As filed with the Securities and Exchange Commission on April 17, 2000
Registration No. 333-______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
BROADVISION, INC.
(Exact name of registrant as specified in its charter)
----------------------
Delaware 94-3184303
(State of Incorporation) (I.R.S. Employer Identification No.)
----------------------
585 Broadway, Redwood City, CA 94063
(Address of principal executive offices)
----------------------
Equity Incentive Plan
1996 Employee Stock Purchase Plan
Options Granted Outside of Equity Incentive Plan
2000 Non-Officer Equity Incentive Plan
Options assumed under the following Interleaf Inc. plans:
1993 Stock Option Plan
1993 Director Stock Option Plan
1994 Employee Stock Option Plan
1997 Key Man Stock Option Plan and Agreement
1998 Key Man Stock Option Plan and Agreement
(Full title of the plans)
Pehong Chen
President and Chief Executive Officer
BroadVision, Inc.
585 Broadway
Redwood City, California 94063
(650) 261-5100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
Copies to:
Kenneth L. Guernsey, Esq.
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
(415) 693-2000
----------------------
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
========================== ====================== ========================= ========================== =========================
<CAPTION>
Proposed Maximum Proposed Maximum Amount of Registration
Title of Securities to Amount to be Offering Price Per Aggregate Offering Price Fee
be Registered Registered Share (1) (1)
- -------------------------- ---------------------- ------------------------- -------------------------- -------------------------
<S> <C> <C> <C> <C>
Stock Options and Common 45,757,122 $1.89 - $33.26 $809,802,646 $213,788
Stock (par value $.001)
========================== ====================== ========================= ========================== =========================
<FN>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act of
1933, as amended (the "Act"). The offering price per share and aggregate
offering price are based upon (a) the weighted average exercise price for shares
subject to outstanding options granted under (i) BroadVision, Inc. ("Registrant"
or "Company") Equity Incentive Plan (the "Incentive Plan"), (ii) the Company's
outside plan grants, (iii) the Company's 2000 Non-Officer Equity Incentive Plan
(the "2000 Non-Officer , (iv) Interleaf, Inc. ("Interleaf") 1993 Stock Option
Plan (the "1993 Plan"), (v) Interleaf 1993 Director Stock Option Plan (the "1993
Director Plan"), (vi) Interleaf 1994 Employee Stock Option Plan (the "1994
Plan"); (vii) Interleaf 1997 Key Man Stock Option Plan and Agreement (the "1997
Plan") and (viii) Interleaf 1998 Key Man Stock Option Plan and Agreement
(pursuant to Rule 457(h) under the Act) or (b) the average of the high and low
prices of Registrant's Common Stock as reported on the Nasdaq National Market on
April 10, 2000, for (i) shares reserved for future grant pursuant to the
Incentive Plan and (ii) shares issuable pursuant to the Company's 1996 Employee
Stock Purchase Plan (pursuant to Rule 457(c) under the Act). The following chart
illustrates the calculation of the registration fee:
</FN>
</TABLE>
<TABLE>
======================================================= ====================== ======================== ========================
<CAPTION>
Title of Shares Number of Shares Offering Price Per Aggregate Offering
Share Price
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
<S> <C> <C> <C>
Shares issuable pursuant to outstanding stock options 15,589,938 $16.54(1)(a) $257,916,174
under the Equity Incentive Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Shares reserved for future issuance pursuant to 1,510,062 $33.26(1)(b) $50,244,662
Equity Incentive Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Shares issuable pursuant to the 1996 Employee Stock 2,700,000 $33.26(1)(b) $89,802,000
Purchase Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Shares issuable pursuant to options granted outside 17,604,270 $11.20(1)(a) $197,109,891
of Equity Incentive Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Shares reserved for future issuance pursuant to 2000 6,000,000 $33.26(1)(b) $199,560,000
Non-Officer Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Shares issuable pursuant to outstanding stock options 1,677,211 $7.96(1)(a) $13,344,236
under the Interleaf 1993 Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Shares issuable pursuant to outstanding stock options 113,739 $6.74(1)(a) $766,389
under the Interleaf 1993 Director Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Shares issuable pursuant to outstanding stock options 244,037 $1.95(1)(a) $476,173
under the Interleaf 1994 Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Shares issuable pursuant to outstanding stock options 251,213 $1.89(1)(a) $475,818
under the Interleaf 1997 Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Shares issuable pursuant to outstanding stock options 56,652 $1.89(1)(a) $107,303
under the Interleaf 1998 Plan
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Proposed Maximum Aggregate Offering Price
- ------------------------------------------------------- ---------------------- ------------------------ ------------------------
Registration Fee $213,788
======================================================= ====================== ======================== ========================
2
</TABLE>
<PAGE>
In February 1999, the Board approved an amendment to the Equity
Incentive Plan (the "Incentive Plan"), approved by the stockholders in May 1999,
to increase the number of shares authorized for issuance under the Incentive
Plan from a total of 53,775,000 to 61,875,000 shares and an amendment to the
1996 Employee Stock Purchase Plan (the "Purchase Plan"), approved by the
stockholders in May 1999, to increase the number of shares authorized for
issuance under the Purchase Plan from a total of 7,200,000 to 9,900,000 shares.
In August 1999 the Board made changes to the Incentive Plan, approved
by the stockholders September 1999, in response to the requirements of Code
Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"),
made conforming changes to the Incentive Plan in accordance with Rule 16b-3
under the Securities Exchange Act of 1934, as amended and approved an increase
in the Incentive Plan from a total of 61,875,000 shares to 70,875,000 shares.
All numbers reflect the 3-for-1 stock dividend declared September 10,
1999 and distributed on October 25, 1999 and the 3-for-1 stock dividend declared
February 21, 2000 and distributed on March 13, 2000.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by BroadVision, Inc. (the "Company") with
the Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(b) The Company's quarterly reports on Form 10-Q for the quarters ended March
31, June 30 and September 30, 1999;
(c) The Company's Current Reports on Form 8-K dated December 27, 1999,
January 31, 2000 and March 1, 2000; and
(d) The description of the Company's Common Stock contained in the Company's
Registration Statement filed with the Commission on April 19, 1996,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock being registered hereby
will be passed upon for the Registrant by Cooley Godward LLP, Palo Alto,
California. Kenneth L. Guernsey, a partner at Cooley Godward LLP, is a director
of the Registrant. As of the date of this prospectus, certain members and
associates of Cooley Godward LLP beneficially own an aggregate of 12,363 shares
of our common stock.
3
<PAGE>
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify its directors, officers, employees and other agents in
terms sufficiently broad to permit indemnification (including reimbursement for
expenses) under certain circumstances for liabilities arising under the
Securities Act of 1933, as amended (the "Act"). The Company's Bylaws contain
provisions covering indemnification of directors, officers and other agents
against certain liabilities and expenses incurred as a result of proceedings
involving such persons in their capacities as directors, officers, employees or
agents, including proceedings under the Act or the Securities Exchange Act of
1934.
The Company's Bylaws provide for the indemnification of directors to
the fullest extent not prohibited by the Delaware General Corporation Law and
authorize the indemnification by the Company of officers, employees and other
agents as set forth in the Delaware General Corporation Law. The Company has
entered into indemnification agreements with each of the Company's directors.
The form of indemnification agreement provides that the Company will indemnify
against expenses and losses incurred for claims brought against them by reason
of their status as a director, to the fullest extent permitted by the Company's
Bylaws and Delaware law.
In addition, the Company maintains directors' and officers' liability
insurance.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP, Independent Auditors
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants
23.3 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 Equity Incentive Plan, as amended. (i)
99.2 1996 Employee Stock Purchase Plan, as amended. (ii)
99.3 Form of Nonstatutory Stock Option Agreement Granted Outside of the Equity
Incentive Plan.
99.4 2000 Non-Officer Equity Incentive Plan.
99.5 Interleaf, Inc. 1993 Stock Option Plan. (iii)
99.6 Interleaf, Inc. 1993 Director Stock Option Plan. (iv)
99.7 Interleaf, Inc. 1994 Employee stock Option Plan. (v)
99.8 Interleaf, Inc. 1997 Key Man Stock Option Plan and Agreement. (vi)
99.9 Interleaf, Inc. 1998 Key Man Stock Option Plan and Agreement. (iv)
4
<PAGE>
- --------------------------
(i) Incorporated herein by reference is the applicable Exhibit to the
Company's Proxy Statement filed on September 13, 1999, File Number
0-28252.
(ii) Incorporated herein by reference is the applicable Exhibit to the
Company's Proxy Statement filed on April 12, 1999, File Number 0-28252.
(iii) Incorporated herein by reference is the applicable Exhibit to
Interleaf, Inc.'s Annual Report on Form 10-K for the year ended March
31, 1995, File Number 0-14713.
(iv) Incorporated herein by reference is the applicable Exhibit to
Interleaf, Inc.'s Annual Report on Form 10-K for the year ended March
31, 1994, File Number 0-14713.
(v) Incorporated herein by reference is the applicable Exhibit to
Interleaf, Inc.'s Annual Report on Form 10-K for the year ended
September 30, 1996, File Number 0-14713.
(vi) Incorporated herein by reference is the applicable Exhibit to
Interleaf, Inc.'s Registration on Form S-8, filed June 5, 1998, File
Number 333-77907.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
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)
(ss. 230.424(b) of this chapter) if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) Toinclude any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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
5
<PAGE>
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) 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.
2. 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 herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Redwood City, State of California, on
_______________, 2000.
BROADVISION, INC.
By: __________________________________
Randall C. Bolten
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Pehong Chen and Randall C. Bolten, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, 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, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
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 their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
7
<PAGE>
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<CAPTION>
Signature Title Date
<S> <C> <C>
President, Chief Executive Officer and __________, 2000
- -------------------------------------------- Director (Principal Executive Officer)
Pehong Chen
Vice President Operations, and Chief __________, 2000
- -------------------------------------------- Financial Officer (Principal Financial
Randall C. Bolten and Accounting Officer)
Director __________, 2000
- --------------------------------------------
David L. Anderson
Director __________, 2000
- --------------------------------------------
Yogen K. Dalal
Director __________, 2000
- --------------------------------------------
Koh Boon Hwee
Director __________, 2000
- --------------------------------------------
Carl Pascarella
Director __________, 2000
- --------------------------------------------
Todd A. Garrett
Director __________, 2000
- --------------------------------------------
Klaus Luft
</TABLE>
8
<PAGE>
EXHIBIT INDEX
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants
23.3 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 Equity Incentive Plan, as amended. (i)
99.2 1996 Employee Stock Purchase Plan, as amended. (ii)
99.3 Form of Nonstatutory Stock Option Agreement Granted Outside of the
Equity Incentive Plan.
99.4 2000 Non-Officer Equity Incentive Plan.
99.5 Interleaf, Inc. 1993 Stock Option Plan. (iii)
99.6 Interleaf, Inc. 1993 Director Stock Option Plan. (iv)
99.7 Interleaf, Inc. 1994 Employee stock Option Plan. (v)
99.8 Interleaf, Inc. 1997 Key Man Stock Option Plan and Agreement. (vi)
99.9 Interleaf, Inc. 1998 Key Man Stock Option Plan and Agreement. (iv)
- ------------------------------
(i) Incorporated herein by reference is the applicable Exhibit to the
Company's Proxy Statement filed on September 13, 1999, File Number
0-28252.
(ii) Incorporated herein by reference is the applicable Exhibit to the
Company's Proxy Statement filed on April 12, 1999, File Number 0-28252.
(iii) Incorporated herein by reference is the applicable Exhibit to
Interleaf, Inc.'s Annual Report on Form 10-K for the year ended March
31, 1995, File Number 0-14713.
(iv) Incorporated herein by reference is the applicable Exhibit to
Interleaf, Inc.'s Annual Report on Form 10-K for the year ended March
31, 1994, File Number 0-14713.
(v) Incorporated herein by reference is the applicable Exhibit to
Interleaf, Inc.'s Annual Report on Form 10-K for the year ended
September 30, 1996, File Number 0-14713.
(vi) Incorporated herein by reference is the applicable Exhibit to
Interleaf, Inc.'s Registration on Form S-8, filed June 5, 1998, File
Number 333-77907.
9
Exhibit 23.1
CONSENT OF KPMG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
BroadVision, Inc.
We consent to incorporation by reference herein of our reports dated January 26,
1999, except as to the section of Note 1 entitled "Stock Splits" which is as of
March 13, 2000, related to the consolidated balance sheet of BroadVision, Inc.
and subsidiaries as of December 31, 1998, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the two-year period ended December 31, 1998, and the related financial
statement schedule, which reports appear in the December 31, 1999, annual report
on Form 10-K of BroadVision, Inc.
KPMG LLP
Mountain View, California
April 12, 2000
10
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders of BroadVision, Inc.
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 24, 2000,
except with respect to the matter discussed in the section entitled "stock
splits" in Note 1, as to which the date is March 13, 2000, included in
BroadVision Inc.'s Form 10-K for the year ended December, 31 1999.
AUTHUR ANDERSEN LLP
Mountain View, California
April 12, 2000
11
Exhibit 23.3
April 17, 2000
BroadVision, Inc.
585 Broadway
Redwood City, CA 94063
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by BroadVision, Inc. (the "Company") of a Registration Statement
on Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 45,747,122 shares of the Company's
Common Stock, $.0001 par value, (the "Shares") pursuant to its Equity Incentive
Plan, 1996 Employee Stock Purchase Plan and options granted outside of its
Equity Incentive Plan, Interleaf, Inc. ("Interleaf") 1993 Stock Option Plan,
Interleaf 1993 Director Stock Option Plan, Interleaf, 1994 Employee Stock Option
Plan, Interleaf 1997 Key Man Stock Option Plan and Agreement and Interleaf 1998
Key Man Stock Option Plan and Agreement (the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ Jamie E. Chung
----------------------------------
Jamie E. Chung
12
Exhibit 99.3
BROADVISION, INC.
STOCK OPTION AGREEMENT
BROADVISION, INC. (the "Company") is pleased to inform you that its
Board of Directors has granted you an option to purchase shares of the common
stock of the Company ("Common Stock").
The details of your option are as follows:
OPTIONEE NAME: _______________________________
NUMBER OF SHARES: ____________________________
EXERCISE PRICE: $______ per share, being not less than the fair market value of
the Common Stock on the date of grant of this option.
GRANT DATE: __________________________________
EXPIRATION DATE: _________________, unless it ends sooner for the reasons
described in Section 5 of the Supplemental Terms and Conditions attached.
VESTING COMMENCEMENT DATE: ____________________
VESTING SCHEDULE:___________ % on first anniversary of Vesting Commencement Date
___________ % each monthly anniversary thereafter until fully
vested
TAX QUALIFICATION: This option ____ is ____ is not intended to qualify for the
federal income tax benefits available to an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
ADDITIONAL TERMS AND OPTIONEE'S ACKNOWLEDGEMENTS: This option is also subject to
all the terms of the Supplemental Terms and Conditions attached to this
Agreement. The undersigned optionee acknowledges receipt of this option
agreement, the Supplemental Terms and Conditions, and the exhibits referred to
in both documents, and understands and agrees to all their terms. Optionee
further acknowledges that as of the date of grant of this option, this option
and its exhibits set forth the entire understanding between optionee and the
Company and regarding the acquisition of stock in the Company and supersedes all
prior oral and written agreements on that subject with the exception of (i) the
option agreements previously granted and delivered to optionee under the
Company's Equity Incentive Plan, and (ii) the following agreements only:
OTHER AGREEMENTS: ______________________________
______________________________
BROADVISION, INC. OPTIONEE:
By: ___________________________ Signature ___________________________
Name: _________________________
Date: _______________________________
Date: _________________________
13
<PAGE>
BROADVISION, INC.
SUPPLEMENTAL TERMS AND CONDITIONS OF THE
NONQUALIFIED STOCK OPTION AGREEMENT
1. METHOD OF PAYMENT. Payment of the exercise price per share is due in
full upon exercise of all or any part of this option. You may make payment of
the exercise price in cash or by check at the time of exercise. Notwithstanding
the foregoing, this option may also be exercised (a) as part of a program
developed under Regulation T as promulgated by the Federal Reserve Board which
results in the receipt of cash (or a check) by the Company before Common Stock
is issued or the receipt of irrevocable instructions to pay the aggregate
exercise price to the Company from the sales proceeds or (b) by delivery of
already-owned shares of Common Stock, held for the period required to avoid a
charge to the Company's reported earnings, and owned free and clear of any
liens, claims, encumbrances or security interests, and valued at its Fair Market
Value on the date of exercise of this option ("delivery" for these purposes
including by delivering to the Company your attestation of ownership of such
shares of Common Stock in a form approved by the Company).
2. EARLY EXERCISE OF OPTION (EXERCISE OF UNVESTED SHARES).
(a) At any time during your Continuous Service you may exercise any or all
of the shares subject to this option whether or not the shares have
vested, provided, however, that:
(i) a partial exercise of this option will be deemed to cover vested shares
first and then the earliest vesting installment of unvested shares;
(ii)any unvested shares at the date of exercise will be subject to the
purchase option in favor of the Company which is described in the Notice
of Exercise and Stock Purchase Agreement (the "Notice of Exercise")
attached as an exhibit to this option; and
(iii) you will enter into the Notice of Exercise and Stock Purchase
Agreement which will contain the same vesting schedule as in this option
agreement.
(b) Your right to purchase unvested shares ends upon termination of your
Continuous Service.
3. WHOLE SHARES. You may exercise this option only for whole shares and the
Company shall be under no obligation to issue any fractional shares of Common
Stock to you.
4. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained in this option, this option may not be exercised unless the shares
issuable upon exercise of this option are then registered under the Securities
Act of 1933, as amended (the "Act") or, if the shares are not registered at that
time, the Company has determined that the exercise and issuance would be exempt
from the registration requirements of the Act.
14
<PAGE>
5. TERM OF OPTION. The term of this option begins on the date you were
granted this option and, unless it ends sooner for the reason described below,
terminates on the Expiration Date set forth in the Stock Option Agreement. You
may not, under any circumstances, exercise this option after the Expiration
Date. By delivering written notice to the Company, in a form satisfactory to the
Company, you may designate a third party who, in the event of your death, shall
thereafter be entitled to exercise this option.
This option will also terminate prior to the end of its term if your
service as an advisor or consultant with the Company and all Company Affiliates
is terminated for any reason or for no reason. Your option will then terminate
three (3) months after the date on which you are no longer providing services to
the Company or any Company Affiliate unless one of the following circumstances
exists:
(a) Your termination of service is due to your disability. This option will
then terminate on the earlier of the Expiration Date or twelve (12) months
following the termination of your service.
(b) Your termination of service is due to your death. This option will then
terminate on the earlier of the Expiration Date or twelve (12) months after
your death.
(c) If during any part of the three (3) month period you may not exercise your
option solely because of the condition described in paragraph 4 above, then
your option will not terminate until the earlier of the Expiration Date or
until this option shall become exercisable for an aggregate period of three
(3) months after the termination of your service.
Only the shares that are vested on the date of your termination of
service may be exercised following the termination of your service.
6. EXERCISE OF OPTION.
(a) You may exercise this option to the extent specified above, by delivering
the Notice of Exercise attached to this option as an exhibit together with
the exercise price to the Secretary of the Company, or another person
designated by the Company, during regular business hours, together with any
additional documents required in the Notice of Exercise.
(b) By exercising this option you agree that the Company may require you to pay
to the Company any tax withholding obligation of the Company arising from
(1) your exercise of this option; (2) the lapse of any substantial risk of
forfeiture to which the shares are subject at the time of exercise; or (3)
the disposition of the shares of Common Stock you acquired upon the
exercise of this option.
7. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to this option without the
receipt of consideration by the Company (through merger, consolidation,
reorganization,
15
<PAGE>
recapitalization, reincorporation, stock dividend, dividend in property
other than cash, stock split, liquidating dividend, combination of shares,
exchange of shares, change in corporate structure or other transaction not
involving the receipt of consideration by the Company), this will be
appropriately adjusted in the class(es) and number of shares and price per
share of stock subject to this option. Such adjustments shall be made by
the Board or the Committee, the determination of which shall be final,
binding and conclusive. (The conversion of any convertible securities of
the Company shall not be treated as a "transaction not involving the
receipt of consideration by the Company".)
(b) In the event of: (1) a dissolution, liquidation or sale of substantially
all of the assets of the Company; (2) a merger or consolidation in which
the Company is not the surviving corporation; or (3) a reverse merger in
which the Company is the surviving corporation but the shares of the
Company's Common Stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether in the form
of securities, cash or otherwise, then to the extent permitted by
applicable law: (i) any surviving corporation or an Affiliate of such
surviving corporation shall assume this option or shall substitute a
similar option, or (ii) this option shall continue in full force and
effect. In the event any surviving corporation and its Affiliates refuse to
assume or continue this option, or to substitute a similar option, then,
with respect to an option held by persons then performing services as
Employees, Directors or Consultants, the time during which this option may
be exercised shall be accelerated and the option terminated if not
exercised prior to such event.
8. AMENDMENT OF STOCK OPTION. The Board at any time, and from time to time,
may amend the terms of this option; provided, however, that the rights and
obligations under this option shall not be impaired by any such amendment unless
(i) the Company requests the consent of the person to whom the this option was
granted and (ii) such person consents in writing.
9. OPTION NOT TRANSFERABLE. This option may not be transferred, except by
will or by the laws of descent and distribution, or pursuant to a qualified
domestic relations order as defined in the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended (a "QDRO"), and may be
exercised during your life only by you or a transferee pursuant to a QDRO.
10. OPTION NOT AN EMPLOYMENT CONTRACT. This option is not an employment
contract and nothing in this option creates in any way whatsoever any obligation
on your part to continue in the employ of the Company or a Company Affiliate, or
of the Company or a Company Affiliate to continue your employment with the
Company or any Company Affiliate. In addition, nothing in your option shall
obligate the Company or a Company Affiliate, their respective stockholders,
boards of directors, officers or employees to continue any relationship that you
might have as a Director or Consultant for the Company or any Company Affiliate.
11. NOTICES. Any notices provided for in this option will be given in
writing and will be considered to have been given upon receipt or, in the case
of notices delivered by the
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Company to you, five (5) days after deposit in the United States mail,
postage prepaid, addressed to you at the address specified below or at such
other address as you later designate in writing to the Company.
ATTACHMENTS:
Exhibit A: Notice of Exercise and Stock Purchase Agreement
17
Exhibit 99.4
BROADVISION, INC.
2000 NON-OFFICER EQUITY INCENTIVE PLAN
ADOPTED ON FEBRUARY 8, 2000
STOCKHOLDER APPROVAL NOT REQUIRED
1. PURPOSES.
(b) The purpose of the Plan is to provide a means by which selected
Employees of and Consultants to the Company and its Affiliates who are not
Officers or Directors may be given an opportunity to benefit from increases in
value of the stock of the Company through the granting of (i) Nonstatutory Stock
Options, (ii) stock bonuses and (iii) rights to purchase restricted stock, all
as described below. The Plan is also intended to provide a means by which the
Company may grant options to persons not previously employed by the Company as
an inducement essential to those persons entering employment contracts with the
Company. Such "inducement grants" may be made to any Employee, including persons
who ultimately are employed by the Company as Officers.
(c) The Company, by means of the Plan, seeks to retain the services of
persons who are now Employees or Consultants, to secure and retain the services
of new Employees and Consultants, and to provide incentives for such persons to
exert maximum efforts for the success of the Company and its Affiliates.
(d) The Company intends that the Stock Awards issued under the Plan shall
be, in the discretion of the Board or any Committee to which responsibility for
administration of the Plan has been delegated pursuant to subsection 3(c),
either (i) Nonstatutory Stock Options granted pursuant to Section 6 hereof or
(ii) stock bonuses or rights to purchase restricted stock granted pursuant to
Section 7 hereof.
2. DEFINITIONS.
"Affiliate" means any parent corporation or subsidiary corporation,
whether now or hereafter existing, as those terms are defined in Sections 424(e)
and (f) respectively, of the Code.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means a Committee appointed by the Board in accordance with
subsection 3(c) of the Plan.
"Company" means BroadVision, Inc., a Delaware corporation.
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"Consultant" means any person, including an advisor, engaged by the
Company or an Affiliate to render consulting services and who is compensated for
such services; provided that the term "Consultant" shall not include Directors.
"Continuous Service" (formerly "Continuous Status as an Employee,
Director or Consultant") means that the Participant's service with the Company
or an Affiliate, whether as an Employee, Officer, Director or Consultant, is not
interrupted or terminated. The Participant's Continuous Service shall not be
deemed to have terminated merely because of a change in the capacity in which
the Participant renders service to the Company or an Affiliate as an Employee,
Officer, Consultant or Director or a change in the entity for which the
Participant renders such service, provided that there is no interruption or
termination of the Participant's Continuous Service. For example, a change in
status from an Employee of the Company to a Consultant of an Affiliate or a
Director of the Company will not constitute an interruption of Continuous
Service. The Board or the chief executive officer of the Company, in that
party's sole discretion, may determine whether Continuous Service shall be
considered interrupted in the case of any leave of absence approved by that
party, including sick leave, military leave or any other personal leave.
"Director" means a member of the Board.
"Employee" means any person employed by the Company or any Affiliate of
the Company; provided that except as provided below, Officers and Directors of
the Company shall not be considered Employees for purposes of the Plan.
Notwithstanding the foregoing, an Officer shall be considered an Employee for
purposes of the grant under this Plan of a Stock Award to that Officer as an
inducement essential to such Officer's entering into an employment contract with
the Company if such Officer was not an Employee of the Company immediately prior
to the date on which such Stock Award is granted.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, as of any date, the value of the Common
Stock of the Company determined as follows:
(i) If the Common Stock is listed on any established stock exchange or
a national market system, including without limitation the National Market of
The Nasdaq Stock Market, the Fair Market Value of a share of Common Stock shall
be the closing sales price for such stock (or the closing bid, if no sales were
reported) as quoted on such system or exchange (or the exchange with the
greatest volume of trading in 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 Board deems reliable.
(ii) If the Common Stock is quoted on The Nasdaq Stock Market (but not
on the National Market thereof) or 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 bid and 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 Board deems reliable.
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(iii) In the absence of an established market for the Common Stock, the
Fair Market Value shall be determined in good faith by the Board.
(e) "Non-Employee Director" means a Director of the Company who either (i)
is not a current Employee or an officer (within the meaning of Section 16 of the
Exchange Act and the rules and regulations promulgated thereunder) of the
Company or its parent or a subsidiary, does not receive compensation (directly
or indirectly) from the Company or its parent or a subsidiary for services
rendered as a consultant or in any capacity other than as a Director (except for
an amount as to which disclosure would not be required under Item 404(a) of
Regulation S-K promulgated pursuant to the Securities Act ("Regulation S-K")),
does not possess an interest in any other transaction as to which disclosure
would be required under Item 404(a) of Regulation S-K and is not engaged in a
business relationship as to which disclosure would be required under Item 404(b)
of Regulation S-K or (ii) is otherwise considered a "non-employee director" for
purposes of Rule 16b-3.
(f) "Nonstatutory Stock Option" means an Option not intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(g) "Officer" means a person who is an officer of the Company, including
any corporate officer with a title of Vice President or above or any other
Employee of the Company whom the Board or the Committee classifies as an
"Officer."
(h) "Option" means a stock option granted pursuant to the Plan.
(i) "Option Agreement" means a written agreement between the Company and an
Optionee evidencing the terms and conditions of an individual Option grant. Each
Option Agreement shall be subject to the terms and conditions of the Plan.
(j) "Optionee" means a person to whom an Option is granted pursuant to the
Plan or, if applicable, such other person who holds an outstanding Option.
(a) "Participant" means a person to whom a Stock Award is granted pursuant
to the Plan or, if applicable, such other person who holds an
outstanding Stock Award.
(k) "Plan" means this BroadVision, Inc. 2000 Non-Officer Equity Incentive
Plan.
(l) "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.
(m) "Securities Act" means the Securities Act of 1933, as amended.
(n) "Stock Award" means any right granted under the Plan, including any
Option, any stock bonus and any right to purchase restricted stock.
(o) "Stock Award Agreement" means a written agreement between the Company
and a holder of a Stock Award evidencing the terms and conditions of an
individual Stock Award grant. Each Stock Award Agreement shall be subject to the
terms and conditions of the Plan.
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3. ADMINISTRATION.
(p) The Board shall administer the Plan unless and until the Board
delegates administration to a Committee, as provided in subsection 3(c).
(q) The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:
(i) To determine from time to time which of the persons eligible under
the Plan shall be granted Stock Awards; when and how each Stock Award shall be
granted; whether a Stock Award will be an Option, a stock bonus, a right to
purchase restricted stock or the provisions of each Stock Award granted (which
need not be identical), including the time or times when a person shall be
permitted to receive stock pursuant to a Stock Award; and the number of shares
with respect to which a Stock Award shall be granted to each such person.
(ii) To construe and interpret the Plan and Stock Awards granted under
it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Stock Award Agreement,
in a manner and to the extent it shall deem necessary or expedient to make the
Plan fully effective.
(iii) To amend the Plan or a Stock Award as provided in Section 12.
(iv) To terminate or suspend the Plan as provided in Section 13.
(v) Generally, to exercise such powers and to perform such acts as the
Board deems necessary or expedient to promote the best interests of the Company
which are not in conflict with the provisions of the Plan.
(a) The Board may delegate administration of the Plan to a Committee or
Committees of one or more members of the Board, and the term
"Committee" shall apply to any person or persons to whom such
authority has been delegated. If administration is delegated to a
Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the
Board, including the power to delegate to a subcommittee any of the
administrative powers the Committee is authorized to exercise (and
references in this Plan to the Board shall thereafter be to the
Committee or subcommittee), subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from
time to time by the Board. The Board may abolish the Committee at any
time and revest in the Board the administration of the Plan. In the
discretion of the Board, a Committee may consist solely of two or more
Non-Employee Directors, in accordance with Rule 16b-3. Within the
scope of such authority, the Board or the Committee may delegate to a
committee of one or more members of the Board who are not Non-Employee
Directors the authority to grant Stock Awards to eligible persons who
are not then subject to Section 16 of the Exchange Act.
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4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of Section 11 relating to adjustments upon
changes in stock, the stock that may be issued pursuant to Stock
Awards shall not exceed in the aggregate six million (6,000,000)
shares of the Company's Common Stock. If any Stock Award shall for any
reason expire or otherwise terminate, in whole or in part, without
having been exercised in full, the stock not acquired under such Stock
Award shall revert to and again become available for issuance under
the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
5. ELIGIBILITY.
(a) Stock Awards may be granted only to Employees or Consultants.
(b) A Consultant shall not be eligible for the grant of a Stock Award if,
at the time of grant, a Form S-8 Registration Statement under the
Securities Act ("Form S-8") is not available to register either the
offer or the sale of the Company's securities to such Consultant
because of the nature of the services that the Consultant is providing
to the Company, or because the Consultant is not a natural person, or
as otherwise provided by the rules governing the use of Form S-8,
unless the Company determines both (i) that such grant (A) shall be
registered in another manner under the Securities Act (e.g., on a Form
S-3 Registration Statement) or (B) does not require registration under
the Securities Act in order to comply with the requirements of the
Securities Act, if applicable, and (ii) that such grant complies with
the securities laws of all other relevant jurisdictions.
6. OPTION PROVISIONS.
Each Option shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The provisions of separate
Options need not be identical, but each Option shall include (through
incorporation of provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:
(a) Term. No Option shall be exercisable after the expiration of ten (10)
years from the date it was granted.
(b) Price. The exercise price of each Option shall be not less than
eighty-five percent (85%) of the Fair Market Value of the stock
subject to the Option on the date the Option is granted.
(c) Consideration. The purchase price of stock acquired pursuant to an
Option shall be paid, to the extent permitted by applicable statutes
and regulations, either (i) in cash at the time the Option is
exercised or (ii) at the discretion of the Board or the Committee, at
the time of the grant of the Option, (A) by delivery to the Company of
other Common Stock of the Company, (B) according to a deferred payment
or
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other arrangement (which may include, without limiting the generality
of the foregoing, the use of other Common Stock of the Company) with
the person to whom the Option is granted or to whom the Option is
transferred pursuant to subsection 6(d) or (C) in any other form of
legal consideration that may be acceptable to the Board; provided,
however, that at any time that the Company is incorporated in
Delaware, payment of the Common Stock's "par value," as defined in the
Delaware General Corporation Law, shall not be made by deferred
payment.
In the case of any deferred payment arrangement, interest shall be
compounded at least annually and shall be charged at the minimum rate of
interest necessary to avoid the treatment as interest, under any applicable
provisions of the Code, of any amounts other than amounts stated to be interest
under the deferred payment arrangement.
(r) Transferability. An Option shall be transferable to the extent provided in
the Option Agreement. If the Option does not provide for transferability, then
the Option shall not be transferable except by will or by the laws of descent
and distribution and shall be exercisable during the lifetime of the
Optionholder only by the Optionholder. Notwithstanding the foregoing, the person
to whom the Option is granted may, by delivering written notice to the Company,
in a form satisfactory to the Company, designate a third party who, in the event
of the death of the Optionee, shall thereafter be entitled to exercise the
Option.
(d) Vesting. The total number of shares of stock subject to an Option may,
but need not, be allotted in periodic installments (which may, but
need not, be equal). The Option Agreement may provide that from time
to time during each of such installment periods, the Option may become
exercisable ("vest") with respect to some or all of the shares
allotted to that period, and may be exercised with respect to some or
all of the shares allotted to such period and/or any prior period as
to which the Option became vested but was not fully exercised. The
Option may be subject to such other terms and conditions on the time
or times when it may be exercised (which may be based on performance
or other criteria) as the Board may deem appropriate. The provisions
of this subsection 6(e) are subject to any Option provisions governing
the minimum number of shares as to which an Option may be exercised.
(e) Termination of Continuous Service. In the event an Optionee's
Continuous Service terminates (other than upon the Optionee's death or
disability), the Optionee may exercise his or her Option (to the
extent that the Optionee was entitled to exercise it at the date of
termination) but only within such period of time ending on the earlier
of (i) the date three (3) months after the termination of the
Optionee's Continuous Service (or such longer or shorter period
specified in the Option Agreement) or (ii) the expiration of the term
of the Option as set forth in the Option Agreement. If, after
termination, the Optionee does not exercise his or her Option within
the time specified in the Option Agreement, the Option shall
terminate, and the shares covered by such Option shall revert to and
again become available for issuance under the Plan.
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An Optionee's Option Agreement may also provide that if the exercise of
the Option following the termination of the Optionee's Continuous Service (other
than upon the Optionee's death or disability) would result in liability under
Section 16(b) of the Exchange Act, then the Option shall terminate on the
earlier of (i) the expiration of the term of the Option set forth in the Option
Agreement, or (ii) the tenth (10th) day after the last date on which such
exercise would result in such liability under Section 16(b) of the Exchange Act.
Finally, an Optionee's Option Agreement may also provide that if the
exercise of the Option following the termination of the Optionee's Continuous
Service (other than upon the Optionee's death or disability) would be prohibited
at any time solely because the issuance of shares would violate the registration
requirements under the Securities Act, then the Option shall terminate on the
earlier of (i) the expiration of the term of the Option set forth in the first
paragraph of this subsection 6(f) or (ii) the expiration of a period of three
(3) months after the termination of the Optionee's Continuous Service during
which the exercise of the Option would not be in violation of such registration
requirements.
(f) Disability of Optionee. In the event an Optionee's Continuous Service
terminates as a result of the Optionee's disability, the Optionee may
exercise his or her Option (to the extent that the Optionee was
entitled to exercise it at the date of termination), but only within
such period of time ending on the earlier of (i) the date twelve (12)
months following such termination (or such longer or shorter period
specified in the Option Agreement) or (ii) the expiration of the term
of the Option as set forth in the Option Agreement. If, at the date of
termination, the Optionee is not entitled to exercise his or her
entire Option, the shares covered by the unexercisable portion of the
Option shall revert to and again become available for issuance under
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 and
again become available for issuance under the Plan.
(g) Death of Optionee. In the event of the death of an Optionee during, or
within a period specified in the Option after the termination of, the
Optionee's Continuous Service, the Option may be exercised (to the
extent the Optionee was entitled to exercise the Option at the date of
death) by the Optionee's estate, by a person who acquired the right to
exercise the Option by bequest or inheritance or by a person
designated to exercise the option upon the Optionee's death pursuant
to subsection 6(d), but only within the period ending on the earlier
of (i) the date eighteen (18) months following the date of death (or
such longer or shorter period specified in the Option Agreement) or
(ii) the expiration of the term of such Option as set forth in the
Option Agreement. 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 revert to and again
become available for issuance under the Plan. If, after death, the
Option is not exercised within the time specified herein, the Option
shall terminate, and the shares covered by such Option shall revert to
and again become available for issuance under the Plan.
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(h) Early Exercise. The Option may, but need not, include a provision
whereby the Optionee may elect at any time while an Employee, Officer,
Director or Consultant to exercise the Option as to any part or all of
the shares subject to the Option prior to the full vesting of the
Option. Any unvested shares so purchased may be subject to a
repurchase right in favor of the Company or to any other restriction
the Board determines to be appropriate.
(i) Re-Load Options. Without in any way limiting the authority of the
Board or Committee to make or not to make grants of Options hereunder,
the Board or Committee shall have the authority (but not an
obligation) to include as part of any Option Agreement a provision
entitling the Optionee to a further Option (a "Re-Load Option") in the
event the Optionee exercises the Option evidenced by the Option
agreement, in whole or in part, by surrendering other shares of Common
Stock in accordance with this Plan and the terms and conditions of the
Option Agreement. Any such Re-Load Option (i) shall be for a number of
shares equal to the number of shares surrendered as part or all of the
exercise price of such Option, (ii) shall have an expiration date that
is the same as the expiration date of the Option the exercise of which
gave rise to such Re-Load Option, and (iii) shall have an exercise
price that is at least eighty-five percent (85%) of the Fair Market
Value of the Common Stock subject to the Re-Load Option on the date of
exercise of the original Option.
There shall be no Re-Load Options on a Re-Load Option. Any such Re-Load
Option shall be subject to the availability of sufficient shares under
subsection 4(a) and shall be subject to such other terms and conditions as the
Board or Committee may determine which are not inconsistent with the express
provisions of the Plan regarding the terms of Options.
7. TERMS OF STOCK BONUSES AND PURCHASES OF RESTRICTED STOCK.
Each stock bonus or restricted stock purchase agreement shall be in
such form and shall contain such terms and conditions as the Board or the
Committee shall deem appropriate. The terms and conditions of stock bonus or
restricted stock purchase agreements may change from time to time, and the terms
and conditions of separate agreements need not be identical, but each stock
bonus or restricted stock purchase agreement shall include (through
incorporation of provisions hereof by reference in the agreement or otherwise)
the substance of each of the following provisions as appropriate:
(a) Purchase Price. The purchase price under each restricted stock
purchase agreement shall be such amount as the Board or Committee
shall determine and designate in such agreement but in no event shall
the purchase price be less than eighty-five percent (85%) of the
stock's Fair Market Value on the date such award is made.
Notwithstanding the foregoing, the Board or the Committee may
determine that eligible participants in the Plan may be awarded stock
pursuant to a stock bonus agreement in consideration for past services
actually rendered to the Company for its benefit.
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(b) Transferability. Rights to acquire shares under the stock bonus or
restricted stock purchase agreement shall be transferable only upon
such terms and conditions as are set forth in the agreement, as the
Board shall determine in its discretion, so long as stock awarded
under the agreement remains subject to the terms of the agreement.
(c) Consideration. The purchase price of stock acquired pursuant to a
stock purchase agreement shall be paid either: (i) in cash at the time
of purchase, (ii) at the discretion of the Board or the Committee,
according to a deferred payment or other arrangement with the person
to whom the stock is sold or (iii) in any other form of legal
consideration that may be acceptable to the Board or the Committee in
its discretion; provided, however, that at any time that the Company
is incorporated in Delaware, payment of the Common Stock's "par
value," as defined in the Delaware General Corporation Law, shall not
be made by deferred payment. Notwithstanding the foregoing, the Board
or the Committee to which administration of the Plan has been
delegated may award stock pursuant to a stock bonus agreement in
consideration for past services actually rendered to the Company or
for its benefit.
(d) Vesting. Shares of stock sold or awarded under the Plan may, but need
not, be subject to a repurchase option in favor of the Company in
accordance with a vesting schedule to be determined by the Board or
the Committee.
(e) Termination of Continuous Service. In the event a Participant's
Continuous Service terminates, the Company may repurchase or otherwise
reacquire any or all of the shares of stock held by that person which
have not vested as of the date of termination under the terms of the
stock bonus or restricted stock purchase agreement between the Company
and such person.
8. COVENANTS OF THE COMPANY.
(s) During the terms of the Stock Awards, the Company shall keep available at
all times the number of shares of stock required to satisfy such Stock Awards.
(a) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the Stock
Award; provided, however, that this undertaking shall not require the
Company to register under the Securities Act either the Plan, any
Stock Award or any stock issued or issuable pursuant to any such Stock
Award. If, after reasonable efforts, the Company is unable to obtain
from any such regulatory commission or agency the authority which
counsel for the Company deems necessary for the lawful issuance and
sale of stock under the Plan, the Company shall be relieved from any
liability for failure to issue and sell stock upon exercise of such
Stock Awards unless and until such authority is obtained.
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9. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Stock Awards shall
constitute general funds of the Company.
10. MISCELLANEOUS.
(a) The Board shall have the power to accelerate the time at which a Stock
Award may first be exercised or the time during which a Stock Award or
any part thereof will vest pursuant to subsection 6(e) or 7(d)
notwithstanding the provisions in the Stock Award stating the time at
which it may first be exercised or the time during which it will vest.
(b) Neither an Employee, an Officer nor a Consultant nor any person to
whom a Stock Award is transferred in accordance with the Plan shall be
deemed to be the holder of, or to have any of the rights of a holder
with respect to, any shares subject to such Stock Award unless and
until such person has exercised the Stock Award pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Stock Award granted
pursuant thereto shall confer upon any Employee, Officer, Consultant
or other holder of Stock Awards any right to continue in the employ of
the Company or any Affiliate or to continue acting as a Consultant or
shall affect the right of the Company or any Affiliate to terminate
the employment of any Employee or Officer with or without notice and
with or without cause, or the right to terminate the relationship of
any Consultant pursuant to the terms of such Consultant's agreement
with the Company or Affiliate.
(d) The Company may require any person to whom a Stock Award is granted,
or any person to whom a Stock Award is transferred in accordance with
the Plan, as a condition of exercising or acquiring stock under any
Stock Award, (i) to give written assurances satisfactory to the
Company as to such person's knowledge and experience in financial and
business matters and/or to employ a purchaser representative
reasonably satisfactory to the Company who is knowledgeable and
experienced in financial and business matters, and that he or she is
capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising the Stock Award and
(ii) to give written assurances satisfactory to the Company stating
that such person is acquiring the stock subject to the Stock Award for
such person's own account and not with any present intention of
selling or otherwise distributing the stock. The foregoing
requirements, and any assurances given pursuant to such requirements,
shall be inoperative if (A) the issuance of the shares upon the
exercise or acquisition of stock under the Stock Award has been
registered under a then currently effective registration statement
under the Securities Act, or (B) as to any particular requirement, a
determination is made by counsel for the Company that such requirement
need not be met in the circumstances under the then applicable
securities laws. The Company may, upon advice of counsel to the
Company, place legends on stock certificates issued
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under the Plan as such counsel deems necessary or appropriate in order
to comply with applicable securities laws, including, but not limited
to, legends restricting the transfer of the stock.
(e) To the extent provided by the terms of a Stock Award Agreement, the
person to whom a Stock Award is granted may satisfy any federal, state
or local tax withholding obligation relating to the exercise or
acquisition of stock under a Stock Award by any of the following means
or by a combination of such means: (1) tendering a cash payment, (2)
authorizing the Company to withhold shares from the shares of the
Common Stock otherwise issuable to the participant as a result of the
exercise or acquisition of stock under the Stock Award or (3)
delivering to the Company owned and unencumbered shares of the Common
Stock of the Company. Notwithstanding the foregoing, the Company shall
not be authorized to withhold shares of Common Stock at rates in
excess of the minimum statutory withholding rates for federal and
state tax purposes, including payroll taxes, if such excess
withholding would result in a charge to the Company's earnings for
accounting purposes.
11. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or subject to
any Stock Award, without the receipt of consideration by the Company
(through merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash,
stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or other transaction not
involving the receipt of consideration by the Company), the Plan will
be appropriately adjusted in the class(es) and maximum number of
shares subject to the Plan pursuant to subsection 4(a) and the
outstanding Stock Awards will be appropriately adjusted in the
class(es) and number of shares and price per share of stock subject to
such outstanding Stock Awards. Such adjustments shall be made by the
Board or the Committee, the determination of which shall be final,
binding and conclusive. (The conversion of any convertible securities
of the Company shall not be treated as a "transaction not involving
the receipt of consideration by the Company.")
(b) In the event of: (1) a dissolution, liquidation or sale of
substantially all of the assets of the Company, (2) a merger or
consolidation in which the Company is not the surviving corporation or
(3) a reverse merger in which the Company is the surviving corporation
but the shares of the Company's Common Stock outstanding immediately
preceding the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise, then
to the extent permitted by applicable law, any surviving corporation
or an Affiliate of such surviving corporation shall assume any Stock
Awards outstanding under the Plan or shall substitute similar Stock
Awards for those outstanding under the Plan. In the event any
surviving corporation and its Affiliates refuse to assume or continue
such Stock Awards, or to substitute similar options for those
outstanding under the Plan, then, with respect to Stock Awards
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held by persons then performing services as Employees, Directors or
Consultants, the time during which such Stock Awards may be exercised
shall be accelerated and the Stock Awards terminated if not exercised
prior to such event. With respect to any other Stock Awards
outstanding under the Plan, such Stock Awards shall terminate if not
exercised prior to such event.
12. AMENDMENT OF THE PLAN AND STOCK AWARDS.
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in Section 11 relating to adjustments upon
changes in stock, no amendment shall be effective unless approved by
the stockholders if such modification requires stockholder approval in
order for the Plan to satisfy the requirements of Section 422 of the
Code or any Nasdaq or securities exchange listing requirements, or to
comply with the requirements of Rule 16b-3. The Board may in its sole
discretion submit any other amendment to the Plan for stockholder
approval.
(b) Rights and obligations under any Stock Award granted before amendment
of the Plan shall not be impaired by any amendment of the Plan unless
(i) the Company requests the consent of the person to whom the Stock
Award was granted and (ii) such person consents in writing.
(c) The Board at any time, and from time to time, may amend the terms of
any one or more Stock Award; provided, however, that the rights and
obligations under any Stock Award shall not be impaired by any such
amendment unless (i) the Company requests the consent of the person to
whom the Stock Award was granted and (ii) such person consents in
writing.
13. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. No Stock
Awards may be granted under the Plan while the Plan is suspended or
after it is terminated.
(b) Rights and obligations under any Stock Award granted while the Plan is
in effect shall not be impaired by suspension or termination of the
Plan, except with the consent of the person to whom the Stock Award
was granted.
14. EFFECTIVE DATE OF PLAN.
The Plan shall become effective on the date on which it is adopted by
the Board.
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