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EXHIBIT 4.1
NETAMERICA.COM CORPORATION
1999 STOCK OPTION PLAN
1. PURPOSE. This 1999 Stock Option Plan ("Plan")(1) is established as a
compensatory plan to attract, retain and provide equity incentives to selected
persons to promote the financial success of NetAmerica.com Corporation, a
Delaware corporation (the "Company"). Capitalized terms not previously defined
herein are defined in Section 18 of this Plan.
2. TYPES OF OPTIONS AND SHARES. Options granted under this Plan (the
"Options") may be either (a) incentive stock options ("ISOs") within the meaning
of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or
(b) nonqualified stock options (also known as "nonstatutory stock options")
("NQSOs"), as designated at the time of grant. The shares of stock that may be
purchased upon exercise of Options granted under this Plan (the "Shares") are
shares of common stock of the Company ("Common Stock").
3. NUMBER OF SHARES. The aggregate number of Shares that may be issued
pursuant to Options granted under this Plan is Three Million (3,000,000),
subject to adjustment as provided in this Plan. If any Option expires or is
terminated without being exercised in whole or in part, the unexercised or
released Shares from such Option shall be available for future grant and
purchase under this Plan. At all times during the term of this Plan, the Company
shall reserve and keep available such number of Shares as shall be required to
satisfy the requirements of outstanding Options under this Plan.
4. ELIGIBILITY.
(a) General Rules of Eligibility. Options may be granted to employees,
officers, directors, consultants, independent contractors and advisors (provided
such consultants, contractors and advisors render bona fide services not in
connection with the offer and sale of securities in a capital-raising
transaction) of the Company or any Parent, Subsidiary or Affiliate of the
Company. ISOs may be granted only to employees (including officers and directors
who are also employees) of the Company or a Parent or Subsidiary of the Company.
The Committee (as defined in Section 14) in its sole discretion shall select the
recipients of Options ("Optionees"). An Optionee may be granted more than one
Option under this Plan.
(b) Company Assumption of Options. The Company may also, from time to
time, assume outstanding options 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 replacement of the Option assumed by the
Company, or (ii) treating the assumed option as if it had been granted under
this Plan if the terms of such assumed option could be applied to an Option
granted under this Plan. Such assumption shall be permissible if the holder of
the assumed option would have been eligible to be granted an Option hereunder if
the other company had applied the rules of this Plan to such grant.
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(1) Approved by the Company's Board of Directors on December 30, 1998.
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5. TERMS AND CONDITIONS OF OPTIONS. The Committee shall determine
whether each Option is to be an ISO or an NQSO, the number of Shares subject to
the Option, the exercise price of the Option, the period during which the Option
may be exercised, and all other terms and conditions of the Option, subject to
the following:
(a) Form of Option Grant. Each Option granted under this Plan shall be
evidenced by a written Stock Option Grant (the "Grant") in substantially the
form attached hereto as Exhibit A or such other form as shall be approved by the
Committee.
(b) Date of Grant. The date of grant of an Option shall be the date on
which the Committee makes the determination to grant such Option unless
otherwise specified by the Committee and subject to applicable provisions of the
Code. The Grant representing the Option will be delivered to the Optionee with a
copy of this Plan within a reasonable time after the date of grant; provided,
however, that if, for any reason, including a unilateral decision by the
Committee not to execute an agreement evidencing such option, a written Grant is
not executed within sixty (60) days after the date of grant, such option shall
be deemed null and void (at the discretion of the Committee). No Option shall be
exercisable until such Grant is executed by the Company and the Optionee.
(c) Exercise Price. The exercise price of an NQSO shall be not less
than eighty-five percent (85%) of the Fair Market Value of the Shares on the
date the Option is granted. The exercise price of an ISO shall be not less than
one hundred percent (100%) of the Fair Market Value of the Shares on the date
the Option is granted. The exercise price of any Option granted to a person
owning more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any Parent or Subsidiary of the Company ("Ten
Percent Shareholders") shall not be less than one hundred ten percent (110%) of
the Fair Market Value of the Shares on the date the Option is granted.
(d) Exercise Period. Options shall be exercisable within the times or
upon the events determined by the Committee as set forth in the Grant; provided,
however, that each Option must become exercisable at a rate of at least twenty
percent (20%) per year over five (5) years from the date the Option is granted;
provided further, that no Option shall be exercisable after the expiration of
ten (10) years from the date the Option is granted; and provided further, that
no ISO granted to a Ten Percent Shareholder shall be exercisable after the
expiration of five (5) years from the date the Option is granted.
(e) Limitations on Options. The aggregate Fair Market Value (determined
as of the time an Option is granted) of stock with respect to which ISOs are
exercisable for the first time by an Optionee during any calendar year (under
this Plan or under any other incentive stock option plan of the Company or any
Parent or Subsidiary of the Company) shall not exceed one hundred thousand
dollars ($100,000). To the extent that the Fair Market Value of stock with
respect to which ISOs are exercisable for the first time by an Optionee during
any calendar year exceeds $100,000, the Options for the amount in excess of
$100,000 shall be treated as not being ISOs and shall be treated as NQSOs. The
foregoing shall be applied by taking Options into account in the order in which
they were granted. In the event that the Code or the regulations promulgated
thereunder are amended after the effective date of this Plan to provide for a
different limit on the Fair Market Value of Shares permitted to be subject to
ISOs, such different
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limit shall be incorporated herein and shall apply to any Options granted after
the effective date of such amendment. The foregoing provisions of this Plan
notwithstanding, no Optionee shall be granted Options under this Plan in any one
fiscal year which in the aggregate shall permit the Optionee to purchase more
than 500,000 shares of Common Stock. To the extent the Board of Directors of the
Company (the "Board of Directors") determines that limitations such as the
provisions of this Section 5(e) are no longer required to preserve the
deductibility for the Company of option-related compensation under Section
162(m) of the Code, the Board of Directors may modify or eliminate the
limitations contained in this Section 5(e).
(f) Options Non-Transferable. Except as otherwise permitted by the
Committee, options granted under this Plan, and any interest therein, shall not
be transferable or assignable by the Optionee, and may not be made subject to
execution, attachment or similar process, otherwise than by will or by the laws
of descent and distribution and shall be exercisable during the lifetime of the
Optionee only by the Optionee or any permitted transferee.
(g) Assumed Options. In the event the Company assumes an option granted
by another company in accordance with Section 4(b) above, the terms and
conditions of such option shall remain unchanged (except the exercise price and
the number and nature of shares issuable upon exercise, which will be adjusted
appropriately pursuant to Section 424 of the Code and the Treasury Regulations
applicable thereto). In the event the Company elects to grant a new Option
rather than assuming an existing option (as specified in Section 4), such new
Option need not be granted at Fair Market Value on the date of grant and may
instead be granted with a similarly adjusted exercise price.
(h) Termination of Options. Except as otherwise provided in an
Optionee's Grant, Options granted under the Plan shall terminate and may not be
exercised if the Optionee ceases to be employed by, or provide services to, the
Company or any Parent or Subsidiary of the Company (or, in the case of a NQSO,
by or to any Affiliate of the Company). An Optionee shall be considered to be
employed by the Company for all purposes under this Section 5(h) if the Optionee
is an officer, director or full-time employee of the Company or any Parent,
Subsidiary or Affiliate of the Company or if the Committee determines that the
Optionee is rendering substantial services as a part-time employee, consultant,
contractor or advisor to the Company or any Parent, Subsidiary or Affiliate of
the Company. The Committee shall have discretion to determine whether an
Optionee has ceased to be employed by the Company or any Parent, Subsidiary or
Affiliate of the Company and the effective date on which such employment
terminated (the "Termination Date").
(i) Termination Generally. If an Optionee ceases to be employed by the
Company and all Parents, Subsidiaries or Affiliates of the Company for any
reason, the Options which are then exercisable (and only to the extent
exercisable) (the "Vested Options") by the Optionee on the Termination Date, may
be exercised by the Optionee, but only within twelve (12) months after the
Termination Date or such shorter period of time as provided in the Grant, but in
no event less than thirty (30) days; provided that Options may not be exercised
in any event after the expiration date of the Option. To the extent any ISOs are
not exercised within three (3) months after an individual's termination date,
they will be treated as NQSOs.
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6. EXERCISE OF OPTIONS.
(a) Notices. Options may be exercised only by delivery to the Company
of a written exercise agreement in a form approved by the Committee (which need
not be the same for each Optionee), stating the number of Shares being
purchased, the restrictions imposed on the Shares, if any, and such
representations and agreements regarding the Optionee's investment intent and
access to information, if any, as may be required by the Company to comply with
applicable securities laws, together with payment in full of the exercise price
for the number of Shares being purchased.
(b) Payment. Payment for the Shares may be made in cash (by check) or,
where permitted by law any of the following methods approved by the Committee,
or any combination thereof: (i) by cancellation of indebtedness of the Company
to the Optionee; (ii) by surrender of shares of Common Stock of the Company
already owned by the Optionee, having a Fair Market Value equal to the exercise
price of the Option; (iii) by waiver of compensation due or accrued to Optionee
for services rendered; and/or (iv) by a broker-assisted cashless exercise.
(c) Withholding Taxes. Prior to issuance of the Shares upon exercise of
an Option, the Optionee shall pay or make adequate provision for any federal or
state withholding obligations of the Company, if applicable. Where approved by
the Committee in its sole discretion, the Optionee may provide for payment of
withholding taxes upon exercise of the Option by requesting that the Company
retain Shares with a Fair Market Value equal to the minimum amount of taxes
required to be withheld. In such case, the Company shall issue the net number of
Shares to the Optionee by deducting the Shares retained from the Shares
exercised. The Fair Market Value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is to be determined
in accordance with Section 83 of the Code (the "Tax Date"). All elections by
Optionees to have Shares withheld for this purpose shall be made in writing in a
form acceptable to the Committee and shall be subject to the following
restrictions:
(i) the election must be made on or prior to the applicable
Tax Date;
(ii) once made, the election shall be irrevocable as to the
particular Shares as to which the election is made;
(iii) all elections shall be subject to the consent or
disapproval of the Committee; and
(iv) if the Optionee is an officer or director of the Company
or other person (in each case, an "Insider") whose transactions in the Company's
Common Stock are subject to Section 16(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and if the Company is subject to Section
16(b) of the Exchange Act, the election must comply with Rule 16b-3 as
promulgated by the Securities and Exchange Commission ("Rule 16b-3").
(d) Limitations on Exercise. Notwithstanding anything else to the
contrary in the Plan or any Grant, no Option may be exercisable later than the
expiration date of the Option.
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7. RESTRICTIONS ON SHARES. At the discretion of the Committee, the
Company may reserve to itself and/or its assignee(s) in the Grant (a) a right of
first refusal to purchase all Shares that an Optionee (or a subsequent
transferee) may propose to transfer to a third party, and/or (b) a right to
repurchase a portion of or all Shares held by an Optionee upon the Optionee's
termination of employment or service with the Company or its Parent, Subsidiary
or Affiliate of the Company for any reason within a specified time as determined
by the Committee at the time of grant at the higher of (i) the Optionee's
original purchase price, or (ii) the Fair Market Value of such Shares.
8. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The Committee shall
have the power to modify, extend or renew outstanding Options and to authorize
the grant of new Options in substitution therefor, provided that any such action
may not, without the written consent of the Optionee, impair any rights under
any Option previously granted. Any outstanding ISO that is modified, extended,
renewed or otherwise altered shall be treated in accordance with Section 424(h)
of the Code. The Committee shall have the power to reduce the exercise price of
outstanding options; provided, however, that the exercise price per share may
not be reduced below the minimum exercise price that would be permitted under
Section 5(c) of this Plan for options granted on the date the action is taken to
reduce the exercise price.
9. PRIVILEGES OF STOCK OWNERSHIP. No Optionee shall have any of the
rights of a stockholder with respect to any Shares subject to an Option until
such Option is properly exercised. No adjustment shall be made for dividends or
distributions or other rights for which the record date is prior to such date,
except as provided in this Plan. The Company shall provide to each Optionee,
regardless of the reports provided to shareholders in general, a copy of the
annual financial statements of the Company within a reasonable time frame
following the end of the fiscal year of the Company.
10. NO OBLIGATION TO EMPLOY; NO RIGHT TO FUTURE GRANTS. Nothing in this
Plan or any Option granted under this Plan shall confer on any Optionee any
right (a) to continue in the employ of, or other relationship with, the Company
or any Parent or Subsidiary of the Company or limit in any way the right of the
Company or any Parent, Subsidiary or Affiliate of the Company to terminate the
Optionee's employment or other relationship at any time, with or without cause,
or (b) to have any Option(s) granted to such Optionee under this Plan, or any
other plan, or to acquire any other securities of the Company, in the future.
11. ADJUSTMENT OF OPTION SHARES. In the event that the number of
outstanding shares of Common Stock of the Company is changed by a stock
dividend, stock split, reverse stock split, combination, reclassification or
similar change in the capital structure of the Company without consideration, or
if a substantial portion of the assets of the Company are distributed, without
consideration in a spin-off or similar transaction, to the shareholders of the
Company, the number of Shares available under this Plan and the number of Shares
subject to outstanding Options and the exercise price per share of such Options
shall be proportionately adjusted, subject to any required action by the Board
of Directors or shareholders of the Company and compliance with applicable
securities laws; provided, however, that a fractional share shall not be issued
upon exercise of any Option and any fractions of a Share that would have
resulted shall either be cashed out at Fair Market Value or the number of Shares
issuable under the Option shall be rounded down to the nearest whole number, as
determined by the
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Committee; and provided further that the exercise price may not be decreased to
below the par value, if any, for the Shares.
12. ASSUMPTION OF OPTIONS BY SUCCESSORS.
(a) In the event of (i) a merger or consolidation as a result of which
the holders of voting securities of the Company prior to the transaction hold
shares representing less than 51% of the voting securities of the Company after
giving effect to the transaction (other than a merger or consolidation with a
wholly-owned subsidiary or where there is no substantial change in the
shareholders of the corporation and the Options granted under this Plan are
assumed by the successor corporation), or (ii) the sale of all or substantially
all of the assets of the Company, any or all outstanding Options shall be
assumed by the successor corporation, which assumption shall be binding on all
Optionees, an equivalent option shall be substituted by such successor
corporation or the successor corporation shall provide substantially similar
consideration to Optionees as was provided to shareholders (after taking into
account the existing provisions of the Optionees' options such as the exercise
price and the vesting schedule), and, in the case of outstanding shares subject
to a repurchase option, issue substantially similar shares or other property
subject to repurchase restrictions no less favorable to the Optionee.
(b) In the event such successor corporation, if any, refuses to assume
or substitute, as provided above, pursuant to an event described in subsection
(a) above, or in the event of a dissolution or liquidation of the Company, the
Options shall, notwithstanding any contrary terms in the Grant, expire on a date
specified in a written notice given by the Committee to the Optionees specifying
the terms and conditions of such termination (which date shall be at least
twenty (20) days after the date the Committee gives the written notice).
13. ADOPTION AND STOCKHOLDER APPROVAL. This Plan shall become effective
on the date that it is adopted by the Board of Directors. This Plan shall be
approved by the stockholders of the Company, in any manner permitted by
applicable corporate law, within twelve (12) months before or after the date
this Plan is adopted by the Board of Directors.
14. ADMINISTRATION. This Plan may be administered by the Board of
Directors or a Committee appointed by the Board of Directors (the "Committee").
At all times during which the Company is registered under the Exchange Act, the
Committee shall be comprised solely of two or more Non-Employee Directors. As
used in this Plan, references to the "Committee" shall mean either such
Committee or the Board of Directors if no committee has been established. The
interpretation by the Committee of any of the provisions of this Plan, any
related agreements, or any Option granted under this Plan shall be final and
binding upon the Company and all persons having an interest in any Option or any
Shares purchased pursuant to an Option.
15. TERM OF PLAN. Options may be granted pursuant to this Plan from
time to time on or prior to the tenth anniversary of the date of approval of
this Plan by the Board of Directors or the stockholders of the Company pursuant
to Section 13 of this Plan.
16. AMENDMENT OR TERMINATION OF PLAN. The Board of Directors or
Committee may, at any time, amend, alter, suspend or discontinue the Plan, but
no amendment, alteration, suspension or discontinuation shall be made which
would impair the rights of any Optionee
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under any Option theretofore granted, without his or her consent, or which,
without the approval of the stockholders of the Company would:
(a) except as provided in Section 11 of the Plan, increase the total
number of Shares reserved for the purposes of the Plan;
(b) extend the duration of the Plan;
(c) extend the period during and over which Options may be exercised
under the Plan; or
(d) change the class of persons eligible to receive Options granted
hereunder (except as may be required to comport with changes in the Code,
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
regulations promulgated thereunder).
Without limiting the foregoing, the Board of Directors or Committee may at any
time or from time to time authorize the Company, with the consent of the
respective Optionees, to issue new Options in exchange for the surrender and
cancellation of any or all outstanding Options.
17. CERTAIN DEFINITIONS. As used in this Plan, the following terms
shall have the following meanings:
(a) "Parent" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company if, at the time of the
granting of the Option, each of the corporations other than the Company owns
stock possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
(b) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of the
granting of the Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
(c) "Affiliate" means any corporation that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, another corporation, where "control" (including the terms
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to cause the direction of the management and policies of
the corporation, whether through the ownership of voting securities, by contract
or otherwise.
(d) "Non-Employee Directors" shall have the meaning set forth in Rule
16b-3(b)(3) as promulgated by the Securities and Exchange Commission under
Section 16(b) of the Exchange Act, as such rule is amended from time to time and
as interpreted by the Securities and Exchange Commission.
(e) "Fair Market Value" shall mean the fair market value of the Shares
as determined by the Committee from time to time in good faith. If a public
market exists for the Shares, the Fair Market Value shall be the average of the
last reported bid and asked prices for Common
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Stock of the Company on the last trading day prior to the date of determination
or, in the event the Common Stock of the Company is listed on a stock exchange
or is a Nasdaq National Market security, the Fair Market Value shall be the
closing price on such exchange or quotation system on the last trading day prior
to the date of determination.
18. APPLICABLE LAW AND REGULATIONS. The obligations of the Company
under this Plan are subject to the approval of state and federal authorities or
agencies with jurisdiction over the subject matter hereof. The Company shall not
be obligated to issue or deliver shares under this Plan if such issuance or
delivery would violate applicable state or federal securities laws.
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EXHIBIT A
STOCK OPTION GRANT
Optionee:
Address:
Total Shares Subject to Option:
Exercise Price Per Share:
Date of Grant:
Expiration Date of Option
Type of Option: Incentive: __________
Nonqualified: ________
1. GRANT OF OPTION. NetAmerica.com Corporation, a Delaware corporation
(the "Company"), hereby grants to the optionee named above ("Optionee") an
option (this "Option") to purchase the total number of shares of Common Stock
("Common Stock") of the Company set forth above (the "Shares") at the exercise
price per share set forth above (the "Exercise Price"), subject to all of the
terms and conditions of this Grant and the Company's 1999 Stock Option Plan, as
amended to the date hereof (the "Plan"). If designated as an Incentive Stock
Option above, this Option is intended to qualify as an "incentive stock option"
("ISO") within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"). Unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to them in the Plan.
2. EXERCISE PERIOD OF OPTION.
(a) (ISOs). The Optionee has option rights hereunder to purchase a
total of ___________ Shares which shall become exercisable during the time
periods as set forth in this Section 2. On and after ______________ [ONE YEAR
FROM DATE OF GRANT], this Option may be exercised by the Optionee for the
purchase of ________ [FRACTION] of the Shares covered by this Option (_______
Shares), or any portion thereof. On or after the last day of each full month
following __________ [ONE YEAR FROM THE DATE OF GRANT] this Option may be
exercised by the Optionee for the purchase of an additional ________ [FRACTION]
of the Shares covered by this Option (_________ Shares), or any portion thereof.
Once a portion of this Option becomes exercisable it shall remain exercisable
until the Expiration Date, or until it terminates pursuant to the terms of
Section 4 hereof, whichever is first to occur.
(b) (NQSOs). The Optionee has option rights hereunder to purchase a
total of ___________ Shares which shall become exercisable by the Optionee at
any time on or after [nine (9) months] after _____________ . Once a portion of
this Option becomes exercisable it shall remain exercisable until the Expiration
Date, or until it terminates pursuant to the terms of Section 4 hereof,
whichever is first to occur.
(c) The minimum number of Shares that may be purchased upon any partial
exercise of the Option is ________(___) shares.
Exhibit A to NetAmerica.com Corporation 1999 Stock Option Agreement
Form of Stock Option Grant
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(d) This Option shall expire on the Expiration Date set forth above and
must be exercised, if at all, on or before the Expiration Date. The portion of
Shares as to which an Option is exercisable in accordance with the above
schedule as of the applicable dates shall be deemed "Vested Options."
3. RESTRICTION ON EXERCISE. This Option may not be exercised unless
such exercise is in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and all applicable state securities laws, as they are in
effect on the date of exercise, and the requirements of any stock exchange or
over-the-counter market on which the Company's Common Stock may be listed or
quoted at the time of exercise. Optionee understands that the Company is under
no obligation to register, qualify or list the Shares with the Securities and
Exchange Commission, any state securities commission or any stock exchange to
effect such compliance.
4. TERMINATION OF OPTION. Except as provided below in this Section 4,
this Option shall terminate and may not be exercised if Optionee ceases to be
employed by, or provide services to, the Company or by any Parent or Subsidiary
of the Company (or, in the case of a nonqualified stock option, by or to any
Affiliate of the Company). Optionee shall be considered to be employed by the
Company for all purposes under this Section 4 if Optionee is an officer,
director or full-time employee of the Company or any Parent, Subsidiary or
Affiliate of the Company or if the Committee determines that Optionee is
rendering substantial services as a part-time employee, consultant, contractor
or advisor to the Company or any Parent, Subsidiary or Affiliate of the Company.
The Committee shall have discretion to determine whether Optionee has ceased to
be employed by the Company or any Parent, Subsidiary or Affiliate of the Company
and the effective date on which such employment terminated (the "Termination
Date").
(a) Termination Generally. If Optionee ceases to be employed by the
Company and all Parents, Subsidiaries or Affiliates of the Company for any
reason, the Vested Options, to the extent (and only to the extent) exercisable
by Optionee on the Termination Date, may be exercised by Optionee, but only
within ______ (__) days after the Termination Date; provided that this Option
may not be exercised in any event after the Expiration Date.
(b) No Right to Employment. Nothing in the Plan or this Grant shall
confer on Optionee any right to continue in the employ of, or other relationship
with, the Company or any Parent, Subsidiary or Affiliate of the Company or limit
in any way the right of the Company or any Parent, Subsidiary or Affiliate of
the Company to terminate Optionee's employment or other relationship at any
time, with or without cause.
5. MANNER OF EXERCISE.
(a) Exercise Agreement. This Option shall be exercisable by delivery to
the Company of an executed written Stock Option Exercise Agreement in the form
attached hereto as Exhibit 1, or in such other form as may be approved by the
Company, which shall set forth Optionee's election to exercise some or all of
this Option, the number of Shares being purchased, any restrictions imposed on
the Shares and such other representations and agreements as may be required by
the Company to comply with applicable securities laws.
Exhibit A to NetAmerica.com Corporation 1999 Stock Option Agreement
Form of Stock Option Grant
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(b) Exercise Price. The Stock Option Exercise Agreement shall be
accompanied by full payment of the Exercise Price for the Shares being
purchased. Payment for the Shares may be made in cash (by check), or, where
permitted by law, by any of the following methods approved by the Committee, or
any combinations thereof:
(i) by cancellation of indebtedness of the Company to the
Optionee;
(ii) by surrender of shares of Common Stock of the Company
already owned by the Optionee, or which were obtained by Optionee in the open
public market, having a Fair Market Value equal to the exercise price of the
Option;
(iii) by waiver of compensation due or accrued to Optionee for
services rendered; or
(iv) by a broker-assisted cashless exercise.
(c) Withholding Taxes. Prior to the issuance of the Shares upon
exercise of this Option, Optionee must pay or make adequate provision for any
applicable federal or state withholding obligations of the Company. The Optionee
may provide for payment of Optionee's minimum statutory withholding taxes upon
exercise of the Option by requesting that the Company retain Shares with a Fair
Market Value equal to the minimum amount of taxes required to be withheld, all
as set forth in Section 6(c) of the Plan. In such case, the Company shall issue
the net number of Shares to the Optionee by deducting the Shares retained from
the Shares exercised.
(d) Issuance of Shares. Provided that such Stock Option Exercise
Agreement and payment are in form and substance satisfactory to counsel for the
Company, the Company shall cause the Shares to be issued in the name of Optionee
or Optionee's legal representative.
6. NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If the Option
granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (a) the date two years after the Date of Grant, or (b) the date one
year after exercise of the ISO with respect to the Shares to be sold or disposed
of, the Optionee shall immediately notify the Company in writing of such
disposition. Optionee acknowledges and agrees that Optionee may be subject to
income tax withholding by the Company on the compensation income recognized by
the Optionee from any such early disposition by payment in cash or out of the
current wages or other earnings payable to the Optionee.
7. NONTRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner other than by will or by the laws of descent and distribution and may
be exercised during the lifetime of Optionee only by Optionee or any permitted
transferee. The terms of this Option shall be binding upon the executors,
administrators, successors and assigns of the Optionee.
8. [RESTRICTIONS ON SHARES. The Company reserves to itself for so long
as the Company's stock is not publicly traded (a) the right of first refusal to
purchase all Shares that Optionee (or a subsequent transferee) may propose to
transfer to a third party and/or (b) the right to repurchase within one year of
the Optionee's termination of employment or service with the
Exhibit A to NetAmerica.com Corporation 1999 Stock Option Agreement
Form of Stock Option Grant
<PAGE> 12
Company or its Parent, Subsidiary or Affiliate of the Company, a portion of or
all Shares held by an Optionee at the higher of (i) the Optionee's original
purchase price or, (ii) the Fair Market Value of such Shares.]
9. FEDERAL TAX CONSEQUENCES. Set forth below is a brief summary as of
the date this form of Option Grant was adopted of some of the federal tax
consequences of exercise of this Option and disposition of the Shares. THIS
SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT
TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION
OR DISPOSING OF THE SHARES.
(a) Exercise of ISO. If this Option qualifies as an ISO, there will be
no regular federal income tax liability upon the exercise of this Option,
although the excess, if any, of the Fair Market Value of the Shares on the date
of exercise over the Exercise Price will be treated as an adjustment to
alternative minimum taxable income for federal income tax purposes and may
subject the Optionee to an alternative minimum tax liability in the year of
exercise.
(b) Exercise of Nonqualified Stock Option. If this Option does not
qualify as an ISO (a "nonqualified stock option"), there may be a regular
federal income tax liability upon the exercise of the Option. The Optionee will
be treated as having received compensation income (taxable at ordinary income
tax rates) equal to the excess, if any, of the Fair Market Value of the Shares
on the date of exercise over the Exercise Price. The Company will be required to
withhold from Optionee's compensation or collect from Optionee and pay to the
applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise.
(c) Disposition of Shares. In the case of a nonqualified stock option,
if Shares are held for at least one year before disposition, any gain on
disposition of the Shares will be treated as long-term capital gain for federal
income tax purposes. In the case of an ISO, if Shares are held for at least one
year after the date of exercise and at least two years after the Date of Grant,
any gain on disposition of the Shares will be treated as long-term capital gain
for federal income tax purposes. If Shares acquired pursuant to an ISO are
disposed of within such one-year or two-year periods (a "disqualifying
disposition"), gain on such disqualifying disposition will be treated as
compensation income (taxable at ordinary income rates) to the extent of the
excess, if any, of the Fair Market Value of the Shares on the date of exercise
over the Exercise Price (the "Spread"). Any gain in excess of the Spread shall
be treated as capital gain.
10. INTERPRETATION. Any dispute regarding the interpretation of this
Grant shall be submitted by Optionee or the Company to the Board of Directors of
the Company or the Committee, which shall review such dispute at its next
regular meeting. The resolution of such a dispute by the Board of Directors or
Committee shall be final and binding on the Company and on Optionee.
Exhibit A to NetAmerica.com Corporation 1999 Stock Option Agreement
Form of Stock Option Grant
<PAGE> 13
11. ENTIRE AGREEMENT. The Plan and the Stock Option Exercise Agreement
attached hereto as Exhibit 1 are incorporated herein by this reference. This
Grant, the Plan and the Stock Option Exercise Agreement constitute the entire
agreement of the parties hereto and supersede all prior undertakings and
agreements with respect to the subject matter hereof.
NETAMERICA.COM CORPORATION,
a Delaware corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Exhibit A to NetAmerica.com Corporation 1999 Stock Option Agreement
Form of Stock Option Grant
<PAGE> 14
ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents
that Optionee has read and understands the terms and provisions thereof, and
accepts this Option subject to all the terms and conditions of the Plan and this
Stock Option Grant. Optionee acknowledges that there may be adverse tax
consequences upon exercise of this Option or disposition of the Shares and that
Optionee should consult a tax adviser prior to such exercise or disposition.
OPTIONEE
By:
----------------------------------
Name:
--------------------------------
Date:
-------------------------------
<PAGE> 15
EXHIBIT 1 TO STOCK OPTION GRANT
STOCK OPTION EXERCISE AGREEMENT
This Agreement is made this _____ day of ________________, 19___
between NetAmerica.com Corporation, a Delaware corporation (the "Company"), and
the optionee named below ("Optionee").
Optionee:
Address:
Total Shares Subject to Option:
Exercise Price Per Share:
Date of Grant:
Expiration Date of Option
Type of Option: Incentive:___________
Nonqualified:_________
Optionee hereby delivers to the Company the Aggregate Purchase Price,
to the extent permitted in the Option Grant, as follows [CHECK AS APPLICABLE AND
COMPLETE]:
[ ] cash (check) in the amount of $___________, receipt of which is
acknowledged by the Company;
[ ] by cancellation of indebtedness of the Company to the Optionee;
[ ] by delivery of ____________ fully-paid, nonassessable and vested
shares of the Common Stock of the Company owned by Optionee and
owned free and clear of all liens, claims, encumbrances or
security interests, valued at the current fair market value of
$_________ per share (determined in accordance with the Plan);
[ ] by the waiver hereby of compensation due or accrued for services
rendered in the amount of $______________; or
[ ] by a broker-assisted cashless exercise.
The Company and Optionee hereby agree as follows:
1. PURCHASE OF SHARES. On this date and subject to the terms and
conditions of this Agreement, Optionee hereby exercises the Stock Option Grant
between the Company and Optionee dated as of the Date of Option Grant set forth
above (the "Grant"), with respect to the Number of Shares Purchased set forth
above of the Company's Common Stock (the "Shares") at an aggregate purchase
price equal to the Aggregate Purchase Price set forth above (the "Purchase
Price") and the Price per Share set forth above (the "Purchase Price Per
Share"). The term "Shares" refers to the Shares purchased under this Agreement
and includes all securities received (a) in replacement of the Shares, and (b)
as a result of stock dividends or stock splits in respect of
<PAGE> 16
the Shares. Capitalized terms used herein that are not defined herein have the
definitions ascribed to them in the Plan or the Grant.
2. REPRESENTATIONS OF PURCHASER. Optionee represents and warrants to
the Company that:
(a) Optionee has received, read and understood the Plan and the Grant
and agrees to abide by and be bound by their terms and conditions.
(b) Optionee is capable of evaluating the merits and risks of this
investment, has the ability to protect Optionee's own interests in this
transaction and is financially capable of bearing a total loss of this
investment.
(c) Optionee is fully aware of (i) the highly speculative nature of the
investment in the Shares, (ii) the financial hazards involved, and (iii) the
lack of liquidity of the Shares and the restrictions on transferability of the
Shares (e.g., that Optionee may not be able to sell or dispose of the Shares or
use them as collateral for loans).
(d) Optionee is purchasing the Shares for Optionee's own account for
investment purposes only and not with a view to, or for sale in connection with,
a distribution of the Shares within the meaning of the Securities Act of 1933,
as amended (the "1933 Act").
(e) Optionee has no present intention of selling or otherwise disposing
of all or any portion of the Shares.
3. COMPLIANCE WITH SECURITIES LAWS. Optionee understands and
acknowledges that the Shares have not been registered under the 1933 Act and
that, notwithstanding any other provision of the Grant to the contrary, the
exercise of any rights to purchase any Shares is expressly conditioned upon
compliance with the 1933 Act and all applicable state securities laws. Optionee
agrees to cooperate with the Company to ensure compliance with such laws. The
Shares are being issued under the 1933 Act pursuant to [THE COMPANY WILL CHECK
THE APPLICABLE BOX]:
[ ] the exemption provided by Rule 701;
[ ] the exemption provided by Rule 504;
[ ] Section 4(2) of the 1933 Act;
[ ] other:
4. FEDERAL RESTRICTIONS ON TRANSFER. Optionee understands that the
Shares must be held indefinitely unless they are registered under the 1933 Act
or unless an exemption from such registration is available and that the
certificate(s) representing the Shares will bear a legend to that effect.
Optionee understands that the Company is under no obligation to register the
Shares, and that an exemption may not be available or may not permit Optionee to
transfer Shares in the amounts or at the times proposed by Optionee.
<PAGE> 17
(a) Rule 144. Optionee has been advised that Rule 144 promulgated under
the 1933 Act, which permits certain resales or unregistered securities, is not
presently available with respect to the Shares and, in any event, requires that
a minimum of one (1) year elapse between the date of acquisition of Shares from
the Company or an affiliate of the Company and any resale under Rule 144. Prior
to an initial public offering of the Company's stock, "nonaffiliates" (i.e.
persons other than officers, directors and major shareholders of the Company)
may resell only under Rule 144(k), which requires that a minimum of two (2)
years elapse between the date of acquisition of Shares from the Company or an
affiliate of the Company and any resale under Rule 144(k). Rule 144(k) is not
available to affiliates.
(b) Rule 701. If the exemption relied upon for exercise of the Shares
is Rule 701, the Shares will become freely transferable, subject to limited
conditions regarding the method of sale, by nonaffiliates ninety (90) days after
the first sale of common stock of the Company to the general public pursuant to
a registration statement filed with and declared effective by the Securities and
Exchange Commission (the "SEC"), subject to any lengthier market standoff
agreement contained in this Agreement or entered into by Optionee. Affiliates
must comply with the provisions (other than the holding period requirements) of
Rule 144.
5. STATE LAW RESTRICTIONS ON TRANSFER. Optionee understands that
transfer of the Shares may be restricted by applicable state securities laws,
and that the certificate(s) representing the Shares may bear a legend or legends
to that effect.
6. MARKET STANDOFF AGREEMENT. Optionee agrees in connection with any
registration of the Company's securities that, upon the request of the Company
or the underwriters managing any public offering of the Company's securities,
Optionee will not sell or otherwise dispose of any Shares without the prior
written consent of the Company or such underwriters, as the case may be, for a
period of time (not to exceed one hundred eighty (180) days) from the effective
date of such registration as the Company or the underwriters may specify for
employee stockholders generally.
7. LEGENDS. Optionee understands and agrees that the certificate(s)
representing the Shares will bear a legend in substantially the following forms,
in addition to any other legends required by applicable law:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE 'SECURITIES ACT'), AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE SECURITIES ACT OR, IN THE OPINION OF COUNSEL,
PREPARED AT ISSUER'S REQUEST AND EXPENSE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH."
8. STOP-TRANSFER NOTICES. Optionee understands and agrees that, in
order or ensure compliance with the restrictions referred to herein, the Company
may issue appropriate "stop-
<PAGE> 18
transfer" instructions to its transfer agent, if any, and that, if the Company
transfers its own securities, it may make appropriate notations to the same
effect in its own records.
9. TAX CONSEQUENCES. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER
ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF
THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX
CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR
DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR
ANY TAX ADVICE.
10. ENTIRE AGREEMENT. The Plan and Grant are incorporated herein by
reference. This Agreement, the Plan and the Grant constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the subject matter
hereof, and are governed by California law except for that body of law
pertaining to conflict of laws and matters of corporate law are governed by the
Delaware General Corporation Law.
Submitted By: Accepted By:
"OPTIONEE" "COMPANY"
NETAMERICA.COM CORPORATION,
a Delaware corporation
____________________________ By: ____________________________________
Name:_______________________
Name:___________________________________
Address:____________________
____________________ Title:__________________________________
____________________
Dated: ______ __, ____ Dated: ______ __, _____
