<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 1, 2000
REGISTRATION NO. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WHITTMAN-HART, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3797833
(State or other jurisdiction of (IRS Employer Identification
of incorporation or organization) Number)
311 SOUTH WACKER DRIVE, SUITE 3500, CHICAGO, ILLINOIS 60606-6618,
(312) 922-9200
(Address of Principal Executive Offices including Zip Code)
USWEB CORPORATION AFFILIATE WARRANT PROGRAM
USWEB CORPORATION 1996 EQUITY COMPENSATION PLAN
USWEB CORPORATION 1996 STOCK OPTION PLAN
USWEB CORPORATION 1997 ACQUISITION STOCK OPTION PLAN
USWEB CORPORATION 1997 EMPLOYEE STOCK PURCHASE PLAN
USWEB CORPORATION 1999 NONSTATUTORY STOCK OPTION PLAN
CKS GROUP, INC. 1995 SERIES B COMMON STOCK PLAN
CKS GROUP, INC. 1995 STOCK PLAN
CKS GROUP, INC. 1996 SUPPLEMENTAL STOCK PLAN
CKS GROUP, INC. 1997 EMPLOYEE STOCK PURCHASE PLAN
IKONIC PLAN
SHAW EMPLOYMENT AGREEMENT
SITESPECIFIC, INC. 1996 STOCK OPTION PLAN
WARRANTS ISSUABLE UNDER CLOUDBREAK AGREEMENT
(Full title of plan)
ROBERT F. BERNARD
CHIEF EXECUTIVE OFFICER
311 SOUTH WACKER DRIVE, SUITE 3500, CHICAGO, ILLINOIS 60606-6618,
(312) 922-9200
(Name, address and telephone number of agent for service)
COPIES TO:
MATTHEW S. BROWN, ESQ.
KATTEN MUCHIN ZAVIS
525 W. MONROE STREET, SUITE 1600
CHICAGO, IL 60661
---------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) PER SHARE PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE 170,969 shares(2) $ 4.08 (2) $ 697,553.52 $ 184.15
$.001 PER SHARE ...........
- ------------------------------------------------------------------------------------------------------------------
COMMON STOCK, PAR VALUE 9,863,721 shares(3) $ 29.99 (3) $295,812,992.79 $78,094.63
$.001 PER SHARE ...........
==================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) PER SHARE PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share ........... 6,606 shares(4) $ 1.40(4) $ 9,248.40 $ 2.44
==================================================================================================================
Common Stock, par value
$.001 per share ........... 9,341,704 shares(5) $24.73(5) $231,020,339.92 $60,989.37
==================================================================================================================
Common Stock, par value
$.001 per share ........... 1,725,866 shares(6) $36.13(6) $ 62,355,538.58 $16,461.86
==================================================================================================================
Common Stock, par value
$.001 per share ........... 51,009 shares(7) $26.45(7) $ 1,349,188.05 $ 356.19
==================================================================================================================
Common Stock, par value
$.001 per share ........... 55,067 shares(8) $ 4.58(8) $ 252,206.86 $ 66.58
==================================================================================================================
Common Stock, par value
$.001 per share ........... 1,690,562 shares(9) $12.31(9) $ 20,810,818.22 $ 5,494.06
==================================================================================================================
Common Stock, par value
$.001 per share ........... 508,694 shares(10) $11.59(10) $ 5,895,763.46 $ 1,556.48
==================================================================================================================
Common Stock, par value
$.001 per share ........... 633,644 shares(11) $36.13(11) $ 22,893,557.72 $ 6,043.90
==================================================================================================================
Common Stock, par value
$.001 per share ........... 602 shares(12) $ 2.25(12) $ 1,354.50 $ 0.36
==================================================================================================================
Common Stock, par value
$.001 per share............ 4,872 shares(13) $21.32(13) $ 103,871.04 $ 27.42
==================================================================================================================
Common Stock, par value
$.001 per share............ 1,038,000 shares(14) $11.56(14) $ 11,999,280 $ 3,167.81
==================================================================================================================
Common Stock, par value
$.001 per share ........... 462,763 shares(15) $32.77(15) $ 15,164,743.51 $ 4,003.49
==================================================================================================================
TOTAL 25,554,079 shares $371,885,910.26 $ 98,169.96
==================================================================================================================
</TABLE>
(1) Includes an indeterminate number of shares of common stock, par value $.001
per share, of Whittman-Hart, Inc. ("WhittmanHart Common Stock") that may be
issuable by reason of stock splits, stock dividends or similar
transactions.
(2) Represents shares issuable upon exercise of outstanding warrants under the
USWeb Corporation Affiliate Warrant Program (the "Warrant Program"). The
dollar amounts are based upon the weighted average exercise price of the
shares subject to outstanding warrants under the Warrant Program.
(3) Represents shares issuable upon exercise of outstanding options under the
USWeb Corporation 1996 Equity Compensation Plan (the "1996 Equity Plan").
The dollar amounts are based upon the weighted average exercise price of
the shares subject to outstanding options under the 1996 Equity Plan.
(4) Represents shares issuable upon exercise of outstanding options under the
USWeb Corporation 1996 Stock Option Plan (the "1996 Stock Plan"). The
dollar amounts are based upon the weighted average exercise price of the
shares subject to outstanding options under the 1996 Stock Plan.
(5) Represents shares issuable upon exercise of outstanding options under the
USWeb Corporation 1997 Acquisition Stock Option Plan (the "1997 Acquisition
Plan"). The dollar amounts are based upon the weighted average exercise
price of the shares subject to outstanding options under the 1997
Acquisition Plan.
(6) Represents shares reserved for issuance under the USWeb Corporation 1997
Employee Stock Purchase Plan (the "1997 Purchase Plan"). The dollar
amounts are based upon the average of the high and low sales prices of
WhittmanHart Common Stock, as reported on the Nasdaq National Market on
February 23,2000, and used solely for the purpose of calculating the
registration fee pursuant to Rule 457 under the Securities Act of 1933.
(7) Represents shares issuable upon exercise of outstanding options under the
USWeb Corporation 1999 Nonstatutory Stock Option Plan (the "1999 NSO
Plan"). The dollar amounts are based upon the weighted average exercise
price of the shares subject to outstanding options under the 1999 NSO Plan.
(8) Represents shares issuable upon exercise of outstanding options under the
CKS Group, Inc. 1995 Series B Common Stock Plan (the "Series B Plan"). The
dollar amounts are based upon the weighted average exercise price of the
shares subject to outstanding options under the Series B Plan.
(9) Represents shares issuable upon exercise of outstanding options under the
CKS Group, Inc. 1995 Stock Plan (the "1995 Stock Plan"). The dollar amounts
are based upon the weighted average exercise price of the shares subject to
outstanding options under the 1995 Stock Plan.
(10) Represents shares issuable upon exercise of outstanding options under the
CKS Group, Inc. 1996 Supplemental Stock Plan (the "1996 Supplemental
Plan"). The dollar amounts are based upon the weighted average exercise
price of the shares subject to outstanding options under the 1996
Supplemental Plan.
(11) Represents shares reserved for issuance under the CKS Group, Inc.
1997 Employee Stock Purchase Plan (the "CKS 1997 Purchase Plan").
The dollar amounts are based upon the weighted average exercise price of
the shares subject to outstanding options under the CKS 1997 Purchase
Plan.
(12) Represents shares issuable upon exercise of outstanding options under the
SiteSpecific, Inc. 1996 Stock Option Plan (the "SiteSpecific Plan"). The
dollar amounts are based upon the weighted average exercise price of the
shares subject to outstanding options under the SiteSpecific Plan.
(13) Represents shares issuable upon exercise of outstanding options under the
Ikonic Plan. The dollar amounts are based upon the weighted average
exercise price of the shares subject to outstanding options under the
Ikonic Plan.
(14) Represents shares issuable upon exercise of outstanding options under the
Shaw Agreement. The dollar amounts are based upon the weighted average
exercise price of the shares subject to outstanding options under the Shaw
Agreement.
(15) Represents shares issuable upon exercise of Warrants Issuable Under
Cloudbreak Agreement (the "Cloudbreak Warrants"). The dollar amounts are
based upon the weighted average exercise price of the shares subject to the
outstanding Cloudbreak Warrants.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
Registration Statement:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1998, which has heretofore been filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act").
(2) The Company's Quarterly Report on Form 10-Q for the quarters ended
September 30, 1999, June 30, 1999 and March 31, 1999, which have heretofore been
filed by the Company with the Commission pursuant to the 1934 Act.
(3) The Company's Current Report on Form 8-K filed on January 28, 2000,
January 26,2000, December 15, 1999, October 15, 1999 and May 10, 1999, which
have heretofore been filed by the Company with the Commission pursuant to the
1934 Act.
(4) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission pursuant
to Section 12(g) of the 1934 Act.
All documents subsequently filed by the Company pursuant to Sections13(a),
13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement 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 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 subsequently filed document which also is or is deemed to be
incorporated by reference 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. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Ten of the Company's Certificate of Incorporation and Article
Eight of the by-laws provide that the Company shall indemnify its directors and
officers to the full extent permitted by the Delaware General Corporation Law.
3
<PAGE>
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities arising under the
Securities Act of 1933, as amended (the "1933 Act"). In addition, Article Eight
of the Company's Certificate of Incorporation provides that a director of the
Company shall not be personally liable to the Company or its stockholders for
monetary damages for breach of his or her fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derives an improper personal benefit.
Reference is made to Section 145 of the General Corporation Law of the
State of Delaware which provides for indemnification of directors and officers
in certain circumstances.
The Company has obtained an insurance policy which will entitle the Company
to be reimbursed for certain indemnity payments it is required or permitted to
make to its directors and officers.
Pursuant to a merger agreement by and among the Company, a wholly owned
subsidiary of the Company and USWeb Corporation ("USWeb/CKS"), the Company has
become obligated to indemnify present and former USWeb/CKS directors and
officers to the full extent of the law; provided however that the
indemnification shall not exceed the greater of the indemnification provided by
USWeb/CKS's Certificate of Incorporation and by-laws as in effect on December
12, 1999 or the indemnification actually provided by USWeb/CKS on December 12,
1999. In addition, for six years the Company will maintain in effect the
USWeb/CKS policies of directors' and officers' liability insurance in effect as
of March 1, 2000 with respect to claims arising from facts or events that occur
on or before the effective date of the merger. The Company is not, however,
required to expend more than 200% of the USWeb/CKS annual premium in effect as
of March 1, 2000 for such insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.1(d) to the
Company's Registration Statement on Form S-1 (No. 333-1778).
4.2 Second Amended and Restated Bylaws of the Company, incorporated
herein by reference to Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (No. 333-1778).
4.3 USWeb Corporation Affiliate Warrant Program.
4.4 USWeb Corporation 1996 Equity Compensation Plan, incorporated
herein by reference to USWeb Corporation's Registration Statement
on Form S-8 (No. 333-55893).
4.5 USWeb Corporation 1996 Stock Option Plan, incorporated herein by
reference to USWeb Corporation's Registration Statement on Form
S-1 (No. 333-36827).
4
<PAGE>
4.6 USWeb Corporation 1997 Acquisition Stock Option Plan,
incorporated herein by reference to USWeb Corporation's
Registration Statement on Form S-8 (No. 333-55893).
4.7 USWeb Corporation 1997 Employee Stock Purchase Plan, incorporated
herein by reference to USWeb Corporation's Registration Statement
on Form S-8 (No. 333-55893).
4.8 USWeb Corporation 1999 Nonstatutory Stock Option Plan.
4.9 CKS Group, Inc. 1995 Series B Common Stock Plan, incorporated
herein by reference to USWeb Corporation's Registration Statement
on Form S-8 (No. 333-69093).
4.10 CKS Group, Inc. 1995 Stock Plan, incorporated herein by reference
to USWeb Corporation's Registration Statement on Form S-8
(No. 333-69093).
4.11 CKS Group, Inc. 1996 Supplemental Stock Plan, incorporated herein
by reference to CKS Group's Registration Statement on Form S-8
(No. 333-69093).
4.12 CKS Group, Inc. 1997 Employee Stock Purchase Plan, incorporated
herein by reference to USWeb Corporation's Registration Statement
on Form S-8 (No. 333-69093).
4.13 SiteSpecific, Inc. 1996 Stock Option Plan, incorporated herein by
reference to USWeb Corporation's Registration Statement on
Form S-8 (No. 333-69093).
4.14 Shaw Employment Agreement.
4.15 Amendment to Shaw Employment Agreement.
4.16 Form of Warrants Issuable Under Cloudbreak Agreement.
4.17 Specimen stock certificate representing common stock,
incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (No. 333-36827).
5.1 Opinion of Katten Muchin Zavis as to validity of the
securities being registered.
23.1 Consent of KPMG LLP, independent accountants.
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants.
23.3 Consent of Katten Muchin Zavis (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS.
The registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
5
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(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)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the 1933
Act, 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.
(c) 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.
(d) That, for the purposes of determining any liability under the 1933
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the 1934 Act) 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.
(e) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 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
6
<PAGE>
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Chicago,
State of Illinois on the 1 of March, 2000.
WHITTMAN-HART, INC.
By: /s/ Robert F. Bernard
----------------------------------
Robert F. Bernard
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Robert F. Bernard and Bert B. Young and each of them his true and lawful
attorneys-in-fact and agents, with full power of substitution, to sign on his
behalf, individually and in each capacity stated below, all amendments and
post-effective amendments to this Registration Statement on Form S-8 and to file
the same, with all exhibits thereto and any other documents in connection
therewith, with the SEC under the Securities Act, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as each might or could do in
person, hereby ratifying and confirming each act that said attorneys-in-fact and
agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on March 1 , 2000.
/s/ Robert F. Bernard
- ---------------------------- CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE
Robert F. Bernard BOARD OF DIRECTORS
(PRINCIPAL EXECUTIVE OFFICER)
/s/ Bert B. Young CHIEF FINANCIAL OFFICER AND TREASURER
- ----------------------------
Bert B. Young (PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER)
/s/ Edward F. Szofer DIRECTOR, PRESIDENT AND SECRETARY
- ----------------------------
Edward F. Szofer
/s/ Paul D. Carbery DIRECTOR
- ----------------------------
Paul D. Carbery
/s/ Lawrence P. Roches DIRECTOR
- ----------------------------
Lawrence P. Roches
/s/ Robert F. Steel DIRECTOR
- ----------------------------
Robert F. Steel
/s/ W. Barry Moore DIRECTOR
- ----------------------------
W. Barry Moore
/s/ David P. Storch DIRECTOR
- ----------------------------
David P. Storch
8
<PAGE>
INDEX TO EXHIBITS
Numbers Description
- ----------- -----------------------------------------------------------------
4.1 Amended and Restated Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.1(d) to the
Company's Registration Statement on Form S-1 (No. 333-1778).
4.2 Second Amended and Restated Bylaws of the Company,
incorporated herein by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 (No. 333-1778).
4.3 USWeb Corporation Affiliate Warrant Program.
4.4 USWeb Corporation 1996 Equity Compensation Plan, incorporated
herein by reference to USWeb Corporation's Registration Statement
on Form S-8 (No. 333-55893).
4.5 USWeb Corporation 1996 Stock Option Plan, incorporated herein by
reference to USWeb Corporation's Registration Statement on Form
S-1 (No. 333-36827).
4.6 USWeb Corporation 1997 Acquisition Stock Option Plan,
incorporated herein by reference to USWeb Corporation's
Registration Statement on Form S-8 (No. 333-55893).
4.7 USWeb Corporation 1997 Employee Stock Purchase Plan, incorporated
herein by reference to USWeb Corporation's Registration Statement
on Form S-8 (No. 333-55893).
4.8 USWeb Corporation 1999 Nonstatutory Stock Option Plan.
4.9 CKS Group, Inc. 1995 Series B Common Stock Plan, incorporated
herein by reference to USWeb Corporation's Registration Statement
on Form S-8 (No. 333-69093).
4.10 CKS Group, Inc. 1995 Stock Plan, incorporated herein by reference
to USWeb Corporation's Registration Statement on Form S-8 (No.
333-69093).
4.11 CKS Group, Inc. 1996 Supplemental Stock Plan, incorporated herein
by reference to CKS Group's Registration Statement on Form S-8
(No. 333-69093).
4.12 CKS Group, Inc. 1997 Employee Stock Purchase Plan, incorporated
herein by reference to USWeb Corporation's Registration Statement
on Form S-8 (No. 333-69093).
4.13 SiteSpecific, Inc. 1996 Stock Option Plan, incorporated herein by
reference to USWeb Corporation's Registration Statement on Form
S-8 (No. 333-69093).
4.14 Shaw Employment Agreement.
4.15 Amendment to Shaw Employment Agreement.
4.16 Form of Warrants Issuable Under Cloudbreak Agreement.
4.17 Specimen stock certificate representing common stock,
incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (No. 333-36827).
5.1 Opinion of Katten Muchin Zavis as to validity of the securities
being registered.
23.1 Consent of KPMG LLP, independent accountants.
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants.
23.3 Consent of Katten Muchin Zavis (included in Exhibit 5.1).
9
<PAGE>
24.1 Power of Attorney (included on signature page).
10
<PAGE>
EXHIBIT 4.3
USWEB CORPORATION
AGR WARRANT
SUMMARY SHEET
Unless otherwise defined in this Summary Sheet, the terms defined in the
USWeb Corporation ("Company") Common Stock Purchase Warrant dated ____________
(the "Warrant") shall have the same meanings in this Summary Sheet.
I. HOLDER
Name:
-------------------------------------
Address:
-------------------------------------
-------------------------------------
II. GRANT OF WARRANT
You have been granted the following rights to purchase Common Stock of
the Company based on your Adjusted Gross Revenue for the period from
____________ to __________ and subject to the terms of the Warrant attached
hereto:
Warrant Shares:
------------------------------
Date of Grant:
------------------------------
Exercise Price per Share:
------------------------------
Total Exercise Price:
-----------------------------
Expiration Date: The earlier of (i) five years from Date of Grant or
(ii) acquisition of the Company (if the acquiring
company does not assume the Warrant).
III. VESTING SCHEDULE
So long as the holder of the warrant continues to be (i) an owner,
employee or affiliate of a Company Affiliate, (ii) an employee and/or
shareholder of the Company, or (iii) a successor in interest to a Company
Affiliate, this Warrant will vest at the following rate:
On [one year anniversary of Grant Date] as to [25% OF WARRANT SHARES];
and
On the last day of each subsequent month as to [1/48 OF WARRANT SHARES].
<PAGE>
However, (i) this Warrant may not be exercised for vested shares until
the Company's initial public offering (the "IPO"), if any, or an acquisition of
the Company; and (ii) no Warrant Shares acquired upon exercise of the Warrant
may be SOLD until 180 days after an IPO.
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED,
PLEDGED OR OTHERWISE TRANSFERRED WITHOUT (i) AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO, (ii) AN OPINION OF COUNSEL FOR THE HOLDER THAT SUCH
REGISTRATION IS NOT REQUIRED OR (iii) RECEIPT OF A NO-ACTION LETTER FROM THE
SECURITIES AND EXCHANGE COMMISSION TO THE EFFECT THAT REGISTRATION UNDER THE ACT
IS NOT REQUIRED.
NO. ____ USWEB CORPORATION, ______________, 1996
COMMON STOCK PURCHASE WARRANT
This certifies that, for value received, ________________ (together with
any registered assignee(s), the "Holder") is entitled, upon the terms and
subject to the conditions hereinafter set forth, at such times after the date
hereof as are set forth below, to acquire from USWeb Corporation, a Utah
corporation (the "Company"), in whole or from time to time in part, up to
_____________ fully paid and nonassessable shares of Common Stock of the Company
("Warrant Stock") at a purchase price per share (the "Exercise Price") of
__________. Such number of shares, type of security and Exercise Price are
subject to adjustment as provided herein, and all references to "Warrant Stock"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments.
1. TERM
(a) COMMENCEMENT OF EXERCISABILITY. The Warrant is exercisable according
to the schedule set forth in Section 2 hereof.
(b) TERMINATION AND EXPIRATION. If not earlier exercised, the Warrant
shall expire on the fifth anniversary of the date hereof (the "Expiration
Time").
(c) EXCEPTION IN EVENT OF CHANGE IN CONTROL OR ACQUISITION OF THE
COMPANY. Notwithstanding the foregoing, the Warrant shall terminate, if not
earlier exercised, in the event of an acquisition of the Company, unless assumed
by the acquiring entity. In the event the Company is proposed to be acquired in
a BONA FIDE transaction (the "Acquisition") (I.E., not a mere recapitalization,
reincorporation for the purpose of changing corporate domicile, or similar
transaction), regardless of the form of the transaction (E.G., merger,
consolidation, sale or lease of assets or sale of stock), the Company shall give
the Holder not less than fifteen (15) business days' notice of the effective
date of such Acquisition; if the Warrant is otherwise exercisable at such time,
then the Holder shall have the right to exercise same on or prior to the record
date of shareholders
-2-
<PAGE>
eligible to vote (or otherwise approve) with respect to the proposed
Acquisition; if the Warrant is not exercised on or prior to such record date,
the Warrant shall expire upon the occurrence of the closing of the Acquisition,
unless assumed by the acquiring entity.
2. EXERCISE OF WARRANT
(a) VESTING SCHEDULE. This Warrant shall vest over time according to the
following schedule (the "Vesting Schedule"), so long as the Holder continues to
be (i) an owner, employee or affiliate of a Company Affiliate, (ii) an employee
and/or shareholder of the Company, or (iii) a successor in interest to a Company
Affiliate: (i) ________ shares of Warrant Stock shall vest on ____________,
1997; and (ii) ____________ additional shares of Warrant Stock shall vest on or
after the last day of each subsequent month.
(b) EXERCISABILITY EVENT. This Warrant shall become exercisable as to any
or all vested shares upon the earlier to occur of (and may not be exercised for
any such vested shares until) (i) the effective date of the initial public
offering (the "IPO") of the Company's Common Stock pursuant to a registration
statement on Form S-1 or Form SB-2 (or similar or successor form) under the
Securities Act of 1933, as amended (the "1933 Act") or (ii) the effective date
of an Acquisition; PROVIDED THAT in each such case the Holder is a franchisee of
the Company at such time and has been since the date hereof. If the Holder
ceases to be a franchisee of the Company, other than because of Holder's death,
then the Holder may exercise the Warrant for any or all vested Shares at any
time within 90 days from the date of termination. If the Holder dies while a
franchisee, the Warrant may be exercised at any time within 90 days of the date
of death by the Holder's estate or by a person who acquires the right to
exercise the Warrant by bequest or inheritance.
(c) MECHANICS OF EXERCISE. The purchase rights represented by this
Warrant are exercisable by the Holder according to Sections 2(a) and 2(b)
above, in whole in part, prior to the Expiration Time by the surrender of
this Warrant and the Notice of Exercise form attached hereto duly executed to
the headquarters office of the Company at the address set forth on the
signature page hereof (or such other office or agency of the Company as it
may designate by notice in writing to the Holder at the address of such
Holder appearing on the books of the Company), and upon payment of the
Exercise Price for the shares thereby purchased (by cash or by check or bank
draft payable to the order of the Company or by cancellation of indebtedness
of the Company to the Holder, if any, at the time of exercise in an amount
equal to the purchase price of the shares thereby purchased); whereupon the
Holder shall be entitled to receive from the Company a stock certificate in
proper form representing the number of shares of Warrant Stock so purchased,
and a new Warrant in substantially identical form and dated as of such
exercise for the purchase of that number of shares of Warrant Stock equal to
the difference, if any, between the number of shares of Warrant Stock subject
hereto and the number of shares of Warrant Stock as to which this Warrant is
so exercised.
3. NET EXERCISE OF WARRANT
The Holder shall have the right to exercise this Warrant, in whole or in
part, at or prior to the Expiration Time according to Sections 2(a) and 2(b)
above by the surrender of this Warrant and the Notice of Net Exercise form
attached hereto duly executed to the headquarters office of the
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Company at the address set forth on the signature page hereof (or such other
office or agency of the Company as it may designate by notice in writing to
the Holder at the address of such Holder appearing on the books of the
Company), into shares of Warrant Stock as provided in this Section 3 (the
"Net Exercise Right"). Upon exercise of this right, the Holder shall be
entitled to receive that number of shares of the Company's Common Stock
computed by using the following formula:
X(A-B)
Y = ---------
A
Y = the number of shares of Common Stock to be issued to the Holder.
A = the Fair Market Value (as defined below) of one share of the
Company's Common Stock on the date of exercise of this Warrant.
B = the Exercise Price for one share of the Company's Common Stock under
this Warrant.
X = the number of shares of Common Stock purchasable under this Warrant.
If the above calculation results in a negative number, then no shares
of Warrant Stock shall be issued or issuable upon exercise of this Warrant.
"Fair Market Value" of a share of Warrant Stock shall mean:
(a) if the Net Exercise Right is being exercised in connection
with the IPO, the IPO price per share (before deducting
commissions, discounts or expenses) at which the Common
Stock is sold to the public in such IPO;
(b) if the Net Exercise Right is being exercised in connection
with an Acquisition, the price per share to be paid to the
holders of the Company's Common Stock by the acquiring
entity;
(c) in all other cases, the fair value as determined in good
faith by the Company's Board of Directors.
Upon exercise of this Warrant in accordance with this Section 3, the
Holder hereof shall be entitled to receive a certificate for the number of
shares of Warrant Stock determined in accordance with the foregoing, and a new
Warrant in substantially identical form and dated as of such exercise for the
purchase of that number of shares of Warrant Stock equal to the difference, if
any, between the number of shares of Warrant Stock subject hereto and the number
of shares of Warrant Stock as to which this Warrant is so exercised.
4. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP
Certificates for shares purchased hereunder or issuable upon exercise
hereof shall be delivered to the Holder within a reasonable time after the date
on which this Warrant shall have been
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exercised in accordance with the terms hereof. The Company hereby represents and
warrants that all shares of Warrant Stock which may be issued upon the exercise
of this Warrant will, upon such exercise be duly and validly authorized and
issued, fully paid and nonassessable and free from all taxes, liens and charges
in respect of the issuance thereof (other than liens or charges created by or
imposed upon the Holder of the Warrant Stock). The Company agrees that the
shares so issued shall be and shall for all purposes be deemed to have been
issued to such holder as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been exercised in
accordance with the terms hereof. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon the exercise of this Warrant,
an amount equal to such fraction multiplied by the Fair Market Value of a share
of Warrant Stock on the date of exercise shall be paid in cash or check to the
Holder.
5. CHARGES, TAXES AND EXPENSES
Issuance of certificates for shares of Warrant Stock upon the exercise
of this Warrant shall be made without charge to the Holder for any issue or
transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be borne by the Holder,
and such certificates shall be issued in the name of the Holder or in such
name or names as may be directed by the Holder provided, however, that in the
event certificates for shares of Warrant Stock are to be issued in a name
other than the name of the Holder, this Warrant when surrendered for exercise
shall be accompanied by the Assignment Form attached hereto duly executed by
the Holder.
6. NO RIGHTS AS SHAREHOLDERS
This Warrant does not entitle the Holder to any voting rights or other
rights as a shareholder of the Company prior to the exercise hereof.
7. COMPANY'S RIGHT OF FIRST REFUSAL
Before any Warrants or Common Stock (the "Exercised Shares") held by
the Holder or any transferee may be sold or otherwise transferred (including
transfer by gift or operation of law), the Company or its assignee(s) shall
have a right of first refusal to purchase them on the terms and conditions
set forth in this Section (the "Right of First Refusal").
(a) NOTICE OF PROPOSED TRANSFER. The Holder shall deliver to the
Company a written notice (the "Notice") stating: (i) the Holder's BONA FIDE
intention to sell or otherwise transfer such Warrants or Exercised Shares, as
the case may be; (ii) the name of each proposed purchaser or other transferee
("Proposed Transferee"); (iii) the number of Warrants or Exercised Shares to
be transferred to each Proposed Transferee; and (iv) the BONA FIDE cash price
or other consideration for which the Holder proposes to transfer the Warrants
or the Exercised Shares (the "Offered Price"), and the Holder shall offer the
Warrants or the Exercised Shares at the Offered Price to the Company or its
assignee(s).
(b) EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within 30 days after
receipt of the Notice, the Company or its assignee(s) may, by giving written
notice to the Holder, elect to
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purchase all, but not less than all, of the Warrants or Exercised Shares
proposed to be transferred to any one or more of the Proposed Transferees, at
the purchase price determined in accordance with subsection (c) below.
(c) PURCHASE PRICE. The purchase price ("Purchase Price") for the
Warrants or Exercised Shares purchased by the Company or its assignee(s)
under this Section shall be the Offered Price. If the Offered Price includes
consideration other than cash, the cash equivalent value of the non-cash
consideration shall be determined by the Board of Directors of the Company in
good faith.
(d) PAYMENT. Payment of the Purchase Price shall be made in cash (by
check) within 45 days of receipt of the Notice.
(e) HOLDER'S RIGHT TO TRANSFER. If all of the Warrants or Exercised
Shares proposed in the Notice to be transferred to a given Proposed Transferee
are not purchased by the Company or its assignee(s) as provided in this Section,
then the Holder may sell or otherwise transfer such Warrants or Exercised Shares
to that Proposed Transferee at the Offered Price or at a higher price, provided
that such sale or other transfer is consummated within 120 days after the date
of the Notice and provided further that any such sale or other transfer is
effected in accordance with any applicable securities laws and the Proposed
Transferee agrees in writing that the provisions of this Section shall continue
to apply to the Warrants or Exercised Shares in the hands of such Proposed
Transferee. If the Warrants or Exercised Shares described in the Notice are not
transferred to the Proposed Transferee within such period, a new Notice shall be
given to the Company, and the Company or its assignees shall again be offered
the Right of First Refusal before any Warrants or Exercised Shares held by the
Holder may be sold or otherwise transferred.
(f) EXCEPTION FOR CERTAIN TRANSFERS. The Warrant or Exercised Shares may
be transferred without the Company being offered the Right of First Refusal in
the following transactions; provided that any Transferee shall agree to the
terms of this Section 7 as to the Warrant or any Exercised Shares:
(1) A Holder's transfer of the Warrant or Exercised Shares in whole
or in part to the Company.
(2) A Holder's transfer of the Warrant or Exercised Shares in whole
or in part to a person who, at the time of such transfer, is an officer or
director of the Company.
(3) Where the Holder is a corporation, transfer by such corporate
Holder of the Warrant or Exercised Shares in whole or in part pursuant to and in
accordance with the terms of any merger, consolidation, reclassification of
shares or capital reorganization of such corporate Holder, or pursuant to a sale
of all or substantially all of the stock or assets by such corporate Holder.
Any such transfer shall be made upon surrender of this Warrant or
Exercised Shares together with the Assignment Form attached hereto properly
endorsed.
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(g) TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First Refusal
shall terminate as to any Warrants or Exercised Shares 90 days after the
effective date of the IPO.
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<PAGE>
8. MARKET STAND-OFF AGREEMENT
The Holder hereby agrees that if so requested by the Company or any
representative of the underwriters in connection with any registration of the
offering of any shares of the Company under the 1933 Act, the Holder shall not
sell or otherwise transfer, directly or indirectly, or make any agreement to
sell or otherwise transfer any shares or other securities of the Company during
the 180-day period following the date of the final prospectus contained in a
registration statement of the Company filed under the 1933 Act; provided,
however, that such restriction shall only apply to the first registration
statement of the Company to become effective under the 1933 Act which includes
securities to be sold on behalf of the Company to the public in an underwritten
public offering under the 1933 Act. The Company may impose stop-transfer
instructions with respect to securities subject to the foregoing restrictions
until the end of such 180-day period.
9. EXCHANGE AND REGISTRY OF WARRANT
This Warrant is exchangeable, upon the surrender hereof by the Holder at
the above-mentioned office or agency of the Company, for a new Warrant in
substantially identical form and dated as of such exchange. The Company shall
maintain at the above-mentioned office or agency a registry showing the name and
address of the registered holder of this Warrant. This Warrant may be
surrendered for exchange, transfer, or exercise in accordance with its terms, at
such office or agency of the Company, and the Company shall be entitled to rely
in all respects, prior to written notice to the contrary, upon such registry.
10. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
On receipt by the Company of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and in
case of any such loss, theft or destruction of this Warrant, on delivery of an
indemnity agreement reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, on surrender and cancellation of such
Warrant, the Company will execute and deliver to the Holder, in lieu thereof, a
new warrant in substantially identical form, dated as of such cancellation and
reissuance.
11. SATURDAYS, SUNDAYS AND HOLIDAYS
If the last or appointed day for the taking of any action or the
expiration of any right required or granted herein shall be a Saturday or a
Sunday or shall be a legal holiday, then such action may be taken or such right
may be exercised on the next succeeding business day.
12. ADJUSTMENT TO NUMBER AND TYPE OF SECURITIES, EXERCISE PRICE
The type and number of securities of the Company issuable upon exercise
of this Warrant and the Exercise Price are subject to adjustment as set forth
below:
(a) ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS, RECAPITALIZATIONS,
AUTOMATIC CONVERSION, ETC. The Exercise Price and the number and type of
securities or other property issuable upon exercise of this Warrant shall be
appropriately and proportionately adjusted to reflect any stock dividend, stock
split, combination of shares, reclassification, recapitalization, automatic
conversion, redemption or other similar event affecting the number or character
of outstanding shares of Warrant Stock, so that the number and type of
securities or other property issuable upon exercise of this Warrant shall be
equal to that which would have been issuable with respect to the number of
shares of Warrant Stock subject hereto at the time of such event, had such
shares of Warrant Stock then been outstanding.
(b) CERTIFICATE AS TO ADJUSTMENTS. In case of any adjustment in the
Exercise Price or number and type of securities issuable on the exercise of
this Warrant, the Company will promptly give written notice thereof to the
Holder in the form of a certificate, certified and confirmed by an officer of
the Company, setting forth such adjustment and showing in reasonable detail the
facts upon which adjustment is based.
13. NOTICES OF RECORD DATE, ETC.
In the event of:
(a) any taking by the Company of a record of the holders of Warrant Stock
for the purpose of determining the holders thereof who are entitled to receive
any dividend or other distribution,
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, or any transfer of all or
substantially all the assets of the Company to, or consolidation or merger of,
the Company with or into any person,
(c) any voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
(d) a sale of substantially all of the outstanding capital stock of the
Company or the issuance of new shares representing the majority of the Company's
right to vote, or
(e) the initial public offering of the Company's Common Stock, then and
in each such event the Company will mail to the Holder a notice specifying the
record date for voting or the date of closing , as applicable, of any event
(a)-(e) above. Such notice shall be delivered to the Holder at least fifteen
(15) days prior to the date of the relevant event.
14. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Holder that: (a) during
the period this Warrant is outstanding, the Company will reserve from its
authorized and unissued Warrant Stock a sufficient number of shares to provide
for the issuance of Warrant Stock upon the exercise of this Warrant; (b) the
issuance of this Warrant shall constitute full authority to the Company's
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the shares of Warrant Stock
issuable upon exercise of this Warrant; (c) the Company has all requisite legal
and corporate power to execute and deliver this Warrant, to sell and issue the
Warrant Stock hereunder and to carry out and perform its obligations under the
terms of this Warrant; and (d) all corporate action on the part of the Company,
its directors and shareholders necessary for the authorization, execution,
delivery and performance of this Warrant by the Company, the authorization,
sale, issuance and delivery of the Warrant Stock as provided herein and the
performance of the Company's obligations hereunder has been taken;
15. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the
laws of the State of California.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
a duly authorized officer.
Dated: ____________, 1996 USWEB CORPORATION
By:
________________________________________
Title
________________________________________
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NOTICE OF EXERCISE
To: USWeb Corporation
(1) The undersigned hereby elects to purchase __________ shares of
Common Stock of USWeb Corporation pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price in full.
(2) Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name as is specified below:
_________________________________________________
(Name)
_________________________________________________
_________________________________________________
_________________________________________________
(Address)
_________________________________________________
(Social Security Number)
(3) The undersigned represents that the aforesaid shares are being
acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that
the undersigned has no present intention of distributing or reselling such
shares, except in compliance with applicable federal and state securities
laws.
_____________________________ _______________________________________________
(Date)
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NOTICE OF NET EXERCISE
To: USWeb Corporation
(1) The undersigned hereby elects to exercise that portion
of the attached Warrant representing the right to purchase ________ shares of
Common Stock and thereby acquire such number of shares of Common Stock of
USWeb Corporation as is determined pursuant to Section 3 of such Warrant,
which exercise shall be effected pursuant to the terms of the attached
Warrant.
(2) Please issue a certificate or certificates representing
said shares in the name of the undersigned or in such other name as is
specified below:
_________________________________________________
(Name)
_________________________________________________
_________________________________________________
_________________________________________________
(Address)
_________________________________________________
(Social Security Number)
(3) The undersigned represents that the aforesaid shares are
being acquired for the account of the undersigned for investment and not with
a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling
such shares, except in compliance with applicable federal and state
securities laws.
_____________________________ ________________________________________________
(Date)
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
______________________________________________________________________________
(Please Print)
whose address is
______________________________________________________________
(Please Print)
Dated:
___________________________________________________________
Holder's Signature:
_______________________________________________
Holder's Address:
_______________________________________________
_______________________________________________
Guaranteed Signature:
_______________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
NOTE: Assignment of this Warrant may be made only in compliance with the
Company's right of first refusal set forth in Section 7 of the Warrant.
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EXHIBIT 4.8
USWEB CORPORATION
1999 NONSTATUTORY STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this Nonstatutory Stock
Option Plan are:
- to attract and retain the best available personnel for
positions of substantial responsibility,
- to provide additional incentive to Employees, Directors and
Consultants, and
- to promote the success of the Company's business.
Options granted under the Plan will be Nonstatutory Stock Options.
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "ADMINISTRATOR" means the Board or any of its Committees as
shall be administering the Plan, in accordance with Section 4 of the Plan.
(b) "APPLICABLE LAWS" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options are, or will be, granted under
the Plan.
(c) "BOARD" means the Board of Directors of the Company.
(d) "CODE" means the Internal Revenue Code of 1986, as amended.
(e) "COMMITTEE" means a committee of Directors appointed by the
Board inaccordance with Section 4 of the Plan.
(f) "COMMON STOCK" means the Common Stock of the Company.
(g) "COMPANY" means USWeb Corporation, a Utah corporation.
(h) "CONSULTANT" means any person, including an advisor,
engaged by the Company or a Parent or Subsidiary to render services to such
entity.
(i) "DIRECTOR" means a member of the Board.
(j) "DISABILITY" means total and permanent disability as
defined in Section 22(e)(3) of the Code.
<PAGE>
(k) "EMPLOYEE" means any person, including Officers, employed
by the Company or any Parent or Subsidiary of the Company. A Service Provider
shall not cease to be an Employee in the case of (i) any leave of absence
approved by the Company or (ii) transfers between locations of the Company or
between the Company, its Parent, any Subsidiary, or any successor. Neither
service as a Director nor payment of a director's fee by the Company shall be
sufficient to constitute "employment" by the Company.
(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
(m) "FAIR MARKET VALUE" means, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock
Market, its Fair Market Value shall be the closing sales price for such stock
(or the closing bid, if no sales were reported) as quoted on such exchange or
system for the last market trading day prior to the time of determination, as
reported in THE WALL STREET JOURNAL or such other source as the Administrator
deems reliable;
(ii) If the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a Share of Common Stock shall be the mean between the high bid
and low asked prices for the Common Stock on the last market trading day prior
to the day of determination, as reported in THE WALL STREET JOURNAL or such
other source as the Administrator deems reliable;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
(n) "NOTICE OF GRANT" means a written or electronic notice
evidencing certain terms and conditions of an individual Option grant. The
Notice of Grant is part of the Option Agreement.
(o) "OFFICER" means a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act and the rules
and regulations promulgated thereunder.
(p) "OPTION" means a nonstatutory stock option granted
pursuant to the Plan, that is not intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code and the regulations
promulgated thereunder.
(q) "OPTION AGREEMENT" means an agreement between the
Company and an Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the terms and conditions of
the Plan.
(r) "OPTION EXCHANGE PROGRAM" means a program whereby
outstanding options are surrendered in exchange for options with a lower
exercise price.
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(s) "OPTIONED STOCK" means the Common Stock subject to an
Option.
(t) "OPTIONEE" means the holder of an outstanding Option
granted under the Plan.
(u) "PARENT" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(v) "PLAN" means this 1999 Nonstatutory Stock Option Plan.
(w) "SERVICE PROVIDER" means an Employee including an Officer,
Consultant or Director.
(x) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 12 of the Plan.
(y) "SUBSIDIARY" means a "subsidiary corporation," whether now
or hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section
12 of the Plan, the maximum aggregate number of Shares which may be optioned
and sold under the Plan is nine million (9,000,000) Shares. The Shares may be
authorized, but unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having
been exercised in full, or is surrendered pursuant to an Option Exchange
Program, the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated).
4. ADMINISTRATION OF THE PLAN.
(a) ADMINISTRATION. The Plan shall be administered by (i) the Board or
(ii) a Committee, which committee shall be constituted to satisfy Applicable
Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the
Plan, and in the case of a Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator shall have the authority, in
its discretion:
(i) to determine the Fair Market Value of the Common Stock;
(ii) to select the Service Providers to whom Options may be
granted hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each Option granted hereunder;
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<PAGE>
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or
times when Options may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture restrictions, and
any restriction or limitation regarding any Option or the shares of Common
Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vii) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common Stock
covered by such Option shall have declined since the date the Option was
granted;
(viii) to institute an Option Exchange Program;
(ix) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan;
(x) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax treatment under
foreign tax laws;
(xi) to modify or amend each Option (subject to Section 14(b)
of the Plan), including the discretionary authority to extend the
post-termination exercisability period of Options longer than is otherwise
provided for in the Plan;
(xii) to authorize any person to execute on behalf of the
Company any instrument required to effect the grant of an Option previously
granted by the Administrator;
(xiii) to determine the terms and restrictions applicable to
Options;
(xiv) to allow Optionees to satisfy withholding tax
obligations by electing to have the Company withhold from the Shares to be
issued upon exercise of an Option that number of Shares having a Fair Market
Value equal to the amount required to be withheld. The Fair Market Value of
the Shares to be withheld shall be determined on the date that the amount of
tax to be withheld is to be determined. All elections by an Optionee to have
Shares withheld for this purpose shall be made in such form and under such
conditions as the Administrator may deem necessary or advisable; and
(xv) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. The Administrator's
decisions, determinations and interpretations shall be final and binding on
all Optionees and any other holders of Options.
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<PAGE>
5. ELIGIBILITY. Options may be granted to Service Providers except
Officers and Directors; provided, however, that Options may be granted to
Officers in connection with the Officer's initial employment by the Company.
6. LIMITATION. Neither the Plan nor any Option shall confer upon
an Optionee any right with respect to continuing the Optionee's relationship
as a Service Provider with the Company, nor shall they interfere in any way
with the Optionee's right or the Company's right to terminate such
relationship at any time, with or without cause.
7. TERM OF PLAN. The Plan shall become effective upon its adoption
by the Board. It shall continue in effect for ten (10) years, unless sooner
terminated under Section 14 of the Plan.
8. TERM OF OPTION. The term of each Option shall be stated in the
Option Agreement.
9. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per share exercise price for the
Shares to be issued pursuant to exercise of an Option shall be determined by
the Administrator.
(b) WAITING PERIOD AND EXERCISE DATES. At the time an Option is
granted, the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before the
Option may be exercised.
(c) FORM OF CONSIDERATION. The Administrator shall determine
the acceptable form of consideration for exercising an Option, including the
method of payment. Such consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares which (A) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six months on the date of surrender, and (B) have a Fair Market Value on
the date of surrender equal to the aggregate exercise price of the Shares as
to which said Option shall be exercised;
(v) consideration received by the Company under a
cashless exercise program implemented by the Company in connection with the
Plan;
(vi) a reduction in the amount of any Company
liability to the Optionee, including any liability attributable to the
Optionee's participation in any Company-sponsored deferred compensation
program or arrangement;
(vii) such other consideration and method of payment
for the issuance of Shares to the extent permitted by Applicable Laws; or
-5-
<PAGE>
(viii) any combination of the foregoing methods of
payment.
10. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any
Option granted hereunder shall be exercisable according to the terms of the
Plan and at such times and under such conditions as determined by the
Administrator and set forth in the Option Agreement. An Option may not be
exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives:
(i) written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by
the Administrator and permitted by the Option Agreement and the Plan. Shares
issued upon exercise of an Option shall be issued in the name of the Optionee
or, if requested by the Optionee, in the name of the Optionee and his or her
spouse. Until the Shares are issued (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. The Company shall issue (or cause to be issued)
such Shares promptly after the Option is exercised. No adjustment will be
made for a dividend or other right for which the record date is prior to the
date the Shares are issued, except as provided in Section 12 of the Plan.
Exercising an Option in any manner shall decrease the number of
Shares thereafter available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised.
(b) TERMINATION OF RELATIONSHIP AS A SERVICE PROVIDER. If an
Optionee ceases to be a Service Provider, other than upon the Optionee's
death or Disability, the Optionee may exercise his or her Option, but only
within such period of time as is specified in the Option Agreement, and only
to the extent that the Option is vested on the date of termination (but in no
event later than the expiration of the term of such Option as set forth in
the Option Agreement). In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for three (3) months following
the Optionee's termination. If, on the date of termination, the Optionee is
not vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified by the
Administrator, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.
(c) DISABILITY OF OPTIONEE. If an Optionee ceases to be a
Service Provider as a result of the Optionee's Disability, the Optionee may
exercise his or her Option within such period of time as is specified in the
Option Agreement, to the extent the Option is vested on the date of
termination (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement). In the absence of a specified
time in the Option Agreement, the Option shall remain exercisable for twelve
(12) months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option, the
Shares covered by the
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<PAGE>
unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within the time
specified herein, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.
(d) DEATH OF OPTIONEE. If an Optionee dies while a Service
Provider, the Option may be exercised within such period of time as is
specified in the Option Agreement (but in no event later than the expiration
of the term of such Option as set forth in the Notice of Grant), by the
Optionee's estate or by a person who acquires the right to exercise the
Option by bequest or inheritance, but only to the extent that the Option is
vested on the date of death. In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for twelve (12) months
following the Optionee's termination. If, at the time of death, the Optionee
is not vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall immediately revert to the Plan. The
Option may be exercised by the executor or administrator of the Optionee's
estate or, if none, by the person(s) entitled to exercise the Option under
the Optionee's will or the laws of descent or distribution. If the Option is
not so exercised within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(e) BUYOUT PROVISIONS. The Administrator may at any time
offer to buy out for a payment in cash or Shares, an Option previously
granted based on such terms and conditions as the Administrator shall
establish and communicate to the Optionee at the time that such offer is made.
11. NON-TRANSFERABILITY OF OPTIONS. Unless determined otherwise by
the Administrator, an Option may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will or
by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee. If the Administrator makes an
Option transferable, such Option shall contain such additional terms and
conditions as the Administrator deems appropriate.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER
OR ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required
action by the shareholders of the Company, the number of shares of Common
Stock covered by each outstanding Option, and the number of shares of Common
Stock which have been authorized for issuance under the Plan but as to which
no Options have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification of the Common Stock, or any
other increase or decrease in the number of issued shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be
deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein,
no issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to an Option.
-7-
<PAGE>
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify
each Optionee as soon as practicable prior to the effective date of such
proposed transaction. The Administrator in its discretion may provide for an
Optionee to have the right to exercise his or her Option until ten (10) days
prior to such transaction as to all of the Optioned Stock covered thereby,
including Shares as to which the Option would not otherwise be exercisable.
In addition, the Administrator may provide that any Company repurchase option
applicable to any Shares purchased upon exercise of an Option shall lapse as
to all such Shares, provided the proposed dissolution or liquidation takes
place at the time and in the manner contemplated. To the extent it has not
been previously exercised, an Option will terminate immediately prior to the
consummation of such proposed action.
(c) MERGER OR ASSET SALE. In the event of a merger of the
Company with or into another corporation, or the sale of substantially all of
the assets of the Company, each outstanding Option shall be assumed or an
equivalent option or right substituted by the successor corporation or a
Parent or Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the Option, the
Optionee shall fully vest in and have the right to exercise the Option as to
all of the Optioned Stock, including Shares as to which it would not
otherwise be vested or exercisable. If an Option becomes fully vested and
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Administrator shall notify the Optionee in writing or
electronically that the Option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the Option
shall terminate upon the expiration of such period. For the purposes of this
paragraph, the Option shall be considered assumed if, following the merger or
sale of assets, the option or right confers the right to purchase or receive,
for each Share of Optioned Stock, immediately prior to the merger or sale of
assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of Common Stock
for each Share held on the effective date of the transaction (and if holders
were offered a choice of consideration, the type of consideration chosen by
the holders of a majority of the outstanding Shares); provided, however, that
if such consideration received in the merger or sale of assets is not solely
common stock of the successor corporation or its Parent, the Administrator
may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the Option, for each Share
of Optioned Stock to be solely common stock of the successor corporation or
its Parent equal in fair market value to the per share consideration received
by holders of Common Stock in the merger or sale of assets.
13. DATE OF GRANT. The date of grant of an Option shall be, for all
purposes, the date on which the Administrator makes the determination
granting such Option, or such other later date as is determined by the
Administrator. Notice of the determination shall be provided to each Optionee
within a reasonable time after the date of such grant.
14. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may at any time
amend, alter, suspend or terminate the Plan.
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<PAGE>
(b) EFFECT OF AMENDMENT OR TERMINATION. No amendment,
alteration, suspension or termination of the Plan shall impair the rights of
any Optionee, unless mutually agreed otherwise between the Optionee and the
Administrator, which agreement must be in writing and signed by the Optionee
and the Company. Termination of the Plan shall not affect the Administrator's
ability to exercise the powers granted to it hereunder with respect to
options granted under the Plan prior to the date of such termination.
15. CONDITIONS UPON ISSUANCE OF SHARES.
(a) LEGAL COMPLIANCE. Shares shall not be issued pursuant to
the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares shall comply with Applicable Laws and shall be
further subject to the approval of counsel for the Company with respect to
such compliance.
(b) INVESTMENT REPRESENTATIONS. As a condition to the
exercise of an Option the Company may require the person exercising such
Option to represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required.
16. INABILITY TO OBTAIN AUTHORITY. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
17. RESERVATION OF SHARES. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
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<PAGE>
USWEB CORPORATION
1999 NONSTATUTORY STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
[OPTIONEE'S NAME AND ADDRESS]
You have been granted an option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Option Agreement, as
follows:
Grant Number
-----------------------------------
Date of Grant
-----------------------------------
Vesting Commencement Date
-----------------------------------
Exercise Price per Share $
-----------------------------------
Total Number of Shares Granted
-----------------------------------
Total Exercise Price $
-----------------------------------
Type of Option: Nonstatutory Stock Option
Term/Expiration Date:
-----------------------------------
VESTING SCHEDULE:
Subject to the Optionee continuing to be a Service Provider on such
dates, this Option shall vest and become exercisable in accordance with the
following schedule:
[25% OF THE SHARES SUBJECT TO THE OPTION SHALL VEST TWELVE MONTHS AFTER
THE VESTING COMMENCEMENT DATE, AND 1/48TH OF THE SHARES SUBJECT TO THE OPTION
SHALL VEST UPON THE LAST DAY OF EACH MONTH THEREAFTER.]
TERMINATION PERIOD:
This Option may be exercised for _____ [days/months] after Optionee
ceases to be a Service Provider. Upon the death or Disability of the
Optionee, this Option may be exercised for such longer period as provided in
the Plan. In no event shall this Option be exercised later than the
Term/Expiration Date as provided above.
<PAGE>
II. AGREEMENT
1. GRANT OF OPTION. The Plan Administrator of the Company hereby
grants to the Optionee named in the Notice of Grant attached as Part I of
this Agreement (the "Optionee") an option (the "Option") to purchase the
number of Shares, as set forth in the Notice of Grant, at the exercise price
per share set forth in the Notice of Grant (the "Exercise Price"), subject to
the terms and conditions of the Plan, which is incorporated herein by
reference. In the event of a conflict between the terms and conditions of the
Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
2. EXERCISE OF OPTION.
(a) RIGHT TO EXERCISE. This Option is exercisable during its
term in accordance with the Vesting Schedule set out in the Notice of Grant and
the applicable provisions of the Plan and this Option Agreement.
(b) METHOD OF EXERCISE. This Option is exercisable by
delivery of an exercise notice, in the form attached as Exhibit A (the
"Exercise Notice"), which shall state the election to exercise the Option,
the number of Shares in respect of which the Option is being exercised (the
"Exercised Shares"), and such other representations and agreements as may be
required by the Company pursuant to the provisions of the Plan. The Exercise
Notice shall be completed by the Optionee and delivered to [TITLE]. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise
Price as to all Exercised Shares. This Option shall be deemed to be exercised
upon receipt by the Company of such fully executed Exercise Notice
accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with Applicable Laws.
Assuming such compliance, for income tax purposes the Exercised Shares shall
be considered transferred to the Optionee on the date the Option is exercised
with respect to such Exercised Shares.
3. METHOD OF PAYMENT. Payment of the aggregate Exercise Price
shall be by any of the following, or a combination thereof, at the election
of the Optionee:
(a) cash;
(b) check;
(c) consideration received by the Company under a cashless
exercise program implemented by the Company in connection with the Plan; or
(d) surrender of other Shares which (i) in the case of
Shares acquired upon exercise of an option, have been owned by the Optionee
for more than six (6) months on the date of surrender, AND (ii) have a Fair
Market Value on the date of surrender equal to the aggregate Exercise Price
of the Exercised Shares.
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<PAGE>
4. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred
in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by the Optionee. The
terms of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. TERM OF OPTION. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option Agreement.
6. TAX CONSEQUENCES. Some of the federal tax consequences relating
to this Option, as of the date of this Option, are set forth below. THIS
SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE
EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) EXERCISING THE OPTION. The Optionee may incur regular
federal income tax liability upon exercise of an NSO. The Optionee will be
treated as having received compensation income (taxable at ordinary income
tax rates) equal to the excess, if any, of the Fair Market Value of the
Exercised Shares on the date of exercise over their aggregate Exercise Price.
If the Optionee is an Employee or a former Employee, the Company will be
required to withhold from his or her compensation or collect from Optionee
and pay to the applicable taxing authorities an amount in cash equal to a
percentage of this compensation income at the time of exercise, and may
refuse to honor the exercise and refuse to deliver Shares if such withholding
amounts are not delivered at the time of exercise.
(b) DISPOSITION OF SHARES. If the Optionee holds NSO Shares
for at least one year, any gain realized on disposition of the Shares will be
treated as long-term capital gain for federal income tax purposes.
7. ENTIRE AGREEMENT; GOVERNING LAW. The Plan is incorporated
herein by reference. The Plan and this Option Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and may not
be modified adversely to the Optionee's interest except by means of a writing
signed by the Company and Optionee. This agreement is governed by the
internal substantive laws, but not the choice of law rules, of Utah.
8. NO GUARANTEE OF CONTINUED SERVICE. OPTIONEE ACKNOWLEDGES AND
AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS
EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY
(AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN OPTION OR
PURCHASING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING
SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY
PERIOD, OR AT ALL,
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<PAGE>
AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR
WITHOUT CAUSE.
By your signature and the signature of the Company's representative
below, you and the Company agree that this Option is granted under and
governed by the terms and conditions of the Plan and this Option Agreement.
Optionee has reviewed the Plan and this Option Agreement in their entirety,
has had an opportunity to obtain the advice of counsel prior to executing
this Option Agreement and fully understands all provisions of the Plan and
Option Agreement. Optionee hereby agrees to accept as binding, conclusive and
final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement. Optionee further agrees
to notify the Company upon any change in the residence address indicated
below.
OPTIONEE USWEB CORPORATION
- --------------------------------- ------------------------------------
Signature By
- --------------------------------- ------------------------------------
Print Name Title
- ---------------------------------
Residence Address
- ---------------------------------
-4-
<PAGE>
EXHIBIT A
USWEB CORPORATION
1999 NONSTATUTORY STOCK OPTION PLAN
EXERCISE NOTICE
USWeb Corporation
[ADDRESS]
Attention: [TITLE]
1. EXERCISE OF OPTION. Effective as of today, ________________,
_____, the undersigned ("Purchaser") hereby elects to purchase ______________
shares (the "Shares") of the Common Stock of USWeb Corporation (the
"Company") under and pursuant to the 1999 Nonstatutory Stock Option Plan (the
"Plan") and the Stock Option Agreement dated _________, ___ (the "Option
Agreement"). The purchase price for the Shares shall be $_______, as required
by the Option Agreement.
2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the Company
the full purchase price for the Shares.
3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Plan and the Option Agreement
and agrees to abide by and be bound by their terms and conditions.
4. RIGHTS AS SHAREHOLDER. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the Shares, no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect to
the Optioned Stock, notwithstanding the exercise of the Option. The Shares so
acquired shall be issued to the Optionee as soon as practicable after
exercise of the Option. No adjustment will be made for a dividend or other
right for which the record date is prior to the date of issuance, except as
provided in Section 12 of the Plan.
5. TAX CONSULTATION. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with
<PAGE>
the purchase or disposition of the Shares and that Purchaser is not relying
on the Company for any tax advice.
6. ENTIRE AGREEMENT; GOVERNING LAW. The Plan and Option Agreement
are incorporated herein by reference. This Agreement, the Plan and the Option
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings
and agreements of the Company and Purchaser with respect to the subject
matter hereof, and may not be modified adversely to the Purchaser's interest
except by means of a writing signed by the Company and Purchaser. This
agreement is governed by the internal substantive laws, but not the choice of
law rules, of Utah.
Submitted by: Accepted by:
PURCHASER USWEB CORPORATION
- ------------------------------ ----------------------------------------
Signature By
- ------------------------------ ----------------------------------------
Print Name Title
----------------------------------------
Date Received
ADDRESS: ADDRESS:
-------------------- -------------------------------
-------------------- -------------------------------
-------------------- -------------------------------
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<PAGE>
Exhibit 4.14
USWEB CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT") is entered into by and
between USWEB Corporation, a Delaware corporation (the "COMPANY"), and
Robert Shaw (the "EMPLOYEE") effective as of November 1, 1998.
WHEREAS, the Company desires to employ the Employee on a full-time basis
in the capacity of Chief Executive Officer of the Company, and the Employee
desires to accept such employment; and
WHEREAS the parties desires and agree to enter into an employment
relationship by means of this Agreement;
NOW THEREFORE in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually covenanted and
agreed by the parties as follows:
1. POSITION AND DUTIES. The Employee shall be employed as Chief
Executive Officer of the Company, reporting solely to the Company's Board of
Directors (the "BOARD") and assuming and discharging such duties and
responsibilities as are commensurate with the Employee's position. In
performing his basic duties, the Employee shall work at the Company's
business offices located in San Francisco or Santa Clara, California,
although the Employee acknowledges that frequent travel may be necessary in
carrying out his duties hereunder. The Employee shall perform his duties
faithfully and to the best of his ability and shall devote his full business
time and effort (except for permitted vacation periods and periods of illness
and other incapacity) to the performance of his duties hereunder, provided
that subject to Section 10, the Employee may serve on the boards of other
corporations. The Employee shall commence employment with the Company
effective November 1, 1998 (the "EFFECTIVE DATE"). For so long as the
Employee remains Chief Executive Officer of the Company, the Company will use
its commercially reasonable best efforts to cause the Employee to be elected
as a member of the Board (and at the option of the Employee, as Chairman of
the Board). If elected in any such capacity, the Employee shall serve as
such without additional consideration.
2. TERM OF EMPLOYMENT. This Agreement shall become effective upon
the Effective Date. The Employee's employment with the Company shall
continue until terminated by either party at any time, with or without
notice, and for any or no reason. The parties agree and acknowledge that
this Agreement is an "at will" agreement and that no implied covenant or
standard of practice will cause this Agreement to have any minimum period of
employment.
3. TERM OF AGREEMENT. The terms of this Agreement shall terminate
on the first date on which all obligations of the parties hereunder have been
satisfied. A termination of the terms of this
1
<PAGE>
Agreement pursuant to this Section 3 shall be effective for all purposes,
except that such termination shall not affect any ongoing obligations of the
parties hereunder.
4. COMPENSATION.
(a) BASE SALARY. For all services to be rendered by the
Employee to the Company while this Agreement is in effect, the Employee shall
receive a minimum annual base salary equal to $700,000 (the "BASE SALARY"),
payable in accordance with the Company's normal payroll practices. The Base
Salary shall be reevaluated yearly and may be increased by the Board, in
light of the Employee's performance of his duties.
(b) JOINING BONUS. Within fifteen (15) calendar days after
the Effective Date, the Company shall pay the Employee a lump sum cash bonus
equal to $200,000.
(c) PERFORMANCE BONUS. In the event the Company achieves
certain performance milestones to be determined by the Board in its sole
discretion, the Employee shall be entitled to an annual performance bonus in
the amount of $500,000 for on-target performance, with such pro-ration or
multipliers as are established by the Board in its sole discretion.
Notwithstanding the preceding, the Employee's bonus for his first year of
employment shall be paid at 100% of target.
5. OPTION. As of the Effective Date, the Company shall grant a
non-statutory stock option to the Employee covering a total of 1,200,000
shares of the Company's Common Stock (the "OPTION"). The exercise price of
the Option shall be $10.00 per share, an amount which is less than the
current fair market value of a share as of the Effective Date. Subject to
the Employee's continued employment with the Company, the Option shall vest
and become exercisable as to 1/4th of the shares subject to the Option on the
first anniversary of the Effective Date, and an additional 1/48th of the
shares shall vest and become exercisable on each subsequent monthly
anniversary of the Effective Date. Notwithstanding the foregoing, a portion
of the then unvested portion of the Option shall become vested and
exercisable upon the occurrence of certain events as provided in Sections 7
or 8 below. At all times while the option is exercisable, the shares subject
to the Option shall be registered with the Securities and Exchange Commission
(and assuming that the Company's shares continue to be registered with the
Commission in general).
6. OTHER BENEFITS. The Employee shall be entitled to participate in
the employee benefit plans and programs that the Company makes available to
its senior executives, subject to the rules and regulations applicable
thereto. In addition, the Company shall use its commercially reasonable
efforts to adopt a nonqualified deferred compensation plan in which the
Employee shall be eligible to participate. The Company reserves the right to
cancel or change the benefit plans and programs it offers to its senior
executive employees at any time. The Employee will be eligible for vacation
and sick leave in accordance with the policies in effect for senior
executives during the term of this Agreement and will receive such other
benefits and perquisites as the Company generally provides to its senior
executives. The Employee also shall be reimbursed by the Company for (i) up
to $7,500 per year in fees incurred by the Employee for financial counseling
or estate planning, and (ii) out-of-town travel costs incurred
2
<PAGE>
by the Employee's spouse when she is required to travel with the Employee in
furtherance of the Company's business, which reimbursements shall be in
accordance with the Company's standard policies for executive business travel.
7. TERMINATION.
(a) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If the
Company terminates the Employee's employment other than for "Cause" or if
Employee terminates his employment for "Good Reason" (as those terms are
defined in Section 9 below), then, subject to the Employee's obligations
pursuant to Section 10 below and the signing of the Company's standard form
of release agreement releasing the Company from any further claims from or
obligations to the Employee, and in addition to any other amounts to which
the Employee is entitled hereunder: (i) the Company shall continue to pay the
Employee his Base Salary for a period of two (2) years, (ii) the Company
shall continue, for the same period, to provide the Employee with the same
medical, life and disability benefits as provided to the Employee immediately
prior to such termination or the after-tax cash equivalent, provided that
such amount is sufficient for the Employee to purchase his own similar
policy, for so long as the Employee is entitled to continuation of Base
Salary as provided in clause (i) above, provided that such coverage shall
become secondary if the Employee receives coverage from a subsequent
employer; and (iii) to the extent not otherwise vested and exercisable,
1/48th of the shares subject to the Option shall vest and become immediately
exercisable with respect to each full month which has elapsed between the
Effective Date and the Employee's termination date.
(b) DEATH OR DISABILITY. In the event of Employee's death
during the term of this Agreement, (i) 50% of any Company stock options
granted to the Employee that remain unexpired and unvested on the date of
Employee's death automatically shall vest, and (ii) the Company shall pay to
the Employee's estate all salary, bonuses and unpaid vacation accrued as of
the date of Employee's death and any other benefits payable under the
Company's then existing benefit plans and policies in accordance with such
plans and policies in effect on the date of death and in accordance with
applicable law. In the event that, during the term of this Agreement,
Employee is unable to perform his job due to Disability (as defined in
Section 9 below), the Company may, at its option, terminate Employee's
employment with the Company and such termination shall entitle the Employee
to (i) immediate vesting of 50% of any Company stock options granted to the
Employee that remain unexpired and unvested on the date of the Employee's
termination, and (ii) all salary, bonuses and unpaid vacation accrued as of
the date of such termination and any other benefits payable under the
Company's then existing benefit plans and policies in accordance with such
plans and policies in effect on the date of such termination and in
accordance with applicable law.
(c) VOLUNTARY TERMINATION; TERMINATION FOR CAUSE. In the event
the Employee's employment with the company terminates either (i) voluntarily
by the Employee without "Good Reason" (as defined in Section 9 below), or
(ii) involuntarily by the Company for "Cause" (as defined in Section 9
below), then the Company shall have no further obligations hereunder except
to pay to the Employee all amounts of unpaid Base Salary, reimburse all
reasonable business-related expenses and
3
<PAGE>
pay and provide all other benefits required by law or by the terms of the
applicable plan or benefit program.
8. CHANGE OF CONTROL.
(a) OPTION VESTING; SEVERANCE. In the event of a "Change of
Control" (as defined in Section 9) which results in either (i) the Employee
terminating his employment with the Company for "Good Reason" (as defined
in Section 9 below), or (ii) the Company terminating the Employee's
employment for other than "Cause" (as defined in Section 9 below), then (I)
100% of the Option shall vest and become immediately exercisable, and (2) the
Employee shall be entitled to receive the severance benefits set forth in
Section 7(a)(i) and 7(a)(ii) above.
(b) LIMITATION ON PAYMENTS. In the event that any payment or
benefits received or to be received by the Employee in connection with a
"Change of Control" (as defined in Section 9) or the termination of the
Employee's employment (the "TOTAL PAYMENTS") would subject the Employee to
the excise tax (the "Excise Tax") imposed under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), then the Employee shall
receive (i) a payment from the Company sufficient to pay such excise tax, and
(ii) an additional payment from the Company sufficient to pay the excise tax
and federal and state income taxes arising from the payments made by the
Company pursuant to this sentence; provided, however, that in no event shall
the Company be required to pay the Employee more than $5,000,000 pursuant to
this Section 8(b). The determination of Employee's excise tax liability and
the amount, if any, required to be paid under this Section 8(b) shall be made
in writing by the Company's independent auditors (the "Accountants"). For
purposes of making the calculations required by this Section 8(b), the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company
and the Employee shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a
determination under this Section 8(b). The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 8(b).
(c) CERTAIN BUSINESS COMBINATIONS. In the event it is
determined by the Board, upon receipt of a written opinion of the Company's
independent public accountants, that the operation of Section 8(b) hereof
would preclude accounting for any proposed business combination of the
Company involving a Change of Control as a pooling of interest, and the Board
otherwise desires to approve such proposed business transaction on a pooling
of interest basis, said Section shall be null and void, but only to the
extent necessary to preserve the pooling treatment.
9. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) CAUSE. "Cause" shall mean (i) any act of personal
dishonesty taken by the Employee in connection with his responsibilities as
an employee and intended to result in personal enrichment of himself or his
associates at the expense of the Company or its stockholders, (ii) any
4
<PAGE>
conviction (or plea of no contest) of a felony or an act of fraud against the
Company, (iii) continued violations of the Employee's employment-related
obligations which are willful and deliberate after there has been delivered
to the Employee a written demand from the Board regarding such activities and
the Employee has had a reasonable opportunity to correct such violations, or
(iv) willful refusal to carry out legally permissible instructions from the
Board after the Employee has been given written notice of a failure to carry
out such instructions and a reasonable opportunity to correct the situation.
(b) CHANGE OF CONTROL. A "Change of Control" shall mean (i)
the sale, lease, conveyance or other disposition of all or substantially all
of the Company's assets to any "person" (as such term is used in Section
13(d) of the Securities Exchange Act of 1934, as amended), entity or group of
persons acting in concert; (ii) any "person" or group of persons becoming
the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly
or indirectly, of securities of the Company representing 50% or more of the
total voting power represented by the Company's then outstanding voting
securities; (iii) a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation that would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or its controlling
entity) at least 50% of the total voting power represented by the voting
securities of the Company or such surviving entity (or its controlling entity)
outstanding immediately after such merger or consolidation; or (iv) a contest
for the election or removal of members of the Board that results in the
removal from the Board of at least 50% of the incumbent members of the Board.
(c) DISABILITY. A "Disability" shall mean the Employee's
inability to substantially perform his essential job functions as the result
of a physical or mental disability or incapacity for a period of 180 days,
consecutive or otherwise, in any 360-day period.
(d) GOOD REASON. Resignation for "Good Reason" shall mean
any of the following without the Employee's written consent: (i) any material
diminution or material adverse change in the Employee's position with the
Company, duties, responsibilities or the positions that report directly to
him, (ii) a reduction by the Company in Employee's Base Salary (in which
event payments provided in Sections 7 and 8 shall be made based upon
Employee's Base Salary in effect prior to any such reduction), (iii) a
material reduction in the aggregate program of employee benefits and
perquisites to which Employee is entitled, (iv) relocation by more than 25
miles from Employee's workplace, (v) a material decline in Employee's bonus
opportunity, (vi) the failure by the Company to elect, or the forcible
removal of, the Employee as a Director, in any event without Cause, (vii) in
the event that the Company becomes a wholly-owned subsidiary of another
corporation, the Employee not reporting directly to the board of directors of
the ultimate parent corporation of the Company.
10. NON-COMPETITION AND NON-SOLICITATION.
(a) For a period beginning on the Effective Date and ending 12
months after the date on which the Employee ceases to be employed by the
Company for any reason whatsoever, the Employee, directly or indirectly,
whether as employee, owner, sole proprietor, partner, shareholder,
5
<PAGE>
director, member, consultant, agent, founder, co-venturer or otherwise, will;
(i) not engage, participate or invest in any business activity anywhere in
the world which develops, manufactures or markets products or performs
services which are competitive with the products or services of the Company
at the time of the Employee's termination, or products or services which the
Company has under development or which are the subject of active planning at
the time of the Employee's termination; PROVIDED, HOWEVER, that the Employee,
may own as a passive investor, publicly-traded securities of any corporation
which competes with the business of the Company so long as such securities do
not, in the aggregate, constitute more than 1% of any class of outstanding
securities of such corporations; (ii) not hire or attempt to employ, recruit
or otherwise solicit, induce or influence any person to leave employment with
the Company or its resellers or distributors and (iii) not directly or
indirectly solicit business from any of the Company's customers and users,
resellers or distributors on behalf of any business which competes with the
Company. Notwithstanding the preceding, the Employee's obligations under
clause (i) of the preceding sentence shall end on the date of his termination
of employment from the Company.
(b) The Employee understands that the restrictions set forth in
this Section 10 are intended to protect the Company's interest in its
"proprietary information" (as such term may be defined in the
Non-disclosure Agreement) and establish customer relations in good will, and
agrees that such restrictions are reasonable, necessary and appropriate for
this purpose.
(c) The Employee agrees that it would be difficult to measure
any damages caused by the Company which might result from any breach by the
Employee of the promises set forth in this Section 10, and that in any event
money damages would be an inadequate remedy for any such breach.
Accordingly, the Employee agrees that if the Employee breaches, or proposes
to breach, any portion of this Section 10, the Company shall be entitled, in
addition to all other remedies that it may have, to injunction or other
appropriate equitable relief to restrain any such breach without showing or
proving any actual damage to the Company.
11. RIGHT TO ADVICE OF COUNSEL. The Employee acknowledges that he has
consulted with counsel and is fully aware of his rights and obligations under
this Agreement and of the tax consequences thereof. The Company shall
reimburse the Employee for the direct costs of obtaining such counsel in an
amount not to exceed $10,000.
12. ADDITIONAL AGREEMENTS. As a condition of the Employee's
employment with the Company, the Employee shall execute the Company's
standard form of non-disclosure and assignment and inventions agreement.
13. SUCCESSORS
(a) COMPANY'S SUCCESSOR. Any successor (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company's business or assets
shall assume the obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same manner and to the
same extent as the
6
<PAGE>
Company would be required to perform such obligations in the absence of a
succession. For all purposes under this Agreement, the term "Company"
shall include any successor to the Company's business or assets which
executes and delivers the assumption agreement described in this subsection
(a) or which becomes bound by the terms of this Agreement by operation of law.
(b) EMPLOYEE'S SUCCESSORS. Without the written consent of the
Company, the Employee shall not assign or transfer this Agreement or any
right or obligation under this Agreement to any other person or entity.
14. NOTICE CLAUSE.
(a) MANNER. Any notice hereby required or permitted to be given
shall be sufficiently given if in writing and upon mailing by registered or
certified mail, postage prepaid, to either party at the address of such party
listed under such party's signature or such other address as shall have been
designated by written notice by such party to the other party.
(b) EFFECTIVENESS. Any notice or other communication required
or permitted to be given under this Agreement will be deemed given on the day
when delivered in person, or the third business day after the day on which
such notice was mailed in accordance with Section 14(a).
15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal substantive laws, but not the choice of law
rules, of the state of California.
16. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement, or any terms hereof, shall not affect the validity or
enforceability of any other provision or term of this Agreement.
17. INTEGRATION. Except as otherwise expressly provided otherwise
herein, this Agreement represents the entire agreement and understanding
between the parties as to the subject matter herein and supersedes all prior
or contemporaneous agreements, whether written or oral. No waiver,
alteration, or modification of any of the provisions of this Agreement shall
be binding unless in writing and signed by duly authorized representatives of
the parties hereto.
18. TAXES. All payments made pursuant to this Agreement shall be
subject to withholding of applicable income and employment taxes.
19. ARBITRATION. Except for proceedings seeking injunctive relief,
including, without limitation, allegations of misappropriation of trade
secrets, copyright or patent infringements, or breach of any anti-competition
provisions of this Agreement, any controversy or claim arising out of or in
relation to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the commercial arbitration rules of the
American Arbitration Association ("AAA"), and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Arbitration of this Agreement shall include all claims, regardless
of whether the dispute arises during the term of the
7
<PAGE>
Agreement, at the time of termination or thereafter. Either party may
initiate the arbitration proceedings, for which the provision is herein made,
by notifying the opposing party, in writing, of its demand to arbitrate. In
any such arbitration there shall be appointed one arbitrator who shall be
selected in accordance with the AAA Commercial Arbitration Rules. The place
of arbitration shall be San Francisco, California. The parties agree that the
award of the arbitrator shall be the sole and exclusive remedy between them
regarding any claims, counterclaims, issues or accounting presented or plead
to the arbitrator, that the arbitrator shall be the final judge of both law
and fact in arbitration of disputes arising out of or relating to this
Agreement, including the interpretation of the terms of this Agreement. The
parties further agree it shall be the sole and exclusive duty of the
arbitrator to determine the arbitrability of issues in dispute and that
neither party shall have recourse to the court of such a determination. The
Company shall pay the fees of the arbitrator.
20. COUNTERPARTS. This Agreement may be executed by either of the
parties hereto in one or more counterparts, none of which need contain the
signature of more than one party hereto, and each of which shall be deemed to
be an original, and all of which together shall constitute a single agreement.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by a duly authorized officer, as of the day and year
first above written.
USWEB CORPORATION
By: /s/ Robert A. Hoff
Name: Robert A. Hoff
Title: Director
2880 Lakeside Drive
Suite 300
Santa Clara, CA 95054
ROBERT SHAW
/s/ Robert Shaw
Address:
8
<PAGE>
Exhibit 4.15
December 12, 1999
Robert Shaw
c/o USWeb Corporation
410 Townsend Street
San Francisco, CA 94107
Dear Robert:
Reference is made to (a) the Employment Agreement, between you and USWeb
Corporation, a Delaware corporation (the "Company"), dated as of November 1,
1998 (the "Employment Agreement"), and (b) the Agreement and Plan of Merger,
dated December 12, 1999 (together with any amendments thereto, the "Merger
Agreement"), by and among Whittman-Hart, Inc., a Delaware corporation
("Parent"), the Company and Uniwhale, Inc., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), pursuant to which Merger
Sub will be merged with and into the Company, with the Company continuing as
the surviving corporation and as a direct wholly-owned subsidiary of Parent
(the "Merger"). This letter constitutes the undertakings of you and the
Company in connection with the Merger Agreement. Capitalized terms used in
this letter without definition shall have the meanings assigned to them in
the Employment Agreement.
In order to facilitate the Merger, you and the Company hereby amend the
terms of the Employment Agreement as follows:
1. You acknowledge and agree that, for the purposes of Section 8(a) of
the Employment Agreement, the Merger shall not constitute a Change
of Control under the Employment Agreement. By signing this letter
below, you hereby waive any right to make such claim. All other
terms and conditions of the Employment Agreement shall remain in
full force and effect, including without limitation, (i) the
agreement of the Company to provide payments with respect to the
280G excise tax, including any taxes incurred with respect to the
Merger, pursuant to Section 8(b) of the Employment Agreement and
(ii) any other severance benefit provisions not specifically
related to a Change of Control, including pursuant to Sections 7(a)
and (b) of the Employment Agreement.
2. Any options to purchase shares of common stock of the Company held
by you that are not currently exercisable as of the date hereof
(together with any options to purchase shares of common stock of
Parent received in exchange for such options in connection with the
Merger, the "Unvested Options") shall become exercisable according
to the following schedule:
(a) From the date hereof until the Closing Date, the Unvested
Options shall continue to vest and become exercisable
according to the original
<PAGE>
schedule of 1/48th of 1,200,000 shares per month as set
forth in the Employment Agreement;
(b) On the Closing Date, Unvested Options for the additional
number of shares of common stock that equal the product of
(x) 1,200,000 times (y) the fraction, the numerator of which
is the number of full months that have elapsed between the
November 1, 1998 and the Closing Date, and the denominator
of which is 48, shall vest and become immediately
exercisable; and
(c) After the Closing Date, any remaining Unvested Options shall
vest and become exercisable at the rate of 1/12th of the
remaining Unvested Options per month;
PROVIDED, HOWEVER, that the Unvested Options scheduled to become exercisable
on any particular date set forth above shall only become exercisable if you
are an employee, director or consultant of the Company or Parent (or any
affiliate thereof) on such date.
In the event that the Merger Agreement is terminated for any reason, the
Unvested Options shall be treated as if they had continued to vest on the
schedule contemplated by the Employment Agreement and your option
agreement(s) with the Company.
This agreement shall be binding on your successors and assigns,
including heirs, executors and administrators.
You hereby acknowledge that the execution of this letter agreement is an
inducement to Parent and the Company to enter into the Merger Agreement and
that you understand the rights and obligations of this letter and the effects
of such letter on the Unvested Options.
Sincerely,
USWEB CORPORATION
By: _____________________________________________
Name: Carolyn Aver
Title: Chief Financial Officer
AGREED AND ACKNOWLEDGED BY:
/s/ Robert Shaw
- ---------------------------
Robert Shaw
<PAGE>
Exhibit 4.16
No. _____
USWEB CORPORATION
COMMON STOCK PURCHASE WARRANT
This certifies that, for value received, the holder identified below
(together with any registered assignee(s), the "Holder") is entitled, upon
the terms and subject to the conditions hereinafter set forth, to acquire
from USWeb Corporation, a Delaware corporation (the "Company"), in whole or
from time to time in part, up to the number of fully paid and nonassessable
shares of Common Stock of the Company ("Warrant Stock") set forth below at a
purchase price per share (the "Exercise Price") as set forth below. Such
number of shares, type of security and Exercise Price are subject to
adjustment as provided herein, and all references to "Warrant Stock" and
"Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments.
<TABLE>
<CAPTION>
<S> <C>
Holder: Name:
Address:
Date of Grant: Expiration Date: Five years from Date of Grant.
Number of Shares: Exercise Price per Share:
Total Exercise Price:
</TABLE>
This Warrant, the securities issuable upon exercise hereof, and any
interest therein, unless registered under the Securities Act of 1933, as
amended, and any applicable state laws, may not be sold, distributed,
assigned, offered, pledged or otherwise transferred without (i) an opinion of
counsel for the holder that such registration is not required or (ii) receipt
of a no-action letter from the Securities and Exchange Commission to the
effect that registration under the Act is not required. The Company
acknowledges its obligations to register such securities pursuant to the
Settlement and Release Agreement between the Company and Cloudbreak
Consulting, LLC, dated September 14, 1999.
1. TERM. If not earlier exercised, the Warrant shall expire at the end of
the day on the Expiration Date set forth above (the "Expiration Time").
2. EXERCISE
2.1. EXERCISABILITY. The Warrant is exercisable from the date of
issuance up to the Expiration Time.
2.2. MECHANICS OF EXERCISE. The purchase rights represented by this
Warrant are exercisable in whole in part, prior to the Expiration Time by the
surrender of this Warrant and the Notice of Exercise form attached hereto
duly executed to the headquarters office of the Company at the address set
forth on the signature page hereof (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the address
of such Holder appearing on the books of the Company), and upon payment of
the Exercise Price for the shares thereby purchased (by cash or by check or
bank draft payable to the order of the Company or by cancellation of
indebtedness of the Company to the Holder, if any, at the time of exercise in
an amount equal to the purchase price of the shares thereby purchased);
whereupon the Holder shall be
<PAGE>
entitled to receive from the Company a stock certificate in proper form
representing the number of shares of Warrant Stock so purchased, and a new
Warrant in substantially identical form and dated as of such exercise for the
purchase of that number of shares of Warrant Stock equal to the difference,
if any, between the number of shares of Warrant Stock subject hereto and the
number of shares of Warrant Stock as to which this Warrant is so exercised.
2.3. NET EXERCISE. The Holder shall have the right to exercise this
Warrant, in whole or in part, at or prior to the Expiration Time by the
surrender of this Warrant and the Notice of Net Exercise form attached
hereto duly executed to the headquarters office of the Company at the address
set forth on the signature page hereof (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the address
of such Holder appearing on the books of the Company), into shares of Warrant
Stock as provided in this Section 2.3 (the "Net Exercise Right"). Upon
exercise of this right, the Holder shall be entitled to receive that number
of shares of the Company's Common Stock computed by using the following
formula:
X(A-B)
Y = ------
A
Y = the number of shares of Common Stock to be issued to the Holder.
A = the Fair Market Value (as defined below) of one share of the
Company's Common Stock on the date of exercise of this Warrant.
B = the Exercise Price for one share of the Company's Common Stock
under this Warrant.
X = the number of shares of Common Stock purchasable under this
Warrant.
If the above calculation results in a negative number, then no shares of
Warrant Stock shall be issued or issuable upon exercise of this Warrant.
"Fair Market Value" of a share of Warrant Stock shall mean the closing
price (last reported sale price) of the Warrant Stock on the date of
exercise, provided the Warrant Stock is traded on Nasdaq, or if not so
traded, then the fair value as determined in good faith by the Company's
Board of Directors.
Upon exercise of this Warrant in accordance with this Section 2.3, the
Holder hereof shall be entitled to receive a certificate for the number of
shares of Warrant Stock determined in accordance with the foregoing, and a new
Warrant in substantially identical form and dated as of such exercise for
the purchase of that number of shares of Warrant Stock equal to the
difference, if any, between the number of shares of Warrant Stock subject
hereto and the number of shares of Warrant Stock as to which this Warrant is
so exercised.
3. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP. Certificates for
shares purchased hereunder or issuable upon exercise hereof shall be
delivered to the Holder within a reasonable time after the date on which
this Warrant shall have been exercised in accordance with the terms hereof.
The Company hereby represents and warrants that all shares of Warrant Stock
which may be issued upon the exercise of this Warrant will, upon such exercise
be duly and validly authorized and issued, fully paid and nonassessable and
free from all taxes, liens and charges in respect of the issuance thereof
(other than liens or charges created by
2
<PAGE>
or imposed upon the Holder of the Warrant Stock). The Company agrees that the
shares so issued shall be and shall for all purposes be deemed to have been
issued to such holder as the record owner of such shares as of the close of
business on the date on which this Warrant shall have been exercised in
accordance with the terms hereof. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon the exercise of this
Warant, an amount equal to such fraction multiplied by the Fair Market Value
of a share of Warrant Stock on the date of exercise shall be paid in cash or
check to the Holder.
4. CHARGES, TAXES AND EXPENSES. Issuance of certificates for shares of
Warrant Stock upon the exercise of this Warrant shall be made without charge
to the Holder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and expenses
shall be borne by the Holder, and such certificates shall be issued in the
name of the Holder or in such name or names as may be directed by the Holder
provided, however, that in the event certificates for shares of Warrant Stock
are to be issued in a name other than the name of the Holder, this Warrant
when surrendered for exercise shall be accompanied by the Assignment Form
attached hereto duly executed by the Holder.
5. NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle the Holder to
any voting rights or other rights as a shareholder of the Company prior to
the exercise hereof.
6. EXCHANGE AND REGISTRY OF WARRANT. This Warrant is exchangeable, upon
the surrender hereof by the Holder at the above-mentioned office or agency of
the Company, for a new Warrant in substantially identical form and dated as
of such exchange. The Company shall maintain at the above-mentioned office or
agency a registry showing the name and address of the registered holder of
this Warrant. This Warrant may be surrendered for exchange, transfer, or
exercise in accordance with its terms, at such office or agency of the
Company, and the Company shall be entitled to rely in all respects, prior to
written notice to the contrary, upon such registry.
7. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. On receipt by the
Company of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or multilation of this Warrant, and in case of any such
loss, theft or destruction of this Warrant, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company or, in
the case of any such mutilation, on surrender and cancellation of such
Warrant, the Company will execute and deliver to the Holder, in lieu thereof,
a new Warrant in substantially identical form, dated as of such
cancellation and reissuance.
8. SATURDAYS, SUNDAYS AND HOLIDAYS. If the last or appointed day for the
taking of any action or the expiration of any right required or granted
herein shall be a Saturday or a Sunday or shall be a legal holiday, then such
action may be taken or such right may be exercised on the next succeeding
business day.
9. ADJUSTMENT TO NUMBER AND TYPE OF SECURITIES, EXERCISE PRICE. The type
and number of securities of the Company issuable upon exercise of this
Warrant and the Exercise Price are subject to adjustment as set forth below:
(a) ADJUSTMENT FOR STOCK SPLITS, STOCK DIVIDENDS, RECAPITALIZATIONS,
AUTOMATIC CONVERSION, ETC. The Exercise Price and the number and type of
securities or other property issuable upon exercise of this Warrant shall be
appropriately and proportionately adjusted to reflect any stock dividend,
stock split, combination of shares, reclassification, recapitalization,
automatic conversion, redemption or other similar event affecting the number
or character of outstanding shares of Warrant Stock, so that the number and
type
3
<PAGE>
of securities or other property issuable upon exercise of this Warrant shall
be equal to that which would have been issuable with respect to the number of
shares of Warrant Stock subject hereto at the time of such event, had such
shares of Warrant Stock then been outstanding.
(b) CERTIFICATE AS TO ADJUSTMENTS. In case of any adjustment in the
Exercise Price or number and type of securities issuable on the exercise of
this Warrant, the Company will promptly give written notice thereof to the
Holder in the form of a certificate, certified and confirmed by an officer of
the Company, setting forth such adjustment and showing in reasonable detail
the facts upon which adjustment is based.
10. NOTICES OF RECORD DATE, ETC. In the event of:
(a) any taking by the Company of a record of the holders of Warrant
Stock for the purpose of determining the holders thereof who are entitled to
receive any dividend or other distribution,
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company, or any transfer of
all or substantially all the assets of the Company to, or consolidation or
merger of, the Company with or into any person,
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) a sale of substantially all of the outstanding capital stock of
the Company or the issuance of new shares representing the majority of the
Company's right to vote, or
then and in such event the Company will mail to the Holder a notice
specifying the record date for voting or the date of closing, as applicable,
of any event (a)-(d) above. Such notice shall be delivered to the Holder at
least fifteen (15) days prior to the date of the relevant event.
11. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the
laws of the State of California.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by a duly authorized officer.
USWEB CORPORATION
By: ________________________________________
Carolyn Aver, EVP & CFO
[Signature page to Common Stock Purchase Warrant for______________________]
4
<PAGE>
NOTICE OF EXERCISE
To: USWeb Corporation
(1) The undersigned hereby elects to purchase ________ shares of
Common Stock of USWeb Corporation pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price in full.
(2) Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name as is specified
below:
____________________________________________
(Name)
____________________________________________
____________________________________________
____________________________________________
(Address)
____________________________________________
(Social Security Number)
(3) The undersigned represents that the aforesaid shares are being
acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that
the undersigned has no present intention of distributing or reselling such
shares, except in compliance with applicable federal and state securities laws.
__________________________________
(Date)
<PAGE>
NOTICE OF NET EXERCISE
To: USWeb Corporation
(1) The undersigned hereby elects to exercise that portion of the
attached Warrant representing the right to purchase __________ shares of
Common Stock and thereby acquire such number of shares of Common Stock of
USWeb Corporation as is determined pursuant to Section 3 of such Warrant,
which exercise shall be effected pursuant to the terms of the attached
Warrant.
(2) Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name as is specified
below:
____________________________________________
(Name)
____________________________________________
____________________________________________
____________________________________________
(Address)
____________________________________________
(Social Security Number)
(3) The undersigned represents that the aforesaid shares are being
acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that
the undersigned has no present intention of distributing or reselling such
shares, except in compliance with applicable federal and state securities
laws.
__________________________________
(Date)
<PAGE>
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
______________________________________________________________________________
(Please Print)
whose address is _____________________________________________________________
(Please Print)
Dated: _____________________________________________________________
Holder's Signature: ________________________________________________
Holder's Address: __________________________________________________
Guaranteed Signature: ________________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as
it appears on the face of the Warrant, without alteration or enlargement or
any change whatever, and must be guaranteed by a bank or trust company.
Officers of corporations and those acting in a fiduciary or other
representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
<PAGE>
[LETTERHEAD OF KMZ]
March 1, 2000
Whittman-Hart, Inc.
311 South Wacker Drive, Ste 3500
Chicago, Illinois 60606-6618
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have represented Whittman-Hart, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act").
The Registration Statement relates to 25,554,079 shares of the Company's
Common Stock, $.001 par value per share ("Common Stock"), which may be issued
from time to time in connection with the plans and agreements listed on
Exhibit A attached hereto (the "Plans").
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and
upon affidavits, certificates and written statements of directors, officers
and employees of, and the accountants for, the Company. We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such instruments, documents and records as we have deemed
relevant and necessary to examine for the purpose of this opinion, including
(a) the Registration Statement, (b) the Amended and Restated Certificate of
Incorporation of the Company, (c) the Second Amended and Restated Bylaws of
the Company, (d) records of proceedings and actions of the Company's Board of
Directors, and (e) the Plans.
In connection with this opinion, we have assumed the accuracy and
completeness of all documents and records that we have reviewed, the
genuineness of all signatures, the due authority of the parties signing such
documents, the authenticity of the documents submitted to us as originals and
the conformity to authentic original documents of all documents submitted to
us as certified, conformed or reproduced copies.
Based upon and subject to the foregoing, it is our opinion that the
25,554,079 shares of Common Stock, when issued by the Company in accordance
with the terms of the Plans, will be validly issued, fully paid and
non-assessable shares of Common Stock.
<PAGE>
Whittman-Hart, Inc.
March 1, 2000
Page 2
Our opinion expressed above is limited to the General Corporation Law of
the State of Delaware, and we do not express any opinion concerning any other
laws. This opinion is given as of the date hereof, and we assume no
obligation to advise you of changes that may hereafter be brought to our
attention.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this consent we do not thereby admit that
we are included in the category of persons whose consent is required under
Section 7 of the Act or the related rules and regulations promulgated
thereunder.
Very truly yours,
/s/Katten Muchin Zavis
KATTEN MUCHIN ZAVIS
<PAGE>
EXHIBIT A
USWeb Corporation Affiliate Warrant Program
USWeb Corporation 1996 Equity Compensation Plan
USWeb Corporation 1996 Stock Option Plan
USWeb Corporation 1997 Acquisition Stock Option Plan
USWeb Corporation 1997 Employee Stock Purchase Plan
USWeb Corporation 1999 Nonstatutory Stock Option Plan
CKS Group, Inc. 1995 Series B Common Stock Plan
CKS Group, Inc. 1995 Stock Plan
CKS Group, Inc. 1996 Supplemental Stock Plan
CKS Group, Inc. 1997 Employee Stock Purchase Plan
Ikonic Plan
Shaw Employment Agreement
Amendment Shaw Employment Agreement
SiteSpecific, Inc. 1996 Stock Option Plan
Warrants Issuable Under Cloudbreak Agreement
<PAGE>
CONSENT OF KPMG LLP
The Board of Directors
Whittman-Hart, Inc.:
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our reports dated January 14, 1999, relating to the
consolidated balance sheets of Whittman-Hart, Inc. and subsidiaries as of
December 31, 1998 and 1997, and the related consolidated statements of
earnings, stockholders' equity and comprehensive income and cash flows for
each of the years in the three-year period ended December 31, 1998, and the
related consolidated financial statement schedule of valuation and qualifying
accounts, which reports appear in the December 31, 1999 annual report on
Form 10-K of Whittman-Hart, Inc.
/s/ KPMG LLP
-------------
KPMG LLP
Chicago, Illinois
February 29, 2000
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
FOR USWEB CORPORATION
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Whittman-Hart, Inc. of our report dated January 25,
1999 relating to the financial statements of USWeb Corporation, which appears
in the Current Report on Form 8-K of Whittman-Hart, Inc. dated January 28,
2000.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
February 29, 2000
