<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 4, 2000
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------------------
VERIO INC.
(Exact Name of Registrant as Specified in Its Charter)
----------------------------------------------
DELAWARE 84-1339720
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
8005 SOUTH CHESTER STREET, SUITE 200
ENGLEWOOD, COLORADO 80112
(Address of Principal Executive Offices)
1998 STOCK INCENTIVE PLAN
(Full Title of the Plan)
----------------------------------------------
CARLA HAMRE DONELSON, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
VERIO INC.
8005 SOUTH CHESTER STREET, SUITE 200
ENGLEWOOD, COLORADO 80112
(Name and Address of Agent For Service)
(303) 645-1900
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
GAVIN B. GROVER, ESQ. CARLA HAMRE DONELSON, ESQ.
MORRISON & FOERSTER LLP VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
425 MARKET STREET VERIO INC.
SAN FRANCISCO, CALIFORNIA 94105 8005 SOUTH CHESTER STREET, SUITE 200
(415) 268-7000 ENGLEWOOD, COLORADO 80112
(303) 645-1900
--------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================== ==================== ======================= ====================== ======================
Proposed Proposed
Amount Maximum Maximum Amount of
Title Of Securities To Be Offering Price Aggregate Offering Registration
To Be Registered Registered Per Share(1) Price(1) Fee
- --------------------------- -------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, par value 7,500,000 $27.125 $203,437,500 $53,708.00
$.001 per share
=========================== ==================== ======================= ====================== ======================
</TABLE>
(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee.
Computation based upon the average of the high and low prices of the
Registrant's Common Stock as reported on the Nasdaq National Market on
April 27, 2000.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I of Form
S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Pursuant to General Instruction E to Form S-8 under the Securities Act
of 1933, as amended, this Registration Statement is filed to register 7,500,000
additional shares of the Common Stock, par value $.001 per share, of Verio Inc.
reserved for issuance under the terms of the Verio Inc. 1998 Stock Incentive
Plan, as amended and restated on February 17, 2000.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by Verio Inc.
(the "Registrant") with the Securities and Exchange Commission (the
"Commission"), are incorporated herein by reference and made a part hereof:
(a) The contents of the Registrant's Registration Statements on Form
S-8, Commission File No. 333-57059 and Commission File No. 333-59451, including
exhibits thereto, are hereby incorporated by reference into this Registration
Statement, except as the same may be modified by the information set forth
herein.
(b) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, filed with the Commission on March 24, 2000, as amended
by Amendment No. 1 thereto, filed with the Commission on Form 10-K/A on March
27, 2000;
(c) The Registrant's Current Report on Form 8-K, filed with the
Commission on May 1, 2000;
(d) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
since the end of the fiscal year covered by the Annual Report referred to in (a)
above;
(e) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, dated May 7, 1998, filed under
the Exchange Act, including any amendment or report filed for the purpose of
updating the description; and
(f) The description of the Registrant's Common Stock contained in
Amendment No. 2 to the Registrant's Registration Statement on Form S-3
(Registration No. 333-91051), filed with
<PAGE> 3
the Commission on February 10, 2000, including any amendment or report filed for
the purpose of updating such description.
All other documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment, which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and made a part hereof from
their respective dates of filing (such documents, and the documents enumerated
above, being hereinafter referred to as an "Incorporated Document" and,
collectively, as "Incorporated Documents"); provided, however, that the
documents enumerated above or subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act in each year during which
the offering made hereby is in effect prior to the filing with the Commission of
the Registrant's Annual Report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference herein or be a part
hereof from and after the filing of such Annual Report on Form 10-K.
For purposes of this Registration Statement, any document or any
statement deemed to be incorporated by reference herein or contained in an
Incorporated Document shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein or in any other
subsequently filed Incorporated Document modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "a corporation shall have the power to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interest of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful." With respect to derivative actions, Section 145(b) of the DGCL
provides in relevant part that "[a] corporation shall have the power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor...[by reason of his service in
one of the capacities specified in the preceding sentence] against expenses
(including attorneys' fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interest of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper."
The Registrant's Second Restated Certificate of Incorporation provides
that each person who is or was or who had agreed to become a director or officer
of the Registrant or who had agreed at the request of the Registrant's Board of
Directors to serve as an employee or agent of the Registrant or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall be indemnified by the Registrant to the full
extent permitted by the DGCL or any other applicable laws. Such Second Restated
Certificate of Incorporation also provides that the Registrant may enter into
one or more agreements with any person which provides for indemnification
greater or different than that provided in such Certificate, and that no
amendment or repeal of such Certificate shall apply to or have any effect on the
right to indemnification permitted or authorized thereunder for or with respect
to claims asserted before or after such amendment or repeal arising from acts or
omissions occurring in whole or in part before the effective date of such
amendment or repeal.
The Registrant's Amended and Restated Bylaws provide that the
Registrant shall indemnify to the fullest extent authorized by law any person
made or threatened to be made a party to an action or a proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that he,
his testator or intestate was or is a director, officer or employee of the
Registrant or any predecessor of the Registrant or serves or served any other
enterprise as a director, officer or employee at the request of the Registrant
or any predecessor of the Registrant.
The Registrant has entered into indemnification agreements with its
directors and certain of its officers.
The Registrant has purchased and maintains insurance on behalf of any
person who is or was a director or officer against loss arising from any claim
asserted against him and incurred by him in any such capacity, subject to
certain exclusions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.1* Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.2 to Amendment No. 1
to the Registrant's Registration Statement on Form S-3
(Registration No. 333-91051), filed on January 25, 2000).
4.2 Certificate of Amendment of Certificate of Incorporation of
the Registrant.
4.3* Bylaws of the Registrant (incorporated by reference to Exhibit
3.3 to Amendment No. 1 to the Registrant's Registration
Statement on Form S-3 (Registration No. 333-91051), filed on
January 25, 2000).
4.4 Registrant's 1998 Stock Incentive Plan, as Amended and
Restated on February 17, 2000.
4.5 Registrant's 1998 Non-Employee Director Stock Incentive Plan,
as Amended and Restated as of January 1, 2000.
5.1 Opinion of Morrison & Foerster LLP together with consent.
23.1 Consent of KPMG LLP.
23.2 Consent of Morrison & Foerster LLP (contained in the opinion
of counsel filed as Exhibit 5.1).
24.1 Power of Attorney (contained on signature page hereto).
</TABLE>
*Previously filed.
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
<PAGE> 4
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, 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.
<PAGE> 5
(3) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 of 1933 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 of 1933 and will be governed by the
final adjudication of such issue.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Englewood, State of Colorado, on May 4, 2000.
VERIO INC.
By: /s/ Justin L. Jaschke
-----------------------
Justin L. Jaschke
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Justin L. Jaschke, Peter B. Fritzinger
and Carla Hamre Donelson, and each of them, each with full power to act without
the other, his true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for such person and in his name, place
and stead, in any and all capacities, to sign any and all amendments or
supplements (including post-effective amendments) to this Form S-8 Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto each of said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully as to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Steven C. Halstedt Chairman of the Board May 4, 2000
----------------------
Steven C. Halstedt
/s/ Justin L. Jaschke Chief Executive Officer and Director May 4, 2000
---------------------
Justin L. Jaschke
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ James C. Allen Director May 4, 2000
------------------
James C. Allen
/s/ Trygve E. Myhren Director May 4, 2000
--------------------
Trygve E. Myhren
/s/ Paul J. Salem Director May 4, 2000
-----------------
Paul J. Salem
/s/ Yukimasa Ito Director May 4, 2000
----------------
Yukimasa Ito
/s/ Arthur L. Cahoon Director May 4, 2000
--------------------
Arthur L. Cahoon
Director
---------------------
Thomas A. Marinkovich
/s/ Peter B. Fritzinger Chief Financial Officer May 4, 2000
----------------------- (Principal Accounting Officer)
Peter B. Fritzinger
</TABLE>
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.1* Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.2 to Amendment No. 1
to the Registrant's Registration Statement on Form S-3
(Registration No. 333-91051), filed on January 25, 2000).
4.2 Certificate of Amendment of Certificate of Incorporation of
the Registrant.
4.3* Bylaws of the Registrant (incorporated by reference to Exhibit
3.3 to Amendment No. 1 to the Registrant's Registration
Statement on Form S-3 (Registration No. 333-91051), filed on
January 25, 2000).
4.4 Registrant's 1998 Stock Incentive Plan, as Amended and
Restated on February 17, 2000.
4.5 Registrant's 1998 Non-Employee Director Stock Incentive Plan,
as Amended and Restated as of January 1, 2000.
5.1 Opinion of Morrison & Foerster LLP together with consent.
23.1 Consent of KPMG LLP.
23.2 Consent of Morrison & Foerster LLP (contained in the opinion
of counsel filed as Exhibit 5.1).
24.1 Power of Attorney (contained on signature page hereto).
</TABLE>
*Incorporated by reference.
<PAGE> 1
Exhibit 4.2
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF
VERIO INC.
VERIO INC., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of VERIO INC. (the
"Corporation"), duly held on February 17, 2000, resolutions were duly adopted
setting forth a proposed amendment of the Certificate of Incorporation of said
Corporation, declaring said amendment to be advisable. The resolution setting
forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of this Corporation be,
and it hereby is, amended by deleting the first paragraph of Article Four
thereof and replacing it with the following:
"ARTICLE FOUR
1. CAPITAL STOCK
The total number of shares of all classes of stock that the Corporation
is authorized to issue is seven hundred seventy million (770,000,000) shares,
consisting of seven hundred fifty million (750,000,000) shares of Common Stock,
par value $.001 per share, and twenty million (20,000,000) shares of Preferred
Stock, par value $.001 per share."
SECOND: That thereafter, the 2000 Annual Meeting of Stockholders of
said Corporation was duly called and held, upon notice in accordance with
Sections 211 and 222 of the General Corporation Law of the State of Delaware, at
which meeting the necessary number of shares as required by statute was voted in
favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of said Corporation shall not be reduced under
or by reason of said amendment.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned, being the Chief Executive Officer
of the Corporation, for the purpose of amending the Certificate of Incorporation
of the Corporation pursuant to Section 242 of the General Corporation Law of the
State of Delaware, does make and file this Certificate, hereby declaring and
certifying that the facts herein stated are true, and accordingly has hereunto
set my hand this 28th day of April, 2000.
VERIO INC.
By: /s/ Justin L. Jaschke
-----------------------
Justin L. Jaschke
Chief Executive Officer
<PAGE> 1
Exhibit 4.4
VERIO INC.
1998 STOCK INCENTIVE PLAN
Adopted on February 18, 1998
Amended and Restated on March 19, 1998
Amended and Restated on February 17, 2000
1. Purposes of the Plan. The purposes of this Stock Incentive Plan are to
attract and retain the best available personnel, to provide additional incentive
to Employees, Directors and Consultants and to promote the success of the
Company's business.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of the Committees appointed
to administer the Plan.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act.
(c) "Applicable Laws" means the legal requirements relating to the
administration of stock incentive plans, if any, under applicable provisions
of federal securities laws, state corporate and securities laws, the Code,
the rules of any applicable stock exchange or national market system, and
the rules of any foreign jurisdiction applicable to Awards granted to
residents therein.
(d) "Award" means the grant of an Option.
(e) "Award Agreement" means the written agreement evidencing the grant
of an Award executed by the Company and the Grantee, including any
amendments thereto.
(f) "Board" means the Board of Directors of the Company.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Committee" means any committee appointed by the Board to administer
the Plan.
(i) "Common Stock" means the common stock of the Company.
(j) "Company" means Verio Inc., a Delaware corporation.
(k) "Consultant" means any person who is engaged by the Company or any
Related Entity to render consulting or advisory services as an independent
contractor and is compensated for such services.
(l) "Continuous Status as an Employee, Director or Consultant" means
that the provision of services to the Company or a Related Entity in any
capacity of Employee, Director or Consultant, is not interrupted or
terminated. Continuous Status as an Employee, Director or Consultant shall
not be considered interrupted in the case of (i) any approved leave of
absence, (ii) transfers between locations of the Company or among the
Company, any Related Entity, or any successor, in any capacity of Employee,
<PAGE> 2
Director or Consultant, or (iii) any change in status as long as the
individual remains in the service of the Company or a Related Entity in any
capacity of Employee, Director or Consultant (except as otherwise provided
in the Award Agreement). An approved leave of absence shall include sick
leave, military leave, or any other authorized personal leave. For purposes
of Incentive Stock Options, no such leave may exceed ninety (90) days,
unless reemployment upon expiration of such leave is guaranteed by statute
or contract.
(m) "Conversion Date" shall mean the date on which shares of the
Company's Series D Preferred Stock are automatically converted to Common
Stock pursuant to the provisions of the Certificate of Designation
Establishing Series D Preferred Stock of Verio Inc.
(n) "Covered Employee" means an Employee who is a "covered employee"
under Section 162(m)(3) of the Code.
(o) "Director" means a member of the Board.
(p) "Employee" means any person, including an Officer or Director, who
is an employee of the Company or any Related Entity. The payment of a
director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(q) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(r) "Fair Market Value" means, as of any date, the value of Common Stock
or other property determined as follows:
(i) Where there exists a public market for the Common Stock, the Fair
Market Value shall be (A) the closing price for a Share for the last
market trading day prior to the time of the determination (or, if no
closing price was reported on that date, on the last trading date on
which a closing price was reported) on the stock exchange determined by
the Administrator to be the primary market for the Common Stock or the
Nasdaq National Market, whichever is applicable or (B) if the Common
Stock is not traded on any such exchange or national market system, the
average of the closing bid and asked prices of a Share on the Nasdaq
Small Cap Market for the day prior to the time of the determination (or,
if no such prices were reported on that date, on the last date on which
such prices were reported), in each case, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable; or
(ii) In the absence of an established market of the type described in
(i), above, for the Common Stock, the Fair Market Value thereof shall be
determined by the Administrator in good faith.
(iii) In the case of property other than Common Stock, the Fair Market
Value thereof shall be determined by the Administrator in good faith.
(s) "Grantee" means an Employee, Director or Consultant who receives an
Award under the Plan.
(t) "Incentive Stock Option" means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code.
(u) "Non-Qualified Stock Option" means an Option not intended to qualify
as an Incentive Stock Option.
<PAGE> 3
(v) "Officer" means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(w) "Option" means a stock option granted pursuant to the Plan.
(x) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(y) "Performance-Based Compensation" means compensation qualifying as
"performance-based compensation" under Section 162(m) of the Code.
(z) "Plan" means this 1998 Stock Incentive Plan.
(aa) "Prior Plans" means the Company's 1996 Stock Option Plan and the
Company's 1997 California Stock Option Plan.
(bb) "Related Entity" means any Parent, Subsidiary and any business,
corporation, partnership, limited liability company or other entity in which
the Company, a Parent or a Subsidiary holds a substantial ownership
interest, directly or indirectly.
(cc) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act or
any successor thereto.
(dd) "Series D-1 share" means a share of Series D-1 Convertible
Preferred Stock of the Company.
(ee) "Share" shall be deemed to refer to both a share of the Common
Stock and a Series D-1 share, unless specifically indicated otherwise.
(ff) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan.
(a) Prior to the Conversion Date, subject to the provisions of Section 10,
below, the maximum aggregate number of Shares which may be issued pursuant to
all Awards is 165,000 Series D-1 shares and 1,749,300 shares of Common Stock
together with any Shares that are represented by Awards under the Company's 1996
Stock Option Plan which are forfeited, expire or are cancelled without delivery
of Shares or which result in the forfeiture of Shares back to the Company
following the date of adoption of this Plan. Notwithstanding the foregoing,
subject to the provisions of Section 10, below, the maximum aggregate number of
Shares available for grant of Incentive Stock Options prior to the Conversion
Date shall be 165,000 Series D-1 shares and 1,749,300 shares of Common Stock.
The Shares to be issued pursuant to Awards may be authorized, but unissued, or
reacquired Shares.
(b) On and after the Conversion Date, subject to the provisions of Section
10, below, the maximum aggregate number of Shares which may be issued pursuant
to all Awards is 19,898,600 shares of Common Stock, increased by (i) any Shares
available for future awards under the Company's 1997 California Stock Option
Plan as of the Conversion Date and (ii) any Shares that are represented by
Awards under the Prior Plans which are forfeited, expire or are cancelled
without delivery of Shares or which result in the forfeiture of Shares back to
the Company on or after the Conversion Date. Notwithstanding the foregoing,
subject to the provisions of Section 10, below, the maximum aggregate number of
Shares available for the grant of Incentive Stock Options on and after the
Conversion Date shall be 19,898,600
<PAGE> 4
shares of Common Stock. The Shares to be issued pursuant to Awards may be
authorized, but unissued, or reacquired Shares.
(c) Any Shares covered by an Award (or portion of an Award) which is
forfeited or cancelled, expires or is settled in cash, shall be deemed not to
have been issued for purposes of determining the maximum aggregate number of
Shares which may be issued under the Plan. Shares that actually have been issued
under the Plan pursuant to an Award shall not be returned to the Plan and shall
not become available for future issuance under the Plan, except that if unvested
Shares are forfeited, or repurchased by the Company at their original purchase
price, such Shares shall become available for future grant under the Plan.
4. Administration of the Plan.
(a) Plan Administrator.
(i) Administration With Respect to Directors and Officers. With respect
to grants of Awards to Directors or Employees who are also Officers or
Directors of the Company, the Plan shall be administered by (A) the Board or
(B) a Committee designated by the Board, which Committee shall be
constituted in such a manner as to satisfy the Applicable Laws and to permit
such grants and related transactions under the Plan to be exempt from
Section 16(b) of the Exchange Act in accordance with Rule 16b-3. Once
appointed, such Committee shall continue to serve in its designated capacity
until otherwise directed by the Board.
(ii) Administration With Respect to Consultants and Other Employees.
With respect to grants of Awards to Employees or Consultants who are neither
Directors nor Officers of the Company, the Plan shall be administered by (A)
the Board or (B) a Committee designated by the Board, which Committee shall
be constituted in such a manner as to satisfy the Applicable Laws. Once
appointed, such Committee shall continue to serve in its designated capacity
until otherwise directed by the Board. The Board may authorize one or more
Officers to grant such Awards and may limit such authority as the Board
determines from time to time.
(iii) Administration With Respect to Covered Employees. Notwithstanding
the foregoing, grants of Awards to any Covered Employee intended to qualify
as Performance-Based Compensation shall be made only by a Committee (or
subcommittee of a Committee) which is comprised solely of two or more
Directors eligible to serve on a committee making Awards qualifying as
Performance-Based Compensation. In the case of such Awards granted to
Covered Employees, references to the "Administrator" or to a "Committee"
shall be deemed to be references to such Committee or subcommittee.
(iv) Administration Errors. In the event an Award is granted in a manner
inconsistent with the provisions of this subsection (a), such Award shall be
presumptively valid as of its grant date to the extent permitted by the
Applicable Laws.
(b) Powers of the Administrator. Subject to Applicable Laws and the
provisions of the Plan (including any other powers given to the Administrator
hereunder), and except as otherwise provided by the Board, the Administrator
shall have the authority, in its discretion:
(i) to select the Employees, Directors and Consultants to whom Awards
may be granted from time to time hereunder;
<PAGE> 5
(ii) to determine whether and to what extent Awards are granted
hereunder;
(iii) to determine the number of Shares or the amount of other
consideration to be covered by each Award granted hereunder;
(iv) to approve forms of Award Agreement for use under the Plan;
(v) to determine the terms and conditions of any Award granted
hereunder, including terms relating to acceleration or termination of Awards
in the event of one or more types of transactions involving the ownership of
the Company, a Subsidiary or Related Entity;
(vi) to amend the terms of any outstanding Award granted under the Plan,
provided that any amendment that would adversely affect the Grantee's rights
under an outstanding Award shall not be made without the Grantee's written
consent and that any amendment to reduce the exercise price of any
outstanding Option to reflect a reduction in the Fair Market Value per Share
since the grant date of the Option shall not be made without the approval of
the Company's stockholders;
(vii) to construe and interpret the terms of the Plan and Awards granted
pursuant to the Plan;
(viii) to establish additional terms, conditions, rules or procedures to
accommodate the rules or laws of applicable foreign jurisdictions and to
afford Grantees favorable treatment under such laws; provided, however, that
no Award shall be granted under any such additional terms, conditions, rules
or procedures with terms or conditions which are inconsistent with the
provisions of the Plan; and
(ix) to take such other action, not inconsistent with the terms of the
Plan, as the Administrator deems appropriate.
(c) Effect of Administrator's Decision. All decisions, determinations and
interpretations of the Administrator shall be conclusive and binding on all
persons.
5. Eligibility. Awards other than Incentive Stock Options may be granted to
Employees, Directors and Consultants. Incentive Stock Options may be granted
only to Employees of the Company, a Parent or a Subsidiary. An Employee,
Director or Consultant who has been granted an Award may, if otherwise eligible,
be granted additional Awards. Awards may be granted to such Employees, Directors
or Consultants who are residing in foreign jurisdictions as the Administrator
may determine from time to time.
6. Terms and Conditions of Awards.
(a) Designation of Award. Each Award shall be designated as either an
Incentive Stock Option or a Non-Qualified Stock Option. However, notwithstanding
such designation, to the extent that the aggregate Fair Market Value of Shares
subject to Options designated as Incentive Stock Options which become
exercisable for the first time by a Grantee during any calendar year (under all
plans of the Company or any Parent or Subsidiary) exceeds $100,000, such excess
Options, to the extent of the Shares covered thereby in excess of the foregoing
limitation, shall be treated as Non-Qualified Stock Options. For this purpose,
Incentive Stock Options shall be taken into account in the order in which they
were granted, and the Fair Market Value of the Shares shall be determined as of
the date the Option with respect to such Shares is granted.
<PAGE> 6
(b) Conditions of Award. Subject to the terms of the Plan, the Administrator
shall determine the provisions, terms, and conditions of each Award including,
but not limited to, the Award vesting schedule, repurchase provisions, rights of
first refusal, forfeiture provisions, form of payment (cash, Shares, or other
consideration) upon settlement of the Award, payment contingencies, and
satisfaction of any performance criteria. The performance criteria established
by the Administrator may be based on any one of, or combination of, increase in
share price, earnings per share, total stockholder return, return on equity,
return on assets, return on investment, net operating income, cash flow,
revenue, economic value added, personal management objectives, or other measure
of performance selected by the Administrator. Partial achievement of the
specified criteria may result in a payment or vesting corresponding to the
degree of achievement as specified in the Award Agreement.
(c) Deferral of Award Payment. The Administrator may establish one or more
programs under the Plan to permit selected Grantees the opportunity to elect to
defer receipt of consideration upon exercise of an Award, satisfaction of
performance criteria, or other event that absent the election would entitle the
Grantee to payment or receipt of Shares or other consideration under an Award.
The Administrator may establish the election procedures, the timing of such
elections, the mechanisms for payments of, and accrual of interest or other
earnings, if any, on amounts, Shares or other consideration so deferred, and
such other terms, conditions, rules and procedures that the Administrator deems
advisable for the administration of any such deferral program.
(d) Separate Programs. The Administrator may establish one or more separate
programs under the Plan for the purpose of issuing particular forms of Awards to
one or more classes of Grantees on such terms and conditions as determined by
the Administrator from time to time.
(e) Acquisitions and Other Transactions. The Administrator may issue Awards
under the Plan in settlement, assumption or substitution for, outstanding awards
or obligations to grant future awards in connection with the Company or a
Related Entity acquiring another entity, an interest in another entity or an
additional interest in a Related Entity whether by merger, stock purchase, asset
purchase or other form of transaction.
(f) Individual Option Limit. The maximum number of Shares with respect to
which Options may be granted to any Grantee in any fiscal year of the Company
shall be five hundred thousand (500,000) Shares. In connection with a Grantee's
commencement of service to the Company or a Related Entity, a Grantee may be
granted Options for up to an additional five hundred thousand (500,000) Shares
which shall not count against the limit set forth in the previous sentence. The
foregoing limitations shall be adjusted proportionately in connection with any
change in the Company's capitalization pursuant to Section 10, below. To the
extent required by Section 162(m) of the Code or the regulations thereunder, in
applying the foregoing limitations with respect to a Grantee, if any Option is
cancelled, the cancelled Option shall continue to count against the maximum
number of Shares with respect to which Options may be granted to the Grantee.
(g) Early Exercise. The Award may, but need not, include a provision whereby
the Grantee may elect at any time while an Employee, Director or Consultant to
exercise any part or all of the Award prior to full vesting of the Award. Any
unvested Shares received pursuant to such exercise may be subject to a
repurchase right in favor of the Company or to any other restriction the
Administrator determines to be appropriate.
<PAGE> 7
(h) Term of Award. The term of each Award shall be the term stated in the
Award Agreement, provided, however, that the term of an Award shall be no more
than eight (8) years from the date of grant thereof. However, in the case of an
Incentive Stock Option granted to a Grantee who, at the time the Option is
granted, owns stock representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or Subsidiary, the term of
the Incentive Stock Option shall be five (5) years from the date of grant
thereof or such shorter term as may be provided in the Award Agreement.
(i) Transferability of Awards. Incentive Stock Options may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner other
than by will or by the laws of descent or distribution and may be exercised,
during the lifetime of the Grantee, only by the Grantee; provided, however, that
the Grantee may designate a beneficiary of the Grantee's Incentive Stock Option
in the event of the Grantee's death on a beneficiary designation form provided
by the Administrator. Other Awards shall be transferable to the extent provided
in the Award Agreement.
(j) Time of Granting Awards. The date of grant of an Award shall for all
purposes be the date on which the Administrator makes the determination to grant
such Award, or such other date as is determined by the Administrator. Notice of
the grant determination shall be given to each Employee, Director or Consultant
to whom an Award is so granted within a reasonable time after the date of such
grant.
(k) Conversion of Awards. Any Award granted with respect to Series D-1
shares shall convert automatically, without further action by the Company or the
Grantee, into an Award with respect to Common Stock upon automatic conversion of
outstanding Series D-1 shares into Common Stock pursuant to the provisions of
the certificate of designation establishing the Company's Series D Preferred
Stock.
7. Award Exercise or Purchase Price, Consideration and Taxes.
(a) Exercise or Purchase Price. The exercise or purchase price, if any, for
an Award shall be as follows:
(i) In the case of an Incentive Stock Option:
(A) granted to an Employee who, at the time of the grant of such
Incentive Stock Option owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be not less than
one hundred ten percent (110%) of the Fair Market Value per Share on the
date of grant.
(B) granted to any Employee other than an Employee described in the
preceding paragraph, the per Share exercise price shall be not less than
one hundred percent (100%) of the Fair Market Value per Share on the date
of grant.
(ii) In the case of other Awards, the per Share exercise price shall be
not less than one-hundred percent (100%) of the Fair Market Value per Share
on the date of grant.
(iii) Notwithstanding the provisions of (i) and (ii), above, in the case
of an Award issued pursuant to Section 6(e) hereof, the exercise or purchase
price for the Award shall be determined in accordance with the principles of
Section 424(a) of the Code.
(b) Consideration. Subject to Applicable Laws, the consideration to be paid
for the Shares to be issued upon exercise or purchase of an Award including the
method of
<PAGE> 8
payment, shall be determined by the Administrator (and, in the case of an
Incentive Stock Option, shall be determined at the time of grant). In addition
to any other types of consideration the Administrator may determine, the
Administrator is authorized to accept as consideration for Shares issued under
the Plan the following:
(i) cash;
(ii) check;
(iii) surrender of Shares or delivery of a properly executed form of
attestation of ownership of Shares as the Administrator may require
(including withholding of Shares otherwise deliverable upon exercise of the
Award) which have a Fair Market Value on the date of surrender or
attestation equal to the aggregate exercise price of the Shares as to which
said Award shall be exercised (but only to the extent that such exercise of
the Award would not result in an accounting compensation charge with respect
to the Shares used to pay the exercise price unless otherwise determined by
the Administrator);
(iv) delivery of a properly executed exercise notice together with such
other documentation as the Administrator and the broker, if applicable,
shall require to effect an exercise of the Award and delivery to the Company
of the sale or loan proceeds required to pay the exercise price; or
(v) any combination of the foregoing methods of payment.
(c) Taxes. No Shares shall be delivered under the Plan to any Grantee or
other person until such Grantee or other person has made arrangements acceptable
to the Administrator for the satisfaction of any foreign, federal, state, or
local income and employment tax withholding obligations, including, without
limitation, obligations incident to the receipt of Shares or the disqualifying
disposition of Shares received on exercise of an Incentive Stock Option. Upon
exercise of an Award, the Company shall withhold or collect from Grantee an
amount sufficient to satisfy such tax obligations.
8. Exercise of Award.
(a) Procedure for Exercise; Rights as a Stockholder.
(i) Any Award granted hereunder shall be exercisable at such times and
under such conditions as determined by the Administrator under the terms of
the Plan and specified in the Award Agreement.
(ii) An Award shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of
the Award by the person entitled to exercise the Award and full payment for
the Shares with respect to which the Award is exercised has been received by
the Company. Until the issuance (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the
Company) of the stock certificate evidencing such Shares, no right to vote
or receive dividends or any other rights as a stockholder shall exist with
respect to Shares subject to an Award, notwithstanding the exercise of an
Option or other Award. The Company shall issue (or cause to be issued) such
stock certificate promptly upon exercise of the Award. No adjustment will be
made for a dividend or other right for which the record date is prior to the
date the stock certificate is issued, except as provided in the Award
Agreement or Section 10, below.
<PAGE> 9
(b) Exercise of Award Following Termination of Employment, Director or
Consulting Relationship.
(i) An Award may not be exercised after the termination date of such
Award set forth in the Award Agreement and may be exercised following the
termination of a Grantee's Continuous Status as an Employee, Director or
Consultant only to the extent provided in the Award Agreement.
(ii) Where the Award Agreement permits a Grantee to exercise an Award
following the termination of the Grantee's Continuous Status as an Employee,
Director or Consultant for a specified period, the Award shall terminate to
the extent not exercised on the last day of the specified period or the last
day of the original term of the Award, whichever occurs first.
(iii) Any Award designated as an Incentive Stock Option to the extent
not exercised within the time permitted by law for the exercise of Incentive
Stock Options following the termination of a Grantee's Continuous Status as
an Employee, Director or Consultant shall convert automatically to a
Non-Qualified Stock Option and thereafter shall be exercisable as such to
the extent exercisable by its terms for the period specified in the Award
Agreement.
(c) Buyout Provisions. The Administrator may at any time offer to buy out
for a payment in cash or Shares, an Award previously granted, based on such
terms and conditions as the Administrator shall establish and communicate to the
Grantee at the time that such offer is made.
9. Conditions Upon Issuance of Shares.
(a) Shares shall not be issued pursuant to the exercise of an Award unless
the exercise of such Award and the issuance and delivery of such Shares pursuant
thereto shall comply with all Applicable Laws, and shall be further subject to
the approval of counsel for the Company with respect to such compliance.
(b) As a condition to the exercise of an Award, the Company may require the
person exercising such Award to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any Applicable
Laws.
10. Adjustments Upon Changes in Capitalization. Subject to any required
action by the stockholders of the Company, the number of Shares covered by each
outstanding Award, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Awards have yet been granted or which
have been returned to the Plan, the exercise price of each such outstanding
Award, as well as any other terms that the Administrator determines require
adjustment shall be proportionately adjusted for any increase or decrease in the
number of issued Shares resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Shares, merger, consolidation,
acquisition of the property or equity securities of the Company, any separation
of the Company (including a spin-off or other distribution of equity securities
or property of the Company), reorganization (whether or not such reorganization
comes within the definition of Code Section 368), partial or complete
liquidation, or any other similar event resulting in an increase or decrease in
the number of issued Shares. Except as the Administrator determines, no issuance
by the Company of shares of stock of any class, or
<PAGE> 10
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason hereof shall be made with respect to, the number or price
of Shares subject to an Award.
11. Term of Plan. The Plan shall become effective upon the earlier to occur
of its adoption by the Board or its approval by the stockholders of the Company.
It shall continue in effect for a term of ten (10) years unless sooner
terminated.
12. Amendment, Suspension or Termination of the Plan.
(a) The Board may at any time amend, suspend or terminate the Plan. To the
extent necessary to comply with Applicable Laws, the Company shall obtain
stockholder approval of any Plan amendment in such a manner and to such a degree
as required.
(b) No Award may be granted during any suspension of the Plan or after
termination of the Plan.
(c) Any amendment, suspension or termination of the Plan (including
termination of the Plan under Section 11, above) shall not affect Awards already
granted, and such Awards shall remain in full force and effect as if the Plan
had not been amended, suspended or terminated, unless mutually agreed otherwise
between the Grantee and the Administrator, which agreement must be in writing
and signed by the Grantee and the Company.
13. Reservation of Shares.
(a) The Company, during the term of the Plan, will at all times reserve and
keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
(b) The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
14. No Effect on Terms of Employment/Consulting Relationship. The Plan shall
not confer upon any Grantee any right with respect to continuation of employment
or consulting relationship with the Company, nor shall it interfere in any way
with his or her right or the Company's right to terminate his or her employment
or consulting relationship at any time, with or without cause.
15. Stockholder Approval. The Plan became effective when adopted by the
Board on February 18, 1998. On March 19, 1998, the Board adopted and approved an
amendment and restatement of the Plan to increase the number of Shares available
for issuance under the Plan. The Plan as amended and restated was approved by
the stockholders of the Company as of April 10, 1998. On February 17, 2000, the
Board adopted and approved an amendment and restatement of the Plan (a) to
increase the number of Shares available for issuance under the Plan and (b) to
adopt a limit on the maximum number of Shares with respect to which Options may
be granted to any Grantee in any fiscal year of the Company and certain other
administrative provisions to comply with the performance-based compensation
exception to the deduction limit of Section 162(m) of the Code, which amendments
are subject to approval by the
<PAGE> 11
stockholders of the Company. The amendment and restatement of the Plan included
the following other amendments which are not subject to approval by the
stockholders of the Company. The Board approved amendments to the Plan (x) to
eliminate the authority to grant Awards other than Options, (y) to limit the
maximum term of each Award to eight (8) years and (z) to require that the
exercise price of Awards equal or exceed one hundred percent (100%) of the Fair
Market Value per Share on the date of grant.
<PAGE> 1
Exhibit 4.5
VERIO INC.
1998 NON-EMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
(Amended and Restated as of January 1, 2000)
1. Purposes of the Plan. The purposes of this stock incentive plan are to
attract and retain the best available Non-Employee Directors, to provide them
additional incentives, and to promote the success of the Company's business.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of the Committees appointed
to administer the Plan.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act.
(c) "Applicable Laws" means the legal requirements relating to the
administration of stock incentive plans, if any, under applicable provisions of
federal securities laws, state corporate and securities laws, the Code, the
rules of any applicable stock exchange or national market system, and the rules
of any foreign jurisdiction applicable to Awards granted to residents therein.
(d) "Award" means the grant of an Option, Restricted Stock, Shares or
other rights or benefits under the Plan.
(e) "Award Agreement" means the written agreement evidencing the grant
of an Award executed by the Company and the Grantee, including any amendments
thereto.
(f) "Board" means the Board of Directors of the Company.
(g) "Change in Control" means a change in ownership or control of the
Company effected through either of the following transactions:
(i) the direct or indirect acquisition by any person or related
group of persons (other than an acquisition from or by the Company or by a
Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities pursuant to
a tender or exchange offer made directly to the Company's stockholders which a
majority of the Continuing Directors who are not Affiliates or Associates of the
offeror do not recommend such stockholders accept, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) months or less such that a majority of the Board members
(rounded up to the next whole
1
<PAGE> 2
number) ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who are Continuing Directors.
(h) "Code" means the Internal Revenue Code of 1986, as amended.
(i) "Committee" means any committee appointed by the Board to
administer the Plan.
(j) "Common Stock" means the common stock of the Company.
(k) "Company" means Verio Inc., a Delaware corporation.
(l) "Consultant" means any person who is engaged by the Company or any
Related Entity to render consulting or advisory services as an independent
contractor and is compensated for such services.
(m) "Continuing Directors" means members of the Board who either (i)
have been Board members continuously for a period of at least thirty-six (36)
months or (ii) have been Board members for less than thirty-six (36) months and
were elected or nominated for election as Board members by at least a majority
of the Board members described in clause (i) who were still in office at the
time such election or nomination was approved by the Board.
(n) "Continuous Service" means that the Grantee's service as a Director
is not interrupted or terminated. The Continuous Service of a Grantee shall not
be considered interrupted or terminated in the case of (i) any approved leave of
absence or (ii) terminating service as a Director followed within thirty (30)
days of such termination by commencing service to the Company or a Related
Entity as an Employee or a Consultant until the time such service as an Employee
or Consultant is terminated. An approved leave of absence shall include sick
leave, military leave, or any other authorized personal leave.
(o) "Corporate Transaction" means any of the following transactions:
(i) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose of which is to
change the state in which the Company is incorporated;
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the capital stock of
the Company's subsidiary corporations) in connection with the complete
liquidation or dissolution of the Company;
(iii) any reverse merger in which the Company is the surviving
entity but in which securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities are
transferred to a person or persons different from those who held such securities
immediately prior to such merger; or
(iv) any person or related group of persons (other than the Company
or by a Company-sponsored employee benefit plan) who becomes the beneficial
owner (within the
2
<PAGE> 3
meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than
fifty percent (50%) of the total combined voting power of the Company's
outstanding securities (whether or not in a transaction also constituting a
Change in Control), but excluding any such transaction that the Administrator
determines shall not be a Corporate Transaction.
(p) "Director" means a member of the Board.
(q) "Disability" means that a Grantee is unable to serve as a Director
by reason of any medically determinable physical or mental impairment. A Grantee
will not be considered to have incurred a Disability unless he or she furnishes
proof of such condition sufficient to satisfy the Administrator, in its sole
discretion.
(r) "Employee" means any person, including an Officer or Director, who
is an employee of the Company or any Related Entity. The payment of a director's
fee by the Company shall not be sufficient to constitute "employment" by the
Company.
(s) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(t) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) Where there exists a public market for the Common Stock, the
Fair Market Value shall be (A) the closing price for a Share for the last market
trading day prior to the time of the determination (or, if no closing price was
reported on that date, on the last trading date on which a closing price was
reported) on the stock exchange determined by the Administrator to be the
primary market for the Common Stock or the Nasdaq National Market, whichever is
applicable or (B) if the Common Stock is not traded on any such exchange or
national market system, the average of the closing bid and asked prices of a
Share on the Nasdaq Small Cap Market for the day prior to the time of the
determination (or, if no such prices were reported on that date, on the last
date on which such prices were reported), in each case, as reported in The Wall
Street Journal or such other source as the Administrator deems reliable;
(ii) In the absence of an established market of the type described
in (i), above, for the Common Stock, the Fair Market Value thereof shall be
determined by the Administrator in good faith; or
(iii) On the Registration Date, the Fair Market Value shall be the
price at which the Board, or if applicable, the Pricing Committee of the Board,
and the underwriters agree to offer the Common Stock in the initial public
offering of the Common Stock, net of discounts and underwriting commissions.
(u) "Grantee" means a Non-Employee Director who receives an Award under
the Plan.
(v) "Non-Employee Director" means a Director who is not an Employee.
3
<PAGE> 4
(w) "Non-Qualified Stock Option" means an Option not intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(x) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(y) "Option" means a stock option granted pursuant to the Plan.
(z) "Plan" means this 1998 Non-Employee Director Stock Incentive Plan.
(aa) "Registration Date" means the effective date of the registration
statement for the sale of Common Stock to the general public filed with and
declared effective by the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
(bb) "Related Entity" means any parent, subsidiary and any business,
corporation, partnership, limited liability company or other entity in which the
Company, a parent or a subsidiary holds a substantial ownership interest,
directly or indirectly.
(cc) "Restricted Stock" means Shares issued under the Plan to the
Grantee for such consideration, if any, and subject to such restrictions on
transfer, rights of first refusal, repurchase provisions, forfeiture provisions,
and other terms and conditions as established under the Plan or by the
Administrator.
(dd) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act
or any successor thereto.
(ee) "Share" means a share of the Common Stock.
3. Stock Subject to the Plan.
(a) Subject to the provisions of Section 8, below, the maximum
aggregate number of Shares which may be issued pursuant to all Awards is
1,100,000 Shares. The Shares to be issued pursuant to Awards may be authorized,
but unissued, or reacquired Common Stock.
(b) Any Shares covered by an Award (or portion of an Award) which is
forfeited or canceled, expires or is settled in cash, shall be deemed not to
have been issued for purposes of determining the maximum aggregate number of
Shares which may be issued under the Plan. If any unissued Shares are retained
by the Company upon exercise of an Award in order to satisfy the exercise price
for such Award or any withholding taxes due with respect to such Award, such
retained Shares subject to such Award shall become available for future issuance
under the Plan (unless the Plan has terminated). Shares that actually have been
issued under the Plan pursuant to an Award shall not be returned to the Plan and
shall not become available for future issuance under the Plan, except that if
unvested Shares are forfeited, or repurchased by the Company at their original
purchase price, such Shares shall become available for future grant under the
Plan.
4. Administration of the Plan.
4
<PAGE> 5
(a) Plan Administrator.
(i) Administration. The Plan shall be administered by (A) the Board
or (B) a Committee designated by the Board, which Committee shall be constituted
in such a manner as to satisfy the Applicable Laws and to permit such grants and
related transactions under the Plan to be exempt from Section 16(b) of the
Exchange Act in accordance with Rule 16b-3. Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed by the
Board.
(ii) Administration Errors. In the event an Award is granted in a
manner inconsistent with the provisions of this subsection (a), such Award shall
be presumptively valid as of its grant date to the extent permitted by the
Applicable Laws.
(b) Powers of the Administrator. Subject to Applicable Laws and the
provisions of the Plan (including any other powers given to the Administrator
hereunder), and except as otherwise provided by the Board, the Administrator
shall have the authority, in its discretion:
(i) to approve forms of Award Agreement for use under the Plan;
(ii) to determine the terms and conditions consistent with the
terms of the Plan of any Award granted hereunder;
(iii) to amend the terms of any outstanding Award granted under the
Plan, including a reduction in the exercise price (or base amount on which
appreciation is measured) of any Award to reflect a reduction in the Fair Market
Value of the Common Stock since the grant date of the Award, provided that any
amendment that would adversely affect the Grantee's rights under an outstanding
Award shall not be made without the Grantee's written consent;
(iv) to construe and interpret the terms of the Plan and Awards
granted pursuant to the Plan; and
(v) to take such other action, not inconsistent with the terms of
the Plan, as the Administrator deems appropriate.
(c) Effect of Administrator's Decision. All decisions, determinations
and interpretations of the Administrator shall be conclusive and binding on all
persons.
5. Automatic Option Grant Program.
(a) Eligibility. Each Non-Employee Director shall be entitled to
receive Options to acquire shares of Common Stock upon the terms and conditions
of this Automatic Option Grant Program.
(b) Date of Grant and Number of Shares. A Non-Qualified Stock Option to
purchase 50,000 shares of Common Stock shall be granted automatically ("Initial
Grant") to each Non-Employee Director, such Initial Grant to be made (i) to the
then-existing Non-Employee
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Directors upon the Registration Date and (ii) to other Non-Employee Directors
elected or appointed to the Board after the Registration Date upon the date each
such Non-Employee Director first becomes a Non-Employee Director. In addition,
immediately following each annual meeting of the Company's stockholders, each
Non-Employee Director who continues as a Non-Employee Director following such
annual meeting shall be granted automatically a Non-Qualified Stock Option to
purchase 6,000 shares of Common Stock ("Subsequent Grant"); provided that no
Subsequent Grant shall be made to any Non-Employee Director who has not served
as a Director, as of the time of such annual meeting, for at least twelve (12)
months; provided, however, that any Director who was elected to the Board at the
previous annual meeting of the Company's stockholders shall be deemed to have
satisfied such service requirement even if such service totals fewer than twelve
(12) complete months. Each such Subsequent Grant shall be made on the date of
the annual stockholders' meeting in question.
(c) Vesting. Each Initial Grant shall vest and become exercisable as to
one-third (1/3) of the shares of Common Stock subject to such Option twelve (12)
months after the grant date and an additional one-third (1/3) of the shares of
Common Stock subject to such Option shall vest on each yearly anniversary of the
grant date thereafter, such that the Option will be fully exercisable three (3)
years after its date of grant. Each Subsequent Grant shall be fully vested and
exercisable as to all of the shares of Common Stock subject to such Option
twelve (12) months after the grant date of the Option.
(d) Corporate Transactions/Changes in Control.
(i) In the event of a Corporate Transaction, immediately prior to
the specified effective date of such Corporate Transaction, (A) each Initial
Grant which is at the time outstanding to the extent not vested automatically
shall vest and become exercisable as to a number of shares equal to one-third
(1/3) of the total number of shares of Common Stock subject to such Option and
(B) each Subsequent Grant which is at the time outstanding automatically shall
become fully vested and exercisable as to all of the shares of Common Stock
subject to such Option. Effective upon the consummation of the Corporate
Transaction, all outstanding Options under the Plan shall terminate. However,
all such Options shall not terminate if the Options are assumed by the successor
corporation or parent thereof in connection with the Corporate Transaction.
(ii) In the event of a Change in Control (other than a Change in
Control which also is a Corporate Transaction), immediately prior to the
specified effective date of such Change in Control, (A) each Initial Grant which
is at the time outstanding to the extent not vested automatically shall vest and
become exercisable as to a number of shares equal to one-third (1/3) of the
total number of shares of Common Stock subject to such Option and (B) each
Subsequent Grant which is at the time outstanding automatically shall become
fully vested and exercisable as to all of the shares of Common Stock subject to
such Option.
(e) Exercise of Option Following Termination of Service. In the event
of termination of a Grantee's Continuous Service for any reason other than
Disability or death, such Grantee may, but only within three (3) months after
the date of such termination (but in no event later than the expiration date of
the term of such Option as set forth in the Award Agreement),
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<PAGE> 7
exercise his or her Option to the extent that the Grantee was entitled to
exercise it at the date of such termination or to such other extent as may be
determined by the Administrator. If the Grantee should die within three (3)
months after the date of such termination, the Grantee's estate or the person
who acquired the right to exercise the Option by bequest or inheritance may
exercise the Option to the extent that the Grantee was entitled to exercise it
at the date of such termination within twelve (12) months of the Grantee's date
of death, but in no event later than the expiration date of the term of such
Option as set forth in the Award Agreement.
(f) Disability of Grantee. In the event of termination of a Grantee's
Continuous Service as a result of his or her Disability, such Grantee may, but
only within twelve (12) months from the date of such termination (and in no
event later than the expiration date of the term of such Option as set forth in
the Award Agreement), exercise the Option to the extent otherwise entitled to
exercise it at the date of such termination. To the extent that the Grantee is
not entitled to exercise the Option at the date of termination, or if Grantee
does not exercise such Option to the extent so entitled within the time
specified herein, the Option shall terminate.
(g) Death of Grantee. In the event of the death of a Grantee, the
Option may be exercised at any time within twelve (12) months following the date
of death (but in no event later than the expiration of the term of such Option
as set forth in the Award Agreement), by the Grantee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Grantee was entitled to exercise the Option at the date of
death. If, at the time of death, the Grantee was not entitled to exercise his or
her entire Option, the Shares covered by the unexercisable portion of the Option
shall immediately revert to the Plan. If, after death, the Grantee's estate or a
person who acquired the right to exercise the Option by bequest or inheritance
does not exercise the Option within the time specified herein, the Option shall
terminate.
(h) Term of Option. The term of each Option awarded under this
Automatic Option Grant Program shall be eight (8) years from the date of grant
thereof.
(i) Transferability of Option. Each Option awarded under this Automatic
Option Grant Program shall be transferable to the extent provided in the Award
Agreement.
(j) Exercise Price. The exercise price for each Option awarded under
this Automatic Option Grant Program shall be one hundred percent (100%) of the
Fair Market Value per Share on the date of grant.
(k) Consideration. Subject to Applicable Laws, the consideration to be
paid for the Shares to be issued upon exercise of an Option under this Automatic
Option Grant Program shall be the following:
(i) cash;
(ii) check;
(iii) surrender of Shares or delivery of a properly executed form
of attestation of ownership of Shares as the Administrator may require
(including withholding of
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Shares otherwise deliverable upon exercise of the Option) which have a Fair
Market Value on the date of surrender or attestation equal to the aggregate
exercise price of the Shares as to which said Option shall be exercised (but
only to the extent that such exercise of the Option would not result in an
accounting compensation charge with respect to the Shares used to pay the
exercise price unless otherwise determined by the Administrator);
(iv) delivery of a properly executed exercise notice together with
such other documentation as the Administrator and the broker, if applicable,
shall require to effect an exercise of the Option and delivery to the Company of
the sale or loan proceeds required to pay the exercise price; or
(v) any combination of the foregoing methods of payment.
6. Stock Fee Program.
(a) Eligibility. Each Non-Employee Director shall be eligible to elect
to apply all or any portion of the annual retainer fee and meeting fees
otherwise payable to such individual in cash to the acquisition of shares of
Common Stock upon the terms and conditions of this Stock Fee Program.
(b) Election Procedure.
(i) Filing. A Non-Employee Director must make a
stock-in-lieu-of-fee election prior to the start of the calendar year for which
the election is to be effective. The first calendar year for which any such
election may be filed shall be the 1999 calendar year. Each election, once
filed, shall be revocable prior to the start of the calendar year for which the
election is to be effective. Thereafter, the election is irrevocable. The
election for any upcoming calendar year may be filed at any time prior to the
start of that year, but in no event later than December 31 of the immediately
preceding calendar year. A Non-Employee Director may file a standing election to
be in effect for two (2) or more consecutive calendar years or to remain in
effect indefinitely until revoked by written instrument filed with the
Administrator prior to the start of the first calendar year for which such
standing election is no longer to remain in effect.
(ii) Election Form. The election must be filed with the
Administrator on the appropriate form provided for this purpose. On the election
form, a Non-Employee Director must indicate the percentage or dollar amount of
his or her annual retainer fee and/or his or her meeting fees to be applied to
the acquisition of Shares.
(c) Share Issuance.
(i) Issue Date for Annual Retainer Fee Shares. On the first trading
day following the date any portion of the annual retainer fee is otherwise due
to be paid, in a calendar year for which the election is effective, the portion
of the annual retainer fee subject to such election shall automatically be
applied to the acquisition of shares of Common Stock by dividing the elected
dollar amount by the Fair Market Value per Share. The number of issuable Shares
shall be rounded down to the next whole Share, and such Shares shall be issued
to the Non-Employee Director.
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(ii) Issue Date for Meeting Shares. On the first trading day
following any meeting, in a calendar year for which the election is effective,
the portion of the meeting fee subject to such election shall automatically be
applied to the acquisition of shares of Common Stock by dividing the elected
dollar amount by the Fair Market Value per Share. The number of issuable Shares
shall be rounded down to the next whole Share, and such Shares shall be issued
to the Non-Employee Director.
7. Conditions Upon Issuance of Shares.
(a) Satisfaction of Applicable Laws. Shares shall not be issued
pursuant to the exercise of an Award unless the exercise of such Award and the
issuance and delivery of such Shares pursuant thereto shall comply with all
Applicable Laws, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
(b) Investment Representation. As a condition to the exercise of an
Award, the Company may require the person exercising such Award to represent and
warrant at the time of any such exercise that the Shares are being purchased
only for investment and without any present intention to sell or distribute such
Shares if, in the opinion of counsel for the Company, such a representation is
required by any Applicable Laws.
(c) Taxes. No Shares shall be delivered under the Plan to any Grantee
or other person until such Grantee or other person has made arrangements
acceptable to the Administrator for the satisfaction of any foreign, federal,
state, or local income and employment tax withholding obligations. Upon exercise
of an Award, the Company shall withhold or collect from Grantee an amount
sufficient to satisfy such tax obligations.
8. Adjustments Upon Changes in Capitalization. Subject to any required
action by the stockholders of the Company, the number of Shares covered by each
outstanding Award, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Awards have yet been granted or which
have been returned to the Plan, the exercise price of each such outstanding
Award, as well as any other terms that the Administrator determines require
adjustment shall be proportionately adjusted for any increase or decrease in the
number of issued Shares resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Shares, merger, consolidation,
acquisition of the property or equity securities of the Company, any separation
of the Company (including a spin-off or other distribution of equity securities
or property of the Company), reorganization (whether or not such reorganization
comes within the definition of Code Section 368), partial or complete
liquidation, or any other similar event resulting in an increase or decrease in
the number of issued Shares. Except as the Administrator determines, no issuance
by the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason hereof
shall be made with respect to, the number or price of Shares subject to an
Award.
9. Effective Date and Term of Plan. The Plan shall become effective upon
the earlier to occur of its adoption by the Board or its approval by the
stockholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated. Awards may be granted under the Plan upon its
becoming effective.
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10. Amendment, Suspension or Termination of the Plan.
(a) The Board may at any time amend, suspend or terminate the Plan. To
the extent necessary to comply with Applicable Laws, the Company shall obtain
stockholder approval of any Plan amendment in such a manner and to such a degree
as required.
(b) No Award may be granted during any suspension of the Plan or after
termination of the Plan.
(c) Any amendment, suspension or termination of the Plan (including
termination of the Plan under Section 9, above) shall not affect Awards already
granted, and such Awards shall remain in full force and effect as if the Plan
had not been amended, suspended or terminated, unless mutually agreed otherwise
between the Grantee and the Administrator, which agreement must be in writing
and signed by the Grantee and the Company.
11. Reservation of Shares.
(a) The Company, during the term of the Plan, will at all times reserve
and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
(b) The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not have been
obtained.
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Exhibit 5.1
[MORRISON & FOERSTER LLP LETTERHEAD]
May 4, 2000
Verio Inc.
8005 South Chester Street
Suite 200
Englewood, Colorado 80112
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on May 4, 2000, and to be filed with the Securities and Exchange
Commission (the "SEC") in connection with the registration under the Securities
Act of 1933, as amended, of 7,500,000 additional shares of your common stock,
par value $.001 per share (the "Common Stock"), which will be issuable under the
Verio Inc. 1998 Stock Incentive Plan, as Amended and Restated on February 17,
2000 (the "Plan").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the adoption of the
Plan and the authorization of the issuance of the shares of Common Stock under
the Plan (the "Plan Shares") and such documents as we have deemed necessary to
render this opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when
issued and outstanding pursuant to the terms of the Plan, will be validly
issued, fully paid and non-assessable shares of Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ MORRISON & FOERSTER LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Verio Inc.:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG LLP
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KPMG LLP
Denver, Colorado
May 3, 2000
