elections to be made at such other times and
subject to such other conditions
<PAGE> 5
as the Board determines will constitute exempt transactions under
Section 16b of the Exchange Act.
If Optionee makes a disposition, within the meaning of Section
424(c)of the Code and regulations promulgated thereunder, of any Share
or Shares issued to such Optionee pursuant to the exercise of an
Option within the two-year period commencing on the day after the date
of the grant or within the one-year period commencing on the day after
the date of transfer of such Share or Shares to the Optionee pursuant
to such exercise, the Optionee shall, within ten (10) days of such
disposition, notify the Company thereof, by delivery of written notice
to the Company at its principal executive office, and immediately
deliver to the Company the amount of Withholding Taxes.
c. No Option granted hereunder shall be transferable by the
Optionee to whom granted otherwise than by will or the laws of descent
and distribution, and an Option may be exercised during the lifetime
of such Optionee only by the Optionee or his or her guardian or legal
representative. The terms of such an Option shall be final, binding
and conclusive upon the beneficiaries, executors, administrators,
heirs and successors of the Optionee.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and the Optionee has hereunto set his hand, as of the day and year first above
written.
INTERNET AMERICA, INC.
/s/ ROBERT J. MAYNARD, JR.
-------------------------------------
Robert J. Maynard, Jr.
Chief Executive Officer
OPTIONEE
/s/ KEITH WEINBERGER
-------------------------------------
<PAGE> 1
EXHIBIT 99.10
NON-QUALIFIED STOCK OPTION AGREEMENT
Agreement made effective as of the 20th day of April, 1999 by and between
Internet America, Inc. (the "Company") and GARY L. CORONA (the "Optionee").
1. Definitions. For purposes of this Agreement:
a. "Board" means the Board of Directors of the Company.
b. "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a
change in value) in the Shares or exchange of Shares for a different
number or kind of Shares or other securities of the Company, by reason
of a reclassification, recapitalization, merger, consolidation,
reorganization, stock dividend, stock split or reverse stock split,
combination or exchange of shares or other similar events.
c. "Change in Control" shall be deemed to have occurred when the
first of the following events occurs:
(i) when the Company acquires actual knowledge that any
person or group (as such terms are used in Sections
13(d) and 14(d) (2) of the Exchange Act), other than an
employee benefit plan established or maintained by the
Company or any of its subsidiaries or the current
largest stockholder, is or becomes the beneficial owner
(as defined under rule 13d-3 of the Exchange Act)
directly or indirectly, or securities of the Company
representing 30 percent or more of the combined voting
power of the Company's directors;
(ii) upon the approval by the Company's stockholders of (A)
a merger or consolidation of the Company with or into
another Corporation (other than a merger or
consolidation in which the Company is the surviving
corporation and which does not result in any capital
reorganization or reclassification or other change in
the Company's then outstanding shares of common stock),
(B) a sale or disposition of all or substantially all
of the Company's assets or (C) a plan of liquidation or
dissolution of the Company; or
(iii) if, at any time, two-thirds of the members of the
Board are not "Continuing Directors". For this purpose
" Continuing Directors" shall mean the members of the
Board of Directors as of September 30, 1995, and any
individual who becomes a member of the Board thereafter
if his or her election or nomination for election as a
director was approved by a vote of at least two-third
of the Continuing Directors then in office.
d. "Code" means the Internal Revenue Code of 1986, as amended.
<PAGE> 2
e. "Company" means Internet America, Inc., a Texas corporation.
f. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
g. "Fair Market Value" on any date means the closing price of
Shares on such date on the principal national securities exchange on
which Shares are listed or admitted to trading, the arithmetic mean of
the per Share closing bid priced and per Share closing asked price on
such date as quoted on the National Association of Securities Dealers
Automated Quotation System or such then market in which such prices
are regularly quoted, or, if there have been no published bid or asked
quotations with respect to Shares on such date, the Fair Market Value
shall be the value established by the Board in good faith.
h. "Shares" means the common stock, par value $.01 per share, of
the Company.
2. Grant of Option. The Company hereby grants to the Optionee, for valuable
consideration, receipt of which is hereby acknowledged, a Non-Qualified Stock
Option ("Option") to purchase from the Company an aggregate of 75,000 Shares at
a purchase price (the "Option Price") of $25.00 per share.
3. Exercise Period. The Option shall become non-forfeitable according to
the following schedule and shall hereafter be exercisable in whole or in part:
(i) First Installment: 18,750 on April 20, 1999
(ii) Second Installment: 18,750 on April 20, 2000
(iii) Third Installment: 18,750 on April 20, 2001
(iv) Fourth Installment: 18,750 on April 20, 2002
The Option may be exercised only with respect to full Shares and may not be
exercised after the close of business on the day (the "Termination Date")
preceding the tenth anniversary of the date hereof. The Option shall have no
effect after the Termination Date.
4. Exercise of an Option. The exercise of an Option shall be made only by a
written notice delivered in person or by mail to the Secretary of the Company at
the Company's principal executive office, specifying the number of Shares to be
purchased and accompanied by payment therefor. The purchase price for any Shares
purchased pursuant to the exercise of an Option shall be paid in full upon such
exercise by delivery of cash or personal check in amount of purchase price. The
written notice may provide instructions from the Optionee to the Company that
upon receipt of the purchase price in cash from the Optionee's broker or dealer,
designated as such on the written notice, in payment for any Shares purchased
pursuant to the exercise of an Option, the Company shall issue such Shares
directly to the broker or dealer. If requested by the Board, the Optionee shall
deliver this Agreement to the Secretary of the Company who shall endorse thereon
a notation of such exercise and return such Agreement to the Optionee. No
fractional Shares (or cash in lieu thereof) shall be issued upon exercise of an
Option and the number of
<PAGE> 3
Shares that may be purchased upon exercise shall be rounded to the nearest
number of whole Shares.
5. Rights of Optionee. The Optionee shall not be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (i) the Option
shall have been exercised pursuant to the terms thereof, (ii) the Company shall
have issued and delivered the Shares to the Optionee and (iii) the Optionee's
name shall have been entered as a stockholder of record on the books of the
Company. Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such Shares.
6. Adjustment Upon Changes in Capitalization.
a. Subject to Section 7, in the event of a Change in Capitalization,
the number and class of Shares or other stock or securities which are
subject to the Option, and the purchase price therefor, if applicable,
shall be appropriately and equitably adjusted.
b. If, by reason of a Change in Capitalization, the Optionee shall be
entitled to exercise an Option with respect to new, additional or different
shares of stock or securities, such new, additional or different shares
shall thereupon be subject to all of the conditions which were applicable
to the Shares subject to the Option, as the case may be, prior to such
Change in Capitalization.
7. Effect of Certain Transactions. In the event of (i) the liquidation or
dissolution of the Company or (ii) a merger or consolidation of the Company (a
"Transaction"), the Option issued hereunder shall continue in effect in
accordance with its terms and the Optionee shall be entitled to receive in
respect of each Share subject to any outstanding Option, upon exercise of any
Option, the same number and kind of stock, securities, cash, property, or other
consideration that each holder of a Share was entitled to receive in the
Transaction in respect of a Share. In the event that, after a Transaction, there
occurs any Change in Capitalization with respect to the shares of a surviving or
resulting corporation, then adjustments similar to, and subject to the same
conditions as, those in Section 6 hereof shall be made by the Board.
8. Effect of Change in Control. Notwithstanding anything contained in this
Agreement to the contrary, in the event of a Change in Control, all Options
outstanding on the date of such Change in Control shall become immediately and
fully exercisable.
9. Effect of Certain Transactions.
a. Notwithstanding anything to the contrary or in the Agreement, the
Optionee shall forfeit 100% of the Options granted pursuant to this
Agreement, whether or not vested, if the Optionee breaches the provisions
of subsections (b) or (d) of this Section 9.
b. During the period that the Optionee is employed by the Company or
any affiliate of the Company (the "Service Term") and for a period of one
year thereafter,
<PAGE> 4
the Optionee shall not, in the continental United States, directly or
indirectly, own, manage, operate, join, control, be employed by, or
participate in the ownership, management, operation or control of or be
connected in any manner, including but not limited to holding the positions
of shareholder, director, officer, consultant, independent contractor,
employee, partner, or investor, with any Competing Enterprise. For purposes
of this Section, the term "Competing Enterprise" shall mean any person,
corporation, partnership or other entity engaged in the operation of an
internet service provider. The prohibition of this Section 9 shall not be
deemed to prevent Optionee from owning 2% or less of any class of equity
securities registered under Section 12 of the Exchange Act. During the
Service Term and for a period of one year thereafter, the Optionee shall
not interfere with the Company's relationship with, or endeavor to entice
away from the Company, any person who at any time during the Service Term
was an employee or customer of the Company or otherwise had a material
business relationship with the Company.
c. The necessity for protection of the Company and its affiliates
against the Optionee's competition, as well as the nature and scope of such
protection, has been carefully considered by the parties hereto in light of
the uniqueness of the Optionee's talent and his importance to the Company.
Accordingly, the Optionee agrees that, in addition to any other relief to
which the Company may be entitled, the Company shall be entitled to seek
and obtain injunctive relief (without the requirement of any bond) from a
court of competent jurisdiction for the purpose of restraining the Optionee
from any actual or threatened breach of the covenant contained in this
Section 9. If for any reason a final decision of any court determines that
the restrictions under this Section 9 are not reasonable or that
consideration therefor is inadequate, such restrictions shall be
interpreted, modified or rewritten by such court to include as much of the
duration, scope and geographic area identified in this Section 9 as will
render such restrictions valid and enforceable.
d. The Optionee shall not intentionally disclose or reveal to an
unauthorized person, during the Service Term or for a two year period
thereafter, any information relating to the confidential affairs of the
company or any of its affiliates, including but not limited to technical
information, business and marketing plans, strategies, customer
information, other information concerning the Company's products,
promotions, development, financing, expansion plans, business policies and
practices, and other forms of information considered by the Company to be
confidential and in the nature of trade secrets. The Optionee shall hold as
property of the Company and its affiliates all memoranda, books, papers,
letters and other data, and all copies thereof or therefrom, which are in
any way substantially related to the business of the company or its
affiliates, whether made by him or otherwise coming into his possession
and, on a prior written demand of the Company made within two years after
the end of the Service Term, shall deliver the same to the company.
<PAGE> 5
10. General Rules
a. The obligation of the Company to sell or deliver Shares with
respect to the Options granted shall be subject to all applicable laws,
rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Board.
b. The Company shall have the right to deduct from any distribution of
cash to Optionee, an amount equal to the federal, state and local income
taxes and other amounts as may be required by law to be withheld (the
"Withholding Taxes") with respect to any Option. If Optionee is entitled to
receive Shares upon exercise of an Option, the Optionee shall pay the
Withholding Taxes to the Company prior to the issuance, or release from
escrow, of such Shares. In satisfaction of the Withholding Taxes to the
Company, the Optionee may make a written election (the "Tax Election"),
which may be accepted or rejected in the discretion of the Board, to have
withheld a portion of the Shares issuable to him or her upon exercise of
the Option having an aggregate Fair Market Value, on the date preceding the
date of exercise, equal to the Withholding Taxes, provided that in respect
of an Optionee who may be subject to liability under Section 16(b) of the
Exchange Act either (i)(A) the Optionee makes the Tax Election at least six
(6) months after the date the Option was granted, (B) the Option is
exercised during the ten day period beginning on the third business day and
ending on the twelfth business day following the release for publication of
the Company's quarterly or annual statements of earnings (a "Window
Period") and (C) the Tax Election is made during the Window Period in which
the Option is exercised prior to such Window Period and subsequent to the
immediately preceding Window Period or (ii)(A) the Tax Election is made at
least six (6) months prior to the date the Option is exercised prior to the
expiration of six (6) months following an election to revoke the Tax
Election. Notwithstanding the foregoing, the Board may, by the adoption or
rules or otherwise, (i) modify the provisions in the preceding sentence or
impose such other restrictions or limitations on Tax Elections as may be
necessary to ensure that the Tax Elections will be exempt transactions
under Section 16(b) of the Exchange Act, and (ii) permit Tax Elections to
be made at such other times and subject to such other conditions as the
Board determines will constitute exempt transactions under Section 16b of
the Exchange Act.
c. No Option granted hereunder shall be transferable by the Optionee
to whom granted otherwise than by will or the laws of descent and
distribution, and an Option may be exercised during the lifetime of such
Optionee only by the Optionee or his or her
<PAGE> 6
guardian or legal representative. The terms of such an Option shall be
final, binding and conclusive upon the beneficiaries, executors,
administrators, heirs and successors of the Optionee.
d. Termination of Employment or Service. Unless otherwise provided in
the Agreement evidencing the Option, an option shall terminate on or
following an Optionee's termination of employment with the Company and its
Subsidiaries or service as a director of the Company and its Subsidiaries
as follows:
(i) If an Optionee's employment terminates for any reason other
than death, Disability or Cause, the Optionee may at any
time within three (3) months after his or her termination of
employment or service as a director, exercise an option to
the extent, and only to the extent, that the Option or
portion thereof was exercisable at the date of such
termination;
(ii) In the event the Optionee's employment or service as a
director terminates as a result of Disability, the Optionee
may at any time within one (1) year after such termination
exercise such Option to the extent, and only to the extent,
the Option or portion thereof was exercisable at the date of
such termination;
(iii) If an Optionee's employment or service as a director
terminates for Cause, the Option shall terminate immediately
and no rights thereunder may be exercised;
(iv) If an Optionee dies while an employee of the Company or any
Subsidiary or within three(3) months after termination as
described in clause (1) of this Section 10(e), the Option
may be exercised any time within one (1) year after the
Optionee's death by the person or persons to whom such
rights under the Option pass by will or by the laws of
descent and distribution; provided, however, that an option
may be exercised to the extent, and only to the extent, that
the Option or portion thereof was exercisable on the date of
death or earlier termination.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and the Optionee has hereunto set his hand, as of the day and year first above
written.
INTERNET AMERICA, INC.
/s/ MICHAEL T. MAPLES
--------------------------
Michael T. Maples
Chief Executive Officer
OPTIONEE
/s/ GARY L. CORONA
--------------------------
