<PAGE>
As filed with the Securities and Exchange Commission on April 7, 2000
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ADAPTEC, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------------
DELAWARE 94-2748530
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
691 MILPITAS BOULEVARD
MILPITAS, CALIFORNIA 95035
(408) 945-8600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------------
WILD FILE, INC. 1999 INCENTIVE STOCK OPTION PLAN
WILD FILE, INC. 1994 STOCK OPTION PLAN
(FULL NAME OF PLANS)
----------------------
ROBERT N. STEPHENS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ADAPTEC, INC.
691 MILPITAS BOULEVARD
MILPITAS, CALIFORNIA 95035
(408) 945-8600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------------
COPIES TO:
KATHARINE A. MARTIN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 493-9300
----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
<S> <C> <C> <C> <C>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value
issuable under the Wild File, Inc.
1999 Incentive Stock Option Plan... 7,004 $ 18.8133 $ 131,768 $ 35
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value
issuable under the Wild File, Inc.
1999 Incentive Stock Option Plan... 4,582 $ 35.6006 $ 163,122 $ 43
Common Stock, $0.001 par value
issuable under the Wild File, Inc.
1999 Incentive Stock Option Plan... 691 $ 130.2460 $ 90,000 $ 24
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value
issuable under the Wild File, Inc.
1994 Stock Option Plan............. 9,743 $ 0.0072 $ 70 $ 0
- ----------------------------------------------------------------------------------------------------------------------------------
Total.......................... 22,020 $ 384,960 $ 102
==================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended.
The proposed maximum aggregate offering price per share and proposed
maximum aggregate offering price is based on the aggregate exercise
price and the exercise price per share, respectively, of issued and
outstanding options under such plans, as adjusted in accordance with
the terms and conditions set forth in the Agreement and Plan of
Reorganization dated as of March 3, 2000 among the Registrant, Wild
File, Inc. and certain other parties.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this registration
statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for its fiscal
year ended March 31, 1999, filed pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act").
(b) The Registrant's Quarterly Reports on Form 10-Q relating
to the fiscal quarters ended June 30, 1999 and December 31,
1999, the Registrant's Quarterly Report on Form 10-Q, as
amended, relating to the quarter ended September 30, 1999,
filed pursuant to the Exchange Act; and the Registrant's
Current Report on Form 8-K filed January 6, 2000, as amended
by the Registrant's Current Report on Form 8-K/A filed
March 3, 2000, filed pursuant to the Exchange Act.
(c) Items 1 and 2 of the Registrant's registration statement on
Form 8-A filed July 20, 1992 pursuant to the Exchange Act
and Exhibit No. 1 to Amendment No. 4 of the Registrant's
registration statement on Form 8-A filed January 14, 1997
amending its Form 8-A filed May 11, 1989.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
de-registers 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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 a breach of their fiduciary duties as directors, except for
liability (i) for any breach of their duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers and may indemnify its employees and other agents to the
fullest extent permitted by law. The Registrant's Bylaws also permit the
Registrant to secure insurance on behalf of any officer, director, employee or
other agent for any liability arising out of his or her actions in such
capacity, regardless of whether the Registrant would have the power to indemnify
him or her against such liability under the General Corporation Law of the State
of Delaware. The Registrant currently has secured such insurance on behalf of
its officers and directors.
The Registrant has entered into agreements to indemnify its directors
and officers, in addition to indemnification provided for in the Registrant's
Bylaws. Subject to certain conditions, these agreements, among other
II-1
<PAGE>
things, indemnify the Registrant's directors and officers for certain
expenses (including attorneys' fees), judgments, fines and settlement amounts
incurred by any such person in any action or proceeding, including any action
by or in the right of the Registrant, arising out of such person's services
as a director or officer of the Registrant, any subsidiary of the Registrant
or any other company or enterprise to which the person provides services at
the request of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------------- -----------------------------------------------------------------------------------
<S> <C>
4.1 Wild File, Inc. 1999 Incentive Stock Option Plan and form of Stock Option Agreement
4.2 Wild File, Inc. 1994 Stock Option Plan and form of Stock Option Agreement
5.1 Opinion of Wilson Sonsini Goodrich & Rosati
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Arthur Andersen LLP, Independent Certified Public Accountants
23.3 Consent of Wilson Sonsini Goodrich & Rosati (contained in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page hereto)
</TABLE>
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 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.
(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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milpitas, State of California, on April 7, 2000.
ADAPTEC, INC.
By: /s/ Robert N. Stephens
--------------------------------------
Robert N. Stephens
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Robert N. Stephens and Andrew
J. Brown, jointly and severally, as his or her attorneys-in-fact, each with the
power of substitution, for him or her in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his or her substitute or substitutes, may 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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert N. Stephens President, Chief Executive Officer and Director (principal April 7, 2000
- ----------------------------- executive officer)
Robert N. Stephens
/s/ Andrew J. Brown Vice President, Finance and Chief Financial Officer April 7, 2000
- ----------------------------- (principal financial officer)
Andrew J. Brown
/s/ Kenneth B. Arola Vice President and Corporate Controller (principal April 7, 2000
- ----------------------------- accounting officer)
Kenneth B. Arola
/s/ Laurence B. Boucher Chairman of the Board and Director April 7, 2000
- -----------------------------
Laurence B. Boucher
/s/ John G. Adler Director April 7, 2000
- -----------------------------
John G. Adler
Director
- -----------------------------
Carl J. Conti
Director
- -----------------------------
John East
/s/ Ilene H. Lang Director April 7, 2000
- -----------------------------
Ilene H. Lang
/s/ Robert J. Loarie Director April 7, 2000
- -----------------------------
Robert J. Loarie
/s/ B.J. Moore Director April 7, 2000
- -----------------------------
B.J. Moore
/s/ W. Ferrell Sanders Director April 7, 2000
- -----------------------------
W. Ferrell Sanders
/s/ Phillip E. White Director April 7, 2000
- -----------------------------
Phillip E. White
</TABLE>
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
------------------ -----------------------------------------------------------------------------------
<S> <C>
4.1 Wild File, Inc. 1999 Incentive Stock Option Plan and form of Stock Option Agreement
4.2 Wild File, Inc. 1994 Stock Option Plan and form of Stock Option Agreement
5.1 Opinion of Wilson Sonsini Goodrich & Rosati
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Arthur Andersen LLP, Independent Certified Public Accountants
23.3 Consent of Wilson Sonsini Goodrich & Rosati (contained in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page hereto)
</TABLE>
<PAGE>
EXHIBIT 4.1
WILD FILE, INC.
1999 INCENTIVE STOCK OPTION PLAN
1. PURPOSE.
This 1999 Incentive Stock Option Plan (hereinafter referred to as this
"Plan") is intended to promote the best interests of the Company and its
stockholders by enabling the Company to attract and retain persons of ability as
employees, providing an incentive to employees of the Company by affording them
an equity participation in the Company and rewarding those employees who
contribute to the operating progress and earning power of the Company.
2. DEFINITIONS.
The following terms shall have the following meanings when used herein
unless the context clearly otherwise requires:
(a) "BOARD OF DIRECTORS" means the Board of Directors of Wild File,
Inc., a Delaware corporation.
(b) "CODE" means the Internal Revenue Code of 1986, as amended, or
any successor provisions.
(c) "CONTROLLING PARTICIPANT" means any Eligible Employee who,
immediately before any Option is granted to that particular Eligible
Employee, directly or indirectly possesses more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company (or any
parent or subsidiary company thereof, as such terms are defined in Section
424(e) and (f) of the Code, respectively).
<PAGE>
(d) "COMPANY" means Wild File, Inc., a Delaware corporation, and an
subsidiary corporation, as defined in Section 424(f) of the Code, to which
the Board of Directors has determined to extend the application of this Plan.
(e) "ELIGIBLE EMPLOYEE" means any employee of the Company.
(f) "EXERCISE PRICE" means the price at which a share of Incentive
Stock may be purchased by a particular Participant pursuant to the exercise
of an Option, as determined in accordance with Article 7 hereof.
(g) "INCENTIVE STOCK" means the Non-Voting Common Stock of the
Company, par value one cent ($.01) per share, issued pursuant to this Plan.
(h) "INCENTIVE STOCK OPTION AGREEMENT" means an agreement by and
between a Participant and the Company setting forth the specific terms and
conditions of an Option as well as the specific terms and conditions under
which the Incentive Stock may be purchased by such Participant pursuant to
the exercise of such Option. Such Incentive Stock Option Agreement shall be
subject to the provisions of this Plan (which shall be incorporated by
reference therein) and shall contain such provisions as the Board of
Directors, in its sole discretion, may authorize.
(i) "OPTION" means the right of a Participant to purchase shares of
Incentive Stock in accordance with the terms of this Plan and the Incentive
Stock Option Agreement between such Participant and the Company.
(j) "PARTICIPANT" means any Eligible Employee who is designated (in
accordance with the provisions of Article 5 hereof) to be granted an Option
and who is a party to an Incentive Stock Option Agreement.
2
<PAGE>
3. ADOPTION AND ADMINISTRATION OF PLAN.
This Plan shall become effective upon its adoption by the Board of
Directors; provided, however, that the stockholders of the Company shall
approve this Plan in accordance with applicable state law, within 12 months
before or after the adoption of this Plan by the Board of Directors. Upon
such effectiveness, except as expressly limited in Articles 4 and 7 hereof
and Sections 5(d) and 6(c) hereof, any action taken by the Board of Directors
with respect to the implementation, interpretation of administration of this
Plan shall be final, conclusive and binding.
4. TOTAL NUMBER OF SHARES OF INCENTIVE STOCK.
The number of shares of Incentive Stock which may be issued in the
aggregate by the Company under this Plan pursuant to the exercise of Options
granted hereunder shall not be more than 1,500,000, which number may be
increased only by a resolution adopted by the Board of Directors and approved
within 12 months after such adoption by the stockholders of the Company in
accordance with applicable state law. Such shares of Incentive Stock may be
issued out of the authorized and unissued or reacquired Non-Voting Common
Stock of the Company. Any shares subject to an Option which expires or is
terminated unexercised as to such shares may again be subject to an Option
under this Plan. To the extent there shall be any adjustment pursuant to the
provisions of Article 11 hereof, the aforesaid number of shares shall be
appropriately so adjusted.
5. ELIGIBILITY AND AWARDS.
The Board of Directors shall designate, at any time and from time to
time thereafter, (a) the Eligible Employees of the Company who shall be
granted an Option, (b)
3
<PAGE>
the number of shares of Incentive Stock which each Eligible Employee so
designated may purchase pursuant to the exercise of an Option, (c) the
Exercise Price for each designated Eligible Employee, (d) the other terms of
each Eligible Employee's Option, including, without limitation, the term
during which such Option shall be in effect, which term for any Option shall
not be greater than 10 years from the date this Plan is adopted by the Board
of Directors or the date this Plan is approved by the stockholders of the
Company, whichever is earlier; provided, however, that the term shall not be
greater than five years from such date for any Option granted to a
Controlling Participant, and (e) the restrictions, if any, applicable to the
shares of Incentive Stock which each Eligible Employee so designated may
purchase. Notwithstanding anything stated herein, the aggregate fair market
value, determined at the time an Option is granted to a Participant, of the
Incentive Shares with respect to which Options held by such Participant first
become exercisable in any calendar year (under this Plan and all other
incentive stock option plans of the Company, or any parent or subsidiary
thereof) shall not exceed $100,000.
6. GRANT, EXERCISE AND TERMINATION OF OPTIONS.
(a) As soon as practicable after a designation is made by the Board
of Directors pursuant to Article 5 hereof, the appropriate officer or
officers of the Company shall give notice (written or oral) to such effect
each Eligible Employee of the Company so designated, which such notice shall
be accompanied by a copy or copies of the Incentive Stock Option Agreement to
be executed by such Eligible Employee.
(b) Upon receipt of the notice specified in Section 6(a) hereof, an
Eligible Employee so designated shall have an Option, and shall thereby
become and be a Participant,
4
<PAGE>
only after the due execution by such Eligible Employee and the Company of an
Incentive Stock Option Agreement within such number of days from the giving
of such notice as shall be specified in such notice.
(c) Any Option granted pursuant to this Plan must be granted within
10 years from the date that this Plan is adopted by the Board of Directors or
the date this Plan is approved by the stockholders of the Company, whichever
is earlier.
(d) An Option of a Participant may be exercised during the period
such Option is in effect and as set forth herein and in the Incentive Stock
Option Agreement, and only if compliance with all applicable Federal and
state securities laws can be effected, and may be exercised only by (i) such
Participant's completion, execution and delivery to the Company of a notice
of such Participant's exercise of such Option, which notice shall include a
certification by Participant that from the commencement of the Participant's
employment to the date of exercise of the Option, Participant has not
breached any covenant of his or her employment, and an "investment letter"
(if required by the Company) as supplied by the Company and (ii) the payment
to the Company of the aggregate Exercise Price, as provided under Article 8
hereof, for the shares of Incentive Stock to be purchased pursuant to such
exercise (as shall be specified by such Participant in such notice) in
accordance with the terms of this Plan and the Incentive Stock Option
Agreement. Except as specifically provided by a duly executed Incentive Stock
Option Agreement, an Option or any of the rights thereunder may be exercised
by such Participant only, and may not be transferred or assigned,
voluntarily, involuntarily or by operation of law including, without
limitation, the laws of bankruptcy, intestacy, descent and distribution and
succession.
5
<PAGE>
(e) Notwithstanding any terms or provisions of this Plan to the
contrary, the Board of Directors may delegate to the appropriate officer or
officers of the Company the authority to prepare, execute and deliver any
Incentive Stock Option Agreement reflecting any option granted under this
Plan; provided, however, that any such Incentive Stock Option Agreement shall
be consistent with the terms and conditions of this Plan.
7. PURCHASE PRICE OF INCENTIVE STOCK.
The determination of the Exercise Price shall be made by the Board
of Directors, in its sole discretion, it being understood that the Exercise
Price may not be less than one hundred percent (100%) of the fair market
value of the shares of Non-Voting Common Stock of the Company on the date
that such Option shall be granted; provided, however, that, if an Option
shall be granted to a Controlling Participant, the Exercise Price may not be
less than one hundred ten percent (110%) of the fair market value of the
shares of Non-Voting Common Stock of the Company on the date that such Option
is granted. The fair market value of the shares of Incentive Stock of the
Company shall be determined for purposes of this Plan by the Board of
Directors in accordance with the Code, and such determination shall be final,
conclusive and binding upon each Participant and the Company for all
purchases of this Plan.
8. PAYMENT FOR SHARES OF INCENTIVE STOCK.
Payment by each Participant for the shares of Incentive Stock
purchased hereunder shall be made by good check or in accordance with the
terms of any Incentive Stock Option Agreement executed by such Participant.
6
<PAGE>
9. COSTS AND EXPENSES.
All costs and expenses with respect to the adoption, implementation,
interpretation and administration of this Plan shall be borne by the Company;
provided, however, that, except as otherwise specifically provided in this
Plan or the applicable Incentive Stock Option Agreement between the Company
and a Participant, the Company shall not be obligated to pay any costs or
expenses (including legal fees) incurred by any Participant in connection
with any Incentive Stock Option Agreement, this Plan or any Option or
Incentive Stock held by any Participant.
10. NO PRIOR RIGHT OF AWARD.
Nothing in this Plan shall be deemed to give any officer or employee
of the Company, or such person's legal representatives or assigns, or any
other person or entity claiming under or through such person, any contract or
other right to participate in the benefits of this Plan. Nothing in this Plan
shall be construed as constituting a commitment, guarantee, agreement or
understanding of any kind or nature that the Company shall continue to employ
any individual (whether or not a Participant). This Plan shall not affect in
any way the right of the Company to terminate the employment of any
individual (whether or not a Participant) at any time and for any reason
whatsoever. No change of a Participant's duties as an employee of the Company
shall result in a modification of the terms of any rights of such Participant
under this Plan or any Incentive Stock Option Agreement executed by such
Participant.
7
<PAGE>
11. CHANGES IN CAPITAL STRUCTURE.
Subject to any required action by the stockholders of the Company
and the provisions of the General Corporation Law of the State of Delaware,
the number of shares of Incentive Stock represented by the unexercised
portion of an Option and the number of shares of Incentive Stock which has
been authorized or reserved for issuance hereunder (whether such shares are
unissued, reacquired or subject to an Option that expired, was surrendered or
terminated unexercised as to such shares), as well as the Exercise Price of a
share of Incentive Stock represented by the unexercised portion of an Option,
may be appropriately adjusted by the Board of Directors in its sole
discretion to give effect to adjustments made in the number of outstanding
shares of Non-Voting Common Stock of the Company through a merger,
consolidation, reorganization, reclassification, combination, stock dividend,
stock split or other relevant change, provided that fractional shares shall
be rounded to the nearest whole share.
12. MERGER, CONSOLIDATION, DISSOLUTION OR LIQUIDATION.
In the event of:
(a) a proposed merger or consolidation of the Company with or
into any other corporation, regardless of whether the Company is the
surviving corporation (unless appropriate provision shall have been made for
the protection of the outstanding Options granted under this Plan by the
substitution, in lieu of such Options, of options to purchase appropriate
voting common stock (the "Survivor's Stock") of the corporation surviving any
such merger or consolidation or, if appropriate, the parent corporation of
the Company or such surviving corporation, or, alternatively, by the delivery
of a number of shares of the
8
<PAGE>
Survivor's Stock which has a fair market value, as determined in good faith
by the Board of Directors as of the effective date of such merger or
consolidation equal to the product of (i) the excess of (x) the Event
Proceeds per Common Share (as hereinafter defined) covered by the Option as
of such effective date, over (y) the Exercise Price of a share of Incentive
Stock, multiplied by (ii) the number of shares of Incentive Stock covered by
such Option), or;
(b) the proposed dissolution or liquidation of the Company
(such merger, consolidation, dissolution or liquidation being herein called
an "Event");
then the Board of Directors shall declare, at least ten days prior to the
actual effective date of an Event, and provide written notice to each
Participant of the declaration, that each outstanding Option, whether or not
then exercisable, shall be cancelled at the time of, or immediately prior to
the occurrence of, the Event (unless it shall have been exercised prior to
the occurrence of the Event) in exchange for payment to the Participant,
within ten days after the Event, of cash equal to the amount (if any) for
each Share of Incentive Stock covered by the cancelled Option, by which the
Event Proceeds per Common Share exceeds the Exercise Price of a share of
Incentive Stock. At the time of such declaration, each Option shall
immediately become exercisable in full and each Participant shall have the
right, during the period preceding the time of cancellation of the Option, to
exercise his or her Option as to all or any part of the Incentive Shares
covered thereby. Each outstanding Option granted pursuant to this Plan that
shall not have been exercised prior to the Event shall be cancelled at the
time of, or immediately prior to, the Event, as provided in the declaration,
and this Plan
9
<PAGE>
shall terminate at the time of such cancellation, subject to the payment
obligations of the Company provided in the Article 12. For purposes of this
Article 12, "Event Proceeds per Common Share" shall mean the cash plus the
fair market value, as determined in good faith by the Board of Directors, of
the non-cash consideration to be received per share of Non-Voting Common
Stock by the stockholders of the Company upon the occurrence of the Event.
13. AMENDMENT OR TERMINATION OF PLAN.
Except as otherwise provided herein, this Plan may be amended or
terminated in whole or in part by the Board of Directors (in its sole
discretion), but no such action shall adversely affect or alter any right or
obligation with respect to any Option or Incentive Stock Option Agreement
then in effect, except to the extent that any such action shall be required
or desirable (in the opinion of the Company or its counsel) in order to
comply with the Code or any rule or regulation promulgated or proposed
thereunder.
14. BURDEN AND BENEFIT.
The terms and provisions of this Plan shall be binding upon, and
shall inure to the benefit of, each Participant and such Participant's
executors and administrators, estate, heirs and personal and legal
representatives.
15. HEADINGS.
The headings and other captions contained in this Plan are for
convenience and reference only and shall not be used in interpreting,
construing or enforcing any of the provisions of this Plan.
10
<PAGE>
16. INTERPRETATION.
Notwithstanding any provision of this Plan or any provision of any
Incentive Stock Option Agreement to the contrary, this Plan and each
Incentive Stock Option Agreement are intended to comply with all requirements
for qualification under the Code and with any rule or regulation promulgated
or proposed thereunder, and shall be interpreted and construed in a manner
which is consistent with this Plan and each Incentive Stock Option Agreement
being so qualified.
11
<PAGE>
WILD FILE, INC.
1999 INCENTIVE STOCK OPTION PLAN
STOCK OPTION AGREEMENT
- -------------------------------------------------------------------------------
Name of Participant:
- -------------------------------------------------------------------------------
Nature of Employment with Company:
- -------------------------------------------------------------------------------
No. of Shares Covered: Date of Grant:
- -------------------------------------------------------------------------------
Exercise Price Per Share: Expiration Date:
- -------------------------------------------------------------------------------
Vesting Commencement Date:
- -------------------------------------------------------------------------------
Vesting Schedule (cumulative):
Period After Amount of
Vesting Commencement Date Options Exercisable
------------------------- -------------------
- -------------------------------------------------------------------------------
STOCK OPTION AGREEMENT dated as of __________________ between Wild
File, Inc., a Delaware corporation (the "Company"), and the employee (the
"Participant" or "Optionee") listed above.
WHEREAS, the Company desires to carry out the purposes of the Wild
File, Inc. 1999 Incentive Stock Option Plan (the "Plan") by affording the
Participant an opportunity to purchase Common Stock, par value $0.0001 per
share, of the Company ("Common Shares") according to the terms set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms of the Plan,
the Company hereby grants to the Participant the right and option (the
"Option") to purchase the number of Common Shares specified in the schedule
at the beginning of this Agreement, on the terms and conditions hereinafter
set forth. The Option is intended by the Company to be an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
<PAGE>
2. PURCHASE PRICE. The purchase price of each of the
Common Shares subject to the Option shall be the exercise price per share
specified in the Schedule at the beginning of this Agreement, which price
has been specified in accordance with the Plan. The Board of Directors of the
Company, exercising good faith, has determined that the purchase price is at
least equal to the fair market value of each share on the date hereof.
3. OPTION PERIOD.
(a) Subject to the provisions of Section 3(c) and
Section 5 hereof, the Option shall be exercisable, in whole or in part, at
any time on or prior to the expiration date specified in such schedule; as to
the number of shares specified in the Schedule at the beginning of this
Agreement with respect to which the Option shall have vested; provided,
however, that the Participant shall have been in the continuous employ of the
Company from and after the date of grant to and including the date specified.
Notwithstanding the foregoing or any other provision herein to the contrary,
the Option shall become immediately exercisable in the event the Board of
Directors of the Company shall declare pursuant to Article 12 of the Plan
that the Option shall be canceled at the time of, or immediately prior to the
occurrence of an Event, as therein defined.
(b) The Option and all rights to purchase shares
thereunder shall cease on the earliest of:
(i) the expiration date specified in the Schedule at
the beginning of this Agreement;
(ii) the expiration of the period after the
termination of the Participant's employment within which the Option is
exercisable as specified in Section 3(c); or
(iii) the date, if any, fixed for cancellation
pursuant to Article 12 of the Plan.
Notwithstanding any other provision in this Agreement, in no event may anyone
exercise the option, in whole or in part, after its original expiration date.
(c) During the lifetime of the Participant, the Option
may be exercised only while the Participant is employed by the Company and
only if the Participant has been continuously so employed since the date of
this Agreement, except that:
(i) the Option shall continue to be exercisable for
three months after termination of the Participant's employment but only to
the extent that the Option was exercisable immediately prior to the
Participant's termination of employment;
(ii) in the event the Participant is disabled (within
the meaning of Section 22(e)(3) of the Code) while employed, the Participant
or his legal representative may exercise the Option within one year after the
termination of the Participant's employment but only to the extent that the
Option was exercisable immediately prior to the Participant's termination of
employment; and
2
<PAGE>
(iii) if the Participant's employment terminates
after a declaration pursuant to Article 12 of the Plan, the Participant may
exercise the Option at any time permitted by such declaration.
4. MANNER OF EXERCISING OPTION.
(a) Subject to the terms and conditions of this
Agreement, the Option may be exercised by delivering written notice of
exercise to the Company at its principal executive office, to the attention
of the President. The notice shall state the election to exercise the Option
and the number of Common Shares in respect of which it is being exercised,
and shall be signed by the person exercising the Option. If the person
exercising the Option is not the Participant, he or she also shall send with
the notice appropriate proof of his or her right to exercise the Option. Such
notice shall be accompanied by payment in cash of the full purchase price of
the Common Shares being purchased.
(b) As soon as practicable after receipt of the purchase
price provided for above, the Company shall deliver to the person exercising
the Option, in the name of the Participant or his or her estate or heirs, as
the case may be, a certificate or certificates representing the Common Shares
being purchased. The Company shall pay all original issue or transfer taxes,
if any, with respect to the issue or transfer of the Common Shares to the
person exercising the Option and all fees and expenses necessarily incurred
by the Company in connection therewith. All Common Shares so issued shall be
fully paid and nonassessable. Notwithstanding anything to the contrary in
this Agreement, the Company shall not be required, upon the exercise of this
Option or any part thereof, to issue or deliver any Common Shares prior to
the completion of any registration or other qualification of such Common
Shares required by applicable federal and state securities laws.
5. ACCELERATION AND CANCELLATION OF OPTION IN CERTAIN
EVENTS. As provided in Article 12 of the Plan, in certain events the Board of
Directors of the Company shall declare by prior written notice to the
Participant that the Option, whether or not then exercisable, shall be
canceled at the time of, or immediately prior to the occurrence of the Event,
as defined in Article 12 of the Plan, in exchange for certain payments to the
Participant. At the time of any such declaration, the Option shall become
immediately exercisable. The Option, to the extent not exercised prior to the
Event, shall be canceled at the time of, or immediately prior to, the Event
in accordance with the declaration.
6. LIMITATION ON TRANSFER. During the lifetime of the
Participant, only the Participant or his or her guardian or legal
representative may exercise the Option. In the event of the Participant's
death, the legal representative, heirs or legatees of the Participant's
estate or the person who acquired the right to exercise the Option by bequest
or inheritance may exercise the Option within one year after the death of the
Participant but only to the extent that the Option was exercisable, in whole
or in part, immediately prior to the Participant's death. The Participant
shall not assign or transfer the Option otherwise than by will or the laws of
descent and distribution, and the Option shall not be subject to pledge,
hypothecation, execution, attachment or similar process. Any attempt to
assign, transfer, pledge, hypothecate or otherwise dispose of
3
<PAGE>
the Option contrary to the provisions hereof, and the levy of any attachment
or similar process upon the Option, shall be null and void.
7. STOCKHOLDER RIGHTS BEFORE EXERCISE. The Participant
shall have none of the rights of a stockholder of the Company with respect to
any share subject to the Option until the share is actually issued to him or
her upon exercise of the Option.
8. DISCRETIONARY ADJUSTMENT. The Board of Directors may
in its sole discretion make appropriate adjustments in the number of shares
subject to the Option and in the purchase price per share to give effect to
any adjustments made in the number of outstanding Common Shares of the
Company through a merger, consolidation, recapitalization, reclassification,
combination, stock dividend, stock split or other relevant change, provided
that fractional shares shall be rounded to the nearest whole share.
9. DISPOSITION AFTER EXERCISE. No disposition of any
Common Shares purchased by the Participant hereunder shall be made prior to
two years from the date hereof or within one year after the date of any such
purchase.
10. RIGHT OF FIRST REFUSAL.
(a) The Participant agrees not to sell, exchange or
otherwise transfer for value, or pledge or otherwise encumber, all or any
part of the Common Shares issued pursuant to this Agreement, or any shares of
capital stock of the Company from time to time issued in respect thereof,
whether as a stock dividend, pursuant to a stock split or otherwise (such
Common Shares, together with such shares of capital stock of the Company
issued in respect thereof hereinafter collectively called the "Restricted
Shares") unless the Participant first offers the Restricted Shares he or she
intends to transfer or encumber to the Company on the terms and conditions
hereinafter contained. Any such offer shall be made in writing and shall
contain the name and address of each person to or in favor of whom the
Participant intends to transfer or encumber all or any part of the Restricted
Shares and shall specify the terms and conditions of the intended transfer or
encumbrance, including, without limitation, the proposed consideration. The
Company may, prior to the purchase of any Restricted Shares hereunder,
require evidence of a bona fide intention to transfer or encumber the
Restricted Shares.
(b) All offers under Section 10(a) hereof shall specify
the notice address of the offeror for acceptance of such offer. If the
Participant shall fail to extend an offer required by Section 10(a) hereof,
then for purposes of this Agreement the Participant shall be deemed to have
extended an offer on such date, if any, as the Company gives written notice
to the person stating that such person has failed to extend an offer and that
such notice from the Company shall be deemed to constitute such offer for
purposes of this Agreement.
(c) After receipt of an offer under Section 10(a) hereof,
the Company shall have the right for a period of 60 days to elect to
purchase, at the price specified in this Section 10 all or any part of the
Restricted Shares offered to the Company by mailing written notice of such
election within such period to the offeror at the address specified in the
offer (or, if the offer fails
4
<PAGE>
to specify a notice address, at the address to which notice to the
Participant is given pursuant to Section 14 hereof).
(d) In the event that the Company does not exercise a
right granted to it pursuant to Section 10(a) hereof, the Participant may
transfer or encumber the Restricted Shares which were subject to such right
without regard to Section 10(a) hereof, but only (i) during a period of 30
days following the 60-day period specified in Section 10(c) hereof, (ii)
solely to the persons or entities listed in the offer to the Company, and
(iii) at a price and upon terms not less advantageous to the Participant than
the price and terms stated in the offer to the Company. If the transfer or
encumbrance of the Restricted Shares is not consummated within such 30-day
period, such Restricted Shares shall again be subject to all requirements of
Section 9 hereof, including without limitation, Section 10(a).
(e) In the event of any transfer of all or any part of
the Restricted Shares, the transferee shall agree in writing to take the
Restricted Shares subject to the provisions of this Section 10 and the
related provisions of this Agreement giving effect thereto.
(f) Except as otherwise provided in this Section 10(f),
the purchase price for Restricted Shares purchased pursuant to this Section
10 shall be the appraised value of the Restricted Shares determined pursuant
to Section 12 hereof. In the case of a right granted pursuant to Section
10(a) hereof where the Participant proposes to transfer the Restricted Shares
to a third party for consideration expressed in monetary terms or having a
readily ascertainable market value, then the purchase price at which the
Company has the right to purchase such Restricted Shares shall be an amount
equal to the value of the consideration for which the Participant proposes to
transfer the Restricted Shares to a third party.
11. PAYMENT FOR REPURCHASE OF SHARES. In order to effect
a repurchase of Restricted Shares pursuant to Section 10 hereof, within 10
days of the later of (i) the date on which the right is exercised, or (ii)
the date on which the Company receives the report of the Appraiser setting
forth the appraised value of the Restricted Shares, the seller shall tender
to the Company the Restricted Shares to be purchased and the Company shall
simultaneously pay the purchase price therefor in cash.
12. APPRAISAL OF SHARES. Whenever it will be necessary to
determine the appraised value of Restricted Shares for purposes of this
Agreement, the Board of Directors of the Company shall select an investment
banking firm or other entity expert in the valuation of closely-held
companies (the "Appraiser"), who shall be engaged at the expense of the
Company, to value the Restricted Shares based upon a going-concern value
without discount for any minority interest. The appraised value of the
Restricted Shares shall be as of a date not more than six months prior to the
date on which the option to repurchase the Restricted Shares is exercised.
13. EXPIRATION UPON PUBLIC MARKET. The rights granted
pursuant to Section 10 hereof shall expire at such time as there has been
sold to the general public in an underwritten offering or offerings pursuant
to one or more registration statements filed with, and declared effective by,
the Securities and Exchange Commission under the Securities Act of 1933, as
5
<PAGE>
amended, an aggregate number of Shares equal to at least 25% of the Shares
outstanding before the last such sale.
14. NOTICE. Every notice to be given pursuant to the
provisions of this Agreement shall be in writing and delivered by hand or
sent by certified mail, return receipt requested. Any such notice to the
Company shall be addressed to 17020 12th Avenue North, Plymouth, Minnesota
55447, Attention: President. Except as otherwise provided in this Agreement,
any such notice to the Participant shall be addressed as set forth following
the signature of the Participant. Either party may change its address by
notice to the other party in accordance with this Section 14.
15. LEGEND ON STOCK CERTIFICATES. In addition to such
legends as the Company employs to evidence that the Restricted Shares have
not been registered under any federal or state securities laws, all
Restricted Shares shall contain the following legend:
The shares evidenced by this certificate and any transfer
thereof are subject to the terms of the Stock Option Agreement
between ______________________ and the Company dated as of
_________________, a copy of which is on file at the
registered office of the Company.
16. INTERPRETATION OF THIS AGREEMENT. All decisions and
interpretations made by the Board of Directors with regard to any questions
arising hereunder or under the Plan shall be binding and conclusive upon the
Company and the Participant. In the event that there is any inconsistency
between the provisions of this Agreement and the Plan, the provisions of the
Plan shall govern.
17. DISCONTINUANCE OF EMPLOYMENT OR ASSOCIATION. This
Agreement shall not give the Participant a right to continued employment or
association with the Company or any subsidiary or affiliate thereof, and the
Company or any subsidiary or affiliate thereof employing the Participant or
with whom the Participant is associated may terminate his or her employment
or association and otherwise deal with the Participant without regard to the
effect it may have upon him or her under this Agreement.
18. GENERAL. The Company shall at all times during the
term of this Option reserve and keep available such number of Common Shares
as will be sufficient to satisfy the requirements of this Option Agreement.
This Agreement shall be binding in all respects on the Participant's heirs,
representatives, successors and assigns.
This Agreement is entered into under the laws of the state of
Minnesota and shall be construed and interpreted thereunder.
6
<PAGE>
IN WITNESS WHEREOF, the Participant and the Company have executed
this Agreement as of the day and year first above written.
_____________________________________
Participant
Print Name:__________________________
Address:
WILD FILE, INC.
By:__________________________________
Eric D. Schneider, President
7
<PAGE>
EXHIBIT 4.2
WILD FILE, INC.
1994 STOCK OPTION PLAIN
1. PURPOSE OF PLAN. The purpose of this Wild File, Inc. 1994 Stock
Option Plan (the "Plan"), is to promote the interests of Wild File, Inc., a
Delaware corporation (the "Company"), and its stockholders by providing key
persons employed by, or associated with the Company with an opportunity to
acquire a proprietary interest in the Company and thereby develop a greater
personal commitment to the success and growth of the Company.
2. ADMINISTRATION OF PLAN. This Plan shall be administered by a
committee of two or more directors (the "Committee") appointed by the
Company's board of directors (the "Board"). A majority of the members of the
Committee shall constitute a quorum for any meeting of the Committee, and the
acts of a majority of the members present at any meeting at which a quorum is
present or the acts unanimously approved in writing by all members of the
Committee shall be the acts of the Committee. Subject to the provisions of
this Plan, the Committee may from time to time adopt such rules for the
administration of this Plan as it deems appropriate. The decision of the
Committee on any matter affecting this Plan or the rights and obligations
arising under this Plan or any option granted hereunder, shall be final,
conclusive and binding upon all persons, including without limitation the
Company, stockholders, employees and optionees. To the full extent permitted
by law, no member of the Committee shall be liable for any action or
determination taken or made in good faith with respect to this Plan or any
option granted hereunder. If a Committee shall not have been appointed by the
Board, the Plan shall be administered by the Board and all references in this
Plan to the "Committee." shall be deemed to be references to the Board.
3. SHARES SUBJECT TO PLAN. The shares that may be made subject to
options granted under this Plan shall be authorized and unissued shares of
Common Stock, par value $0.01 of the Company ("Common Shares"), and they
shall not exceed 10,000 in the aggregate; provided, however, if any option
lapses or terminates for any reason before such option has been completely
exercised, the Common Shares covered by the unexercised portion of such
option may again be made subject to options granted under this Plan.
Appropriate adjustments in the number of shares and in the purchase price per
share-may be made by the Committee in its sole discretion to give effect to
adjustments made in the number of outstanding Common Shares of the Company
through a merger, consolidation, recapitalization, reclassification,
combination, stock dividend, stock split or other relevant change, provided
that fractional shares shall be rounded to the nearest whole share.
4. ELIGIBLE PARTICIPANTS. Options may be granted under this Plan to
any person employed by the Company or any person associated with the Company
as director, advisor, consultant or otherwise, whether or not such person
receives consideration from the Company for such association.
<PAGE>
5. TERMS AND CONDITIONS OF OPTIONS.
(a) Subject to the terms and conditions of this Plan, the Committee
may, from time to time, grant to such persons as the Committee may determine
options to purchase such number of Common Shares of the Company on such terms
and conditions as the Committee may determine. In determining the persons to
whom options shall be granted and the number of Common Shares to be covered
by each option, the Committee may take into account the nature of the
employment of or association with such persons, their present and potential
contributions to the success of the Company, and such other factors as the
Committee in its sole discretion shall deem relevant. The date and time of
approval by the Committee of the granting of an option shall be considered
the date and the time of the grant of such option.
(b) The purchase price of each Common Share subject to an option
granted pursuant to this Plan shall be fixed by the Committee.
(c) In connection with - the grant of an option pursuant to this
Plan, the Committee may specify the date when such option shall become
exercisable; provided that if the Committee does not specify such a date,
then the option shall be immediately exercisable.
(d) Each option granted pursuant to this Plan and all rights to
purchase shares thereunder shall cease on the earliest of:
(i) ten years after the date such option is granted or on such
date prior thereto as may be fixed by the Committee on or before the date
such option is granted; or
(ii) the date, if any, fixed for cancellation pursuant to Section
8 of this Plan.
In no event shall any option be exercisable at any time after its original
expiration date. When an option is no longer exercisable, it shall be deemed
to have lapsed or terminated and will no longer be outstanding.
6. MANNER OF EXERCISING OPTIONS. A person entitled to exercise an
option granted under this Plan may, subject to its terms and conditions and
the terms and conditions of this Plan, exercise it, in whole at any time, or
in part from time to time, by delivery to the Company at its principal
executive office, to the attention of its President, of written notice of
exercise, specifying the number of shares with respect to which the option is
being exercised, accompanied by payment in full of the purchase price of the
shares to be purchased at the time. No shares shall be issued until full
payment therefor has been made. The granting of an option to an individual
shall give such individual no rights as a stockholder except as to shares
issued to such individual.
7. TRANSFERABILITY AND TERMINATION OF OPTIONS. During the lifetime of
an optionee, only such optionee or his or her guardian or legal
representative may exercise options granted under this Plan. An option may be
exercised within one year after the death of the optionee by such
individual's legal representatives, heirs or legatees, but only to the extent
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<PAGE>
that the option was exercisable, in whole or in part, immediately prior to
such individual's death. No option granted under this Plan shall be
assignable or transferable by the optionee otherwise than by will or the laws
of descent and distribution.
8. MERGER, CONSOLIDATION, DISSOLUTION OR LIQUIDATION. In the event of
(a) a proposed merger or consolidation of the Company with or into any other
corporation, regardless of whether the Company is the surviving corporation
(unless appropriate provision shall have been made for the protection of the
outstanding options granted under this Plan by the substitution, in lieu of
such options, of options to Purchase appropriate voting common stock (the
"Survivor's Stock") of the corporation surviving any such merger or
consolidation or, if appropriate, the parent corporation of the Company or
such surviving corporation, or, alternatively, by the delivery of a number of
shares of the Survivor's Stock which has a fair market value, as determined
in good faith by the Committee, as of the effective date of such merger or
consolidation equal to the product of (i) the excess of (x) the Event
Proceeds per Common Share (as hereinafter defined) covered by the option as
of such effective date, over (y) the option price per Common Share,
multiplied by (ii) the number of Common Shares covered by such option), or
(b) the, proposed dissolution or liquidation of the Company (such merger,
consolidation, dissolution or liquidation being herein called an "Event"),
then the Committee shall declare, at least ten days prior to the actual
effective date of an Event, and provide written notice to each optionee of
the declaration, that each outstanding option, whether or not then
exercisable, shall be cancelled at the time of, or immediately prior to the
occurrence of, the Event (unless it shall have been exercised prior to the
occurrence of the Event) in exchange for payment to each optionee, within ten
days after the Event, of cash equal to the amount (if any), for each Common
Share covered by the cancelled option, by which the Event Proceeds per Common
Share exceeds the exercise price per Common Share covered by such option. At
the time of such declaration, each option shall immediately become
exercisable in full and each optionee shall have the right, during the period
preceding the time of cancellation of the option, to exercise his or her
option as to all or any part of the Common Shares covered thereby. Each
outstanding option granted pursuant to this Plan that shall not have been
exercised prior to the Event shall be cancelled at the time of, or
immediately prior to, the Event, as provided in the declaration, and this
Plan shall terminate at the time of such cancellation, subject to the payment
obligations of the Company provided in this Section 8. For purposes of this
Section, "Event Proceeds per Common Share" shall mean the cash plus the fair
market value, as determined in good faith by the Committee, of the non-cash
consideration to be received per Common Share by the stockholders of the
Company upon the occurrence of the Event.
9. TAX WITHHOLDING. Delivery of Common Shares upon exercise of any
stock option granted under this Plan shall be subject to any required
withholding taxes. A person exercising such an option may, as a condition
precedent to receiving the Common Shares, be required to pay the Company a
cash amount equal to the amount of any required withholdings.
10. OTHER TERMS AND CONDITIONS. The Committee shall have the power,
subject to the terms and conditions contained herein, to fix any other terms
and conditions for the grant or exercise of any option under this Plan.
Nothing contained in this Plan, or in any
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<PAGE>
option granted pursuant to this Plan, shall confer upon any employee holding
an option any right to continued employment by the Company or any subsidiary
of the Company or limit in any way the right of the Company or any such
subsidiary to terminate an employee's employment at any time.
11. OPTION AGREEMENTS. All options granted under this Plan shall be
evidenced by a written agreement in such form or forms as the Committee may
from time to time determine. The Committee may condition the granting of
options to a person hereunder upon the execution by such person of an
agreement regarding the transferability of Common Shares in form and
substance reasonably satisfactory to the Company.
12. AMENDMENT AND DISCONTINUANCE OF PLAN. The Board may at any time
amend, suspend or discontinue this Plan; provided, however, that no amendment
to this Plan shall, without the consent of the holder of the option, alter or
impair any options previously granted under this Plan.
13. EFFECTIVE DATE. This Plan shall be effective as of August 29,
1994.
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<PAGE>
WILD FILE, INC.
1994 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
<TABLE>
<S> <C>
========================================================================================
Name of Optionee:
- ----------------------------------------------------------------------------------------
Nature of Employment by, or Association
with Company: Consultant
- ----------------------------------------------------------------------------------------
No. of Shares Covered: Date of Grant:
- ----------------------------------------------------------------------------------------
Exercise Price Per Share: Expiration Date:
========================================================================================
</TABLE>
STOCK OPTION AGREEMENT dated as ____________________ between Wild
File, Inc., a Delaware corporation (the "Company"), and the optionee (the
"Optionee") listed above.
WHEREAS, the Company desires to carry out the purposes of the Wild
File, Inc. 1994 Stock Option Plan (the "Plan") by affording the Optionee an
opportunity to purchase Common Stock, par value $0.01 per share, of the
Company ("Common Shares") according to the terms set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms of the Plan, the Company
hereby grants to the Optionee the right and option (the "Option") to purchase
the number of Common Shares specified in the schedule at the beginning of
this Agreement, on the terms and conditions hereinafter set forth. The Option
is not intended by the Company to be an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. PURCHASE PRICE. The purchase price of each of the Common Shares
subject to the Option shall be the exercise price per share specified in the
schedule at the beginning of this Agreement, which price has been specified
in accordance with the Plan.
<PAGE>
3. OPTION PERIOD.
(a) Subject to the provisions of Section 5 hereof, the Option shall
be exercisable, in whole or in part, as to the number of shares specified in
the schedule at the beginning of this Agreement at any time on or prior to
the expiration date specified in such schedule. Notwithstanding the foregoing
or any other provision herein to the contrary, the Option shall become
immediately exercisable in the event that the committee under the Plan (the
"Committee") shall declare pursuant to Section 8 of the Plan that the Option
shall be cancelled at the time of, or immediately prior to the occurrence of
an Event, as therein defined.
(b) The Option and all rights to purchase shares thereunder shall
cease on the earliest of:
(i) the expiration date specified in the schedule at the
beginning of this Agreement (which date shall not be more than ten
years after the date of this Agreement); or
(ii) the date, if any, fixed for cancellation pursuant to
Section 8 of the Plan.
Notwithstanding any other provision in this Agreement, in no event may anyone
exercise the Option, in whole or in part, after its original expiration date.
4. MANNER OF EXERCISING OPTION.
(a) Subject to the terms and conditions of this Agreement, the Option
may be exercised by delivering written notice of exercise to the Company at
its principal executive office, to the attention of the President. The notice
shall state the election to exercise the Option and the number of Common
Shares in respect of which it is being exercised, and shall be signed by the
person exercising the Option. If the person exercising the Option is not the
Optionee, he or she also shall send with the notice appropriate proof of his
or her right to exercise the Option. Such notice shall be accompanied by
payment in cash of the full purchase price of the Common Shares being
purchased.
(b) As soon as practicable after receipt of the purchase price
provided for above, the Company shall deliver to the person exercising the
Option, in the name of the Optionee or his or her estate or heirs, as the
case may be, a certificate or certificates representing the Common Shares
being purchased. The Company shall pay all original issue or transfer taxes,
if any, with respect to the issue or transfer of the Common Shares to the
person exercising the Option and all fees and expenses necessarily incurred
by the Company in connection therewith. All Common Shares so issued shall be
fully paid and nonassessable. Notwithstanding anything to the contrary in
this Agreement, the Company shall not be required, upon the exercise of this
Option or any part thereof, to issue or deliver any Common Shares prior to
the completion of any registration or other qualification of such Common
Shares required by applicable federal and state securities laws.
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<PAGE>
5. ACCELERATION AND CANCELLATION OF OPTION IN CERTAIN EVENTS. As
provided in Section 8 of the Plan, in certain events the Committee shall
declare by prior written notice to the Optionee that the Option, whether or
not then exercisable, shall be cancelled at the time of, or immediately
prior to the occurrence of the Event, as defined in Section 8 of the Plan, in
exchange for certain payments to the Optionee. At the time of any such
declaration, the Option shall become immediately exercisable. The Option, to
the extent not exercised prior to the Event, shall be cancelled at the time
of, or immediately prior to, the Event in accordance with the declaration.
6. LIMITATION ON TRANSFER. During the lifetime of the Optionee, only
the Optionee or his or her guardian or legal representative may exercise the
Option. In the event of the Optionee's death, the legal representative, heirs
or legatees of the Optionee's estate or the person who acquired the right to
exercise the Option by bequest or inheritance may exercise the Option within
one year after the death of the Optionee but only to the extent that the
Option was exercisable, in whole or in part, immediately prior to the
Optionee's death. The Optionee shall not assign or transfer the Option
otherwise than by will or the laws of descent and distribution, and the
Option shall not be subject to pledge, hypothecation, execution, attachment
or similar process. Any attempt to assign, transfer, pledge, hypothecate or
otherwise dispose of the Option contrary to the provisions hereof, and the
levy of any attachment or similar process upon the Option, shall be null and
void.
7. STOCKHOLDER RIGHTS BEFORE EXERCISE. The Optionee shall have none
of the rights of a stockholder of the Company with respect to any share
subject to the Option until the share is actually issued to him or her upon
exercise of the Option.
8. DISCRETIONARY ADJUSTMENT. The Committee may in its sole discretion
make appropriate adjustments in the number of shares subject to the Option
and in the purchase price per share to give effect to any adjustments made in
the number of outstanding Common Shares of the Company through a merger,
consolidation, recapitalization, reclassification, combination, stock
dividend, stock split or other relevant change, provided that fractional
shares shall be rounded to the nearest whole share.
9. TAX WITHHOLDING. The parties hereto recognize that the Company or
a subsidiary thereof may be obligated to withhold federal and state income
taxes and social security or other taxes upon the Optionee's exercise of the
Option. The Optionee agrees that, at the time he or she exercises the Option,
if the Company or subsidiary thereof is required to withhold such taxes, he
or she will promptly pay in cash upon demand to the Company, or the
subsidiary having such obligation, such amounts as shall be necessary to
satisfy such obligation.
10. RIGHT OF FIRST REFUSAL.
(a) The Optionee agrees not to sell, exchange or otherwise transfer
for value, or pledge or otherwise encumber, all or any part of the Common
Shares issued pursuant to this Agreement, or any shares of capital stock of
the Company from time to time issued in respect thereof, whether as a stock
dividend, pursuant to a stock split or otherwise (such Common Shares,
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together with such shares of capital stock of the Company issued in respect
thereof, hereinafter collectively called the "Restricted Shares") unless the
Optionee first offers the Restricted Shares he or she intends to transfer or
encumber to the Company on the terms and conditions hereinafter contained.
Any such offer shall be made in writing and shall contain the name and
address of each person to or in favor of whom the Optionee intends to
transfer or encumber all or any pall of the Restricted Shares and shall
specify the terms and conditions of the intended transfer or encumbrance,
including without limitation, the proposed consideration. The Company may,
prior to the purchase of any Restricted Shares hereunder, require evidence
of a bona fide intention to transfer or encumber the Restricted Shares.
(b) All offers under Section 10(a) hereof shall specify the notice
address of the offeror for acceptance of such offer. If the Optionee shall
fail to extend an offer required by Section 10(a) hereof, then for purposes
of this Agreement the Optionee shall be deemed to have extended an offer on
such date, if any, as the Company gives written notice to the person stating
that such person has failed to extend an offer and that such notice from the
Company shall be deemed to constitute such offer for purposes of this
Agreement.
(c) After receipt of an offer under Section 10(a) hereof, the Company
shall have the right for a period of sixty (60) days to elect to purchase, at
the price specified in this Section 10, all or any part of the Restricted
Shares offered to the Company by mailing written notice of such election
within such period to the offeror at the address specified in the offer (or,
if the offer fails to specify a notice address, at the address to which
notice to the Optionee is given pursuant to Section 14 hereof).
(d) In the event that the Company does not exercise a right granted
to it pursuant to Section 10(a) hereof, the Optionee may transfer or encumber
the Restricted Shares which were subject to such right without regard to
Section 10(a) hereof, but only (i) during a period of thirty (30) days
following the 60-day period specified in Section 10(c) hereof, (ii) solely to
the persons or entities listed in the offer to the Company, and (iii) at a
price and upon terms not less advantageous to the Optionee than the price and
terms stated in the offer to the Company. If the transfer or encumbrance of
the Restricted Shares is not consummated within such 30-day period, such
Restricted Shares shall again be the subject to all requirements of Section
10 hereof, including without limitation Section 10(a).
(e) In the event of any transfer of all or any part of the Restricted
Shares., the transferee shall agree in writing to take the Restricted Shares
subject to the provisions of this Section 10 and the related provisions of
this Agreement giving effect thereto.
(f) Except as otherwise provided in this Section 10(f), the purchase
price for Restricted Shares purchased pursuant to this Section 10 shall be
the appraised value of the Restricted Shares determined pursuant to Section
12 hereof. In the case of a fight granted pursuant to Section 10(a) hereof
where the Optionee proposes to transfer the Restricted Shares to a third
party for consideration expressed in monetary terms or having a readily
ascertainable market value, then the purchase price at which the Company has
the right to purchase such
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Restricted Shares shall be an amount equal to the value of the consideration
for which the Optionee proposes to transfer the Restricted shares to a third
party.
11. PAYMENT FOR REPURCHASE OF SHARES. In order to effect a repurchase
of Restricted Shares pursuant to Section 10 hereof, within ten (10) days of
the later of (i) the date on which the right is exercised, or (ii) the date
on which the Company receives the report of the Appraiser setting forth the
appraised value of the Restricted Shares, the seller shall tender to the
Company the Restricted Shares to be purchased and the Company shall
simultaneously pay the purchase price therefor in cash.
12. APPRAISAL OF SHARES. Whenever it will be necessary to determine
the appraised value of Restricted Shares for purposes of this Agreement, the
Board of Directors of the Company shall select an investment baking firm or
other entity expert in the valuation of closely-held companies (the
"Appraiser"), who shall be engaged at the expense of the Company, to value
the Restricted Shares based upon a going-concern value without discount for
any minority interest. The appraised value of the Restricted Shares shall be
as of a date not more than six (6) months prior to the date on which the
option to repurchase the Restricted Shares is exercised.
13. EXPIRATION UPON PUBLIC MARKET. The rights granted pursuant to
Section 10 hereof shall expire at such time as there has been sold to the
general public in an underwritten offering or offerings pursuant to one or
more registration statements filed with, and declared effective by, the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, an aggregate number of Shares equal to at least twenty-five percent
of the Shares outstanding after the last such sale.
14. NOTICE. Every notice to be given pursuant to the provisions of
this Agreement shall be in writing and delivered by hand or sent by certified
mail, return receipt requested. Any such notice to the Company shall be
addressed to 17020 12th Avenue North, Plymouth, Minnesota 55447, Attention:
President. Except as otherwise provided in this Agreement, any such notice to
the Optionee shall be the address set forth following the signature of the
Optionee. Either party may change its address by notice to the other party in
accordance with this Section 14.
15. LEGEND ON STOCK CERTIFICATES. In addition to such legends as the
Company employs to evidence that the Restricted Shares have not been
registered under any federal or state securities laws, all Restricted Shares
shall contain the following legend:
The shares evidenced by this certificate and any transfer
thereof are subject to the terms of the Option Agreement
between __________________ and the Company dated as of
________________ a copy of which is on file at the registered
office of the Company.
16. INTERPRETATION OF THIS AGREEMENT. All decisions and
interpretations made by the Committee with regard to any question arising
hereunder or under the Plan shall be binding and conclusive upon the Company
and the Optionee. In the event that there is any
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inconsistency between the provisions of this Agreement arid the Plan, the
provisions of the Plan shall govern.
17. DISCONTINUANCE OF EMPLOYMENT OR ASSOCIATION This Agreement shall
not give the Optionee a right to continued employment or association with the
Company or any subsidiary thereof, and the Company or any subsidiary thereof
employing the Optionee or with whom the Optionee is associated may terminate
his or her employment or association and otherwise deal with the Optionee
without regard to the effect it may have upon him or her under this
Agreement.
18. GENERAL. The Company shall at all times during the term of this
Option reserve and keep available such number of Common Shares as win be
sufficient to satisfy the requirements of this Option Agreement. This
Agreement shall be binding in all respects on the Optionee's heirs,
representatives, successors and assigns. This Agreement is entered into under
the laws of the State of Minnesota and shall be construed and interpreted
thereunder.
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the day and year first above written.
---------------------------------------
Optionee
Address:
WILD FILE, INC.
By
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EXHIBIT 5.1
Wilson Sonsini Goodrich & Rosati
PROFESSIONAL CORPORATION
April 7, 2000
Adaptec, Inc.
691 South Milpitas Boulevard
Milpitas, California 95035
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Adaptec, Inc., a Delaware corporation
(the "Company" or "you"), and have examined the Company's registration
statement on Form S-8 (the "Registration Statement") to be filed by the
Company with the Securities and Exchange Commission on or about April 7, 2000
in connection with the registration under the Securities Act of 1933, as
amended, of 22,020 shares of common stock, $0.001 par value per share (the
"Shares") reserved for issuance under the Wild File, Inc. 1999 Incentive
Stock Option Plan and Wild File, Inc. 1994 Stock Option Plan (collectively,
the "Plans").
As your legal counsel, we have examined the proceedings taken and
are familiar with the proceedings to be taken in connection with the sale and
issuance of the Shares under the Plans. It is our opinion that the Shares,
when sold and issued in the manner referred to under the Plans and pursuant
to the agreements that accompany the Plans, will be legally and validly
issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement and any amendments thereto.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<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 April 28, 1999 relating to the
financial statements of Adaptec, Inc., which appears in Adaptec, Inc.'s
Annual Report on Form 10-K for the year ended March 31, 1999.
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
San Jose, California
April 6, 2000
<PAGE>
[ARTHUR ANDERSEN LETTERHEAD]
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated February 26, 1999 (except with respect to matters discussed in
Note 12 as to which the dates are November 19, 1999, and December 22, 1999)
related to the financial statements of Distributed Processing Technology
Corp., which are included in Adaptec, Inc.'s current report on Form 8-K/A
filed on March 3, 2000, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Orlando, Florida,
April 6, 2000
