As filed with the Securities and Exchange Commission on February 9, 2000
Registration No. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MODEM MEDIA . POPPE TYSON, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 06-1464807
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
230 East Avenue
Norwalk, Connecticut 06855
(Address of principal executive offices, including zip code)
-----------------------
MODEM MEDIA . POPPE TYSON, INC.
1999 STOCK INCENTIVE PLAN
MODEM MEDIA ADVERTISING LIMITED PARTNERSHIP
1996 OPTION PLAN
(Full Title of the Plans)
Sloane Levy, Esq.
MODEM MEDIA . POPPE TYSON, INC.
230 East Avenue
Norwalk, Connecticut 06855
(Name and address of agent for service of process)
(203) 299-7000
(Telephone number, including area code, of agent for service)
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
Proposed
Maximum Proposed Maximum
Title of Each Class Amount to be Offering Price Per Aggregate Amount of
of Securities to be Registered Registered (1) Unit Offering Price Registration Fee
------------------------------ -------------- ---- -------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock, $.0001 par value per
share.............................. 1,500,000 shares $77.75 (2) $116,625,000 (2) $30,789.00
471 shares $0.64 (3) $301.44 (3) $0.08
- ----------------------------------------------------------- ------------------- ---------------- ---------------
Totals 1,500,471 shares $116,625,301.44 $30,789.08
=========================================================== ===================================== ===================
</TABLE>
(1) Excludes such indeterminate number of shares as may be offered and issued
to prevent dilutions resulting from stock splits, stock dividends,
recapitalizations or other similar transactions. This total represents (i)
1,500,000 shares of Common Stock reserved for issuance pursuant to options
granted or which may be granted under the Modem Media . Poppe Tyson, Inc.
1999 Stock Incentive Plan and (ii) 471 shares of Common Stock reserved for
issuance pursuant to options granted or which may be granted under the
Modem Media Advertising Limited Partnership 1996 Option Plan, As Amended
(together with the Modem Media . Poppe Tyson, Inc. 1999 Stock Incentive
Plan, the "Plans").
(2) Estimated solely for the purpose of computing the amount of the
registration fee. Pursuant to Rule 457(c) and Rule 457(h) under the
Securities Act of 1933, as amended, the proposed maximum offering price
per share and the proposed maximum aggregate offering price of shares
subject to outstanding options have been determined based on the average
of the high and low price of the Common Stock on February 4, 2000, as
reported by the NASDAQ National Market.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options granted and outstanding, based
on the weighted average exercise price of options outstanding, which
average is $0.64.
================================================================================
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference
This Registration Statement incorporates herein by reference the following
documents which have been filed with the Securities and Exchange Commission (the
"Commission") by Modem Media . Poppe Tyson, Inc. (the "Company" or "Modem
Media") as Registrant:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) All reports filed pursuant to Section 13(a) or 15(d) of the Securities
and Exchange Act of 1934, as amended (the "Exchange Act") since
December 31, 1998; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, filed pursuant to
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description that was filed on
February 1, 1999.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of the
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents (such documents, and the documents enumerated above,
being hereinafter referred to collectively as the "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained therein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statements
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Modem Media's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. The Delaware General
Corporation Law provides that a corporation's certificate of incorporation may
contain a provision eliminating or limiting the personal liability of a director
for monetary damages for breach of his or her fiduciary duties as a director,
except for liability for:
o any breach of the duty of loyalty to the corporation or its
stockholders;
o acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General
Corporation Law; or
o any transaction from which the director derives an improper personal
benefit.
2
<PAGE>
Modem Media's Bylaws provide that Modem Media shall indemnify its directors
and officers and may indemnify its employees and agents to the fullest extent
permitted by Delaware law, including those circumstances where indemnification
would otherwise be discretionary under Delaware law.
The Registrant maintains directors and officers insurance providing
indemnification for certain of the Registrant's directors, officers, affiliates,
partners or employees for certain liabilities.
Modem Media has entered into agreements to indemnify its directors and
officers in addition to the indemnification provided for in its Certificate of
Incorporation and Bylaws. Under these agreements, Modem Media is obligated to
indemnify its directors and officers for expenses, attorneys' fees, judgments,
fines and settlement amounts incurred by any such person in any action or
proceeding arising out of such person's services as a director or officer of
Modem Media, any subsidiary of Modem Media or any other company or enterprise to
which the person provides services at the request of Modem Media. Modem Media
believes that these provisions and agreements are necessary to attract and
retain qualified individuals to serve as directors and officers. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officer or persons controlling Modem Media pursuant to
the foregoing provisions, Modem Media has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, (the "Securities Act") and is therefore
unenforceable.
Item 7. Exemption for Registration Claimed
Not Applicable
Item 8. Exhibits
The following documents are filed as a part of this Registration Statement:
Exhibit Description
------- ----------
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to the Registrant's Registration
Statement on Form S-1, as amended (No. 333-68057), which was
declared effective by the Securities and Exchange Commission
on February 4, 1999).
4.2 Amended and Restated Bylaws of the Registrant (incorporated
by reference to the Registrant's Registration Statement on
Form S-1, as amended (No. 333-68057), which was declared
effective by the Securities and Exchange Commission on
February 4, 1999).
5.1 Opinion of Sloane Levy, General Counsel of the Company, as to
the legality of the securities to be registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Sloane Levy (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature pages hereof).
99.1 Modem Media . Poppe Tyson, Inc. 1999 Stock Incentive Plan
99.2 Modem Media Limited Partnership 1996 Option Plan
(incorporated by reference to the Registrant's Registration
Statement on Form S-1, as amended (No. 333-68057), which was
declared effective by the Securities and Exchange Commission
on February 4, 1999).
3
<PAGE>
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, 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) 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
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.
4
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gerald M. O'Connell, Robert C. Allen, Steven C.
Roberts, and Sloane Levy acting severally, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any or all amendments to such Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Norwalk, State of Connecticut, on February 9, 2000.
MODEM MEDIA . POPPE TYSON, INC.
By /s/ Gerald M. O'Connell
---------------------------------
Name: Gerald M. O'Connell
Title: Chairman of the Board
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Gerald M. O'Connell Chairman of the Board February 9 , 2000
------------------------------- Chief Executive Officer
(Gerald M. O'Connell) Director
/s/ Robert C. Allen, II President February 9 , 2000
------------------------------- Director
(Robert C. Allen, II)
/s/ Steven C. Roberts Chief Financial Officer February 9, 2000
------------------------------- (Principal Financial and
(Steven C. Roberts) Accounting Officer)
/s/ Robert H. Beeby Director February 9, 2000
-------------------------------
(Robert H. Beeby)
/s/ Donald L. Seeley Director February 9, 2000
-------------------------------
(Donald L. Seeley)
/s/ Donald M.Elliman, Jr. Director February 9, 2000
-------------------------------
(Donald M. Elliman, Jr.)
5
<PAGE>
Director February 9, 2000
/s/ Don Peppers
- -------------------------------
(Don Peppers)
Director February 9, 2000
/s/ Joseph R. Zimmel
- -------------------------------
(Joseph R. Zimmel)
6
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- ----------
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to the Registrant's Registration
Statement on Form S-1, as amended (No. 333-68057), which was
declared effective by the Securities and Exchange Commission
on February 4, 1999).
4.2 Amended and Restated Bylaws of the Registrant (incorporated
by reference to the Registrant's Registration Statement on
Form S-1, as amended (No. 333-68057), which was declared
effective by the Securities and Exchange Commission on
February 4, 1999).
5.1 Opinion of Sloane Levy, General Counsel of the Company, as to
the legality of the securities to be registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Sloane Levy (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature pages hereof).
99.1 Modem Media . Poppe Tyson, Inc. 1999 Stock Incentive Plan
99.2 Modem Media Limited Partnership 1996 Option Plan
(incorporated by reference to the Registrant's Registration
Statement on Form S-1, as amended (No. 333-68057), which was
declared effective by the Securities and Exchange Commission
on February 4, 1999).
7
Exhibit 5.1
[LETTERHEAD OF Modem Media . Poppe Tyson, Inc.]
February 9, 2000
Securities and Exchange Commission
450 Fifth Street
Washington, D.C. 20549
Dear Sirs:
As Vice President, General Counsel of Modem Media . Poppe Tyson, Inc.
(the "Company), I advise you as follows in connection with the filing by the
Company of a Registration Statement on Form S-8 being filed by the Company on
the date hereof (the "Registration Statement") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to 1,500,000 shares of Class A common stock, par value $.001 per
share, of the Company, which may be issued pursuant the Modem Media . Poppe
Tyson, Inc. 1999 Stock Incentive Plan and 471 shares of Class A common stock,
par value $.001 per share, of the Company which may be issued pursuant to the
Modem Media Advertising Limited Partnership 1996 Option Plan (the "Common
Stock").
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such corporate documents and records which I have deemed
necessary or appropriate for the purposes of the opinion and have conducted such
other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion. I have assumed that the signatures (other than those
of officers of the Company) on all documents that I have examined are genuine.
Based upon the foregoing, I am of the opinion that the Common Stock is
validly authorized and, when issued under each of the plans described above in
accordance with the terms thereof, will be legally issued, fully paid and
non-assessable.
I hereby consent to the filing of the opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Sloane Levy
---------------
Sloane Levy
Vice President, General Counsel
Exhibit 23.1
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 11, 1999,
November 16, 1998 and March 6, 1997 included in Modem Media . Poppe Tyson,
Inc.'s Form 10-K for the year ended December 31, 1998, and to all references to
our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
February 4, 2000
Exhibit 99.1
MODEM MEDIA . POPPE TYSON, INC.
1999 STOCK INCENTIVE PLAN
Section 1. Establishment
Modem Media . Poppe Tyson, Inc., a Delaware corporation ("MMPT") hereby
establishes the Modem Media . Poppe Tyson, Inc. 1999 Stock Incentive Plan (the
"Plan").
Section 2. Purpose
The purpose of this Stock Incentive Plan is to promote the interests of
MMPT and its shareholders by (a) providing an attractive compensation vehicle to
attract and retain the best available personnel and (b) providing additional
incentives to Employees, Directors and Consultants to promote the success of
MMPT's business.
Section 3. Definitions
(a) "Award" shall mean a grant of Options, Stock Appreciation Rights,
Restricted Stock, Merit Award, Performance Award, distributions under
other compensation programs pursuant to Section 13 or other Stock
Based Award made under the Plan.
(b) "Board" shall mean the Board of Directors of MMPT.
(c) "Cause" shall mean (A) misconduct in the performance of duties with
the Company, (including violation of MMPT's policies or agreements
relating to noncompetition or confidentiality); (B) failure (other
than due to Disability) to substantially perform the duties of one's
job; (C) engaging in illegal conduct (other than any misdemeanor,
traffic violation or similar misconduct) in connection with the
performance~ of duties for the Company; or (D) commission of a felony.
In the case of a termination for "cause" the determination of the
Committee as to whether "cause" exists shall be final and binding.
(d) "Change in Control" shall mean the occurrence of any of the following
events, (i) the consummation of a merger or consolidation of MMPT with
any other corporation, other than a merger or consolidation which
would result in the voting securities of MMPT outstanding immediately
prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity)
at least fifty percent (50%) of the total voting power represented by
the voting securities of MMPT or such surviving entity outstanding
immediately after such merger or consolidation (ii) the consummation
of the sale or disposition by NEMPT of all or substantially all of the
MMPT's assets, or (iii) any person (as such term is used in Sections
13(d) of the Securities Exchange Act of 1934, as amended) becomes the
beneficial owner (as defined in Rule l3d-3 under said Act), directly
or indirectly, of securities of MMPT representing fifty percent (50%)
or more of the total voting power represented by MMPT's then
outstanding voting securities (excluding any beneficial owner, as of
the date of the Effective Date, of at least 50% of the total voting
power represented by MMPT's outstanding voting securities).
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" shall mean the Board or a committee of the Board comprised
of at least two or more outside directors (within the meaning of Code
Section 162(m)(4)(C)) all of whom are "non-employee directors" (within
the meaning of Rule 16b-3 promulgated under the Exchange Act).
<PAGE>
(g) "Common Stock" means the common stock of MMPT.
(h) "Company" shall mean Modem Media . Poppe Tyson, Inc., a Delaware
corporation and its Subsidiaries.
(i) "Consultant" shall mean any person who is engaged by the Company to
render consulting or advisory services to such entity.
(j) "Director" shall mean a member of the Board.
(k) "Disability" shall mean total and permanent disability as defined in
Section 22(e)(3) of the Code.
(l) "Employee" shall mean any person, including Officers and Directors,
employed by the Company. A Service Provider shall not cease to be an
Employee in the case of (i) any leave of absence approved by MMPT or
(ii) transfers between locations of MMPT or between MMPT and any
Subsidiary, or any successor. Neither service as a Director nor
payment of a Director's fee by MMPT shall be sufficient to constitute
"employment" by the Company.
(m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(n) "Fair Market Value" means as of any date, the closing price of a share
of Common Stock on the Nasdaq Stock Market on the applicable valuation
date (or, if the Common Stock is not then traded on the Nasdaq Stock
Market, the closing price reported on the principal market (as
determined by the Committee)) or, if no trade of the Common Stock
shall have been made on that day, the next preceding day on which
there was a trade of the Common Stock; provided, however, that if the
Common Stock has not been traded for ten trading days or if there
ceases to be a principal market for the Common Stock, the "Fair Market
Value" of such Common Stock shall be determined by the Committee in
its reasonable discretion and in good faith, and in the case of an
Incentive Stock Option, in accordance with Section 422 of the Code.
(o) "Incentive Stock Option" shall mean an Option meeting the requirements
of Section 422 of the Code.
(p) "Merit Awards" shall mean Common Stock Awarded pursuant to Section 11.
(q) "MMPT" shall mean Modem Media . Poppe Tyson, Inc., a Delaware
corporation.
(r) "Nonqualified Stock Option" shall mean an Option which is not an
Incentive Stock Option.
(s) "Option" shall mean an Option to purchase shares of Common Stock
pursuant to the provisions of this Plan.
(t) "Option Price" shall mean the purchase price of one share of Common
Stock subject to an Option.
(u) "Other Stock Based Awards" shall mean an award of Common Stock or an
award that is valued in whole or in part by reference to, or otherwise
based on, the Fair Market Value of Common Stock which is made as
provided in Section 14.
(v) "Participant" shall mean a Service Provider who has been selected by
the Committee to receive an Award under this Plan.
(w) "Performance Award" shall mean those awards made pursuant to Section
12.
(x) "Performance Goals" shall mean such targets or goals established
in-writing by the Committee from time to time. With respect to
Participants subject to Section 162(m) of the Code, Performance Goals
shall be
2
<PAGE>
based on any one of the following: return on equity, return on
investment, shareholder return, current ratio, firm value, long-term
debt to total capital ratio, net working capital, operating cash flow,
costs, price/book ratio, return on assets, return on capital employed,
revenues, stock price, total debt-total capital ratio, employee
recruitment, completions of acquisitions, joint ventures or other
alliances, new business development, expansion/ establishment of new
offices, increased utilization, creation of work flow systems and
patent creation.
(y) "Performance Period" shall mean the period designated by the Committee
in its discretion, during which Performance Goals shall be measured.
(z) "Plan" shall mean this Modem Media . Poppe Tyson, Inc. 1999 Stock
Incentive Plan, as amended from time to time.
(aa) "Restricted Period" shall mean the period designated by the Committee
during which Restricted Stock is subject to restrictions on Transfer.
(bb) "Restricted Stock" shall mean shares of Common Stock that are subject
to restrictions as provided in Section 10.
(cc) "Retirement" shall mean termination of employment from the Company
(other than due to death, Disability or termination for Cause) on or
after the date the Participant reaches age 55; provided, that
Participant has completed at least five (5) years of service with the
Company.
(dd) "Service Provider" shall mean an Employee, Director or Consultant.
(ee) "Stock Appreciation Right" shall mean those rights described in
Section 9.
(ff) "Subsidiary" shall mean (i) any entity that, directly or indirectly,
is controlled by MMPT or (ii) any entity in which MMPT has a
significant equity interest, in either case as determined by the Board
of directors or, if so authorized by the Board, the Committee.
(gg) "Transfer" shall mean the gift, sale, assignment, transfer, pledge
hypothecation or other disposition (whether for or without
consideration and whether voluntary, involuntary or by operation of
law) of any shares of Common Stock or any interest therein.
Section 4. Administration
The Plan shall be administered by the Committee which shall have full
authority to administer the Plan, including, without limitation, the authority
and the discretion to interpret and construe any provision of the Plan, to adopt
such rules and regulations for administering the Plan as it may deem necessary,
to determine the terms of any award, and to perform all other acts relating to
the Plan, including the delegation of such administrative responsibilities as it
deems to be reasonable and proper. Decisions of the Committee shall be final and
binding on all parties. No members of the Committee shall be liable to any
employee or Participant for any action, omission or determination relating to
the Plan.
Section 5. Shares Available
Shares of Common Stock available under the Plan may be authorized and
unissued shares of Common Stock or authorized and issued shares of Common Stock.
The maximum number of shares of Common Stock available for Awards under this
Plan shall be 1,500,000 shares, reduced by the aggregate number of shares which
are issued upon Award or that become subject to an outstanding Award. The
maximum number of shares of Common Stock that may be awarded to any Participant
during the term hereof under this Plan in the aggregate shall be 750,000 shares.
To the
3
<PAGE>
extent that shares of Common Stock related to outstanding Awards are not issued
either because such Awards are forfeited or terminated, these shares shall again
become immediately available for Awards. Any Awards granted in assumption of, or
in substitution for, outstanding awards previously granted by a company acquired
by the Company, or with which MMPT or a Subsidiary combines, shall not be
counted against the shares of Common Stock available for Awards under the Plan.
Section 6. Effective Date
This Plan shall be effective on December 17, 1999, (the "Effective Date")
subject to the approval of the Plan by a majority of the holders of the shares
of MMPT.
Section 7. Eligibility
Awards may be granted to any Service Provider, in the sole discretion of
the Committee.
Section 8. Stock Options
(a) Option Grant. Subject to the terms of this Section 8, the Committee may
grant Nonqualified Stock Options to any Service Provider. Incentive Stock
Options may be granted only to Employees. Each Option granted under the Plan
shall be evidenced by an agreement or notice of grant that designates each
Option as an Incentive Stock Option or a Nonqualified Stock Option and contains
such terms and conditions as the Committee, in its sole discretion exercised in
accordance with the terms of the Plan, determines.
(b) Option Price. The Option Price shall be determined by the Committee but
in the case of an Incentive Stock Option shall be no less than the Fair Market
Value of a share of Common Stock on the date of grant.
(c) Term of Option. Options granted under the Plan shall expire no later
than ten (10) years from the date of grant or such earlier date specified by the
Committee. Notwithstanding the preceding sentence, the Committee may, in the
case of certain Nonqualified Stock Options granted outside of the United States,
extend the term of an Option beyond ten (10) years from the date of grant.
(d) Exercisability. The Committee shall determine the dates after which
Options may be exercised in whole or in part; provided, however, that no Option
shall be exercisable after the expiration of the term of such Option. Subject to
the preceding sentence, the Committee may amend an Option to accelerate the date
after which such Option may be exercised in whole or in part. An Option which
has not been exercised on or prior to the date it expires shall be canceled.
(e) Incentive Stock Options. Notwithstanding anything in Sections 8(a)
through 8(d) to the contrary, no Incentive Stock Option shall be granted to any
Employee who, at the time the option is granted owns (directly or indirectly
within the meaning of Section 424(d) of the Code) more than ten percent of the
total combined voting power of all classes of stock-of MMPT, any Subsidiary or
Parent unless (i) the Option Price under such Option is at least 110% of the
Fair Market Value of a share of Common Stock on the date of grant, and (ii) the
Option expires no later than the day preceding the fifth anniversary of the date
of grant.
(f) Manner of Exercise and Payment. A Participant shall exercise an Option,
in whole or in part, by providing notice of exercise in accordance with the
method prescribed by the Committee and paying the Option Price for each share of
Common Stock to be purchased under the Option. Payment of the Option Price shall
be made:
(i) in cash or by certified check, bank draft or money order
payable to the order of Modem Media . Poppe Tyson, Inc. (or other
equivalent method acceptable to the Committee) equal to the Option
Price for the shares to be exercised, payable in such currency as the
Committee determines;
4
<PAGE>
(ii) through the delivery of Common Stock with an aggregate Fair
Market Value on the date of exercise equal to the Option Price for the
shares to be purchased;
(iii) through the withholding of Common Stock issuable upon
exercise with an aggregate Fair Market Value equal to the Option Price
for the shares to be purchased; and
(iv) by any combination of the above methods of payment;
provided, however, that the Company shall not be obligated to purchase or accept
the surrender in payment of any shares of Common Stock if any such action would
be prohibited by applicable law or if the Committee determines that such action
is not in the best interests of the Company. The Committee shall determine the
method for tendering Common Stock and may impose such limitations and
prohibitions on the use of Common Stock to exercise an Option as it deems
appropriate.
(g) Former Incentive Stock Option Holders' Notification Obligation. If a
Participant disposes of Common Stock acquired upon the exercise of an Incentive
Stock Option either (i) within two years after the date of grant of such
Incentive Stock Option, or (ii) within one year after the Common Stock is
transferred to the Participant, the Participant shall notify the General Counsel
of MMPT of such disposition and of the amount realized upon such disposition.
Section 9. Stock Appreciation Rights.
(a) Stock Appreciation Right Grant. Subject to the terms of this Section 9,
the Committee may grant a Stock Appreciation Right that is (i) independent of an
Option, or (ii) granted in conjunction with an Option (or portion thereof). A
Stock Appreciation Right granted in conjunction with an Option may be granted at
the time the related Option is granted or at any time prior to the exercise or
cancellation of the related Option.
(b) Grant Price. The "Grant Price" of a Stock Appreciation Right shall be:
(i) in the case of a Stock Appreciation Right that is granted independent of an
Option, as determined by the Committee in its sole discretion; or (ii) in the
case of Stock Appreciation Right granted in conjunction with an Option, equal to
the Option Price.
(c) Term of Stock Appreciation Right. Stock Appreciation Rights granted
under the Plan shall expire no later than ten (10) years from the date of grant
or such earlier date specified by the Committee; provided, however, that a Stock
Appreciation Right granted in conjunction with an Option shall expire at the
same time the Option expires.
(d) Exercisability. The Committee shall determine the dates after which
Stock Appreciation Rights may be exercised in whole or in part; provided,
however, that no Stock Appreciation Right shall be exercisable prior to the
completion of the approval features set forth in Section 6 or after the
expiration of the term of such Stock Appreciation Right. Subject to the
preceding sentence, the Committee may amend a Stock Appreciation Right to
accelerate the date after which such Stock Appreciation Right may be exercised
in whole or in part. A Stock Appreciation Right that has not been exercised on
or prior to the date it expires shall be canceled. A Stock Appreciation Right
that is exercised in conjunction with an Option (or portion thereof) shall not
be exercised unless such Option (or portion thereof) is otherwise exercisable,
and such a Stock Appreciation Right shall be canceled to the extent the Option
to which it relates has been exercised, has expired, or been terminated or
canceled.
(e) Exercise of Stock Appreciation Right. A Participant may exercise a
Stock Appreciation Right, in whole or in part, by providing notice of exercise
in accordance with the method prescribed by the Committee. Upon the exercise of
a Stock Appreciation Right, the Participant shall be entitled to receive from
the Company with respect to each share of Common Stock to which such Stock
Appreciation Right is exercised an amount in cash or Common Stock equal to the
excess of (i) the Fair Market Value of a share of Common Stock on the date of
exercise over (ii) the Grant Price of the Stock Appreciation Right. Upon
exercise, the Company shall pay such amount in cash and/or Common Stock at the
discretion of the Committee. The number of shares of Common Stock, if any,
issued as a
5
<PAGE>
result of the exercise of a Stock Appreciation Right shall be based on the Fair
Market Value of such shares of Common Stock on the date of exercise. Upon the
exercise of a Stock Appreciation Right (or portion thereof), granted in
conjunction with an Option (or portion thereof), the Option (or portion thereof)
to which such Stock Appreciation Right relates shall be deemed in the case of a
cash payment to have been canceled and in the case of a payment in Common Stock
to have been exercised.
Section 10. Restricted Stock.
(a) Restricted Stock Grant. Subject to the terms of this Section 10, the
Committee may grant Restricted Stock, the restrictions on which lapse In
accordance with the terms specified by the Committee, to selected Service
Providers for such reasons and in such amounts as the Committee in its sole
discretion, may determine. The Committee may amend a Restricted Stock Award to
accelerate the date on which restrictions on all or part of such Award will
lapse. As a condition to any Award of Restricted Stock, the Committee may
require a Service Provider to pay to the Company a non-refundable amount equal
to, or in excess of, the par value of the shares of Restricted Stock awarded.
(b) Restrictions. During the Restricted Period, a Participant may not
Transfer any shares of Restricted Stock except, consistent with Section 17(b),
as provided in the agreement or award under which the Restricted Stock is
granted.
(c) No Other Restrictions. Except as otherwise provided in this Section 10
or in an agreement or award under which Restricted Stock is granted,
Participants shall enjoy all other rights of ownership associated with the
Restricted Stock, including, without limitation, the right to vote such shares
and to receive dividends on these shares.
(d) Legend. Each certificate of Common Stock issued in connection with a
Restricted Stock award under the Plan shall be registered in the name of the
Participant to whom the Restricted Stock was awarded, deposited with MMPT
together with a stock power endorsed in blank, and bear the following or a
substantially similar legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE GIVEN, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF (WHETHER FOR OR WITHOUT
CONSIDERATION, AND WHETHER VOLUNTARILY, INVOLUNTARILY OR BY OPERATION OF LAW)
UNLESS SUCH GIFT, SALE, ASSIGNMENT, TRANSFER, OR OTHER DISPOSITION COMPLIES WITH
THE MODEM MEDIA . POPPE TYSON, INC. 1999 STOCK INCENTIVE PLAN AND THE AGREEMENT
OR AWARD UNDER WHICH THE SECURITIES WERE ISSUED TO THE PARTICIPANT.
(e) Revised Certificates. When the restrictions to which the Restricted
Stock is subject lapse or are otherwise satisfied MMPT shall deliver to the
Participant holding the Restricted Stock a certificate or certificates of Common
Stock without the legend referred to in Section 10(d), for the number of shares
of Restricted Stock pursuant to which all restrictions have lapsed or been
satisfied.
Section 11. Merit Awards.
The Committee may from time to time make an Award of Common Stock under the
Plan to selected Service Providers for such reasons and in such amounts as the
Committee, in its sole discretion, may determine. As a condition to any such
Merit Award, the Committee may require a Participant to pay the Company an
amount equal to, or in excess of, the par value of the shares of Common Stock
awarded.
Section 12. Performance Awards.
(a) Performance Awards. The Committee may from time to time make an Award
(which may be a Restricted Stock Award, Merit Award or Other Stock Based Award),
the receipt of which, or the vesting of which, depends upon the attainment of
certain Performance Goals within a stated Performance Period. There may be more
than one Performance Period in existence at any one time, and the duration of
the Performance Periods may differ from each
6
<PAGE>
other. No Performance Award may be paid prior to the date the Plan is approved
by MMPT's shareholders as provided in Section 6.
(b) Granting Performance Awards. Subject to the terms of this Plan, the
Committee shall determine within the first 90 days of the Performance Period (or
if shorter, within the first quarter of such Performance Period) (i) the Service
Providers who shall be eligible to receive a Performance Award, and (ii) for
each such Service Provider or group of Service Providers, the Performance Goal
and the Award or range of Awards payable upon attainment of such Performance
Goals (or a percentage of such Performance Goals).
(c) Revision of Awards or Goals. The Committee's discretion to revise the
Performance Goals and the Awards payable upon attainment of the Performance
Goals shall be limited to reducing or eliminating the amount of an Award
otherwise payable upon attainment of the Performance Goals. The Committee may
adjust Performance Goals and the Awards payable upon attainment of the
Performance Goals during the Performance Period to reflect promotions, transfers
or other changes in an Employee's position; provided, however, that no such
change shall be effective unless (i) attainment of such Performance Goals is not
substantially certain, (H) the changes made are either consistent with the
Performance Goals and Awards established for other Employees in the same or
similar position or approved by the Committee following such promotion,
transfer, or other change in employment, and are made before the expiration of
the first 90 days (or if shorter, the first quarter) of this short Performance
Period, and (iii) the changes would not cause the Awards to be other than
"performance-based compensation" within the meaning of Code Section
162(m)(4)(C).
(d) Determination of Award. Unless the Agreement under which a Performance
Award is made provides otherwise, (i) Performance Awards shall be determined
within 90 days following the date attainment of Performance Goals can be
measured and (ii) Participants shall receive their Performance Awards no later
than 30 days after the Awards are determined; provided, however, no amounts
shall be distributed as a result of a Performance Award prior to the time that
the Committee certifies in writing that the Performance Goals applicable to each
such Award have been satisfied or prior to the date the approval features a set
forth in Section 5 have been satisfied.
Section 13. Other Compensation Programs.
In the event a compensation program sponsored by the Company provides for a
distribution to be made in Common Stock, the Committee may, in its discretion,
treat such distributions as having been awarded under this Plan. The number of
shares of Common Stock, if any, issued as a result of such a distribution shall
be based on the Fair Market Value of such shares of Common Stock on the date
prior to the date of distribution.
Section 14. Other Stock Based Compensation.
The Committee may grant Other Stock Based Awards in such form as it shall,
in its sole discretion, determine, including without limitation, phantom shares
of Common Stock and units representing shares of Common Stock. The Committee
shall determine whether Other Stock Based Awards shall be settled in cash,
Common Stock, or a combination of both
Section 15. Effect of Employment Termination on Awards.
(a) Termination of Employment: General Rule. Unless otherwise provided in
an agreement or award and except as otherwise provided in this Section 15, upon
the termination of employment of a Participant other than for Cause:
(i) each Option, Stock Appreciation Right, and Other Stock Based
Award that is exercisable shall be exercisable for the thirty (30) day
period following such termination, provided, that no such Award shall
be exercisable following the expiration of its term and all such
Awards that are not exercisable shall be forfeited and canceled;
7
<PAGE>
(ii) each share of Restricted Stock (and each Other Stock Based
Award that is subject to restrictions), for which restrictions have
not lapsed as of the date employment terminates shall be forfeited and
canceled; and
(iii) each Performance Award (and each Other Stock Based Award
that requires attainment of Performance Goals) the award or vesting of
which depends on the performance of the Company during a Performance
Period that has not ended as of the date employment terminates shall
be forfeited and canceled.
(b) Disability, Death or Retirement. Unless otherwise provided in an
agreement or award , if a Participant's employment terminates because of
Disability, death, or Retirement:
(i) each Option, Restricted Stock Award, Stock Appreciation
Right, and Other Stock Based Award shall become immediately
exercisable and shall remain exercisable for the three year period
following such termination, provided, that no such Award shall be
exercisable following the expiration of its term; and
(ii) to the extent measurable, the Participant, or in the case of
the Participant's death, the Participant's beneficiary shall receive a
pro-rata award following the Performance Period in respect of each
Performance Award (and each other Other Stock Based Award that requires
attainment of Performance Goals) the award or vesting of which depends
on the performance of the Company during a Performance Period that has
not ended as of the date employment terminates which shall be
determined by multiplying the Award by a fraction, the numerator of
which shall be the number of full and partial months elapsed in the
Performance Period during which the Participant was an Employee and the
denominator of which shall be the number of full and partial months
elapsed in the Performance Period.
(c) Change in Control. Unless otherwise provided in an agreement or award,
if within one year following a Change in Control, a Participant's employment is
terminated involuntarily by the Company other than for Cause, Retirement, death
or Disability, any Options, Stock Appreciation Rights or other Stock Based
Compensation granted to such Participant shall immediately vest and any
restrictions on restricted stock shall lift effective the date of such
termination. Treatment of Performance Awards upon a Change in Control shall be
determined by the Committee prior to such Change in Control.
(d) Termination of Employment for Cause. Upon the termination of employment
of a Participant for Cause, all Awards which have not been exercised shall be
forfeited unless otherwise determined by the Committee. All other Awards which
are not exercisable on the date employment terminates, which are restricted or
for which the Participant has not satisfied the requirements, shall be forfeited
and canceled.
Section 16. Amendment, Termination, Term.
(a) Amendment; Termination. The Board may at any time terminate the Plan or
make such amendments thereof as it shall deem advisable and in the best
interests of the Company; provided, however, that no such amendment shall,
without the consent of the individual to whom any Award shall have been granted,
adversely affect or impair the rights of such individual under such Award, and
provided, further, that unless the shareholders of MMPT shall have first
approved thereof, no amendment of the Plan shall be effective if such approval
is necessary to comply with any tax or regulatory requirement for which or with
which the Board deems it necessary or desirable to qualify or comply.
Notwithstanding anything in this Section to the contrary, the Committee may
provide for forfeiture of an Award, if it determines, in its complete discretion
that a Participant has engaged in activity that is contrary to the interests of
the Company.
(b) Term. No Awards shall be granted under this Plan on or after the tenth
anniversary of the Effective Date, but Awards granted prior to or as of such
date may extend beyond such date in accordance with the provisions of this Plan.
8
<PAGE>
Section 17. Miscellaneous.
(a) Continued Employment/Participation Not Guaranteed. Nothing contained in
this Plan shall confer upon any Participant or Employee the right to
continuation of his or her employment with the Company (or interfere with the
Company's right to terminate such employment) or the right to receive an Award
under this Plan, and there is no obligation for uniformity of treatment of
Service Providers, Participants or beneficiaries of Awards.
(b) Awards May Not Be Transferred. Except as otherwise determined by the
Committee, an Employee or Participant's rights under this Plan may not be
Transferred in whole or in part except that the following Transfers, if
permitted by the Agreement under which an Award is made, shall be permitted
under this Plan:
(i) a Transfer made to the Company (or its assignee); and
(ii) a Transfer, upon the death of the Participant or to their
respective executors, administrators, testamentary trustees, legatees
or beneficiaries (an "Estate");
provided, however, that a Transfer pursuant to this Section shall not be given
effect on the books of MMPT unless and until the transferee agrees in writing,
in form and substance satisfactory to the Committee, to be become bound by the
terms of the Plan; provided, further, that an Incentive Stock Option may not, by
its terms, be transferable other than by will or the laws of descent and
distribution and shall be exercisable, during the Participant's lifetime, only
by the Participant.
(c) Withholding. Applicable law may require the withholding of taxes from
the income or gains resulting from an Award. The Company, may in its discretion,
require payment to the Company of the amount to be withheld, or make other
arrangements (including without limitation, the withholding of Common Stock
which would otherwise be delivered as part of or upon exercise of an Award), at
the time of delivery or exercise or thereafter. To the extent permitted by the
Committee, a Participant may elect to discharge his or her withholding
obligations through (i) the payment of cash or authorization of the Company to
withhold cash that is otherwise payable to the Participant, (ii) delivery of
shares of Common Stock, or authorization of the Company to withhold shares of
Common Stock, having a Fair Market Value equal to the amount to be withheld, or
(iii) any combination of the above.
(d) Certain Adjustments. In the event of a corporate event that affects
Common Stock (i.e., a recapitalization, stock split, stock combination, stock
reclassification, merger, or similar event), the Committee may make appropriate
adjustments including, without limitation adjustments to (1) the number of
authorized and unissued shares of Common Stock subject to the Plan, (ii) the
maximum number of shares available for grant, and (iii) the number of shares of
Common Stock, covered by or available for, or covered by, an Award (as well as
the exercise price, if any, thereof), such that the interest of the Employee
shall be maintained as before the occurrence of such event.
(e) Funding; Expenses. This Plan shall be unfunded. Awards hereunder shall
be furnished using the general assets of the Company (or a trust established by
the Company to meet its obligations hereunder which shall not be subject to the
claims of Participants) and Participants shall be general unsecured creditors of
the Company. No Participant shall have any right, title, claim or interest in or
with respect to any specific assets of the Company in connection with his or her
participation in this Plan. All of the expenses of the Plan shall be borne by
the Company.
(f) Governing Law; Interpretation. This Plan shall be governed by the laws
of the State of Delaware to the extent not preempted by federal law. This Plan
is intended to be administered with respect to persons covered by Section 16 of
the Exchange Act in accordance with Rule 16b3 and the rights of all such
individuals shall be construed in accordance with such provision. Options, Stock
Appreciation Rights, Performance Awards, Merit Awards and Other Stock Based
Awards granted to officers of the Company in accordance with the requirements of
Code Section 162(m) are intended to be treated as "performance-based
compensation" within the meaning of Code Section 162(m)(4)(C), and all rights of
the Participants under such Awards shall be construed in accordance with such
provision.
9
<PAGE>
(g) Award Agreements. Each Award hereunder shall be evidenced by an Award
Agreement which may be in the form of a letter notification of grant. Such
Agreement shall be delivered to the Participant and shall, in conjunction with
the Plan, specify the terms and conditions of the Award and any rules applicable
thereto.
(h) No Limit on Other Compensation Arrangement. Nothing contained in the
Plan shall prevent the Company from adopting or continuing in effect other
compensation arrangements, including without limitation, any such arrangements
that provide for the grant of options, restricted stock, common stock, and other
types of awards provided for hereunder (subject to the approval of the Company's
shareholders if required), and such arrangements may be either generally
applicable or applicable only in specific cases.
10
