As filed with the Securities and Exchange Commission on April 5, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CLICKACTION INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0195362
(State of Incorporation) (I.R.S. Employer Identification No.)
2197 East Bayshore Road
Palo Alto, California 94303
(650) 473-3600
(Address of principal executive offices)
1998 Non-Officer Stock Option Plan
(Full title of the plans)
Gregory W. Slayton
Chief Executive Officer
ClickAction, Inc.
2197 East Bayshore Road
Palo Alto, California 94303
(650) 473-3600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
Copies to:
James Kitch, Esq.
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
(650) 843-5000
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Title of Amount Proposed Proposed Amount
Securities to to be Maximum Offering Maximum Aggregate of Registra-
be Registered Registered Price Per Share(1) Offering Price (1) tion Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 650,000 $23.25-$46.1875 $15,238,252 $4,023
(par value $.001) shares
- --------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). 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 pursuant to ClickAction Inc.'s
(the "Company") 1998 Non-Officer Stock Option Plan and (b) the average of the
high and low prices of the Company's Common Stock on March 30, 2000 as reported
on the Nasdaq National Market.
<PAGE>
The chart below details the calculations of the registration fee:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Number of Offering Price Aggregate
Securities Shares Per Share Offering Price
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Shares issuable pursuant
to outstanding options 644,502 $23.25 $14,984,313
under the 1998 Non-Officer
Stock Option Plan
- --------------------------------------------------------------------------------
Shares issuable pursuant
to unissued options under 5,498 $46.1875 $253,939
the 1998 Non-Officer Stock
Option Plan
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION
STATEMENT ON FORM S-8 (NO. 333-68841) AND
ANNUAL REPORT ON FORM 10-KSB FOR FISCAL YEAR
ENDED DECEMBER 31, 1999 NO. (000-26008)
The contents of Registration Statement on Form S-8 No. (333-68841) filed with
the Securities and Exchange Commission on December 14, 1998 and the Registrant's
Annual Report for fiscal year ended December 31, 1999, filed with the Securities
and Exchange Commission on March 21, 2000 No. 000-26008 are incorporated by
reference herein.
EXHIBITS
Exhibit
Number
4.1* Certificate of Incorporation of the Company.
4.2** Certificate of Designation of Series A Junior Participating
Preferred Stock.
4.3* Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1 1998 Non-Officer Stock Option Plan.
99.2 Form of Statutory Stock Option Agreement under the 1998 Non-Officer
Stock Option Plan.
_________________
* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, (333-91898), filed with the SEC on May 4, 1995.
** Document incorported by reference from the Company's Form 8-K (No.
0000-26008), filed with the SEC on June 15, 1998.
<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 Palo Alto, State of California, on April 5, 2000.
CLICKACTION, INC.
By: /s/ Gregory W. Slayton
--------------------------
Gregory W. Slayton
Title: President, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gregory W. Slayton and Sharon S. Chiu, 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.
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.
Signature Title Date
/s/ Gregory W. Slayton President, Chief
- ---------------------- Executive Officer April 5, 2000
Gregory W. Slayton and Director (Principal
Executive Officer)
/s/ Sharon S. Chiu Vice President, Chief
- ---------------------- Financial Officer and April 5, 2000
Sharon S. Chiu Secretary (Principal Financial
Officer and Accounting Officer)
/s/ David P. Mans
- ---------------------- Chairman of the Board April 5, 2000
David P. Mans
<PAGE>
/s/ Edward Neihaus
- ---------------------- Director April 5, 2000
Edward Neihaus
/s/ John J. Katsaros
- ---------------------- Director April 5, 2000
John J. Katsaros
/s/ Donald F. Wood
- ---------------------- Director April 5, 2000
Donald F. Wood
/s/ Emerick M. Woods
- ---------------------- Director April 5, 2000
Emerick M. Woods
/s/ Howard Love
- ---------------------- Director April 5, 2000
Howard Love
<PAGE>
EXHIBIT INDEX
Exhibit
Number
4.1* Certificate of Incorporation of the Company.
4.2** Certificate of Designation of Series A Junior Participating Preferred
Stock.
4.3* Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1 1998 Non-Officer Stock Option Plan.
99.2 Form of Statutory Stock Option Agreement under the 1998 Non-Officer Stock
Option Plan.
_________________
* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, (333-91898), filed with the SEC on May 4, 1995.
** Document incorporated by reference from the Company's Form 8-K (No.
0000-26008), filed with the SEC on June 15, 1998.
<PAGE>
April 5, 2000 Exhibit 5.1
ClickAction Inc.
2197 East Bayshore Road
Palo Alto, CA 94303
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by ClickAction 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 650,000 shares of the Company's Common
Stock, $.001 par value (the "Shares"), pursuant to its 1998 Non-Officer Stock
Option Plan, as amended (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, the Company's Certificate of Incorporation, as amended, and
By-laws, 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 Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ James C. Kitch
-------------------
James C. Kitch
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation herein by reference of our report dated February
11, 2000, relating to the consolidated balance sheets of ClickAction Inc. as of
December 31, 1999 and 1998, and the related consolidated statements of
operations, stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1999, which report appears in the December
31, 1999, annual report on Form 10-KSB of ClickAction Inc.
/s/ KPMG LLP
Mountain View, California
March 31, 2000
<PAGE>
CLICKACTION INC.
1998 NON-OFFICER STOCK OPTION PLAN
As Adopted Effective on November 13, 1998
Stockholder Approval Not Required
As Amended and Restated by the Board through March 2000
Termination Date: November 12, 2013
1. PURPOSES.
(a) The purpose of the Plan is to provide a means by which selected Employees
(including Officers) and Consultants may be given an opportunity to benefit
from increases in value of the common stock of the Company ("Common Stock")
through the granting of Nonstatutory Stock Options. Only Nonstatutory Stock
Options may be granted hereunder.
(b) The Company, by means of the Plan, seeks to retain the services of persons
who are eligible to receive Options, to secure and retain the services of such
persons and to provide incentives for such persons to exert maximum efforts for
the success of the Company and its Affiliates.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Affiliate" shall mean any parent corporation or subsidiary corporation of
the Company, whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f) respectively, of the Code, or such other parent
corporation or subsidiary corporation designated by the Board.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Committee" shall mean a committee of one or more members of the Board
appointed by the Board in accordance with the provisions of the Plan.
(e) "Common Stock" shall mean the Common Stock of the Company.
(f) "Company" shall mean ClickAction Inc., a Delaware corporation.
(g) "Consultant" shall mean any person, including an advisor, (i) engaged by
the Company or an Affiliate to render consulting or advisory services and who is
compensated for such services. However, the term "Consultant" shall not include
either Directors who are not compensated by the Company for their services as
Directors or Directors who are merely paid a director's fee by the Company for
their services as Directors.
(h) "Continuous Service" shall mean the absence of any interruption or
termination of service to the Company or an Affiliate, whether as an Employee,
Director or Consultant. The Board or the Chief Executive Officer of the
Company may determine, in that party's sole discretion, whether Continuous
Service shall be considered interrupted in the case of: (i) any leave of
absence approved by the Board or the Chief Executive Officer of the Company,
including sick leave, military leave, or any other personal leave; or (ii)
transfers between the Company, Affiliates or their successors.
(i) "Director" shall mean a member of the Board.
(j) "Disability" shall mean the inability of a person, in the opinion of a
qualified physical acceptable to the Company, to perform the major duties of
that person's position with the Company or an Affiliate of the Company
because of the sickness or injury of the person.
<PAGE>
(k) "Employee" shall mean any person employed by the Company or by any
Affiliate. Mere service as a Director or payment of a director's fee by the
Company or an Affiliate shall not be sufficient to constitute "employment" by
the Company or an Affiliate.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
(m) "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
traded on the Nasdaq National Market or the Nasdaq SmallCap 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
exchange or market (or the exchange or market with the greatest volume of
trading in Common Stock) on the 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) In the absence of such markets for the Common Stock, the Fair Market
Value shall be determined in good faith by the Board.
(n) "Nonstatutory Stock Option" shall mean 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.
(o) "Officer" means a person who possesses the authority of an "officer" as that
term is used in Rule 4460(i)(1)(A) of the Rules of the National Association of
Securities Dealers, Inc. For purposes of the Plan, a person in the position of
"Vice President" or higher shall be classified as an "Officer" unless the Board
or Committee expressly finds that such person does not possess the authority of
an "officer" as that term is used in Rule 4460(i)(1)(A) of the Rules of the
National Association of Securities Dealers, Inc.
(p) "Option" shall mean a Nonstatutory Stock Option granted pursuant to the
Plan.
(q) "Option Agreement" shall mean a written agreement between the Company and an
Optionholder evidencing the terms and conditions of an individual Option grant.
Each Option Agreement shall be subject to the terms and conditions of the Plan.
(r) "Optionholder" shall mean an Employee or Consultant who receives an Option
pursuant to the Plan.
(s) "Plan" shall mean this ClickAction Inc. 1998 Non-Officer Stock Option Plan.
(t) "Rule 16b-3" shall mean Rule 16b-3 promulgated under the Exchange Act or
any successor to Rule 16b-3, as in effect from time to time.
(u) "Securities Act" shall mean the Securities Act of 1933, as amended.
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 eight hundred
sixty-five thousand (865,000) shares of Common Stock. The shares of Common
Stock subject to the Plan may be authorized, but unissued, or reacquired Common
Stock. If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased shares of Common Stock
that were subject thereto shall, unless the Plan shall have been terminated,
become available for future grant under the Plan.
<PAGE>
4. ADMINISTRATION OF THE PLAN.
(a) Procedure. The Plan shall be administered by the Board. The Board may
appoint a Committee consisting of not less than two (2) members of the Board to
administer the Plan on behalf of the Board, subject to such terms and conditions
as the Board may prescribe. At the discretion of the Board, the Committee may
consist solely of two or more Non-Employee Directors in accordance with Rule
16b-3. Once appointed, the Committee shall continue to serve until otherwise
directed by the Board. From time to time the Board may increase the size of the
Committee and appoint additional members thereof, remove members (with or
without cause), and appoint new members in substitution therefor, fill
vacancies however caused and remove all members of the Committee, and
thereafter directly administer the Plan. Notwithstanding anything in this
Section 4 to the contrary, at any time 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 Options to all Employees and Consultants who
are not then subject to Section 16 of the Exchange Act.
(b) Powers of the Board. Subject to the provisions of the Plan, the Board
shall have such authority with regard to the Plan and the options as determined
by the Board, including the authority, in its discretion: (i) to grant options
under the Plan, provided, however, that only nonstatutory options may be granted
under the Plan; (ii) to determine, upon review of relevant information
and in accordance with subsection 2(l) of the Plan, the Fair Market Value of
the Common Stock; (iii) to determine the exercise price per share of Options to
be granted, which exercise price shall be determined in accordance with
subsection 8(a) of the Plan; (iv) to determine the Employees or Consultants to
whom, and the time or times at which, Options shall be granted and the number of
shares of Common Stock to be represented by each Option, provided that no
Options may be granted to persons who are neither Employees nor Consultants;
(v) to interpret the Plan; (vi) to prescribe, amend and rescind rules and
regulations relating to the Plan; (vii) to determine the terms and provisions
of each Option granted (which need not be identical) in accordance with the
Plan, and, with the consent of the holder thereof with respect to any adverse
change, modify or amend each Option; (viii) to accelerate or defer (the latter
with the consent of the Optionholder) the exercise date and vesting of any
Option; (ix) to authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Option previously granted by
the Board; and (x) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(c) Effect of Board's Decision. All decisions, determinations and
interpretations of the Board shall be final and binding on all Optionholders
and any other holders of any Options granted under the Plan.
5. ELIGIBILITY.
Options may be granted only to Employees (including Officers) or Consultants as
defined in Section 2 hereof. An Optionholder who has been granted an Option
may, if he or she is otherwise eligible, be granted an additional Option or
Options. Notwithstanding the foregoing, the aggregate number of shares of
Common Stock issued pursuant to Options granted to Officers cannot exceed forty
percent (40%) of the number of shares of Common Stock reserved for issuance
under the Plan as determined at the time of each issuance to an Officer,
except that there shall be excluded from this calculation shares of Common
Stock issued to Officers not previously employed by the Company pursuant to
Options granted as an inducement essential to such individuals entering into
employment contracts with the Company.
The Plan shall not confer upon any Optionholder any right with respect to
continuation of employment or consultancy by the Company, nor shall it interfere
in any way with the Optionholder's right or the Company's right to terminate the
Optionholder's employment at any time or the Optionholder's consultancy
pursuant to the terms of the Consultant's agreement with the Company.
<PAGE>
6. TERM OF THE PLAN.
The Plan shall become effective upon its adoption by the Board. It shall
continue in effect for a term of fifteen (15) years unless sooner terminated
under Section 13 of the Plan.
7. TERM OF OPTION.
The term of each Option shall be ten (10) years from the date of grant thereof
or such shorter term as may be provided in the Option Agreement.
8. EXERCISE PRICE, CONSIDERATION AND VESTING.
(a) Exercise Price. The exercise price per share of the shares of Common Stock
to be issued pursuant to exercise of an Option shall be no less than eighty-
five percent (85%) of the Fair Market Value per share on the date of grant.
(b) Consideration. The consideration to be paid for the shares of Common Stock
to be issued upon exercise of an Option, including the method of payment, shall
be determined by the Board and may consist entirely of (i) cash or check; (ii)
promissory note (except that payment of the Common Stock's "par value",
as defined in the Delaware General Corporation Law, shall not be made by
deferred payment); (iii) other shares of Common Stock having a Fair Market
Value on the date of surrender equal to the aggregate exercise price of the
shares of Common Stock as to which the Option shall be exercised, including by
delivering to the Company an attestation of ownership of owned and
unencumbered shares of Common Stock in a form approved by the Company; (iv)
payment pursuant to a program developed under Regulation T as promulgated by
the Federal Reserve Board which, prior to the issuance of Common Stock,
results in either the receipt of cash (or check) by the Company or the
receipt of irrevocable instructions to pay the aggregate exercise price to the
Company from the sales proceeds; (v) any combination of such methods of
payment; or (vi) such other consideration and method of payment for the
issuance of shares of Common Stock to the extent permitted under applicable
law. In making its determination as to the type of consideration to accept,
the Board shall consider if acceptance of such consideration may be
reasonably expected to benefit the Company. Unless otherwise specifically
provided in the Option Agreement, the purchase price of Common Stock acquired
pursuant to an Option that is paid by delivery to the Company of other Common
Stock acquired, directly or indirectly from the Company, shall be paid only
by shares of Common Stock that have been held for more than six (6) months
(or such longer or shorter period of time required to avoid a
charge to earnings for financial accounting purposes).
(c) Vesting. The total number of shares of Common 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 of Common Stock allotted
to that period, and may be exercised with respect to some or all of the shares
of Common Stock 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 8(c) are subject to any Option
provisions governing the minimum number of shares of Common Stock as to which
an Option may be exercised.
9. EXERCISE OF OPTION.
(a) Procedure for Exercise; Rights as a Stockholder. Any Option granted
hereunder shall be exercisable at such times and under such conditions as
determined by the Board, including performance criteria with respect to the
Company and/or the Optionholder, and as shall be permissible under the terms of
the Plan.
An Option may not be exercised for a fraction of a share of Common Stock.
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 of Common
Stock with respect to which the Option is exercised has been received by the
<PAGE>
Company. Full payment may, as authorized by the Board, consist of any
consideration and method of payment allowable under subsection 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 of Common Stock, no right to vote or receive
dividends or any other rights as a stockholder shall exist with respect to the
shares of Common Stock covered by the Option, notwithstanding the 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 of Common Stock that thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of shares of Common Stock
as to which the Option is exercised.
The Option may, but need not, include a provision whereby the Optionholder may
elect to exercise at any time while an Employee or Consultant (or while an
officer or director of the Company) the Option as to any part or all of the
shares of Common Stock subject to the Option, subject to a repurchase right in
favor of the Company on such terms as the Board shall establish.
(b) Termination of Continuous Service. In the event an Optionholder's
Continuous Service terminates for any reason other than upon the Optionholder's
death or Disability, the Optionholder may, but only within three (3) months (or
such other period of time as is determined by the Board) after the date the
Optionholder's Continuous Service terminates, exercise the Option to the extent
that the Optionholder was entitled to exercise it at the date of such
termination. To the extent that the Optionholder was not entitled to exercise
the Option at the date of such termination, or if the Optionholder does not
exercise such Option (which the Optionholder was entitled to exercise) within
the time specified herein, the Option shall terminate.
(c) Extension of Termination Date. An Optionholder's Option Agreement may also
provide that if the exercise of the Option following the termination of the
Optionholder's Continuous Service (other than upon the Optionholder's death or
Disability) would be prohibited at any time solely because the issuance of
shares of Common Stock 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 Option Agreement, or (ii)
the expiration of a period of three (3) months after the termination of the
Optionholder's Continuous Service during which the exercise of the Option would
not be in violation of such registration requirements.
(d) Death of Optionholder. In the event an Optionholder's Continuous Service
terminates as a result of the Optionholder's death, the Option may be exercised
at any time within eighteen (18) months (or such other period of time as is
determined by the Board) following the date of death, by the Optionholder's
estate or by a person who acquired the right to exercise the Option by bequest
or inheritance, to the extent that the Optionholder was entitled to exercise
it at the date of such termination. To the extent that the Optionholder was not
entitled to exercise the Option at the date of such termination, or if the
Option is not exercised (to the extent the Optionholder was entitled to
exercise) within the time specified herein, the Option shall terminate.
(e) Disability of Optionholder. In the event that the Continuous Service of
an Optionholder terminates as a result of the Optionholder's Disability, the
Optionholder may, but only within twelve (12) months (or such other period of
time as is determined by the Board) after the date the Optionholder's Continuous
Service terminates on account of such Disability, exercise the Option to the
extent that the Optionholder was entitled to exercise it at the date of such
termination. To the extent that the Optionholder was not entitled to exercise
the Option at the date of such termination, or if the Optionholder does not
exercise such Option (which the Optionholder was entitled to exercise) within
the time specified herein, the Option shall terminate.
(f) Withholding Obligations. To the extent provided by the terms of the Option
Agreement, an Optionholder may satisfy any federal, state or local tax
withholding obligation relating to the exercise or acquisition of Common Stock
<PAGE>
under an Option by any of the following means (in addition to the Company's
right to withhold from any compensation paid to the Participant by the Company)
or by a combination of such means: (i) tendering a cash payment; (ii)
authorizing the Company to withhold shares of Common Stock from the shares of
Common Stock otherwise issuable to the Optionholder as a result of the exercise
or acquisition of Common Stock under the Option, provided, however, that no
shares of Common Stock are withheld with a value exceeding the minimum amount of
tax required to be withheld by law; or (iii) delivering to the Company owned and
unencumbered shares of Common Stock.
10. TRANSFERABILITY OF OPTIONS.
Except as otherwise expressly provided in the terms of the Option Agreement,
the Option 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 Optionholder, only
by the Optionholder. Notwithstanding the foregoing, the Optionholder 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 Optionholder,
shall thereafter be entitled to exercise the Option.
11. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) Capitalization Adjustments. If any change is made in the Common Stock
subject to the Plan, or subject to any Option, 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 securities subject to the Plan,
and the outstanding Options will be appropriately adjusted in the class(es) and
number of securities and price per share of Common Stock subject to such
outstanding Options. The Board shall make such adjustments, and its
determination shall be final, binding and conclusive. (The conversion of any
convertible securities of the Company shall not be treated as a transaction
"without receipt of consideration" by the Company.)
(b) Dissolution or Liquidation. In the event of a dissolution or liquidation of
the Company, then all outstanding Options shall terminate immediately prior to
such event.
(c) Asset Sale, Merger, Consolidation or Reverse Merger. In the event of (i) a
sale, lease or other disposition of all or substantially all of the assets of
the Company, (ii) a merger or consolidation in which the Company is not the
surviving corporation, or (iii) a reverse merger in which the Company is the
surviving corporation but the shares of 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 any surviving
corporation or acquiring corporation shall assume any Options outstanding under
the Plan or shall substitute similar Options (including an award to acquire the
same consideration paid to the shareholders in the transaction described in this
subsection 11(c) for those outstanding under the Plan). In the event any
surviving corporation or acquiring corporation refuses to assume such Options or
to substitute similar Options for those outstanding under the Plan, then with
respect to Options held by Optionholders whose Continuous Service has not
terminated, the vesting of such Options (and, if applicable, the time during
which such Options may be exercised) shall be accelerated in full, and the
Options shall terminate if not exercised (if applicable) at or prior to such
event. With respect to any other Options outstanding under the Plan, such
Options shall terminate if not exercised (if applicable) prior to such event.
Notwithstanding the foregoing, the Board shall at all times have the complete
and sole discretion to accelerate the vesting and exercisability of some or all
of the shares of Common Stock subject to any or all of then outstanding Options
granted under the Plan and to establish the date as of which any such Option
shall terminate (and all other terms and conditions relating to such
termination.)
<PAGE>
12. TIME OF GRANTING OPTIONS.
The date of grant of an Option shall, for all purposes, be the date on which the
Board makes the determination granting such Option. 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 amend or terminate the Plan from
time to time in such respects as the Board may deem advisable.
(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 Optionholder and the Board, which
agreement must be in writing and signed by the Optionholder and the Company.
(c) No Impairment of Rights. Rights under any Option granted before amendment
of the Plan shall not be impaired by any amendment of the Plan unless (ii) the
Company requests the consent of the Optionholder and (ii) the Optionholder
consents in writing.
14. CONDITIONS UPON ISSUANCE OF SHARES.
The Company may require any Optionholder, or any person to whom an Option is
transferred under Section 10, as a condition of exercising any such Option, (1)
to give written assurances satisfactory to the Company as to the Optionholder'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 Option; and (2) to give
written assurances satisfactory to the Company stating that such person is
acquiring the shares of Common Stock subject to the Option for such person's
own account and not with any present intention of selling or otherwise
distributing the shares. The foregoing requirements, and any assurances given
pursuant to such requirements, shall be inoperative if (i) the issuance of the
shares of Common Stock upon the exercise of the Option has been registered under
a then currently effective registration statement under the Securities Act, or
(ii) 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 require the Optionholder to
provide such other representations, written assurances or information which the
Company shall determine is necessary, desirable or appropriate to comply with
applicable securities and other laws as a condition of granting an Option to
such Optionholder or permitting the Optionholder to exercise such Option. The
Company may, upon advice of counsel to the Company, place legends on stock
certificates issued 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 shares.
15. RESERVATION OF SHARES.
The Company, during the term of this Plan, will at all times reserve and keep
available such number of shares of Common Stock as shall be sufficient to
satisfy the requirements of the Plan.
<PAGE>
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 of Common Stock 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. OPTION AGREEMENT.
Options shall be evidenced by written Option Agreements in such form or forms as
the Board or the Committee shall approve.
17. EFFECTIVE DATE.
The Plan shall become effective on November 13, 1998.
<PAGE>
ClickAction Inc.
1998 NON-OFFICER STOCK OPTION PLAN
STOCK OPTION AGREEMENT
(NONSTATUTORY STOCK OPTION)
Pursuant to the Stock Option Grant Notice ("Grant Notice") and this Stock Option
Agreement, ClickAction Inc. (the "Company") has granted you an option under its
1998 Non-Officer Stock Option Plan (the "Plan") to purchase the number of shares
of the Company's Common Stock indicated in the Grant Notice at the exercise
price indicated in the Grant Notice. Defined terms not explicitly defined in
this Stock Option Agreement but defined in the Plan shall have the same
definitions as in the Plan.
The details of your option are as follows:
1. VESTING. Subject to the limitations contained herein, your option will vest
as provided in the Grant Notice, provided that vesting will cease upon the
termination of your Continuous Service.
2. NUMBER OF SHARES AND EXERCISE PRICE. The number of shares subject to your
option and your exercise price per share referenced in the Grant Notice may be
adjusted from time to time for Capitalization Adjustments, as provided in the
Plan.
3. EXERCISE PRIOR TO VESTING ("EARLY EXERCISE"). If permitted in the Grant
Notice (i.e., the "Exercise Schedule" indicates that "Early Exercise" of your
option is permitted) and subject to the provisions of this option, you may elect
at any time that is both (i) during the period of your Continuous Service and
(ii) during the term of your option, to exercise all or part of your option,
including the nonvested portion of your option; provided, however, that:
(a) a partial exercise of your option shall be deemed to cover first vested
shares and then the earliest vesting installment of unvested shares;
(b) any shares so purchased from installments which have not vested as of the
date of exercise shall be subject to the purchase option in favor of the Company
as described in the Company's form of Early Exercise Stock Purchase Agreement;
and
(c) you shall enter into the Company's form of Early Exercise Stock Purchase
Agreement with a vesting schedule that will result in the same vesting as if
no early exercise had occurred.
4. METHOD OF PAYMENT. Payment of the exercise price is due in full upon
exercise of all or any part of your option. You may elect to make payment of
the exercise price in cash or by check or in any other manner permitted by the
Grant Notice, which may include one or more of the following:
(a) In the Company's sole discretion at the time your option is exercised and
provided that at the time of exercise the Common Stock is publicly traded and
quoted regularly in The Wall Street Journal, pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board which, prior to
the issuance of Common Stock, results in either the receipt of cash (or check)
<PAGE>
by the Company or the receipt of irrevocable instructions to pay the aggregate
exercise price to the Company from the sales proceeds.
(b) Provided that at the time of exercise the Common Stock is publicly traded
and quoted regularly in The Wall Street Journal, by delivery of already-owned
shares of Common Stock, that either have been held for the period required to
avoid a charge to the Company's reported earnings (generally six months) or
were not acquired, directly or indirectly, from the Company, owned free and
clear of any liens, claims, encumbrances or security interests, and valued at
its Fair Market Value on the date of exercise. "Delivery" for these purposes,
in the sole discretion of the Company at the time your option is exercised,
shall include delivery to the Company of your attestation of ownership of such
shares of Common Stock in a form approved by the Company. Notwithstanding the
foregoing, your option may not be exercised by tender to the Company of Common
Stock to the extent such tender would constitute a violation of the provisions
of any law, regulation or agreement restricting the redemption of the Company's
stock.
(c) Pursuant to the following deferred payment alternative:
(i) Not less than one hundred percent (100%) of the aggregate exercise price,
plus accrued interest, shall be due four (4) years from date of exercise or, at
the Company's election, upon termination of your Continuous Service.
(ii) 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 portion of any amounts other than
amounts stated to be interest under the deferred payment arrangement.
(iii) 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 be made in cash and not by deferred payment.
(iv) In order to elect the deferred payment alternative, you must, as a part of
your written notice of exercise, give notice of the election of this payment
alternative and, in order to secure the payment of the deferred exercise price
to the Company hereunder, if the Company so requests, you must tender to the
Company a promissory note and a security agreement covering the purchased
shares, both in form and substance satisfactory to the Company, or such other or
additional documentation as the Company may request.
5. WHOLE SHARES. Your option may only be exercised for whole shares.
6. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, your option may not be exercised unless the shares issuable
upon exercise of your option are then registered under the Securities Act or, if
such shares are not then so registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements of the
Securities Act. The exercise of your option must also comply with other
applicable laws and regulations governing the option, and the option may not be
exercised if the Company determines that the exercise would not be in material
compliance with such laws and regulations.
<PAGE>
7. TERM. The term of your option commences on the Date of Grant and expires
upon the earliest of the following:
(a) three (3) months after the termination of your Continuous Service for any
other reason, provided that if during any part of such three- (3-)month period
the option is not exercisable solely because of the condition set forth in
paragraph 6, the option shall not expire until the earlier of the Expiration
Date or until it shall have been exercisable for an aggregate period of three
(3) months after the termination of your Continuous Service;
(b) twelve (12) months after the termination of your Continuous Service due to
Disability;
(c) eighteen (18) months after your death if you die either during your
Continuous Service or within three (3) months after your Continuous Service
terminates for reason other than Cause;
(d) the Expiration Date indicated in the Grant Notice; or
(e) the tenth (10th) anniversary of the Date of Grant.
8. EXERCISE.
(a) You may exercise the vested portion of your option (and the unvested portion
of your option if the Grant Notice so permits) during its term by delivering a
Notice of Exercise (in a form designated by the Company) together with the
exercise price to the Secretary of the Company, or to such other person as the
Company may designate, during regular business hours, together with such
additional documents as the Company may then require.
(b) By exercising your option you agree that, as a condition to any exercise of
your option, the Company may require you to enter an arrangement providing for
the payment by you to the Company of any tax withholding obligation of the
Company arising by reason of (1) the exercise of your 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 shares acquired upon such exercise.
9. TRANSFERABILITY. Your option is not transferable, except by will or by the
laws of descent and distribution, and is exercisable during your life only by
you. Notwithstanding the foregoing, 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 your
option.
10. RIGHT OF FIRST REFUSAL/RIGHT OF REPURCHASE. Vested shares that are received
upon exercise of your option are subject to any right of first refusal that may
be described in the Company's bylaws in effect at such time the Company elects
to exercise its right. The Company's right of first refusal shall expire on the
date of the first registration of an equity security of the Company under
Section 12 of the Exchange Act. In addition, to the extent provided in the
Company's bylaws as amended from time to time, the Company shall have the right
to repurchase all or any part of the shares received pursuant to the exercise of
your option.
11. OPTION NOT A SERVICE CONTRACT. Your option is not an employment or service
contract, and nothing in your option shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the Company
<PAGE>
or an Affiliate, or of the Company or an Affiliate to continue your employment.
In addition, nothing in your option shall obligate the Company or an Affiliate,
their respective shareholders, Boards of Directors, Officers or Employees to
continue any relationship that you might have as a Director or Consultant for
the Company or an Affiliate.
12. WITHHOLDING OBLIGATIONS.
(a) At the time your option is exercised, in whole or in part, or at any time
thereafter as requested by the Company, you hereby authorize withholding from
payroll and any other amounts payable to you, and otherwise agree to make
adequate provision for (including by means of a "cashless exercise" pursuant to
a program developed under Regulation T as promulgated by the Federal Reserve
Board to the extent permitted by the Company), any sums required to satisfy the
federal, state, local and foreign tax withholding obligations of the Company or
an Affiliate, if any, which arise in connection with your option.
(b) Upon your request and subject to approval by the Company, in its sole
discretion, and compliance with any applicable conditions or restrictions of
law, the Company may withhold from fully vested shares of Common Stock otherwise
issuable to you upon the exercise of your option a number of whole shares having
a Fair Market Value, determined by the Company as of the date of exercise, not
in excess of the minimum amount of tax required to be withheld by law. If the
date of determination of any tax withholding obligation is deferred to a date
later than the date of exercise of your option, share withholding pursuant to
the preceding sentence shall not be permitted unless you make a proper and
timely election under Section 83(b) of the Code, covering the aggregate number
of shares of Common Stock acquired upon such exercise with respect to which such
determination is otherwise deferred, to accelerate the determination of such tax
withholding obligation to the date of exercise of your option. Notwithstanding
the filing of such election, shares shall be withheld solely from fully vested
shares of Common Stock determined as of the date of exercise of your option that
are otherwise issuable to you upon such exercise. Any adverse consequences to
you arising in connection with such share withholding procedure shall be your
sole responsibility.
(c) Your option is not exercisable unless the tax withholding obligations of the
Company and/or any Affiliate are satisfied. Accordingly, you may not be able to
exercise your option when desired even though your option is vested, and the
Company shall have no obligation to issue a certificate for such shares or
release such shares from any escrow provided for herein.
13. NOTICES. Any notices provided for in your option or the Plan shall be given
in writing and shall be deemed effectively given upon receipt or, in the case of
notices delivered by the Company to you, five (5) days after deposit in the
United States mail, postage prepaid, addressed to you at the last address you
provided to the Company.
14. GOVERNING PLAN DOCUMENT. Your option is subject to all the provisions of
the Plan, the provisions of which are hereby made a part of your option, and is
further subject to all interpretations, amendments, rules and regulations which
may from time to time be promulgated and adopted pursuant to the Plan. In the
event of any conflict between the provisions of your option and those of the
Plan, the provisions of the Plan shall control.
