<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
AMENDMENT NO. 1 TO
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
OZEMAIL LIMITED
(Name of Subject Company)
OZEMAIL LIMITED
(Name of Person(s) Filing Statement)
ORDINARY SHARES AND AMERICAN DEPOSITARY SHARES,
EACH AMERICAN DEPOSITARY SHARE REPRESENTING TEN ORDINARY SHARES
(Title of Class of Securities)
692674104 (AMERICAN DEPOSITARY SHARES)
(CUSIP Number of Class of Securities)
SEAN M. HOWARD
CHIEF EXECUTIVE OFFICER
OZEMAIL CENTRE
39 HERBERT STREET
ST. LEONARDS NEW SOUTH WALES 2065
AUSTRALIA
011-61-2-9433-2400
(Name,address and telephone number of person authorized to receive
notice and communications on behalf of the person(s) filing
statement)
----------------------
With a copy to:
RONALD C. BARUSCH, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM (INTERNATIONAL)
LEVEL 13, 131 MACQUARIE STREET
SYDNEY NEW SOUTH WALES 2000
AUSTRALIA
011-61-2-9253-6000
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<PAGE>
This Amendment No. 1 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 filed on January 7, 1999
(the "Schedule 14D-9") by OzEmail Limited (A.C.N. 066 387 157), a public company
incorporated under the laws of New South Wales, Australia (the "Company"),
relating to the offer by UUNET Holdings Australia Pty Limited (A.C.N. 085 531
684) ("UUNET Australia"), a wholly owned subsidiary of UUNET Technologies, Inc.
("Intermediate"), a Delaware corporation, which is in turn, a wholly owned
subsidiary of MCI WORLDCOM, Inc., ("MCI WorldCom", and together with UUNET
Australia and Intermediate, the "Bidder"), a Georgia corporation, to purchase
all of the issued and outstanding ordinary shares of the Company (the "Ordinary
Shares") and American Depositary Shares, each representing ten Ordinary Shares
(the "ADSs", and together with the Ordinary Shares, the "Securities") at a price
of US$22.00 per ADS (or US$2.20 per Ordinary Share), net to the seller in cash,
upon the terms and conditions set forth in the Offer to Purchase dated January
7, 1999 and the related Acceptance and Transfer Form, in the case of the Shares,
and the related Letter of Transmittal, in the case of the ADSs (which Offer to
Purchase, Acceptance and Transfer Form and Letter of Transmittal, as amended
from time to time, constitute the "Offer"). The Offer to Purchase, the
Acceptance and Transfer Form and the Letter of Transmittal are contained in the
Bidder's Tender Offer Statement on Schedule 14D-1, as filed with the Securities
and Exchange Commission on January 7, 1999, as amended on January 20, 1999,
January 27, 1999 and February 2, 1999. Unless otherwise indicated, all
capitalized terms used but not defined herein, shall have the respective
meanings assigned to them in the Schedule 14D-9.
ITEM 3. IDENTITY AND BACKGROUND
(b) On February 3, 1999, the Company amended its 1996 Employee Stock
Option Plan (the "Plan") to permit the directors of the Company, at their
discretion, to permit unvested options issued to employees of the Company under
the Plan to be exercised in the event that the following conditions precedent
are satisfied: (i) the Offer has expired and the Minimum Condition (as defined
in the Offer to Purchase) has been satisfied, and the Bidder is entitled to
proceed to compulsory acquisition under the Australian Corporations Law, (ii)
the Bidder intends to proceed to compulsory acquisition and (iii) the Bidder has
announced to the market its intention to proceed to compulsory acquisition. The
Board of Directors has resolved to exercise its discretion under the Plan to
permit the acceleration of vesting of options under the Plan subject to the
satisfication of the conditions set forth above. The Plan also has been amended
to permit holders of options that have vested under the Plan to be able to
exercise their options under a procedure whereby the Offer is accepted and the
2
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Offer consideration is remitted to the Company with the aggregate exercise price
for the options deducted before the balance is paid to the option holder.
The rules of the Australian Stock Exchange (the "ASX"), upon which the
Ordinary Shares are listed, require an ASX listed company only to make changes
to an employee incentive scheme (such as the Plan) with the approval of a
meeting of ordinary shareholders by special resolution. The Company has obtained
from the ASX a waiver of this requirement. The ASX waiver was conditioned on the
Company making the aforementioned amendments to the Plan and the ASX waiver
available to the market. A copy of the letter from the ASX granting the waiver
and the Plan, as amended, are attached hereto as Exhibits 5 and 6, respectively.
In connection with the Company's application to the ASX of the waiver
referred to above, UUNET Australia sent a letter to the Company's counsel
indicating that it had no objection to the Company's amendment to the Plan, as
described above, and to the ASX's granting of the waiver sought by the Company.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 5 - Letter from the ASX
Exhibit 6 - 1996 Employee Stock Option Plan, as amended
Exhibit 7 - Statement by the Company made to Internet customers regarding the
Offer
3
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
OZEMAIL LIMITED
By: /s/ Sean M. Howard
------------------------------------
Sean M. Howard
Chief Executive Officer and Director
Dated: February 3, 1999
4
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EXHIBIT 5
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ASX
AUSTRALIAN STOCK EXCHANGE
3 February 1999
Mr Bob Goldie
Solomon Garland Partners
GPO Box 4622
SYDNEY NSW 2001 By facsimile: (02) 9222 3124
Dear Mr Goldie
OZEMAIL LIMITED (the "Company")
I refer to your letter dated 28 January 1999 requesting a waiver from listing
rule 7.38.
I am pleased to advise that Australian Stock Exchange Limited has resolved as
follows:
"RESOLVED
1. ASX grants OzEmail Limited (the "Company") a waiver from listing rule 7.38
to the extent necessary to permit the Company to amend its 1996 stock
option plan without the approval of holders of ordinary securities to make
changes to the following effect, on the condition precedent that the terms
of the waiver and terms of the amended plan are released to the market.
1.1 To enable directors to exercise their discretion as Plan
administrators to allow unvested outstanding employee options to
accelerate if each of the following requirements is satisfied as a
condition precedent to the exercise of the discretion:
(a) an offer for securities is made to all holders of ordinary shares
in the Company, all conditions of the offer are satisfied or
waived and the offer has closed; and
(b) the offeror:
o tells the Company that it is entitled to proceed to
compulsory acquisition;
o tells the Company that it intends to proceed to compulsory
acquisition; and
o announces to the market that it will proceed to compulsory
acquisition.
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1.2 To enable option holders whose rights to exercise the options have
vested to instruct the Plan administrators to do each of the following
if an offer for securities is made to all holders of ordinary shares
in the Company:
(a) accept the offer for the ordinary shares issued on exercise of
the options; and
(b) direct the offeror to pay the consideration for the ordinary
shares to the Company and apply the consideration to pay the
exercise price and taxes payable by the Company in respect of the
shares and to pay the balance to the option holder.
2. ASX has only considered listing rule 7.38 and makes no statement
regarding the Company's compliance with the other listing rules."
The waiver granted will appear on the public register of listing rule waivers on
or shortly after 10 March 1999.
In accordance with listing rule 16.7, an invoice for the amount of $600 will be
sent to the Company, representing the fee for processing this waiver
application.
If you have any questions in relation to this matter, please do not hesitate to
contact me,
Yours sincerely
/s/ David Barnett
David Barnett
LISTINGS OFFICER
- ----------------
Direct line: (02) 9227 0520
<PAGE>
OZEMAIL LIMITED
ACN 066 387 157
1996 STOCK OPTION PLAN
----------------------
ARTICLE ONE
GENERAL PROVISIONS
------------------
I. PURPOSE OF THE PLAN
This 1996 Stock Option Plan is intended to promote the interests of OzEmail
Limited, a corporation organised under the laws of New South Wales,
Australia, by providing eligible persons with the opportunity to acquire a
proprietary interest, or otherwise increase their proprietary interest, in
the Corporation as an incentive for them to remain in the service of the
Corporation.
Capitalised terms shall have the meanings assigned to such terms in the
attached Appendix.
II. ADMINISTRATION OF THE PLAN
A. The Plan shall be administered by the Board. However, any or all
administrative functions otherwise exercisable by the Board may be
delegated to the Committee. Members of the Committee shall serve for
such period of time as the Board may determine and shall be subject to
removal of the Board at any time. The Board may also at any time
terminate the functions of the Committee and reassume all powers and
authority previously delegated to the Committee.
B. The Plan Administrator shall have full power and authority (subject to
the provisions of the Plan) to establish such rules and regulations as
it may deem appropriate for proper administration of the Plan and to
make such determination under, and issue such interpretation of the
Plan and any outstanding options as it may deem necessary or
advisable. Decisions of the Plan Administrator shall be final and
binding on all parties who have an interest in the Plan or any option
or shares issued thereunder.
III. ELIGIBILITY
A. The persons eligible to participate in the Plan are as follows:
(i) Employees;
<PAGE>
(ii) Consultants and other independent advisors who provide services
to the Corporation (or any Parent or Subsidiary).
C. The Plan Administrator shall have full authority (subject to the
provisions of the Plan) to determine which eligible persons are to
receive option grants, the time or times when such option grants are
to be made, the number of shares to be covered by each such grant, the
time or times at which each option is to become exercisable, the
vesting schedule (if any) applicable to the option shares and the
maximum term for which the option is to remain outstanding.
IV. STOCK SUBJECT TO THE PLAN
A. The maximum number of Ordinary Shares which may be issued over the
term of the Plan shall not exceed 13,000,000 shares. Such share
reserve shall be drawn from the Corporation's authorised but unissued
Ordinary Shares.
B. Ordinary Shares subject to outstanding options shall be available for
subsequent issuance under the Plan to the extent (i) the options
expire or terminate for any reason prior to exercise in full or (ii)
the options are cancelled in accordance with the cancellation-regrant
provisions of Article Two. All Ordinary Shares issued under the Plan
shall reduce on a share-for-share basis the number of Ordinary Shares
available for subsequent issuance under the Plan.
C. Should any change be made to Ordinary Shares by reason of any stock
split, stock dividend, recapitalisation, combination of shares,
exchange of shares or other change affecting the outstanding Ordinary
Shares as a class without the Corporation's receipt of consideration,
appropriate adjustments shall be made to (i) the maximum number and/or
class of securities issuable under the Plan and (ii) the number and/or
class of securities and the exercise price per share in effect under
each outstanding option in order to prevent the dilution or
enlargement of benefits thereunder. The adjustments determined by the
Plan Administrator shall be final, binding, and conclusive.
<PAGE>
ARTICLE TWO
OPTION GRANT PROGRAM
--------------------
I. OPTION TERMS
Each option shall be evidenced by one or more documents in the form
approved by the Plan Administrator; provided; however, that each such
document shall comply with the terms specified below.
A. Exercise Price
1. The exercise price per share shall be fixed by the Plan
Administrator but shall not be less than eighty-five percent
(85%) of the fair Market Value per Ordinary Share on the option
grant date.
2. The exercise price shall become immediately due upon exercise of
the option and shall, subject to the provisions of Section I of
Article Three and the documents evidencing the option, be payable
in one or more of the forms specified below:
(i) cash or check made payable to the Corporation;
(ii) Ordinary Shares held for the requisite period necessary
to avoid a charge to the Corporation's earnings for
financial reporting purposes and valued at Fair Market
Value on the Exercise Date;
(iii) to the extent the option is exercised for vested
shares, through a special sale and remittance procedure
pursuant to which the Optionee shall concurrently
provide irrevocable written instructions to (a) a
Corporation-designated brokerage firm to effect the
immediate sale of the purchased shares and remit to the
Corporation, out of the sale proceeds available on the
settlement date, sufficient funds to cover the
aggregate exercise price payable for the purchased
shares plus all applicable income and employment taxes
required to be withheld by the Corporation by reason of
such exercise and (b) the Corporation to deliver the
certificates for the purchased shares directly to such
brokerage firm in order to complete the sale; or
(iv) Where a cash tender offer has been made directly to all
the Corporation's stockholders, through a special
acceptance and remittance procedure pursuant to which
the Optionee shall:
<PAGE>
(a) provide irrevocable written instructions for the
exercise of such options, with the exercise
occurring prior to the expiry of the tender at a
time determined at the discretion of the Board and
for the Corporation to send acceptances to the
person making the cash tender offer in respect of
the shares issued on exercise of those options;
(b) provide the Corporation with an irrevocable
direction to the person making the cash tender
offer in respect of such shares that the payment
in respect of such acceptance of the cash tender
offer for such shares is to be remitted to the
Corporation; and
(c) irrevocably authorise the Corporation to retain
from the cash amount paid to it in respect of the
acceptance of the cash tender offer, the amount
covering the aggregate exercise price payable for
those shares plus all applicable income and
employment and/or pay roll taxes payable by the
Corporation in respect of those shares and to pay
the balance to the Optionee and if such tender
offer for any reason does not proceed, the
Corporation may as soon as practicable thereafter
sell the shares so issued on the market and remit
the balance after deduction of the aggregate
exercise price to the Optionee.
Except to the extent these sale and remittance procedures are utilised, payment
of the exercise price for the purchased shares must be made on the Exercise
Date.
D. Exercise and Term of Options
Each option shall be exercisable at such time or times, during such
period and for such number of shares as shall be determined by the
Plan Administrator and set forth in the documents evidencing the
option. However, no option shall have a term in excess of five (5)
years measured from the option grant date.
E. Effect of Termination of Service
1. The following provisions shall govern the exercise of any options
held by the Optionee at the time of cessation of Service or
death:
(i) Any option outstanding at the time of the Optionee's
cessation of Service for any reason shall remain
exercisable for such period of time thereafter as shall
be determined by the Plan Administrator and set forth
in the documents evidencing the option, but no such
option shall be exercisable after the expiration of the
option term.
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(ii) Any option exercisable in whole or part by the Optionee
at the time of death may be exercised subsequently by
the personal representative of the Optionee's estate or
by the person or persons to whom the option is
transferred pursuant to the Optionee's will or in
accordance with the laws of descent and distribution.
(iii) During the applicable post-Service exercise period,
the option may not be exercised in the aggregate for
more than the number of vested shares for which the
option is exercisable on the date of the Optionee's
cessation of Service. Upon the expiration of the
applicable exercise period or (if earlier) upon the
expiration of the option term, the option shall
terminate and cease to be outstanding for any vested
shares for which the option has not been exercised.
However, the option shall, immediately upon the
Optionee's cessation of Service, terminate and cease to
be outstanding to the extent the option is not
otherwise at the time exercisable for vested shares.
(iv) Should the Optionee's Service be terminated for
Misconduct, then all outstanding options held by the
Optionee shall terminate immediately and cease to be
outstanding.
(v) In the event of an Involuntary Termination following a
Corporate Transaction, the provisions of Section III of
this Article Two shall govern the period for which the
outstanding options are to remain exercisable following
the Optionee's cessation of Service and shall supersede
any provisions to the contrary in this section.
6. The Plan Administrator shall have the discretion, exercisable
either at the time an option is granted or at any time while the
option remains outstanding, to:
(i) extend the period of time for which the option is to
remain exercisable following the Optionee's cessation
of Service from the period otherwise in effect for that
option to such greater period of time as the Plan
Administrator shall deem appropriate, but in no event
beyond the expiration of the term, and/or
(ii) permit the option to be exercised, during the
applicable post-Service exercise period, not only with
respect to the number of vested Ordinary Shares for
which such option is exercisable at the time of the
Optionee's cessation of Service, but also with respect
to one or more additional installments in which the
Optionee would have vested under the option had the
Optionee continued in Service.
<PAGE>
C. Stockholder Rights
The holder of an option shall have no stockholder rights with respect
to the shares subject to the option until such person shall have
exercised the option, paid the exercise price and become a holder of
record of the purchased shares.
D. Repurchase Rights
The Plan Administrator shall have the discretion to grant options
which are exercisable for unvested Ordinary Shares. Should the
Optionee cease Service while holding such unvested shares, the
Corporation shall, subject to limitations imposed under Australian
law, have the right to repurchase, at the exercise price paid per
share, any or all of those unvested shares. The terms upon which such
repurchase right shall be exercisable (including the period and
procedure for exercise and the appropriate vesting schedule for the
purchased shares) shall be established by the Plan Administrator and
set forth in the document evidencing such repurchase right.
E. Limited Transferability of Options
During the lifetime of the Optionee, the option shall be exercisable
only by the Optionee and shall not be assignable or transferable other
than by will or by the laws of descent and distribution following the
Optionee's death.
VI. CORPORATE TRANSACTION/CHANGE IN CONTROL
A. In the event of any Corporate Transaction, each outstanding option
shall automatically accelerate so that each such option shall,
immediately prior to the effective date of the Corporate Transaction,
become fully exercisable for all of the Ordinary Shares at the time
subject to such option and may be exercised for any or all of those
shares as fully-vested Ordinary Shares. However, an outstanding option
shall NOT so accelerate if and to the extent: (i) such option is, in
connection with the Corporate Transaction, either to be assumed by the
successor corporation (or parent thereof) or to be replaced with a
comparable option to purchase shares of the capital stock of the
successor corporation (or parent thereof), (ii) such option is to be
replaced with a cash incentive program of the successor corporation
which preserves the spread existing on the unvested option shares at
the time of the Corporate Transaction and provides for subsequent
payout in accordance with the same vesting schedule applicable to such
option or (iii) the acceleration of such option is subject to other
limitations imposed by the Plan Administrator at the time of the
option grant. The determination of option comparability under clause
(i) above shall be made by the Plan Administrator, and its
determination shall be final, binding and conclusive.
B. Immediately following the consummation of the Corporate Transaction,
all outstanding options shall terminate and cease to be outstanding,
except to the extent assumed by the successor corporation (or parent
thereof).
<PAGE>
C. Each option which is assumed in connection with a Corporate
Transaction shall be appropriately adjusted, immediately after such
Corporate Transaction, to apply to the number and class of securities
which would have been issuable to the Optionee in consummation of such
Corporate Transaction had the option been exercised immediately prior
to such Corporate Transaction. Appropriate adjustments shall also be
made to (i) the number and class of securities available for issuance
under the Plan following the consummation of such Corporate
Transaction, (ii) the exercise price payable per share under each
outstanding option, provided that aggregate exercise price payable for
such securities shall remain the same and (iii) the maximum number of
securities and/or class of securities for which any one person may be
granted stock options, separately exercisable stock appreciation
rights and direct stock issuances under the Plan per calendar year.
D. Any options which are assumed or replaced in the Corporate Transaction
and do not otherwise accelerate at that time, shall automatically
accelerate in the event the Optionee's Service should subsequently
terminate by reason of an Involuntary Termination within eighteen (18)
months following the effective date of such Corporate Transaction. Any
options so accelerated shall remain exercisable for fully-vested
shares until the earlier of (i) the expiration of the option term or
(ii) the expiration of the one (1) year period measured from the
effective date of the Involuntary Termination.
E. The Plan Administrator shall have the discretion, exercisable either
at the time the option is granted or at any time while the option
remains outstanding, to (i) provide for the automatic acceleration of
one or more outstanding options upon the occurrence of a Change in
Control or (ii) condition any such option acceleration upon the
subsequent Involuntary Termination of the Optionee's Service within a
specified period following the effective date of such Change in
Control. Any options accelerated in connection with a Change in
Control shall remain fully exercisable until the expiration or sooner
termination of the option term.
F. The grant of options under the Plan shall in no way affect the right
of the Corporation to adjust, reclassify, reorganise or otherwise
change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its
business or assets.
VII. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any time and
from time to time, with the consent of the affected option holders, the
cancellation of any or all outstanding options under the Plan and to grant
in substitution new options covering the same or different number of
Ordinary Shares but with an exercise price per share based on the Fair
Market Value per Ordinary Share on the new option grant date.
<PAGE>
ARTICLE THREE
MISCELLANEOUS
-------------
I. FINANCING
A. Subject to compliance with Australian law, the Plan Administrator may
permit any Optionee to pay the option exercise price under the Plan by
delivering a promissory note payable in one or more instalments. The
terms of any such promissory note (including the interest rate and the
terms of repayment) shall be established by the Plan Administrator in
its sole discretion. Promissory notes may be authorised with or
without security or collateral. In all events, the maximum credit
available to the Optionee may not exceed the sum of (i) the aggregate
option exercise price or purchase price payable for the purchased
shares plus (ii) any Federal, state and local income and employment
tax liability incurred by the Optionee in connection with the option
exercise or share purchase.
B. The Plan Administrator may, in its sole discretion, determine that one
or more such promissory notes shall be subject to forgiveness by the
Corporation in whole or part upon such terms as the Plan Administrator
may deem appropriate.
III. TAX WITHHOLDING
The Corporation's obligation to deliver Ordinary Shares upon the exercise
of options or stock appreciation rights under the Plan shall be subject to
the satisfaction of all applicable income and employment tax withholding
requirements.
IV. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan shall become effective on the Plan Effective Date, and
options may be granted under the Plan at any time on or after the Plan
Effective Date. However, no options granted under the Plan may be
exercised, and no shares shall be issued under the Plan, until the
Plan is approved by the Corporation's stockholders. If such
stockholder approval is not obtained within twelve (12) months after
the Plan Effective Date, then all options previously granted under
this Plan shall terminate and cease to be outstanding, and no further
options shall be granted and no shares shall be issued under the Plan.
B. The Plan shall terminate upon the earliest of (i) March 28, 2006, (ii)
the date on which all shares available for issuance under the Plan
shall have been issued pursuant to the exercise of the options under
the Plan or (iii) the termination of all outstanding options in
connection with a Corporate Transaction. Upon such Plan termination,
all outstanding options shall continue to have force and effect in
accordance with the provisions of the documents evidencing such
options.
<PAGE>
V. AMENDMENT OF THE PLAN
A. The Board shall have complete and exclusive power and authority to
amend or modify the Plan in any or all respects. However, no such
amendment or modification shall adversely affect any rights and
obligations with respect to options or stock appreciation rights at
the time outstanding under the Plan unless the Optionee consents to
such amendment or modification. In addition, the Board shall not,
without the approval of the Corporation's stockholders, (i) materially
increase the maximum number of shares issuable under the Plan except
for permissible adjustments in the event of certain changes in the
Corporation's capitalization, (ii) materially modify the eligibility
requirements for the Plan participation or (iii) materially increase
the benefits accruing to Plan participants.
B. Options to purchase Ordinary Shares may be granted under the Plan that
are in excess of the number of shares then available for issuance
under the Plan. However, no such option shall become exercisable until
there is obtained stockholder approval of an amendment sufficiently
increasing the number of Ordinary Shares available for issuance under
the Plan. If such stockholder approval is not obtained within twelve
(12) months after the date the first such excess issuances are made,
the such options granted on the basis of such excess shares shall
terminate and cease to be outstanding.
II. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of Ordinary
Shares under the Plan shall be used for general corporate purposes.
III. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any option or stock
appreciation right under the Plan and the issuance of any Ordinary
Shares upon the exercise of any option or stock appreciation right
shall be subject to the Corporation's procurement of all approvals and
permits required by regulatory authorities having jurisdiction over
the Plan, the options and stock appreciation rights granted under it
and the Ordinary Shares issued pursuant to it.
B. No Ordinary Shares or other assets shall be issued or delivered under
the Plan unless and until there shall have been compliance with all
(i) applicable requirements of U.S. Federal and state securities law,
(ii) all applicable listing requirements of any stock exchange (or the
Nasdaq National Market, if applicable) on which the Ordinary Share (or
the American Depositary Share representing the Ordinary Share) is then
listed for trading and (iii) all applicable requirements of Australian
law. Without limiting the generality of the foregoing, whilst the
Corporation is admitted to the General List of the Australian Stock
<PAGE>
Exchange Limited ("ASX") any options issued under the Plan will be
issued on terms that comply with the applicable ASX Listing Rules,
including ASX Listing Rules 6.16, 6.19 and 6.21.
III. NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee any right to continue in
Service for any period of specific duration or interfere with or otherwise
restrict in any way the rights of the Corporation (or any Parent or
subsidiary employing or retaining such person) or of the Optionee, which
rights are hereby expressly reserved by each, to terminate such person's
Service at any time for any reason, with or without cause.
<PAGE>
APPENDIX
The following definitions shall be in effect under the Plan:
A. BOARD shall mean the Corporation's Board of Directors.
B. CHANGE IN CONTROL shall mean a change in ownership or control of the
Corporation effected through any of the following transactions:
(i) the acquisition, directly or indirectly by any person or related group
of persons (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control
with, the Corporation), of beneficial ownership (within the meaning of
Rule 13d-3 of the 1934 Act) of securities possessing more than fifty
percent (50%) of the total combined voting power of the Corporation's
outstanding securities pursuant to a tender or exchange offer made
directly to the Corporation's stockholders which the Board does not
recommend such stockholders to accept, or
(ii) a person (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control
with, the Corporation) makes a tender offer to all the Corporation's
stockholders which has a minimum condition which, if satisfied, will
entitle the person to compulsorily acquire all Ordinary Shares, and:
(a) all conditions of the tender offer are satisfied or waived and
the offer has closed; and
(b) that person:
(i) tells the Corporation that it is entitled to proceed to
compulsory acquisition;
(ii) tells the Corporation that it intends to proceed to
compulsory acquisition; and
(iii) announces to the market that it will proceed to compulsory
acquisition.
(iv) a change in the composition of the Board over a period of thirty-six
(36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who either (A) have been
Board members continuously since the beginning of such period or (B)
have been elected or nominated for election as Board members during
such period by at least a majority of the Board members described in
clause (A) who were still in office at the time such election or
nomination was approved by the Board.
E. COMMITTEE shall mean a committee of two (2) or more Board members appointed
by the Board to exercise one or more administrative functions under the
Plan.
<PAGE>
F. CORPORATE TRANSACTION shall mean either of the following stockholder
approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or
persons different from the persons holding those securities
immediately prior to such transaction, or
(ii) the sale, transfer or other disposition of all or substantially all of
the Corporation's assets in complete liquidation or dissolution of the
Corporation.
C. CORPORATION shall mean OzEmail Limited, a corporation organised under the
laws of New South Wales, Australia.
D. EMPLOYEE shall mean an individual who is in the employ of the Corporation
(or any Parent or Subsidiary), subject to the control and direction of the
employer entity as to both the work to be performed and the manner and
method of performance.
E. EXERCISE DATE shall mean the date on which the Corporation shall have
received written notice of the option exercise.
F. FAIR MARKET VALUE per Ordinary Share on any relevant date shall be
determined in accordance with the following provisions:
(i) If the Ordinary Share (or any American Depositary Share representing
the Ordinary Share) is at the time traded on the Nasdaq National
Market, then the Fair Market Value shall be the closing selling price
per Ordinary Share (or American Depositary Share) on the date in
question, as such price is reported by the National Association of
Securities Dealers on the Nasdaq National Market, or any successor
system. If there is no closing selling price for the Ordinary Share
(or the American Depositary Share) on the date in question, then the
Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(ii) If the Ordinary Share (or any American Depositary Share representing
the Ordinary Share) is at the time listed on any Stock Exchange, then
the Fair Market Value shall be the closing selling price per Ordinary
Share (or American Depository Share) on the date in question on the
Stock Exchange determined by the Plan Administrator to be the primary
market for the Ordinary Share (or the American Depository Share), as
such price is officially quoted in the composite tape of transactions
on such exchange. If there is no closing selling price for the
Ordinary Share (or the American Depository Share) on the date in
question, then the Fair Market Value shall be the closing selling
price on the last preceding date for which such quotation exists.
<PAGE>
(iii) For purposes of option grants made prior to the date of execution of
the Underwriting Agreement, the Fair Market Value shall be determined
by the Plan Administrator after taking into account such factors as
the Plan Administrator shall deem appropriate.
D. HOSTILE TAKE-OVER shall mean a change in ownership of the Corporation
effected through the following transaction:
(i) the acquisition, directly or indirectly, by any person or related
group of persons (other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under common control
with, the Corporation) of beneficial ownership (within the meaning of
Rule 13d-3 of the 1934 Act) of securities possessing more than fifty
percent (50%) of the total combined voting power of the Corporation's
outstanding securities pursuant to a tender or exchange offer made
directly to the Corporation's stockholders which the Board does not
recommend such stockholders to accept, and
(ii) more than fifty percent (50%) of the securities so acquired are
accepted from persons other than officers and directors of the
Corporation.
C. INVOLUNTARY TERMINATION shall mean the termination of the Service of any
individual which occurs by reason of:
(i) such individual's involuntary dismissal or discharge by the
Corporation for reasons other than Misconduct, or
(ii) such individual's voluntary resignation following (A) a change in his
or her position with the Corporation which materially reduces his or
her level of responsibility, (B) a reduction in his or her level of
compensation (including base salary, fringe benefits and participation
in corporate-performance based bonus or incentive programs) by more
than fifteen percent (15%) or (C) a relocation of such individual's
place of employment by more than fifty (50) miles, provided and only
if such change, reduction or relocation is effected by the Corporation
without the individual's consent.
C. MISCONDUCT shall mean the commission of any act of fraud, embezzlement or
dishonesty by the Optionee, any unauthorized use or disclosure by such
person of confidential information or trade secrets of the Corporation (or
any Parent or Subsidiary), or any other intentional misconduct by such
person adversely affecting the business or affairs of the Corporation (or
any Parent or Subsidiary) in a material manner. The foregoing definition
shall not be deemed to be inclusive of all the acts or omissions which the
Corporation (or any Parent or Subsidiary) may consider as grounds for the
dismissal or discharge of any Optionee or other person in the Service of
the Corporation (or any Parent or Subsidiary).
D. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
E. OPTIONEE shall mean any person to whom an option is granted under the Plan.
<PAGE>
F. ORDINARY SHARE shall mean the Corporation's ordinary share, par value of
A$0.04 per share.
G. PARENT shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the
time of the determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
H. PERMANENT DISABILITY OR PERMANENTLY DISABLED shall mean the inability of
the Optionee or the Participant to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment expected to result in death or to be of continuous duration of
twelve (12) months or more.
I. PLAN shall mean the Corporation's 1996 Stock Option Plan, as set forth in
this document.
J. PLAN ADMINISTRATOR shall mean either the Board or the Committee, to the
extent the Committee is at the time responsible for the administration of
the Plan.
K. PLAN EFFECTIVE DATE shall mean March 29, 1996, the date on which the Plan
was adopted by the Board.
L. SERVICE shall mean the provision of services to the Corporation (or any
Parent or Subsidiary) by a person in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or
independent advisor, except to the extent otherwise specifically provided
in the documents evidencing the option grant.
M. STOCK EXCHANGE shall mean either the American Stock Exchange, the New York
Stock Exchange or the Australian Stock Exchange.
N. SUBSIDIARY shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain
owns, at the time of the determination, stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock in
one of the other corporations in such chain.
O. TAKE-OVER PRICE shall mean the greater of (i) the Fair Market Value per
Ordinary Share on the date the option is surrendered to the Corporation in
connection with a Hostile Take-Over or (ii) the highest reported price per
Ordinary Share paid by the tender offeror in effecting such Hostile
Take-Over.
P. UNDERWRITING AGREEMENT shall mean the agreement between the Corporation and
the underwriter or underwriters managing the initial public offering of the
Ordinary Share (or the American Depository Share).
<PAGE>
EXHIBIT 7
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(Statement by the Company made to Internet customers regarding the Offer)
MCI WORLDCOM BID
----------------
As you are probably aware, the international telecommunications
company MCI WorldCom has launched a takeover bid for OzEmail. The offer opened
last week and closes on the 9th of February, 1999. MCI WorldCom is seeking to
purchase all shares in OzEmail and then delist the company from both the
Australian Stock Exchange and the Nasdaq National market in the U.S. The
Directors of OzEmail have recommended to shareholders that they accept the offer
of US$2.20 per share, subject to there not being a higher bid, and have
indicated that their present intention is to accept the bid. During the process
of the sale, it is business as usual at OzEmail. MCI WorldCom has indicated in
its offer document that if its takeover bid is successful they intend to
preserve and grow the existing core Internet service provider business
activities of OzEmail and integrate them into the MCI WorldCom Internet-related
business.
