<PAGE>
As filed with the Securities and Exchange Commission on December __, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MACROMEDIA, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3155026
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 TOWNSEND STREET, SUITE 310W
SAN FRANCISCO, CALIFORNIA 94103
(Address of principal executive offices, including zip code)
NON-PLAN OPTION GRANT
1999 STOCK OPTION PLAN OF REGISTRANT
OPTIONS OF ANDROMEDIA, INC. ASSUMED BY REGISTRANT
ANDROMEDIA, INC. 1999 STOCK PLAN ASSUMED BY REGISTRANT
(Full title of the plan)
ELIZABETH A. NELSON
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
600 TOWNSEND STREET, SUITE 310W
SAN FRANCISCO, CALIFORNIA 94103
(415) 252-2000
(Name, address and telephone number, including area code, of agent for service)
COPIES TO:
Gordon K. Davidson, Esq.
Jeanine M. Corr, Esq.
Robert A. Freedman, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------- -------------------- ---------------------- ---------------------- --------------------
Amount Proposed Maximum Proposed Maximum
Title of Securities to be to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share Price Registration Fee
- ----------------------------- -------------------- ---------------------- ---------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par
value per share 350,000(1) $45.3125(2) $15,859,375.00 $ 4,186.88
Common Stock, $0.001 par
value per share 124,500(3) $61.75(2) $ 7,687,875.00 $ 2,029.60
Common Stock, $0.001 par
value per share 875,500(4) $63.72(5) $55,786,860.00 $14,727.73
</TABLE>
- --------
(1) Represents shares subject to an outstanding non-plan stock option grant.
(2) Estimated weighted average exercise price per share.
(3) Represents shares subject to outstanding options under the Registrant's
1999 Stock Option Plan.
(4) Represents shares available for grant under the Registrant's 1999 Stock
Option Plan.
(5) Estimated as of December 1, 1999, pursuant to Rule 457(c) solely for the
purpose of calculating the amount of the registration fee.
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------- -------------------- ---------------------- ---------------------- --------------------
Amount Proposed Maximum Proposed Maximum
Title of Securities to be to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share Price Registration Fee
- ----------------------------- -------------------- ---------------------- ---------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par
value per share 44,188(6) $15.58(2) $ 688,449.04 $ 181.75
Common Stock, $0.001 par
value per share 698,806(7) $10.11(2) $ 7,064,928.66 $ 1,865.14
Common Stock, $0.001 par
value per share 65,964(8) $31.10(2) $ 2,051,480.40 $ 541.59
Common Stock, $0.001 par
value per share 427,200(9) $61.75(5) $ 26,379,600.00 $ 6,964.21
Common Stock, $0.001 par
value per share 236(10) $63.72(2) $ 15,037.92 $ 3.97
Total Fee
$30,500.87
- ----------------------------- -------------------- ---------------------- ---------------------- --------------------
</TABLE>
- --------
(6) Represents shares subject to outstanding options under the Andromedia, Inc.
1996 Stock Option Plan assumed by Registrant.
(7) Represents shares subject to outstanding options under the Andromedia, Inc.
1997 Stock Plan assumed by Registrant.
(8) Represents shares subject to outstanding options under the Andromedia, Inc.
1999 Stock Plan assumed by Registrant.
(9) Represents shares subject to outstanding options granted by Registrant
under the Andromedia, Inc. 1999 Stock Plan assumed by Registrant.
(10) Represents shares available for grant under the Andromedia, Inc. 1999 Stock
Plan assumed by Registrant.
<PAGE>
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1999 filed on June 17, 1999, which Annual
Report contains audited consolidated financial statements as
of March 31, 1999 and 1998 and for each of the years in the
three-year period ended March 31, 1999;
(b)(1) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999 filed on November 15, 1999;
(b)(2) The Registrant's Amended Current Report on Form 8-K filed on
October 26, 1999; and
(c) The description of the Registrant's Common Stock contained in
the Registrant's registration statement on Form 8-A filed on
October 22, 1993, as amended on the Registrant's Form 8-A/A
filed on October 5, 1995, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently 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 registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of the 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.
As permitted by Section 145 of the Delaware General Corporation
Law, the Registrant's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit. In addition, as
permitted by Section 145 of the Delaware General Corporation Law, the Bylaws of
the Registrant provide that (i) the Registrant is required to indemnify its
directors and executive officers to the fullest extent permitted by the Delaware
General Corporation Law; (ii) the Registrant may, in its discretion, indemnify
other officers, employees and agents as set forth in the Delaware General
Corporation Law; (iii) upon receipt of an undertaking to repay such advances, if
indemnification is determined to be unavailable, the Registrant is required to
advance expenses, as incurred, to its directors and executive officers to the
fullest extent permitted by the Delaware General Corporation Law in connection
with a proceeding (except if a determination is reasonably and promptly made by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to the proceeding or, in certain circumstances, by
independent legal counsel in a written opinion that the facts known to the
decision-making party demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the corporation); (iv) the rights conferred
in the Bylaws are not exclusive and the Registrant is authorized to enter into
indemnification agreements with its directors, officers, employees and agents;
(v) the Registrant
2
<PAGE>
may not retroactively amend the Bylaw provisions relating to indemnity; and
(vi) to the fullest extent permitted by the Delaware General Corporation Law,
a director or executive officer will be deemed to have acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Registrant, and, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe that his or her
conduct was unlawful, if his or her action is based on the records or books
of account of the corporation or on information supplied to him or her by
officers of the corporation in the course of their duties or on the advice of
legal counsel for the corporation or on information or records given or
reports made to the corporation by independent certified public accountants
or appraisers or other experts.
The Registrant's policy is to enter into indemnification
agreements with each of its directors and executive officers. The
indemnification agreements provide that directors and executive officers will
be indemnified and held harmless to the fullest extent permitted by law
including against all expenses (including attorneys' fees), judgments, fines
and settlement amounts paid or reasonably incurred by them in any action,
suit or proceeding, including any derivative action by or in the right of the
Registrant, on account of their services as directors, officers, employees or
agents of the Registrant or as directors, officers, employees or agents of
any other company or enterprise when they are serving in such capacities at
the request of the Registrant. The Registrant will not be obligated pursuant
to the agreements to indemnify or advance expenses to an indemnified party
with respect to proceedings or claims (i) initiated by the indemnified party
and not by way of defense, except with respect to a proceeding authorized by
the Board of Directors and successful proceedings brought to enforce a right
to indemnification under the indemnification agreement, (ii) for any amounts
paid in settlement of a proceeding unless the Registrant consents to such
settlement; (iii) on account of any suit in which judgment is rendered
against the indemnified party for an accounting of profits made from the
purchase or sale by the indemnified party of securities of the Registrant
pursuant to the provisions of Section 16(b) of the Exchange Act and related
laws; (iv) on account of conduct by a director that is finally adjudged to
have been in bad faith or conduct that the director did not reasonably
believe to be in, or not opposed to, the best interests of the Registrant;
(v) on account of any criminal action or proceeding arising out of conduct
that the director had reasonable cause to believe was unlawful; or (vi) if a
final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful.
The indemnification agreements also provide for contribution in
certain situations in which the Registrant and a director or executive officer
are jointly liable but indemnification is unavailable, such contribution to be
based on the relative benefits received and the relative fault of the Registrant
and the director or executive officer. Contribution is not allowed in connection
with a Section 16(b) judgment, and adjudication of bad faith or conduct that a
director or executive officer did not reasonably believe to be in, or not
opposed to, the best interest of the Registrant, or a proceeding arising out of
conduct a director or executive officer had reasonable cause to believe was
unlawful.
The indemnification agreements require a director or executive
officer to reimburse the Registrant for all expenses advanced only to the extent
it is ultimately determined that the director or executive officer is not
entitled, under Delaware law, the Bylaws, an indemnification agreement or
otherwise to be indemnified for such expenses. The indemnification agreements
provide that they are not exclusive of any rights a director or executive
officer may have under the Certificate of Incorporation, Bylaws, other
agreements, any majority-in-interest vote of the stockholders or vote of
disinterested directors, Delaware law or otherwise.
The indemnification provision in the Bylaws, and the
indemnification agreements entered into between the Registrant and its
directors and executive officers, may be sufficiently broad to permit
indemnification of the Registrant's executive officers and directors for
liabilities arising under the Securities Act.
3
<PAGE>
As authorized by the Bylaws, the Registrant, with approval by the
Board, has purchased director and officer liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.01 Registrant's Amended and Restated Certificate of
Incorporation (incorporated herein by reference to
Exhibit 4.01 to the Registrant's registration
statement on Form S-8 (File No. 33-89092) filed with
the Commission on February 3, 1995).
4.02 Certificate of Amendment of Registrant's Restated
Certificate of Incorporation (incorporated herein by
reference to the Registrant's registration statement
on Form 8-A/A filed with the Commission on October 5,
1995).
4.03 Registrant's Bylaws, as amended (incorporated herein
by reference to Exhibit 3.02 to the Registrant's
Registration Statement on Form S-1 (File No.
33-70624) declared effective by the Commission on
December 10, 1993 (the "Form S-1")).
4.04 Amendment to Registrant's Bylaws effective October
15, 1993 (incorporated herein by reference to
Exhibit 3.03 to the Form S-1).
4.05 Registrant's Form of Non-Plan Stock Option Grant
(incorporated by reference to Exhibit 4.07 to the
Registrant's Registration Statement on Form S-8 (File
No. 333-89247) filed with the Commission on October
18, 1999).
4.06 Registrant's 1999 Stock Option Plan.
4.07 Andromedia, Inc. 1996 Stock Option Plan.
4.08 Andromedia, Inc. 1997 Stock Plan.
4.09 Andromedia, Inc. 1999 Stock Plan.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit
5.01).
23.02 Consent of KPMG LLP, independent auditors.
23.03 Consent of KPMG LLP, independent auditors.
24.01 Power of Attorney (see signature pages following Item
9).
ITEM 9. UNDERTAKINGS.
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:
4
<PAGE>
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
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.
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 provisions discussed in Item 6 hereof, 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 hereby, 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.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on the day
of December, 1999.
MACROMEDIA, INC.
By: /s/ Elizabeth A. Nelson
-----------------------
Elizabeth A. Nelson
Senior Vice President, Chief Financial Officer
and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below and on the next page constitutes and appoints Robert K. Burgess
and Elizabeth A. Nelson, and each of them, his true and lawful
attorneys-in-fact and agents with full power of substitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement on Form S-8, and to file the same with all exhibits thereto and all
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on this page
and the next in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ Robert K. Burgess Chief Executive Officer, December 2, 1999
- ----------------------------- Chairman of the Board
Robert K. Burgess
PRINCIPAL FINANCIAL OFFICER
AND ACCOUNTING OFFICER:
/s/ Elizabeth A. Nelson Senior Vice President, December 6, 1999
- ----------------------------- Chief Financial Officer
Elizabeth A. Nelson and Secretary
6
<PAGE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
ADDITIONAL DIRECTORS:
/s/ John (Ian) Giffen
- ----------------------------- Director December 2, 1999
John (Ian) Giffen
/s/ Mark D. Kvamme
- ----------------------------- Director December__, 1999
Mark D. Kvamme
/s/ Donald L. Lucas
- ----------------------------- Director December 1, 1999
Donald L. Lucas
/s/ Al Ramadan
- ----------------------------- Director December 3, 1999
Al Ramadan
/s/ William B. Welty
- ----------------------------- Director December 2, 1999
William B. Welty
</TABLE>
7
<PAGE>
Exhibit 4.06
MACROMEDIA, INC.
1999 STOCK OPTION PLAN
As Adopted September 22, 1999
and Amended Through December 1, 1999
1. PURPOSE. The purpose of this Plan is to provide incentives to
attract, retain and motivate eligible persons whose present and potential
contributions are important to the success of the Company, its Parent and
Subsidiaries, by offering them an opportunity to participate in the Company's
future performance through awards of Options. Capitalized terms not defined in
the text are defined in Section 21, if they are not otherwise defined in other
sections of this Plan.
2. SHARES SUBJECT TO THE PLAN.
2.1 NUMBER OF SHARES AVAILABLE. Subject to Sections 2.2
and 16, the total number of Shares reserved and available for grant and issuance
pursuant to this Plan will be 1,600,000 Shares. Subject to Sections 2.2 and 16,
Shares that are subject to: (a) issuance upon exercise of an Option but cease to
be subject to such Option for any reason other than exercise of such Option; and
(b) an Option granted hereunder but are forfeited or are repurchased by the
Company at the original issue price because the Shares are Unvested Shares at
the time of the Participant's Termination, will again be available for grant and
issuance in connection with future Options under this Plan. At all times the
Company shall reserve and keep available a sufficient number of Shares as shall
be required to satisfy the requirements of all outstanding Options granted under
this Plan.
2.2 ADJUSTMENT OF SHARES. If the number of outstanding
shares is changed by a stock dividend, recapitalization, stock split, reverse
stock split, subdivision, combination, reclassification or similar change in the
capital structure of the Company without consideration, then (a) the number of
Shares reserved for issuance under this Plan, and (b) the Exercise Prices of and
number of Shares subject to outstanding Options, will be proportionately
adjusted, subject to any required action by the Board or the stockholders of the
Company and compliance with applicable securities laws; PROVIDED, HOWEVER, that
fractions of a Share will not be issued but will either be paid in cash at the
Fair Market Value of such fraction of a Share or will be rounded up to the
nearest whole Share, as determined by the Committee; and PROVIDED, FURTHER, that
the Exercise Price of any Option may not be decreased to below the par value of
the Shares.
3. ELIGIBILITY. Options may be granted to employees, officers,
consultants, independent contractors and advisers of the Company or any Parent
or Subsidiary of the Company; PROVIDED such consultants, contractors and
advisers (a) are natural persons; (b) render bona fide services; and (c) the
services are not in connection with the offer and sale of securities in a
capital-raising transaction and do not directly or indirectly promote or
maintain a market for the Company's securities. A person may be granted more
than one Option under this Plan. Options awarded to Insiders or other
individuals who are officers of the Company may not exceed in the aggregate
forty percent (40%) of all Shares that are reserved for grant under this Plan
and employees who are not officers of the Company, or any Parent or Subsidiary
of the Company must receive at least sixty percent (60%) of all Shares that are
reserved for grant under this Plan.
4. ADMINISTRATION.
4.1 COMMITTEE AUTHORITY. This Plan will be administered
by the Committee or by the Board acting as the Committee. Subject to the general
purposes, terms and conditions of this Plan, and to the direction of the Board,
the Committee will have full power to implement and carry out this Plan. Without
limitation, the Committee will have the authority to:
<PAGE>
(a) construe and interpret this Plan, any Stock Option
Agreement and any other agreement or document executed
pursuant to this Plan;
(b) prescribe, amend and rescind rules and regulations
relating to this Plan or any Option;
(c) select persons to receive Options;
(d) determine the form and terms of Options;
(e) determine the number of Shares subject to Options;
(f) determine whether Options will be granted singly, in
combination with, in tandem with, in replacement of, or
as alternatives to, other Options under this Plan or any
other incentive or compensation plan of the Company or
any Parent or Subsidiary of the Company;
(g) grant waivers of Plan or Option conditions;
(h) determine the vesting, exercisability and payment of
Options;
(i) correct any defect, supply any omission or reconcile any
inconsistency in this Plan, any Option or any Stock
Option Agreement;
(j) determine whether an Option has been earned; and
(k) make all other determinations necessary or advisable for
the administration of this Plan.
4.2 COMMITTEE DISCRETION. Any determination made by the
Committee with respect to any Option will be made in its sole discretion at the
time of grant of the Option or, unless in contravention of any express term of
this Plan or Option, at any later time, and such determination will be final and
binding on the Company and on all persons having an interest in any Option under
this Plan. The Committee may delegate to one or more officers of the Company,
each of whom are a member of the Board, the authority to grant an Option under
this Plan to Participants who are not Insiders.
5. OPTIONS. Only nonqualified stock options that do not qualify
as incentive stock options within the meaning of Code Section 422(b) may be
granted under this Plan. The Committee may grant Options to eligible persons and
will determine (i) the number of Shares subject to the Option, (ii) the Exercise
Price of the Option, (iii) the period during which the Option may be exercised,
and (iv) all other terms and conditions of the Option and, subject to the limits
in Section 9 on the transferability of Options, whether the Option or any
interest therein may be transferred during the Participant's lifetime, subject
to the following:
5.1 FORM OF OPTION GRANT. Each Option granted under this
Plan will be evidenced by a Stock Option Agreement. The Stock Option Agreement
will be in such form and contain such provisions (which need not be the same for
each Participant) as the Committee may from time to time approve, and which will
comply with and be subject to the terms and conditions of this Plan.
5.2 DATE OF GRANT. The date of grant of an Option will
be the date on which the Committee makes the determination to grant the Option,
unless a later date is otherwise specified by the Committee. The Stock Option
Agreement and a copy of this Plan will be delivered to the Participant within a
reasonable time after the granting of the Option.
5.3 EXERCISE PERIOD AND EXPIRATION DATE. Options will be
exercisable within the times or upon the occurrence of events determined by the
Committee as set forth in the Stock Option Agreement
-2-
<PAGE>
governing such Option; PROVIDED, HOWEVER, that no Option will be exercisable
after the expiration of ten (10) years from the date the Option is granted. The
Committee also may provide for Options to become exercisable at one time or from
time to time, periodically or otherwise, in such number of Shares or percentage
of Shares as the Committee determines.
5.4 EXERCISE PRICE. The Exercise Price of an Option will
be determined by the Committee when the Option is granted and may not be less
than Fair Market Value of the Shares on the date of grant. Payment for the
Shares purchased must be made in accordance with Section 6 of this Plan.
5.5 METHOD OF EXERCISE. Options may be exercised only by
delivery to the Company of a written stock option exercise agreement (the
"EXERCISE AGREEMENT") in a form approved by the Committee (which need not be the
same for each Participant), stating the number of Shares being purchased, the
restrictions imposed on the Shares purchased under such Exercise Agreement, if
any, and such representations and agreements regarding Holder's investment
intent and access to information and other matters, if any, as may be required
or desirable 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.
5.6 TERMINATION. Notwithstanding the exercise periods
set forth in the Stock Option Agreement, exercise of an Option will always be
subject to the following:
(a) If the Participant is Terminated for any reason except
death or Disability, then the Holder may exercise such
Holder's Options only to the extent that such Options
would have been exercisable upon the Termination Date no
later than ninety (90) days after the Termination Date
(or such shorter or longer time period not exceeding
five (5) years as may be determined by the Committee),
but in any event, no later than the expiration date of
the Options.
(b) If the Participant is Terminated because of
Participant's death or Disability (or the Participant
dies within three (3) months after a Termination), then
Holder's Options may be exercised only to the extent
that such Options would have been exercisable by Holder
on the Termination Date and must be exercised by the
Holder no later than twelve (12) months after the
Termination Date (or such shorter or longer time period
not exceeding five (5) years as may be determined by the
Committee) but in any event no later than the expiration
date of the Options.
5.7 LIMITATIONS ON EXERCISE. The Committee may specify a
reasonable minimum number of Shares that may be purchased on any exercise of an
Option, provided that the minimum number will not prevent a Holder from
exercising the Option for the full number of Shares for which it is then
exercisable.
5.8 MODIFICATION, EXTENSION OR RENEWAL. The Committee
may modify, extend or renew outstanding Options and authorize the grant of new
Options in substitution therefor, provided that any such action may not, without
the written consent of a Participant, impair any of such Participant's rights
under any Option previously granted. The Committee may reduce the Exercise Price
of outstanding Options without the consent of Participants affected by a written
notice to them; PROVIDED, HOWEVER, that the Exercise Price may not be reduced
below the minimum Exercise Price that would be permitted under Section 5.4 of
this Plan for Options granted on the date the action is taken to reduce the
Exercise Price; and provided, further, that the Exercise Price shall not be
reduced below the par value of the Shares.
6. PAYMENT FOR SHARE PURCHASES.
6.1 PAYMENT. Payment for Shares purchased on exercise of
an Option may be made in cash (by check) or, where expressly approved for the
Participant by the Committee and where permitted by law:
-3-
<PAGE>
(a) in case of exercise by the Participant, Participant's
guardian or legal representative or the authorized legal
representative of Participant's heirs or legatees after
Participant's death, by cancellation of indebtedness of
the Company to the Participant;
(b) by surrender of shares that either: (1) have been owned
by Holder for more than six (6) months and have been
paid for within the meaning of SEC Rule 144 (and, if
such shares were purchased from the Company by use of a
promissory note, such note has been fully paid with
respect to such shares); or (2) were obtained by Holder
in the public market;
(c) by tender of a full recourse promissory note having such
terms as may be approved by the Committee and bearing
interest at a rate sufficient to avoid imputation of
income under Sections 483 and 1274 of the Code;
PROVIDED, HOWEVER, that a Holder who is not an employee
of the Company shall not be entitled to purchase Shares
with a promissory note unless the note is adequately
secured by collateral other than the Shares; and
provided, further, that the portion of the Exercise
Price equal to the par value of the Shares must be paid
in cash;
(d) in the case of exercise by the Participant,
Participant's guardian or legal representative or the
authorized legal representative of Participant's heirs
or legatees after Participant's death, by waiver of
compensation due or accrued to the Participant for
services rendered;
(e) by tender of property;
(f) provided that a public market for the Company's stock
exists:
(1) through a "same day sale" commitment from the
Holder and a broker-dealer that is a member of
the National Association of Securities Dealers
(an "NASD DEALER") whereby the Holder
irrevocably elects to exercise the Option and to
sell a portion of the Shares so purchased to pay
for the Exercise Price, and whereby the NASD
Dealer irrevocably commits upon receipt of such
Shares to forward the Exercise Price directly to
the Company; or
(2) through a "margin" commitment from the Holder
and a NASD Dealer whereby the Holder irrevocably
elects to exercise the Option and to pledge the
Shares so purchased to the NASD Dealer in a
margin account as security for a loan from the
NASD Dealer in the amount of the Exercise Price,
and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the
Exercise Price directly to the Company; or
(g) by any combination of the foregoing.
6.2 LOAN GUARANTEES. The Committee may help the
Participant pay for Shares purchased under this Plan by authorizing a guarantee
by the Company of a third-party loan to the Participant.
7. WITHHOLDING TAXES.
7.1 WITHHOLDING GENERALLY. Whenever Shares are to be
issued on exercise of Options granted under this Plan, the Company may require
the Holder to remit to the Company an amount sufficient to satisfy federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares. If a payment in satisfaction of an
Option is to be made in cash, such payment will be net of an amount sufficient
to satisfy federal, state, and local withholding tax requirements.
-4-
<PAGE>
7.2 STOCK WITHHOLDING. When, under applicable tax laws,
a Participant incurs tax liability in connection with the exercise or vesting of
any Option that is subject to tax withholding and the Participant is obligated
to pay the Company the amount required to be withheld, the Committee may in its
sole discretion allow the Participant to satisfy the minimum withholding tax
obligation by electing to have the Company withhold from the Shares to be issued
that number of Shares having a Fair Market Value equal to the minimum amount
required to be withheld, determined on the date that the amount of tax to be
withheld is to be determined. All elections by a Holder to have Shares withheld
for this purpose will be made in accordance with the requirements established by
the Committee and be in writing in a form acceptable to the Committee
8. PRIVILEGES OF STOCK OWNERSHIP.
8.1 VOTING AND DIVIDENDS. No Holder will have any of the
rights of a stockholder with respect to any Shares until the Shares are issued
to the Holder. After Shares are issued to the Holder, the Holder will be a
stockholder and have all the rights of a stockholder with respect to such
Shares, including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares; provided, however, that
if the Shares are Unvested Shares, any new, additional or different securities
the Holder may become entitled to receive with respect to the Shares by virtue
of a stock dividend, stock split or any other change in the corporate or capital
structure of the Company will be subject to the same restrictions as the
Unvested Shares; provided, further that the Holder will have no right to retain
such dividends or distributions with respect to Shares that are repurchased at
the Holder's original Exercise Price pursuant to Section 10.
8.2 FINANCIAL STATEMENTS. The Company will provide
financial statements to each Holder prior to such Holder's purchase of Shares
under this Plan, and to each Holder annually during the period such Holder has
Options outstanding; PROVIDED, HOWEVER, that the Company will not be required to
provide such financial statements to Holders whose services in connection with
the Company assure them access to equivalent information.
9. TRANSFERABILITY. Unless otherwise restricted by the
Committee, an Option shall be exercisable: (i) during the Participant's lifetime
only by (A) the Participant, (B) the Participant's guardian or legal
representative, (c) a Family Member of the Participant who has acquired the
Option by Permitted Transfer; and (ii) after Participant's death, by the legal
representative of the Participant's heirs or legatees.
10. RESTRICTIONS ON SHARES. At the discretion of the Committee,
the Company may reserve to itself and/or its assignee(s) in the Stock Option
Agreement a right to repurchase at the Holder's Exercise Price a portion of or
all Unvested Shares held by a Holder following such Participant's Termination at
any time within ninety (90) days after the later of Participant's Termination
Date and the date Holder purchases Shares under this Plan, for cash and/or
cancellation of purchase money indebtedness.
11. CERTIFICATES. All certificates for Shares or other
securities delivered under this Plan will be subject to such stock transfer
orders, legends and other restrictions as the Committee may deem necessary or
advisable, including restrictions under any applicable federal, state or foreign
securities law, or any rules, regulations and other requirements of the SEC or
any stock exchange or automated quotation system upon which the Shares may be
listed or quoted.
12. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on a
Holder's Shares, the Committee may require the Holder to deposit all
certificates representing the Shares, together with stock powers or other
instruments of transfer approved by the Committee, appropriately endorsed in
blank, with the Company or an agent designated by the Company to hold in escrow
until such restrictions have lapsed or terminated, and the Committee may cause a
legend or legends referencing such restrictions to be placed on the
certificates. Any Holder who is permitted to execute a promissory note as
partial or full consideration for the purchase of Shares under this Plan will be
required to pledge and deposit with the Company all or part of the Shares so
purchased as collateral to secure the payment of Holder's obligation to the
Company under the promissory note; PROVIDED, HOWEVER, that the
-5-
<PAGE>
Committee may require or accept other or additional forms of collateral to
secure the payment of such obligation and, in any event, the Company will have
full recourse against the Holder under the promissory note notwithstanding any
pledge of the Holder's Shares or other collateral. In connection with any pledge
of the Shares, Holder will be required to execute and deliver a written pledge
agreement in such form as the Committee will from time to time approve. The
Shares purchased with the promissory note may be released from the pledge on a
pro rata basis as the promissory note is paid.
13. EXCHANGE AND BUYOUT OF OPTIONS. The Committee may, at any
time or from time to time, authorize the Company, with the consent of the
respective Holders, to issue new Options in exchange for the surrender and
cancellation of any or all outstanding Options. The Committee may at any time
buy from a Holder an Option previously granted with payment in cash, Shares or
other consideration, based on such terms and conditions as the Committee and the
Holder may agree.
14. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Option
will not be effective unless such Option is in compliance with all applicable
federal and state securities laws, rules and regulations of any governmental
body, and the requirements of any stock exchange or automated quotation system
upon which the Shares may then be listed or quoted, as they are in effect on the
date of grant of the Option and also on the date of exercise or other issuance.
Notwithstanding any other provision in this Plan, the Company will have no
obligation to issue or deliver certificates for Shares under this Plan prior to:
(a) obtaining any approvals from governmental agencies that the Company
determines are necessary or advisable; and/or (b) completion of any registration
or other qualification of such Shares under any state or federal law or ruling
of any governmental body that the Company determines to be necessary or
advisable. The Company will be under no obligation to register the Shares with
the SEC or to effect compliance with the registration, qualification or listing
requirements of any state securities laws, stock exchange or automated quotation
system, and the Company will have no liability for any inability or failure to
do so.
15. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Option
granted under this Plan will confer or be deemed to confer on any Participant
any right to continue in the employ of, or to continue any 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 or Subsidiary of the Company to terminate
Participant's employment or other relationship at any time, with or without
cause.
16. CORPORATE TRANSACTIONS.
16.1 ASSUMPTION OR REPLACEMENT OF OPTIONS BY SUCCESSOR.
In the event of (a) a merger or consolidation in which the Company is not the
surviving corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the stockholders of
the Company and the Options granted under this Plan are assumed or replaced by
the successor corporation, which assumption will be binding on all
Participants), (b) a dissolution or liquidation of the Company, (c) the sale of
substantially all of the assets of the Company, or (d) any other transaction
which qualifies as a "corporate transaction" under Section 424(a) of the Code
wherein the stockholders of the Company give up all of their equity interest in
the Company (EXCEPT for the acquisition, sale or transfer of all or
substantially all of the outstanding shares of the Company), any or all
outstanding Options may be assumed or replaced by the successor corporation,
which assumption or replacement shall be binding on all Holders. In the
alternative, the successor corporation may substitute equivalent Options or
provide substantially similar considerations to Holders as was provided to
stockholders (after taking into account the existing provisions of the Options).
The successor corporation may also issue, in place of Unvested Shares of the
Company held by Holder, substantially similar shares or other property subject
to repurchase restrictions no less favorable to the Holder.
16.2 EXPIRATION OF OPTIONS. In the event such successor
corporation, if any, refuses to assume or substitute the Options, as provided
above, pursuant to a transaction described in Subsection 16.1(a)
-6-
<PAGE>
above, such Options shall expire on such transaction at such time and on such
conditions as the Board shall determine. In the event such successor
corporation, if any, refuses to assume or substitute the Options as provided
above, pursuant to a transaction described in Subsections 16.1(b), (c) or (d)
above, or there is no successor corporation, and if the Company ceases to exist
as a separate corporate entity, then, notwithstanding any contrary terms in the
Stock Option Agreement, the Options shall expire on a date at least twenty (20)
days after the Board gives written notice to Holders specifying the terms and
conditions of such termination.
16.3 OTHER TREATMENT OF OPTIONS. Subject to any greater
rights granted to Participants under the foregoing provisions of this Section
16, in the event of the occurrence of any transaction described in Section 16.1,
any outstanding Options will be treated as provided in the applicable agreement
or plan of merger, consolidation, dissolution, liquidation, sale of assets or
other "corporate transaction."
16.4 ASSUMPTION OF OPTIONS BY THE COMPANY. The Company,
from time to time, also may substitute or assume outstanding options granted by
another company, whether in connection with an acquisition of such other company
or otherwise, by either; (a) granting an Option under this Plan in substitution
of such other company's option; or (b) assuming such 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 substitution or assumption will be
permissible if the holder of the substituted or assumed option would have been
eligible to be granted an Option under this Plan if the other company had
applied the rules of this Plan to such grant. In the event the Company assumes
an option granted by another company, the terms and conditions of such option
will remain unchanged (EXCEPT that the exercise price and the number and nature
of Shares issuable upon exercise of any such option will be adjusted
appropriately pursuant to Section 424(a) of the Code). In the event the Company
elects to grant a new Option rather than assuming an existing option, such new
Option may be granted with a similarly adjusted Exercise Price.
17. ADOPTION. This Plan will become effective on the date that
it is adopted by the Board (the "EFFECTIVE DATE").
18. TERM OF PLAN/GOVERNING LAW. Unless earlier terminated as
provided herein, this Plan will terminate ten (10) years from the Effective
Date. This Plan and all agreements hereunder shall be governed by and construed
in accordance with the internal laws of the State of California, excluding that
body of law pertaining to conflict of laws.
19. AMENDMENT OR TERMINATION OF PLAN. The Board may at any time
terminate or amend this Plan in any respect, including without limitation
amendment of any form of Stock Option Agreement or instrument to be executed
pursuant to this Plan.
20. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of this
Plan by the Board, nor any provision of this Plan will be construed as creating
any limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under this Plan, and such arrangements
may be either generally applicable or applicable only in specific cases.
21. DEFINITIONS. As used in this Plan, the following terms will
have the following meanings:
"BOARD" means the Board of Directors of the Company.
"COMMITTEE" means the Committee appointed by the Board
to administer the Plan, or if no committee is appointed, the Board.
"CODE" means the Internal Revenue Code of 1986, as
amended.
-7-
<PAGE>
"COMPANY" means Macromedia, Inc., a corporation
organized under the laws of Delaware, or any successor corporation.
"DISABILITY" means a disability, whether temporary or
permanent, partial or total, within the meaning of Section 22(e)(3) of the
Code, as determined by the Committee.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"EXERCISE PRICE" means the price at which a holder of an
Option may purchase the Shares issuable upon exercise of the Option.
"FAIR MARKET VALUE" means, as of any date, the value of
a share of the Company's Common Stock determined as follows:
(a) if such Common Stock is then quoted on the Nasdaq
National Market, its last reported sales price on the
Nasdaq National Market or, if no such reported sale
takes place on such date, the average of the closing bid
and asked prices;
(b) if such Common Stock is publicly traded and is then
listed on a national securities exchange, the last
reported sale price or, if no such reported sale takes
place on such date, the average of the closing bid and
asked prices on the principal national securities
exchange on which the Common Stock is listed or admitted
to trading;
(c) if such Common Stock is publicly traded but is not
quoted on the Nasdaq National Market nor listed or
admitted to trading on a national securities exchange,
the average of the closing bid and asked prices on such
date, as reported by THE WALL STREET JOURNAL, for the
over-the-counter market; or
(d) if none of the foregoing is applicable, by the Board of
Directors of the Company in good faith.
"FAMILY MEMBER" includes any of the following:
(a) child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, former spouse, sibling, niece,
nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law of the
Participant, including any such person with such
relationship to the Participant by adoption;
(b) any person (other than a tenant or employee) sharing the
Participant's household;
(c) a trust in which the persons in (a) and (b) have more
than fifty percent of the beneficial interest;
(d) a foundation in which the persons in (a) and (b) or the
Participant control the management of assets; or
(e) any other entity in which the persons in (a) and (b) or
the Participant own more than fifty percent of the
voting interest.
"HOLDER" means the following person to the extent such
person has or controls an interest in an Option at the time in question: (a) the
Participant; (b) the Participant's guardian or legal
-8-
<PAGE>
representative; (c) a Family Member who is a transferee of an Option in a
Permitted Transfer, and (d) the authorized legal representative of such person's
heirs or legatees after such person's death.
"INSIDER" means an officer of the Company or any other
person whose transactions in the Company's Common Stock are subject to Section
16 of the Exchange Act.
"OPTION" means an Option of an option to purchase Shares
pursuant to Section 5.
"PARENT" means any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company if, at the time of
granting of the Option under the Plan, each of such corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain.
"PARTICIPANT" means a person who receives an Option
under this Plan.
"PERMITTED TRANSFER" means, as authorized by this Plan
and the Committee in an Option, any transfer effected by the Participant during
the Participant's lifetime of an interest in such Option but only such transfers
which are by gift or domestic relations order. A Permitted Transfer does not
include any transfer for value and neither of the following are transfers for
value: (a) a transfer of under a domestic relations order in settlement of
marital property rights or (b) a transfer to an entity in which more than fifty
percent of the voting interests are owned by Family Members or the Participant
in exchange for an interest in that entity.
"PLAN" means this Macromedia, Inc. 1999 Stock Option
Plan, as amended from time to time.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SHARES" means shares of the Company's Common Stock
reserved for issuance under this Plan, as adjusted pursuant to Sections 2 and
16, and any successor security.
"STOCK OPTION AGREEMENT" means, with respect to each
Option, the signed written agreement between the Company and the Participant
setting forth the terms and conditions of the Option.
"SUBSIDIARY" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if, at
the time of granting of the Option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
"TERMINATION" or "TERMINATED" means, for purposes of
this Plan with respect to a Participant, that the Participant has for any reason
ceased to provide services as an employee, officer, consultant, independent
contractor, or advisor to the Company or a Parent or Subsidiary of the Company
except for sick leave, military leave, or any other leave of absence approved by
the Committee, provided, that such leave is for a period of not more than 90
days, unless reinstatement upon the expiration of such leave is guaranteed by
contract or statute. The Committee will have sole discretion to determine
whether a Participant has ceased to provide services and the effective date on
which the Participant ceased to provide services (the "TERMINATION DATE").
"UNVESTED SHARES" means "Unvested Shares" as defined in
the Option Agreement.
"VESTED SHARES" means "Vested Shares" as defined in the
Option Agreement.
-9-
<PAGE>
Exhibit 4.07
ANDROMEDIA, INC.
1996 STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this Stock Option Plan are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees and Consultants of
the Company and any Parent or Subsidiary and to promote the success of the
Company's business. Options granted under the Plan may be Incentive Stock
Options or Nonstatutory Stock Options, as determined by the Administrator at the
time of grant of an option and subject to the applicable provisions of Section
422 of the Code and the regulations promulgated thereunder.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "ADMINISTRATOR" means the Board or any of its Committees
appointed pursuant to Section 4 of the Plan.
(b) "BOARD" means the Board of Directors of the Company.
(c) "CODE" means the Internal Revenue Code of 1986, as amended.
(d) "COMMITTEE" means a Committee appointed by the Board of
Directors in accordance with Section 4 of the Plan.
(e) "COMMON STOCK" means the Common Stock of the Company.
(f) "COMPANY" means Andromedia, Inc., a California corporation.
(g) "CONSULTANT" means any person who is engaged by the Company or
any Parent or Subsidiary to render consulting or advisory services and is
compensated for such services, and any director of the Company whether
compensated for such services or not. If and in the event the Company registers
any class of any equity security pursuant to the Exchange Act, the term
Consultant shall thereafter not include directors who are not compensated for
their services or are paid only a director's fee by the Company.
(h) "CONTINUOUS STATUS AS AN EMPLOYEE OR CONSULTANT" means that the
employment or consulting relationship with the Company, any Parent or Subsidiary
is not interrupted or terminated. Continuous Status as an Employee or
Consultant shall not be considered interrupted in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor. A
leave of absence approved by the Company shall include sick leave, military
leave, or any other personal leave. For purposes of Incentive Stock Options, no
such leave may exceed 90 days, unless reemployment upon
<PAGE>
expiration of such leave is guaranteed by statute or contract, including Company
policies. If reemployment upon expiration of a leave of absence approved by the
Company is not so guaranteed, on the 181st day of such leave any Incentive Stock
Option held by the Optionee shall cease to be treated as an Incentive Stock
Option and shall be treated for tax purposes as a Nonstatutory Stock Option.
(i) "DISABILITY" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(j) "EMPLOYEE" means any person, including officers and directors,
employed by the Company or any Parent or Subsidiary of the Company. The payment
of a director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(k) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(l) "FAIR MARKET VALUE" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
THE WALL STREET JOURNAL or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for the Common Stock
on the last market trading day prior to the day of determination; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
(m) "INCENTIVE STOCK OPTION" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
(n) "NONSTATUTORY STOCK OPTION" means an Option not intended to
qualify as an Incentive Stock Option.
(o) "OPTION" means a stock option granted pursuant to the Plan.
(p) "OPTIONED STOCK" means the Common Stock subject to an Option.
(q) "OPTIONEE" means an Employee or Consultant who receives an
Option.
-2-
<PAGE>
(r) "PARENT" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(s) "PLAN" means this 1996 Stock Option Plan.
(t) "SECTION 16(b) " means Section 16(b) of the Securities Exchange
Act of 1934, as amended.
(u) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 11 below.
(v) "SUBSIDIARY" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 11 of
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 500,000 Shares. The Shares may be authorized, but unissued,
or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been exercised
in full, or is surrendered pursuant to an option exchange program authorized by
the Administrator, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless the Plan has
terminated); PROVIDED, however, that Shares that have actually been issued under
the Plan shall not be returned to the Plan and shall not become available for
future distribution under the Plan, except that if unvested Shares are
repurchased by the Company at their original purchase price, and the original
purchaser of such Shares did not receive any benefits of ownership of such
Shares, such Shares shall become available for future grant under the Plan. For
purposes of the preceding sentence, voting rights shall not be considered a
benefit of Share ownership.
4. ADMINISTRATION OF THE PLAN.
(a) INITIAL PLAN PROCEDURE. Prior to the date, if any, upon which
the Company becomes subject to the Exchange Act, the Plan shall be administered
by the Board or a committee appointed by the Board.
(b) PLAN PROCEDURE AFTER THE DATE, IF ANY, UPON WHICH THE COMPANY
BECOMES SUBJECT TO THE EXCHANGE ACT.
(i) ADMINISTRATION WITH RESPECT TO DIRECTORS AND OFFICERS
SUBJECT TO SECTION 16(b). With respect to Option grants made to Employees who
are also Officers or Directors subject to Section 16(b) of the Exchange Act, the
Plan shall be administered by (A) the Board, if the Board may administer the
Plan in a manner complying with the rules under Rule 16b-3 relating to the
disinterested administration of employee benefit plans under which Section 16(b)
exempt discretionary grants and awards of equity securities are to be made, or
(B) a committee designated by
-3-
<PAGE>
the Board to administer the Plan, which committee shall be constituted to comply
with the rules under Rule 16b-3 relating to the disinterested administration of
employee benefit plans under which Section 16(b) exempt discretionary grants and
awards of equity securities are to be made. Once appointed, such Committee
shall continue to serve in its designated capacity until otherwise directed by
the Board. From time to time the Board may increase the size of the Committee
and appoint additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove all members
of the Committee and thereafter directly administer the Plan, all to the extent
permitted by the rules under Rule 16b-3 relating to the disinterested
administration of employee benefit plans under which Section 16(b) exempt
discretionary grants and awards of equity securities are to be made.
(ii) ADMINISTRATION WITH RESPECT TO OTHER PERSONS. With
respect to Option grants made to Employees or Consultants who are neither
Directors nor Officers of the Company, the Plan shall be administered by (A) the
Board or (B) a committee designated by the Board, which committee shall be
constituted to satisfy the legal requirements, if any, relating to the
administration of incentive stock option plans of state corporate and securities
laws, of the Code, and of any stock exchange or national market system upon
which the Common Stock is then listed or traded (the "Applicable Laws"). Once
appointed, such Committee shall serve in its designated capacity until otherwise
directed by the Board. The Board may increase the size of the Committee and
appoint additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove all members
of the Committee and thereafter directly administer the Plan, all to the extent
permitted by Applicable Laws.
(c) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the
Plan and, in the case of a Committee, the specific duties delegated by the Board
to such Committee, and subject to the approval of any relevant authorities,
including the approval, if required, of any stock exchange or national market
system upon which the Common Stock is then listed, the Administrator shall have
the authority, in its discretion:
(i) to determine the Fair Market Value of the Common Stock,
in accordance with Section 2(l) of the Plan;
(ii) to select the Consultants and Employees to whom Options
may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each such award granted hereunder;
(v) to approve forms of agreement for use under the Plan;
-4-
<PAGE>
(vi) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder. Such terms and
conditions may include, but are not limited to, the exercise price, the time or
times when Options may be exercised, any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation regarding any Option
or the Shares relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vii) to determine whether and under what circumstances an
Option may be settled in cash under Section 9(e) instead of Common Stock;
(viii) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common Stock covered
by such Option has declined since the date the Option was granted;
(ix) to provide for the early exercise of Options for the
purchase of unvested Shares, subject to such terms and conditions as the
Administrator may determine; and
(x) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan.
(d) EFFECT OF ADMINISTRATOR'S DECISION. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options.
5. ELIGIBILITY.
(a) Nonstatutory Stock Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted only to Employees. An
Employee or Consultant who has been granted an Option may, if otherwise
eligible, be granted additional Options.
(b) Each Option shall be designated in the written option agreement
as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options.
For purposes of this Section 5(b), Incentive Stock Options shall be taken
into account in the order in which they were granted, and the Fair Market Value
of the Shares shall be determined as of the time the Option with respect to such
Shares is granted.
(c) The Plan shall not confer upon any Optionee any right with
respect to the continuation of the Optionee's employment or consulting
relationship with the Company, nor shall it
-5-
<PAGE>
interfere in any way with the Optionee's right or the Company's right to
terminate the Optionee's employment or consulting relationship at any time, with
or without cause.
6. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company, as described in Section 17 of the Plan. It shall
continue in effect for a term of ten (10) years unless sooner terminated under
Section 13 of the Plan.
7. TERM OF OPTION. The term of each Option shall be the term stated in
the Option Agreement; provided, however, that the term shall be no more than
ten (10) years from the date of grant thereof. However, in the case of an
Incentive Stock Option granted to an Optionee who, at the time the Option is
granted, owns stock representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or Subsidiary, the term of
the Option shall be five (5) years from the date of grant thereof or such
shorter term as may be provided in the Option Agreement.
8. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) The per share exercise price for the Shares to be issued pursuant
to exercise of an Option shall be such price as is determined by the Board, but
shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of the
grant of such Incentive Stock Option, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or
any Parent or Subsidiary, the per Share exercise price shall be no less than
110% of the Fair Market Value per Share on the date of grant.
(B) granted to any Employee other than an Employee
described in the preceding paragraph, the per Share exercise price shall be no
less than 100% of the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option, the per
share exercise price shall be determined by the Administrator.
(b) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant) and may consist entirely of (1) cash,
(2) check, (3) promissory note, (4) other Shares which (x) in the case of Shares
acquired upon exercise of an Option have been owned by the Optionee for more
than six months on the date of surrender and (y) have a Fair Market Value on the
date of surrender equal to the aggregate exercise price of the Shares as to
which such Option shall be exercised, (5) delivery of a properly executed
exercise notice together with such other documentation as the Administrator and
the broker, if applicable, shall require to effect an exercise of the Option and
delivery to the Company of
-6-
<PAGE>
the sale or loan proceeds required to pay the exercise price, or (6) any
combination of the foregoing methods of payment. In making its determination as
to the type of consideration to accept, the Administrator shall consider if
acceptance of such consideration may be reasonably expected to benefit the
Company.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option
granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator, including performance criteria with respect
to the Company and/or the Optionee, and as shall be permissible under the terms
of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Administrator, consist of any
consideration and method of payment allowable under Section 8(b) of the Plan.
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. The Company shall issue (or cause
to be issued) such stock certificate promptly upon exercise of the Option. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the stock certificate is issued, except as provided in
Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) TERMINATION OF EMPLOYMENT OR CONSULTING RELATIONSHIP. Upon
termination of an Optionee's Continuous Status as an Employee or Consultant,
other than upon the Optionee's death or Disability, the Optionee may exercise
his or her Option, but only within such period of time as is specified in the
Notice of Grant, and only to the extent that the Optionee was entitled to
exercise it at the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Notice of Grant). In
the absence of a specified time in the Notice of Grant, the Option shall remain
exercisable for three (3) months following the Optionee's termination. In the
case of an Incentive Stock Option, such period of time for exercise shall not
exceed three (3) months from the date of termination. If, on the date of
termination, the Optionee is not entitled to exercise the Optionee's entire
Option, the Shares covered by the unexercisable portion of the Option shall
revert to the Plan. If, after termination, the Optionee does not exercise his
or her Option within the time
-7-
<PAGE>
specified by the Administrator, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
Notwithstanding the above, in the event of an Optionee's change in status
from Consultant to Employee or Employee to Consultant, an Optionee's Continuous
Status as an Employee or Consultant shall not automatically terminate solely as
a result of such change in status. However, in such event, an Incentive Stock
Option held by the Optionee shall cease to be treated as an Incentive Stock
Option and shall be treated for tax purposes as a Nonstatutory Stock Option
three months and one day following such change of status.
(c) DISABILITY OF OPTIONEE. In the event of termination of an
Optionee's Continuous Status as an Employee or Consultant as a result of his or
her Disability, the Optionee may, but only within twelve (12) months from the
date of such termination (and in no event later than the expiration date of the
term of his or her Option as set forth in the Option Agreement), exercise the
Option to the extent the Optionee was otherwise entitled to exercise it on the
date of such termination. To the extent that the Optionee is not entitled to
exercise the Option on the date of termination, or if the Optionee does not
exercise the Option to the extent so entitled within the time specified herein,
the Option shall terminate, and the Shares covered by the Option shall revert to
the Plan.
(d) DEATH OF OPTIONEE. In the event of the death of an Optionee, the
Option may be exercised at any time within twelve (12) months following the date
of death (but in no event later than the expiration of the term of such Option
as set forth in the Notice of Grant), by the Optionee's estate or by a person
who has acquired the right to exercise the Option by bequest or inheritance, but
only to the extent that the Optionee was entitled to exercise the Option at the
date of death. If, at the time of death, the Optionee was not entitled to
exercise his or her entire Option, the Shares covered by the unexercisable
portion of the Option shall immediately revert to the Plan. If, after death,
the Optionee's estate or a person who acquires the right to exercise the Option
by bequest or inheritance does not exercise the Option within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) BUYOUT PROVISIONS. The Administrator may at any time offer to
buy out for a payment in cash or Shares, an Option previously granted, based on
such terms and conditions as the Administrator shall establish and communicate
to the Optionee at the time that such offer is made.
(f) RULE 16b-3. Options granted to persons subject to Section 16(b)
of the Exchange Act must comply with Rule 16b-3 and shall contain such
additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption from Section 16 of the Exchange Act with respect to
Plan transactions.
10. NON-TRANSFERABILITY OF OPTIONS. Options may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
-8-
<PAGE>
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee to
have the right to exercise his or her Option until ten (10) days prior to such
transaction as to all of the Optioned Stock covered thereby, including Shares as
to which the Option would not otherwise be exercisable. In addition, the
Administrator may provide that any Company repurchase option applicable to any
Shares purchased upon exercise of an Option shall lapse as to all such Shares,
provided the proposed dissolution or liquidation takes place at the time and in
the manner contemplated. To the extent it has not been previously exercised, an
Option will terminate immediately prior to the consummation of such proposed
action.
(c) MERGER OR ASSET SALE. In the event of a merger of the Company
with or into another corporation, or the sale of substantially all of the assets
of the Company, each outstanding Option shall be assumed or an equivalent option
substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation. In the event that the successor corporation refuses to
assume or substitute for the Option, the Optionee shall have the right to
exercise the Option as to all of the Optioned Stock, including Shares as to
which it would not otherwise be exercisable. If an Option is exercisable in
lieu of assumption or substitution in the event of a merger or sale of assets,
the Administrator shall notify the Optionee that the Option shall be fully
exercisable for a period of fifteen (15) days from the date of such notice, and
the Option shall terminate upon the expiration of such period. For the purposes
of this paragraph, the Option shall be considered assumed if, following the
merger or sale of assets, the option confers the right to purchase or receive,
for each Share of Optioned Stock subject to the Option immediately prior to the
merger or sale of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets by holders of
Common Stock for each Share held on the effective date of the transaction (and
-9-
<PAGE>
if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or sale of assets was
not solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation, provide for
the consideration to be received upon the exercise of the Option, for each Share
of Optioned Stock subject to the Option, to be solely common stock of the
successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the mergeror sale of
assets.
12. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for
all purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Employee or Consultant to
whom an Option is so granted within a reasonable time after the date of such
grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board 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
under any grant theretofore made, without his or her consent. In addition, to
the extent necessary and desirable to comply with Rule 16b-3 under the Exchange
Act or with Section 422 of the Code (or any other applicable law or regulation,
including the requirements of any stock exchange or national market system upon
which the Common Stock is then listed), the Company shall obtain shareholder
approval of any Plan amendment in such a manner and to such a degree as
required.
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Board, which agreement must be in writing and signed by the Optionee and the
Company.
14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange or national market system
upon which the Common Stock is then listed or traded, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.
-10-
<PAGE>
15. RESERVATION OF SHARES. The Company, during the term of this Plan,
shall at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
16. AGREEMENTS. Options shall be evidenced by written agreements in such
form as the Administrator shall approve from time to time.
17. SHAREHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the shareholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such shareholder approval shall be obtained
in the degree and manner required under applicable state and federal law and the
rules of any stock exchange or national market system upon which the Common
Stock is then listed or traded.
-11-
<PAGE>
Exhibit 4.08
ANDROMEDIA, INC.
1997 STOCK PLAN
(AS AMENDED ON OCTOBER 1, 1997; AS FURTHER AMENDED ON APRIL 22, 1998 AND
APRIL 21, 1999)
1. PURPOSES OF THE PLAN. The purposes of this Stock Plan are to attract
and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees, Directors and
Consultants and to promote the success of the Company's business. Options
granted under the Plan may be Incentive Stock Options or Nonstatutory Stock
Options, as determined by the Administrator at the time of grant. Stock
Purchase Rights may also be granted under the Plan.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "ADMINISTRATOR" means the Board or any of its Committees as shall
be administering the Plan in accordance with Section 4 hereof.
(b) "APPLICABLE LAWS" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options or Stock Purchase Rights are
granted under the Plan.
(c) "BOARD" means the Board of Directors of the Company.
(d) "CODE" means the Internal Revenue Code of 1986, as amended.
(e) "COMMITTEE" means a committee of Directors appointed by the
Board in accordance with Section 4 hereof.
(f) "COMMON STOCK" means the Common Stock of the Company.
(g) "COMPANY" means Andromedia, Inc., a California corporation.
(h) "CONSULTANT" means any person who is engaged by the Company or
any Parent or Subsidiary to render consulting or advisory services to such
entity.
(i) "DIRECTOR" means a member of the Board of Directors of the
Company.
(j) "EMPLOYEE" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. A Service
Provider shall not cease to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any
<PAGE>
successor. For purposes of Incentive Stock Options, no such leave may exceed
ninety days, unless reemployment upon expiration of such leave is guaranteed by
statute or contract. If reemployment upon expiration of a leave of absence
approved by the Company is not so guaranteed, on the 181st day of such leave any
Incentive Stock Option held by the Optionee shall cease to be treated as an
Incentive Stock Option and shall be treated for tax purposes as a Nonstatutory
Stock Option. Neither service as a Director nor payment of a director's fee by
the Company shall be sufficient to constitute "employment" by the Company.
(k) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(l) "FAIR MARKET VALUE" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
THE WALL STREET JOURNAL or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for the Common Stock
on the last market trading day prior to the day of determination; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(m) "INCENTIVE STOCK OPTION" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
(n) "NONSTATUTORY STOCK OPTION" means an Option not intended to
qualify as an Incentive Stock Option.
(o) "OFFICER" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(p) "OPTION" means a stock option granted pursuant to the Plan.
(q) "OPTION AGREEMENT" means a written or electronic agreement
between the Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the terms and
conditions of the Plan.
-2-
<PAGE>
(r) "OPTION EXCHANGE PROGRAM" means a program whereby outstanding
Options are exchanged for Options with a lower exercise price.
(s) "OPTIONED STOCK" means the Common Stock subject to an Option or a
Stock Purchase Right.
(t) "OPTIONEE" means the holder of an outstanding Option or Stock
Purchase Right granted under the Plan.
(u) "PARENT" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(v) "PLAN" means this 1997 Stock Plan.
(w) "RESTRICTED STOCK" means shares of Common Stock acquired pursuant
to a grant of a Stock Purchase Right under Section 11 below.
(x) "SECTION 16(b) " means Section 16(b) of the Securities Exchange
Act of 1934, as amended.
(y) "SERVICE PROVIDER" means an Employee, Director or Consultant.
(z) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 12 below.
(aa) "STOCK PURCHASE RIGHT" means a right to purchase Common Stock
pursuant to Section 11 below.
(bb) "SUBSIDIARY" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 12 of
the Plan, the maximum aggregate number of Shares which may be subject to option
and sold under the Plan is 3,270,000 Shares. The Shares may be authorized but
unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes unexercisable
without having been exercised in full, or is surrendered pursuant to an Option
Exchange Program, the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated). However, Shares that have actually been issued under the Plan,
upon exercise of either an Option or Stock Purchase Right, shall not be returned
to the Plan and shall not become available for future distribution under the
Plan, except that if Shares of Restricted Stock are repurchased by the Company
at their original purchase price, such Shares shall become available for future
grant under the Plan.
-3-
<PAGE>
4. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Board or a Committee
appointed by the Board, which Committee shall be constituted to comply with
Applicable Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the
Plan and, in the case of a Committee, the specific duties delegated by the Board
to such Committee, and subject to the approval of any relevant authorities, the
Administrator shall have the authority in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options and Stock
Purchase Rights may from time to time be granted hereunder;
(iii) to determine the number of Shares to be covered by each
such award granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, of any Option or
Stock Purchase Right granted hereunder. Such terms and conditions include, but
are not limited to, the exercise price, the time or times when Options or Stock
Purchase Rights may be exercised (which may be based on performance criteria),
any vesting acceleration or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Option or Stock Purchase Right or the
Common Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vi) to determine whether and under what circumstances an
Option may be settled in cash under subsection 9(f) instead of Common Stock;
(vii) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common Stock covered
by such Option has declined since the date the Option was granted;
(viii) to initiate an Option Exchange Program;
(ix) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax treatment under
foreign tax laws;
(x) to allow Optionees to satisfy withholding tax obligations
by electing to have the Company withhold from the Shares to be issued upon
exercise of an Option or Stock Purchase Right that number of Shares having a
Fair Market Value equal to the amount required to be withheld. The Fair Market
Value of the Shares to be withheld shall be determined on the date that
-4-
<PAGE>
the amount of tax to be withheld is to be determined. All elections by
Optionees to have Shares withheld for this purpose shall be made in such form
and under such conditions as the Administrator may deem necessary or advisable;
and
(xi) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees.
5. ELIGIBILITY.
(a) Nonstatutory Stock Options and Stock Purchase Rights may be
granted to Service Providers. Incentive Stock Options may be granted only to
Employees.
(b) Each Option shall be designated in the Option Agreement as either
an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 5(b), Incentive Stock Options shall be taken into account in the order
in which they were granted. The Fair Market Value of the Shares shall be
determined as of the time the Option with respect to such Shares is granted.
(c) Neither the Plan nor any Option or Stock Purchase Right shall
confer upon any Optionee any right with respect to continuing the Optionee's
relationship as a Service Provider with the Company, nor shall it interfere in
any way with his or her right or the Company's right to terminate such
relationship at any time, with or without cause.
6. TERM OF PLAN. The Plan shall become effective upon its adoption by
the Board. It shall continue in effect for a term of ten (10) years unless
sooner terminated under Section 14 of the Plan.
7. TERM OF OPTION. The term of each Option shall be stated in the Option
Agreement; provided, however, that the term shall be no more than ten (10) years
from the date of grant thereof. In the case of an Incentive Stock Option
granted to an Optionee who, at the time the Option is granted, owns stock
representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or any Parent or Subsidiary, the term of the Option shall
be five (5) years from the date of grant or such shorter term as may be provided
in the Option Agreement.
8. OPTION EXERCISE PRICE AND CONSIDERATION.
-5-
<PAGE>
(a) The per share exercise price for the Shares to be issued upon
exercise of an Option shall be such price as is determined by the Administrator,
but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of grant
of such Option, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
the exercise price shall be no less than 110% of the Fair Market Value per Share
on the date of grant.
(B) granted to any other Employee, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share on
the date of grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a Service Provider who, at the time of
grant of such Option, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
the exercise price shall be no less than 110% of the Fair Market Value per Share
on the date of the grant.
(B) granted to any other Service Provider, the per
Share exercise price shall be no less than 85% of the Fair Market Value per
Share on the date of grant.
(iii) Notwithstanding the foregoing, Options may be granted with
a per Share exercise price other than as required above pursuant to a merger or
other corporate transaction.
(b) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant). Such consideration may consist of (1) cash,
(2) check, (3) promissory note, (4) other Shares which (x) in the case of Shares
acquired upon exercise of an Option, have been owned by the Optionee for more
than six months on the date of surrender, and (y) have a Fair Market Value on
the date of surrender equal to the aggregate exercise price of the Shares as to
which such Option shall be exercised, (5) consideration received by the Company
under a cashless exercise program implemented by the Company in connection with
the Plan, or (6) any combination of the foregoing methods of payment. In making
its determination as to the type of consideration to accept, the Administrator
shall consider if acceptance of such consideration may be reasonably expected to
benefit the Company.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option
granted hereunder shall be exercisable according to the terms hereof at such
times and under such conditions as determined by the Administrator and set forth
in the Option Agreement, but in no case at a rate of
-6-
<PAGE>
less than 20% per year over five (5) years from the date the Option is granted.
Unless the Administrator provides otherwise, vesting of Options granted
hereunder shall be tolled during any unpaid leave of absence. An Option may not
be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i) written
or electronic notice of exercise (in accordance with the Option Agreement) from
the person entitled to exercise the Option, and (ii) full payment for the Shares
with respect to which the Option is exercised. Full payment may consist of any
consideration and method of payment authorized by the Administrator and
permitted by the Option Agreement and the Plan. Shares issued upon exercise of
an Option shall be issued in the name of the Optionee or, if requested by the
Optionee, in the name of the Optionee and his or her spouse. Until the Shares
are issued (as evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company), no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect to the
Shares, notwithstanding the exercise of the Option. The Company shall issue (or
cause to be issued) such Shares promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the Shares are issued, except as provided in Section 12 of
the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares thereafter available, both for purposes of the Plan and for
sale under the Option, by the number of Shares as to which the Option is
exercised.
(b) TERMINATION OF RELATIONSHIP AS A SERVICE PROVIDER. If an
Optionee ceases to be a Service Provider, such Optionee may exercise his or her
Option within such period of time as is specified in the Option Agreement (of at
least thirty (30) days) to the extent that the Option is vested on the date of
termination (but in no event later than the expiration of the term of the Option
as set forth in the Option Agreement). In the absence of a specified time in
the Option Agreement, the Option shall remain exercisable for three (3) months
following the Optionee's termination. If, on the date of termination, the
Optionee is not vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall revert to the Plan. If, after termination,
the Optionee does not exercise his or her Option within the time specified by
the Administrator, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.
(c) DISABILITY OF OPTIONEE. If an Optionee ceases to be a Service
Provider as a result of the Optionee's Disability, the Optionee may exercise his
or her Option within such period of time as is specified in the Option Agreement
to the extent the Option is vested on the date of termination (but in no event
later than the expiration of the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the Option Agreement, the
Option shall remain exercisable for twelve (12) months following the Optionee's
termination. If such disability is not a "disability" as such term is defined
in Section 22(e)(3) of the Code, in the case of an Incentive Stock Option such
Incentive Stock Option shall automatically cease to be treated as an Incentive
Stock Option and shall be treated for tax purposes as a Nonstatutory Stock
Option on the day three months and one day following such termination. If, on
the date of termination, the Optionee is not
-7-
<PAGE>
vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified herein,
the Option shall terminate, and the Shares covered by such Option shall revert
to the Plan.
(d) DEATH OF OPTIONEE. If an Optionee dies while a Service Provider,
the Option may be exercised within such period of time as is specified in the
Option Agreement (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant), by the Optionee's estate or by a
person who acquires the right to exercise the Option by bequest or inheritance,
but only to the extent that the Option is vested on the date of death. In the
absence of a specified time in the Option Agreement, the Option shall remain
exercisable for twelve (12) months following the Optionee's termination. If, at
the time of death, the Optionee is not vested as to his or her entire Option,
the Shares covered by the unvested portion of the Option shall immediately
revert to the Plan. The Option may be exercised by the executor or
administrator of the Optionee's estate or, if none, by the person(s) entitled to
exercise the Option under the Optionee's will or the laws of descent or
distribution. If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) BUYOUT PROVISIONS. The Administrator may at any time offer to
buy out for a payment in cash or Shares, an Option previously granted, based on
such terms and conditions as the Administrator shall establish and communicate
to the Optionee at the time that such offer is made.
10. NON-TRANSFERABILITY OF OPTIONS AND STOCK PURCHASE RIGHTS. Options and
Stock Purchase Rights may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee.
11. STOCK PURCHASE RIGHTS.
(a) RIGHTS TO PURCHASE. Stock Purchase Rights may be issued either
alone, in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator determines
that it will offer Stock Purchase Rights under the Plan, it shall advise the
offeree in writing or electronically of the terms, conditions and restrictions
related to the offer, including the number of Shares that such person shall be
entitled to purchase, the price to be paid, and the time within which such
person must accept such offer. The terms of the offer shall comply in all
respects with Section 260.140.42 of Title 10 of the California Code of
Regulations. The offer shall be accepted by execution of a Restricted Stock
purchase agreement in the form determined by the Administrator.
(b) REPURCHASE OPTION. Unless the Administrator determines
otherwise, the Restricted Stock purchase agreement shall grant the Company a
repurchase option exercisable upon the voluntary or involuntary termination of
the purchaser's service with the Company for any reason (including death or
disability). The purchase price for Shares repurchased pursuant to the
Restricted
-8-
<PAGE>
Stock purchase agreement shall be the original price paid by the purchaser and
may be paid by cancellation of any indebtedness of the purchaser to the Company.
The repurchase option shall lapse at such rate as the Administrator may
determine, but in no case at a rate of less than 20% per year over five years
from the date of purchase.
(c) OTHER PROVISIONS. The Restricted Stock purchase agreement shall
contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion.
(d) RIGHTS AS A SHAREHOLDER. Once the Stock Purchase Right is
exercised, the purchaser shall have rights equivalent to those of a shareholder
and shall be a shareholder when his or her purchase is entered upon the records
of the duly authorized transfer agent of the Company. No adjustment shall be
made for a dividend or other right for which the record date is prior to the
date the Stock Purchase Right is exercised, except as provided in Section 12 of
the Plan.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER OR ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option or Stock Purchase Right, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options or Stock Purchase Rights have yet been granted or which have
been returned to the Plan upon cancellation or expiration of an Option or Stock
Purchase Right, as well as the price per share of Common Stock covered by each
such outstanding Option or Stock Purchase Right, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company. The conversion of any convertible securities
of the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an Option or Stock Purchase Right.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee to
have the right to exercise his or her Option until fifteen (15) days prior to
such transaction as to all of the Optioned Stock covered thereby, including
Shares as to which the Option would not otherwise be exercisable. In addition,
the Administrator may provide that any Company repurchase option applicable to
any Shares purchased upon exercise of an Option or Stock Purchase Right shall
lapse as to all such Shares, provided the proposed dissolution or liquidation
takes place at
-9-
<PAGE>
the time and in the manner contemplated. To the extent it has not been
previously exercised, an Option or Stock Purchase Right will terminate
immediately prior to the consummation of such proposed action.
(c) MERGER OR ASSET SALE. In the event of a merger of the Company
with or into another corporation, or the sale of substantially all of the assets
of the Company, each outstanding Option and Stock Purchase Right shall be
assumed or an equivalent option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In the
event that the successor corporation refuses to assume or substitute for the
Option or Stock Purchase Right, the Optionee shall fully vest in and have the
right to exercise the Option or Stock Purchase Right as to all of the Optioned
Stock, including Shares as to which it would not otherwise be vested or
exercisable. If an Option or Stock Purchase Right becomes fully vested and
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Administrator shall notify the Optionee in writing or
electronically that the Option or Stock Purchase Right shall be fully
exercisable for a period of fifteen (15) days from the date of such notice, and
the Option or Stock Purchase Right shall terminate upon the expiration of such
period. For the purposes of this paragraph, the Option or Stock Purchase Right
shall be considered assumed if, following the merger or sale of assets, the
option or right confers the right to purchase or receive, for each Share of
Optioned Stock subject to the Option or Stock Purchase Right immediately prior
to the merger or sale of assets, the consideration (whether stock, cash, or
other securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger or sale of
assets is not solely common stock of the successor corporation or its Parent,
the Administrator may, with the consent of the successor corporation, provide
for the consideration to be received upon the exercise of the Option or Stock
Purchase Right, for each Share of Optioned Stock subject to the Option or Stock
Purchase Right, to be solely common stock of the successor corporation or its
Parent equal in fair market value to the per share consideration received by
holders of Common Stock in the merger or sale of assets.
13. TIME OF GRANTING OPTIONS AND STOCK PURCHASE RIGHTS. The date of grant
of an Option or Stock Purchase Right shall, for all purposes, be the date on
which the Administrator makes the determination granting such Option or Stock
Purchase Right, or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Employee or Consultant to
whom an Option or Stock Purchase Right is so granted within a reasonable time
after the date of such grant.
14. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may at any time amend,
alter, suspend or terminate the Plan.
-10-
<PAGE>
(b) SHAREHOLDER APPROVAL. The Board shall obtain shareholder
approval of any Plan amendment to the extent necessary and desirable to comply
with Applicable Laws.
(c) EFFECT OF AMENDMENT OR TERMINATION. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator's ability to exercise
the powers granted to it hereunder with respect to Options granted under the
Plan prior to the date of such termination.
15. CONDITIONS UPON ISSUANCE OF SHARES.
(a) LEGAL COMPLIANCE. Shares shall not be issued pursuant to the
exercise of an Option unless the exercise of such Option and the issuance and
delivery of such Shares shall comply with Applicable Laws and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
(b) INVESTMENT REPRESENTATIONS. As a condition to the exercise of an
Option, the Administrator may require the person exercising such Option to
represent and warrant at the time of any such exercise that the Shares are being
purchased only for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the Company, such a
representation is required.
16. INABILITY TO OBTAIN AUTHORITY. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
17. RESERVATION OF SHARES. The Company, during the term of this Plan,
shall at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
18. SHAREHOLDER APPROVAL. The Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months after the date the Plan is
adopted. Such shareholder approval shall be obtained in the degree and manner
required under Applicable Laws.
19. INFORMATION TO OPTIONEES AND PURCHASERS. The Company shall provide to
each Optionee and to each individual who acquires Shares pursuant to the Plan,
not less frequently than annually during the period such Optionee or purchaser
has one or more Options or Stock Purchase Rights outstanding, and, in the case
of an individual who acquires Shares pursuant to the Plan, during the period
such individual owns such Shares, copies of annual financial statements. The
-11-
<PAGE>
Company shall not be required to provide such statements to key employees whose
duties in connection with the Company assure their access to equivalent
information.
-12-
<PAGE>
Exhibit 4.09
ANDROMEDIA, INC.
1999 STOCK PLAN
1. PURPOSES OF THE PLAN. The purposes of this 1999 Stock Plan are:
- to attract and retain the best available personnel for positions of
substantial responsibility
- to provide additional incentive to Employees, Directors and
Consultants, and
- to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at the time
of grant. Stock Purchase Rights may also be granted under the Plan.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees as shall
be administering the Plan, in accordance with Section 4 of the
Plan.
(b) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U. S. state corporate
laws, U.S. federal and state securities laws, the Code, any stock
exchange or quotation system on which the Common Stock is listed
or quoted and the applicable laws of any foreign country or
jurisdiction where Options or Stock Purchase Rights are, or will
be, granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a committee of Directors appointed by the Board
in accordance with Section 4 of the Plan.
(f) "Common Stock" means the common stock of the Company.
(g) "Company" means Andromedia, Inc., a Delaware corporation.
(h) "Consultant" means any person, including an advisor, engaged by
the Company or a Parent or Subsidiary to render services to such
entity.
(i) "Director" means a member of the Board.
(j) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(k) "Employee" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the
Company. A Service Provider shall not cease to be an Employee in
the case of (i) any leave of absence approved by the Company or
(ii) transfers between locations of the Company or between the
Company, its Parent, any Subsidiary, or any successor. For
purposes of Incentive Stock Options, no such leave may exceed
ninety (90) days, unless reemployment upon expiration of such
leave is guaranteed by statute or contract. If reemployment upon
expiration of a leave of absence approved by the Company is not
so guaranteed, on the 181st day of such leave any Incentive Stock
Option held by the Optionee shall cease to be treated as an
Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option. Neither service as a Director nor
<PAGE>
payment of a director's fee by the Company shall be sufficient to
constitute "employment" by the Company.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(m) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
i) If the Common Stock is listed on any established stock
exchange or a national market system, including without
limitation the Nasdaq National Market or The Nasdaq
SmallCap Market of The Nasdaq Stock Market, its Fair
Market Value shall be the closing sales price for such
stock (or the closing bid, if no sales were reported)
as quoted on such exchange or system for the last
market trading day prior to the time of determination,
as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported,
the Fair Market Value of a Share of Common Stock shall
be the mean between the high bid and low asked prices
for the Common Stock on the last market trading day
prior to the day of determination, as reported in The
Wall Street Journal or such other source as the
Administrator deems reliable; or
iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in
good faith by the Administrator.
(n) "Incentive Stock Option" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of
the Code and the regulations promulgated thereunder.
(o) "Nonstatutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
(p) "Notice of Grant" means a written or electronic notice evidencing
certain times and conditions of an individual Option or Stock
Purchase Right grant. The Notice of Grant is part of the Option
Agreement.
(q) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(r) "Option" means a stock option granted pursuant to the Plan.
(s) "Option Agreement" means an agreement between the Company and an
Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the terms and
conditions of the Plan.
(t) "Option Exchange Program" means a program whereby outstanding
Options are surrendered in exchange for Options with a lower
exercise price.
(u) "Optioned Stock" means the Common Stock subject to an Option or
Stock Purchase Right.
<PAGE>
(v) "Optionee" means the holder of an outstanding Option or Stock
Purchase Right granted under the Plan.
(w) "Outside Director" means a Director who is not an Employee.
(x) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(y) "Plan" means this 1999 Stock Plan, as amended and restated.
(z) "Restricted Stock" means shares of Common Stock acquired pursuant
to a grant of Stock Purchase Rights under Section 11 of the Plan.
(aa) "Restricted Stock Purchase Agreement" means a written agreement
between the Company and the Optionee evidencing the terms and
restrictions applying to stock purchased under a Stock Purchase
Right. The Restricted Stock Purchase Agreement is subject to the
terms and conditions of the Plan and the Notice of Grant.
(bb) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being
exercised with respect to the Plan.
(cc) "Section 16(b) " means Section 16(b) of the Exchange Act.
(dd) "Service Provider" means an Employee, Director or Consultant.
(ee) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 13 of the Plan.
(ff) "Stock Purchase Right" means the right to purchase Common Stock
pursuant to Section 11 of the Plan, as evidenced by a Notice of
Grant.
(gg) "Subsidiary" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 13 of the
Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 2,000,000 Shares, plus an annual increase to be added on
the first day of the Company's fiscal year beginning in fiscal year 2000
equal to the lesser of (i) 1,000,000 shares, (ii) 5% of the outstanding
shares on such date, or (iii) an amount determined by the Board. The Shares
may be authorized, but unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes unexercisable
without having been exercised in full, or is surrendered pursuant to an
Option Exchange Program, the unpurchased Shares which were subject thereto
shall become available for future grant or sale under the Plan (unless the
Plan has terminated); provided, however, that Shares that have actually
been issued under the Plan, whether upon exercise of an Option or Stock
Purchase Right, shall not be returned to the Plan and shall not become
available for future distribution under the Plan, except that if Shares of
Restricted Stock are repurchased by the Company at their original purchase
price, such Shares shall become available for future grant under the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) Procedure.
<PAGE>
(i) Multiple Administrative Bodies. The Plan may be
administered by different Committees with respect to
different groups of Service Providers.
(ii) Section 162(m). To the extent that the Administrator
determines it to be desirable to qualify Options
granted hereunder as "performance-based compensation"
within the meaning of Section 162(m) of the Code, the
Plan shall be administered by a Committee of two or
more "outside directors" within the meaning of
Section 162(m) of the Code.
(iii) Rule 16b-3. To the extent desirable to qualify
transactions hereunder as exempt under Rule 16b-3,
the transactions contemplated hereunder shall be
structured to satisfy the requirements for exemption
under Rule 16b-3.
(iv) Other Administration. Other than as provided above,
the Plan shall be administered by (A) the Board or
(B) a Committee, which committee shall be constituted
to satisfy Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the
Plan, and in the case of a Committee, subject to the specific
duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its discretion:
(i) to determine Fair Market Value;
(ii) to select the Service Providers to whom Options and
Stock Purchase Rights may be granted hereunder;
(iii) to determine the number of shares of Common Stock to
be covered by each Option and Stock Purchase Right
granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any
Option or Stock Purchase Right granted hereunder.
Such terms and conditions include, but are not
limited to, the exercise price, the time or times
when Options or Stock Purchase Rights may be
exercised (which may be based on performance
criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or
limitation regarding any Option or Stock Purchase
Right or the shares of Common Stock relating thereto,
based in each case on such factors as the
Administrator, in its sole discretion, shall
determine;
(vi) to reduce the exercise price of any Option or Stock
Purchase Right to the then current Fair Market Value
if the Fair Market Value of the Common Stock covered
by such Option or Stock Purchase Right shall have
declined since the date the Option or Stock Purchase
Right was granted;
(vii) to institute an Option Exchange Program;
(viii) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan;
<PAGE>
(ix) to prescribe, amend and rescind rules and
regulations relating to the Plan, including
rules and regulations relating to sub-plans
established for the purpose of qualifying
for preferred tax treatment under foreign
tax laws;
(x) to modify or amend each Option or Stock
Purchase Right (subject to Section 15(c) of
the Plan), including the discretionary
authority to extend the post-termination
exercisability period of Options longer than
is otherwise provided for in the Plan;
(xi) to allow Optionees to satisfy withholding
tax obligations by electing to have the
Company withhold from the Shares to be
issued upon exercise of an Option or Stock
Purchase Right that number of Shares having
a Fair Market Value equal to the amount
required to be withheld. 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. All
elections by an Optionee to have Shares
withheld for this purpose shall be made in
such form and under such conditions as the
Administrator may deem necessary or
advisable;
(xii) to authorize any person to execute on behalf
of the Company any instrument required to
effect the grant of an Option or Stock
Purchase Right previously granted by the
Administrator;
(xiii) to make all other determinations deemed
necessary or advisable for administering the
Plan.
(c) Effect of Administrator's Decision. The Administrator's
decisions, determinations and interpretations shall be final and
binding on all Optionees and any other holders of Options or
Stock Purchase Rights.
5. ELIGIBILITY. Nonstatutory Stock Options and Stock Purchase Rights may be
granted to Service Providers. Incentive Stock Options may be granted only
to Employees.
6. LIMITATIONS.
(a) Each Option shall be designated in the Option Agreement as either
an Incentive Stock Option or a Nonstatutory Stock Option.
However, notwithstanding such designation, to the extent that the
aggregate Fair Market Value of the Shares with respect to which
Incentive Stock Options are exercisable for the first time by the
Optionee during any calendar year (under all plans of the Company
and any Parent or Subsidiary) exceeds $100,000, such Options
shall be treated as Nonstatutory Stock Options. For purposes of
this Section 6(a), Incentive Stock Options shall be taken into
account in the order in which they were granted. The Fair Market
Value of the Shares shall be determined as of the time the Option
with respect to such Shares is granted.
(b) Neither the Plan nor any Option or Stock Purchase Right shall
confer upon an Optionee any right with respect to continuing the
Optionee's relationship as a Service Provider with the Company,
nor shall they interfere in any way with the Optionee's right or
the Company's right to terminate such relationship at any time,
with or without cause.
<PAGE>
(c) The following limitations shall apply to grants of Options:
(i) No Service Provider shall be granted, in any fiscal
year of the Company, Options to purchase more than
500,000 Shares.
(ii) In connection with his or her initial service, a
Service Provider may be granted Options to purchase
up to an additional 1,000,000 Shares, which shall
not count against the limit, set forth in
subsection (i) above.
(iii) The foregoing limitations shall be adjusted
proportionately in connection with any change in
the Company's capitalization as described in
Section 13.
(iv) If an Option is cancelled in the same fiscal year
of the Company in which it was granted (other than
in connection with a transaction described in
Section 13), the cancelled Option will be counted
against the limits set forth in subsections (i) and
(ii) above. For this purpose, if the exercise price
of an Option is reduced, the transaction will be
treated as a cancellation of the Option and the
grant of a new Option.
7. TERM OF PLAN. Subject to Section 19 of the Plan, the Plan shall become
effective upon its adoption by the Board. It shall continue in effect for a
term of ten (10) years unless terminated earlier under Section 15 of the
Plan.
8. TERM OF OPTION. The term of each Option shall be stated in the Option
Agreement. In the case of an Incentive Stock Option, the term shall be ten
(10) years from the date of grant or such shorter term as may be provided
in the Option Agreement. Moreover, in the case of an Incentive Stock Option
granted to an Optionee who, at the time the Incentive Stock Option is
granted, owns stock representing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any Parent
or Subsidiary, the term of the Incentive Stock Option shall be five (5)
years from the date of grant or such shorter term as may be provided in the
Option Agreement.
9. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) Exercise Price. The per share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be determined by
the Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time the
Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of
the voting power of all classes of stock of
the Company or any Parent or Subsidiary, the
per Share exercise price shall be no less than
110% of the Fair Market Value per Share on the
date of grant.
(B) granted to any Employee other than an Employee
described in paragraph (A) immediately above,
the per Share exercise price shall be no less
than 100% of the Fair Market Value per Share
on the date of grant.
<PAGE>
(ii) In the case of a Nonstatutory Stock Option, the per
Share exercise price shall be determined by the
Administrator. In the case of a Nonstatutory Stock
Option intended to qualify as "performance-based
compensation" within the meaning of Section 162(m)
of the Code, the per Share exercise price shall be
no less than 100% of the Fair Market Value per
Share on the date of grant.
(iii) Notwithstanding the foregoing, Options may be
granted with a per Share exercise price of less
than 100% of the Fair Market Value per Share on the
date of grant pursuant to a merger or other
corporate transaction.
(b) Waiting Period and Exercise Dates. At the time an Option is
granted, the Administrator shall fix the period within which the
Option may be exercised and shall determine any conditions that
must be satisfied before the Option may be exercised.
(c) Form of Consideration. The Administrator shall determine the
acceptable form of consideration for exercising an Option,
including the method of payment. In the case of an Incentive
Stock Option, the Administrator shall determine the acceptable
form of consideration at the time of grant. Such consideration
may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares which
(A) in the case of Shares acquired upon exercise
of an option, have been owned by the Optionee
for more than six (6) months on the date of
surrender, and
(B) have a Fair Market Value on the date of
surrender equal to the aggregate exercise
price of the Shares as to which said Option
shall be exercised;
(v) consideration received by the Company under a
cashless exercise program implemented by the
Company in connection with the Plan;
(vi) a reduction in the amount of any Company liability
to the Optionee, including any liability
attributable to the Optionee's participation in any
Company-sponsored deferred compensation program or
arrangement;
(vii) any combination of the foregoing methods of
payment; or
(viii) such other consideration and method of payment for
the issuance of Shares to the extent permitted by
Applicable Laws.
10. EXERCISE OF OPTION.
(a) Procedure for Exercise; Rights as a Stockholder. Any Option
granted hereunder shall be exercisable according to the terms of
the Plan and at such times and under such conditions as
determined by the Administrator and set forth in the Option
<PAGE>
Agreement. Unless the Administrator provides otherwise, vesting
of Options granted hereunder shall be tolled during any unpaid
leave of absence. An Option may not be exercised for a fraction
of a Share.
An Option shall be deemed exercised when the Company receives:
(i) written or electronic notice of exercise (in
accordance with the Option Agreement) from the
person entitled to exercise the Option, and
(ii) full payment for the Shares with respect to which
the Option is exercised. Full payment may consist of
any consideration and method of payment authorized
by the Administrator and permitted by the Option
Agreement and the Plan. Shares issued upon exercise
of an Option shall be issued in the name of the
Optionee or, if requested by the Optionee, in the
name of the Optionee and his or her spouse. Until
the Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of
a duly authorized transfer agent of the Company), no
right to vote or receive dividends or any other
rights as a stockholder shall exist with respect to
the Optioned Stock, notwithstanding the exercise of
the Option. The Company shall issue (or cause to be
issued) such Shares promptly after the Option is
exercised. No adjustment will be made for a dividend
or other right for which the record date is prior to
the date the Shares are issued, except as provided
in Section 13 of the Plan.
Exercising an Option in any manner shall decrease the number of
Shares thereafter available, both for purposes of the Plan and
for sale under the Option, by the number of Shares as to which
the Option is exercised.
(b) Termination of Relationship as a Service Provider. Subject to
Section 13, if an Optionee ceases to be a Service Provider (but
not in the event of an Optionee's change of status from Employee
to Consultant (in which case an Employee's Incentive Stock Option
shall automatically convert to a Nonstatutory Stock Option on the
ninety-first (91st) day following such change of status) or from
Consultant to Employee), such Optionee may, but only within such
period of time as is specified in the Option Agreement (but in no
event later than the expiration date of the term of such Option
as set forth in the Option Agreement), exercise his or her Option
to the extent that Optionee was entitled to exercise it at the
date of such termination. In the absence of a specified time in
the Option Agreement, the Option shall remain exercisable for
three (3) months following the Optionee's termination. If, on the
date of termination, the Optionee is not vested as to his or her
entire Option, the Shares covered by the unvested portion of the
Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time
specified by the Administrator, the Option shall terminate, and
the Shares covered by such Option shall revert to the Plan.
(c) Disability of Optionee. If an Optionee ceases to be a Service
Provider as a result of the Optionee's Disability, the Optionee
may, but only within twelve (12) months from the date of such
termination (and in no event later than the expiration date of
the term of such Option as set forth in the Option Agreement),
exercise his or her
<PAGE>
Option the extent the Option is vested on the date of
termination. If, on the date of termination, the Optionee is not
vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall revert to the Plan. If,
after termination, the Optionee does not exercise his or her
Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to
the Plan.
(d) Death of Optionee. If an Optionee dies while a Service Provider,
the Option may be exercised at any time within twelve (12) months
following the date of death (but in no event later than the
expiration of the term of such Option as set forth in the Notice
of Grant), by the Optionee's estate or by a person who acquires
the right to exercise the Option by bequest or inheritance, but
only to the extent that the Option is vested on the date of
death. If, at the time of death, the Optionee is not vested as to
his or her entire Option, the Shares covered by the unvested
portion of the Option shall immediately revert to the Plan. The
Option may be exercised by the executor or administrator of the
Optionee's estate or, if none, by the person(s) entitled to
exercise the Option under the Optionee's will or the laws of
descent or distribution. If the Option is not so exercised within
the time specified herein, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time offer to buy
out for a payment in cash or Shares an Option previously granted
based on such terms and conditions as the Administrator shall
establish and communicate to the Optionee at the time that such
offer is made.
11. STOCK PURCHASE RIGHTS.
(a) Rights to Purchase. Stock Purchase Rights may be issued either
alone, in addition to, or in tandem with other awards granted
under the Plan and/or cash awards made outside of the Plan. After
the Administrator determines that it will offer Stock Purchase
Rights under the Plan, it shall advise the offeree in writing or
electronically, by means of a Notice of Grant, of the terms,
conditions and restrictions related to the offer, including the
number of Shares that the offeree shall be entitled to purchase,
the price to be paid, and the time within which the offeree must
accept such offer. The offer shall be accepted by execution of a
Restricted Stock Purchase Agreement in the form determined by the
Administrator.
(b) Repurchase Option. Unless the Administrator determines otherwise,
the Restricted Stock Purchase Agreement shall grant the Company a
repurchase option exercisable upon the voluntary or involuntary
termination of the purchaser's service with the Company for any
reason (including death or Disability). The purchase price for
Shares repurchased pursuant to the Restricted Stock Purchase
Agreement shall be the original price paid by the purchaser and
may be paid by cancellation of any indebtedness of the purchaser
to the Company. The repurchase option shall lapse at a rate
determined by the Administrator.
(c) Other Provisions. The Restricted Stock Purchase Agreement shall
contain such other terms, provisions and conditions not
inconsistent with the Plan as may be determined by the
Administrator in its sole discretion.
<PAGE>
(d) Rights as a Stockholder. Once the Stock Purchase Right is
exercised, the purchaser shall have the rights equivalent to
those of a stockholder, and shall be a stockholder when his or
her purchase is entered upon the records of the duly authorized
transfer agent of the Company. No adjustment will be made for a
dividend or other right for which the record date is prior to the
date the Stock Purchase Right is exercised, except as provided in
Section 13 of the Plan.
12. NON-TRANSFERABILITY OF OPTIONS AND STOCK PURCHASE RIGHTS. Unless determined
otherwise by the Administrator, an Option or Stock Purchase Right may not
be sold, pledged, assigned, hypothecated, transferred, or disposed of in
any manner other than by will or by the laws of descent or distribution and
may be exercised, during the lifetime of the Optionee, only by the
Optionee. If the Administrator makes an Option or Stock Purchase Right
transferable, such Option or Stock Purchase Right shall contain such
additional terms and conditions as the Administrator deems appropriate.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR ASSET
SALE.
(a) Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock
covered by each outstanding Option and Stock Purchase Right, the
number of shares of Common Stock which have been authorized for
issuance under the Plan but as to which no Options or Stock
Purchase Rights have yet been granted or which have been returned
to the Plan upon cancellation or expiration of an Option or Stock
Purchase Right and the number of shares of Common Stock which may
be added to the Plan each fiscal year (pursuant to Section 3), as
well as the price per share of Common Stock covered by each such
outstanding Option or Stock Purchase Right, shall be
proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the
Company shall not be deemed to have been "effected without
receipt of consideration." Such adjustment shall be made by the
Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject
to an Option or Stock Purchase Right.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Administrator
shall notify each Optionee as soon as practicable prior to the
effective date of such proposed transaction. The Administrator in
its discretion may provide for an Optionee to have the right to
exercise his or her Option until ten (10) days prior to such
transaction as to all of the Optioned Stock covered thereby,
including Shares as to which the Option would not otherwise be
exercisable. In addition, the Administrator may provide that any
Company repurchase option applicable to any Shares purchased upon
exercise of an Option or Stock Purchase Right shall lapse as to
all such Shares, provided the proposed dissolution or liquidation
takes place at the time and in the manner contemplated. To
<PAGE>
the extent it has not been previously exercised, an Option or
Stock Purchase Right will terminate immediately prior to the
consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company
with or into another corporation, or the sale of substantially
all of the assets of the Company, each outstanding Option and
Stock Purchase Right shall be assumed or an equivalent option or
right substituted by the successor corporation or a Parent or
Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the
Option or Stock Purchase Right, the Optionee shall fully vest in
and have the right to exercise the Option or Stock Purchase Right
as to all of the Optioned Stock, including Shares as to which it
would not otherwise be vested or exercisable. If an Option or
Stock Purchase Right becomes fully vested and exercisable in lieu
of assumption or substitution in the event of a merger or sale of
assets, the Administrator shall notify the Optionee in writing or
electronically that the Option or Stock Purchase Right shall be
fully vested and exercisable for a period of fifteen (15) days
from the date of such notice, and the Option or Stock Purchase
Right shall terminate upon the expiration of such period. For the
purposes of this paragraph, the Option or Stock Purchase Right
shall be considered assumed if, following the merger or sale of
assets, the option or right confers the right to purchase or
receive, for each Share of Optioned Stock subject to the Option
or Stock Purchase Right immediately prior to the merger or sale
of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets
by holders of Common Stock for each Share held on the effective
date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of
a majority of the outstanding Shares); provided, however, that if
such consideration received in the merger or sale of assets is
not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor
corporation, provide for the consideration to be received upon
the exercise of the Option or Stock Purchase Right, for each
Share of Optioned Stock subject to the Option or Stock Purchase
Right, to be solely common stock of the successor corporation or
its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the merger
or sale of assets.
14. DATE OF GRANT. The date of grant of an Option or Stock Purchase Right shall
be, for all purposes, the date on which the Administrator makes the
determination granting such Option or Stock Purchase Right, or such other
later date as is determined by the Administrator. Notice of the
determination shall be provided to each Optionee within a reasonable time
after the date of such grant.
15. AMENDMENT AND TERMINATION OF THE PLAN.
(a) Amendment and Termination. The Board may at any time amend,
alter, suspend or terminate the Plan.
(b) Stockholder Approval. The Company shall obtain stockholder
approval of any Plan amendment to the extent necessary and
desirable to comply with Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of
any Optionee, unless mutually
<PAGE>
agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and
the Company. Termination of the Plan shall not affect the
Administrator's ability to exercise the powers granted to it
hereunder with respect to Options granted under the Plan prior to
the date of such termination.
16. CONDITIONS UPON ISSUANCE OF SHARES.
(a) Legal Compliance. Shares shall not be issued pursuant to the
exercise of an Option or Stock Purchase Right unless the exercise
of such Option or Stock Purchase Right and the issuance and
delivery of such Shares shall comply with Applicable Laws and
shall be further subject to the approval of counsel for the
Company with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
Option or Stock Purchase Right, the Company may require the
person exercising such Option or Stock Purchase Right to
represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is
required.
17. INABILITY TO OBTAIN AUTHORITY. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
18. RESERVATION OF SHARES. The Company, during the term of this Plan, will at
all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
19. STOCKHOLDER APPROVAL. The Plan shall be subject to approval by the
stockholders of the Company within twelve (12) months after the date the Plan is
adopted. Such stockholder approval shall be obtained in the manner and to the
degree required under Applicable Laws.
<PAGE>
Exhibit 5.1
December 6, 1999
Macromedia, Inc.
600 Townsend Street
San Francisco, CA 94103
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form
S-8 (the "REGISTRATION STATEMENT") to be filed by Macromedia, Inc.
("MACROMEDIA") with the Securities and Exchange Commission (the "COMMISSION") on
or about December 6, 1999 in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 2,586,394 shares of
Macromedia Common Stock (the "STOCK") to be sold pursuant to: (a) an outstanding
option for 350,000 shares of Stock that was granted outside of Macromedia's
option plans (the "NON-PLAN OPTION"); (b) options for up to 124,500 shares of
Stock that are outstanding under Macromedia's 1999 Stock Option Plan (the "1999
PLAN"); (c) options for up to 875,500 shares of Stock that may be granted by
Macromedia under the 1999 Plan; (d) outstanding options for up to 808,958 shares
of Stock originally granted by Andromedia, Inc. ("ANDROMEDIA") under its 1996
Stock Option Plan, 1997 Stock Plan and 1999 Stock Plan (collectively, the
"ANDROMEDIA PLANS") that were assumed by Macromedia (the "ASSUMED OPTIONS"),
pursuant to the Agreement and Plan of Reorganization dated as of October 6,
1999, among Macromedia, Andromedia and Peak Acquisition Corp., Macromedia's
wholly-owned subsidiary (the "MERGER AGREEMENT"); (e) outstanding options for up
to 427,200 shares of Stock granted by Macromedia under Andromedia's 1999 Stock
Option Plan (the "1999 ANDROMEDIA PLAN") that Macromedia assumed pursuant to the
First Amendment to the Merger Agreement entered into as of November 23, 1999
(the "MERGER AGREEMENT AMENDMENT"); and (f) options for up to 236 shares of
Stock that may be granted by Macromedia under the 1999 Andromedia Plan assumed
by Macromedia pursuant to the Merger Agreement Amendment.
In rendering this opinion, we have examined the following:
(1) Macromedia's form of Non-Plan Stock Option Grant and form of
exercise agreement;
(2) the 1999 Plan and the forms of stock option agreement and
exercise agreement, used by Macromedia in connection with such
plan;
(3) the Andromedia Plans and the related stock option agreements;
(4) the Registration Statement, together with the Exhibits filed
as a part thereof;
<PAGE>
Macromedia, Inc.
December 3, 1999
Page 2
(5) the Prospectuses prepared in connection with the Registration
Statement;
(6) the Merger Agreement and Merger Agreement Amendment;
(7) the minutes (including draft minutes) of meetings and actions
by written consent of the stockholders and Board of Directors
that are contained in Macromedia's minute books in our
possession;
(8) a Management Certificate addressed to us and dated of even
date herewith executed by Macromedia containing certain
factual representations;
(9) Macromedia's registration statement on Form 8-A filed with the
Commission on October 22, 1993, as amended on Form 8-A/A filed
with the Commission on October 5, 1999; and
(11) the stock records that you have provided to us (consisting of
a verification letter from your transfer agent dated December
3, 1999 verifying the number of your issued and outstanding
shares of capital stock and a list of outstanding option
totals and shares available for purchase under Macromedia's
Employee Stock Purchase Plan respecting your capital stock
that was prepared by you and dated December 3, 1999).
We have also confirmed the continued effectiveness of your registration
under the Securities Exchange Act of 1934, as amended, by telephone call to the
offices of the Commission, and have confirmed your eligibility to use Form S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the lack of any undisclosed termination,
modification, waiver or amendment to any document reviewed by us and the due
authorization and execution and delivery of all documents where due
authorization and execution and delivery are prerequisites to the effectiveness
thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records included in the documents referred to above. We have made
no independent investigation or other attempt to verify the accuracy of any of
such information or to determine the existence or non-existence of any other
factual matters; HOWEVER, we are not aware of any facts that would cause us to
believe that the opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we
express no opinion herein with respect to the application or effect of the laws
of any jurisdiction other than the existing laws of the United States of America
and the State of California
<PAGE>
Macromedia, Inc.
December 3, 1999
Page 3
and (without reference to case law or secondary sources) the existing Delaware
General Corporation Law.
Based upon the foregoing, it is our opinion that (a) the up to 350,000
shares of Stock to be issued and sold by you pursuant to the Non-Plan Option,
when issued and sold in accordance with the manner referred to in the relevant
Prospectus associated with the Registration Statement and the Non-Plan Stock
Option Grant; (b) the up to 116,000 shares of Stock to be issued and sold by you
pursuant to the stock options granted under the 1999 Plan, when issued and sold
in accordance with the manner referred to in the relevant Prospectus associated
with the Registration Statement, the 1999 Plan and accompanying stock option
agreements; (c) the up to 884,000 shares of Stock to be issued and sold by you
pursuant to the stock options to be granted under the 1999 Plan, when issued and
sold in accordance with the manner referred to in the relevant Prospectus
associated with the Registration Statement, the 1999 Plan and accompanying stock
option agreements; (d) the up to 808,958 shares of Stock to be issued and sold
by you pursuant to the Assumed Options, when issued and sold in accordance with
the manner referred to in the relevant Prospectus associated with the
Registration Statement and the stock option agreements governing the Assumed
Options; (e) the up to 427,200 shares of Stock to be issued and sold by you
pursuant to the stock options granted under the 1999 Andromedia Plan, when
issued and sold in accordance with the manner referred to in the relevant
Prospectus associated with the Registration Statement, the 1999 Andromedia Plan
and the stock option agreements entered into pursuant to such stock options and
(f) the up to 236 shares of Stock that may be granted by you under the 1999
Andromedia Plan, when issued and sold in accordance with the manner referred to
in the relevant Prospectus associated with the Registration Statement and the
stock option agreements entered into pursuant to such stock options, thereunder
will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectuses constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for your
use as an exhibit to the Registration Statement for the purpose of the above
sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
/s/ FENWICK & WEST LLP
<PAGE>
Exhibit 23.02
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Macromedia, Inc.
We consent to incorporation herein by reference in this registration
statement on Form S-8 of our reports dated April 30, 1999, relating to the
consolidated balance sheets of Macromedia, Inc. and subsidiaries as of March
31, 1999 and 1998, and the related statements of operations, stockholders'
equity, and cash flows for each of the years in the three-year period ended
March 31, 1999, and the related consolidated financial statement schedule,
which reports appear in the March 31, 1999 Annual Report on Form 10-K of
Macromedia, Inc.
/s/ KPMG, LLP
San Francisco, California
December 3, 1999
<PAGE>
Exhibit 23.03
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Macromedia, Inc.:
We consent to the incorporation by reference in this registration statement
on Form S-8 of Macromedia, Inc. and the registration statements (Numbers
333-08435, 333-24713, 333-39285, 333-64141 and 333-89247) on Form S-8 of
Macromedia, Inc. of our report dated July 30, 1999, with respect to the
balance sheet of ESI Software, Inc. dba Elemental Software as of March 31,
1999, and the related statements of operations, stockholders' equity, and
cash flows for the year then ended, which report appears in the Form 8-K/A of
Macromedia, Inc. dated October 26, 1999.
/s/ KPMG LLP
San Diego, California
December 3, 1999
