<PAGE>
As filed with the Securities and Exchange Commission on March 19, 1998
Registration No. 333-____________
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------
DOUBLECLICK INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3870996
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
41 MADISON AVENUE, 32ND FLOOR
NEW YORK, NEW YORK 10010
(Address of principal executive offices) (Zip Code)
-----------
DOUBLECLICK INC.
1997 STOCK INCENTIVE PLAN
(Full title of the Plans)
-----------
KEVIN J. O'CONNOR
CHIEF EXECUTIVE OFFICER
DOUBLECLICK INC.
41 MADISON AVENUE, 32ND FLOOR
NEW YORK, NEW YORK 10010
(Name and address of Agent for service)
(212) 683-0001
(Telephone number, including area code, of agent for service)
-----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ---------- --------- ----- ---
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 3,000,000 shares $34.53 $103,590,000 $30,559.05
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the DoubleClick Inc. 1997 Stock
Incentive Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in
the number of the outstanding shares of the Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended (the "1933 Act"), on the basis of the
fair market value per share of the Registrant's Common Stock on March
17, 1998, as reported on the Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
DoubleClick Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed
with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Registration Statement No. 333-42323 on Form S-1
filed with the SEC on December 16, 1997, together with the
amendments thereto on Forms S-1/A filed with the SEC on December
24, 1997, January 27, 1997, February 17, 1998 and February 19,
1998;
(b) The Registrant's Registration Statement No. 333-47075 on Form S-1
filed with the SEC on February 19, 1998 pursuant to Rule 462(b) of
the 1933 Act;
(c) The Registrant's prospectus filed with the SEC on February 20, 1998
under SEC Rule 424(b) in connection with Registrant's Registration
Statement No. 333-42323 and Registration Statement No. 333-47075,
in which there is set forth the audited financial statements for
the Registrant's fiscal year ended December 31, 1997; and
(d) The Registrant's Registration Statement No. 000-23709 on Form 8-A
filed with the SEC on February 2, 1998 and amended on February 9,
1998, in which there is described the terms, rights and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold
or which de-registers all securities then remaining unsold shall be deemed to
be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein
or in any subsequently filed document which also is deemed to be incorporated
by reference herein 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
II-1
<PAGE>
The Registrant's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law
provides that directors of a corporation will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except
for liability for (i) any breach of their duty of loyalty to the corporation
or its stockholders, (ii) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) unlawful payments
of dividends or unlawful stock repurchases or redemptions as provided in
Section 174 of the Delaware General Corporation Law, or (iv) any transaction
from which the director derives an improper personal benefit.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and may indemnify its officers, employees and other agents to the
fullest extent permitted by law. The Registrant believes that
indemnification under its Bylaws covers at least negligence and gross
negligence on the part of an indemnified party in connection with the defense
of any action or proceeding arising out of such party's status or service as
a director, officer, employee or other agent of the Company upon an
undertaking by such party to repay such advances if it is ultimately
determined that such party is not entitled to indemnification.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders.
Reference is made to Registrant's Registration Statement
No. 000-23709 on Form 8-A, and the exhibits thereto, which
are incorporated herein by reference pursuant to Item 3(d).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
99.1 DoubleClick Inc. 1997 Stock Incentive Plan.
99.2 Form of Notice of Grant of Stock Option.
99.3 Form of Stock Option Agreement.
99.4 Form of Addendum to Stock Option Agreement (Partial
Acceleration Upon Change In Control)
99.5 Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Change In Control)
99.6 Form of Stock Issuance Agreement
99.7 Form of Addendum to Stock Issuance Agreement (Vesting
Acceleration Upon Change in Control and Determination of
Section 280G Limitation)
99.8 Form of Addendum to Stock Issuance Agreement (Involuntary
Termination Following Change In Control)
99.9 Form of Notice of Grant (Initial Grant)
99.10 Form of Notice of Grant (Annual Grant)
99.11 Form of Automatic Stock Option Agreement
II-2
<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 1933 Act, (ii) to reflect in the
prospectus any facts or events arising after the effective date of this
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 this Registration Statement and (iii) to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; PROVIDED, however, that
clauses (1)(i) and (1)(ii) shall not apply if the information required to be
included in a post-effective amendment by those clauses is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 Act each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and (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 Registrant's 1997 Stock Incentive Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this 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
1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item
6 or otherwise, the Registrant has been advised that, in the opinion of the
SEC, such indemnification is against public policy as expressed in the 1933
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all 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 New York, State of New
York on this 19th day of March, 1998.
DOUBLECLICK INC.
By: /s/ Kevin J. O'Connor
-----------------------------------
Kevin J. O'Connor
Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of DoubleClick Inc., a
Delaware corporation, do hereby constitute and appoint Kevin J. O'Connor and
Kevin P. Ryan and each of them, the lawful attorneys-in-fact and agents with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any
rules or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement. Without limiting
the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration
Statement, to any and all amendments, both pre-effective and post-effective,
and supplements to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms that all said attorneys and agents,
or any one of them, shall do or cause to be done by virtue hereof. This
Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Kevin J. O'Connor Chief Executive Officer and March 19, 1998
- -------------------------- Chairman of the Board of
Kevin J. O'Connor Directors (Principal
Executive Officer)
/s/ Kevin P. Ryan President and Chief Financial March 19, 1998
- -------------------------- Officer (Principal Financial
Kevin P. Ryan Officer)
II-4
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ Dwight A. Merriman Chief Technology Officer and March 19, 1998
- -------------------------- Director
Dwight A. Merriman
/s/ Stephen R. Collins Controller March 19, 1998
- -------------------------- (Principal Accounting Officer)
Stephen R. Collins
/s/ David N. Strohm Director March 19, 1998
- --------------------------
David N. Strohm
Director
- --------------------------
Mark E. Nunnelly
/s/ W. Grant Gregory Director March 19, 1998
- --------------------------
W. Grant Gregory
/s/ Donald Peppers Director March 19, 1998
- --------------------------
Donald Peppers
II-5
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders.
Reference is made to Registrant's Registration Statement
No. 000-23709 on Form 8-A, and the exhibits thereto, which
are incorporated herein by reference pursuant to Item 3(d).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
99.1 DoubleClick Inc. 1997 Stock Incentive Plan.
99.2 Form of Notice of Grant of Stock Option.
99.3 Form of Stock Option Agreement.
99.4 Form of Addendum to Stock Option Agreement (Partial
Acceleration Upon Change In Control)
99.5 Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Change In Control)
99.6 Form of Stock Issuance Agreement
99.7 Form of Addendum to Stock Issuance Agreement (Vesting
Acceleration Upon Change in Control and Determination of
Section 280G Limitation)
99.8 Form of Addendum to Stock Issuance Agreement (Involuntary
Termination Following Change In Control)
99.9 Form of Notice of Grant (Initial Grant)
99.10 Form of Notice of Grant (Annual Grant)
99.11 Form of Automatic Stock Option Agreement
<PAGE>
EXHIBIT 5
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP
March 19, 1998
DoubleClick Inc.
41 Madison Avenue, 32nd Floor
New York, NY 10010
Re: DoubleClick Inc. - Registration Statement for Offering of
3,000,000 Shares of Common Stock
---------------------------------------------------------
Dear Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of 3,000,000 shares of Common
Stock of the Company available for issuance under the DoubleClick Inc. 1997
Stock Incentive Plan ("the Plan"). We advise you that, in our opinion, when
such shares have been issued and sold pursuant to the applicable provisions
of the Plan and in accordance with the Registration Statement, such shares
will be validly issued, fully paid and nonassessable shares of the Company's
Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Brobeck, Phleger & Harrison
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 10, 1998, which appears in
the Prospectus constituting part of the Registration Statement on Form S-1
(No. 333-42323) and which is incorporated by reference in the Registration
Statement on Form S-1 (No. 333-47075) filed pursuant to Rule 462(b). We also
consent to the incorporation by reference the application of such report on
the Financial Statement Schedules for the period from January 23, 1996
(inception) to December 31, 1996 and for the year ended December 31, 1997
listed under Item 16(b) of the Registration Statement when such schedules are
read in conjunction with the financial statements referred to in our report.
The audits referred to in such report also included these schedules.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
New York, New York
March 18, 1998
<PAGE>
Exhibit 99.1
DOUBLECLICK INC
1997 STOCK INCENTIVE PLAN
(Amended and Restated as of December 15, 1997)
ARTICLE ONE
GENERAL PROVISIONS
I. PURPOSE OF THE PLAN
This 1997 Stock Incentive Plan is intended to promote the interests
of DoubleClick Inc., a Delaware corporation, by providing eligible persons
with the opportunity to acquire a proprietary interest, or otherwise increase
their proprietary interest, in the Corporation as an incentive for them to
remain in the service of the Corporation.
Capitalized terms shall have the meanings assigned to such terms in
the attached Appendix.
II. STRUCTURE OF THE PLAN
A. The Plan shall be divided into three separate equity programs:
(i) the Discretionary Option Grant Program under which
eligible persons may, at the discretion of the Plan Administrator, be granted
options to purchase shares of Common Stock,
(ii) the Stock Issuance Program under which eligible
persons may, at the discretion of the Plan Administrator, be issued shares of
Common Stock directly, either through the immediate purchase of such shares
or as a bonus for services rendered the Corporation (or any Parent or
Subsidiary), and
(iii) the Automatic Option Grant Program under which
eligible non-employee Board members shall automatically receive option grants
at periodic intervals to purchase shares of Common Stock.
B. The provisions of Articles One and Five shall apply to all
equity programs under the Plan and shall govern the interests of all persons
under the Plan.
III. ADMINISTRATION OF THE PLAN
A. Prior to the Section 12 Registration Date, the Discretionary
Option Grant and Stock Issuance Programs shall be administered by the Board.
Beginning with the Section 12 Registration Date, the Primary Committee shall
have sole and exclusive authority to administer the Discretionary Option
Grant and Stock Issuance Programs with respect to Section 16 Insiders.
<PAGE>
B. Administration of the Discretionary Option Grant and Stock
Issuance Programs with respect to all other persons eligible to participate
in those programs may, at the Board's discretion, be vested in the Primary
Committee or a Secondary Committee, or the Board may retain the power to
administer those programs with respect to all such persons.
C. Members of the Primary Committee or any Secondary Committee
shall serve for such period of time as the Board may determine and may be
removed by the Board at any time. The Board may also at any time terminate
the functions of any Secondary Committee and reassume all powers and
authority previously delegated to such committee.
D. Each Plan Administrator shall, within the scope of its
administrative functions under the Plan, have full power and authority
(subject to the provisions of the Plan) to establish such rules and
regulations as it may deem appropriate for proper administration of the
Discretionary Option Grant and Stock Issuance Programs and to make such
determinations under, and issue such interpretations of, the provisions of
such programs and any outstanding options or stock issuances thereunder as it
may deem necessary or advisable. Decisions of the Plan Administrator within
the scope of its administrative functions under the Plan shall be final and
binding on all parties who have an interest in the Discretionary Option Grant
and Stock Issuance Programs under its jurisdiction or any option grants or
stock issuance thereunder.
E. Service on the Primary Committee or the Secondary Committee
shall constitute service as a Board member, and members of each such
committee shall accordingly be entitled to full indemnification and
reimbursement as Board members for their service on such committee. No
member of the Primary Committee or the Secondary Committee shall be liable
for any act or omission made in good faith with respect to the Plan or any
option grants or stock issuances under the Plan.
F. Administration of the Automatic Option Grant Program shall be
self-executing in accordance with the terms of that program, and no Plan
Administrator shall exercise any discretionary functions with respect to any
option grants or stock issuances made under that program.
IV. ELIGIBILITY
A. The persons eligible to participate in the Discretionary
Option Grant and Stock Issuance Programs are as follows:
(i) Employees,
(ii) non-employee members of the Board or the board of
directors of any Parent or Subsidiary, and
2.
<PAGE>
(iii) consultants and other independent advisors who
provide services to the Corporation (or any Parent or Subsidiary).
B. Each Plan Administrator shall, within the scope of its
administrative jurisdiction under the Plan, have full authority to determine,
(i) with respect to the option grants under the Discretionary Option Grant
Program, which eligible persons are to receive option grants, the time or
times when such option grants are to be made, the number of shares to be
covered by each such grant, the status of the granted option as either an
Incentive Option or a Non-Statutory Option, the time or times when each
option is to become exercisable, the vesting schedule (if any) applicable to
the option shares and the maximum term for which the option is to remain
outstanding and (ii) with respect to stock issuances under the Stock Issuance
Program, which eligible persons are to receive stock issuances, the time or
times when such issuances are to be made, the number of shares to be issued
to each Participant, the vesting schedule (if any) applicable to the issued
shares and the consideration for such shares.
C. The Plan Administrator shall have the absolute discretion
either to grant options in accordance with the Discretionary Option Grant
Program or to effect stock issuances in accordance with the Stock Issuance
Program.
D. The individuals who shall be eligible to participate in the
Automatic Option Grant Program shall be limited to (i) those individuals
serving as non-employee Board members on the Underwriting Date, (ii) those
individuals who first become non-employee Board members after the
Underwriting Date, whether through appointment by the Board or election by
the Corporation's stockholders, and (iii) those individuals who continue to
serve as non-employee Board members at one or more Annual Stockholder
Meetings held in calendar years following the calendar year of the
Underwriting Date. A non-employee Board member who has previously been in
the employ of the Corporation (or any Parent or Subsidiary) shall not be
eligible to receive an option grant under the Automatic Option Grant Program
at the time he or she first becomes a non-employee Board member, but shall be
eligible to receive periodic option grants under the Automatic Option Grant
Program while he or she continues to serve as a non-employee Board member.
V. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including shares
repurchased by the Corporation on the open market. The maximum number of
shares of Common Stock initially reserved for issuance over the term of the
Plan shall not exceed 3,000,000 shares(1). Such authorized share reserve is
comprised of (i) the number of shares which remain available for issuance, as
of the Plan Effective Date, under the Predecessor Plan as last approved by
the Corporation's stockholders,
(1) Adjusted to reflect a two-for-one reverse split of the Common Stock
effected December 15, 1997.
3.
<PAGE>
including the shares subject to the outstanding options to be incorporated
into the Plan and the additional shares which would otherwise be available
for future grant, plus (ii) an additional increase of approximately 1.55
million shares(1) authorized by the Board but subject to stockholder approval
prior to the Section 12 Registration Date.
B. The number of shares of Common Stock available for issuance
under the Plan shall automatically increase on the first trading day of each
calendar year during the term of the Plan, beginning with the 1999 calendar
year, by an amount equal to three percent (3%) of the shares of Common Stock
outstanding on the last trading day of the immediately preceding calendar
year. No Incentive Options may be granted on the basis of the additional
shares of Common Stock resulting from such annual increases.
C. No one person participating in the Plan may receive options
and direct stock issuances for more than 375,000 shares(1) of Common Stock in
the aggregate per calendar year, beginning with the 1998 calendar year.
D. Shares of Common Stock subject to outstanding options
(including options incorporated into this Plan from the Predecessor Plan)
shall be available for subsequent issuance under the Plan to the extent (i)
those options expire or terminate for any reason prior to exercise in full or
(ii) the options are cancelled in accordance with cancellation-regrant
provisions of Article Two. Unvested shares issued under the Plan and
subsequently cancelled or repurchased by the Corporation, at the original
exercise or issue price paid per share, pursuant to the Corporation's
repurchase rights under the Plan shall be added back to the number of shares
of Common Stock reserved for issuance under the Plan and shall accordingly be
available for reissuance through one or more subsequent option grants or
direct stock issuances under the Plan. However, should the exercise price of
an option under the Plan be paid with shares of Common Stock or should shares
of Common Stock otherwise issuable under the Plan be withheld by the
Corporation in satisfaction of the withholding taxes incurred in connection
with the exercise of an option or the vesting of a stock issuance under the
Plan, then the number of shares of Common Stock available for issuance under
the Plan shall be reduced by the gross number of shares for which the option
is exercised or which vest under the stock issuance, and not by the net
number of shares of Common Stock issued to the holder of such option or stock
issuance.
E. If any change is made to the Common Stock by reason of any
stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other change affecting the outstanding Common Stock as
a class without the Corporation's receipt of consideration, appropriate
adjustments shall be made to (i) the maximum number and/or class of
securities issuable under the Plan, (ii) the number and/or class of
securities for which any one person may be granted stock options and direct
stock issuances under this Plan per calendar year, (iii) the number and/or
class of securities for which grants are subsequently to be made under the
Automatic Option Grant Program to new and continuing non-employee Board
members, (iv) the number and/or class of securities and the exercise price
per share in effect under each outstanding option under the Plan and (v) the
number and/or class of securities and price per share in effect
(1) Adjusted to reflect a two-for-one reverse split of the Common Stock
effected December 15, 1997.
4.
<PAGE>
under each outstanding option incorporated into this Plan from the
Predecessor Plan. Such adjustments to the outstanding options are to be
effected in a manner which shall preclude the enlargement or dilution of
rights and benefits under such options. The adjustments determined by the
Plan Administrator shall be final, binding and conclusive.
5.
<PAGE>
ARTICLE TWO
DISCRETIONARY OPTION GRANT PROGRAM
I. OPTION TERMS
Each option shall be evidenced by one or more documents in the form
approved by the Plan Administrator; PROVIDED, however, that each such
document shall comply with the terms specified below. Each document
evidencing an Incentive Option shall, in addition, be subject to the
provisions of the Plan applicable to such options.
A. EXERCISE PRICE.
1. The exercise price per share shall be fixed by the Plan
Administrator but shall not be less than eighty-five percent (85%) of the
Fair Market Value per share of Common Stock on the option grant date.
2. The exercise price shall become immediately due upon
exercise of the option and shall, subject to the provisions of Section I of
Article Five and the documents evidencing the option, be payable in cash or
check made payable to the Corporation. Should the Common Stock be registered
under Section 12 of the 1934 Act at the time the option is exercised, then
the exercise price may also be paid as follows:
(i) in shares of Common Stock held for the requisite
period necessary to avoid a charge to the Corporation's earnings for
financial reporting purposes and valued at Fair Market Value on the
Exercise Date, or
(ii) to the extent the option is exercised for vested
shares, through a special sale and remittance procedure pursuant to
which the Optionee shall concurrently provide irrevocable instructions
(A) to a Corporation-designated brokerage firm to effect the immediate
sale of the purchased shares and remit to the Corporation, out of the
sale proceeds available on the settlement date, sufficient funds to
cover the aggregate exercise price payable for the purchased shares plus
all applicable Federal, state and local income and employment taxes
required to be withheld by the Corporation by reason of such exercise
and (B) to the Corporation to deliver the certificates for the purchased
shares directly to such brokerage firm in order to complete the sale.
Except to the extent such sale and remittance procedure is
utilized, payment of the exercise price for the purchased shares must be made
on the Exercise Date.
6.
<PAGE>
B. EXERCISE AND TERM OF OPTIONS. Each option shall be
exercisable at such time or times, during such period and for such number of
shares as shall be determined by the Plan Administrator and set forth in the
documents evidencing the option. However, no option shall have a term in
excess of ten (10) years measured from the option grant date.
C. EFFECT OF TERMINATION OF SERVICE.
1. The following provisions shall govern the exercise of any
options held by the Optionee at the time of cessation of Service or death:
(i) Any option outstanding at the time of the Optionee's
cessation of Service for any reason shall remain exercisable for such
period of time thereafter as shall be determined by the Plan
Administrator and set forth in the documents evidencing the option, but
no such option shall be exercisable after the expiration of the option
term.
(ii) Any option exercisable in whole or in part by the
Optionee at the time of death may be subsequently exercised by the
personal representative of the Optionee's estate or by the person or
persons to whom the option is transferred pursuant to the Optionee's
will or in accordance with the laws of descent and distribution.
(iii) Should the Optionee's Service be terminated for
Misconduct, then all outstanding options held by the Optionee shall
terminate immediately and cease to be outstanding.
(iv) During the applicable post-Service exercise period,
the option may not be exercised in the aggregate for more than the
number of vested shares for which the option is exercisable on the date
of the Optionee's cessation of Service. Upon the expiration of the
applicable exercise period or (if earlier) upon the expiration of the
option term, the option shall terminate and cease to be outstanding for
any vested shares for which the option has not been exercised. However,
the option shall, immediately upon the Optionee's cessation of Service,
terminate and cease to be outstanding to the extent the option is not
otherwise at that time exercisable for vested shares.
2. The Plan Administrator shall have complete discretion,
exercisable either at the time an option is granted or at any time while the
option remains outstanding, to:
7.
<PAGE>
(i) extend the period of time for which the option is to
remain exercisable following the Optionee's cessation of Service from
the limited exercise period otherwise in effect for that option to such
greater period of time as the Plan Administrator shall deem appropriate,
but in no event beyond the expiration of the option term, and/or
(ii) permit the option to be exercised, during the
applicable post-Service exercise period, not only with respect to the
number of vested shares of Common Stock for which such option is
exercisable at the time of the Optionee's cessation of Service but also
with respect to one or more additional installments in which the
Optionee would have vested had the Optionee continued in Service.
D. STOCKHOLDER RIGHTS. The holder of an option shall have no
stockholder rights with respect to the shares subject to the option until
such person shall have exercised the option, paid the exercise price and
become a holder of record of the purchased shares.
E. REPURCHASE RIGHTS. The Plan Administrator shall have the
discretion to grant options which are exercisable for unvested shares of
Common Stock. Should the Optionee cease Service while holding such unvested
shares, the Corporation shall have the right to repurchase, at the exercise
price paid per share, any or all of those unvested shares. The terms upon
which such repurchase right shall be exercisable (including the period and
procedure for exercise and the appropriate vesting schedule for the purchased
shares) shall be established by the Plan Administrator and set forth in the
document evidencing such repurchase right. Prior to the Section 12
Registration Date, the Plan Administrator may not impose a vesting schedule
upon any option grant or the shares of Common Stock subject to that option
which is more restrictive than twenty percent (20%) per year vesting, with
the initial vesting to occur not later than one (1) year after the option
grant date. However, such limitation shall not be applicable to any option
grants made to individuals who are officers of the Corporation, non-employee
Board members or independent consultants.
F. LIMITED TRANSFERABILITY OF OPTIONS. During the lifetime of
the Optionee, Incentive Options shall be exercisable only by the Optionee and
shall not be assignable or transferable other than by will or by the laws of
descent and distribution following the Optionee's death. However, a
Non-Statutory Option may, in connection with the Optionee's estate plan, be
assigned in whole or in part during the Optionee's lifetime to one or more
members of the Optionee's immediate family or to a trust established
exclusively for one or more such family members. The assigned portion may
only be exercised by the person or persons who acquire a proprietary interest
in the option pursuant to the assignment. The terms applicable to the
assigned portion shall be the same as those in effect for the option
immediately prior to such assignment and shall be set forth in such documents
issued to the assignee as the Plan Administrator may deem appropriate.
8.
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II. INCENTIVE OPTIONS
The terms specified below shall be applicable to all Incentive
Options. Except as modified by the provisions of this Section II, all the
provisions of Articles One, Two and Five shall be applicable to Incentive
Options. Options which are specifically designated as Non-Statutory Options
when issued under the Plan shall NOT be subject to the terms of this Section
II.
A. ELIGIBILITY. Incentive Options may only be granted to
Employees.
B. EXERCISE PRICE. The exercise price per share shall not be
less than the Fair Market Value per share of Common Stock on the option grant
date.
C. DOLLAR LIMITATION. The aggregate Fair Market Value of the
shares of Common Stock (determined as of the respective date or dates of
grant) for which one or more options granted to any Employee under the Plan
(or any other option plan of the Corporation or any Parent or Subsidiary) may
for the first time become exercisable as Incentive Options during any one
calendar year shall not exceed the sum of One Hundred Thousand Dollars
($100,000). To the extent the Employee holds two (2) or more such options
which become exercisable for the first time in the same calendar year, the
foregoing limitation on the exercisability of such options as Incentive
Options shall be applied on the basis of the order in which such options are
granted.
D. 10% STOCKHOLDER. If any Employee to whom an Incentive Option
is granted is a 10% Stockholder, then the exercise price per share shall not
be less than one hundred ten percent (110%) of the Fair Market Value per
share of Common Stock on the option grant date, and the option term shall not
exceed five (5) years measured from the option grant date.
III. CHANGE IN CONTROL
A. Each option outstanding at the time of a Change in Control but
not otherwise fully exercisable shall automatically accelerate so that each
such option shall, immediately prior to the effective date of the Change in
Control, become exercisable for all of the shares of Common Stock at the time
subject to that option and may be exercised for any or all of those shares as
fully-vested shares of Common Stock. However, an outstanding option shall
not become exercisable on such an accelerated if and to the extent: (i) such
option is, in connection with the Change in Control, to be assumed or
otherwise continued in full force or effect by the successor corporation (or
parent thereof) pursuant to the terms of the Change in Control transaction,
(ii) such option is to be replaced with a cash incentive program of the
successor corporation which preserves the spread existing at the time of the
Corporate Transaction on the shares of Common Stock for which the option is
not otherwise at that time exercisable and provides for subsequent payout in
accordance with the same vesting schedule applicable to those option shares
or (iii) the acceleration of such option is subject to other limitations
imposed by the Plan Administrator at the time of the option grant.
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B. All outstanding repurchase rights shall also terminate
automatically, and the shares of Common Stock subject to those terminated
rights shall immediately vest in full, in the event of any Change in Control,
except to the extent: (i) those repurchase rights are to be assigned to the
successor corporation (or parent thereof) or (ii) such accelerated vesting is
precluded by other limitations imposed by the Plan Administrator at the time
the repurchase right is issued.
C. Immediately following the consummation of the Change in
Control, all outstanding options shall terminate and cease to be outstanding,
except to the extent assumed by the successor corporation (or parent thereof)
or otherwise expressly continued in full force and effect pursuant to the
terms of the Change in Control transaction.
D. Each option which is assumed (or is otherwise to continue in
effect) in connection with a Change in Control shall be appropriately
adjusted, immediately after such Change in Control, to apply to the number
and class of securities which would have been issuable to the Optionee in
consummation of such Change in Control had the option been exercised
immediately prior to such Change in Control. Appropriate adjustments to
reflect such Change in Control shall also be made to (i) the exercise price
payable per share under each outstanding option, PROVIDED the aggregate
exercise price payable for such securities shall remain the same, (ii) the
maximum number and/or class of securities available for issuance over the
remaining term of the Plan and (iii) the maximum number and/or class of
securities for which any one person may be granted stock options and direct
stock issuances under the Plan per calendar year.
E. The Plan Administrator shall have full power and authority
exercisable, either at the time the option is granted or at any time while
the option remains outstanding, to provide for the accelerated vesting, in
whole or in part, of one or more outstanding options under the Discretionary
Option Grant Program automatically upon the occurrence of a Change in
Control, whether or not those options are to be assumed or otherwise
continued in full force and effect pursuant to the express terms of the
Change in Control transaction. In addition, the Plan Administrator may
structure one or more of the Corporation's repurchase rights under the
Discretionary Option Grant Program so that those rights shall immediately
terminate, in whole or in part, at the time of a Change in Control and shall
not be assignable to the successor corporation (or parent thereof), and the
shares subject to those terminated repurchase rights shall accordingly vest
in full at the time of such Change in Control.
F. The Plan Administrator shall have full power and authority
exercisable, either at the time the option is granted or at any time while
the option remains outstanding, to provide for the accelerated vesting, in
whole or in part, of one or more outstanding options under the Discretionary
Option Grant Program upon the Involuntary Termination of the Optionee's
Service within a designated period (not to exceed twelve (12) months)
following the effective date of any Change in Control in which those options
do not otherwise accelerate. In addition, the Plan Administrator may
structure one or more of the Corporation's repurchase rights under
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the Discretionary Option Grant Program so that those rights will immediately
terminate at the time of such Involuntary Termination, and the shares subject
to those terminated repurchase rights shall accordingly vest in full at that
time.
G. The portion of any Incentive Option accelerated in connection
with a Change in Control shall remain exercisable as an Incentive Option only
to the extent the applicable One Hundred Thousand Dollar limitation is not
exceeded. To the extent such dollar limitation is exceeded, the accelerated
portion of such option shall be exercisable as a Non-Statutory Option under
the Federal tax laws.
H. The outstanding options shall in no way affect the right of
the Corporation to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
IV. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any
time and from time to time, with the consent of the affected option holders,
the cancellation of any or all outstanding options under the Discretionary
Option Grant Program (including outstanding options incorporated from the
Predecessor Plan) and to grant in substitution new options covering the same
or different number of shares of Common Stock but with an exercise price per
share based on the Fair Market Value per share of Common Stock on the new
grant date.
11.
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ARTICLE THREE
STOCK ISSUANCE PROGRAM
V. STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock Issuance
Program through direct and immediate issuances without any intervening option
grants. Each such stock issuance shall be evidenced by a Stock Issuance
Agreement which complies with the terms specified below. Shares of Common
Stock may also be issued under the Stock Issuance Program pursuant to share
right awards which entitle the recipients to receive those shares upon the
attainment of designated performance goals.
A. PURCHASE PRICE.
1. The purchase price per share of Common Stock subject to
direct issuance shall be fixed by the Plan Administrator, but shall not be
less than one hundred percent (100%) of the Fair Market Value per share of
Common Stock on the issuance date.
2. Shares of Common Stock may be issued under the Stock
Issuance Program for any of the following items of consideration which the
Plan Administrator may deem appropriate in each individual instance:
(i) cash or check made payable to the Corporation, or
(ii) past services rendered to the Corporation (or any
Parent or Subsidiary).
B. VESTING/ISSUANCE PROVISIONS.
1. The Plan Administrator may issue shares of Common Stock
under the Stock Issuance Program which are fully and immediately vested upon
issuance or which are to vest in one or more installments over the
Participant's period of Service or upon attainment of specified performance
objectives. Alternatively, the Plan Administrator may issue share right
awards under the Stock Issuance Program which shall entitle the recipient to
receive a specified number of shares of Common Stock upon the attainment of
one or more performance goals established by the Plan Administrator. Upon
the attainment of such performance goals, fully-vested shares of Common Stock
shall be issued in satisfaction of those share right awards. However, prior
to the Section 12 Registration Date, the Plan Administrator may not impose a
vesting schedule upon any stock issuance or share rights award effected under
the Stock Issuance Program which is more restrictive than twenty percent
(20%) per year vesting, with initial vesting to occur not later than one (1)
year after the issuance date. Such limitation shall not apply to any
12.
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Common Stock issuances made to the officers of the Corporation, non-employee
Board members or independent consultants.
2. Any new, substituted or additional securities or other
property (including money paid other than as a regular cash dividend) which
the Participant may have the right to receive with respect to his or her
unvested shares of Common Stock by reason of any stock dividend, stock split,
recapitalization, combination of shares, exchange of shares or other change
affecting the outstanding Common Stock as a class without the Corporation's
receipt of consideration shall be issued subject to (i) the same vesting
requirements applicable to the Participant's unvested shares of Common Stock
and (ii) such escrow arrangements as the Plan Administrator shall deem
appropriate.
3. The Participant shall have full stockholder rights with
respect to any shares of Common Stock issued to the Participant under the
Stock Issuance Program, whether or not the Participant's interest in those
shares is vested. Accordingly, the Participant shall have the right to vote
such shares and to receive any regular cash dividends paid on such shares.
4. Should the Participant cease to remain in Service while
holding one or more unvested shares of Common Stock issued under the Stock
Issuance Program or should the performance objectives not be attained with
respect to one or more such unvested shares of Common Stock, then those
shares shall be immediately surrendered to the Corporation for cancellation,
and the Participant shall have no further stockholder rights with respect to
those shares. To the extent the surrendered shares were previously issued to
the Participant for consideration paid in cash or cash equivalent (including
the Participant's purchase-money indebtedness), the Corporation shall repay
to the Participant the cash consideration paid for the surrendered shares and
shall cancel the unpaid principal balance of any outstanding purchase-money
note of the Participant attributable to the surrendered shares.
5. The Plan Administrator may in its discretion waive the
surrender and cancellation of one or more unvested shares of Common Stock (or
other assets attributable thereto) which would otherwise occur upon the
cessation of the Participant's Service or the non-attainment of the
performance objectives applicable to those shares. Such waiver shall result
in the immediate vesting of the Participant's interest in the shares of
Common Stock as to which the waiver applies. Such waiver may be effected at
any time, whether before or after the Participant's cessation of Service or
the attainment or non-attainment of the applicable performance objectives.
6. Outstanding share right awards under the Stock Issuance
Program shall automatically terminate, and no shares of Common Stock shall
actually be issued in satisfaction of those awards, if the performance goals
established for such awards are not attained. The Plan Administrator,
however, shall have the discretionary authority to issue shares of Common
Stock in satisfaction of one or more outstanding share right awards as to
which the designated performance goals are not attained.
13.
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VI. CHANGE IN CONTROL
A. All of the Corporation's outstanding repurchase rights under
the Stock Issuance Program shall terminate automatically, and all the shares
of Common Stock subject to those terminated rights shall immediately vest in
full, in the event of any Change in Control, except to the extent (i) those
repurchase rights are to be assigned to the successor corporation (or parent
thereof) or are otherwise to continue in full force and effect pursuant to
the express terms of the Change in Control transaction or (ii) such
accelerated vesting is precluded by other limitations imposed in the Stock
Issuance Agreement.
B. The Plan Administrator shall have the discretionary authority,
exercisable either at the time the unvested shares are issued or any time
while the Corporation's repurchase rights remain outstanding under the Stock
Issuance Program, to provide that those rights shall automatically terminate
in whole or in part upon the occurrence of a Change in Control and shall not
be assignable to the successor corporation (or parent thereof), and the
shares of Common Stock subject to those terminated rights shall immediately
vest at the time of such Change in Control.
C. The Plan Administrator shall have the discretionary authority,
exercisable either at the time the unvested shares are issued or any time
while the Corporation's repurchase rights remain outstanding under the Stock
Issuance Program, to provide that those rights shall automatically terminate
in whole or in part, and the shares of Common Stock subject to those
terminated rights shall immediately vest upon the Involuntary Termination of
the Participant's Service within a designated period (not to exceed twelve
(12) months) following the effective date of any Change in Control in which
those repurchase rights are assigned to the successor corporation (or parent
thereof).
VII. SHARE ESCROW/LEGENDS
Unvested shares may, in the Plan Administrator's discretion, be
held in escrow by the Corporation until the Participant's interest in such
shares vests or may be issued directly to the Participant with restrictive
legends on the certificates evidencing those unvested shares.
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ARTICLE FOUR
AUTOMATIC OPTION GRANT PROGRAM
I. OPTION TERMS
A. GRANT DATES. Option grants shall be made on the dates
specified below:
1. Each individual serving as a non-employee Board member on
the Underwriting Date shall automatically be granted at that time a
Non-Statutory Option to purchase 5,000 shares(1) of Common Stock.
2. Each individual who is first elected or appointed as a
non-employee Board member at any time after the Underwriting Date shall
automatically be granted, on the date of such initial election or
appointment, a Non-Statutory Option to purchase 25,000 shares(1) of Common
Stock, provided that individual has not previously been in the employ of the
Corporation or any Parent or Subsidiary.
3. On the date of each Annual Stockholders Meeting,
beginning with the Annual Meeting held in the first calendar year after the
calendar year of the Underwriting Date, each individual who is to continue to
serve as an Eligible Director, whether or not that individual is standing for
re-election to the Board at that particular Annual Meeting, shall
automatically be granted a Non-Statutory Option to purchase 5,000 shares(1)
of Common Stock, provided such individual has served as a non-employee Board
member for at least six (6) months. There shall be no limit on the number of
such 5,000-share option grants any one Eligible Director may receive over his
or her period of Board service, and non-employee Board members who have
previously been in the employ of the Corporation (or any Parent or
Subsidiary) shall be eligible to receive one or more such annual option
grants over their period of continued Board service.
B. EXERCISE PRICE.
1. The exercise price per share shall be equal to one
hundred percent (100%) of the Fair Market Value per share of Common Stock on
the option grant date.
2. The exercise price shall be payable in one or more of the
alternative forms authorized under the Discretionary Option Grant Program.
Except to the extent the sale and remittance procedure specified thereunder
is utilized, payment of the exercise price for the purchased shares must be
made on the Exercise Date.
C. OPTION TERM. Each option shall have a term of ten (10) years
measured from the option grant date.
(1) Adjusted to reflect a two-for-one reverse split of the Common Stock
effected December 15, 1997.
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D. EXERCISE AND VESTING OF OPTIONS. Each option shall be
immediately exercisable for any or all of the option shares. However, any
shares purchased under the option shall be subject to repurchase by the
Corporation, at the exercise price paid per share, upon the Optionee's
cessation of Board service prior to vesting in those shares. Each initial
25,000-share(1) grant shall vest, and the Corporation's repurchase right
shall lapse, in a series of four (4) successive equal annual installments
upon the Optionee's completion of each year of Board service over the four
(4)-year period measured from the option grant date. Each annual
5,000-share(1) grant shall vest, and the Corporation's repurchase right shall
lapse, upon the Optionee's completion of one (1) year of Board service
measured from the automatic grant date.
E. TERMINATION OF BOARD SERVICE. The following provisions shall
govern the exercise of any options held by the Optionee at the time the
Optionee ceases to serve as a Board member:
(i) The period of exercising the option shall be limited
to a twelve (12)-month period measured from the date of the Optionee's
cessation of Board service.
(ii) During the twelve (12)-month exercise period, the
option may not be exercised in the aggregate for more than the number of
shares of Common Stock in which the Optionee is vested at time of his or
her cessation of Board service.
(iii) Should the Optionee cease to serve as a Board member
by reason of death or Permanent Disability, then all shares at the time
subject to the option shall immediately vest so that such option may,
during the twelve (12)-month exercise period following such cessation of
Board service, be exercised for all or any portion of those shares as
fully-vested shares of Common Stock.
(iv) In no event shall the option remain exercisable
after the expiration of the option term.
(v) Upon the expiration of the twelve (12)-month
exercise period or (if earlier) upon the expiration of the option term,
the option shall terminate and cease to be outstanding for any vested
shares for which the option has not been exercised. However, the option
shall, immediately upon the Optionee's cessation of Board service for
any reason other than death or Permanent Disability, terminate and cease
to be outstanding for any and all option shares in which the Optionee is
not otherwise at that time vested.
(1) Adjusted to reflect a two-for-one reverse split of the Common Stock
effected December 15, 1997.
16.
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II. CHANGE IN CONTROL
A. The shares of Common Stock at the time subject to each option
outstanding at the time of a Change in Control but not otherwise vested shall
automatically vest in full so that each such option shall, immediately prior
to the effective date of the Change in Control, become fully exercisable for
all of the shares of Common Stock at the time subject to such option and may
be exercised for all or any portion of those shares as fully-vested shares of
Common Stock. Immediately following the consummation of the Change in
Control, each automatic option grant shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation (or
parent thereof).
B. Each option which is assumed in connection with a Change in
Control shall be appropriately adjusted, immediately after such Change in
Control, to apply to the number and class of securities which would have been
issuable to the Optionee in consummation of such Change in Control had the
option been exercised immediately prior to such Change in Control.
Appropriate adjustments shall also be made to the exercise price payable per
share under each outstanding option, PROVIDED the aggregate exercise price
payable for such securities shall remain the same.
C. The grant of options under the Automatic Option Grant Program
shall in no way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
III. REMAINING TERMS
The remaining terms of each option granted under the Automatic
Option Grant Program shall be the same as the terms in effect for option
grants made under the Discretionary Option Grant Program.
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ARTICLE FIVE
MISCELLANEOUS
I. FINANCING
The Plan Administrator may permit any Optionee or Participant to
pay the option exercise price under the Discretionary Option Grant Program or
the purchase price of shares issued under the Stock Issuance Program by
delivering a full-recourse, interest bearing promissory note payable in one
or more installments. The terms of any such promissory note (including the
interest rate and the terms of repayment) shall be established by the Plan
Administrator in its sole discretion. In no event may the maximum credit
available to the Optionee or Participant exceed the sum of (i) the aggregate
option exercise price or purchase price payable for the purchased shares
(less the par value of those shares) plus (ii) any Federal, state and local
income and employment tax liability incurred by the Optionee or the
Participant in connection with the option exercise or share purchase.
II. TAX WITHHOLDING
A. The Corporation's obligation to deliver shares of Common Stock
upon the exercise of options or the issuance or vesting of such shares under
the Plan shall be subject to the satisfaction of all applicable Federal,
state and local income and employment tax withholding requirements.
B. The Plan Administrator may, in its discretion, provide any or
all holders of Non-Statutory Options or unvested shares of Common Stock under
the Plan with the right to use shares of Common Stock in satisfaction of all
or part of the Taxes incurred by such holders in connection with the exercise
of their options or the vesting of their shares. Such right may be provided
to any such holder in either or both of the following formats:
STOCK WITHHOLDING: The election to have the Corporation
withhold, from the shares of Common Stock otherwise issuable upon the
exercise of such Non-Statutory Option or the vesting of such shares, a
portion of those shares with an aggregate Fair Market Value equal to the
percentage of the Taxes (not to exceed one hundred percent (100%)) designated
by the holder.
STOCK DELIVERY: The election to deliver to the Corporation,
at the time the Non-Statutory Option is exercised or the shares vest, one or
more shares of Common Stock previously acquired by such holder (other than in
connection with the option exercise or share vesting triggering the Taxes)
with an aggregate Fair Market Value equal to the percentage of the Taxes (not
to exceed one hundred percent (100%)) designated by the holder.
18.
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III. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Discretionary Option Grant and Stock Issuance Programs
shall become effective immediately upon the Plan Effective Date. However,
the Automatic Option Grant Program shall not become effective until the
Underwriting Date. Options may be granted under the Discretionary Option
Grant Program at any time on or after the Plan Effective Date. However, no
options granted under the Plan may be exercised, and no shares shall be
issued under the Plan, until the Plan is approved by the Corporation's
stockholders. If such stockholder approval is not obtained within twelve
(12) months after the Plan Effective Date, then all options previously
granted under this Plan shall terminate and cease to be outstanding, and no
further options shall be granted and no shares shall be issued under the Plan.
B. The Plan shall serve as the successor to the Predecessor Plan,
and no further option grants or direct stock issuances shall be made under
the Predecessor Plan after the Plan Effective Date. All options outstanding
under the Predecessor Plan on the Plan Effective Date shall be incorporated
into the Plan at that time and shall be treated as outstanding options under
the Plan. However, each outstanding option so incorporated shall continue to
be governed solely by the terms of the documents evidencing such option, and
no provision of the Plan shall be deemed to affect or otherwise modify the
rights or obligations of the holders of such incorporated options with
respect to their acquisition of shares of Common Stock.
C. One or more provisions of the Plan, including (without
limitation) the option/vesting acceleration provisions of Article Two
relating to Changes in Control, may, in the Plan Administrator's discretion,
be extended to one or more options incorporated from the Predecessor Plan
which do not otherwise contain such provisions.
D. The Plan shall terminate upon the EARLIEST of (i) November 6,
2007, (ii) the date on which all shares available for issuance under the Plan
shall have been issued as fully-vested shares or (iii) the termination of all
outstanding options in connection with a Change in Control. Upon such plan
termination, all outstanding option grants and unvested stock issuances shall
thereafter continue to have force and effect in accordance with the
provisions of the documents evidencing such grants or issuances.
IV. AMENDMENT OF THE PLAN
A. The Board shall have complete and exclusive power and
authority to amend or modify the Plan in any or all respects. However, no
such amendment or modification shall adversely affect the rights and
obligations with respect to stock options or unvested stock issuances at the
time outstanding under the Plan unless the Optionee or the Participant
consents to such amendment or modification. In addition, certain amendments
may require stockholder approval pursuant to applicable laws or regulations.
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B. Options to purchase shares of Common Stock may be granted
under the Discretionary Option Grant Program and shares of Common Stock may
be issued under the Stock Issuance Program that are in each instance in
excess of the number of shares then available for issuance under the Plan,
provided any excess shares actually issued under those programs shall be held
in escrow until there is obtained stockholder approval of an amendment
sufficiently increasing the number of shares of Common Stock available for
issuance under the Plan. If such stockholder approval is not obtained within
twelve (12) months after the date the first such excess issuances are made,
then (i) any unexercised options granted on the basis of such excess shares
shall terminate and cease to be outstanding and (ii) the Corporation shall
promptly refund to the Optionees and the Participants the exercise or
purchase price paid for any excess shares issued under the Plan and held in
escrow, together with interest (at the applicable Short Term Federal Rate)
for the period the shares were held in escrow, and such shares shall
thereupon be automatically cancelled and cease to be outstanding.
V. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of
shares of Common Stock under the Plan shall be used for general corporate
purposes.
VI. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any stock
option under the Plan and the issuance of any shares of Common Stock (i) upon
the exercise of any granted option or (ii) under the Stock Issuance Program
shall be subject to the Corporation's procurement of all approvals and
permits required by regulatory authorities having jurisdiction over the Plan,
the stock options granted under it and the shares of Common Stock issued
pursuant to it.
B. No shares of Common Stock or other assets shall be issued or
delivered under the Plan unless and until there shall have been compliance
with all applicable requirements of Federal and state securities laws,
including the filing and effectiveness of the Form S-8 registration statement
for the shares of Common Stock issuable under the Plan, and all applicable
listing requirements of any stock exchange (or the Nasdaq National Market, if
applicable) on which Common Stock is then listed for trading.
VII. NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee or the
Participant any right to continue in Service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Corporation (or any Parent or Subsidiary employing or retaining such person)
or of the Optionee or the Participant, which rights are hereby expressly
reserved by each, to terminate such person's Service at any time for any
reason, with or without cause.
20.
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APPENDIX
The following definitions shall be in effect under the Plan:
A. AUTOMATIC OPTION GRANT PROGRAM shall mean the automatic option
grant program in effect under the Plan.
B. BOARD shall mean the Corporation's Board of Directors.
C. CHANGE IN CONTROL shall mean any of the following transactions:
(i) a merger or consolidation approved by the Corporation's
stockholders in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different
from the persons holding those securities immediately prior to such
transaction,
(ii) any stockholder-approved sale, transfer or other
disposition of all or substantially all of the Corporation's assets in
complete liquidation or dissolution of the Corporation, or
(iii) the acquisition, directly or indirectly by any person or
related group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Corporation), of beneficial ownership (within the
meaning of Rule 13d-3 of the 1934 Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities pursuant to a tender or exchange
offer made directly to the Corporation's stockholders.
In no event shall any of the following transactions be deemed to
constitute a Change in Control:
- the initial public offering of the Common Stock or any
secondary offerings of the Common Stock in the open market; or
- any other direct issuance of securities by the
Corporation effected primarily for the purpose of raising additional
capital or funding for the business operations of the Corporation or any
Parent or Subsidiary.
D. CODE shall mean the Internal Revenue Code of 1986, as amended.
E. COMMON STOCK shall mean the Corporation's common stock.
A-1.
<PAGE>
F. CORPORATION shall mean DoubleClick Inc., a Delaware corporation,
and its successors.
G. DISCRETIONARY OPTION GRANT PROGRAM shall mean the discretionary
option grant program in effect under the Plan.
H. ELIGIBLE DIRECTOR shall mean a non-employee Board member eligible
to participate in the Automatic Option Grant Program in accordance with the
eligibility provisions of Article One.
I. EMPLOYEE shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and
direction of the employer entity as to both the work to be performed and the
manner and method of performance.
J. EXERCISE DATE shall mean the date on which the Corporation shall
have received written notice of the option exercise.
K. FAIR MARKET VALUE per share of Common Stock on any relevant date
shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be deemed equal to the
closing selling price per share of Common Stock on the date in question,
as such price is reported on the Nasdaq National Market or any successor
system. If there is no closing selling price for the Common Stock on
the date in question, then the Fair Market Value shall be the closing
selling price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be deemed equal to the
closing selling price per share of Common Stock on the date in question
on the Stock Exchange determined by the Plan Administrator to be the
primary market for the Common Stock, as such price is officially quoted
in the composite tape of transactions on such exchange. If there is no
closing selling price for the Common Stock on the date in question, then
the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(iii) For purposes of any option grants made on the
Underwriting Date, the Fair Market Value shall be deemed to be equal to
the price per share at which the Common Stock is to be sold in the
initial public offering pursuant to the Underwriting Agreement.
A-2.
<PAGE>
(iv) For purposes of any option grants made prior to the
Underwriting Date, the Fair Market Value shall be determined by the Plan
Administrator, after taking into account such factors as it deems
appropriate.
L. INCENTIVE OPTION shall mean an option which satisfies the
requirements of Code Section 422.
M. INVOLUNTARY TERMINATION shall mean the termination of the Service of
any individual which occurs by reason of:
(i) such individual's involuntary dismissal or discharge by
the Corporation for reasons other than Misconduct, or
(ii) such individual's voluntary resignation following (A) a
change in his or her position with the Corporation which materially
reduces his or her duties and responsibilities or the level of
management to which he or she reports, (B) a reduction in his or her
level of compensation (including base salary, fringe benefits and target
bonus under any performance based bonus or incentive programs) by more
than fifteen percent (15%) or (C) a relocation of such individual's
place of employment by more than fifty (50) miles, provided and only if
such change, reduction or relocation is effected by the Corporation
without the individual's consent.
N. MISCONDUCT shall mean the commission of any act of fraud,
embezzlement or dishonesty by the Optionee or Participant, any unauthorized
use or disclosure by such person of confidential information or trade secrets
of the Corporation (or any Parent or Subsidiary), or any other intentional
misconduct by such person adversely affecting the business or affairs of the
Corporation (or any Parent or Subsidiary) in a material manner. The
foregoing definition shall not be deemed to be inclusive of all the acts or
omissions which the Corporation (or any Parent or Subsidiary) may consider as
grounds for the dismissal or discharge of any Optionee, Participant or other
person in the Service of the Corporation (or any Parent or Subsidiary).
O. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
P. NON-STATUTORY OPTION shall mean an option not intended to satisfy
the requirements of Code Section 422.
Q. OPTIONEE shall mean any person to whom an option is granted under
the Discretionary Option Grant and Automatic Option Grant Program.
A-3.
<PAGE>
R. PARENT shall mean any corporation (other than the Corporation) in
an unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the
time of the determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
S. PARTICIPANT shall mean any person who is issued shares of Common
Stock under the Stock Issuance Program.
T. PERMANENT DISABILITY OR PERMANENTLY DISABLED shall mean the
inability of the Optionee or the Participant to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment expected to result in death or to be of continuous duration of
twelve (12) months or more. However, solely for purposes of the Automatic
Option Grant Program, Permanent Disability or Permanently Disabled shall mean
the inability of the non-employee Board member to perform his or her usual
duties as a Board member by reason of any medically determinable physical or
mental impairment expected to result in death or to be of continuous duration
of twelve (12) months or more.
U. PLAN shall mean the Corporation's 1997 Stock Incentive Plan, as set
forth in this document.
V. PLAN ADMINISTRATOR shall mean the particular entity, whether the
Primary Committee, the Board or the Secondary Committee, which is authorized
to administer the Discretionary Option Grant and Stock Issuance Programs with
respect to one or more classes of eligible persons, to the extent such entity
is carrying out its administrative functions under those programs with
respect to the persons under its jurisdiction.
W. PLAN EFFECTIVE DATE shall mean November 7, 1997, the date on which
the Plan was adopted by the Board.
X. PREDECESSOR PLAN shall mean the Corporation's pre-existing 1996
Stock Option Plan in effect immediately prior to the Plan Effective Date
hereunder.
Y. PRIMARY COMMITTEE shall mean the committee of two (2) or more
non-employee Board members appointed by the Board to administer the
Discretionary Option Grant and Stock Issuance Programs with respect to
Section 16 Insiders.
Z. SECONDARY COMMITTEE shall mean a committee of one (1) or more Board
members appointed by the Board to administer the Discretionary Option Grant
and Stock Issuance Programs with respect to eligible persons other than
Section 16 Insiders.
AA. SECTION 12 REGISTRATION DATE shall mean February 19, 1998, which
was the date on which the Common Stock was first registered under Section 12
of the 1934 Act.
A-4.
<PAGE>
AB. SECTION 16 INSIDER shall mean an officer or director of the
Corporation subject to the short-swing profit liabilities of Section 16 of
the 1934 Act.
AC. SERVICE shall mean the performance of services for the Corporation
(or any Parent or Subsidiary) by a person in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or independent
advisor, except to the extent otherwise specifically provided in the
documents evidencing the option grant or stock issuance.
AD. STOCK EXCHANGE shall mean either the American Stock Exchange or the
New York Stock Exchange.
AE. STOCK ISSUANCE AGREEMENT shall mean the agreement entered into by
the Corporation and the Participant at the time of issuance of shares of
Common Stock under the Stock Issuance Program.
AF. STOCK ISSUANCE PROGRAM shall mean the stock issuance program in
effect under the Plan.
AG. SUBSIDIARY shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain
owns, at the time of the determination, stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
AH. TAXES shall mean the Federal, state and local income and employment
tax liabilities incurred by the holder of Non-Statutory Options or unvested
shares of Common Stock in connection with the exercise of those options or
the vesting of those shares.
AI. 10% STOCKHOLDER shall mean the owner of stock (as determined under
Code Section 424(d)) possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Corporation (or any
Parent or Subsidiary).
AJ. UNDERWRITING AGREEMENT shall mean the agreement between the
Corporation and the underwriter or underwriters managing the initial public
offering of the Common Stock.
AK. UNDERWRITING DATE shall mean February 19, 1998, which was the date
on which the Underwriting Agreement was executed and priced in connection
with an initial public offering of the Common Stock.
A-5.
<PAGE>
Exhibit 99.2
DOUBLECLICK, INC.
NOTICE OF GRANT OF STOCK OPTION
Notice is hereby given of the following option grant (the "Option")
to purchase shares of the Common Stock of DoubleClick, Inc. (the
"Corporation"):
OPTIONEE: __________________________________________________________
GRANT DATE: ________________________________________________________
VESTING COMMENCEMENT DATE: _________________________________________
EXERCISE PRICE: $ _______________________________________ per share
NUMBER OF OPTION SHARES: ____________________________________ shares
EXPIRATION DATE: ___________________________________________________
TYPE OF OPTION: ______ Incentive Stock Option
______ Non-Statutory Stock Option
EXERCISE SCHEDULE: The Option shall become exercisable with
respect to twenty five percent (25%) of the Option Shares upon
Optionee's completion of one (1) year of Service measured from the
Vesting Commencement Date and shall become exercisable for the
balance of the Option Shares in thirty-six (36) successive equal
monthly installments upon Optionee's completion of each additional
month of Service over the thirty-six (36) month period measured
from the first anniversary of the Vesting Commencement Date. In no
event shall the Option become exercisable for any additional Option
Shares after Optionee's cessation of Service.
Optionee understands and agrees that the Option is granted subject
to and in accordance with the terms of the DoubleClick, Inc. 1997 Stock
Incentive Plan (the "Plan"). Optionee further agrees to be bound by the
terms of the Plan and the terms of the Option as set forth in the Stock
Option Agreement and any Addenda to such Stock Option Agreement attached
hereto as Exhibit A. A copy of the Plan is available upon request made to
the Corporate Secretary at the Corporation's principal offices.
<PAGE>
NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this Notice or in
the attached Stock Option Agreement or in the Plan shall confer upon Optionee
any right to continue in Service for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Corporation
(or any Parent or Subsidiary employing or retaining Optionee) or of Optionee,
which rights are hereby expressly reserved by each, to terminate Optionee's
Service at any time for any reason, with or without cause.
DEFINITIONS. All capitalized terms in this Notice shall have the
meaning assigned to them in this Notice or in the attached Stock Option
Agreement.
DATED: __________________, 199___
DOUBLECLICK, INC.
By: __________________________________
Title: _______________________________
______________________________________
OPTIONEE
Address: _____________________________
______________________________________
ATTACHMENTS
EXHIBIT A - STOCK OPTION AGREEMENT AND ADDENDA
2.
<PAGE>
EXHIBIT A
STOCK OPTION AGREEMENT
<PAGE>
Exhibit 99.3
DOUBLECLICK INC.
STOCK OPTION AGREEMENT
RECITALS
A. The Board has adopted the Plan for the purpose of retaining the
services of selected Employees, non-employee members of the Board or of the
board of directors of any Parent or Subsidiary and consultants and other
independent advisors who provide services to the Corporation (or any Parent
or Subsidiary).
B. Optionee is to render valuable services to the Corporation (or a
Parent or Subsidiary), and this Agreement is executed pursuant to, and is
intended to carry out the purposes of, the Plan in connection with the
Corporation's grant of an option to Optionee.
C. All capitalized terms in this Agreement shall have the meaning
assigned to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. The Corporation hereby grants to Optionee,
as of the Grant Date, an option to purchase up to the number of Option Shares
specified in the Grant Notice. The Option Shares shall be purchasable from
time to time during the option term specified in Paragraph 2 at the Exercise
Price.
2. OPTION TERM. This option shall have a maximum term of ten
(10) years measured from the Grant Date and shall accordingly expire at the
close of business on the Expiration Date, unless sooner terminated in
accordance with Paragraph 5 or 6.
3. LIMITED TRANSFERABILITY. This option shall be neither
transferable nor assignable by Optionee other than by will or by the laws of
descent and distribution following Optionee's death and may be exercised,
during Optionee's lifetime, only by Optionee. However, if this option is
designated a Non-Statutory Option in the Grant Notice, then this option may,
in connection with the Optionee's estate plan, be assigned in whole or in
part during Optionee's lifetime to one or more members of the Optionee's
immediate family or to a trust established for the exclusive benefit of one
or more such family members. The assigned portion shall be exercisable only
by the person or persons who acquire a proprietary interest in the option
pursuant to such assignment. The terms applicable to the assigned portion
shall be the same as those in effect for this option immediately prior to
such assignment and shall be set forth in such documents issued to the
assignee as the Plan Administrator may deem appropriate.
<PAGE>
4. DATES OF EXERCISE. This option shall become exercisable for
the Option Shares in one or more installments as specified in the Grant
Notice. As the option becomes exercisable for such installments, those
installments shall accumulate, and the option shall remain exercisable for
the accumulated installments until the Expiration Date or sooner termination
of the option term under Paragraph 5 or 6.
5. CESSATION OF SERVICE. The option term specified in Paragraph
2 shall terminate (and this option shall cease to be outstanding) prior to
the Expiration Date should any of the following provisions become applicable:
(i) Should Optionee cease to remain in Service for
any reason (other than death, Permanent Disability or Misconduct) while
this option is outstanding, then the period for exercising this option
shall be limited to a three (3)-month period measured from the date of
such cessation of Service, but in no event shall this option be
exercisable at any time after the Expiration Date.
(ii) Should Optionee die while holding this option,
then the personal representative of Optionee's estate or the person or
persons to whom the option is transferred pursuant to Optionee's will or
in accordance with the laws of descent and distribution shall have the
right to exercise this option. Such right shall lapse, and this option
shall cease to be outstanding, upon the EARLIER of (A) the expiration of
the twelve (12)-month period measured from the date of Optionee's death
or (B) the Expiration Date.
(iii) Should Optionee cease Service by reason of
Permanent Disability while this option is outstanding, then the period
for exercising this option shall be limited to a twelve (12)-month
period measured from the date of such cessation of Service, but in no
event shall this option be exercisable at any time after the Expiration
Date.
(iv) During the limited period of post-Service
exercisability, this option may not be exercised in the aggregate for
more than the number of Option Shares for which the option is
exercisable at the time of Optionee's cessation of Service. Upon the
expiration of such limited exercise period or (if earlier) upon the
Expiration Date, this option shall terminate and cease to be outstanding
for any otherwise exercisable Option Shares for which the option has not
been exercised. However, this option shall, immediately upon Optionee's
cessation of Service for any reason, terminate and cease to be
outstanding with respect to any and all Option Shares for which this
option is not otherwise at that time exercisable.
2.
<PAGE>
(v) Should Optionee's Service be terminated for
Misconduct, then this option shall terminate immediately and cease to
remain outstanding.
6. SPECIAL ACCELERATION OF OPTION.
(a) In the event of a Change in Control, this option, to the
extent outstanding at that time, but not otherwise fully exercisable, shall
automatically accelerate so that this option shall, immediately prior to the
effective date of the Change in Control, become exercisable for all of the
Option Shares at the time subject to this option and may be exercised for any
or all of those Option Shares as fully-vested shares of Common Stock. No
such acceleration of this option, however, shall occur if and to the extent:
(i) this option is, in connection with the Change in Control, to be assumed
by the successor corporation (or parent thereof) or otherwise to continue in
full force and effect pursuant to the express terms of the Change in Control
transaction or (ii) this option is to be replaced with a cash incentive
program of the successor corporation which preserves the spread existing at
the time of the Change in Control on the Option Shares for which this option
is not otherwise at that time exercisable (the excess of the Fair Market
Value of those Option Shares over the aggregate Exercise Price payable for
such shares) and provides for subsequent pay-out in accordance with the same
option exercise/vesting schedule set forth in the Grant Notice.
(b) Immediately following the Change in Control, this option
shall terminate and cease to be outstanding, except to the extent assumed by
the successor corporation (or parent thereof) or otherwise to continue in
full force and effect pursuant to the express terms of the Change in Control
transaction.
(c) If this option is assumed in connection with a Change in
Control (or is otherwise to continue in force), then this option shall be
appropriately adjusted, immediately after such Change in Control, to apply to
the number and class of securities which would have been issuable to Optionee
in consummation of such Change in Control had the option been exercised
immediately prior to such Change in Control, and appropriate adjustments
shall also be made to the Exercise Price, PROVIDED the aggregate Exercise
Price shall remain the same.
(d) This option may also become exercisable on an accelerated
basis in accordance with the terms and conditions of any special addendum
attached to this Agreement.
(e) This Agreement shall not in any way affect the right of
the Corporation to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
3.
<PAGE>
7. ADJUSTMENT IN OPTION SHARES. Should any change be made to the
Common Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the total number
and/or class of securities subject to this option and (ii) the Exercise Price
in order to reflect such change and thereby preclude a dilution or
enlargement of benefits hereunder.
8. STOCKHOLDER RIGHTS. The holder of this option shall not have
any stockholder rights with respect to the Option Shares until such person
shall have exercised the option, paid the Exercise Price and become a holder
of record of the purchased shares.
9. MANNER OF EXERCISING OPTION.
(a) In order to exercise this option with respect to all or
any part of the Option Shares for which this option is at the time
exercisable, Optionee (or any other person or persons exercising the option)
must take the following actions:
(i) Execute and deliver to the Corporation a
Notice of Exercise for the Option Shares for which the option is
exercised.
(ii) Pay the aggregate Exercise Price for the
purchased shares in one or more of the following forms:
(A) cash or check made payable to the Corporation;
(B) a promissory note payable to the Corporation,
but only to the extent authorized by the Plan Administrator in
accordance with Paragraph 13;
Should the Common Stock be registered under Section 12 of the
1934 Act at the time the option is exercised, then the Exercise
Price may also be paid as follows:
(C) in shares of Common Stock held by Optionee (or
any other person or persons exercising the option) for the
requisite period necessary to avoid a charge to the Corporation's
earnings for financial reporting purposes and valued at Fair Market
Value on the Exercise Date; or
(D) through a special sale and remittance procedure
pursuant to which Optionee (or any other person or persons
exercising the option) shall concurrently provide irrevocable
instructions
4.
<PAGE>
(a) to a Corporation-designated brokerage firm to effect the
immediate sale of the purchased shares and remit to the
Corporation, out of the sale proceeds available on the settlement
date, sufficient funds to cover the aggregate Exercise Price
payable for the purchased shares plus all applicable Federal, state
and local income and employment taxes required to be withheld by
the Corporation by reason of such exercise and (b) to the
Corporation to deliver the certificates for the purchased shares
directly to such brokerage firm in order to complete the sale.
Except to the extent the sale and remittance procedure is
utilized in connection with the option exercise, payment of the
Exercise Price must accompany the Notice of Exercise delivered to
the Corporation in connection with the option exercise.
(iii) Furnish to the Corporation appropriate
documentation that the person or persons exercising the option (if other
than Optionee) have the right to exercise this option.
(iv) Make appropriate arrangements with the
Corporation (or Parent or Subsidiary employing or retaining Optionee)
for the satisfaction of all Federal, state and local income and
employment tax withholding requirements applicable to the option
exercise.
(b) As soon as practical after the Exercise Date, the
Corporation shall issue to or on behalf of Optionee (or any other person or
persons exercising this option) a certificate for the purchased Option
Shares, with the appropriate legends affixed thereto.
(c) In no event may this option be exercised for any
fractional shares.
10. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) The exercise of this option and the issuance of the
Option Shares upon such exercise shall be subject to compliance by the
Corporation and Optionee with all applicable requirements of law relating
thereto and with all applicable regulations of any stock exchange (or the
Nasdaq National Market, if applicable) on which the Common Stock may be
listed for trading at the time of such exercise and issuance.
(b) The inability of the Corporation to obtain approval from
any regulatory body having authority deemed by the Corporation to be
necessary to the lawful issuance and sale of any Common Stock pursuant to
this option shall relieve the Corporation of any liability with respect to
the non-issuance or sale of the Common Stock as to which such approval shall
not have been obtained. The Corporation, however, shall use its best efforts
to obtain all such approvals.
5.
<PAGE>
11. SUCCESSORS AND ASSIGNS. Except to the extent otherwise
provided in Paragraphs 3 and 6, the provisions of this Agreement shall inure
to the benefit of, and be binding upon, the Corporation and its successors
and assigns and Optionee, Optionee's assigns and the legal representatives,
heirs and legatees of Optionee's estate.
12. NOTICES. Any notice required to be given or delivered to the
Corporation under the terms of this Agreement shall be in writing and
addressed to the Corporation at its principal corporate offices. Any notice
required to be given or delivered to Optionee shall be in writing and
addressed to Optionee at the address indicated below Optionee's signature
line on the Grant Notice. All notices shall be deemed effective upon personal
delivery or upon deposit in the U.S. mail, postage prepaid and properly
addressed to the party to be notified.
13. FINANCING. The Plan Administrator may, in its absolute
discretion and without any obligation to do so, permit Optionee to pay the
Exercise Price for the purchased Option Shares by delivering a full-recourse
promissory note payable to the Corporation. The terms of any such promissory
note (including the interest rate, the requirements for collateral and the
terms of repayment) shall be established by the Plan Administrator in its
sole discretion.
14. CONSTRUCTION. This Agreement and the option evidenced hereby
are made and granted pursuant to the Plan and are in all respects limited by
and subject to the terms of the Plan. All decisions of the Plan
Administrator with respect to any question or issue arising under the Plan or
this Agreement shall be conclusive and binding on all persons having an
interest in this option.
15. GOVERNING LAW. The interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
New York without resort to that State's conflict-of-laws rules.
16. EXCESS SHARES. If the Option Shares covered by this Agreement
exceed, as of the Grant Date, the number of shares of Common Stock which may
without stockholder approval be issued under the Plan, then this option shall
be void with respect to those excess shares, unless stockholder approval of
an amendment sufficiently increasing the number of shares of Common Stock
issuable under the Plan is obtained in accordance with the provisions of the
Plan.
17. ADDITIONAL TERMS APPLICABLE TO AN INCENTIVE OPTION. In the
event this option is designated an Incentive Option in the Grant Notice, the
following terms and conditions shall also apply to the grant:
(i) This option shall cease to qualify for
favorable tax treatment as an Incentive Option if (and to the extent)
this option is exercised for one or more Option Shares: (A) more than
three (3) months after the date
6.
<PAGE>
Optionee ceases to be an Employee for any reason other than death or
Permanent Disability or (B) more than twelve (12) months after the date
Optionee ceases to be an Employee by reason of Permanent Disability.
(ii) No installment under this option shall qualify
for favorable tax treatment as an Incentive Option if (and to the
extent) the aggregate Fair Market Value (determined at the Grant Date)
of the Common Stock for which such installment first becomes exercisable
hereunder would, when added to the aggregate value (determined as of the
respective date or dates of grant) of the Common Stock or other
securities for which this option or any other Incentive Options granted
to Optionee prior to the Grant Date (whether under the Plan or any other
option plan of the Corporation or any Parent or Subsidiary) first become
exercisable during the same calendar year, exceed One Hundred Thousand
Dollars ($100,000) in the aggregate. Should such One Hundred Thousand
Dollar ($100,000) limitation be exceeded in any calendar year, this
option shall nevertheless become exercisable for the excess shares in
such calendar year as a Non-Statutory Option.
(iii) Should the exercisability of this option be
accelerated upon a Change in Control, then this option shall qualify for
favorable tax treatment as an Incentive Option only to the extent the
aggregate Fair Market Value (determined at the Grant Date) of the Common
Stock for which this option first becomes exercisable in the calendar
year in which the Change in Control occurs does not, when added to the
aggregate value (determined as of the respective date or dates of grant)
of the Common Stock or other securities for which this option or one or
more other Incentive Options granted to Optionee prior to the Grant Date
(whether under the Plan or any other option plan of the Corporation or
any Parent or Subsidiary) first become exercisable during the same
calendar year, exceed One Hundred Thousand Dollars ($100,000) in the
aggregate. Should the applicable One Hundred Thousand Dollar ($100,000)
limitation be exceeded in the calendar year of such Change in Control,
the option may nevertheless be exercised for the excess shares in such
calendar year as a Non-Statutory Option.
(iv) Should Optionee hold, in addition to this
option, one or more other options to purchase Common Stock which become
exercisable for the first time in the same calendar year as this option,
then the foregoing limitations on the exercisability of such options as
Incentive Options shall be applied on the basis of the order in which
such options are granted.
7.
<PAGE>
18. LEAVE OF ABSENCE. The following provisions shall apply upon
the Optionee's commencement of an authorized leave of absence:
(i) The exercise schedule in effect under the Grant
Notice shall be frozen as of the first day of the authorized leave, and
this option shall not become exercisable for any additional installments
of the Option Shares during the period Optionee remains on such leave.
(ii) Should Optionee resume active Employee status
within sixty (60) days after the start date of the authorized leave,
Optionee shall, for purposes of the exercise schedule set forth in the
Grant Notice, receive Service credit for the entire period of such
leave. If Optionee does not resume active Employee status within such
sixty (60)-day period, then no Service credit shall be given for the
period of such leave.
(iii) If the option is designated as an Incentive
Option in the Grant Notice, then the following additional provision
shall apply:
(A) If the leave of absence continues for more than
ninety (90) days, then this option shall automatically convert to a
Non-Statutory Option under the Federal tax laws at the end of the
three (3)-month period measured from the ninety-first (91st) day of
such leave, unless the Optionee's reemployment rights are
guaranteed by statute or by written agreement. Following any such
conversion of the option, all subsequent exercises of such option,
whether effected before or after Optionee's return to active
Employee status, shall result in an immediate taxable event, and
the Corporation shall be required to collect from Optionee the
Federal, state and local income and employment withholding taxes
applicable to such exercise.
(iv) In no event shall this option become
exercisable for any additional Option Shares or otherwise remain
outstanding if Optionee does not resume Employee status prior to the
Expiration Date of the option term.
8.
<PAGE>
EXHIBIT I
NOTICE OF EXERCISE
I hereby notify DoubleClick Inc.( the "Corporation") that I elect to
purchase ___________ shares of the Corporation's Common Stock (the "Purchased
Shares") at the option exercise price of $___________ per share (the "Exercise
Price") pursuant to that certain option (the "Option") granted to me under the
Corporation's 1997 Stock Incentive Plan on _________________, 199__.
Concurrently with the delivery of this Exercise Notice to the
Corporation, I shall hereby pay to the Corporation the Exercise Price for the
Purchased Shares in accordance with the provisions of my agreement with the
Corporation (or other documents) evidencing the Option and shall deliver
whatever additional documents may be required by such agreement as a
condition for exercise. Alternatively, I may utilize the special
broker-dealer sale and remittance procedure specified in my agreement to
effect payment of the Exercise Price.
_____________________, 199__
Date
____________________________________
Optionee
Address: ___________________________
____________________________________
Print name in exact manner
it is to appear on the
stock certificate: ____________________________________
Address to which certificate
is to be sent, if different
from address above: ____________________________________
____________________________________
Social Security Number: ____________________________________
Employee Number: ____________________________________
<PAGE>
APPENDIX
The following definitions shall be in effect under the Agreement:
A. AGREEMENT shall mean this Stock Option Agreement.
B. BOARD shall mean the Corporation's Board of Directors.
C. CHANGE IN CONTROL shall mean any of the following transactions:
(i) a merger or consolidation approved by the Corporation's
stockholders in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different
from the persons holding those securities immediately prior to such
transaction,
(ii) any stockholder-approved sale, transfer or other
disposition of all or substantially all of the Corporation's assets in
complete liquidation or dissolution of the Corporation, or
(iii) the acquisition, directly or indirectly by any
person or related group of persons (other than the Corporation or a
person that directly or indirectly controls, is controlled by, or is
under common control with, the Corporation), of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities Exchange Act of
1934, as amended) of securities possessing more than fifty percent (50%)
of the total combined voting power of the Corporation's outstanding
securities pursuant to a tender or exchange offer made directly to the
Corporation's stockholders.
D. CODE shall mean the Internal Revenue Code of 1986, as amended.
E. COMMON STOCK shall mean the Corporation's common stock.
F. CORPORATION shall mean DoubleClick Inc., a Delaware corporation.
G. EMPLOYEE shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and
direction of the employer entity as to both the work to be performed and the
manner and method of performance.
H. EXERCISE DATE shall mean the date on which the option shall have
been exercised in accordance with Paragraph 9 of the Agreement.
I. EXERCISE PRICE shall mean the exercise price per share as specified
in the Grant Notice.
A-1.
<PAGE>
J. EXPIRATION DATE shall mean the date on which the option expires as
specified in the Grant Notice.
K. FAIR MARKET VALUE per share of Common Stock on any relevant date
shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question, as the price is
reported by the National Association of Securities Dealers on the Nasdaq
National Market or any successor system. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market
Value shall be the closing selling price on the last preceding date for
which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question on the Stock
Exchange determined by the Plan Administrator to be the primary market
for the Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange. If there is no
closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the
last preceding date for which such quotation exists.
L. GRANT DATE shall mean the date of grant of the option as specified
in the Grant Notice.
M. GRANT NOTICE shall mean the Notice of Grant of Stock Option
accompanying the Agreement, pursuant to which Optionee has been informed of
the basic terms of the option evidenced hereby.
N. INCENTIVE OPTION shall mean an option which satisfies the
requirements of Code Section 422.
O. MISCONDUCT shall mean the commission of any act of fraud,
embezzlement or dishonesty by Optionee, any unauthorized use or disclosure by
Optionee of confidential information or trade secrets of the Corporation (or
any Parent or Subsidiary), or any other intentional misconduct by Optionee
adversely affecting the business or affairs of the Corporation (or any Parent
or Subsidiary) in a material manner. The foregoing definition shall not be
deemed to be inclusive of all the acts or omissions which the Corporation (or
any Parent or Subsidiary) may consider as grounds for the dismissal or
discharge of Optionee or any other individual in the Service of the
Corporation (or any Parent or Subsidiary).
P. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
A-2.
<PAGE>
Q. NON-STATUTORY OPTION shall mean an option not intended to satisfy
the requirements of Code Section 422.
R. NOTICE OF EXERCISE shall mean the notice of exercise in the form
attached hereto as Exhibit I.
S. OPTION SHARES shall mean the number of shares of Common Stock
subject to the option as specified in the Grant Notice.
T. OPTIONEE shall mean the person to whom the option is granted as
specified in the Grant Notice.
U. PARENT shall mean any corporation (other than the Corporation) in
an unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the
time of the determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
V. PERMANENT DISABILITY shall mean the inability of Optionee to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which is expected to result in death or has
lasted or can be expected to last for a continuous period of twelve (12)
months or more.
W. PLAN shall mean the Corporation's 1997 Stock Incentive Plan.
X. PLAN ADMINISTRATOR shall mean either the Board or a committee of
the Board acting in its administrative capacity under the Plan.
Y. SERVICE shall mean the Optionee's performance of services for the
Corporation (or any Parent or Subsidiary) in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or independent
advisor.
Z. STOCK EXCHANGE shall mean the American Stock Exchange or the New
York Stock Exchange.
AA. SUBSIDIARY shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain
owns, at the time of the determination, stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
A-3.
<PAGE>
Exhibit 99.4
ADDENDUM
TO
STOCK OPTION AGREEMENT
The following provisions are hereby incorporated into, and are
hereby made a part of, that certain Stock Option Agreement dated
_______________________, 199__ (the "Option Agreement") by and between
DoubleClick, Inc. (the "Corporation") and __________________________________
("Optionee") evidencing the stock option (the "Option") granted on such date
to Optionee under the terms of the Corporation's 1997 Stock Incentive Plan,
and such provisions shall be effective immediately. All capitalized terms
used in this Addendum, to the extent not otherwise specifically defined
herein, shall have the meanings assigned to such terms in the Option
Agreement.
PARTIAL ACCELERATION UPON CHANGE IN CONTROL
A. The Option, to the extent outstanding at the time of any
Change in Control but not otherwise fully exercisable, shall partially
accelerate so that such Option shall, immediately prior to the effective date
of such Change in Control, become exercisable for an additional number of
Option Shares equal to the LESSER of (i) the number of Option Shares for
which the Option would otherwise become exercisable, in accordance with the
Exercise Schedule set forth in the Grant Notice, over the twelve (12)-month
period immediately following the effective date of such Change in Control or
(ii) the number of Option Shares for which the Option is not otherwise
exercisable at the time of such Change in Control. However, no such
acceleration shall occur to the extent the Option Parachute Payment
attributable to such acceleration would, when added to the Present Value of
any Other Parachute Payments which become due and payable to Optionee in
connection with the Change in Control, result in the payment to Optionee of
an excess parachute payment under Code Section 280G(b). The determination of
any such excess parachute payment shall be made by the Plan Administrator,
and such determination shall be final, binding and conclusive.
B. The exercisability of the accelerated Option as an incentive
stock option under the Federal tax laws (if designated as such in the Grant
Notice) shall be subject to the applicable dollar limitation of Paragraph 17
of the Option Agreement. To the extent such dollar limitation is exceeded,
the Option as so accelerated may be exercised as a non-statutory option under
such tax laws.
C. The Option as accelerated hereunder shall remain exercisable
until the Expiration Date of the option term or any sooner termination of the
Option in accordance with the provisions of the Option Agreement.
D. For purposes of this Addendum, the following definitions shall
be in effect:
<PAGE>
OPTION PARACHUTE PAYMENT means the portion of the Option deemed to
be a parachute payment under Code Section 280G and the Treasury Regulations
issued thereunder. Such Option Parachute Payment shall be calculated in
accordance with the valuation provisions established under Code Section 280G
and the applicable Treasury Regulations and shall include an appropriate
dollar adjustment to reflect the lapse of Optionee's obligation to remain in
Service as a condition to the vesting of the accelerated installment. In no
event, however, shall the Option Parachute Payment attributable to the
accelerated installment exceed the spread on the accelerated Option Shares
(the excess of the Fair Market Value of those Option Shares over the Exercise
Price payable for such shares).
OTHER PARACHUTE PAYMENTS means any payments in the nature of
compensation (other than the partial acceleration of the Option pursuant to
this Addendum) to which Optionee may become entitled in connection with the
Change in Control, whether payable at that time or upon Optionee's subsequent
termination of Employee status, and which accordingly qualify as parachute
payments within the meaning of Code Section 280G(b)(2) and the Treasury
Regulations issued thereunder.
PRESENT VALUE means the value, determined as of the effective date
of the Change in Control, of any payment in the nature of compensation which
Optionee becomes entitled to receive from the Corporation in connection
therewith, including (without limitation) any Option Parachute Payment
hereunder. The Present Value of any such payment shall be determined in
accordance with the provisions of Code Section 280G(d)(4).
IN WITNESS WHEREOF, DoubleClick, Inc. has caused this Addendum to
be executed by its duly-authorized officer, and Optionee has executed this
Addendum, all as of the Effective Date specified below.
DOUBLECLICK, INC.
By ________________________________
Title _____________________________
___________________________________
OPTIONEE
EFFECTIVE DATE: ______________________, 199_
2.
<PAGE>
Exhibit 99.5
ADDENDUM
TO
STOCK OPTION AGREEMENT
The following provisions are hereby incorporated into, and are
hereby made a part of, that certain Stock Option Agreement (the "Option
Agreement") by and between DoubleClick, Inc. (the "Corporation") and
______________________ ("Optionee") evidencing the stock option (the
"Option") granted on ________________, 199__ to Optionee under the terms of
the Corporation's 1997 Stock Incentive Plan, and such provisions shall be
effective immediately. All capitalized terms in this Addendum, to the extent
not otherwise defined herein, shall have the meanings assigned to them in the
Option Agreement.
INVOLUNTARY TERMINATION FOLLOWING A
CHANGE IN CONTROL
1. Should Optionee's Service terminate by reason of an
Involuntary Termination effected within twelve (12) months following a Change
in Control, the Option, to the extent outstanding at that time but not
otherwise fully exercisable, shall automatically accelerate and become
immediately exercisable for an additional number of Option Shares equal to
fifty percent (50%) of the total number of Option Shares for which the Option
is not otherwise exercisable at the time of such Involuntary Termination.
2. The Option as accelerated pursuant to this Addendum shall
remain so exercisable until the EARLIER of (i) the Expiration Date or (ii)
the expiration of the one (1)-year period measured from the date of the
Optionee's Involuntary Termination.
3. For purposes of this Addendum the following definitions shall
be in effect:
(i) An INVOLUNTARY TERMINATION shall mean the termination of
Optionee's Service by reason of:
(A) Optionee's involuntary dismissal or discharge by
the Corporation for reasons other than Misconduct, or
(B) Optionee's voluntary resignation following (A) a
change in Optionee's position with the Corporation (or Parent or
Subsidiary employing Optionee) which materially reduces Optionee's
duties and responsibilities or the level of management to which he
or she reports, (B) a reduction in Optionee's level of compensation
(including base salary, fringe benefits and target bonus under any
corporate-performance based bonus or incentive programs) by more
than fifteen
<PAGE>
percent (15%) or (C) a relocation of Optionee's place of employment
by more than fifty (50) miles, provided and only if such change,
reduction or relocation is effected by the Corporation without
Optionee's consent.
4. The provisions of Paragraph 1 of this Addendum shall govern
the period for which the Option is to remain exercisable following the
Involuntary Termination of Optionee's Service within twelve (12) months after
the Change in Control and shall supersede any provisions to the contrary in
Paragraph 5 of the Option Agreement.
IN WITNESS WHEREOF, DoubleClick, Inc. has caused this Addendum to
be executed by its duly-authorized officer as of the Effective Date specified
below.
DOUBLECLICK, INC.
By:________________________________
Title:_____________________________
EFFECTIVE DATE:___________________, 199__
2.
<PAGE>
Exhibit 99.6
DOUBLECLICK, INC.
STOCK ISSUANCE AGREEMENT
AGREEMENT made this ______ day of _________________ 19__, by and
between DoubleClick, Inc., a Delaware corporation, and ____________________,
a Participant in the Corporation's 1997 Stock Incentive Plan.
All capitalized terms in this Agreement shall have the meaning
assigned to them in this Agreement or in the attached Appendix.
A. PURCHASE OF SHARES
1. PURCHASE. Participant hereby purchases ______________ shares
of Common Stock (the "Purchased Shares") pursuant to the provisions of the
Stock Issuance Program at the purchase price of $______ per share (the
"Purchase Price").
2. PAYMENT. Concurrently with the delivery of this Agreement to
the Corporation, Participant shall pay the Purchase Price for the Purchased
Shares in cash or check payable to the Corporation and shall deliver a
duly-executed blank Assignment Separate from Certificate (in the form
attached hereto as Exhibit I) with respect to the Purchased Shares.
3. STOCKHOLDER RIGHTS. Until such time as the Corporation
exercises the Repurchase Right, Participant (or any successor in interest)
shall have all the rights of a stockholder (including voting, dividend and
liquidation rights) with respect to the Purchased Shares, subject, however,
to the transfer restrictions of this Agreement.
4. ESCROW. The Corporation shall have the right to hold the
Purchased Shares in escrow until those shares have vested in accordance with
the Vesting Schedule.
5. COMPLIANCE WITH LAW. Under no circumstances shall shares of
Common Stock or other assets be issued or delivered to Participant pursuant
to the provisions of this Agreement unless, in the opinion of counsel for the
Corporation or its successors, there shall have been compliance with all
applicable requirements of Federal and state securities laws, all applicable
listing requirements of any stock exchange (or the Nasdaq National Market, if
applicable) on which the Common Stock is at the time listed for trading and
all other requirements of law or of any regulatory bodies having jurisdiction
over such issuance and delivery.
<PAGE>
B. TRANSFER RESTRICTIONS
1. RESTRICTION ON TRANSFER. Except for any Permitted Transfer,
Participant shall not transfer, assign, encumber or otherwise dispose of any
of the Purchased Shares which are subject to the Repurchase Right.
2. RESTRICTIVE LEGEND. The stock certificate for the Purchased
Shares shall be endorsed with the following restrictive legend:
"The shares represented by this certificate are unvested and
subject to certain repurchase rights granted to the Corporation and
accordingly may not be sold, assigned, transferred, encumbered, or in
any manner disposed of except in conformity with the terms of a written
agreement dated ______________, 199_ between the Corporation and the
registered holder of the shares (or the predecessor in interest to the
shares). A copy of such agreement is maintained at the Corporation's
principal corporate offices."
3. TRANSFEREE OBLIGATIONS. Each person (other than the
Corporation) to whom the Purchased Shares are transferred by means of a
Permitted Transfer must, as a condition precedent to the validity of such
transfer, acknowledge in writing to the Corporation that such person is bound
by the provisions of this Agreement and that the transferred shares are
subject to the Repurchase Right to the same extent such shares would be so
subject if retained by Participant.
C. REPURCHASE RIGHT
1. GRANT. The Corporation is hereby granted the right (the
"Repurchase Right"), exercisable at any time during the ninety (90)-day
period following the date Participant ceases for any reason to remain in
Service, to repurchase at the Purchase Price all or any portion of the
Purchased Shares in which Participant is not, at the time of his or her
cessation of Service, vested in accordance with the Vesting Schedule or the
provisions of Paragraph C.5 of this Agreement (such shares to be hereinafter
referred to as the "Unvested Shares").
2. EXERCISE OF THE REPURCHASE RIGHT. The Repurchase Right shall
be exercisable by written notice delivered to each Owner of the Unvested
Shares prior to the expiration of the ninety (90)-day exercise period. The
notice shall indicate the number of Unvested Shares to be repurchased and the
date on which the repurchase is to be effected, such date to be not more than
thirty (30) days after the date of such notice. The certificates
representing the Unvested Shares to be repurchased shall be delivered to the
Corporation on or before the close of business on the date specified for the
repurchase. Concurrently with the receipt of such stock certificates, the
Corporation shall pay to Owner, in cash or cash equivalent (including the
cancellation of any purchase-money indebtedness), an amount equal to the
Purchase Price previously paid for the Unvested Shares to be repurchased from
Owner.
2.
<PAGE>
3. TERMINATION OF THE REPURCHASE RIGHT. The Repurchase Right
shall terminate with respect to any Unvested Shares for which it is not
timely exercised under Paragraph C.2. In addition, the Repurchase Right
shall terminate and cease to be exercisable with respect to any and all
Purchased Shares in which Participant vests in accordance with the following
Vesting Schedule:
(i) Upon Participant's completion of one (1) year of
Service measured from ______________, 199__, Participant shall acquire a
vested interest in, and the Repurchase Right shall lapse with respect
to, twenty-five percent (25%) of the Purchased Shares.
(ii) Participant shall acquire a vested interest in, and
the Repurchase Right shall lapse with respect to, the remaining
Purchased Shares in a series of thirty six (36) successive equal monthly
installments upon Participant's completion of each additional month of
Service over the thirty-six (36)-month period measured from the initial
vesting date under subparagraph (i) above.
4. RECAPITALIZATION. Any new, substituted or additional
securities or other property (including cash paid other than as a regular
cash dividend) which is by reason of any Recapitalization distributed with
respect to the Purchased Shares shall be immediately subject to the
Repurchase Right and any escrow requirements hereunder, but only to the
extent the Purchased Shares are at the time covered by such right or escrow
requirements. Appropriate adjustments to reflect such distribution shall be
made to the number and/or class of securities subject to this Agreement and
to the price per share to be paid upon the exercise of the Repurchase Right
in order to reflect the effect of any such Recapitalization upon the
Corporation's capital structure; PROVIDED, however, that the aggregate
purchase price shall remain the same.
5. CHANGE IN CONTROL.
(a) Immediately prior to the consummation of any Change in
Control, the Repurchase Right shall automatically lapse in its entirety and
the Purchased Shares shall vest in full, except to the extent the Repurchase
Right is to be assigned to the successor corporation (or parent thereof) in
connection with the Change in Control.
(b) To the extent the Repurchase Right remains in effect
following a Change in Control, such right shall apply to the new capital
stock or other property (including any cash payments) received in exchange
for the Purchased Shares in consummation of the Change in Control, but only
to the extent the Purchased Shares are at the time covered by such right.
Appropriate adjustments shall be made to the price per share payable upon
exercise of the Repurchase Right to reflect the effect of the Change in
Control upon the Corporation's capital structure; PROVIDED, however, that the
aggregate purchase price shall remain the same. The new securities or other
property (including cash payments) issued or distributed with respect to the
3.
<PAGE>
Purchased Shares in consummation of the Change in Control shall immediately
be deposited in escrow with the Corporation (or the successor entity) and
shall not be released from escrow until Participant vests in such securities
or other property in accordance with the same Vesting Schedule in effect for
the Purchased Shares.
(c) The Repurchase Right may also be subject to termination
in whole or in part on an accelerated basis, and the Purchased Shares subject
to immediate vesting, in accordance with the terms of any special Addendum
attached to this Agreement.
(d) Any acceleration of the vesting of the Purchased Shares
provided under paragraph 5(a) shall be subject to the terms and conditions of
any addendum attached to this Agreement.
D. SPECIAL TAX ELECTION
1. SECTION 83(b) ELECTION. Under Code Section 83, the excess of
the fair market value of the Purchased Shares on the date any forfeiture
restrictions applicable to such shares lapse over the Purchase Price paid for
such shares will be reportable as ordinary income on the lapse date. For
this purpose, the term "forfeiture restrictions" includes the right of the
Corporation to repurchase the Purchased Shares pursuant to the Repurchase
Right. Participant may elect under Code Section 83(b) to be taxed at the time
the Purchased Shares are acquired, rather than when and as such Purchased
Shares cease to be subject to such forfeiture restrictions. Such election
must be filed with the Internal Revenue Service within thirty (30) days after
the date of this Agreement. Even if the fair market value of the Purchased
Shares on the date of this Agreement equals the Purchase Price paid (and thus
no tax is payable), the election must be made to avoid adverse tax
consequences in the future. THE FORM FOR MAKING THIS ELECTION IS ATTACHED AS
EXHIBIT II HERETO. PARTICIPANT UNDERSTANDS THAT FAILURE TO MAKE THIS FILING
WITHIN THE APPLICABLE THIRTY (30)-DAY PERIOD WILL RESULT IN THE RECOGNITION
OF ORDINARY INCOME AS THE FORFEITURE RESTRICTIONS LAPSE.
2. FILING RESPONSIBILITY. PARTICIPANT ACKNOWLEDGES THAT IT IS
PARTICIPANT'S SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO FILE A
TIMELY ELECTION UNDER CODE SECTION 83(B), EVEN IF PARTICIPANT REQUESTS THE
CORPORATION OR ITS REPRESENTATIVES TO MAKE THIS FILING ON HIS OR HER BEHALF.
E. GENERAL PROVISIONS
1. ASSIGNMENT. The Corporation may assign the Repurchase Right
to any person or entity selected by the Board, including (without limitation)
one or more stockholders of the Corporation.
4.
<PAGE>
2. NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this Agreement
or in the Plan shall confer upon Participant any right to continue in Service
for any period of specific duration or interfere with or otherwise restrict
in any way the rights of the Corporation (or any Parent or Subsidiary
employing or retaining Participant) or of Participant, which rights are
hereby expressly reserved by each, to terminate Participant's Service at any
time for any reason, with or without cause.
3. NOTICES. Any notice required to be given under this Agreement
shall be in writing and shall be deemed effective upon personal delivery or
upon deposit in the U.S. mail, registered or certified, postage prepaid and
properly addressed to the party entitled to such notice at the address
indicated below such party's signature line on this Agreement or at such
other address as such party may designate by ten (10) days advance written
notice under this paragraph to all other parties to this Agreement.
4. NO WAIVER. The failure of the Corporation in any instance to
exercise the Repurchase Right shall not constitute a waiver of any other
repurchase rights that may subsequently arise under the provisions of this
Agreement or any other agreement between the Corporation and Participant. No
waiver of any breach or condition of this Agreement shall be deemed to be a
waiver of any other or subsequent breach or condition, whether of like or
different nature.
5. CANCELLATION OF SHARES. If the Corporation shall make
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Purchased Shares to be repurchased in
accordance with the provisions of this Agreement, then from and after such
time, the person from whom such shares are to be repurchased shall no longer
have any rights as a holder of such shares (other than the right to receive
payment of such consideration in accordance with this Agreement). Such
shares shall be deemed purchased in accordance with the applicable provisions
hereof, and the Corporation shall be deemed the owner and holder of such
shares, whether or not the certificates therefor have been delivered as
required by this Agreement.
6. PARTICIPANT UNDERTAKING. Participant hereby agrees to take
whatever additional action and execute whatever additional documents the
Corporation may deem necessary or advisable in order to carry out or effect
one or more of the obligations or restrictions imposed on either Participant
or the Purchased Shares pursuant to the provisions of this Agreement.
7. AGREEMENT IS ENTIRE CONTRACT. This Agreement constitutes the
entire contract between the parties hereto with regard to the subject matter
hereof. This Agreement is made pursuant to the provisions of the Plan and
shall in all respects be construed in conformity with the terms of the Plan.
5.
<PAGE>
8. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without
resort to that State's conflict-of-laws rules.
9. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
10. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall inure to the benefit of, and be binding upon, the Corporation and its
successors and assigns and upon Participant, Participant's assigns and the
legal representatives, heirs and legatees of Participant's estate, whether or
not any such person shall have become a party to this Agreement and have
agreed in writing to join herein and be bound by the terms hereof.
6.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first indicated above.
DOUBLECLICK, INC.
By: __________________________________
Title: _______________________________
Address: _____________________________
______________________________________
______________________________________
______________________________________
PARTICIPANT
Address: _____________________________
______________________________________
7.
<PAGE>
EXHIBIT I
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED ___________________ hereby sell(s), assign(s)
and transfer(s) unto DoubleClick, Inc. (the "Corporation"), _____________
(____) shares of the Common Stock of the Corporation standing in his or her
name on the books of the Corporation represented by Certificate No.
__________ herewith and do(es) hereby irrevocably constitute and appoint
_________________ Attorney to transfer the said stock on the books of the
Corporation with full power of substitution in the premises.
Dated:_____________, 199_.
Signature ______________________________
INSTRUCTION: Please do not fill in any blanks other than the signature line.
Please sign exactly as you would like your name to appear on the issued stock
certificate. The purpose of this assignment is to enable the Corporation to
exercise the Repurchase Right without requiring additional signatures on the
part of Participant.
<PAGE>
EXHIBIT II
SECTION 83(b) TAX ELECTION
This statement is being made under Section 83(b) of the Internal Revenue
Code, pursuant to Treas. Reg. Section 1.83-2.
(1) The taxpayer who performed the services is:
Name:
Address:
Taxpayer Ident. No.:
(2) The property with respect to which the election is being made is ________
shares of the common stock of DoubleClick, Inc.
(3) The property was issued on ___________, 199__.
(4) The taxable year in which the election is being made is the calendar year
199__.
(5) The property is subject to a repurchase right pursuant to which the
issuer has the right to acquire the property at the original purchase
price if for any reason taxpayer's employment with the issuer is
terminated. The issuer's repurchase right lapses in a series of annual
and monthly installments over a four (4)-year period ending on
_____________________________.
(6) The fair market value at the time of transfer (determined without regard
to any restriction other than a restriction which by its terms will
never lapse) is $___________ per share.
(7) The amount paid for such property is $____________ per share.
(8) A copy of this statement was furnished to DoubleClick, Inc. for whom
taxpayer rendered the services underlying the transfer of property.
(9) This statement is executed on ________________________, 199__.
____________________________ ____________________________________
Spouse (if any) Taxpayer
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE CENTER WITH
WHICH TAXPAYER FILES HIS OR HER FEDERAL INCOME TAX RETURNS AND MUST BE MADE
WITHIN THIRTY (30) DAYS AFTER THE EXECUTION DATE OF THE STOCK ISSUANCE
AGREEMENT. THIS FILING SHOULD BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED. PARTICIPANT MUST RETAIN TWO (2) COPIES OF THE
COMPLETED FORM FOR FILING WITH HIS OR HER FEDERAL AND STATE TAX RETURNS FOR
THE CURRENT TAX YEAR AND AN ADDITIONAL COPY FOR HIS OR HER RECORDS.
<PAGE>
APPENDIX
The following definitions shall be in effect under the Agreement:
A. AGREEMENT shall mean this Stock Issuance Agreement.
B. BOARD shall mean the Corporation's Board of Directors.
C. CODE shall mean the Internal Revenue Code of 1986, as amended.
D. COMMON STOCK shall mean the Corporation's common stock.
E. CHANGE IN CONTROL shall mean any of the following transactions:
(A) a merger or consolidation approved by the Corporation's
stockholders in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different
from the persons holding those securities immediately prior to such
transaction,
(B) any stockholder-approved sale, transfer or other
disposition of all or substantially all of the Corporation's assets in
complete liquidation or dissolution of the Corporation, or
(C) the acquisition, directly or indirectly by any person or
related group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Corporation), of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as
amended) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding securities
pursuant to a tender or exchange offer made directly to the
Corporation's stockholders.
F. CORPORATION shall mean DoubleClick, Inc., a Delaware corporation.
G. OWNER shall mean Participant and all subsequent holders of the
Purchased Shares who derive their chain of ownership through a Permitted
Transfer from Participant.
A-1.
<PAGE>
H. PARENT shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the
time of the determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
I. PARTICIPANT shall mean the person to whom the Purchased Shares
are issued under the Stock Issuance Program.
J. PERMITTED TRANSFER shall mean (i) a gratuitous transfer of the
Purchased Shares, PROVIDED AND ONLY IF Participant obtains the Corporation's
prior written consent to such transfer, (ii) a transfer of title to the
Purchased Shares effected pursuant to Participant's will or the laws of
intestate succession following Participant's death or (iii) a transfer to the
Corporation in pledge as security for any purchase-money indebtedness
incurred by Participant in connection with the acquisition of the Purchased
Shares.
K. PLAN shall mean the Corporation's 1997 Stock Incentive Plan.
L. PLAN ADMINISTRATOR shall mean either the Board or a committee of the
Board acting in its administrative capacity under the Plan.
M. PURCHASE PRICE shall have the meaning assigned to such term in
Paragraph A.1.
N. PURCHASED SHARES shall have the meaning assigned to such term in
Paragraph A.1.
O. RECAPITALIZATION shall mean any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the Corporation's outstanding Common Stock as a class without the
Corporation's receipt of consideration.
P. REPURCHASE RIGHT shall mean the right granted to the Corporation in
accordance with Article C.
Q. SERVICE shall mean the Participant's performance of services for the
Corporation (or any Parent or Subsidiary) in the capacity of an employee,
subject to the control and direction of the employer entity as to both the
work to be performed and the manner and method of performance, a non-employee
member of the board of directors or a consultant.
R. STOCK ISSUANCE PROGRAM shall mean the Stock Issuance Program under
the Plan.
A-2.
<PAGE>
S. SUBSIDIARY shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain
owns, at the time of the determination, stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
T. VESTING SCHEDULE shall mean the vesting schedule specified in
Paragraph C.3, subject to the acceleration provisions of Paragraph C.5.
U. UNVESTED SHARES shall have the meaning assigned to such term in
Paragraph C.1.
A-3.
<PAGE>
Exhibit 99.7
ADDENDUM
TO
STOCK ISSUANCE AGREEMENT
The following provisions are hereby incorporated into, and are
hereby made a part of, that certain Stock Issuance Agreement dated
_______________________, 199__ (the "Issuance Agreement") by and between
DoubleClick, Inc. (the "Corporation") and __________________________________
("Participant") evidencing the stock issuance (the "Issuance") on such date
to Participant under the terms of the Corporation's 1997 Stock Incentive Plan
(the "Plan"), and such provisions shall be effective immediately. All
capitalized terms used in this Addendum, to the extent not otherwise
specifically defined herein, shall have the meanings assigned to such terms
in the Issuance Agreement.
PART ONE: VESTING ACCELERATION UPON CHANGE IN CONTROL
To the extent the Repurchase Right is assigned to the
successor entity (or parent company) in connection with a Change in Control,
the Repurchase Right shall terminate automatically with respect to the
Purchased Shares in an amount equal to the sum of (i) the number of Purchased
Shares that would have become vested during the twelve (12)-month period
following the Change in Control in accordance with the Vesting Schedule
indicated in the Issuance Agreement if the Participant had remained in
Service through that date. No such termination of the Repurchase Right shall
occur, however, to the extent the acceleration of the vesting of the
Purchased Shares would, when added to the present value of certain other
payments in the nature of compensation which become due and payable to
Participant in connection with the Change in Control, result in the payment
to Participant of an excess parachute payment under Code Section 280G(b).
The determination of any such excess parachute payment shall be made by the
Plan Administrator in accordance with the guidelines set forth in Part Two of
this Addendum, and such determination shall be final, binding and conclusive.
PART TWO: DETERMINATION OF SECTION 280G LIMITATION
A. The following definitional provisions are to be utilized in
making all determinations and calculations with respect to any parachute
payments to which Participant may be entitled in connection with a Change in
Control:
ACTUAL AVERAGE COMPENSATION means Participant's average W-2 wages
and other compensation received from the Corporation for the five (5)
calendar years (or such fewer number of actual calendar years of employment
with the Corporation) completed immediately prior to the calendar year in
which the Change in Control is effected. Any W-2 wages or other compensation
for a partial year of employment with the Corporation shall be annualized, in
accordance with the frequency with which such wages are paid during such
partial year, before inclusion within Actual Average Compensation. Should
Participant's Service with the Corporation commence in the calendar year in
which the Change in Control is effected, then
<PAGE>
Actual Average Compensation shall be equal in amount to the rate of base
salary in effect for the Participant for that year plus all other items of
compensation received from the Corporation for such year. If any of
Participant's compensation from the Corporation during such five (5)-year or
shorter period was not included in Participant's W-2 wages for U.S. income
tax purposes, either because Participant was not a U.S. citizen or resident
or because such compensation was excludible from income as foreign earned
income under Code Section 911 or as pre-tax income under Code Section 125 or
402(g), then such compensation shall nevertheless be included in Actual
Average Compensation to the same extent as if it were part of Participant's
W-2 wages.
CODE means the Internal Revenue Code of 1986, as periodically amended.
FAIR MARKET VALUE means, with respect to any shares of Common
Stock, the closing selling price per share of Common Stock on the date in
question on the Nasdaq National Market, as such price is reported on the
Nasdaq National Market or any successor system. If there is no such reported
price on the date in question, then the Fair Market Value shall be the
closing selling price on the last preceding date for which such quotation
exists.
ISSUANCE means any Purchased Shares held by the Participant under
the Corporation's 1997 Stock Incentive Plan (the "1997 Plan") or the
Corporation's predecessor 1997 Stock Option Plan (the "Predecessor Plan") and
unvested at the time of the Change in Control. Such Issuances are to be
divided into two separate categories as follows:
- RESTRICTED ISSUANCES: unvested Purchased Shares subject
to the Issuance Agreement and any other Issuance of which the
acceleration of the vesting of such shares is limited, pursuant to the
express provisions of the instrument evidencing the issuance, to an
amount which will not result in an excess parachute payment under Code
Section 280G and the Treasury Regulations issued thereunder.
- UNRESTRICTED ISSUANCES: any unvested Purchased Shares of
which the acceleration of the vesting of those shares is not subject to
any limitations under the instrument of issuance which is designed to
avoid an excess parachute payment under Code Section 280G and the
Treasury Regulations issued thereunder.
ISSUANCE PARACHUTE PAYMENT means, with respect to each Issuance
which is accelerated under either the 1997 Plan or the Predecessor Plan upon
the Change in Control, the portion of that Issuance deemed to be a parachute
payment under Code Section 280G and the Treasury Regulations issued
thereunder. The portion of such Issuance which is categorized as an Issuance
Parachute Payment shall be calculated in accordance with the valuation
provisions established under Code Section 280G and the applicable Treasury
Regulations and shall include an appropriate dollar adjustment to reflect the
lapse of Participant's obligation to remain in Service as a condition to
vesting of the Purchased Shares subject to the accelerated installment.
2.
<PAGE>
In no event, however, shall the Issuance Parachute Payment attributable to
any Issuance exceed the spread of the Issuance (the excess of the Fair Market
Value of the accelerated shares over the issuance price payable for those
shares).
OTHER PARACHUTE PAYMENTS means any payments in the nature of
compensation (other than the vesting acceleration of the Purchased Shares
under the Plan) to which Participant may become entitled in connection with
the Change in Control, whether payable at that time or upon Participant's
subsequent termination of Employee status, and which accordingly qualify as
parachute payments within the meaning of Code Section 280G(b)(2) and the
Treasury Regulations issued thereunder.
PRESENT VALUE means the value, determined as of the effective date
of the Change in Control, of any payment in the nature of compensation which
Participant becomes entitled to receive from the Corporation in connection
therewith, including (without limitation) the Issuance Parachute Payment
attributable to the Issuance evidenced by this Issuance Agreement and the
aggregate Issuance Parachute Payment attributable to all other Issuances of
Participant which accelerate upon the Change in Control. The Present Value
of any such payment which is not otherwise due and payable at the time of the
Change in Control shall be determined in accordance with the provisions of
Code Section 280G(d)(4), utilizing a discount rate equal to one hundred
twenty percent (120%) of the applicable Federal rate in effect at the time of
such determination, compounded semi-annually to the effective date of the
Change in Control.
PURCHASED SHARES shall mean the shares purchased by the Participant
pursuant to each Issuance under the Plan.
SEVERANCE PAYMENT means the lump-sum cash payment to which
Participant may become entitled, pursuant to separate letter agreement with
the Corporation, upon the involuntary termination of his or her Employee
status within eighteen (18) months following certain changes in control of
the Corporation.
B. The extent to which the Issuance evidenced by this Issuance
Agreement and all other Restricted Issuances are to accelerate upon the
Change in Control shall be determined as follows:
FIRST, there is to be determined the Issuance Parachute
Payment attributable to each Unrestricted Issuance (or installment
thereof) which accelerates upon the Change in Control,
THEN, there is to be determined the Issuance Parachute Payment
attributable to each Restricted Issuance (or installment thereof) which
is subject to acceleration upon the Change in Control.
3.
<PAGE>
To the extent the aggregate Issuance Parachute Payment
calculated for the Unrestricted Issuances does not exceed 2.99 times
Participant's Actual Average Compensation, then the Restricted Issuances
shall be accelerated until the Issuance Parachute Payments attributable to
such Restricted Issuances, when added to the aggregate Issuance Parachute
Payment attributable to the Unrestricted Issuances, equal 2.99 times
Participant's Actual Average Compensation.
C. If the aggregate Issuance Parachute Payment attributable to
the Restricted Issuances which would otherwise accelerate upon the Change in
Control would, when added to the aggregate Issuance Parachute Payment
attributable to the accelerated Unrestricted Issuances, exceed 2.99 times
Participant's Actual Average Compensation, then the Restricted Issuances will
be accelerated in the order of their share spread (the Fair Market Value of
the unvested Purchased Shares at the time of the Change in Control less the
stock issuance price payable for those shares), with the Restricted Issuances
with the highest share spread to be the first to be accelerated, until the
aggregate Issuance Parachute Payment attributable to the Restricted Issuances
(or installments thereof) so accelerated equals the difference between (i)
2.99 times Participant's Actual Average Compensation and (ii) the aggregate
Issuance Parachute Payment attributable to the Unrestricted Issuances.
D. Accordingly, except as otherwise provided under Paragraph F.
below, neither the Issuance evidenced by this Issuance Agreement nor any
other Restricted Issuance is to accelerate upon the Change in Control if and
to the extent the Issuance Parachute Payments attributable to the
installments thereof which would otherwise accelerate upon such Change in
Control would, when added to the Issuance Parachute Payments attributable to
the Unrestricted Issuances which accelerate upon such Change in Control,
exceed in amount 2.99 times Participant's Actual Average Compensation.
E. In the event there is any dispute with Participant as to
whether one or more payments to which Participant may become entitled in
connection with the Change in Control constitute Issuance Parachute Payments
or Other Parachute Payments, such dispute shall be resolved as follows:
- In the event temporary, proposed or final Treasury
Regulations in effect at the time under Code Section 280G (or applicable
judicial decisions) specifically address the status of any such payment
or the method of valuation therefor, the characterization afforded to
such payment by the Regulations (or such decisions) shall, together with
the applicable valuation methodology, be controlling.
- In the event the Regulations (or applicable judicial
decisions) do not address the status of any payment in dispute, the
matter shall be submitted for resolution to independent counsel mutually
acceptable to the Corporation and Participant ("Independent Counsel").
The resolution reached by Independent
4.
<PAGE>
Counsel shall be final and controlling; PROVIDED, however, that if in
the judgment of Independent Counsel the status of the payment in dispute
can be resolved through the obtainment of a private letter ruling from
the Internal Revenue Service, a formal and proper request for such
ruling shall be prepared and submitted by Independent Counsel, and the
determination made by the Internal Revenue Service in the issued ruling
shall be controlling. All expenses incurred in connection with the
retention of Independent Counsel and (if applicable) the preparation and
submission of the ruling request shall be shared equally by the
Corporation and Participant.
- In the event the Regulations (or applicable judicial
decisions) do not address the appropriate valuation methodology for any
payment in dispute, the value thereof shall, at the Independent
Counsel's election, be determined through an independent third-party
appraisal, and the expenses incurred in obtaining such appraisal shall
be shared equally by the Corporation and Participant.
F. Notwithstanding any provision to the contrary set forth in the
preceding paragraphs, the aggregate Issuance Parachute Payment attributable
to the Issuances accelerated upon the Change in Control shall not be reduced
below that amount (if any) which, when added to the Present Value of all the
Other Parachute Payments to which Participant becomes entitled in connection
with such Change in Control, would nevertheless qualify as reasonable
compensation within the standards established under Code Section 280G(b)(4).
G. Participant shall not be entitled to any Severance Payment in
the event that the aggregate Issuance Parachute Payment attributable to all
Restricted and Unrestricted Issuances which accelerate upon the Change in
Control equals or exceeds 2.99 times Participant's Actual Average
Compensation.
H. These guidelines shall in all events be interpreted in such
manner as shall avoid the imposition of excise taxes under Code Section 4999
and the disallowance of deductions under Code Section 280G(a) with respect to
the acceleration of Participant's Restricted Issuances in connection with the
Change in Control.
I. Not withstanding the existence of one or more payments in
dispute under Paragraph E. above and subject to the terms of the Issuance
Agreement, Participant shall have the right to direct the sale of Purchased
Shares under a Restricted Issuance, provided the sale proceeds are
immediately deposited in escrow.
J. Once the requisite determinations under Paragraph E. have been
made, then to the extent the aggregate Issuance Parachute Payment
attributable to the Restricted Issuances which would otherwise accelerate
upon the Change in Control would, when added to the aggregate Issuance
Parachute Payment attributable to the accelerated Unrestricted Issuances,
5.
<PAGE>
exceed 2.99 times Participant's Actual Average Compensation or other
applicable limitation under Paragraph F. above, such acceleration shall be
precluded through the disposition of one or more Restricted Issuances as
follows:
FIRST, any unvested Purchased Shares subject to Restricted
Issuances shall immediately be cancelled. If there is more than one
such Restricted Issuance outstanding, then the cancellation of the
unvested Purchased Shares subject to Issuances shall occur in the
following order: the unvested Purchased Shares subject to the Restricted
Issuances with the lowest share spread shall be the first to be
cancelled.
THEN, the sales of unvested Purchased Shares subject to one or
more Restricted Issuances (or installments thereof) shall be rescinded
(with the Restricted Issuances with the lowest share spread to be the
first to be rescinded) by refunding to the Participant the share price
paid for the Purchased Shares and returning those shares (plus an cash
dividends paid thereon in connection with the Change in Control) to the
Corporation. To the extent the sales of unvested Purchased Shares (or
accelerated installments thereof) shall have been sold and the proceeds
are held in escrow, the sale proceeds attributable to those shares shall
be allocated as follows: first an amount not to exceed the share price
paid for such shares shall be refunded to Participant, and then the
balance of the proceeds (together with any cash dividends paid on those
shares in connection with the Change in Control) shall be returned to
the Corporation.
K. To the extent any cash proceeds remain in the escrow account
after the reductions specified in Paragraph J. above have been made, those
proceeds shall be promptly distributed to Participant.
6.
<PAGE>
IN WITNESS WHEREOF, DoubleClick, Inc. has caused this Addendum to
be executed by its duly-authorized officer, and Participant has executed this
Addendum, all as of the Effective Date specified below.
DOUBLECLICK, INC.
By ________________________________________
Title _____________________________________
___________________________________________
PARTICIPANT
EFFECTIVE DATE: ______________________, 199_
7.
<PAGE>
Exhibit 99.8
ADDENDUM
TO
STOCK ISSUANCE AGREEMENT
The following provisions are hereby incorporated into, and are
hereby made a part of, that certain Stock Issuance Agreement dated
__________________ (the "Issuance Agreement") by and between DoubleClick,
Inc. (the "Corporation") and ____________________ ("Participant") evidencing
the stock issuance on such date to Participant under the terms of the
Corporation's 1997 Stock Incentive Plan, and such provisions shall be
effective immediately. All capitalized terms in this Addendum, to the extent
not otherwise defined herein, shall have the meanings assigned to them in the
Issuance Agreement.
INVOLUNTARY TERMINATION FOLLOWING A
CHANGE IN CONTROL
1. To the extent the Repurchase Right is assigned to the
successor entity (or parent company) in connection with a Change in Control,
no accelerated vesting of the Purchased Shares shall occur upon such Change
in Control, and the Repurchase right shall continue to remain in full force
and effect in accordance with the provisions of the Issuance Agreement. The
Participant shall, over Participant's period of Service following the Change
in Control, continue to vest in the Purchased Shares in one or more
installments in accordance with the provisions of the Issuance Agreement.
However, immediately upon an Involuntary Termination of Participant's Service
within twelve (12) months following the Change in Control, the Repurchase
Right shall terminate automatically with respect to the Purchased Shares in
an amount equal to the number of Purchased Shares that would have become
vested during the twelve (12)-month period following the Involuntary
Termination in accordance with the Vesting Schedule indicated in the Issuance
Agreement if the Participant had remained in Service through that date.
2. For purposes of this Addendum the following definitions shall
be in effect:
(i) An INVOLUNTARY TERMINATION shall mean the termination
of Participant's Service by reason of:
(A) Participant's involuntary dismissal or discharge by
the Corporation for reasons other than Misconduct, or
(B) Participant's voluntary resignation following (A) a
change in Participant's position with the Corporation (or Parent or
Subsidiary employing Participant) which materially reduces
Participant's level of responsibility, (B) a reduction in
Participant's level of compensation (including base salary, fringe
benefits and target bonus under any corporate-performance based
bonus or incentive programs) by more
<PAGE>
than fifteen percent (15%) or (C) a relocation of Participant's
place of employment by more than fifty (50) miles, provided and
only if such change, reduction or relocation is effected by the
Corporation without Participant's consent.
(ii) MISCONDUCT shall mean the commission of any act of fraud,
embezzlement or dishonesty by the Participant, any unauthorized use or
disclosure by such person of confidential information or trade secrets
of the Corporation (or any Parent or Subsidiary), or any other
intentional misconduct by such person adversely affecting the business
or affairs of the Corporation (or any Parent or Subsidiary) in a
material manner. The foregoing definition shall not be deemed to be
inclusive of all the acts or omissions which the Corporation (or any
Parent or Subsidiary) may consider as grounds for the dismissal or
discharge of any Participant in the Service of the Corporation (or any
Parent or Subsidiary).
IN WITNESS WHEREOF, DoubleClick, Inc. has caused this Addendum to
be executed by its duly-authorized officer as of the Effective Date specified
below.
DOUBLECLICK, INC.
By: ______________________________________
Title: ___________________________________
EFFECTIVE DATE: ___________________, 199_
2.
<PAGE>
Exhibit 99.9
INITIAL GRANT
DOUBLECLICK, INC.
NOTICE OF GRANT OF NON-EMPLOYEE DIRECTOR
AUTOMATIC STOCK OPTION
Notice is hereby given of the following option grant (the "Option")
to purchase shares of the Common Stock of DoubleClick, Inc. (the
"Corporation"):
OPTIONEE: __________________________________________________________
GRANT DATE: ________________________________________________________
EXERCISE PRICE: $ _______________________________________ per share
NUMBER OF OPTION SHARES: 50,000 shares
EXPIRATION DATE: ___________________________________________________
TYPE OF OPTION: Non-Statutory Stock Option
DATE EXERCISABLE: Immediately Exercisable
VESTING SCHEDULE: The Option Shares shall initially be unvested
and subject to repurchase by the Corporation at the Exercise Price
paid per share. Optionee shall acquire a vested interest in, and
the Corporation's repurchase right shall accordingly lapse with
respect to, the Option Shares in a series of four (4) successive
equal annual installments upon Optionee's completion of each year
of service as a member of the Corporation's Board of Directors (the
"Board") over the four (4)-year period measured from the Grant
Date. In no event shall any additional Option Shares vest after
Optionee's cessation of Board service.
Optionee understands and agrees that the Option is granted subject
to and in accordance with the terms of the automatic option grant program
under the DoubleClick, Inc. 1997 Stock Incentive Plan (the "Plan"). Optionee
further agrees to be bound by the terms of the Plan and the terms of the
Option as set forth in the Automatic Stock Option Agreement attached hereto
as Exhibit A. A copy of the Plan is available upon request made to the
Corporate Secretary at the Corporation's principal offices.
<PAGE>
REPURCHASE RIGHT. OPTIONEE HEREBY AGREES THAT ALL UNVESTED OPTION
SHARES ACQUIRED UPON THE EXERCISE OF THE OPTION SHALL NOT BE TRANSFERABLE AND
SHALL BE SUBJECT TO REPURCHASE BY THE CORPORATION, AT THE EXERCISE PRICE PAID
PER SHARE, UPON OPTIONEE'S TERMINATION OF SERVICE AS A MEMBER OF THE
CORPORATION'S BOARD OF DIRECTORS PRIOR TO VESTING IN THOSE SHARES. THE TERMS
AND CONDITIONS OF SUCH REPURCHASE RIGHT SHALL BE SPECIFIED IN A STOCK
PURCHASE AGREEMENT, IN FORM AND SUBSTANCE SATISFACTORY TO THE CORPORATION,
EXECUTED BY OPTIONEE AT THE TIME OF THE OPTION EXERCISE.
NO IMPAIRMENT OF RIGHTS. Nothing in this Notice or in the attached
Automatic Stock Option Agreement or the Plan shall interfere with or
otherwise restrict in any way the rights of the Corporation or the
Corporation's stockholders to remove Optionee from the Board at any time in
accordance with the provisions of applicable law.
DEFINITIONS. All capitalized terms in this Notice shall have the
meaning assigned to them in this Notice or in the attached Automatic Stock
Option Agreement.
DATED: __________________, 199_
DOUBLECLICK, INC.
By: ______________________________________
Title: ___________________________________
___________________________________
OPTIONEE
Address: _________________________________
_________________________________
ATTACHMENTS
EXHIBIT A - AUTOMATIC STOCK OPTION AGREEMENT
2.
<PAGE>
EXHIBIT A
AUTOMATIC STOCK OPTION AGREEMENT
<PAGE>
Exhibit 99.10
ANNUAL GRANT
DOUBLECLICK, INC.
NOTICE OF GRANT OF NON-EMPLOYEE DIRECTOR
AUTOMATIC STOCK OPTION
Notice is hereby given of the following option grant (the "Option")
to purchase shares of the Common Stock of DoubleClick, Inc. (the
"Corporation"):
OPTIONEE: __________________________________________________________
GRANT DATE: ________________________________________________________
EXERCISE PRICE: $ _______________________________________ per share
NUMBER OF OPTION SHARES: 10,000 shares
EXPIRATION DATE: ___________________________________________________
TYPE OF OPTION: Non-Statutory Stock Option
DATE EXERCISABLE: Immediately Exercisable
VESTING SCHEDULE: The Option Shares shall initially be unvested
and subject to repurchase by the Corporation at the Exercise Price
paid per share. Optionee shall acquire a vested interest in, and
the Corporation's repurchase right shall accordingly lapse with
respect to, the Option Shares upon the Optionee's completion of one
year of service as a member of the Corporation's Board of Directors
(the "Board") measured from the Grant Date. In no event shall any
additional Option Shares vest after Optionee's cessation of Board
service.
Optionee understands and agrees that the Option is granted subject
to and in accordance with the terms of the automatic option grant program
under the DoubleClick, Inc. 1997 Stock Incentive Plan (the "Plan"). Optionee
further agrees to be bound by the terms of the Plan and the terms of the
Option as set forth in the Automatic Stock Option Agreement attached hereto
as Exhibit A. A copy of the Plan is available upon request made to the
Corporate Secretary at the Corporation's principal offices.
<PAGE>
REPURCHASE RIGHT. OPTIONEE HEREBY AGREES THAT ALL UNVESTED OPTION
SHARES ACQUIRED UPON THE EXERCISE OF THE OPTION SHALL NOT BE TRANSFERABLE AND
SHALL BE SUBJECT TO REPURCHASE BY THE CORPORATION, AT THE EXERCISE PRICE PAID
PER SHARE, UPON OPTIONEE'S TERMINATION OF SERVICE AS A MEMBER OF THE
CORPORATION'S BOARD OF DIRECTORS PRIOR TO VESTING IN THOSE SHARES. THE TERMS
AND CONDITIONS OF SUCH REPURCHASE RIGHT SHALL BE SPECIFIED IN A STOCK
PURCHASE AGREEMENT, IN FORM AND SUBSTANCE SATISFACTORY TO THE CORPORATION,
EXECUTED BY OPTIONEE AT THE TIME OF THE OPTION EXERCISE.
NO IMPAIRMENT OF RIGHTS. Nothing in this Notice or in the attached
Automatic Stock Option Agreement or the Plan shall interfere with or
otherwise restrict in any way the rights of the Corporation or the
Corporation's stockholders to remove Optionee from the Board at any time in
accordance with the provisions of applicable law.
DEFINITIONS. All capitalized terms in this Notice shall have the
meaning assigned to them in this Notice or in the attached Automatic Stock
Option Agreement.
DATED: ______________________, 199_
DOUBLECLICK, INC.
By: ______________________________________
Title: ___________________________________
___________________________________
OPTIONEE
Address: _________________________________
_________________________________
ATTACHMENTS
EXHIBIT A - AUTOMATIC STOCK OPTION AGREEMENT
2.
<PAGE>
EXHIBIT A
AUTOMATIC STOCK OPTION AGREEMENT
<PAGE>
DOUBLECLICK, INC.
AUTOMATIC STOCK OPTION AGREEMENT
--------------------------------
RECITALS
- --------
A. DoubleClick, Inc. has implemented an automatic option grant program
under the Corporation's 1997 Stock Incentive Plan pursuant to which eligible
non-employee members of the Corporation's Board will automatically receive
special option grants at designated intervals over their period of Board
service in order to provide such individuals with a meaningful incentive to
continue to serve as a member of the Board.
B. Optionee is an eligible non-employee Board member, and this
Agreement is executed pursuant to, and is intended to carry out the purposes
of, the Plan in connection with the automatic grant of a stock option to
purchase shares of the Corporation's Common Stock under the Plan.
C. The granted option is intended to be a non-statutory option which
does NOT meet the requirements of Section 422 of the Internal Revenue Code.
D. All capitalized terms in this Agreement, to the extent not
otherwise defined in the Agreement, shall have the meaning assigned to them
in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. The Corporation hereby grants to Optionee,
as of the Grant Date, a Non-Statutory Option to purchase up to the number of
Option Shares specified in the Grant Notice. The Option Shares shall be
purchasable from time to time during the option term specified in Paragraph 2
at the Exercise Price.
2. OPTION TERM. This option shall have a maximum term of ten
(10) years measured from the Grant Date and shall accordingly expire at the
close of business on the Expiration Date, unless sooner terminated in
accordance with Paragraph 5 or 6.
3. LIMITED TRANSFERABILITY. This option may, in connection with
the Optionee's estate plan, be assigned in whole or in part during Optionee's
lifetime to one or more members of the Optionee's immediate family or to a
trust established for the exclusive benefit of one or more such family
members. The assigned portion shall be exercisable only by the person or
persons who acquire a proprietary interest in the option pursuant to such
assignment. The terms applicable to the assigned portion shall be the same as
those in effect for this option immediately prior to such assignment and
shall be set forth in such documents issued to the assignee as the
Corporation may deem appropriate. Should the Optionee die while holding this
option, then this option shall be transferred in accordance with Optionee's
will or the laws of descent and distribution.
<PAGE>
4. EXERCISABILITY/VESTING.
(a) This option shall be immediately exercisable for any or
all of the Option Shares, whether or not the Option Shares are vested in
accordance with the Vesting Schedule set forth in the Grant Notice, and shall
remain so exercisable until the Expiration Date or the sooner termination of
the option term under Paragraph 5 or 6.
(b) Optionee shall, in accordance with the Vesting Schedule
set forth in the Grant Notice, vest in the Option Shares in a series of
installments over his or her period of Board service. Vesting in the Option
Shares may be accelerated pursuant to the provisions of Paragraph 5 or 6. In
no event, however, shall any additional Option Shares vest following
Optionee's cessation of service as a Board member.
5. CESSATION OF BOARD SERVICE. Should Optionee's service as a
Board member cease while this option remains outstanding, then the option
term specified in Paragraph 2 shall terminate (and this option shall cease to
be outstanding) prior to the Expiration Date in accordance with the following
provisions:
(i) Should Optionee cease to serve as a Board member for
any reason (other than death or Permanent Disability) while holding this
option, then the period for exercising this option shall be reduced to a
twelve (12)-month period commencing with the date of such cessation of
Board service, but in no event shall this option be exercisable at any time
after the Expiration Date. During such limited period of exercisability,
this option may not be exercised in the aggregate for more than the number
of Option Shares (if any) in which Optionee is vested on the date of his or
her cessation of Board service. Upon the EARLIER of (i) the expiration of
such twelve (12)-month period or (ii) the specified Expiration Date, the
option shall terminate and cease to be exercisable with respect to any
vested Option Shares for which the option has not been exercised.
(ii) Should Optionee die during the twelve (12)-month period
following his or her cessation of Board service, then the personal
representative of Optionee's estate or the person or persons to whom the
option is transferred pursuant to Optionee's will or in accordance with the
laws of descent and distribution shall have the right to exercise this
option for any or all of the Option Shares in which Optionee is vested at
the time of Optionee's cessation of Board service (less any Option Shares
purchased by Optionee after such cessation of Board service but prior to
death). Such right of exercise shall terminate, and this option shall
accordingly cease to be exercisable for those vested Option Shares, upon
the EARLIER of (i) the expiration of the twelve (12)-month period measured
from the date of Optionee's cessation of Board service or (ii) the
specified Expiration Date of the option term.
2.
<PAGE>
(iii) Should Optionee cease service as a Board member by
reason of death or Permanent Disability, then all Option Shares at the time
subject to this option but not otherwise vested shall immediately vest in
full so that Optionee (or the personal representative of Optionee's estate
or the person or persons to whom the option is transferred upon Optionee's
death) shall have the right to exercise this option for any or all of the
Option Shares as fully-vested shares of Common Stock at any time prior to
the EARLIER of (i) the expiration of the twelve (12)-month period measured
from the date of Optionee's cessation of Board service or (ii) the
specified Expiration Date.
(iv) Upon Optionee's cessation of Board service for any
reason other than death or Permanent Disability, this option shall
immediately terminate and cease to be outstanding with respect to any and
all Option Shares in which Optionee is not otherwise at that time vested in
accordance with the normal Vesting Schedule set forth in the Grant Notice
or the special vesting acceleration provisions of Paragraph 6 below.
6. CHANGE IN CONTROL.
(a) In the event of a Change in Control, all Option Shares at
the time subject to this option but not otherwise vested shall automatically
vest so that this option shall, immediately prior to the specified effective
date for the Change in Control, become fully exercisable for all of the
Option Shares at the time subject to this option and may be exercised for all
or any portion of such shares as fully-vested shares of Common Stock.
Immediately following the consummation of the Change in Control, this option
shall terminate and cease to be outstanding, except to the extent assumed by
the successor corporation or its parent company.
(b) If this option is assumed in connection with a Change in
Control, then this option shall be appropriately adjusted, immediately after
such Change in Control, to apply to the number and class of securities which
would have been issuable to Optionee in consummation of such Change in
Control had the option been exercised immediately prior to such Change in
Control, and appropriate adjustments shall also be made to the Exercise
Price, PROVIDED the aggregate Exercise Price shall remain the same.
7. ADJUSTMENT IN OPTION SHARES. Should any change be made to the
Common Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the number and/or
class of securities subject to this option and (ii) the Exercise Price in
order to reflect such change and thereby preclude a dilution or enlargement
of benefits hereunder; provided, however, that the aggregate Exercise Price
shall remain the same.
8. STOCKHOLDER RIGHTS. The holder of this option shall not have
any stockholder rights with respect to the Option Shares until such person
shall have exercised the option, paid the Exercise Price and become a holder
of record of the purchased shares.
3.
<PAGE>
9. MANNER OF EXERCISING OPTION.
(a) In order to exercise this option for all or any part of
the Option Shares for which the option is at the time exercisable, Optionee
or, in the case of exercise after Optionee's death, Optionee's executor,
administrator, heir or legatee, as the case may be, must take the following
actions:
(i) To the extent the option is exercised for
vested Option Shares, the Secretary of the Corporation shall be
provided with written notice of the option exercise (the "Exercise
Notice") in substantially the form of Exhibit I attached hereto, in
which there is specified the number of vested Option Shares to be
purchased under the exercised option. To the extent that the option
is exercised for one or more unvested Option Shares, Optionee (or
other person exercising the option) shall deliver to the Secretary of
the Corporation a Purchase Agreement for those unvested Option Shares.
(ii) The Exercise Price for the purchased shares
shall be paid in one or more of the following alternative forms:
(A) cash or check made payable to the
Corporation's order; or
(B) shares of Common Stock held by Optionee (or
any other person or persons exercising the option) for the
requisite period necessary to avoid a charge to the Corporation's
earnings for financial reporting purposes and valued at Fair
Market Value on the Exercise Date; or
(C) to the extent the option is exercised for
vested Option Shares, through a special sale and remittance
procedure pursuant to which Optionee shall provide irrevocable
written instructions (A) to a Corporation-designated brokerage
firm to effect the immediate sale of the vested shares purchased
under the option and remit to the Corporation, out of the sale
proceeds available on the settlement date, sufficient funds to
cover the aggregate Exercise Price payable for those shares plus
the applicable Federal, state and local income taxes required to
be withheld by the Corporation by reason of such exercise and
(B) to the Corporation to deliver the certificates for the
purchased shares directly to such brokerage firm in order to
complete the sale.
(iii) Appropriate documentation evidencing the
right to exercise this option shall be furnished the Corporation if
the person or persons exercising the option is other than Optionee.
4.
<PAGE>
(iv) Appropriate arrangement must be made with the
Corporation for the satisfaction of all Federal, state and local
income tax withholding requirements applicable to the option exercise.
(b) Except to the extent the sale and remittance procedure
specified above is utilized in connection with the exercise of the option for
vested Option Shares, payment of the Exercise Price for the purchased shares
must accompany the Exercise Notice or Purchase Agreement delivered to the
Corporation in connection with the option exercise.
(c) As soon as practical after the Exercise Date, the
Corporation shall issue to or on behalf of Optionee (or any other person or
persons exercising this option) a certificate or certificates representing
the purchased Option Shares. To the extent any such Option Shares are
unvested, the certificates for those Option Shares shall be endorsed with an
appropriate legend evidencing the Corporation's repurchase rights and may be
held in escrow with the Corporation until such shares vest.
(d) In no event may this option be exercised for fractional
shares.
10. NO IMPAIRMENT OF RIGHTS. This Agreement shall not in any way
affect the right of the Corporation to adjust, reclassify, reorganize or
otherwise make changes in its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets. Nor shall this Agreement in any way be construed or
interpreted so as to affect adversely or otherwise impair the right of the
Corporation or the stockholders to remove Optionee from the Board at any time
in accordance with the provisions of applicable law.
11. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) The exercise of this option and the issuance of the
Option Shares upon such exercise shall be subject to compliance by the
Corporation and Optionee with all applicable requirements of law relating
thereto and with all applicable regulations of any stock exchange (or the
Nasdaq National Market, if applicable) on which the Common Stock may be
listed for trading at the time of such exercise and issuance.
(b) The inability of the Corporation to obtain approval from
any regulatory body having authority deemed by the Corporation to be
necessary to the lawful issuance and sale of any Common Stock pursuant to
this option shall relieve the Corporation of any liability with respect to
the non-issuance or sale of the Common Stock as to which such approval shall
not have been obtained. However, the Corporation shall use its best efforts
to obtain all such applicable approvals.
5.
<PAGE>
12. SUCCESSORS AND ASSIGNS. Except to the extent otherwise
provided in Paragraph 3 or 6, the provisions of this Agreement shall inure to
the benefit of, and be binding upon, the Corporation and its successors and
assigns and Optionee, Optionee's assigns and the legal representatives, heirs
and legatees of Optionee's estate.
13. CONSTRUCTION/GOVERNING LAW. This Agreement and the option
evidenced hereby are made and granted pursuant to the automatic option grant
program in effect under the Plan and are in all respects limited by and
subject to the express terms and provisions of that program. The
interpretation, performance, and enforcement of this Agreement shall be
governed by the laws of the State of New York without resort to that State's
conflict-of-laws rules.
14. NOTICES. Any notice required to be given or delivered to the
Corporation under the terms of this Agreement shall be in writing and
addressed to the Corporation at its principal corporate offices. Any notice
required to be given or delivered to Optionee shall be in writing and
addressed to Optionee at the address indicated below Optionee's signature
line on the Grant Notice. All notices shall be deemed effective upon personal
delivery or upon deposit in the U.S. mail, postage prepaid and properly
addressed to the party to be notified.
6.
<PAGE>
EXHIBIT I
NOTICE OF EXERCISE
I hereby notify DoubleClick, Inc. (the "Corporation") that I elect
to purchase _______ shares of the Corporation's Common Stock (the "Purchased
Shares") at the option exercise price of $ _______ per share (the "Exercise
Price") pursuant to that certain option (the "Option") granted to me pursuant
to the automatic option grant program under the Corporation's 1997 Stock
Incentive Plan on ______________________ , 199__ .
Concurrently with the delivery of this Exercise Notice to the
Secretary of the Corporation, I shall hereby pay to the Corporation the Exercise
Price for the Purchased Shares in accordance with the provisions of my agreement
with the Corporation evidencing the Option and shall deliver whatever additional
documents may be required by such agreement as a condition for exercise.
Alternatively, I may utilize the special broker/dealer sale and remittance
procedure specified in my agreement to effect payment of the Exercise Price for
any Purchased Shares in which I am vested at the time of exercise.
_________________________ , 199__
Date
____________________________________________
Optionee
Address: ___________________________________
____________________________________________
Print name in exact manner
it is to appear on the
stock certificate: ____________________________________________
Address to which certificate
is to be sent, if different
from address above: ____________________________________________
____________________________________________
____________________________________________
Social Security Number: ____________________________________________
<PAGE>
APPENDIX
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The following definitions shall be in effect under the Agreement:
A. AGREEMENT shall mean this Automatic Stock Option Agreement.
B. BOARD shall mean the Corporation's Board of Directors.
C. CHANGE IN CONTROL shall mean any of the following transactions:
(i) a merger or consolidation approved by the
Corporation's stockholders in which securities possessing more than
fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or
persons different from the persons holding those securities
immediately prior to such transaction,
(ii) any stockholder-approved sale, transfer or other
disposition of all or substantially all of the Corporation's assets
in complete liquidation or dissolution of the Corporation, or
(iii) the acquisition, directly or indirectly by any person
or related group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Corporation), of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended)
of securities possessing more than fifty percent (50%) of the total
combined voting power of the Corporation's outstanding securities pursuant
to a tender or exchange offer made directly to the Corporation's
stockholders.
D. CODE shall mean the Internal Revenue Code of 1986, as amended.
E. COMMON STOCK shall mean the Corporation's common stock.
F. CORPORATION shall mean DoubleClick, Inc., a Delaware corporation.
G. EXERCISE DATE shall mean the date on which the option shall have been
exercised in accordance with Paragraph 9 of the Agreement.
H. EXERCISE PRICE shall mean the exercise price payable per share as
specified in the Grant Notice.
I. EXPIRATION DATE shall mean the date on which the option term expires
as specified in the Grant Notice.
A-1.
<PAGE>
J. FAIR MARKET VALUE per share of Common Stock on any relevant date
shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the
Nasdaq National Market, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in question, as the
price is reported by the National Association of Securities Dealers on
the Nasdaq National Market or any successor system. If there is no
closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the
last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any
Stock Exchange, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question on the Stock
Exchange determined by the Plan Administrator to be the primary
market for the Common Stock, as such price is officially quoted in
the composite tape of transactions on such exchange. If there is no
closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the
last preceding date for which such quotation exists.
K. GRANT DATE shall mean the date of grant of the option as specified in
the Grant Notice.
L. GRANT NOTICE shall mean the Notice of Grant of Automatic Stock Option
accompanying this Agreement, pursuant to which Optionee has been informed of the
basic terms of the option evidenced hereby.
M. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
N. NON-STATUTORY OPTION shall mean an option not intended to satisfy the
requirements of Code Section 422.
O. OPTION SHARES shall mean the number of shares of Common Stock subject
to the option.
P. OPTIONEE shall mean the person to whom the option is granted as
specified in the Grant Notice.
Q. PERMANENT DISABILITY shall mean the inability of Optionee to perform
his or her usual duties as a Board member by reason of any medically
determinable physical or mental impairment which is expected to result in death
or has lasted or can be expected to last for a continuous period of twelve (12)
months or more.
A-2.
<PAGE>
R. PLAN shall mean Corporation's 1997 Stock Incentive Plan.
S. PURCHASE AGREEMENT shall mean the stock purchase agreement (in form
and substance satisfactory to the Corporation) which must be executed at the
time the option is exercised for unvested Option Shares and which will
accordingly (i) grant the Corporation the right to repurchase, at the Exercise
Price, any and all of those Option Shares in which Optionee is not otherwise
vested at the time of his or her cessation of service as a Board member and
(ii) preclude the sale, transfer or other disposition of any of the Option
Shares purchased under such agreement while those Option Shares remain subject
to the repurchase right.
T. STOCK EXCHANGE shall mean the American Stock Exchange or the New York
Stock Exchange.
U. VESTING SCHEDULE shall mean the vesting schedule specified in the
Grant Notice, pursuant to which Optionee will vest in the Option Shares in one
or more installments over his or her period of Board service, subject to
acceleration in accordance with the provisions of the Agreement.
A-3.
