EXHIBIT 99.3
FORM OF INCENTIVE STOCK OPTION AGREEMENT
VALUECLICK, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Agreement") is made and
entered into to be effective as of the __ day of ________, 1999, (the "Effective
Date"), by and between ValueClick, Inc., a California corporation (the
"Company"), and ______________ (the "Optionee"), pursuant to the Company's 1999
Stock Option Plan (the "Plan"), which reserves for issuance to persons serving
the Company as employees certain shares of the Company's Common Stock
(hereinafter called the "Common Stock").
R E C I T A L
The Company desires to carry out the purposes of the Plan by affording
Optionee an opportunity to purchase shares of Common Stock by means of the grant
of an incentive stock option, as hereinafter provided.
A G R E E M E N T
Based upon the facts and premises described above and the mutual
covenants below, the parties hereto do hereby agree as follows:
1. GRANT OF OPTION
The Company hereby grants to Optionee the right and option (hereinafter
called the "Option") to purchase all or any part of an aggregate of
_________________ (_______) shares of Common Stock (such number being subject to
adjustment as provided in Section 7 hereof and hereinafter called the "Option
Shares") on the terms and conditions herein set forth. The Option is intended to
qualify as an "incentive stock option" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. PURCHASE PRICE
The purchase price of the Option Shares shall be
_______________________________ ($_____) per share, which price has been
determined by the Stock Option Committee (hereinafter called the "Committee")
appointed by the Board of Directors (the "Board") to be not less than __________
percent (___%) of the fair market value of the Option Shares as of the date on
which this Option was granted.
3. TERMS OF OPTION
(a) OPTION TERM. This Option shall be exercisable in
accordance with its terms for a period of ____ (__) calendar years from and
after the Effective Date (the "Option Term"). Unless it is earlier terminated as
provided in Sections 5, 6, or 7 below, this Option shall terminate, and all
rights of Optionee hereunder shall expire, at the close of business on the last
day of the Option Term, or when all of the Option Shares have been acquired,
whichever first occurs.
(b) VESTING SCHEDULE. Subject to the provisions of paragraph
(a), above and Sections 3(e) and 8, below, this Option shall be and become
exercisable as follows:
(i) Except as provided in Sections 6(a) and
7(c), below, the Option may not be exercised, in
whole or in part, prior to the date which is one (1)
calendar year after the Effective Date (the "Initial
Exercise Date");
(ii) During the calendar year commencing
with the Initial Exercise Date, the Optionee shall be
entitled to exercise the Option to the extent of
twenty percent (20%) of all of the Options granted
hereby; and each of the next four (4) calendar years
thereafter, commencing with the anniversary of the
Initial Exercise Date, the Optionee shall be entitled
to exercise an additional twenty percent (20%) of all
of the Options granted hereby.
(iii) On and after the fifth (5th)
anniversary of the Initial Exercise Date, and until
the expiration of the Option Term, the Optionee shall
be entitled to exercise this Option to purchase all
of the Option Shares to which the Optionee is then
entitled hereunder.
(c) MINIMUM OPTION EXERCISE. This Option may be exercised as
to any or all of the Option Shares then available for exercise as set forth
above; PROVIDED, HOWEVER, that if at any time this Option is exercised for fewer
than all of the then-available Option Shares, it cannot be exercised for less
than one hundred (100) Option Shares unless it is being then exercised for all
of the Option Shares then remaining available under this Agreement.
(d) PAYMENT OF PURCHASE PRICE. The purchase price of the
Option Shares as to which this Option is at any time exercised shall be paid in
full at time of exercise, as provided in Section 8, below. Payment shall be made
in cash money of the United States of America.
(e) NO EXERCISE AFTER TERMINATION OF EMPLOYMENT. Except as
provided in Sections 5 and 6, below, this Option may not be exercised at any
time unless the Optionee is then in the service of the Company as an employee
and shall have been continuously employed by the Company or a subsidiary since
the Effective Date.
(f) NO RIGHTS AS A SHAREHOLDER. The Optionee shall not have
any of the rights of a shareholder with respect to the Option Shares unless and
until this Option has been exercised with respect to such shares and
certificates representing such Option Shares have been issued and delivered to
the Optionee by the Company.
4. NONTRANSFERABILITY
This Agreement, and the Options granted pursuant hereto, shall not be
transferable otherwise than by will or the laws of descent and distribution, and
they may be exercised, during the lifetime of the Optionee, only by the
Optionee. More particularly (but without limiting the generality of the
foregoing), these Options may not be assigned, transferred (except as provided
above), pledged, or hypothecated in any way, shall not be assignable by
operation of law, and shall not be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation, or other
disposition of the Options granted hereunder contrary to the provisions hereof,
and the levy of any execution, attachment or similar process upon them or upon
this Agreement, shall be null and void and without effect.
5. TERMINATION OF OPTIONEE'S EMPLOYMENT.
(a) EFFECT OF TERMINATION. Except as provided in Section 6, below, (i)
the Options granted hereunder may not be exercised by or on behalf of the
Optionee or by any other person or entity from or after the date on which the
Optionee's employment with the Company is terminated, regardless of the reason
for such termination, whether it is with or without cause, or whether it is at
the initiative of the Optionee or the Company, and (ii) from and after the time
and date of such termination, the Options granted hereby shall automatically
become void and invalid, without any requirement of prior or other notice to any
party.
(b) NO RIGHT TO FUTURE EMPLOYMENT. Nothing in this Agreement
or in the transactions taken pursuant hereto shall be construed to constitute or
be evidence of an agreement or understanding, express or implied, on the part of
the Company or its subsidiaries to continue utilizing the Optionee as an
employee or consultant for any specific period of time. Except as may otherwise
be agreed to in writing between the Company and the Optionee, any consulting
arrangement or full-time employment of the Optionee shall be terminable at the
will of the Company, with or without cause, and shall also be terminated by the
Optionee's resignation, death, or permanent disability.
6. DEATH OR DISABILITY OF OPTIONEE
(a) POST-TERMINATION EXERCISE. If, during the Option Term as
described in Section 3(a), above, the employment, consultancy, or Directorship
is terminated as a result of his or her (i) death, or (ii) disability as defined
in either Section 22(e)(3) of the Code or the Americans with Disabilities Act,
as amended (the "ADA"), then and in each such case this Option may be exercised
(to the extent that the Optionee shall have been entitled to do so at the date
of his or her death or disability) by the Optionee (or by the Optionee's
personal representatives, heirs, or legatees) at any time within one (1) year
after the Optionee's death or disability, but not after the termination date
described in Section 3(a), above.
(b) NO IMPLICATIONS CREATED OR INFERRED. The Company's
permission as described in Paragraph (a), above, to the Optionee to exercise
this Option after the termination of his or her employment shall not give rise
to any implication (or be admissible in any proceeding as an admission or as
evidence) as to whether the Optionee is or is not, or at any time was or was
not, (i) disabled as defined by the Code, state law, or the ADA, (ii) unable to
perform his or her job functions, or (iii) terminated because he or she could
not perform his or her job functions, or as to whether the Company has or has
not made reasonable efforts to accommodate any disability which the Optionee may
have had.
(c) POTENTIAL TAX EFFECTS. The Optionee understands that if he
or she is disabled as provided in the ADA or under state law, , but not as
defined in Section 22(e)(3) of the Code, then at some point after termination of
his employment the Option may convert from an incentive to a non-statutory stock
option; and upon any exercise of the Option thereafter federal (and possibly
state) income tax may be or become due on any difference between the then fair
market value of the Option Shares at the time of exercise and the Option
exercise price; and in such event Optionee agrees that he will obtain and rely
on tax advice from advisors who are independent of the Company.
7. ADJUSTMENTS UPON CHANGES IN CAPITAL STRUCTURE
(a) STOCK SPLITS AND LIKE EVENTS. In the event of a stock
dividend, stock split, reverse stock split, or reclassification, the aggregate
number and/or class of shares subject to this Option and the exercise price
prior to such occurrence shall be appropriately adjusted in accordance with the
terms of the Plan. The adjustment shall have the result that if Optionee
exercises a portion of the Option subsequent to the applicable event, then
Optionee shall pay the same aggregate exercise price to exercise the same
portion of the Option, and shall then receive the same class and proportionate
number of shares, as if Optionee had exercised that portion of the Option
immediately prior to such the event.
(b) RECAPITALIZATIONS; ASSUMPTION OF OPTIONS. In the event of any
(i) merger or consolidation
in which the Company is not the surviving
corporation (other than a merger or
consolidation with a wholly owned
subsidiary, a reincorporation of the Company
in a different jurisdiction, or other
transaction in which there is no substantial
change in the shareholders of the Company
and the options granted under this Plan are
assumed by the successor corporation in a
manner binding on all optionees);
(ii) dissolution or liquidation of the Company;
(iii) sale of substantially all of the assets of
the Company; or
(iv) other transaction which qualifies as a
"corporate transaction" under Section 424(a) of the
Code wherein the shareholders of the Company give up
all of their equity interest in the Company (except
for the acquisition, sale or transfer of all
or substantially all of the outstanding shares of the
Company):
then this Option, if still outstanding, may be assumed or replaced by the
successor corporation, which assumption or replacement shall be binding on
Optionee. In the alternative, the successor corporation may substitute an option
as nearly equivalent hereto as practicable.
(c) FAILURE OR REFUSAL TO ASSUME. In the event the successor
corporation, if any, fails or refuses to assume or substitute the Option, as
provided above, pursuant to a transaction described in Section 7(b)(i) above,
the Company shall provide for Optionee to have the right to exercise the Option
in full as to all of the shares subject to the Option, including shares as to
which the Option would not otherwise yet be exercisable pursuant to Section 3,
above. If the Option is made fully exercisable in such event in lieu of an
assumption or substitution of the Option by the successor corporation, the
Company shall notify Optionee that the Option shall be fully exercisable for a
period of fifteen (15) days from the date of the notice, and the Option shall
expire upon the expiration of that period.
(d) OTHER RIGHTS CREATED BY AGREEMENT. Subject to any greater
rights granted to Optionee under the foregoing provisions of this Section 7, in
the event of any transaction described in Section 7(b)(i), the Option, to the
extent outstanding, shall be treated as provided in the applicable agreement or
plan of merger, consolidation, dissolution, liquidation, sale of assets, or
other corporate transaction.
8. METHOD OF EXERCISING OPTION; INVESTMENT REPRESENTATION
(a) METHOD OF EXERCISE.
(i) Subject to the terms and conditions of this
Agreement, the Option may be exercised by writtennotice, delivered to the
Company at its main office. The notice shall (A) be in a form reasonably
satisfactory to the Company, (B) state the election to exercise the Option
and the number of shares in respect of which it is being exercised, (C) be
signed by the person or persons so exercising the Option, and (D) include the
representations described in paragraph (d) of this Section 8, below. In the
event the Option shall be exercised pursuant to Section 6 hereof after
Optionee's death or disability, the notice shall be accompanied by
appropriate proof of the right of the person or persons to exercise the
Option. All shares purchased upon the exercise of the Option as provided
herein shall be fully paid and nonassessable.
(ii) The notice shall be accompanied by payment of the
full purchase price of the Option Shares (and any tax due upon exercise),
which may be paid: (A) in cash or cash equivalent acceptable to the Company,
(B) at the discretion of the Company, with a promissory note secured by the
Option Shares being purchased, (C) at the discretion of the Company, with
outstanding stock of Company at such value as the Board of Directors shall
determine to be the fair market value of such stock on the date of exercise,
or (D) with a combination of any of the foregoing. If shares of outstanding
Common Stock are used as payment or part payment, and such shares were
acquired upon prior exercise of an option granted under the Plan, then such
shares (x) must have been owned by the Optionee for more than six (6) months
on the date of surrender and (y) must have an aggregate fair market value on
the date of surrender of not less than the aggregate exercise price of the
Option Shares as to which this Option is currently being exercised.
(iii) Subject to paragraph (b) of this Section 8,
below, the Company shall, within thirty (30) days after the Company
receives (A) a notice of exercise, in form and content reasonably
satisfactory to the Company, which complies with this Section 8 and (B)
payment in full of the Option exercise price as provided above, deliver a
certificate (or certificates) representing the shares as to which the Option
shall have been exercised, to the then-current Escrow Holder under the terms
of the Shareholder Buy-Sell Agreement referred to in Section 10, below.
(b) SECURITIES LAWS; APPROPRIATE REGISTRATION OR EXEMPTION
UNDER STATE LAW REQUIRED BEFORE EXERCISE. This Option shall not be exercisable
unless the Option Shares have been qualified and/or registered under the
securities laws of the state in which Optionee resides, or are exempt from such
qualification or registration. (The Company may, if permitted by such laws,
permit the exercise of this Option but postpone delivery of the Option Shares
and/or payment of the purchase price thereof, or may establish an escrow pending
such qualification and/or registration.) The qualification and/or registration
can typically, but not always, be effected within thirty (30) days; therefore
the Optionee is advised to periodically check with the Company to verify the
procedure the Company needs to follow in order to qualify and/or register the
Option Shares in the state in which the Optionee resides and to give the Company
at least thirty (30) days prior written notice of his or her intent to exercise
the Option. Upon the Optionee's agreement to exercise the Option, the Company
hereby agrees to use its reasonable, diligent efforts to promptly register
and/or qualify the Option Shares in the state in which the Optionee resides so
that the Option may be exercisable; but the Company shall have no liability to
the Optionee if, despite such efforts, the registration and/or qualification is
not obtained as promptly as desired by the Optionee. The certificates for the
shares shall be subject to any legend condition imposed by the securities law of
the state in which Optionee resides.
(c) TRANSFER RESTRICTIONS UNDER FEDERAL SECURITIES LAWS. The
shares purchasable upon the exercise of options granted under the Plan have not
been registered under the Federal Securities Act of 1933, as amended (the
"Act"). Therefore, unless the Option Shares are so registered prior to the
Optionee acquiring them by exercising an Option, the Option Shares shall be
subject to the following restrictions, and all certificates representing the
Option Shares shall bear a conspicuous legend containing said restrictions as
follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") IN
RELIANCE IN PART ON THE EXEMPTION PROVIDED BY RULE 701, OR REGISTERED
UNDER THE SECURITIES STATUTES OF ANY STATE (THE "STATE LAWS"). THE
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND CONSTITUTE RESTRICTED
SECURITIES FOR PURPOSES OF RULE 144. NEITHER THE SHARES NOR ANY
INTEREST THEREIN MAY BE TRANSFERRED, SOLD, OR OFFERED FOR SALE (1) IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER
THE ACT AND (2) IN THE ABSENCE OF QUALIFICATION OR REGISTRATION UNDER
THE STATE LAWS, WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT SUCH REGISTRATION AND/OR QUALIFICATION IS NOT
REQUIRED.
(d) INVESTMENT AND OTHER REPRESENTATIONS. Until registration
of the Option Shares under the Act, the Company shall require the Optionee (and
each subsequent transferee of the Shares) to represent IN THE NOTICE OF EXERCISE
that the Optionee (or his or her transferee) is acquiring the Option Shares for
the Optionee's (or his or her transferee's) own account, for investment, and not
for purposes of resale or distribution. The Company may prohibit any sale or
transfer of any interest in the Option Shares by a person so representing for
one year (or such longer time as the Company reasonably deems appropriate) if
such person does not demonstrate to the satisfaction of the Company that the
sale or transfer was due to changed circumstances from when such person made
such representation and that such representation was therefore truthfully made.
9. DISPOSITION OF SHARES; NOTICE OF DISPOSITION; WITHHOLDING TAXES
The Optionee shall notify the Company in writing of any sale or
transfer of any Option Shares which takes place either within two (2) years
following the Effective Date or within one year following the issuance of Option
Shares
pursuant to exercise of the Option. Such notice shall be given to the
Company within ten (10) days of the sale or transfer and shall set forth the
price and terms of any such sale or transfer. If any such transaction could
potentially act to disqualify the Option as an incentive stock option (a
"Disqualifying Disposition") the Company shall be entitled, in its sole
discretion, to require Optionee or his heirs, executors, administrators,
trustees, and transferees, and their successors in interest with respect to the
Option Shares, to pay any applicable withholding taxes as a condition precedent
to its obligation to issue the Option Shares.
10. MARKET STAND-OFF.
The Optionee shall not, unless otherwise authorized in writing
by the Company, sell or otherwise transfer or dispose of any Option Shares
during a period of up to one hundred eighty (180) days following the effective
date of a registration statement of the Company filed under the Act; PROVIDED
HOWEVER, that such agreement shall only be applicable to the Company's initial
registration statement (the "First Registration Statement") and registration
statements filed within three (3) years after the effective date of the First
Registration Statement and if all officers and directors of the Company enter
into similar agreements. In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the Option Shares until
the end of such six-month period and place an appropriate legend on any share
certificate representing the Option Shares. The restrictions contained in this
Section 12 shall be referred to as the "Market Stand-Off."
11. NOTICES
Any notice required to be given pursuant to this Agreement
shall be deemed effectively given (i) to the Company upon personal delivery to
the Company's President, or three (3) days after it is deposited in the U.S.
mail, by registered or certified mail, postage prepaid and addressed to the
Company at it principal executive office, Attention: President, and (ii) to the
Optionee upon personal delivery or three (3) days after it is deposited in the
U.S. mail, by registered or certified mail, postage prepaid and addressed to
Optionee at the most recent address of Optionee appearing on the records of the
Company. Either party may designate another address for purposes of receiving
notice under this section by giving written notice to the other party thereof in
accordance with this section.
12. PRECAUTIONARY TAX ELECTION.
(a) If this Option qualifies as an ISO, the Company expects
that the Optionee will (under the current Code) have no regular federal or state
income tax liability upon its exercise, although the excess, if any, of the Fair
Market Value of the Exercised Shares on the date of exercise over their
aggregate Exercise Price will be treated as an adjustment to alternative minimum
taxable income for federal tax purposes and may subject the Optionee to
alternative minimum tax in the year of exercise. In the event that the Option
described herein were to be disqualified as incentive stock options, however,
the Optionee would (again, under the current Code) recognize income equal to the
difference, if any between the price paid to purchase the Option Shares upon
exercise of the Options and the fair market value of the Option Shares on the
dates that the Option Shares become fully vested. By filing the tax election
form described below, if these Options were to be disqualified as an ISO
Optionee would instead recognize income on the date of exercise. Assuming the
Optionee elects to file the tax election form, he or she will promptly complete
the tax election form attached as Exhibit B, and the timely completion of such
tax election form will constitute authorization and direction from the Optionee
to the Company to file such tax election form with the Internal Revenue Service
("IRS") within thirty (30) days of the exercise of any Option. Such filing
without further action automatically constitutes filing with the California
Franchise Tax Board ("FTB") as well unless the Optionee indicates to the
contrary on his or her California income tax for such year. The Optionee
understands that, as described above, he or she should not recognize any income
as the result of the exercise of an Option, but that if the Option were to be
disqualified as an incentive option, then these elections would serve as his or
her formal election to be taxed on the spread between the fair market value of
the Option Shares at their Purchase Price as of the date of the exercise of the
Option rather than the dates that the Exercised Shares become vested even though
the Option Shares are subject to a substantial risk of forfeiture until such
dates (after exercise) that the Option Shares become vested.
(b) The Optionee further understands that the IRS and/or the
FTB could dispute that the Purchase Price set forth in Section 2 is the present
fair market value of the Option Shares and that if the IRS or the FTB were to
prevail on such a contention, then the Optionee by filing the tax election would
incur taxes as of the date of exercise of the Option on the spread between the
Purchase Price and the fair market value of the Option Shares on the date of
exercise of the Option. The Company represents that it has determined that
Purchase Price equals or exceeds the fair market value of each Option Share as
of the date of grant of these Options. The Optionee, however, agrees not to xxx
or otherwise seek redress from the Company, the Committee, or the Company's
Board of Directors for any tax liability he or she incurs due to reliance on
such fair market value determination.
13. TAX ADVICE.
Notwithstanding anything contained in Section 12 above or in
any other part of this Agreement, the Optionee represents and agrees that he or
she has not received or relied upon any tax advice from the Company or its
counsel with respect to this Agreement.
14. CONFIDENTIALITY AND FINANCIAL INFORMATION.
(a) CONFIDENTIALITY. The Company has a general policy of
maintaining the confidentiality of certain Company records. The Option Shares
shall be subject to such confidentiality policy and all certificates
representing the Option Shares shall bear the following legend:
THE HOLDER OF RECORD OF THESE SHARES, AND SUCH
HOLDER'S AGENTS AND ATTORNEYS, MAY BE REQUIRED TO EXECUTE
NONDISCLOSURE STATEMENTS PRIOR TO BEING PERMITTED TO INSPECT
CERTAIN RECORDS OF THE COMPANY.
(b) FINANCIAL INFORMATION. Whenever the Company provides
financial statements, whether audited or unaudited, to all of its shareholders
as a group, the Company shall concurrently provide the Optionee with a copy of
such financial statements. Notwithstanding the foregoing, the Company shall upon
request provide the Optionee at the end of its fiscal year with a copy of its
financial statements, either audited or unaudited, for such fiscal year, within
ninety (90) days after the end of such fiscal year, if the Optionee is then an
optionee of the Company.
(c) CONFIDENTIALITY OF FINANCIAL INFORMATION. Optionee
acknowledges that such financial statements are confidential information of the
Company and are being provided solely in order to assist him in the decision of
whether and when to exercise the Option. Optionee therefore agrees (i) to
maintain the confidentiality of all such financial statements and not to
disclose the contents of such financial statements to any third party without
the prior written consent of the Company's Board of Directors and (ii) not to
use such financial statements for any other purpose.
15. MISCELLANEOUS.
(a) CHOICE OF LAW; FORUM; JURISDICTION AND VENUE. This
Agreement shall be governed by, and construed in accordance with, internal laws
of the State of California applicable to contracts made by California residents
which are to be performed in California, but without reference to the choice of
laws principles of California or of any other jurisdiction. The parties agree
that any suit or proceeding in connection with, arising out of, or relating to
this Agreement shall be instituted only in a court (whether federal or
California) located in the City and County of San Francisco, California, and for
the purpose of any such suit or proceeding the parties irrevocably consent and
submit to the personal and subject matter jurisdiction and venue of any such
court in any such suit or proceeding. The parties hereby agree that service of
process may be effected in the same manner as notice is given pursuant to
Section 11, above.
(b) REMEDIES. In the event of a breach by any party of its
obligations under this Agreement, the aggrieved party shall be entitled to
exercise any rights and remedies available at law or equity. In addition to all
other rights it may have, the Company shall have the right to enjoin any sale or
other transfer of the Option Shares which would violate or cause a breach of the
Market Stand-Off or the securities laws of the U.S. or any state. The prevailing
party in any suit or proceeding in connection with, arising out of, or relating
to this Agreement shall be entitled to reasonable attorney's fees.
(c) AMENDMENT; WAIVER. This Agreement may only be amended or
changed by a written instrument signed by the parties hereto; however no
additional consideration is necessary to make such amendment or change. Any
covenant, condition, or consideration contained in this Agreement may be waived
or any breach thereof may be excused, only by a writing signed by the party or
persons entitled to the benefits thereof or remedies therefor.
(d) SEVERABILITY. If the application of any provision or
provisions of this Agreement to any particular facts or circumstances shall be
held to be invalid or unenforceable by any court of competent jurisdiction, then
(i) the validity and enforceability of such provision or provisions as applied
to any other particular facts or circumstances and the validity of other
provisions of this Agreement shall not in any way be affected or impaired
thereby and (ii) such provision or provisions shall be reformed without further
action by the parties hereto to and only to the extent necessary to make the
same valid and enforceable when applied to such particular facts and
circumstances and to the extent possible consistent with the intent of such
provision or provisions.
(e) ENTIRE UNDERSTANDING. This Agreement, and any document or
agreements executed by the parties pursuant to this Agreement or incorporated
herein, constitute the entire understanding and agreement of the parties hereto
with respect to the subject matter hereof and supersede all prior agreements or
understandings, written or oral, between the parties with respect thereto. No
party shall be liable or bound to the other in any manner by any warranty,
representation, or covenant contained in any such prior agreement,
understanding, or contract except as specifically set forth in this Agreement.
(f) EXHIBITS. The exhibits referred to herein and annexed
hereto are hereby incorporated into and made a part of this Agreement.
(g) BINDING AGREEMENT. This Agreement shall be binding on each
party hereto, and on each of their respective heirs, successors, executors,
administrators, and assigns.
(h) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original and all of which
together will constitute one and the same instrument.
(i) TIME. Time is expressly made of the essence of this
Agreement, especially (but not only) with respect to the vesting and exercise
provisions set forth in Sections 3(b) and 8, above and the Market Stand-Off
provisions of Section 10, above.
AUTHORIZED SIGNATURES
IN WITNESS WHEREOF, in order to bind themselves to the terms and
conditions of this Incentive Stock Option Agreement, Optionee and the Company,
by its duly authorized representative, have executed this Agreement as set forth
below, to be effective as of the day and year first set forth above.
THE COMPANY: VALUECLICK, INC.
By:
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Name:
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Its:
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OPTIONEE:
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