<PAGE>
As filed with the Securities and Exchange Commission on November 8, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------
iVILLAGE INC.
(Exact Name of Registrant as Specified in Its Charter)
------------
Delaware 13-3845162
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
212 Fifth Avenue
New York, New York 10010
(Address of Principal Executive Offices) (Zip Code)
------------
Family Point Inc. Stock Option Plan
(Full Title of the Plan)
------------
Candice Carpenter
Co-Chairperson of the Board and Chief Executive Officer
iVillage Inc.
212 Fifth Avenue
New York, New York 10010
(Name and Address of Agent for Service)
(212) 206-3100
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Richard V. Smith, Esq.
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
(415) 392-1122
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Amount Proposed Proposed Amount of
Title of Securities to be To Be Maximum Offering Maximum Aggregate Registration
Registered Registered (1) Price Per Share(2) Offering Price (2) Fee
- --------------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C>
Common Stock, par value $0.01 per share 2,972 $ 1.86 $ 5,528 $ 2
- --------------------------------------------------------------------------------------------------------------------------------
45,628 $ 3.94 $ 179,774 $ 50
- --------------------------------------------------------------------------------------------------------------------------------
42,802 $ 15.41 $ 659,579 $ 183
- --------------------------------------------------------------------------------------------------------------------------------
Total 91,402 $ 235
================================================================================================================================
</TABLE>
(1) Pursuant to an Agreement and Plan of Reorganization, dated as of August 31,
1999 (the "Merger Agreement"), by and among the Registrant, Family Point
Acquisition Corporation, Family Point Inc., and the stockholders of Family
Point Inc., the Registrant assumed outstanding options to purchase capital
stock of Family Point Inc. under the Family Point Inc. Stock Option Plan
(the "Family Point Assumed Options"), with appropriate adjustments to the
number of shares and the exercise price of each Family Point Assumed Option
to reflect the ratio at which Family Point Inc. capital stock was converted
into Common Stock of the Registrant under the Merger Agreement.
(2) Pursuant to Rule 457(h)(1), the proposed maximum offering price per share
and the proposed maximum offering price have been calculated on the basis
of the exercise prices of options previously granted with respect to 91,402
shares.
1
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Employee Plan Annual Information *
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act
of 1933, as amended (the "Securities Act"), and the Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by iVillage Inc. (the "Registrant") with the
Securities and Exchange Commission (the "Commission") are hereby incorporated by
reference in this Registration Statement:
(a) The audited consolidated financial statements of the
Registrant and its Subsidiaries contained in the prospectus dated March
18, 1999 filed by the Registrant under Rule 424(b) (Registration No.
333-68749).
(b) The Registrant's Form 8-K Current Reports filed May 4,
1999, July 14, 1999, July 23, 1999, September 14, 1999, September 15,
1999, October 12, 1999, the Registrant's Form 8-K/A Amended Current
Reports filed September 13, 1999 and September 27, 1999 and the
Registrant's Quarterly Reports on Form 10-Q for the Quarterly Periods
ended March 31, 1999 and June 30, 1999 (File No. 000-25469).
(c) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-A (File No.
000-25469), including any subsequent amendment or report filed for the
purpose of updating that description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment indicating that all of the securities offered hereunder
have been sold or deregistering all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference in this
Registration Statement 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 that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
The consolidated financial statements of the Registrant as of December 31, 1998
and 1997 and for each of the years in the three-year period ended December 31,
1998 have been incorporated by reference in this Registration Statement in
reliance upon the report of PricewaterhouseCoopers LLP, independent certified
public accountants, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing. To the extent that
PricewaterhouseCoopers LLP audits and reports on financial statements of the
Registrant issued at future dates, and consents to the use of their report
thereon, such financial statements also will be incorporated by reference in the
registration statement in reliance upon their report and said authority.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
The validity of the common stock offered hereby will be passed upon for the
Registrant by Orrick, Herrington & Sutcliffe LLP, San Francisco, California. A
partner of Orrick, Herrington & Sutcliffe LLP owns an aggregate of 4,408 shares
of the Registrant's common stock.
2
<PAGE>
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides that a corporation
may indemnify directors and officers, as well as other employees and
individuals, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by any such person
in connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee or agent of the Registrant. The
Delaware General Corporation Law provides that Section 145 is not exclusive of
other rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Article XII of the Registrant's Amended and Restated Certificate of
Incorporation and Article VI of the Registrant's Bylaws provide for
indemnification by the Registrant of its directors and officers to the fullest
extent permitted by the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation
to provide in its certificate of incorporation that a director of the
corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which the director derived
an improper personal benefit. The Registrant's Amended and Restated Certificate
of Incorporation provides for such limitation of liability.
The Registrant has obtained directors' and officers' insurance providing
indemnification for certain of the Registrant's directors, officers and
employees for certain liabilities.
The Registrant has entered into indemnification agreements with each director
and executive officer which provide indemnification under certain circumstances
for acts and omissions which may not be covered by any directors' and officers'
liability insurance.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
Exhibit
Number Description
------- -----------
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Orrick, Herrington & Sutcliffe
LLP (included in Exhibit 5.1 to this
Registration Statement).
23.2 Consent of PricewaterhouseCoopers LLP
(iVillage).
23.3 Consent of PricewaterhouseCoopers LLP
(KnowledgeWeb).
23.4 Consent of PricewaterhouseCoopers LLP (Online
Psychological Services).
23.5 Consent of PricewaterhouseCoopers LLP (Health
ResponseAbility Systems, Inc.).
23.4 Consent of PricewaterhouseCoopers LLP (Lamaze
Publishing Company, Inc.).
24 Powers of Attorney (included on page 5).
99.1 Family Point Inc. Stock Option Plan
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
3
<PAGE>
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement; provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed with or
furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on the 8th of November,
1999.
iVILLAGE INC.
(Registrant)
By: /s/ Candice Carpenter
- -------------------------
Candice Carpenter
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears
below each severally constitutes and appoints Candice Carpenter and Steven A.
Elkes, and each of them, as true and lawful attorneys-in-fact and agents, with
full powers of substitution and resubstitution, for them in their name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they might or could do in
person, hereby ratifying and confirming all which said attorneys-in-fact and
agents, or any of them, or their substitute or substitutes, may lawfully do, or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
Co-Chairperson of the Board of Directors and November 8, 1999
/s/ Candice Carpenter Chief Executive Officer
Candice Carpenter (Principal Executive Officer)
Co-Chairperson of the Board of Directors and
/s/ Nancy Evans Editor-in-Chief November 8, 1999
Nancy Evans
/s/ Craig T. Monaghan Chief Financial Officer November 8, 1999
Craig T. Monaghan (Principal Financial Officer)
Vice President, Controller and Chief
/s/ Scott Levine Accounting Officer November 8, 1999
Scott Levine (Principal Accounting Officer)
/s/ Alan Colner Director November 8, 1999
Alan Colner
/s/ Jay C. Hoag Director November 8, 1999
Jay C. Hoag
Director
Habib Kairouz
Director
Lennert J. Leader
/s/ Michael Levy Director November 8, 1999
Michael Levy
/s/ Douglas McCormick Director November 8, 1999
Douglas McCormick
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Daniel Schulman Director November 8, 1999
Daniel Schulman
Director
Martin Yudkovitz
</TABLE>
(a majority of the Board of Directors)
6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1
to this Registration Statement).
23.2 Consent of PricewaterhouseCoopers LLP (iVillage).
23.3 Consent of PricewaterhouseCoopers LLP (KnowledgeWeb).
23.4 Consent of PricewaterhouseCoopers LLP (Online Psychological Services)
23.5 Consent of PricewaterhouseCoopers LLP (Health ResponseAbility
Systems, Inc.).
23.4 Consent of PricewaterhouseCoopers LLP (Lamaze Publishing Company,
Inc.).
24 Powers of Attorney (included on page 5 of this Registration
Statement).
99.1 Family Point Inc. Stock Option Plan
7
<PAGE>
EXHIBIT 5.1
November 5, 1999
iVillage Inc.
212 Fifth Avenue
New York, New York 10010
Re: Registration Statement on Form S-8 - iVillage Inc.
Family Point Inc. Stock Option Plan
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with the proposed
issuance, pursuant to the iVillage Inc. Family Point Inc. Stock Option Plan (the
"Plan"), of up to 91,402 shares (the "Shares") of common stock, $.01 par value
("Common Stock"), of iVillage Inc., a Delaware corporation (the "Company").
We have examined instruments, documents and records which we deemed relevant and
necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the following: (a) the authenticity of original
documents and the genuineness of all signatures; (b) the conformity to the
originals of all documents submitted to us as copies; and (c) the truth,
accuracy and completeness of the information, representations and warranties
contained in the records, documents, instruments and certificates we have
reviewed.
Based on such examination, we are of the opinion that the Shares of Common Stock
issuable by the Company pursuant to the Plan, when issued in accordance with the
provisions of the Plan and the stock option agreements entered into thereunder
and in the manner referred to in the Prospectus associated with the Registration
Statement on Form S-8, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8. In giving such consent, we do not consider
that we are "experts" within the meaning of such term as used in the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission issued thereunder with respect to any part of the
Registration Statement.
We express no opinion as to matters of law in jurisdictions other than the
federal securities laws of the United States and the corporate law of the State
of Delaware, and our opinions herein as to such law are based solely on our
review of standard compilations of the official statutes of the State of
Delaware.
This opinion is rendered solely for your use as an exhibit to the Registration
Statement on Form S-8 and may not be relied upon for any other purpose. We
disclaim any obligation to update this opinion letter for events occurring or
coming to our attention after the date hereof.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
8
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of iVillage Inc. of our report dated February 4, 1999
relating to the consolidated financial statements of iVillage Inc. and
Subsidiaries as of December 31, 1998 and 1997 and for the three years in the
period ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
New York, New York
November 3, 1999
9
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of iVillage Inc. of our report dated January 29, 1999 on our audits of
the financial statements of KnowledgeWeb, Inc. as of and for the years ended
December 31, 1998 and 1997.
/s/ PricewaterhouseCoopers LLP
New York, New York
November 3, 1999
10
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of iVillage Inc. of our report dated July 16, 1999 on our audits of the
financial statements of Online Psychological Services, Inc. as of and for the
years ended December 31, 1998 and 1997.
/s/ PricewaterhouseCoopers LLP
McLean, Virginia
November 3, 1999
11
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this registration
statement on Form S-8 of iVillage Inc., of our report dated December 23, 1998,
on our audits of the financial statements of Health ResponseAbility Systems,
Inc. as of December 31, 1995 and 1996 for the two years in the period ended
December 31, 1996.
/s/ PricewaterhouseCoopers LLP
New York, New York
November 3, 1999
12
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this registration
statement on Form S-8 of iVillage Inc., of our report dated June 14, 1999
except for note 10, as to which the date is July 13, 1999, on our audits of the
financial statements of Lamaze Publishing Company, Inc. as of and for the years
ended December 31, 1998 and 1997.
/s/ PricewaterhouseCoopers LLP
New York, New York
November 3, 1999
13
<PAGE>
EXHIBIT 99.1
FAMILY POINT INC.
STOCK OPTION PLAN
(as amended through April 19, 1999)
Family Point Inc. hereby formulates and adopts the following Stock
Option Plan for selected management and key employees and consultants of the
Company.
1. Definitions. Each of the following terms shall have the respective meaning
set forth below for purposes of this Plan, whether employed in the singular or
plural, unless the particular context in which said term is used clearly
indicates otherwise
a. "Company" shall mean family Point Inc. a corporation organized under
the laws of the State of New Jersey, and its wholly-owned subsidiaries, if any.
b. "Board" shall mean the Board of Directors of Family Point Inc.
c. "Optionee" shall mean the recipient of Options hereunder. Any
reference herein to the employment of an Optionee by the Company shall include
Optionee's employment by the Company or its subsidiaries, if any.
d. "Plan" shall mean this Stock Option Plan.
e. "Common Stock" shall mean Family Point Inc.'s $.0001 par value
common stock.
f. "Effective Date" shall mean as of December 29, 1998.
g. "First Amendment Date" shall mean April 19, 1999.
h. "Plan Termination Date" shall mean the date upon which the Plan
terminates.
i. "Code" means the Internal Revenue Code of 1986, as amended.
2. Purpose. The purpose of the Plan is to secure for the Company the
benefits of the additional incentive inherent in the ownership of its Common
Stock by selected employees, directors and consultants of the Company who are
important to the success and the growth of the business of the Company, and to
help the Company secure and retain the services of such employees. Pursuant to
the Plan, such employees, directors and consultants will be offered the
opportunity to acquire Common Stock through the grant of incentive stock
Options, and "non-qualified" stock Options, as provided herein.
All incentive Options to be granted under the Plan are intended to qualify as
"incentive stock Options" under the provisions of Section 422 of the Code.
3. Administrator of the Plan.
a. Subject to the provisions of Section 5, the Plan shall be
administered by the Board or by a committee of the Board (in either case,
hereinafter referred to as the "Administrator"). The Administrator, if so
appointed, may adopt such rules and regulations as he or she shall deem
appropriate concerning the Plan and the Options, and make all other
determinations necessary or advisable for administering the Plan, including, but
not limited to, the persons to whom, and the time or times at which, grants
shall be made, the number of Options to be included in the grants, the length of
time the Options are exercisable, the number of Options which shall be treated
as incentive stock Options, the Option exercise price, and any vesting schedule
with respect to the Options. All determinations and interpretations by the
Administrator shall be binding and conclusive upon all parties.
b. The Company shall indemnify and hold harmless the Directors and the
Administrator from and against any and all liabilities, costs, and expenses
incurred by such persons as a result of any act, or omission to act, in
connection with the performance of such persons' duties, responsibilities, and
obligations under the Plan, other than such liabilities, costs and expenses as
may result from the gross negligence, bad faith, willful misconduct, and/or
criminal acts of such persons.
12
<PAGE>
4. Shares of Stock Subject to the Plan.
a. Subject to the provisions of Section 16, the number of shares of the
Company's Common Stock that maybe issued or transferred pursuant to exercise of
Options granted under the Plan shall not exceed one hundred fifty thousand
(150,000) shares of authorized Common Stock as of the Effective Date, and four
hundred sixty-four thousand (464,000) as of the First Amendment Date. If, and to
the extent that, Options granted under the Plan terminate or expire without
having been exercised, new Options may be granted with respect to the shares
covered by such terminated or expired Options; provided that the granting and
terms of such new Options shall in all respects comply with the provisions of
the Plan.
b. Common Stock sold upon the exercise of any Option granted under the
Plan may be authorized and unissued Common Stock, Common Stock held in the
Company's treasury or both.
c. There shall be reserved at all times for sale under the Plan a
number of shares of Common Stock (either authorized and unissued shares or
shares held in the Company's treasury, or both) equal to the maximum number of
shares of Common Stock which may be purchased on the exercise of Options granted
under the Plan.
5. Grant of Options.
a. The Administrator shall have the authority and responsibility,
within the limitations of the Plan, to determine the employees to whom and the
times at which Options are to be granted, the number of shares of Common Stock
which may be purchased under each Option, the provisions of the respective
Option agreements (which need not be identical) including provisions concerning
the time or times when, and the extent to which, the Options may be exercised,
and the Option exercise price. All Options pursuant to this Plan shall be
granted on or before the Plan Termination Date.
b. In determining the employees and consultants to whom Options shall
be granted, the number of shares of Common Stock to be covered by each such
Option, and the provisions of the respective Option agreements, the
Administrator shall take into consideration the employee's or consultant's
present and potential contribution to the success of the Company and such other
factors as the Administrator may deem proper and relevant.
c. The aggregate fair market value (determined as of the date upon
which an Option is granted) of the Common Stock for which any Optionee may
exercise incentive stock options for the first time in any calendar year (under
all plans of the Company and any parent or subsidiary of the Company which plans
provide for granting of incentive stock options within the meaning of Section
422(b) of the Code) shall not exceed $100,000.
6. Eligibility.
a. Incentive stock options may be granted only to management and other
key employees who are employed by the Company or a parent or subsidiary of the
Company. An incentive stock Option may be granted to a director of the Company
or a parent or subsidiary of the Company, if any, provided that the director is
also an officer or key employee. Directors who are not officers or key employees
may only be granted non-qualified stock options.
b. For purposes of the Plan, a "subsidiary" of the Company shall mean
any corporation in which the Company or any other subsidiary of the Company
holds fifty percent (50%) or more of the total combined voting power of all
classes of stock.
7. Option Price. The purchase price under each incentive stock Option
shall be 100% of the fair market value of the Common Stock at the time the
Option is granted but in no case less than the par value of such Common Stock.
In the case of an incentive stock Option granted to an employee owning more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company (a "10% Stockholder"), actually or constructively under Section
425(d) of the Code, the Option price shall not be less than one hundred ten
percent (110%) of the fair market value of the Common Stock subject to the
Option at the time of its grant. The purchase price under each non-qualified
stock Option shall be specified by the Administrator but shall in no case be
less than the greater of eighty five percent (85%) of the fair market value of
the Common Stock at the time the option is granted or the par value of the
Common Stock subject to the non-qualified stock Option. The fair market value of
the Common Stock on any date shall be determined in a manner consistent with the
requirements of the Code.
8. Expiration, Termination and Amendment of the Plan.
a. Options may be granted under the Plan at any time and from time to
time, prior to the Plan Termination Date, on which date the Plan will expire,
except as to Options then outstanding under the Plan. Such Options shall remain
in effect until they have been exercised or have expired in accordance with
their terms. The Plan may be terminated or modified at any time prior to the
Plan Termination Date by the Board of Directors except with respect to any
Options then outstanding under the-Plan; provided that
13
<PAGE>
any increase in the maximum number of shares subject to Options, as specified in
Section 4, or any decrease in the Option price specified in Section 7, shall be
subject to approval by the Company's shareholders, unless made pursuant to the
provisions of Section 17.
b. No modification, extension, renewal or other change in any Option
granted under the Plan shall be made after the grant of such Option, unless the
same is consistent with the provisions of the Plan and does not disqualify an
option intended to be an incentive stock Option as an "incentive stock Option"
under the provisions of Section 422 of the Code.
c. Prior to dissolution or liquidation of the Company, or a
reorganization, merger, or consolidation of the Company with one or more
corporations as a result of which the Company will not be the surviving
corporation, or a sale of all or substantially all assets and property of the
Company to another person (a "Terminating Event") the Administrator may in his
or her sole discretion elect to notify each Optionee of the pendency of the
Terminating Event. Upon delivery of said notice, any Option granted prior to the
Terminating Event shall be, notwithstanding any contrary provisions of this Plan
or of any Option granted hereunder, exercisable in full and not only as to those
shares with respect to which installments, if any, have then accrued, subject,
however, to earlier expiration or termination as provided elsewhere in the Plan.
Upon the date thirty (30) days after delivery of said notice, any Option or
portion thereof not exercised shall terminate, and upon the happening of the
Terminating Event, the Plan shall terminate, unless provision be made in
connection with the Terminating Event for assumption of options theretofore
granted, or substitution for such Options of new options covering stock of a
successor employer corporation, or a parent or subsidiary corporation thereof,
if any, solely at the option of such successor corporation, with appropriate
adjustments as to number and kind of shares and prices.
9. Exercise and Duration of Option.
a. Each Option granted under the Plan shall become exercisable after
completion by the Optionee of such period or periods of employment following the
date the Option is granted or upon the lapse of such other period or periods of
time, if any, or the occurrence of such event or events, if any, as the
Administrator in his or her discretion may provide on a case-by-case basis upon
the granting thereof. Notwithstanding the foregoing, no Option shall be
exercisable for a period of more than ten (10) years from the date upon which
such Option was granted.
b. The unexercised portion of any option granted under the Plan shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of the following:
i. the expiration of such period after the date on which such Option
was granted as may be required by the Internal Revenue Code in
respect of the intended Optionee;
ii. subject only to the provisions of Section 15 below, the
termination of an employee optionee's employment for any reason
whatsoever and whether by the Employee or the Company; or
iii. the tenth (10th) anniversary of the date upon which such Option
was granted.
10. Exercise-of Options.
a. Options granted under the Plan shall be exercised by the Optionee as
to all or any part of the shares covered thereby, by the giving of written
notice of the exercise thereof to the Company at its principal business office,
specifying the number of shares to be purchased and specifying a business day,
not less than five (5) days nor more than fifteen (15) days from the date such
notice is given, for the payment of the purchase price against delivery of the
shares being purchased. The Administrator shall determine the method of paying
the purchase price at the time of exercise of an Option, including, without
limitation, the right to pay in shares of Company Common Stock and to pay in
installments with such security for payment, if any, as the Administrator deems
necessary and appropriate.
b. The Company shall not be required to issue fractional shares upon
exercise of an Option.
c. The Company shall cause certificates for the shares so purchased to
be delivered to the Optionee at its principal business office, against payment
of the purchase price, on the date specified in the notice of exercise.
11. Non-Transferability of Option. No Option granted under the Plan or any
right evidenced thereby shall be assignable or transferable by the Optionee
except, unless further restricted in an Option, by will or by the laws of
descent and distribution. In amplification and not in limitation of the
foregoing, during the lifetime of an optionee, he alone may exercise options
granted to him hereunder
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12. Privileges of Stock Ownership; Securities Laws Compliance; Notice of
Sale. No Optionee shall be entitled to the privileges of stock ownership as to
any shares of stock not actually issued and delivered to such Optionee. No
shares shall be purchased upon the exercise of any Option unless and until any
then applicable requirements of any regulatory agencies having jurisdiction and
of any exchanges upon which stock of the Company may be listed shall have been
fully complied with. The Company will endeavor to comply with all applicable
securities laws before any Options are granted under the Plan and before any
stock is issued pursuant to Options. The Optionee shall give the Company notice
of any sale or other disposition of any such shares not less than five (5) days
before such sale or other disposition.
13. Conditions on Exercise. For purposes of the exercise of an Option and
subsequent thereto, the Optionee may be required, on a case by case basis, to
meet such vesting, performance and/or other conditions as the Administrator, in
its sole discretion, may decide with respect to the underlying Common Stock of
the Company.
14. Form of Agreements with Optionees. Options granted under the Plan shall
be evidenced, by stock Option agreements, not inconsistent with the provisions
of the Plan and, in the case of incentive stock Options, of Section 422 of the
Code, as the Administrator shall approve from time to time. In amplification and
not in limitation of the foregoing, such Option agreements may provide, on such
terms and conditions as the Administrator may in his or her sole discretion
approve, that:
a. the Optionee may pay for the Common Stock with stock of the
Company; and
b. the Optionee may have a right to receive property at the time of
exercise of the Option.
15. Effect of Termination of Employment or Death.
a. Nothing in the Plan or in any Option granted under the Plan shall
confer upon any Optionee the right to continue in the employ of the Company or
any of its subsidiaries or affect the right of the Company or any of its
subsidiaries to terminate the optionee's employment at any time, subject,
however, to the provisions of any agreement of employment as may exist between
the Company or any of its subsidiaries and the Optionee. Options granted to
persons who are not employees of the Company may be conditioned on continued
affiliation with the Company, in the discretion of the Administrator.
b. No incentive Option granted to an employee shall be exercisable
subsequent to three months after termination of employment with the Company or
any parent or subsidiary of the Company unless such termination of employment
occurs by reason of disability within the meaning of Section 422(c)(6) of the
Code, in which event the aforementioned right to exercise such Option shall
continue for one year following the date of such termination or in the event of
termination because of death in which event the Option shall expire in
accordance with its terms. In the event of the death of an Optionee while an
employee of the Company or any parent or subsidiary of the Company or in the
event of the death of an Optionee within the three month or one year period, as
the case may be, following termination of employment, the Options which were
otherwise exercisable on the date of termination of employment shall be
exercisable by his personal representatives, heirs, or legatees unless further
restricted in an Option. In no event, however, shall an option be exercisable
after ten (10) years from the date it is granted. In the event that an Optionee
ceases to be an employee of the Company or any parent or subsidiary of the
Company for any reason, including death or retirement, prior to the lapse of the
applicable waiting period before he may exercise all or any portion of the
Option, then all or such portion of his Option shall terminate and be null and
void. The Administrator may, if he or she determines that to do so would be in
the Company's best interests, provide in a specific case or cases for the
exercise of Options which would otherwise terminate upon termination of
employment with the Company for any reason, upon such terms and conditions as
the Administrator determines to be appropriate. Option rights shall not be
affected by any change of employment as long as the Optionee continues to be
employed by either the Company or a parent or subsidiary of the Company.
16. Order of Exercise of Options. Options granted under the Plan may be
exercised in any order regardless of the date of grant of the Option by the
Company.
17. Adjustment Upon Changes in Capitalization, Etc.
a. In the event that the Company shall declare a dividend payable in
Common Stock or there is one or more splits, subdivisions, or combinations of
shares of Common Stock resulting in an increase or decrease of the shares
outstanding, the number of shares available under the Plan shall be increased or
decreased proportionately, as the case may be, and the number of shares
deliverable upon the exercise thereafter of any options theretofore granted
shall be increased or decreased proportionately, as the case may be, without
change in the aggregate purchase price. All adjustments shall be made as of the
day such action necessitating such adjustment becomes effective. Adjustments
under this Section shall be made by the Board of Directors, whose determination
as to which adjustments shall be made, and the extent thereof, shall be final
and conclusive. No fractional shares of stock shall be issued under the Plan on
account of any such adjustment.
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b. In the event that any transaction (other than a change specified in
the preceding paragraph) described in Section 425(a) of the Code, to the extent
such Section is applicable, affects the Company's Common Stock subject to any
unexercised option theretofore granted under the Plan (the "old option"), the
Board of Directors of the surviving or acquiring corporation may, but shall not
be required to, take such action as is permissible and appropriate, and in
conformity with the requirements of that Section and the regulations thereunder,
to substitute a new Option for the old Option, or to assume the old Option, in
order to afford to the Optionee, as nearly as may be practicable, rights and
benefits equivalent to those enjoyed by him under the old Option.
18. Purchase for Investment.
a. The Optionee, by his acceptance of any Option granted under the
Plan, shall represent and warrant to the Company that his purchase of shares of
Common Stock upon the exercise thereof shall be for investment and not with a
view to distribution, provided that such representation and warranty shall be
inoperative if, in the opinion of counsel to the Company, a proposed sale or
distribution of such shares is pursuant to an applicable effective registration
statement under the Securities Act of 1933, as from time to time amended, or is
exempt from registration under such Act.
b. The Company may endorse an appropriate legend referring to the
foregoing restriction upon the certificate or certificates representing any
shares issued or transferred to the optionee upon the exercise of any Option
granted under the Plan.
19. Restriction on Sale of Shares. Without the written consent of the
Company, no stock acquired by an Optionee upon exercise of an incentive stock
option granted hereunder may be disposed of by the Optionee within two (2) years
from the date such incentive stock Option was granted, nor within one (1) year
after the transfer of such stock to the Optionee; provided, however, that a
transfer to a trustee, receiver, or other fiduciary in any insolvency
proceeding, as described in Section 422(c)(3) of the Code, shall not be deemed
to be such a position. The Optionee shall make appropriate arrangements with the
Company for any taxes which the company is obligated to collect in connection
with such disposition, including any Federal, state or local withholding taxes.
20. Effective Date of Plan. The Plan shall become effective upon its
adoption by the Board of Directors of the Company, subject, however, to the
approval of the Plan by the Company's shareholders within 12 months from the
date of such adoption.
21. Interpretation and Partial Invalidity; Pronouns.
a. The Plan, insofar as concerns incentive stock Options, is adopted
pursuant to the provisions of Section 422 of the Internal Revenue Code of 1986,
as amended. All provisions hereof concerning such options shall be interpreted
in a manner consistent with said Section 422. In the event that any such
provision hereof shall be deemed inconsistent with the requirements of Section
422, such provision shall be deemed null and void and all other provisions of
this Agreement shall be deemed to remain valid and in force.
b. All pronouns and any variations thereof used herein shall refer to
the masculine, feminine or neuter, singular or plural, as the context may
require.
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