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EXHIBIT 99.1
1999 STOCK OPTION PLAN
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This ValueClick, Inc. 1999 Stock Option Plan (the "Plan") was
adopted by the Board of Directors of ValueClick, Inc., a Delaware corporation
(the "Company") on May 13, 1999, and by the stockholders of the Company on May
13, 1999.
1. PURPOSES.
The purpose of the Plan is to strengthen the Company and any
corporations and other entities which are or may hereafter become subsidiary
corporations or associations of the Company ("Subsidiaries") by providing an
additional means of attracting and retaining competent directors, officers, and
employees and by providing to participating directors, officers and employees
added incentive for superior performance. The Plan seeks to accomplish these
purposes and achieve these results by providing a means whereby such directors,
officers, and employees may purchase shares of the common stock of the Company
pursuant to Options granted in accordance with this Plan.
2. STOCK SUBJECT TO PLAN.
The Company shall reserve One Million Five Hundred Twenty
Thousand (1,520,000) shares (the "Shares") of its Common Stock, with a par value
$0.001 (the "Common Stock") to be issued upon exercise of the Options which may
be granted from time to time under this Plan (the "Options"). As it may from
time to time determine, the Board of Directors of the Company (hereinafter
called the "Board") may authorize that the Shares may be comprised, in whole or
in part, of authorized but unissued shares of the Common Stock of the Company.
If Options granted under this Plan terminate or expire before being exercised in
whole or in part, the Shares subject to those Options that have not been issued
may be subjected to subsequent Options granted under this Plan.
3. ADMINISTRATION OF THE PLAN.
The Board may at its discretion appoint a Stock Option
Committee (hereinafter called the "Committee") which shall consist of not fewer
than two (2) members of the Board who are not also employees or officers of the
Company, or, at the discretion of the Board, may consist of the entire Board, to
administer this Plan. Subject to the express provisions of this Plan and
guidelines which may be adopted from time to time by the Board, the Committee
(if one is appointed) shall have plenary authority in its discretion to (a)
determine the individuals to whom, and the time at which, Options are granted,
and the number and purchase price of the Shares subject to each Option; (b)
determine whether the Options granted shall be "incentive stock options" within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), or non-statutory stock options, or both; (c) interpret this Plan and
prescribe, amend, and rescind rules and regulations relating to it; (d)
determine the terms and provisions (and amendments thereof) of the respective
Option Agreements subject to Section 6 of this Plan, which need not be
identical, including, if the Board or the Committee shall determine that a
particular Option is to be an incentive stock option, such terms and provisions
(and amendments thereof) as the Committee deems necessary to provide for an
incentive stock option or to conform to any change in any law, regulation,
ruling or interpretation applicable to incentive stock options; and (e) make any
and all determinations which the Committee deems necessary or advisable in
administering this Plan. The Committee's determination on the foregoing matters
shall be conclusive.
4. PERSONS ELIGIBLE.
(a) All persons who are directors or full-time salaried
employees of, or consultants to, the Company or of any Subsidiary are eligible
to participate in this Plan, and to be granted Options hereunder. For the
purposes of this Plan, (i) the term "employee" shall be deemed to conform to the
requirements of Section 422 of the Code, and (ii) the term "subsidiary" means
subsidiary corporations as defined in Section 424 of the Code.
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(b) Employees of the Company or its subsidiaries may be
granted either incentive or non-statutory options. Consultants (including
officers and directors) of the Company and its subsidiaries may be granted only
non-statutory options, except officers and directors who are also employees, who
may be granted either incentive or non-statutory options.
(c) The aggregate fair market value (determined as provided in
Section 6(a)(iii), below) of the Shares with respect to which incentive stock
options are exercisable for the first time by an Optionee during any calendar
year (under all incentive stock option plans of the Company or its parent or
subsidiaries) shall not exceed $100,000.
5. CHANGES IN CAPITAL STRUCTURE.
(a) EFFECT ON THE PLAN. In the event of changes in the
outstanding capital stock of the Company by reason of any stock dividend, stock
split or reverse split, reclassification, recapitalization, merger or
consolidation, reorganization, liquidation, or equivalent event, the Committee
and/or the Board shall make such adjustments in the aggregate number and class
of shares available under this Plan as it deems to be appropriate and in
accordance with the terms of the Plan. Such determination shall be final,
binding, and conclusive.
(b) EFFECT OF CERTAIN EVENTS ON OUTSTANDING OPTIONS.
(i) STOCK SPLITS AND LIKE EVENTS. Should a
stock dividend, stock split, reverse stock split, or reclassification occur,
then the Committee and/or the Board shall make such adjustments in (A) the
number and class of shares to which Optionees will thereafter be entitled
upon exercise of their outstanding Options and (B) the price which Optionees
shall be required to pay upon such exercise, as it in its sole discretion in
good faith deems appropriate; PROVIDED, that each such adjustment shall have
the result that an Optionee exercising an Option subsequent to such
occurrence shall have paid the same aggregate exercise price to exercise the
entire Option and shall then hold the same class and aggregate number of
shares as if such Optionee had exercised the outstanding Option immediately
prior to such occurrence.
(ii) RECAPITALIZATIONS; ASSUMPTION OF OPTIONS.
(A) In the event of
(I) a merger or consolidation in which
the Company is not the surviving corporation
(other than a merger or consolidation with a
wholly owned subsidiary, a reincorporation of the
Company in a different jurisdiction, or other
transaction in which there is no substantial
change in the stockholders of the Company and the
Options granted under this Plan are assumed by the
successor corporation, which assumption shall be
binding on all Optionees);
(II) a dissolution or liquidation of the
Company;
(III) the sale of substantially all of the
assets of the Company; or
(IV) any other transaction which
qualifies as a "corporate transaction" under
Section 424(a) of the Code wherein the
stockholders of the Company give up all of their
equity interest in the Company (except for the
acquisition, sale, or transfer of all or
substantially all of the outstanding shares of the
Company):
then, and in each such case, any or all outstanding Options
may be assumed or replaced by the successor corporation, which
assumption or replacement shall be binding on all Optionees.
In the alternative, the successor corporation may substitute
an option as nearly equivalent as practicable.
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(B) In the event such successor corporation,
if any, refuses to assume or substitute Options, as provided
above, pursuant to a transaction described in Section
5(b)(ii)(A) above, the Committee and/or the Board shall
provide for the Optionee to have the right to exercise the
Option in full as to all of the shares subject to the Option,
including shares as to which the Option would not otherwise
yet be exercisable. If the Option is made fully exercisable in
such event in lieu of assumption or substitution of the Option
by the successor corporation, the Board shall notify the
Optionee that the Option shall be fully exercisable for a
period of fifteen (15) days from the date of the notice, and
the Option shall expire upon the expiration of that period.
(C) Subject to any greater rights granted to
Optionees under the foregoing provisions of this Section 5, in
the event of the occurrence of any transaction described in
Section 5(b)(ii)(A), any outstanding Options shall be treated
as provided in the applicable agreement or plan of merger,
consolidation, dissolution, liquidation, sale of assets, or
other "corporate transaction."
(D) The Company, from time to time, may also
substitute or assume outstanding awards granted by another
company, whether in connection with an acquisition of such
other company or otherwise, by either (I) granting an Option
under this Plan in substitution of such other company's award,
or (II) assuming such award as if it had been granted under
this Plan if the terms of such assumed award could be applied
to an Option granted under this Plan. Such substitution or
assumption shall be permissible if the holder of the
substituted or assumed option would have been eligible to be
granted an Option under this Plan if the other company had
applied the rules of this Plan to such grant. In the event the
Company assumes an award granted by another company, the terms
and conditions of such award shall remain unchanged (except
that the exercise price and the number and nature of shares
issuable upon exercise of any such Option will be adjusted
appropriately pursuant to Section 424(a) of the Code). In the
event the Company elects to grant a new Option rather than
assuming an existing Option, such new Option may in the
discretion of the Board (or the Committee) be granted with a
similarly adjusted exercise price.
6. TERMS AND CONDITIONS OF OPTIONS.
Each Option granted under this Plan shall be evidenced by a
stock Option Agreement (an "Agreement") which is not inconsistent with this
Plan, and the form of which the Committee and/or Board may from time to time
determine, PROVIDED that any such Agreement shall contain the substance of the
following:
(a) OPTION PRICE.
(i) MINIMUM EXERCISE PRICES. The per share
exercise price of all Options granted under this Plan shall be: (A) in the
case of incentive stock options, not less than one hundred percent (100%) of
the fair market value of a share of Common Stock; or (B) in the case of
non-statutory options, not less than eighty five percent (85%) of such fair
market value; in either case determined as provided in paragraph (a)(iii) of
this Section 6, below.
(ii) MINIMUM EXERCISE PRICES FOR PRINCIPAL
STOCKHOLDERS. If, at the time a given Option is granted, the Optionee owns
shares possessing more than ten percent (10%) of the total combined voting
power of all the classes of stock of the Company or of its parent or
subsidiaries (a "Principal Stockholder"), the Option price of his or her
incentive and non-statutory stock Options shall be not less than one hundred
ten percent (110%) of the fair market value of the Shares, determined as
provided in paragraph (a)(iii) of this Section 6, below.
(iii) DETERMINATION OF FAIR MARKET VALUE.
Whenever any determination of the fair market value of the company's stock
is required to be made, such fair market value shall be determined in
accordance with the valuation methods described in Section 20.2031-2 of the
Treasury Regulations, or any currently effective successor regulation
thereto, or otherwise as the Board or the Committee may in good faith direct.
In each case, the date
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and time as of which such fair market value shall be determined is the close
of business on the date immediately prior to the date on which the Board or
the Committee awards the Options in question (or, if the Common Stock is at
that time listed on any national exchange or automated quotation system, the
close of business on the last trading day immediately prior to the date on
which the Board or the Committee awards the Options in question).
(b) METHOD OF EXERCISE.
(i) At the time of purchase, the purchase
price of any Shares purchased hereunder (and any tax due upon exercise) shall
be paid in full, and may be paid, at the discretion of the Board or the
Committee: (A) in cash or cash equivalent acceptable to the Board or the
Committee, (B) with a promissory note secured by the Shares purchased, (C)
with outstanding stock of Company at such value as the Board or the Committee
shall determine to be the fair market value of such stock on the date of
exercise in accordance with the provisions of paragraph (a)(iii) of this
Section 6, above, or (D) with a combination of any of the foregoing. If
shares of outstanding Common Stock are used as payment or part payment, and
such shares were acquired upon prior exercise of an Option granted under this
Plan, then such shares must have (I) been owned by the Optionee for more than
six (6) months on the date of surrender and (II) an aggregate fair market
value on the date of surrender of not less than the aggregate exercise price
of the Shares as to which said Option shall be exercised.
(ii) To the extent that the right to purchase
Shares has accrued under an Option, the Option holder may exercise said
Option from time to time by (A) giving written notice to the Company stating
the number of Shares with respect to which the Option is being exercised, (B)
submitting with said notice payment of the full purchase price of said Shares
as described in paragraph (b)(i) of this Section 6, above, and (C) if
applicable, complying with the requirements of paragraph (b)(iii), and any
requirements of the Company upon advice of its counsel pursuant to paragraph
(b)(iv), of this Section 6, below.
(iii) At the discretion of the Board or the
Committee, the Optionee may be required, as a condition of the exercise of
any Option, to make such representations and warranties to the Company as may
be reasonably be required under applicable state and federal securities laws.
(iv) After receiving the notice, payment, and
evidence of compliance described in paragraphs (b) (ii) and (b)(iii) of this
Section 6, above, the Company shall issue, at the main office of the Company
or such other place as shall be mutually acceptable, a certificate or
certificates representing the number of Shares to be delivered, out of
authorized but unissued Shares or reacquired Shares of its capital stock. The
certificate shall be issued within thirty (30) days after full compliance
with all of such conditions; PROVIDED, HOWEVER, that the time of such
delivery may be postponed by the Company for such period as may be required
for it with reasonable diligence to comply with such procedures as may, in
the opinion of counsel to the Company, be desirable in view of federal and
state laws, including corporate securities laws and revenue and taxation
laws, and the provisions of this Plan. If the Option holder fails to accept
delivery of any or all of the number of Shares specified in such notice upon
tender of delivery of the certificates representing them, the right to
exercise the Option with respect to such undelivered Shares may, at the
Committee's discretion, be terminated.
(c) OPTION TERM. The Board or the Committee may grant
Options for any term, but shall not grant any Options for a term longer than
ten (10) years from the date the Option is granted (except in the case of an
incentive stock option granted to a Principal Stockholder, in which case the
term shall be no longer than five (5) years from the date the Option is
granted). Each Option shall be subject to earlier termination as provided in
Section 6(f) of this Plan.
(d) TIME OF EXERCISE OF OPTIONS.
(i) Except as provided in clause (ii), below,
each Option granted under this Plan shall be exercisable on such date or
dates, upon or after the occurrence of certain events, or upon or after the
achievement of certain performance milestones (which dates may be advanced or
which occurrences or achievements may be waived in
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whole or in part or extended at the discretion of the Board or the
Committee), during such period, and for such number of Shares, as shall be
determined by the Board or the Committee in its sole discretion.
(ii) Notwithstanding clause (i), above, if and
for so long as the Company is relying on the exemption from qualification
provided by Section 25102(o) of the California Corporate Securities Law of
1968, as amended (the "Law") and such minimum vesting is a requirement of
such exemption,
(A) all options granted hereunder shall
(subject to reasonable conditions including continued
employment or directorship of the Optionee) vest at a minimum
rate of 20% per year, beginning with the first year after the
Option grant, except that
(B) options granted to offices,
directors, and consultants may vest at any time.
(iii) If an Option becomes exercisable upon the
occurrence of certain specified events or achievements of certain specified
performance milestones, it shall not be exercised unless and until the Board
or the Committee shall determine, and notify the Optionee in writing, that
such events have occurred or that such performance milestones have been
achieved.
(e) NONASSIGNABILITY OF OPTION RIGHTS. No Option shall
be assignable or transferable by the optionee except by will or by the laws
of descent and distribution. During the life of an Optionee, his or her
Options shall be exercisable only by the Optionee.
(f) EFFECT OF TERMINATION OF EMPLOYMENT OR DIRECTORSHIP.
(i) TERMINATION OTHER THAN BY DEATH, DISABILITY,
OR FOR CAUSE. In the event that an Optionee's employment or consulting
with the Company and its Subsidiaries ceases during the Optionee's life for
any reason (except disability or death), including but not limited to
retirement and termination for cause, then, (subject to the provisions of
clause (iii) of this paragraph (f), below), any incentive or non-statutory
stock option or unexercised portion thereof held by such Optionee which is
otherwise exercisable shall terminate unless exercised within thirty (30)
days after the date on which the Optionee's employment or directorship shall
have ceased.
(ii) TERMINATION BY REASON OF DEATH OR DISABILITY.
In the event that any Optionee shall suffer death or disability (as defined
in Section 22(e)(3) of the Code)
(A) while employed or serving as a
director of the Company, or
(B) at the discretion of the Board or
the Committee, within a specified period of not more than
three (3) months nor less than thirty (30) days from the
date on which such employment or directorship ceases,
then any option or unexercised portion thereof granted to the Optionee, if
otherwise exercisable by the Optionee at the date of such death or disability,
may (subject to the provisions of clause (iv) of this paragraph (f), below) be
exercised by the Optionee (or by his or her personal representatives, heirs or
legatees) within a period of time, which shall be specified in the Option
Agreement, not to exceed one (1) year nor to be fewer than six (6) months from
the date of death or disability of the Optionee.
(iii) TERMINATION FOR CAUSE. In the event that
any Optionee's employment or directorship shall be terminated for cause, his
or her Options shall, effective immediately thereupon, terminate, and shall
thereafter be void and unexercisable.
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(iv) NO EXTENSION OF TERM. Anything to the
contrary herein notwithstanding, no extension provided under this Section
6(f) shall have the effect of extending the term of any Option granted under
this Plan past its expiration date as provided in the Option Agreement under
which it was granted.
(g) RIGHTS OF OPTIONEES. No Optionee shall have rights
as a stockholder with respect to any Shares subject to an Option until the
date of issuance of a share certificate to the Optionee for such Shares. No
adjustment shall be made for dividends or other rights of which the record
date is prior to the date such share certificate is issued. Neither this
Plan, nor any action or agreement thereunder, shall confer on any Optionee,
or on any person eligible to receive Options hereunder, any rights of
employment by, or to election or retention as an officer or director of, the
Company or any of its Subsidiaries.
(h) TAX WITHHOLDING. To the extent required by
applicable law, the Company shall withhold from the pay of an Optionee any
taxes required to be withheld upon exercise of an Option. The Company may
instead at its discretion require that the taxes be paid to the Company
concurrently with the exercise of the Option as a condition to the exercise
of the Option. The Company may, at the discretion and upon the approval of
the Committee, permit the Optionee to pay some or all of such taxes by (i)
tendering to the Company outstanding shares of the Company's stock held by
the Optionee, meeting the same criteria and valued in the same manner as
stock tendered to pay the exercise price as set forth in Section 6, above, or
(ii) reducing, at the Optionee's instructions, the number of shares to be
issued upon exercise of the Option, with such shares similarly valued.
(i) RESTRICTIONS ON SHARES. To the extent required by the
Company's Bylaws, or at its discretion by the Board of Directors or the
Committee, all Shares issued upon exercise of Options granted hereunder shall be
subject to (i) a right of repurchase, (ii) a first right of refusal, (iii) a
market stand-off in the event of any public offering of the Company's Common
Stock, or other Company securities convertible into Common Stock, and/or (iv)
such other restrictions on the ownership and/or transfer of the Shares as may
seem reasonable to the Board and/or the Committee. Holders of Shares may be
required to execute non-disclosure agreements prior to being shown certain
information concerning the Company.
(j) COPY OF THE PLAN. Each Option Agreement issued
pursuant to the Plan shall be accompanied by a copy of the Plan itself,
including all currently effective amendments thereto.
(k) OTHER CONDITIONS IMPOSED BY REGULATORY AUTHORITIES.
This Plan, the granting of any Option hereunder, the exercise of any Options
hereunder, and the issuance of shares upon the exercise of any Option, shall
be subject to such approval or other conditions as may be required or imposed
by any regulatory authority having jurisdiction to issue regulations or rules
with respect thereto, including the securities laws of various governmental
entities.
7. LIMITATIONS ON OPTION ISSUANCES UNDER RULE 701, IF APPLICABLE.
(a) The aggregate offering price of Shares subject to
outstanding Options under this Plan in reliance on Rule 701 (or any successor
thereto) under the Securities Act of 1933 ("Rule 701"), plus all other
securities of the Company sold during the previous twelve (12) months in
reliance on Rule 701, may not at any time exceed fifteen percent (15%) of the
Company's total assets, measured as of the end of the Company's most recent
fiscal year.
(b) No Option may be issued under the Plan in reliance
on Rule 701 if the number of Shares subject to Options which would thereafter
be outstanding, plus other Shares sold during the preceding twelve (12)
months in reliance upon Rule 701, would exceed fifteen percent (15%) of the
total number of then-outstanding Shares, including all Shares issuable
pursuant to the exercise of outstanding options, rights, warrants, or the
conversion of other convertible securities unless such outstanding options,
rights, warrants, or other convertible securities were issued pursuant to
Rule 701, in which case the number of outstanding shares shall be deemed to
include the number of Shares into which such convertible securities may be
converted.
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8. AMENDMENT OF THE PLAN.
The Board of Directors of the Company may at any time amend
this Plan; PROVIDED, HOWEVER, that
(a) no amendment may affect any then outstanding
Options or any unexercised portions thereof without the prior consent of the
holders of such Options, and
(b) any amendment which effects one or more of the
following changes in the Plan shall be subject to stockholder approval:
(i) any increase in the number of Shares
reserved for issuance under the Plan,
(ii) any alteration in the class of persons
eligible to be granted incentive stock Options,
(iii) any amendment which causes Options granted
to employees and intended to be incentive Options under this Plan not
to qualify as "incentive stock options" under Section 422 of the Code,
(iv) any amendment which amends this Section 8,
and/or
(v) if the Company then has registered a class of
equity securities pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended, any amendment which would cause this Plan not to
satisfy the conditions of Rule 16b-3 (or any then-current replacement
therefor) as then in effect.
9. FINANCIAL INFORMATION.
(a) Within ninety (90) days after the end of each
fiscal year, the Company shall provide every holder of a currently
outstanding Option under the Plan with a copy of its financial statements,
either audited or unaudited, for that fiscal year. The Company may require
the Optionee to enter into a nondisclosure agreement in connection with his
or her receipt of such financial statements; PROVIDED, HOWEVER, that any such
nondisclosure agreement may not contain provisions which are more stringent
than those the Company imposes generally on its stockholders who are also
receiving the financial statements.
(b) Notwithstanding the foregoing provisions, whenever
the Company provides financial statements, whether audited or unaudited, to
all of its stockholders as a group, the Company shall also concurrently
provide each Optionee with a copy of such financial statements.
10. TERMINATION OF THE PLAN.
(a) The Board may terminate this Plan at any time. If
not earlier terminated, this Plan shall terminate ten (10) years from the
date of its adoption by the Board of Directors. Termination of this Plan will
not affect rights and obligations theretofore granted and then in effect.
(b) This Plan, the granting of any Option hereunder,
and the issuance of Shares upon the exercise of any Option granted hereunder,
shall be subject to such approval or other conditions as may be required or
imposed by any regulatory authority having jurisdiction to issue regulations
or rules with respect thereto, including the securities laws of the various
States and other governmental entities.
