<PAGE>
As filed with the Securities and Exchange Commission on October 28, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
INKTOMI CORPORATION
(Exact name of issuer as specified in its charter)
DELAWARE 94-3238130
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1900 SOUTH NORFOLK STREET, SUITE 310
SAN MATEO, CALIFORNIA 94403
(650) 653-2800
(Address of principal executive offices)
INKTOMI CORPORATION 1996 PRE-PLAN OPTIONS
INKTOMI CORPORATION 1996 EQUITY INCENTIVE PLAN
INKTOMI CORPORATION 1998 STOCK PLAN
INKTOMI CORPORATION 1998 EMPLOYEE STOCK PURCHASE PLAN
C2B TECHNOLOGIES, INC. 1997 STOCK PLAN
(Full title of the plans)
----------------
Timothy Stevens
Assistant Secretary and General Counsel
INKTOMI CORPORATION
1900 South Norfolk Street, Suite 310
San Mateo, California 94403
(650) 653-2800
(Name, address and telephone number of agent for service)
----------------
Copy to:
Roger E. George, Esq.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed
Proposed Maximum
Amount to Maximum Aggregate
be Offering Price Offering Amount of
Title of Securities to be Registered Registered Per Share Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($0.001 per share):
To be issued under Inktomi Corporation Pre-Plan Options(1) 75,556 $ 0.12(1) $ 9,067 $ 2.52
To be issued under Inktomi Corporation 1996 Equity Incentive
Plan (2) 1,792,064 $ 1.52(2) $ 2,723,937 $ 757.25
To be issued under Inktomi Corporation 1998 Stock Plan (3) 642,850 $44.73(3) $28,754,681 $7,993.80
Available for issuance under Inktomi Corporation 1998 Stock Plan (4) 357,150 $85.53(4) $30,547,040 $8,492.07
To be issued under Inktomi Corporation 1998 Employee Stock Purchase
Plan (5) 300,000 $15.30(5) $ 4,590,000 $1,276.02
Issued under C2B Technologies, Inc. 1997 Stock Plan (6) 129,598 $ 1.38(6) $ 178,846 $ 49.72
====================================================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of computing the amount of
the registration fee based on the weighted average exercise price of
$0.1125 per share covering authorized but unissued shares under the
Inktomi Corporation Pre-Plan Options.
(2) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of computing the amount of
the registration fee based on the weighted average exercise price of $1.52
per share covering authorized but unissued shares under the Inktomi
Corporation 1996 Equity Incentive Plan.
(3) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of computing the amount of
the registration fee based on the fair value of $44.7296 per share of such
shares at the time of issuance under the Inktomi Corporation 1998 Stock
Plan.
(4) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of computing the amount of
the registration fee based on the average of the high and low average
stock price of $85.5625 per share as reported on the Nasdaq National
Market on October 26, 1998.
(5) The exercise price of $15.30 per share, computed in accordance with Rule
457(h) under the Securities Act, is 85% of the opening price of a share of
Common Stock of the Company as reported on the Nasdaq National Market on
June 9, 1998, the current enrollment date. Pursuant to the 1998 Employee
Stock Purchase Plan (Exhibit 10.3), shares are sold at 85% of the lesser
of the fair market value of such shares on the Enrollment Date or on the
Exercise Date.
(6) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of computing the amount of
the registration fee based on the weighted average exercise price of $1.38
per share covering authorized but unissued shares under the C2B
Technologies, Inc. 1997 Stock Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
- ------ ---------------------------------------
Inktomi Corporation (the "Company") hereby incorporates by reference
in this registration statement the following documents:
(a) The Company's Final Prospectus dated and filed with the Commission
as of June 12, 1998 pursuant to Rule 424(b) of the Securities Act of 1933, as
amended (the "Securities Act").
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed May 22, 1998 pursuant to
Section 12(g) of the Exchange Act.
The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1998, filed pursuant to Section 13(a) of the Exchange Act.
The Company's Report on Form 8-K filed on October 9, 1998 pursuant to
Section 13(a) of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this registration statement which indicates that all Securities
offered hereby have been sold or which deregisters all Securities remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
- ------ -------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
- ------ --------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
- ------ -----------------------------------------
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by current law.
Article IX of the Registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors o the fullest extent
permissible under Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification
of officers, directors and third parties acting on behalf of the corporation to
the fullest extent permissible under General Corporation Law of Delaware.
II-1
<PAGE>
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to the indemnification provided
for in the Registrant's Bylaws, and intends to enter into indemnification
agreements with any new directors and executive officers in the future.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant
has been informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
Item 7. Exemption From Registration Claimed
- ------ -----------------------------------
Not applicable.
Item 8. Exhibits
- ------ --------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- ---------------------------------------------------------------------
<C> <S>
5.1 Opinion of counsel as to legality of Securities being registered.
10.2* Inktomi Corporation 1998 Stock Plan and form of agreements
thereunder
10.3* Inktomi Corporation 1998 Employee Stock Purchase Plan and form
of agreements thereunder
10.4* Inktomi Corporation 1996 Equity Incentive Plan and form of
agreements thereunder
10.5 C2B Technologies, Inc. (formerly BeyondNews, Inc.) 1997 Stock
Plan and form of agreements thereunder
10.19 Form of Inktomi Corporation Pre-Plan Options
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
for Inktomi Corporation
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
</TABLE>
- --------------------
* Incorporated by reference to the Exhibits filed with the Company's
Registration Statement on Form S-1 (Registration No. 333-50247) as declared
effective by the Commission on June 9, 1998.
Item 9. Undertakings
- ------ ------------
(a) Rule 415 offering The undersigned registrant hereby undertakes:
-----------------
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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;
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment shall be
deemed to be a new registration statement relating to the Securities offered
therein, and the offering of such Securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the Securities being registered which remain unsold at the
termination of the offering.
(b) Filing incorporating subsequent Exchange Act documents by reference
-------------------------------------------------------------------
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange 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.
(c) Request for acceleration of effective date or filing of
--------------------------------------------------------
registration statement on Form S-8
- ----------------------------------
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the Securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Mateo, State of California, on this 27th day
of October, 1998.
INKTOMI CORPORATION
By: /s/ Jerry M. Kennelly
------------------------------
Jerry M. Kennelly
Vice President of Finance, and
Chief Financial Officer
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE
APPEARS BELOW CONSTITUTES AND APPOINTS DAVID C. PETERSCHMIDT AND JERRY M.
KENNELLY, AND EACH OF THEM, AS HIS OR HER ATTORNEY-IN-FACT, WITH FULL POWER OF
SUBSTITUTION IN EACH, FOR HIM OR HER IN ANY AND ALL CAPACITIES TO SIGN ANY
AMENDMENTS TO THIS REGISTRATION STATEMENT ON FORM S-8, AND TO FILE THE SAME,
WITH EXHIBITS THERETO AND OTHER DOCUMENTS IN CONNECTION THEREWITH, WITH THE
SECURITIES AND EXCHANGE COMMISSION, HEREBY RATIFYING AND CONFIRMING ALL THAT
SAID ATTORNEY-IN-FACT, OR HIS SUBSTITUTES, MAY DO OR CAUSE TO BE DONE BY VIRTUE
HEREOF.
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 AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------- ---------------------------------- ----------------
<S> <C> <C>
/s/ David C. Peterschmidt President, Chief Executive Officer October 27, 1998
- --------------------------- (Principal Executive Officer) and
David C. Peterschmidt Director
/s/ Jerry M. Kennelly Vice President of Finance and Chief October 27, 1998
- --------------------------- Financial Officer (Principal
Jerry M. Kennelly Financial Officer)
/s/ Eric A. Brewer Director October 27, 1998
- ---------------------------
Eric A. Brewer
/s/ Frederic W. Harman Director October 27, 1998
- ---------------------------
Frederic W. Harman
/s/ John A. Porter Director October 27, 1998
- ---------------------------
John A. Porter
/s/ Alan F. Shugart Director October 27, 1998
- ---------------------------
Alan F. Shugart
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT EXHIBIT PAGE
NUMBER ------------------------------------------------------------------ ------------
<C> <S> <C>
5.1 Opinion of counsel as to legality of Securities being registered.
10.2* Inktomi Corporation 1998 Stock Plan and form of agreements
thereunder
10.3* Inktomi Corporation 1998 Employee Stock Purchase Plan and
form of agreements thereunder
10.4* Inktomi Corporation 1996 Equity Incentive Plan and form of
agreements thereunder
10.5 C2B Technologies Incorporated (formerly BeyondNews, Inc.)
1997 Stock Plan and form of agreements thereunder
10.19 Form of Inktomi Corporation Pre-Plan Options
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants for Inktomi Corporation
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
</TABLE>
- ------------
* Incorporated by reference to the Exhibits filed with the Company's
Registration Statement on Form S-1 (Registration No. 333-50247) as declared
effective by the Commission on June 9, 1998.
<PAGE>
EXHIBIT 5.1
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, CA 94304
Telephone: 650-493-9300
Fax: 650-493-6811
October 27, 1998
Inktomi Corporation
1900 South Norfolk Street
Suite 310
San Mateo, California 94403
RE: REGISTRATION STATEMENT ON FORM S-8:
INKTOMI CORPORATION PRE-PLAN OPTIONS
INKTOMI CORPORATION 1996 INCENTIVE PLAN
INKTOMI CORPORATION 1998 STOCK PLAN
INKTOMI CORPORATION 1998 EMPLOYEE STOCK PURCHASE PLAN
C2B TECHNOLOGIES, INC. 1997 STOCK PLAN
---------------------------------------------------------------------
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about October 27, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, an aggregate of 3,452,917 shares of your
Common Stock (the "Shares") reserved for issuance under the Inktomi Corporation
Pre-Plan Options, Inktomi Corporation 1996 Incentive Plan, the Inktomi
Corporation 1998 Stock Plan, the Inktomi Corporation 1998 Employee Stock
Purchase Plan and the C2B Technologies Incorporated (formerly BeyondNews, Inc.)
1997 Stock Plan (collectively, the "Option Programs"). As your legal counsel,
we have examined the proceedings taken and are familiar with the proceedings
proposed to be taken by you in connection with the sale and issuance of such
Common Stock under the Option Programs.
It is our opinion that the Shares, as or when issued and sold in the manner
described in the Registration Statement and sold in the manner referred to in
the Plans and pursuant to the agreements which accompany the Option Programs,
are or will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE>
EXHIBIT 10.5
C2B TECHNOLOGIES INCORPORATED 1997 STOCK PLAN
NOTICE OF STOCK OPTION GRANT
You have been granted the following option to purchase Common Stock of
C2B Technologies Incorporated (the "Company"):
Name of Optionee: (Name)
Total Number of Shares Granted: (TotalShares)
Type of Option: (ISO) Incentive Stock Option
(NSO) Nonstatutory Stock Option
Exercise Price Per Share: $(PricePerShare)
Date of Grant: (DateGrant)
Date Exercisable: This option may be exercised, in
whole or in part, for 100% of the
Shares subject to this option at
any time after the Date of Grant.
Vesting Commencement Date: (VestComDate)
Vesting Schedule: The Right of Repurchase shall lapse
with respect to 1/36/th/ of the
Shares subject to this option on
the (VestDay) of each month of
continuous Service measured from
the Vesting Commencement Date.
Expiration Date: (ExpDate)
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 1997 Stock Plan and the Stock Option Agreement, both
of which are attached to and made a part of this document.
OPTIONEE: C2B TECHNOLOGIES INCORPORATED
__________________________ By:________________________________
__________________________ Title:_____________________________
Print Name
<PAGE>
THE OPTION GRANTED PURSUANT TO THIS AGREEMENT AND THE SHARES ISSUABLE UPON THE
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
C2B TECHNOLOGIES INCORPORATED 1997 STOCK PLAN:
STOCK OPTION AGREEMENT
SECTION 1. GRANT OF OPTION.
(a) OPTION. On the terms and conditions set forth in the Notice of Stock
Option Grant and this Agreement, the Company grants to the Optionee on the Date
of Grant the option to purchase at the Exercise Price the number of Shares set
forth in the Notice of Stock Option Grant. The Exercise Price is agreed to be at
least 100% of the Fair Market Value per Share on the Date of Grant (110% of Fair
Market Value if Section 3(b) of the Plan applies). This option is intended to be
an ISO or a Nonstatutory Option, as provided in the Notice of Stock Option
Grant.
(b) STOCK PLAN AND DEFINED TERMS. This option is granted pursuant to the
Plan, a copy of which the Optionee acknowledges having received. The provisions
of the Plan are incorporated into this Agreement by this reference. Capitalized
terms are defined in Section 14 of this Agreement.
SECTION 2. RIGHT TO EXERCISE.
(a) EXERCISABILITY. Subject to Subsections (b) and (c) below and the
other conditions set forth in this Agreement, all or part of this option may be
exercised prior to its expiration at the time or times set forth in the Notice
of Stock Option Grant. Shares purchased by exercising this option may be
subject to the Right of Repurchase under Section 7.
(b) $100,000 LIMITATION. If this Option is designated as an ISO in the
Notice of Stock Option Grant, then the Optionee's right to exercise this option
shall be deferred to the extent (and only to the extent) that this option
otherwise would not be treated as an ISO by reason of the $100,000 annual
limitation under Section 422(d) of the Code, except that:
(i) The Optionee's right to exercise this option shall not be
deferred with respect to that portion of the Shares subject to this option
whose Fair Market Value as of the Date of Grant exceeds $500,000; and
(ii) The Optionee's right to exercise this option shall no longer be
deferred in the event that (A) a Change in Control occurs, (B) this option
is not assumed
<PAGE>
by the surviving corporation or its parent and (C) the surviving
corporation or its parent does not substitute its own option for this
option.
(c) STOCKHOLDER APPROVAL. Any other provision of this Agreement
notwithstanding, no portion of this option shall be exercisable at any time
prior to the approval of the Plan by the Company's stockholders.
SECTION 3. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as otherwise provided in this Agreement, this option and
the rights and privileges conferred hereby shall not be sold, pledged or
otherwise transferred (whether by operation of law or otherwise) and shall not
be subject to sale under execution, attachment, levy or similar process.
SECTION 4. EXERCISE PROCEDURES.
(a) NOTICE OF EXERCISE. The Optionee or the Optionee's representative
may exercise this option by giving written notice to the Company pursuant to
Section 13(c). The notice shall specify the election to exercise this option,
the number of Shares for which it is being exercised and the form of payment.
The notice shall be signed by the person exercising this option. In the event
that this option is being exercised by the representative of the Optionee, the
notice shall be accompanied by proof (satisfactory to the Company) of the
representative's right to exercise this option. The Optionee or the Optionee's
representative shall deliver to the Company, at the time of giving the notice,
payment in a form permissible under Section 5 for the full amount of the
Purchase Price.
(b) ISSUANCE OF SHARES. After receiving a proper notice of exercise,
the Company shall cause to be issued a certificate or certificates for the
Shares as to which this option has been exercised, registered in the name of the
person exercising this option (or in the names of such person and his or her
spouse as community property or as joint tenants with right of survivorship).
The Company shall cause such certificate or certificates to be deposited in
escrow or delivered to or upon the order of the person exercising this option.
(c) WITHHOLDING TAXES. In the event that the Company determines that
it is required to withhold any tax as a result of the exercise of this option,
the Optionee, as a condition to the exercise of this option, shall make
arrangements satisfactory to the Company to enable it to satisfy all withholding
requirements. The Optionee shall also make arrangements satisfactory to the
Company to enable it to satisfy any withholding requirements that may arise in
connection with the vesting or disposition of Shares purchased by exercising
this option.
SECTION 5. PAYMENT FOR STOCK.
(a) CASH. All or part of the Purchase Price may be paid in cash or
cash equivalents.
2
<PAGE>
(b) SURRENDER OF STOCK. All or any part of the Purchase Price may be
paid by surrendering, or attesting to the ownership of, Shares that are already
owned by the Optionee. Such Shares shall be surrendered to the Company in good
form for transfer and shall be valued at their fair market value (as determined
by the Board of Directors) on the date when this option is exercised. The
Optionee shall not surrender, or attest to the ownership of, Shares in payment
of the Purchase Price if such action would cause the Company to recognize
compensation expense (or additional compensation expense) with respect to this
option for financial reporting purposes.
(c) EXERCISE/SALE. If Stock is publicly traded, all or part of the
Purchase Price and any withholding taxes may be paid by the delivery (on a form
prescribed by the Company) of an irrevocable direction to a securities broker
approved by the Company to sell Shares and to deliver all or part of the sales
proceeds to the Company.
(d) EXERCISE/PLEDGE. If Stock is publicly traded, all or part of the
Purchase Price and any withholding taxes may be paid by the delivery (on a form
prescribed by the Company) of an irrevocable direction to pledge Shares to a
securities broker or lender approved by the Company, as security for a loan, and
to deliver all or part of the loan proceeds to the Company.
SECTION 6. TERM AND EXPIRATION.
(a) BASIC TERM. This option shall in any event expire on the expiration
date set forth in the Notice of Stock Option Grant, which date is 10 years after
the Date of Grant (five years after the Date of Grant if this option is
designated as an ISO in the Notice of Stock Option Grant and Section 3(b) of the
Plan applies).
(b) TERMINATION OF SERVICE (EXCEPT BY DEATH). If the Optionee's Service
terminates for any reason other than death, then this option shall expire on the
earliest of the following occasions:
(i) The expiration date determined pursuant to Subsection (a)
above;
(ii) The date three months after the termination of the Optionee's
Service for any reason other than Disability; or
(iii) The date six months after the termination of the Optionee's
Service by reason of Disability.
The Optionee may exercise all or part of this option at any time before its
expiration under the preceding sentence, but only to the extent that this option
had become exercisable before the Optionee's Service terminated. When the
Optionee's Service terminates, this option shall expire immediately with respect
to the number of Shares for which this option is not yet exercisable and with
respect to any Restricted Shares. In the event that the Optionee dies after
termination of Service but before the expiration of this option, all or part of
this option may be exercised (prior to expiration) by the executors or
administrators of the Optionee's estate or by any person who has acquired this
option directly from the Optionee by beneficiary designation, bequest or
3
<PAGE>
inheritance, but only to the extent that this option had become exercisable
before the Optionee's Service terminated.
(c) DEATH OF THE OPTIONEE. If the Optionee dies while in Service, then
this option shall expire on the earlier of the following dates:
(i) The expiration date determined pursuant to Subsection (a)
above; or
(ii) The date 12 months after the Optionee's death.
All or part of this option may be exercised at any time before its expiration
under the preceding sentence by the executors or administrators of the
Optionee's estate or by any person who has acquired this option directly from
the Optionee by beneficiary designation, bequest or inheritance, but only to the
extent that this option had become exercisable before the Optionee's death. When
the Optionee dies, this option shall expire immediately with respect to the
number of Shares for which this option is not yet exercisable and with respect
to any Restricted Shares.
(d) LEAVES OF ABSENCE. For any purpose under this Agreement, Service
shall be deemed to continue while the Optionee is on a bona fide leave of
absence, if such leave was approved by the Company in writing and if continued
crediting of Service for such purpose is expressly required by the terms of such
leave or by applicable law (as determined by the Company).
(e) NOTICE CONCERNING ISO TREATMENT. If this option is designated as an
ISO in the Notice of Stock Option Grant, it ceases to qualify for favorable tax
treatment as an ISO to the extent it is exercised (i) more than three months
after the date the Optionee ceases to be an Employee for any reason other than
death or permanent and total disability (as defined in Section 22(e)(3) of the
Code), (ii) more than 12 months after the date the Optionee ceases to be an
Employee by reason of such permanent and total disability or (iii) after the
Optionee has been on a leave of absence for more than 90 days, unless the
Optionee's reemployment rights are guaranteed by statute or by contract.
SECTION 7. RIGHT OF REPURCHASE.
(a) SCOPE OF REPURCHASE RIGHT. Unless they have become vested in
accordance with the Notice of Stock Option Grant and Subsection (c) below, the
Shares acquired under this Agreement initially shall be Restricted Shares and
shall be subject to a right (but not an obligation) of repurchase by the
Company. The Optionee shall not transfer, assign, encumber or otherwise dispose
of any Restricted Shares, except as provided in the following sentence. The
Optionee may transfer Restricted Shares (i) by beneficiary designation, will or
intestate succession or (ii) to the Optionee's spouse, children or grandchildren
or to a trust established by the Optionee for the benefit of the Optionee or the
Optionee's spouse, children or grandchildren, provided in either case that the
Transferee agrees in writing on a form prescribed by the Company to be bound by
all provisions of this Agreement. If the Optionee transfers any Restricted
Shares, then this Section 7 shall apply to the Transferee to the same extent as
to the Optionee.
4
<PAGE>
(b) CONDITION PRECEDENT TO EXERCISE. The Right of Repurchase shall
be exercisable only during the 60-day period next following the later of:
(i) The date when the Optionee's Service terminates for any
reason, with or without cause, including (without limitation) death or
disability; or
(ii) The date when this option was exercised by the Optionee,
the executors or administrators of the Optionee's estate or any person who
has acquired this option directly from the Optionee by bequest, inheritance
or beneficiary designation.
(c) LAPSE OF REPURCHASE RIGHT. The Right of Repurchase shall lapse
with respect to the Shares subject to this option in accordance with the vesting
schedule set forth in the Notice of Stock Option Grant. In addition, the Right
of Repurchase shall lapse and all of the remaining Restricted Shares shall
become vested if (i) the Company is subject to a Change in Control before the
Optionee's Service terminates and (ii) the Right of Repurchase is not assigned
to the entity that employs the Optionee immediately after the Change of Control
or to its parent or subsidiary. Notwithstanding the foregoing, if the Company is
subject to a Change in Control, the Right of Repurchase shall lapse and
additional Restricted Shares shall become vested, as if the Optionee performed
Services for an additional nine months.
(d) REPURCHASE COST. If the Company exercises the Right of
Repurchase, it shall pay the Optionee an amount equal to the Exercise Price for
each of the Restricted Shares being repurchased.
(e) EXERCISE OF REPURCHASE RIGHT. The Right of Repurchase shall be
exercisable only by written notice delivered to the Optionee prior to the
expiration of the 60-day period specified in Subsection (b) above. The notice
shall set forth the date on which the repurchase is to be effected. Such date
shall not be more than 30 days after the date of the notice. The certificate(s)
representing the Restricted Shares to be repurchased shall, prior to the close
of business on the date specified for the repurchase, be delivered to the
Company properly endorsed for transfer. The Company shall, concurrently with
the receipt of such certificate(s), pay to the Optionee the purchase price
determined according to Subsection (d) above. Payment shall be made in cash or
cash equivalents or by canceling indebtedness to the Company incurred by the
Optionee in the purchase of the Restricted Shares. The Right of Repurchase
shall terminate with respect to any Restricted Shares for which it has not been
timely exercised pursuant to this Subsection (e).
(f) ADDITIONAL SHARES OR SUBSTITUTED SECURITIES. In the event of the
declaration of a stock dividend, the declaration of an extraordinary dividend
payable in a form other than stock, a spin-off, a stock split, an adjustment in
conversion ratio, a recapitalization or a similar transaction affecting the
Company's outstanding securities without receipt of consideration, any new,
substituted or additional securities or other property (including money paid
other than as an ordinary cash dividend) which are by reason of such transaction
distributed with respect to any Restricted Shares or into which such Restricted
Shares thereby become convertible shall immediately be subject to the Right of
Repurchase. Appropriate adjustments to reflect the distribution of such
securities or property shall be made to the number and/or class of the
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Restricted Shares. Appropriate adjustments shall also, after each such
transaction, be made to the price per share to be paid upon the exercise of the
Right of Repurchase in order to reflect any change in the Company's outstanding
securities effected without receipt of consideration therefor; provided,
however, that the aggregate purchase price payable for the Restricted Shares
shall remain the same.
(g) TERMINATION OF RIGHTS AS STOCKHOLDER. If the Company makes
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Restricted Shares to be repurchased in
accordance with this Section 7, then after such time the person from whom such
Restricted Shares are to be repurchased shall no longer have any rights as a
holder of such Restricted Shares (other than the right to receive payment of
such consideration in accordance with this Agreement). Such Restricted Shares
shall be deemed to have been repurchased in accordance with the applicable
provisions hereof, whether or not the certificate(s) therefor have been
delivered as required by this Agreement.
(h) ESCROW. Upon issuance, the certificates for Restricted Shares shall
be deposited in escrow with the Company to be held in accordance with the
provisions of this Agreement. Any new, substituted or additional securities or
other property described in Subsection (f) above shall immediately be delivered
to the Company to be held in escrow, but only to the extent the Shares are at
the time Restricted Shares. All regular cash dividends on Restricted Shares (or
other securities at the time held in escrow) shall be paid directly to the
Optionee and shall not be held in escrow. Restricted Shares, together with any
other assets or securities held in escrow hereunder, shall be (i) surrendered to
the Company for repurchase and cancellation upon the Company's exercise of its
Right of Repurchase or Right of First Refusal or (ii) released to the Optionee
upon the Optionee's request to the extent the Shares are no longer Restricted
Shares (but not more frequently than once every six months). In any event, all
Shares which have vested (and any other vested assets and securities
attributable thereto) shall be released within 60 days after the earlier of (i)
the Optionee's cessation of Service or (ii) the lapse of the Right of First
Refusal.
SECTION 8. RIGHT OF FIRST REFUSAL.
(a) RIGHT OF FIRST REFUSAL. In the event that the Optionee proposes to
sell, pledge or otherwise transfer to a third party any Shares acquired under
this Agreement, or any interest in such Shares, the Company shall have the Right
of First Refusal with respect to all (and not less than all) of such Shares. If
the Optionee desires to transfer Shares acquired under this Agreement, the
Optionee shall give a written Transfer Notice to the Company describing fully
the proposed transfer, including the number of Shares proposed to be
transferred, the proposed transfer price, the name and address of the proposed
Transferee and proof satisfactory to the Company that the proposed sale or
transfer will not violate any applicable federal or state securities laws. The
Transfer Notice shall be signed both by the Optionee and by the proposed
Transferee and must constitute a binding commitment of both parties to the
transfer of the Shares. The Company shall have the right to purchase all, and
not less than all, of the Shares on the terms of the proposal described in the
Transfer Notice (subject, however, to any change in such terms permitted under
Subsection (b) below) by delivery of a notice of exercise of the Right of First
Refusal within 30 days after the date when the Transfer Notice was received by
the
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Company. The Company's rights under this Subsection (a) shall be freely
assignable, in whole or in part.
(b) TRANSFER OF SHARES. If the Company fails to exercise its Right of
First Refusal within 30 days after the date when it received the Transfer
Notice, the Optionee may, not later than 90 days following receipt of the
Transfer Notice by the Company, conclude a transfer of the Shares subject to the
Transfer Notice on the terms and conditions described in the Transfer Notice,
provided that any such sale is made in compliance with applicable federal and
state securities laws and not in violation of any other contractual restrictions
to which the Optionee is bound. Any proposed transfer on terms and conditions
different from those described in the Transfer Notice, as well as any subsequent
proposed transfer by the Optionee, shall again be subject to the Right of First
Refusal and shall require compliance with the procedure described in Subsection
(a) above. If the Company exercises its Right of First Refusal, the parties
shall consummate the sale of the Shares on the terms set forth in the Transfer
Notice within 60 days after the date when the Company received the Transfer
Notice (or within such longer period as may have been specified in the Transfer
Notice); provided, however, that in the event the Transfer Notice provided that
payment for the Shares was to be made in a form other than cash or cash
equivalents paid at the time of transfer, the Company shall have the option of
paying for the Shares with cash or cash equivalents equal to the present value
of the consideration described in the Transfer Notice.
(c) ADDITIONAL SHARES OR SUBSTITUTED SECURITIES. In the event of the
declaration of a stock dividend, the declaration of an extraordinary dividend
payable in a form other than stock, a spin-off, a stock split, an adjustment in
conversion ratio, a recapitalization or a similar transaction affecting the
Company's outstanding securities without receipt of consideration, any new,
substituted or additional securities or other property (including money paid
other than as an ordinary cash dividend) which are by reason of such transaction
distributed with respect to any Shares subject to this Section 8 or into which
such Shares thereby become convertible shall immediately be subject to this
Section 8. Appropriate adjustments to reflect the distribution of such
securities or property shall be made to the number and/or class of the Shares
subject to this Section 8.
(d) TERMINATION OF RIGHT OF FIRST REFUSAL. Any other provision of this
Section 8 notwithstanding, in the event that the Stock is readily tradable on an
established securities market when the Optionee desires to transfer Shares, the
Company shall have no Right of First Refusal, and the Optionee shall have no
obligation to comply with the procedures prescribed by Subsections (a) and (b)
above.
(e) PERMITTED TRANSFERS. This Section 8 shall not apply to (i) a
transfer by beneficiary designation, will or intestate succession or (ii) a
transfer to the Optionee's spouse, children or to a trust established by the
Optionee for the benefit of the Optionee or the Optionee's spouse, children or
grandchildren, provided in either case that the Transferee agrees in writing on
a form prescribed by the Company to be bound by all provisions of this
Agreement. If the Optionee transfers any Shares acquired under this Agreement,
either under this Subsection (e) or
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<PAGE>
after the Company has failed to exercise the Right of First Refusal, then this
Section 8 shall apply to the Transferee to the same extent as to the Optionee.
(f) TERMINATION OF RIGHTS AS STOCKHOLDER. If the Company makes
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Shares to be purchased in accordance with
this Section 8, then after such time the person from whom such Shares are to be
purchased shall no longer have any rights as a holder of such Shares (other than
the right to receive payment of such consideration in accordance with this
Agreement). Such Shares shall be deemed to have been purchased in accordance
with the applicable provisions hereof, whether or not the certificate(s)
therefor have been delivered as required by this Agreement.
SECTION 9. LEGALITY OF INITIAL ISSUANCE.
No Shares shall be issued upon the exercise of this option unless and
until the Company has determined that:
(a) It and the Optionee have taken any actions required to register the
Shares under the Securities Act or to perfect an exemption from the registration
requirements thereof;
(b) Any applicable listing requirement of any stock exchange on which
Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has been
satisfied.
SECTION 10. NO REGISTRATION RIGHTS.
The Company may, but shall not be obligated to, register or qualify
the sale of Shares under the Securities Act or any other applicable law. The
Company shall not be obligated to take any affirmative action in order to cause
the sale of Shares under this Agreement to comply with any law.
SECTION 11. RESTRICTIONS ON TRANSFER.
(a) SECURITIES LAW RESTRICTIONS. Regardless of whether the offering and
sale of Shares under the Plan have been registered under the Securities Act or
have been registered or qualified under the securities laws of any state, the
Company at its discretion may impose restrictions upon the sale, pledge or other
transfer of such Shares (including the placement of appropriate legends on stock
certificates or the imposition of stop-transfer instructions) if, in the
judgment of the Company, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act, the securities laws of any state
or any other law.
(b) MARKET STAND-OFF. In connection with any underwritten public
offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act, including the Company's
initial public offering, the Optionee shall not directly or indirectly sell,
make any short sale of, loan, hypothecate, pledge, offer, grant or sell any
option or other contract for the purchase of, purchase any option or
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<PAGE>
other contract for the sale of, or otherwise dispose of or transfer, or agree to
engage in any of the foregoing transactions with respect to, any Shares acquired
under this Agreement without the prior written consent of the Company or its
underwriters. Such restriction (the "Market Stand-Off") shall be in effect for
such period of time following the date of the final prospectus for the offering
as may be requested by the Company or such underwriters. In no event, however,
shall such period exceed 180 days. The Market Stand-Off shall in any event
terminate two years after the date of the Company's initial public offering. In
the event of the declaration of a stock dividend, a spin-off, a stock split, an
adjustment in conversion ratio, a recapitalization or a similar transaction
affecting the Company's outstanding securities without receipt of consideration,
any new, substituted or additional securities which are by reason of such
transaction distributed with respect to any Shares subject to the Market Stand-
Off, or into which such Shares thereby become convertible, shall immediately be
subject to the Market Stand-Off. In order to enforce the Market Stand-Off, the
Company may impose stop-transfer instructions with respect to the Shares
acquired under this Agreement until the end of the applicable stand-off period.
The Company's underwriters shall be beneficiaries of the agreement set forth in
this Subsection (b). This Subsection (b) shall not apply to Shares registered in
the public offering under the Securities Act, and the Optionee shall be subject
to this Subsection (b) only if the directors and officers of the Company are
subject to similar arrangements.
(c) INVESTMENT INTENT AT GRANT. The Optionee represents and agrees that
the Shares to be acquired upon exercising this option will be acquired for
investment, and not with a view to the sale or distribution thereof.
(d) INVESTMENT INTENT AT EXERCISE. In the event that the sale of Shares
under the Plan is not registered under the Securities Act but an exemption is
available which requires an investment representation or other representation,
the Optionee shall represent and agree at the time of exercise that the Shares
being acquired upon exercising this option are being acquired for investment,
and not with a view to the sale or distribution thereof, and shall make such
other representations as are deemed necessary or appropriate by the Company and
its counsel.
(e) LEGENDS. All certificates evidencing Shares purchased under this
Agreement shall bear the following legend:
"THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF,
EXCEPT IN COMPLIANCE WITH THE TERMS OF A WRITTEN AGREEMENT
BETWEEN THE COMPANY AND THE REGISTERED HOLDER OF THE SHARES
(OR THE PREDECESSOR IN INTEREST TO THE SHARES). SUCH AGREEMENT
GRANTS TO THE COMPANY CERTAIN RIGHTS OF FIRST REFUSAL UPON AN
ATTEMPTED TRANSFER OF THE SHARES AND CERTAIN REPURCHASE RIGHTS
UPON TERMINATION OF SERVICE WITH THE COMPANY. THE SECRETARY OF
THE COMPANY WILL UPON WRITTEN REQUEST
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<PAGE>
FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT
CHARGE."
All certificates evidencing Shares purchased under this Agreement in an
unregistered transaction shall bear the following legend (and such other
restrictive legends as are required or deemed advisable under the provisions of
any applicable law):
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL,THAT SUCH
REGISTRATION IS NOT REQUIRED."
(f) REMOVAL OF LEGENDS. If, in the opinion of the Company and its
counsel, any legend placed on a stock certificate representing Shares sold under
this Agreement is no longer required, the holder of such certificate shall be
entitled to exchange such certificate for a certificate representing the same
number of Shares but without such legend.
(g) ADMINISTRATION. Any determination by the Company and its counsel
in connection with any of the matters set forth in this Section 11 shall be
conclusive and binding on the Optionee and all other persons.
SECTION 12. ADJUSTMENT OF SHARES.
In the event of any transaction described in Section 8(a) of the Plan,
the terms of this option (including, without limitation, the number and kind of
Shares subject to this option and the Exercise Price) shall be adjusted as set
forth in Section 8(a) of the Plan. In the event that the Company is a party to
a merger or consolidation, this option shall be subject to the agreement of
merger or consolidation, as provided in Section 8(b) of the Plan.
SECTION 13. MISCELLANEOUS PROVISIONS.
(a) RIGHTS AS A STOCKHOLDER. Neither the Optionee nor the Optionee's
representative shall have any rights as a stockholder with respect to any Shares
subject to this option until the Optionee or the Optionee's representative
becomes entitled to receive such Shares by filing a notice of exercise and
paying the Purchase Price pursuant to Sections 4 and 5.
(b) NO RETENTION RIGHTS. Nothing in this option or 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 Company (or any Parent or Subsidiary employing or retaining the Optionee)
or of the Optionee, which rights are hereby expressly reserved by each, to
terminate his or her Service at any time and for any reason, with or without
cause.
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(c) NOTICE. Any notice required by the terms of this Agreement shall
be given in writing and shall be deemed effective upon personal delivery or upon
deposit with the United States Postal Service, by registered or certified mail,
with postage and fees prepaid. Notice shall be addressed to the Company at its
principal executive office and to the Optionee at the address that he or she
most recently provided to the Company.
(d) ENTIRE AGREEMENT. The Notice of Stock Option Grant, this
Agreement and the Plan constitute the entire contract between the parties hereto
with regard to the subject matter hereof. They supersede any other agreements,
representations or understandings (whether oral or written and whether express
or implied) which relate to the subject matter hereof.
(e) CHOICE OF LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, as such laws
are applied to contracts entered into and performed in such State.
SECTION 14. DEFINITIONS.
(a) "AGREEMENT" shall mean this Stock Option Agreement.
(b) "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company, as constituted from time to time or, if a Committee has been appointed,
such Committee.
(C) "CHANGE IN CONTROL" shall mean:
(i) The consummation of a merger or consolidation of the
Company with or into another entity or any other corporate reorganization,
if more than 50% of the combined voting power of the continuing or
surviving entity's securities outstanding immediately after such merger,
consolidation or other reorganization is owned by persons who were not
stockholders of the Company immediately prior to such merger, consolidation
or other reorganization; or
(ii) The sale, transfer or other disposition of all or
substantially all of the Company's assets.
A transaction shall not constitute a Change in Control if its sole
purpose is to change the state of the Company's incorporation or to create a
holding company that will be owned in substantially the same proportions by the
persons who held the Company's securities immediately before such transaction.
(d) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
(e) "COMMITTEE" shall mean a committee of the Board of Directors, as
described in Section 2 of the Plan.
(f) "COMPANY" shall mean C2B Technologies Incorporated, a Delaware
corporation.
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(g) "CONSULTANT" shall mean an individual who performs bona fide services
for the Company, a Parent or a Subsidiary as a consultant or advisor, excluding
Employees and Outside Directors.
(h) "DATE OF GRANT" shall mean the date specified in the Notice of Stock
Option Grant, which date shall be the later of (i) the date on which the Board
of Directors resolved to grant this option or (ii) the first day of the
Optionee's Service.
(i) "DISABILITY" shall mean that the Optionee is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment.
(j) "EMPLOYEE" shall mean any individual who is a common-law employee of
the Company, a Parent or a Subsidiary.
(k) "EXERCISE PRICE" shall mean the amount for which one Share may be
purchased upon exercise of this option, as specified in the Notice of Stock
Option Grant.
(l) "FAIR MARKET VALUE" shall mean the fair market value of a Share, as
determined by the Board of Directors in good faith. Such determination shall be
conclusive and binding on all persons.
(m) "ISO" shall mean an employee incentive stock option described in
Section 422(b) of the Code.
(n) "NONSTATUTORY OPTION" shall mean a stock option not described in
Sections 422(b) or 423(b) of the Code.
(o) "NOTICE OF STOCK OPTION GRANT" shall mean the document so entitled to
which this Agreement is attached.
(p) "OPTIONEE" shall mean the individual named in the Notice of Stock
Option Grant.
(q) "OUTSIDE DIRECTOR" shall mean a member of the Board of Directors who
is not an Employee.
(r) "PARENT" shall mean any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if each of the
corporations other than the Company owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
(s) "PLAN" shall mean the C2B Technologies Incorporated 1997 Stock Plan,
as in effect on the Date of Grant.
(t) "PURCHASE PRICE" shall mean the Exercise Price multiplied by the
number of Shares with respect to which this option is being exercised.
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(u) "RESTRICTED SHARE" shall mean a Share that is subject to the Right
of Repurchase.
(v) "RIGHT OF FIRST REFUSAL" shall mean the Company's right of first
refusal described in Section 8.
(w) "RIGHT OF REPURCHASE" shall mean the Company's right of repurchase
described in Section 7.
(x) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
(y) "SERVICE" shall mean service as an Employee, Outside Director or
Consultant.
(z) "SHARE" shall mean one share of Stock, as adjusted in accordance
with Section 8 of the Plan (if applicable).
(aa) "STOCK" shall mean the Common Stock of the Company, with a par
value of $0.001 per Share.
(bb) "SUBSIDIARY" shall mean any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
(cc) "TRANSFEREE" shall mean any person to whom the Optionee has directly
or indirectly transferred any Share acquired under this Agreement.
(dd) "TRANSFER NOTICE" shall mean the notice of a proposed transfer of
Shares described in Section 8.
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EXHIBIT 10.19
INKTOMI CORPORATION
STOCK OPTION AGREEMENT
(AMENDED AND RESTATED MAY 15, 1997)
THIS AGREEMENT is made as of May 11, 1996 between Inktomi Corporation, a
California corporation (the "Company"), and _____________________ (the
-------
"Optionee").
--------
This Stock Option Agreement amends, restates and replaces the previous
Stock Option Agreement between the Company and the Optionee dated as of the
above date. This Stock Option Grant does not evidence a new stock option
granted to Optionee. The number of Shares and Exercise Price per Shares
reflected herein have been adjusted to give effect to the two for one forward
stock split effected by the Company in July 1996.
1. Option Grant. The Company hereby grants to Optionee an Option to
------------
purchase a total of ____________________ shares of Common Stock (the "Shares").
------
2. Exercise Price; Method of Payment. The exercise price is $0.075 for
---------------------------------
each share of Common Stock. Payment of the purchase price shall be made by cash
or check.
3. Exercise of Option. This Option shall be exercisable during its term
------------------
as follows:
3.1 Right to Exercise.
-----------------
(a) Subject to subsections 3.1(b), (c) and (d) below, this
Option is exercisable immediately, in whole or in part, conditioned upon
Optionee entering into a Restricted Stock Purchase Agreement substantially in
the form attached hereto as Exhibit B-1 (the "Restricted Stock Purchase
-------------------------
Agreement") with respect to any unvested Option Shares. The Shares subject to
- ---------
this Option shall vest and/or be released from the Company's repurchase option,
as set forth in the Restricted Stock Purchase Agreement, according to the
following schedule: 24% of the total number of Shares subject to this Option
shall become vested and/or released on May 11, 1997, and an additional 2% of the
Shares shall become vested and/or released at the end of each full month
thereafter, until all Shares are vested and/or released, provided that (a)
Shares subject to this Option shall vest and/or be released from the Company's
repurchase option based on Employee's continued employment with or services to
the Company and (b) vested Shares shall not be subject to the Company's
repurchase option.
(b) This Option may not be exercised for a fraction of a Share.
(c) In the event of Optionee's death, disability or other
termination of employment or consulting relationship (as the case may be), the
exercise of the Option is governed by Sections 6 and 7 below, subject to the
limitations contained in subsection 3.1(d).
<PAGE>
(d) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in Section 9 below.
(e) Optionee acknowledges and agrees that the vesting and/or
release of Shares pursuant to this Section 3 and pursuant to the Restricted
Stock Purchase Agreement (if applicable) is earned only by continuing
consultancy or employment at the will of the Company (not through the act of
being hired, being granted this option or acquiring shares hereunder). Optionee
further acknowledges and agrees that nothing in this Agreement or otherwise
shall confer upon Optionee any right with respect to continuation of employment
or consultancy by the Company, nor shall it interfere with Optionee's right or
the Company's right to terminate Optionee's employment or consultancy at any
time, with or without cause.
3.2 Method of Exercise. This Option shall be exercisable by written
------------------
notice in the form of Exhibit A which shall state the election to exercise the
Option and the number of Shares in respect of which the Option is being
exercised. Such written notice shall be signed by Optionee and shall be
delivered in person or by certified mail to the President, Secretary or Chief
Financial Officer of the Company. The written notice shall be accompanied by
payment of the exercise price.
No shares will be issued pursuant to the exercise of an Option unless
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares may then be
listed. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
4. Optionee's Representations and Agreements.
-----------------------------------------
4.1 Investment Representations. By receipt of this Option, by its
--------------------------
execution, and by its exercise in whole or in part, Optionee represents to the
Company that Optionee understands that:
(a) both this Option and any Shares purchased upon its exercise
are securities, the issuance by the Company of which requires compliance with
federal and state securities laws;
(b) these securities are made available to Optionee only on the
condition that Optionee makes the representations contained in this Section 4 to
the Company;
(c) Optionee has made a reasonable investigation of the affairs
of the Company sufficient to be well informed as to the rights and the value of
these securities;
(d) Optionee confirms the accuracy of all information provided
to the Company pursuant to Optionee's information questionnaire and understands
that the Company will rely on such information in making the securities
available to Optionee;
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(e) the securities have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), in reliance upon a specific
--------------
exemption contained in the Act which depends upon Optionee's bona fide
investment intention in acquiring these securities; that Optionee's intention is
to hold these securities for Optionee's own benefit for an indefinite period;
that Optionee has no present intention of selling or transferring any part
thereof (recognizing that the Option is not transferable) and that there may be
certain restrictions on transfer of the Shares subject to the Option;
(f) Optionee is familiar with the provisions of Rule 144,
promulgated under the Securities Act, which, in substance, permits limited
public resale of "restricted securities" acquired, directly or indirectly, from
the issuer thereof (or from an affiliate of such issuer), in a non-public
offering subject to the satisfaction of certain conditions, including, among
other things: (1) the availability of certain public information about the
Company; (2) the resale occurring not less than one year after the party has
purchased, and made full payment for, within the meaning of Rule 144, the
securities to be sold (the "Holding Period"); and, in the case of an affiliate,
--------------
or of a non-affiliate who has held the securities less than two years, (3) the
sale being made through a broker in a unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934) and the amount of securities being sold during
any three month period not exceeding the specified limitations stated therein,
if applicable. Notwithstanding the foregoing, however, the Optionee understands
that if the Company qualifies under Rule 701 promulgated under the Securities
Act at the time of exercise of the Option, the issuance of securities to the
Optionee will be exempt from registration under the Securities Act by virtue of
Rule 701. In the event the Company thereafter becomes subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934,
ninety (90) days thereafter the securities may be resold under Rule 144 without
compliance with certain provisions thereof, including the Holding Period.
(g) The certificate representing the Shares will bear a legend
prohibiting their transfer in the absence of their registration or the opinion
of counsel for the Company that registration is not required.
4.2 Market Stand Off Agreement. Optionee agrees in connection with
--------------------------
an initial public offering of the Company's securities not to sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of any shares of the Company's Common Stock for 180 days following the effective
date of the registration statement relating to such initial public offering.
Optionee further agrees, upon request of the Company or the underwriters
managing the initial public offering, to sign any additional document confirming
the foregoing.
5. Restrictions on Exercise. This Option may not be exercised if the
------------------------
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law, rule or regulation, including any rule
promulgated by the Federal Reserve Board. As a condition to the exercise of
this Option, the Company may require Optionee to make any representation and
warranty to the Company as may be required by any applicable law, rule or
regulation.
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6. Termination of Relationship. In the event of termination of Optionee's
---------------------------
employment or consulting relationship (as applicable, and as reasonably
determined by the Company), Optionee may, but only within sixty (60) days after
the date Optionee ceases to be an employee or consultant of the Company (but in
no event later than the date of expiration of the term of this Option as set
forth in Section 9 below), exercise this Option to the extent that Optionee was
entitled to exercise it at the date of such termination. To the extent that
Optionee was not entitled to exercise this Option at the date of such
termination, or if Optionee does not exercise this Option within the time
specified herein, this Option shall terminate.
7. Death or Disability of Optionee. In the event of termination of
-------------------------------
Optionee's employment or consulting relationship (as applicable) as a result of
Optionee's permanent and total disability or death, this Option may be
exercised, but only within ninety (90) days from the date of termination of
employment or consulting relationship (but in no event later than the date of
expiration of the term of this Option as set forth in Section 9 below), to the
extent Optionee was entitled to exercise it at the date of such termination. To
the extent that Optionee was not entitled to exercise this Option at the date of
termination, or if Optionee does not exercise this Option within the time
specified herein, this Option shall terminate.
8. 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 Optionee. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of Optionee.
9. Term of Option. This Option may not be exercised more than ten (10)
--------------
years from the date of grant of this Option, and may be exercised during such
term only in accordance with the terms of this Option.
10. Tax Consequences.
----------------
10.1 General. Optionee understands that, upon exercise of this
-------
Option, Optionee may recognize income for tax purposes. 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 Shares on
the date of exercise over the aggregate exercise price. In addition, if
Optionee is an employee, the Company will be required to withhold from
Optionee's compensation or collect from Optionee and pay to the applicable
taxing authorities an amount equal to a percentage of this compensation income
at the time of exercise. Optionee has reviewed with the Optionee's own tax
advisors the federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. Optionee is relying solely on such
advisors and not on any statements or representations of the Company or any of
its agents. Optionee understands that the Optionee (and not the Company) shall
be responsible for the Optionee's own tax liability that may arise as a result
of the transactions contemplated by this Agreement.
4
<PAGE>
10.2 Section 83(b) Election for Unvested Shares. With respect to
------------------------------------------
exercise of the Option for unvested Shares, an election may be filed by Optionee
with the Internal Revenue Service and, if necessary, the proper state taxing
authorities, within 30 days of the purchase of the Shares, electing pursuant to
--------------
Section 83(b) of the Internal Revenue Code of 1986, as amended (and similar
state tax provisions if applicable) to be taxed currently on any difference
between the purchase price of the Shares and their fair market value on the date
of purchase. This will result in a recognition of taxable income to the Optionee
on the date of exercise, measured by the excess, if any, of the fair market
value of the Shares, at the time the Option is exercised over the purchase price
for the Shares. Absent such an election, taxable income will be measured and
recognized by the Optionee at the time or times on which the Company's
repurchase option lapses. The Optionee is strongly encouraged to seek the
advice of his or her own tax consultants in connection with the purchase of the
Shares and the advisability of filing of the Election under Section 83(b) and
similar tax provisions. A form of Election under Section 83(b) is attached
hereto as Exhibit C-5 for reference.
OPTIONEE ACKNOWLEDGES THAT IT IS OPTIONEE'S SOLE RESPONSIBILITY AND NOT THE
COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF PARTICIPANT
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON OPTIONEE'S
BEHALF.
11. Adjustment for Stock Split. All references to the number of Shares
--------------------------
and the purchase price of the Shares shall be appropriately adjusted to reflect
any stock split, stock dividend or other change in the Shares which may be made
by the Company after the date of this Agreement (other than the stock split
effected in July 1996 as indicated above).
12. General Provisions. This Agreement shall be governed by California
------------------
law. This Agreement represents the entire agreement between the parties with
respect to the subject matter hereof and may be modified, amended or waived only
in writing signed by both parties.
DATE OF GRANT: May 11, 1996
INKTOMI CORPORATION OPTIONEE
By:
-------------------------------- --------------------------------
(Signature)
Title:
----------------------------- --------------------------------
(Print Name)
5
<PAGE>
EXHIBIT A
---------
NOTICE OF EXERCISE OF STOCK OPTION
----------------------------------
TO: Inktomi Corporation
FROM:
DATE:
RE: Exercise of Stock Option
I hereby exercise my option to purchase _________________________ shares of
Common Stock at $______________ per share (total exercise price of
$__________________), effective today's date. This notice is given in
accordance with the terms of my Stock Option Agreement dated May 11, 1996 (as
amended and restated May 15, 1997). The option price and vested amount is in
accordance with Sections 2 and 3 of the Stock Option Agreement.
Attached is a check payable to Inktomi Corporation for the total exercise
price of the shares being purchased. The undersigned confirms the
representations made in Section 4 of the Stock Option Agreement.
Please prepare the stock certificate in the following name(s)
----------------------------------------
----------------------------------------
If the stock is to be registered in a name other than your name, please so
advise the Company. The Stock Option Agreement requires the Company's approval
for registration in a name other than your name and requires certain agreements
from any joint owner.
Sincerely,
--------------------------------
(Signature)
--------------------------------
(Print or Type Name)
Letter and consideration
received on ____________, 19
By:
--------------------------------
<PAGE>
EXHIBIT B-1
-----------
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made between _________________________ (the "Purchaser")
---------
and Inktomi Corporation (the "Company") as of __________________, 199__.
-------
RECITALS
--------
A. Pursuant to the exercise of the stock option granted to Purchaser on
May 11, 1996 and pursuant to the Stock Option Agreement (the "Option
------
Agreement") by and between the Company and Purchaser with respect to such grant,
- ---------
which Option Agreement is hereby incorporated by reference, Purchaser has
elected by executing a Notice of Exercise (the "Exercise Agreement") to purchase
------------------
shares which have not become vested under the vesting schedule set forth in the
Option Agreement ("Unvested Shares"). The Unvested Shares and the shares subject
---------------
to the Option Agreement which have become vested are sometimes collectively
referred to herein as the "Shares."
B. As required by the Option Agreement, as a condition to Purchaser's
election to exercise the option, Purchaser must execute this Restricted Stock
Purchase Agreement, which sets forth the rights and obligations of the parties
with respect to Shares acquired upon exercise of the Option.
AGREEMENT
---------
1. REPURCHASE OPTION.
-----------------
(a) Repurchase Option. If Purchaser's employment or consulting
-----------------
relationship with the Company is terminated for any reason, including for cause,
death, and disability, the Company shall have the right and option to purchase
from Purchaser, or Purchaser's personal representative, as the case may be, all
or any portion of the Purchaser's then Unvested Shares as of the date of such
termination at the price paid by the Purchaser for such Shares (the "Repurchase
----------
Option").
- ------
(b) Exercise. Upon the occurrence of a termination, the Company may
--------
exercise its Repurchase Option by delivering personally or by registered mail,
to Purchaser (or his transferee or legal representative, as the case may be),
within ninety (90) days of the termination, a notice in writing indicating the
Company's intention to exercise the Repurchase Option and setting forth a date
for closing not later than thirty (30) days from the mailing of such notice.
The closing shall take place at the Company's office. At the closing, the
holder of the certificates for the then Unvested Shares being transferred shall
deliver the stock certificate or certificates evidencing the Unvested Shares,
and the Company shall deliver the purchase price therefor.
<PAGE>
(c) Termination. If the Company does not elect to exercise the
-----------
Repurchase Option conferred above by giving the requisite notice within ninety
(90) days following the termination, the Repurchase Option shall terminate.
2. TRANSFERABILITY OF THE SHARES; ESCROW.
-------------------------------------
(a) Transfer. Purchaser hereby authorizes and directs the secretary
--------
of the Company, or such other person designated by the Company, to transfer the
Unvested Shares as to which the Repurchase Option has been exercised from
Purchaser to the Company.
(b) Escrow. To insure the availability for delivery of Purchaser's
------
Unvested Shares upon repurchase by the Company pursuant to the Repurchase Option
under Section 1, Purchaser hereby appoints the secretary, or any other person
designated by the Company as escrow agent, as its attorney-in-fact to sell,
assign and transfer unto the Company, such Unvested Shares, if any, repurchased
by the Company pursuant to the Repurchase Option and shall, upon execution of
this Agreement, deliver and deposit with the secretary of the Company, or such
other person designated by the Company, the share certificates representing the
initial Unvested Shares, together with the stock assignment duly endorsed in
blank, attached hereto as Exhibit B-2. The Unvested Shares and stock assignment
shall be held by the secretary in escrow, pursuant to the Joint Escrow
Instructions of the Company and Purchaser attached as Exhibit B-3 hereto, until
the Company exercises its Repurchase Option as provided in Section 1, until such
Unvested Shares are vested, or until such time as this Agreement no longer is in
effect. As a further condition to the Company's obligations under this
Agreement, the spouse of the Purchaser, if any, shall execute and deliver to the
Company the Consent of Spouse attached hereto as Exhibit B-4. Upon vesting of
the initial Unvested Shares, the escrow agent shall promptly deliver to the
Purchaser (upon request) the certificate or certificates representing such
Shares in the escrow agent's possession belonging to the Purchaser, and the
escrow agent shall be discharged of all further obligations hereunder; provided,
however, that the escrow agent shall nevertheless retain such certificate or
certificates as escrow agent if so required pursuant to other restrictions
imposed pursuant to this Agreement.
(c) No Liability. The Company, or its designee, shall not be liable
------------
for any act it may do or omit to do with respect to holding the Shares in escrow
and while acting in good faith and in the exercise of its judgment.
(d) Restrictions on Transfer. Transfer or sale of the Shares is
------------------------
subject to restrictions on transfer imposed by any applicable state and federal
securities laws. Any transferee shall hold such Shares subject to all the
provisions hereof and the Exercise Notice executed by the Purchaser with respect
to any Unvested Shares purchased by Purchaser and shall acknowledge the same by
signing a copy of this Agreement.
3. OWNERSHIP, VOTING RIGHTS, DUTIES. This Agreement shall not affect in
--------------------------------
any way the ownership, voting rights or other rights or duties of Purchaser,
except as specifically provided herein.
2
<PAGE>
4. LEGENDS. The share certificate evidencing the Shares shall be endorsed
-------
with the following legend (in addition to any other required legends):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AS SET FORTH IN AN AGREEMENT BETWEEN THE
COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY.
5. ADJUSTMENT FOR STOCK SPLIT. All references to the number of Shares and
--------------------------
the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in the
Shares which may be made by the Company after the date of this Agreement.
6. NOTICES. Notices required hereunder shall be given in person or by
-------
registered mail to the address of Purchaser shown on the records of the Company,
and to the Company at its principal executive offices.
7. SURVIVAL OF TERMS. This Agreement shall apply to and bind Purchaser
-----------------
and the Company and their respective permitted assignees and transferees, heirs,
legatees, executors, administrators and legal successors.
8. SECTION 83(b) ELECTIONS.
-----------------------
(a) Election for Unvested Shares Purchased Pursuant to Nonqualified
---------------------------------------------------------------
Stock Options. Purchaser hereby acknowledges that he or she has been informed
- -------------
that, with respect to the exercise of a nonqualified stock option for Unvested
Shares, that unless an election is filed by the Purchaser with the Internal
Revenue Service and, if necessary, the proper state taxing authorities, within
------
30 days of the purchase of the Shares, electing pursuant to Section 83(b) of the
- -------
Code (and similar state tax provisions if applicable) to be taxed currently on
any difference between the purchase price of the Shares and their Fair Market
Value on the date of purchase, there will be a recognition of taxable income to
the Purchaser, measured by the excess, if any, of the fair market value of the
Shares, at the time the Company's Repurchase Option lapses over the purchase
price for the Shares. Purchaser represents that Purchaser has consulted any tax
consultant(s) Purchaser deems advisable in connection with the purchase of the
Shares or the filing of the Election under Section 83(b) and similar tax
provisions. A form of Election under Section 83(b) is attached hereto as
Exhibit B-5 for reference.
PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S SOLE RESPONSIBILITY AND NOT THE
COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF PURCHASER
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON PURCHASER'S
BEHALF.
9. TAX MATTERS. Purchaser has reviewed with his own tax advisors the
-----------
federal, state, local and foreign tax consequences of this investment and the
transactions contemplated by this
3
<PAGE>
Agreement. Purchaser is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents. Purchaser
understands that he (and not the Company) shall be responsible for his own tax
liability that may arise as a result of Purchaser's investment or the
transactions contemplated by this Agreement.
10. FURTHER INSTRUMENTS. The parties agree to execute such further
-------------------
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
11. HEADINGS. The captions and headings of this Agreement are included
--------
for ease of reference only and will be disregarded in interpreting or construing
this Agreement. All references herein to Sections will refer to Sections of
this Agreement.
12. ENTIRE AGREEMENT. The Stock Option Agreement, the Exercise Agreement,
----------------
and this Restricted Stock Purchase Agreement, together with all exhibits to all
such documents, constitute the entire agreement and understanding of the parties
with respect to the subject matter of this Agreement, and supersede all prior
understandings and agreements, whether oral or written, between the parties
hereto with respect to the specific subject matter hereof. This Agreement may
only be amended, modified or waived in writing signed by both parties hereto.
13. GOVERNING LAW; SEVERABILITY. This Agreement shall be governed by and
---------------------------
construed in accordance with the internal laws of the State of California as
such laws are applied to agreements between California residents entered into
and to be performed entirely within California, excluding that body of laws
pertaining to conflict of laws. If any provision of this Agreement is
determined by a court of law to be illegal or unenforceable, then such provision
will be enforced to the maximum extent possible and the other provisions will
remain fully effective and enforceable.
14. INTERPRETATIONS. Any dispute regarding the interpretation of this
---------------
Agreement shall be submitted by Purchaser or the Company to Board of Directors
of the Company for review. The resolution of such a dispute by the Committee
shall be final and binding on the Company and Purchaser.
IN WITNESS WHEREOF, this Agreement is deemed made as of the date first set
forth above.
INKTOMI CORPORATION PURCHASER
By:
-------------------------------- --------------------------------
(Signature)
- ----------------------------------- --------------------------------
(Please print name) (Please print name)
- -----------------------------------
(Please print title)
4
<PAGE>
EXHIBIT B-2
-----------
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, __________________________, hereby sell, assign and
transfer unto
________________________________________________________________________________
________________ (_____________) shares of the Common Stock of Inktomi
Corporation standing in my name of the books of said corporation represented by
Certificate No. _______ herewith and do hereby irrevocably constitute and
appoint _________________ to
--------------------------------------------------------------
transfer the said stock on the books of the within named corporation with full
power of substitution in the premises.
This Stock Assignment may be used only in accordance with the Restricted
Stock Purchase Agreement between Inktomi Corporation and the undersigned dated
_____________, 19____.
Dated: _______________, 19_____
Signature:
--------------------------------
INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
THE PURPOSE OF THIS ASSIGNMENT IS TO ENABLE THE COMPANY TO EXERCISE ITS
REPURCHASE OPTION AS SET FORTH IN THE AGREEMENT, WITHOUT REQUIRING ADDITIONAL
SIGNATURES ON THE PART OF THE PURCHASER.
<PAGE>
EXHIBIT B-3
-----------
JOINT ESCROW INSTRUCTIONS
-------------------------
_________________________ , 19______
Corporate Secretary
Inktomi Corporation
1900 South Norfolk Street, Suite 110
San Mateo, CA 94403
Dear :
-------------------------------
As Escrow Agent for both Inktomi Corporation (the "Company"), and the
-------
undersigned purchaser of stock of the Company (the "Purchaser"), you are hereby
---------
authorized and directed to hold the documents delivered to you pursuant to the
terms of that certain Restricted Stock Purchase Agreement ("Agreement") between
---------
the Company and the undersigned, in accordance with the following instructions:
1. In the event the Company and/or any assignee of the Company (referred
to collectively for convenience herein as the "Company") exercises the Company's
-------
repurchase option set forth in the Agreement, the Company shall give to
Purchaser and you a written notice specifying the number of shares of stock to
be purchased, the purchase price, and the time for a closing at the principal
office of the Company. Purchaser and the Company hereby irrevocably authorize
and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Company or its
assignee, against the simultaneous delivery to you of the purchase price (by
cash, a check, or some combination thereof) for the number of shares of stock
being purchased pursuant to the exercise of the Company's repurchase option.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as defined in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as Purchaser's
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all documents necessary or appropriate to make such
securities negotiable and to complete any transaction herein contemplated,
including but not limited to the filing with any applicable state blue sky
authority of any required applications for consent to, or notice of transfer
<PAGE>
of, the securities. Subject to the provisions of this paragraph 3, Purchaser
shall exercise all rights and privileges of a shareholder of the Company while
the stock is held by you.
4. Upon written request of the Purchaser, but no more than once per
calendar year, unless the Company's repurchase option has been exercised, you
will deliver to Purchaser a certificate or certificates representing so many
shares of stock as are not then subject to the Company's repurchase option.
Within 120 days after cessation of Purchaser's continuous employment by or
services to the Company, or any parent or subsidiary of the Company, you will
deliver to Purchaser a certificate or certificates representing the aggregate
number of shares held or issued pursuant to the Agreement and not purchased by
the Company or its assignees pursuant to exercise of the Company's repurchase
option.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
you shall deliver all of the same to Purchaser and shall be discharged of all
further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked only
by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties.
You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting in
good faith, and any act done or omitted by you pursuant to the advice of your
own attorneys shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court.
In case you obey or comply with any such order, judgment or decree, you shall
not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
10. You shall not be liable for the outlawing of any rights under the
Statute of Limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
2
<PAGE>
11. You shall be entitled to employ such legal counsel and other experts
as you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and may pay
such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be an officer or agent of the Company or if you shall resign by
written notice to each party. In the event of any such termination, the Company
shall appoint a successor Escrow Agent.
13. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the securities held
by you hereunder, you are authorized and directed to retain in your possession
without liability to anyone all or any part of said securities until such
disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
15. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to each of the other parties thereunto entitled at the
following addresses or at such other addresses as a party may designate by ten
days' advance written notice to each of the other parties hereto.
COMPANY: Inktomi Corporation
1900 South Norfolk Street, Suite 110
San Mateo, CA 94403
Attention: Secretary
PURCHASER: _______________________________________
_______________________________________
_______________________________________
ESCROW AGENT: Corporate Secretary
Inktomi Corporation
1900 South Norfolk Street, Suite 110
San Mateo, CA 94403
3
<PAGE>
16. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns.
18. These Joint Escrow Instructions shall be governed by, and construed
and enforced in accordance with, the laws of the State of California.
INKTOMI CORPORATION PURCHASER
By:
-------------------------------- --------------------------------
(Signature)
- ----------------------------------- --------------------------------
(Please print name) (Please print name)
- -----------------------------------
(Please print title)
ESCROW AGENT
- -----------------------------------
(Signature)
- -----------------------------------
(Please print name)
4
<PAGE>
EXHIBIT B-4
-----------
CONSENT OF SPOUSE
-----------------
I, ____________________, spouse of ____________, have read and approve the
foregoing Stock Option Agreement, Stock Option Exercise Agreement, Restricted
Stock Purchase Agreement and Escrow Agreement (collectively the "Agreements").
----------
In consideration of granting of the right to my spouse to purchase shares of
Inktomi Corporation, as set forth in the Agreements, I hereby appoint my spouse
as my attorney-in-fact in respect to the exercise of any rights under the
Agreements and agree to be bound by the provisions of the Agreements insofar as
I may have any rights in said Agreements or any shares issued pursuant thereto
under the community property laws or similar laws relating to marital property
in effect in the state of our residence as of the date of the signing of the
foregoing Agreements.
Dated: __________________, 19 __
--------------------------------
(Signature)
--------------------------------
(Please print name)
<PAGE>
EXHIBIT B-5
-----------
ELECTION UNDER SECTION 83(b)
----------------------------
OF THE INTERNAL REVENUE CODE OF 1986
------------------------------------
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include in taxpayer's gross income
for the current taxable year the amount of any compensation taxable to taxpayer
in connection with taxpayer's receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME: TAXPAYER: SPOUSE:
ADDRESS:
IDENTIFICATION NO.: TAXPAYER: SPOUSE:
TAXABLE YEAR:
2. The property with respect to which the election is made is described as
follows: ___________ shares (the "Shares") of the Common Stock of Inktomi
Corporation (the "Company").
3. The date on which the property was transferred is: ________________________
____, 19 ____.
4. The property is subject to the following restrictions:
The Shares may not be transferred and are subject to forfeiture under the
terms of an agreement between the taxpayer and the Company. These
restrictions lapse upon the satisfaction of certain conditions contained in
such agreement.
5. The fair market value at the time of transfer, determined without regard to
any restriction other than a restriction which by its terms will never
lapse, of such property is: $______________________.
6. The amount (if any) paid for such property is: $______________________.
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
- --------------------------------------------------------------------------
except with the consent of the Commissioner.
- -------------------------------------------
Dated: ___________________, 19____ ________________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: ___________________, 19____ ________________________________
Spouse of Taxpayer
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
of Inktomi Corporation on Form S-8, pertaining to the Inktomi Corporation 1996
Incentive Plan, the Inktomi Corporation 1998 Stock Plan, and the Inktomi
Corporation 1998 Employee Stock Purchase Plan, of our reports dated November 3,
1997 appearing in the Registration Statement on Form S-1 (Registration No. 333-
50247) of Inktomi Corporation for the fiscal year ended September 30, 1997 and
to the reference to our Firm under Item 8 of this Registration Statement.
PRICEWATERHOUSECOOPERS, LLP
San Francisco, California
October 27, 1998
