Exhibit (d)(8)
MODEM MEDIA . XXXXX XXXXX, INC.
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
(as amended December 11, 1998)
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Amended and
Restated 1997 Stock Option Plan shall have the same defined meanings in this
Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
[Optionee's Name and Address]
The undersigned Optionee has been granted an Option to purchase Common
Stock of the Company, subject to the terms and conditions of the Plan and this
Option Agreement, as follows:
Grant Identification Number: _________________________
Date of Grant: _________________________
Vesting Commencement Date: _________________________
Exercise Price per Share: $________________________
Total Number of Shares Granted: _________________________
Total Exercise Price: $________________________
Type of Option: ___ Incentive Stock Option
___ Nonstatutory Stock Option
Term/Expiration Date: _________________________
Vesting Schedule:
[COMPLETE VESTING SCHEUDLE, BELOW IS EXAMPLE. EACH GRANT MAY HAVE DIFFERENT
VESTING]
This Option shall be exercisable, in whole or in part, according to the
following vesting schedule:
[__% of the Shares subject to the Option shall vest immediately on the
Vesting Commencement Date, and __% of the Shares subject to the Option shall
vest each year thereafter for __ consecutive years, subject to Optionee's
continuing to be a Service Provider on such dates.]
Termination Period:
This Option shall be exercisable for three months after Optionee ceases to
be a Service Provider. Upon Optionee's death or Disability, this Option may be
exercised for one year after Optionee ceases to be a Service Provider. In no
event may Optionee exercise this Option after the Term/Expiration Date as
provided above.
II. AGREEMENT
1. Grant of Option. The Plan Administrator of the Company hereby grants to
the Optionee named in the Notice of Grant (the "Optionee"), an option (the
"Option") to purchase the number of Shares set forth in the Notice of Grant, at
the exercise price per Share set forth in the Notice of Grant (the "Exercise
Price"), and subject to the terms and conditions of the Plan, which is
incorporated herein by reference. Subject to Section 14(c) of the Plan, in the
event of a conflict between the terms and conditions of the Plan and this
Option Agreement, the terms and conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option ("ISO"),
this Option is intended to qualify as an Incentive Stock Option as defined in
Section 422 of the Code. Nevertheless, to the extent that it exceeds the
$100,000 rule of Code Section 422(d), this Option shall be treated as a
Nonstatutory Stock Option ("NSO").
2. Exercise of Option.
(a) Right to Exercise. This Option shall be exercisable during its
term in accordance with the Vesting Schedule set out in the Notice of
Grant and with the applicable provisions of the Plan and this Option
Agreement.
(b) Method of Exercise. This Option shall be exercisable by delivery
of an exercise notice in the form attached as Exhibit A (the "Exercise
Notice") which shall state the election to exercise the Option, the number
of Shares with respect to which the Option is being exercised, and such
other representations and agreements as may be required by the Company.
The Exercise Notice shall be accompanied by payment of the aggregate
Exercise Price as to all Exercised Shares. This Option shall be deemed to
be exercised upon receipt by the Company of such fully executed Exercise
Notice accompanied by the aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of an Option unless
such issuance and such exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Shares shall be considered transferred
to the Optionee on the date on which the Option is exercised with respect to
such Shares.
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3. Lock-Up Period. Optionee hereby agrees that, if so requested by the
Company or any representative of the underwriters (the "Managing Underwriter")
in connection with any registration of the offering of any securities of the
Company under the Securities Act, Optionee shall not sell or otherwise transfer
any Shares or other securities of the Company during the 180-day period (or
such other period as may be requested in writing by the Managing Underwriter
and agreed to in writing by the Company) (the "Market Standoff Period")
following the effective date of a registration statement of the Company filed
under the Securities Act. Such restriction shall apply only to the first
registration statement of the Company to become effective under the Securities
Act that includes securities to be sold on behalf of the Company to the public
in an underwritten public offering under the Securities Act. The Company may
impose stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such Market Standoff Period.
4. Method of Payment. Payment of the aggregate Exercise Price shall be by
any of the following, or a combination thereof, at the election of the
Optionee:
(a) cash or check;
(b) consideration received by the Company under a formal cashless
exercise program adopted by the Company in connection with the Plan; or
(c) surrender of other Shares which, (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for
more than six (6) months on the date of surrender, and (ii) have a Fair
Market Value on the date of surrender equal to the aggregate Exercise
Price of the Exercised Shares.
5. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
6. Term of Option. This Option may be exercised only within the term set
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
7. Tax Consequences. Set forth below is a brief summary as of the date of
this Option of some of the federal tax consequences of exercise of this Option
and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE
TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A
TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercise of NSO. There may be a regular federal income tax
liability upon the exercise of an NSO. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates)
equal to the excess, if any, of the Fair Market Value of the Shares on the
date of exercise over the Exercise Price. If Optionee is an Employee or a
former Employee, the Company will be required to withhold from Optionee's
compensation or collect from Optionee and pay to the applicable taxing
authorities an amount in cash equal to a percentage of this compensation
income at the time of exercise, and may refuse to honor the exercise and
refuse to deliver Shares if such withholding amounts are not delivered at
the time of exercise.
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(b) Exercise of ISO. If this Option qualifies as an ISO, there will
be no regular federal income tax liability upon the exercise of the
Option, although the excess, if any, of the Fair Market Value of the
Shares on the date of exercise over the Exercise Price will be treated as
an adjustment to the alternative minimum tax for federal tax purposes and
may subject the Optionee to the alternative minimum tax in the year of
exercise.
(c) Disposition of Shares. In the case of an NSO, if Shares are held
for at least one year, any gain realized on disposition of the Shares will
be treated as long-term capital gain for federal income tax purposes. In
the case of an ISO, if Shares transferred pursuant to the Option are held
for at least one year after exercise and of at least two years after the
Date of Grant, any gain realized on disposition of the Shares will also be
treated as long-term capital gain for federal income tax purposes. If
Shares purchased under an ISO are disposed of within one year after
exercise or two years after the Date of Grant, any gain realized on such
disposition will be treated as compensation income (taxable at ordinary
income rates) to the extent of the difference between the Exercise Price
and the lesser of (1) the Fair Market Value of the Shares on the date of
exercise, or (2) the sale price of the Shares. Any additional gain will be
taxed as capital gain, short-term or long-term depending on the period
that the ISO Shares were held.
(d) Notice of Disqualifying Disposition of ISO Shares. If the Option
granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before
the later of (1) the date two years after the Date of Grant, or (2) the
date one year after the date of exercise, the Optionee shall immediately
notify the Company in writing of such disposition. Optionee agrees that
Optionee may be subject to income tax withholding by the Company on the
compensation income recognized by the Optionee.
8. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan and this Option Agreement constitute the entire agreement
of the parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Optionee. This agreement is governed by the internal substantive laws but not
the choice of law rules of New York.
9. No Guarantee of Continued Service. OPTIONEE ACKNOWLEDGES AND AGREES
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES
HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN
DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A
SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL
NOT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR
WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents that he
or she is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an
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opportunity to obtain the advice of counsel prior to executing this Option and
fully understands all provisions of the Option. Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option.
Optionee further agrees to notify the Company upon any change in the residence
address indicated below.
OPTIONEE MODEM MEDIA . XXXXX XXXXX, INC.
------------------------------------- -------------------------------------
Signature By
------------------------------------- -------------------------------------
Print Name Title
-------------------------------------
-------------------------------------
Residence Address
Please sign this grant agreement and return it to
MMPT's Norwalk Human Resources Department.
Be sure to make a copy of this agreement for your records.
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Exhibit (a)(8)
MODEM MEDIA . XXXXX XXXXX, INC.
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
(as amended December 11, 1998)
STOCK OPTION AGREEMENT - BRAZIL
[Home address of Optionee]
Unless otherwise defined herein, the terms defined in the Amended and
Restated 1997 Stock Option Plan shall have the same defined meanings in this
Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
The undersigned Optionee has been granted an Option to purchase Common
Stock of the Company, subject to the terms and conditions of the Plan and this
Option Agreement, as follows:
Grant Identification Number:
Date of Grant:
Vesting Commencement Date:
Exercise Price per Share:
Total Number of Shares Granted:
Total Exercise Price:
Type of Option:
Term/Expiration Date:
Vesting Schedule:
This Option shall be exercisable, in whole or in part, according to the
following vesting schedule:
Date of Vest Shares Vesting Over the Vesting in Period Occurs
Period
--------------------------------------------------------------------------
Change in Control:
If within one year following a Change in Control, the optionee's
employment is terminated involuntarily by the Company other than for Cause, the
options granted to such optionee shall immediately vest.
For the purposes of this Option Agreement, "Cause" shall mean (A)
intentional misconduct in the performance of duties with the Company,
(including violation of MMPT's policies or agreements relating to
noncompetition or confidentiality); (B) failure (other than due to Disability)
to substantially perform the duties of one's job; (C) engaging in illegal
conduct (other than any misdemeanor, traffic violation or similar misconduct)
in connection with the performance of duties for the Company; or (D) commission
of a felony. In the case of a termination for "cause" the determination of the
Committee as to whether "cause" exists shall be final and binding.
For the purposes of this Option Agreement, "Change in Control" shall mean
the occurrence of any of the following events, (i) the consummation of a merger
or consolidation of MMPT with any other corporation, other than a merger or
consolidation which would result in the voting securities of MMPT outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent (50%) of the total voting power represented by
the voting securities of MMPT or such surviving entity outstanding immediately
after such merger or consolidation (ii) the consummation of the sale or
disposition by MMPT of all or substantially all of the MMPT's assets, or (iii)
any person (as such term is used in Sections 13(d) of the Securities Exchange
Act of 1934, as amended) becomes the beneficial owner (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of MMPT representing
fifty percent (50%) or more of the total voting power represented by
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MMPT's then outstanding voting securities (excluding any beneficial owner, as
of the date of the grant, of at least 50% of the total voting power represented
by MMPT's outstanding voting securities).
Termination Period:
This Option shall be exercisable (to the extent vested) for 3 Months after
Optionee ceases to be a Service Provider. Upon Optionee's death or Disability,
this Option may be exercised (to the extent vested at death or Disability) for
12 Months after Optionee ceases to be a Service Provider. In no event may
Optionee exercise this Option after the Term/Expiration Date as provided above.
Notwithstanding the foregoing, for so long as the following remains a
requirement of the Central Bank of Brazil or any other Brazilian regulatory
authority, immediately upon termination of the Optionee from the Company, the
Option must be exercised and all proceeds of the sale of each Option's
underlying shares must be returned and remain in the country of Brazil even
after the termination of the Optionee's engagement or employment with the
Company.
II. AGREEMENT
1. Grant of Option. The Plan Administrator of the Company hereby grants to
the Optionee named in the Notice of Grant (the "Optionee"), an option (the
"Option") to purchase the number of Shares set forth in the Notice of Grant, at
the exercise price per Share set forth in the Notice of Grant (the "Exercise
Price"), and subject to the terms and conditions of the Plan, which is
incorporated herein by reference. Subject to Section 14(c) of the Plan, in the
event of a conflict between the terms and conditions of the Plan and this
Option Agreement, the terms and conditions of the Plan shall prevail.
2. Exercise of Option.
(a) Right to Exercise. This Option shall be exercisable during its
term in accordance with the Vesting Schedule set out in the Notice of
Grant and with the applicable provisions of the Plan, this Option
Agreement and applicable laws of the country of Brazil.
(b) Method of Exercise. This Option shall be exercisable by delivery
of an exercise notice (the "Exercise Notice") which shall state the
election to exercise the Option, the number of Shares with respect to
which the Option is being exercised, and such other representations and
agreements as may be required by the Company. The Exercise Notice shall be
accompanied by payment of the aggregate Exercise Price as to all Exercised
Shares. This Option shall be deemed to be exercised upon receipt by the
Company of such fully executed Exercise Notice accompanied by the
aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of an Option unless
such issuance and such exercise complies with applicable laws of the country of
Brazil. Assuming such compliance, for income tax and other tax purposes the
Shares shall be considered transferred to the Optionee on the date on which the
Option is exercised with respect to such Shares.
Each Optionee agrees to notify and cooperate with the Company in order to
effect each exercise of such option.
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3. Method of Payment. Payment of the aggregate Exercise Price shall be by
any of the following, or a combination thereof, at the election of the
Optionee:
(a) cash or check;
(b) consideration received by the Company under a formal cashless
exercise program adopted by the Company in connection with the Plan; or
(c) surrender of other Shares which, (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six (6) months on the date of surrender, and (ii) have a Fair Market Value
on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
Notwithstanding the foregoing, Optionee must agree to follow a preferred
method of payment for such Option as specified at the time by the Company.
Optionee also agrees to comply with any and all requirements existing at the
time of such exercise regarding required approvals of cash remittances and
exercises of Options mandated the Central Bank of Brazil or any other relevant
authority
4. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the term set
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
(a) Tax Consequences. If Optionee is an Employee or a former
Employee, the Company will be required to withhold from Optionee's
compensation or collect from Optionee and pay to the applicable taxing
authorities an amount in cash equal to a percentage of this compensation
income at the time of exercise, and may refuse to honor the exercise and
refuse to deliver Shares if such withholding amounts are not delivered at
the time of exercise. Optionee agrees to provide any documentation
(including powers of attorney and letters of representation regarding
reporting to Brazilian authorities the disposition of shares, the
distribution of profits and any other information or documentation
required under Brazilian law) required by the Company or required under
Brazilian law.
(b) Notice of Disposition of Shares. If the Optionee sells or
otherwise disposes of any of the Shares, the Optionee shall immediately
notify the Company in writing of such disposition. Optionee agrees that
Optionee may be subject to tax withholding by the Company on the
compensation income recognized by the Optionee.
6. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan and this Option Agreement constitute the entire agreement
of the parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely
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to the Optionee's interest except by means of a writing signed by the Company
and Optionee. This agreement is governed by the internal substantive laws but
not the choice of law rules of New York.
7. No Guarantee of Continued Service. OPTIONEE ACKNOWLEDGES AND AGREES
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES
HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN
DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A
SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL
NOT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR
WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents that he
or she is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option.
Optionee further agrees to notify the Company upon any change in the residence
address indicated below.
OPTIONEE MODEM MEDIA . XXXXX XXXXX, INC.
--------------------------------- ---------------------------------
Signature By
--------------------------------- ---------------------------------
Print Name Title
---------------------------------
---------------------------------
Residence Address
Please sign this grant agreement and return it to
MMPT's Norwalk Human Resources Department.
Be sure to make a copy of this agreement for your records.
-5-
Exhibit (d)(8)
MODEM MEDIA.XXXXX XXXXX, INC.
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
(as amended December 11, 1998)
STOCK OPTION AGREEMENT - FRANCE
[Home address of Optionee]
Unless otherwise defined herein, the terms defined in the Amended and
Restated 1997 Stock Option Plan shall have the same defined meanings in this
Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
The undersigned Optionee has been granted an Option to purchase Common
Stock of the Company, subject to the terms and conditions of the Plan and this
Option Agreement, as follows:
Grant Identification Number:
Date of Grant:
Vesting Commencement Date:
Exercise Price per Share:
Total Number of Shares Granted:
Total Exercise Price:
Type of Option:
Term/Expiration Date:
Vesting Schedule:
A portion of the Option (for [ ] shares) shall vest according to the
following vesting schedule; provided that the options will not be exercisable
until [date], except in the case of death or disability as set forth herein:
Date of Vest Shares Vesting Over the Vesting in Period Occurs
Period
---------------------------------------------------------------------------
The remaining portion of the Option (for [ ] shares) shall vest on the
eighth anniversary of the Grant Date, provided, however, if at the end of the
fiscal year set forth below, the revenue and margin of Modem Media France SAS
reaches at least the levels set forth below, the vesting of the number of
options for such year shall accelerate and occur upon the Committee's
determination of such financial goals.
That portion of the options for which vesting has been accelerated as set
forth herein, shall become exercisable on the fifth anniversary of the Grant
Date. If vesting of all or any of these options has not occurred, the
unaccelerated options shall become exercisable on the eighth anniversary of the
grant date. In the case of death or disability, treatment of options shall be
in acordance with the Plan and shall not be subject to such restrictions on
exercisability.
Revenue (000's)(1) Margin (000's)(1)
Year 2000 2001 2002 2003 2000 2001 2002 2003
Minimum
Vesting
Year 2000 2001 2002 2003 2000 2001 2002 2003
Maximum
Vesting
For purposes of the Options above with accelerated vesting tied to the
acomplishment of certain goals (a) revenue shall be defined as revenue
recognized by the Company on its books and records and (b) the determination of
the Committee as to whether the goals have been achieved shall be final and
binding.
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Termination Period:
This Option shall be exercisable (to the extent vested) until the later of
3 Months after such Options have become exercisable or ninety days after
Optionee ceases to be a Service Provider. Upon Optionee's death or Disability,
this Option may be exercised (to the extent vested at death or Disability) for
12 Months after Optionee ceases to be a Service Provider. In no event may
Optionee exercise this Option after the Term/Expiration Date as provided above.
II. AGREEMENT
1. Grant of Option. The Plan Administrator of the Company hereby grants to
the Optionee named in the Notice of Grant (the "Optionee"), an option (the
"Option") to purchase the number of Shares set forth in the Notice of Grant, at
the exercise price per Share set forth in the Notice of Grant (the "Exercise
Price"), and subject to the terms and conditions of the Plan, which is
incorporated herein by reference. Subject to Section 14(c) of the Plan, in the
event of a conflict between the terms and conditions of the Plan and this
Option Agreement, the terms and conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option ("ISO"),
this Option is intended to qualify as an Incentive Stock Option as defined in
Section 422 of the Code. Nevertheless, to the extent that it exceeds the
$100,000 rule of Code Section 422(d), this Option shall be treated as a
Nonstatutory Stock Option ("NSO").
2. Exercise of Option.
(a) Right to Exercise. This Option shall be exercisable during its term in
accordance with the Vesting Schedule set out in the Notice of Grant and with
the applicable provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option shall be exercisable by delivery of an
exercise notice (the "Exercise Notice") which shall state the election to
exercise the Option, the number of Shares with respect to which the Option is
being exercised, and such other representations and agreements as may be
required by the Company. The Exercise Notice shall be accompanied by payment of
the aggregate Exercise Price as to all Exercised Shares. This Option shall be
deemed to be exercised upon receipt by the Company of such fully executed
Exercise Notice accompanied by the aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of an Option unless
such issuance and such exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Shares shall be considered transferred
to the Optionee on the date on which the Option is exercised with respect to
such Shares. 3. Method of Payment. Payment of the aggregate Exercise Price
shall be by any of the following, or a combination thereof, at the election of
the Optionee:
(a) cash or check;
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(b) consideration received by the Company under a formal cashless exercise
program adopted by the Company in connection with the Plan; or (c) surrender of
other Shares which, (i) in the case of Shares acquired upon exercise of an
option, have been owned by the Optionee for more than six (6) months on the
date of surrender, and (ii) have a Fair Market Value on the date of surrender
equal to the aggregate Exercise Price of the Exercised Shares.
4. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the term set
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
6. Tax Consequences. Set forth below is a brief summary as of the date of
this Option of some of the federal tax consequences of exercise of this Option
and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE
TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A
TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercise of NSO. There may be a regular federal income tax liability
upon the exercise of an NSO. The Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the Fair Market Value of the Shares on the date of exercise over the
Exercise Price. If Optionee is an Employee or a former Employee, the Company
will be required to withhold from Optionee's compensation or collect from
Optionee and pay to the applicable taxing authorities an amount in cash equal
to a percentage of this compensation income at the time of exercise, and may
refuse to honor the exercise and refuse to deliver Shares if such withholding
amounts are not delivered at the time of exercise.
(b) Exercise of ISO. If this Option qualifies as an ISO, there will be no
regular federal income tax liability upon the exercise of the Option, although
the excess, if any, of the Fair Market Value of the Shares on the date of
exercise over the Exercise Price will be treated as an adjustment to the
alternative minimum tax for federal tax purposes and may subject the Optionee
to the alternative minimum tax in the year of exercise.
(c) Disposition of Shares. In the case of an NSO, if Shares are held for
at least one year, any gain realized on disposition of the Shares will be
treated as long-term capital gain for federal income tax purposes. In the case
of an ISO, if Shares transferred pursuant to the Option are held for at least
one year after exercise and of at least two years after the Date of Grant, any
gain realized on disposition of the Shares will also be treated as long-term
capital gain for federal income tax purposes. If Shares purchased under an ISO
are disposed of within one year after exercise or two years after the Date of
Grant, any gain realized on such disposition will be treated as compensation
income (taxable at ordinary income rates) to the extent of the difference
between the Exercise Price and the lesser of (1) the Fair Market Value of the
Shares on the date of exercise, or (2) the sale price
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of the Shares. Any additional gain will be taxed as capital gain, short-term or
long-term depending on the period that the ISO Shares were held.
(d) Notice of Disqualifying Disposition of ISO Shares. If the Option
granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (1) the date two years after the Date of Grant, or (2) the date one
year after the date of exercise, the Optionee shall immediately notify the
Company in writing of such disposition. Optionee agrees that Optionee may be
subject to income tax withholding by the Company on the compensation income
recognized by the Optionee. 7. Entire Agreement; Governing Law. The Plan is
incorporated herein by reference. The Plan and this Option Agreement constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede in their entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and may not be
modified adversely to the Optionee's interest except by means of a writing
signed by the Company and Optionee. This agreement is governed by the internal
substantive laws but not the choice of law rules of New York.
8. No Guarantee of Continued Service. OPTIONEE ACKNOWLEDGES AND AGREES
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES
HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN
DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A
SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL
NOT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR
WITHOUT CAUSE.
-5-
Optionee acknowledges receipt of a copy of the Plan and represents that he
or she is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option.
Optionee further agrees to notify the Company upon any change in the residence
address indicated below.
OPTIONEE MODEM MEDIA.XXXXX XXXXX, INC.
------------------------------------- ------------------------------------
Signature By
------------------------------------- ------------------------------------
Print Name Title
Exhibit (d)(8)
MODEM MEDIA . XXXXX XXXXX, INC.
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
(as amended December 11, 1998)
STOCK OPTION AGREEMENT - GERMANY
[Home address of Optionee]
Unless otherwise defined herein, the terms defined in the Amended and
Restated 1997 Stock Option Plan shall have the same defined meanings in this
Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
The undersigned Optionee has been granted an Option to purchase Common
Stock of the Company, subject to the terms and conditions of the Plan and this
Option Agreement, as follows:
Grant Identification Number:
Date of Grant:
Vesting Commencement Date:
Exercise Price per Share:
Total Number of Shares Subject to Option:
Total Exercise Price:
Type of Option:
Term/Expiration Date:
Vesting Schedule:
This Option shall be exercisable, in whole or in part, according to the
following vesting schedule:
Date of Vest Shares Vesting Over the Vesting in Period
Period Occurs
----------------------------- -------------------------- -----------------
Change in Control:
If within one year following a Change in Control, the optionee's
employment is terminated involuntarily by the Company other than for Cause, the
options granted to such optionee shall immediately vest.
For the purposes of this Option Agreement, "Cause" shall mean (A)
intentional misconduct in the performance of duties with the Company, (including
violation of MMPT's policies or agreements relating to noncompetition or
confidentiality); (B) failure (other than due to Disability) to substantially
perform the duties of one's job; (C) engaging in illegal conduct (other than any
misdemeanor, traffic violation or similar misconduct) in connection with the
performance of duties for the Company; or (D) commission of a felony. In the
case of a termination for "cause" the determination of the Committee as to
whether "cause" exists shall be final and binding.
For the purposes of this Option Agreement, "Change in Control" shall
mean the occurrence of any of the following events, (i) the consummation of a
merger or consolidation of MMPT with any other corporation, other than a merger
or consolidation which would result in the voting securities of MMPT outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent (50%) of the total voting power represented by
the voting securities of MMPT or such surviving entity outstanding immediately
after such merger or consolidation (ii) the consummation of the sale or
disposition by MMPT of all or substantially all of the MMPT's assets, or (iii)
any person (as such term is used in Sections 13(d) of the Securities Exchange
Act of 1934, as amended) becomes the beneficial owner (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of MMPT representing
fifty percent (50%) or more of the total voting power represented by MMPT's then
outstanding voting securities (excluding any beneficial owner, as of the date of
the grant, of at least 50% of the total voting power represented by MMPT's
outstanding voting securities).
2
Termination Period:
This Option shall be exercisable (to the extent vested) for 3 Months
after Optionee ceases to be an employee. Upon Optionee's death or Disability,
this Option may be exercised (to the extent vested at death or Disability) for
12 Months after Optionee ceases to be an employee. In no event may Optionee
exercise this Option after the Term/Expiration Date as provided above.
II. AGREEMENT
1. Grant of Option. The Plan Administrator of the Company hereby grants to the
Optionee named in the Notice of Grant (the "Optionee"), an option (the "Option")
to purchase the number of Shares set forth in the Notice of Grant, at the
exercise price per Share set forth in the Notice of Grant (the "Exercise
Price"), and subject to the terms and conditions of the Plan, which is
incorporated herein by reference. Subject to Section 14(c) of the Plan, in the
event of a conflict between the terms and conditions of the Plan and this Option
Agreement, the terms and conditions of the Plan shall prevail.
2. Exercise of Option.
(a) Right to Exercise. This Option shall be exercisable during its
term in accordance with the Vesting Schedule set out in the Notice of Grant and
with the applicable provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option shall be exercisable by delivery
of an exercise notice (the "Exercise Notice") which shall state the election to
exercise the Option, the number of Shares with respect to which the Option is
being exercised, and such other representations and agreements as may be
required by the Company. The Exercise Notice shall be accompanied by payment of
the aggregate Exercise Price as to all Exercised Shares. This Option shall be
deemed to be exercised upon receipt by the Company of such fully executed
Exercise Notice accompanied by the aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of an Option unless
such issuance and such exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Shares shall be considered transferred
to the Optionee on the date on which the Option is exercised with respect to
such Shares.
3. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(a) cash or check;
3
(b) consideration received by the Company under a formal cashless
exercise program adopted by the Company in connection with the Plan; or
(c) surrender of other Shares which, (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six (6) months on the date of surrender, and (ii) have a Fair Market Value
on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
4. Non-Transferability of Option. This Option may not be transferred
in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by Optionee. The terms
of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
6. Tax Obligations. By executing this Option Agreement, Optionee is
acknowledging that the exercise of this Option is conditional on the payment by
Optionee to the Company on the exercise of this Option an amount equal to all
applicable taxes and/or contributions required to be paid by Optionee or
withheld from Optionee by the Company in connection with the exercise of the
Option. The method of payment of such taxes and/or contributions shall be
determined by the Company at the time of exercise and may include withholding of
amounts from cash remuneration payable by the Company to Optionee, withholding
by the Company's option administrator from cash payments due to Optionee
resulting from the exercise and/or cash payments to be made directly from
Optionee at the time of exercise.
7. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan and this Option Agreement constitute the entire agreement of
the parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Optionee. This agreement is governed by the internal substantive laws but not
the choice of law rules of New York.
8. No Guarantee of Continued Employment or Future Grants. Optionee
acknowledges and agrees that the vesting of shares pursuant to the vesting
schedule hereof is earned only by continuing as an employee at the will of the
company (not through the act of being hired, being granted this option or
acquiring shares hereunder). Optionee further acknowledges and agrees that this
agreement, the transactions contemplated hereunder and the vesting schedule set
forth herein do not constitute an express or implied promise of continued
engagement as an employee for the vesting period, for any period, or at all, and
shall not interfere in any way with optionee's right or the company's right to
terminate optionee's relationship as an employee at any time, with or without
cause.
4
The Optionee acknowledges that the Option is not granted by the Company as a
matter of right, but is granted (and the amount of the award is granted) at the
sole discretion of the Committee and is not part of his or her contractual
compensation and does not create an enforceable right to further options in
future years or in similar amounts. This discretion of the Committee relates to
the award of Options and the amount of the award. The Optionee waives any and
all acquired rights claims in connection with past or future employment.
Optionee acknowledges receipt of a copy of the Plan and represents that
he or she is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option. Optionee
further agrees to notify the Company upon any change in the residence address
indicated below.
OPTIONEE MODEM MEDIA, INC.
______________________________________ ____________________________________
Signature By
______________________________________ ____________________________________
Print Name Title
______________________________________
______________________________________
Residence Address
5
------------------------------
------------------------------
Residence Address
Please sign this grant agreement and return it to
MMPT's Norwalk Human Resources Department.
Be sure to make a copy of this agreement for your records.
-6-
Exhibit (d)(8)
MODEM MEDIA . XXXXX XXXXX, INC.
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
(as amended December 11, 1998)
STOCK OPTION AGREEMENT - HONG KONG
[Home address of Optionee]
Unless otherwise defined herein, the terms defined in the Amended and
Restated 1997 Stock Option Plan shall have the same defined meanings in this
Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
The undersigned Optionee has been granted an Option to purchase Common
Stock of the Company, subject to the terms and conditions of the Plan and this
Option Agreement, as follows:
Grant Identification Number:
Date of Grant:
Vesting Commencement Date:
Exercise Price per Share:
Total Number of Shares Granted:
Total Exercise Price:
Type of Option:
Term/Expiration Date:
Vesting Schedule:
This Option shall be exercisable, in whole or in part, according to the
following vesting schedule:
Date of Vest Shares Vesting Over the Vesting in Period
Period Occurs
----------------------------- -------------------------- -----------------
Change in Control:
If within one year following a Change in Control, the optionee's
employment is terminated involuntarily by the Company other than for Cause, the
options granted to such optionee shall immediately vest.
For the purposes of this Option Agreement, "Cause" shall mean (A)
intentional misconduct in the performance of duties with the Company, (including
violation of MMPT's policies or agreements relating to noncompetition or
confidentiality); (B) failure (other than due to Disability) to substantially
perform the duties of one's job; (C) engaging in illegal conduct (other than any
misdemeanor, traffic violation or similar misconduct) in connection with the
performance of duties for the Company; or (D) commission of a felony. In the
case of a termination for "cause" the determination of the Committee as to
whether "cause" exists shall be final and binding.
For the purposes of this Option Agreement, "Change in Control" shall
mean the occurrence of any of the following events, (i) the consummation of a
merger or consolidation of MMPT with any other corporation, other than a merger
or consolidation which would result in the voting securities of MMPT outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty percent (50%) of the total voting power represented by
the voting securities of MMPT or such surviving entity outstanding immediately
after such merger or consolidation (ii) the consummation of the sale or
disposition by MMPT of all or substantially all of the MMPT's assets, or (iii)
any person (as such term is used in Sections 13(d) of the Securities Exchange
Act of 1934, as amended) becomes the beneficial owner (as defined in Rule 13d-3
under said Act), directly or indirectly, of securities of MMPT representing
fifty percent (50%) or more of the total voting power represented by MMPT's then
outstanding voting securities (excluding any beneficial owner, as of the date of
the grant, of at least 50% of the total voting power represented by MMPT's
outstanding voting securities).
2
Termination Period:
This Option shall be exercisable (to the extent vested) for 3 Months
after Optionee ceases to be a Service Provider. Upon Optionee's death or
Disability, this Option may be exercised (to the extent vested at death or
Disability) for 12 Months after Optionee ceases to be a Service Provider. In no
event may Optionee exercise this Option after the Term/Expiration Date as
provided above.
II. AGREEMENT
1. Grant of Option. The Plan Administrator of the Company hereby
grants to the Optionee named in the Notice of Grant (the "Optionee"), an option
(the "Option") to purchase the number of Shares set forth in the Notice of
Grant, at the exercise price per Share set forth in the Notice of Grant (the
"Exercise Price"), and subject to the terms and conditions of the Plan, which is
incorporated herein by reference. Subject to Section 14(c) of the Plan, in the
event of a conflict between the terms and conditions of the Plan and this Option
Agreement, the terms and conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option
("ISO"), this Option is intended to qualify as an Incentive Stock Option as
defined in Section 422 of the Code. Nevertheless, to the extent that it exceeds
the $100,000 rule of Code Section 422(d), this Option shall be treated as a
Nonstatutory Stock Option ("NSO").
2. Exercise of Option.
(a) Right to Exercise. This Option shall be exercisable during its
term in accordance with the Vesting Schedule set out in the Notice of Grant and
with the applicable provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option shall be exercisable by delivery
of an exercise notice (the "Exercise Notice") which shall state the election to
exercise the Option, the number of Shares with respect to which the Option is
being exercised, and such other representations and agreements as may be
required by the Company. The Exercise Notice shall be accompanied by payment of
the aggregate Exercise Price as to all Exercised Shares. This Option shall be
deemed to be exercised upon receipt by the Company of such fully executed
Exercise Notice accompanied by the aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of an Option unless
such issuance and such exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Shares shall be considered transferred
to the Optionee on the date on which the Option is exercised with respect to
such Shares.
3
3. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee:
(a) cash or check;
(b) consideration received by the Company under a formal cashless
exercise program adopted by the Company in connection with the Plan; or
(c) surrender of other Shares which, (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six (6) months on the date of surrender, and (ii) have a Fair Market Value
on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
4. Non-Transferability of Option. This Option may not be transferred
in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by Optionee. The terms
of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
(a) 6. Tax Obligations. By executing this Option Agreement, Optionee
is acknowledging that the exercise of this Option is conditional on the payment
by Optionee to the Company on the exercise of this Option an amount equal to all
applicable taxes and/or contributions required to be paid by Optionee or
withheld from Optionee by the Company in connection with the exercise of the
Option. The method of payment of such taxes and/or contributions shall be
determined by the Company at the time of exercise and may include withholding of
amounts from cash remuneration payable by the Company to Optionee, withholding
by the Company's option administrator from cash payments due to Optionee
resulting from the exercise and/or cash payments to be made directly from
Optionee at the time of exercise.
7. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan and this Option Agreement constitute the entire agreement of
the parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Optionee. This agreement is governed by the internal substantive laws but not
the choice of law rules of New York.
8. No Guarantee of Continued Service. Optionee acknowledges and agrees
that the vesting of shares pursuant to the vesting schedule hereof is earned
only by continuing as a service provider at the will of the company (not through
the act of being hired, being granted this option or acquiring shares
hereunder). Optionee further acknowledges and agrees that this agreement, the
transactions contemplated hereunder and the vesting schedule set forth herein do
not constitute an express or implied promise of continued engagement as a
service provider for the vesting period, for any period, or at all, and shall
not interfere in any way with optionee's right or the company's right to
terminate optionee's relationship as a service provider at any time, with or
without cause.
4
The Optionee acknowledges that the Option is not granted by the Company as a
matter of right, but is granted at the sole discretion of the Committee and is
not part of his or her contractual compensation and does not oblige the Company
to offer options in future years or in similar amounts. The Optionee waives any
and all acquired rights claims in connection with past or future employment or
service as a consultant or director.
Optionee acknowledges receipt of a copy of the Plan and represents that
he or she is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option. Optionee
further agrees to notify the Company upon any change in the residence address
indicated below.
OPTIONEE MODEM MEDIA, INC.
______________________________________ ____________________________________
Signature By
______________________________________ ____________________________________
Print Name Title
______________________________________
______________________________________
Residence Address
Please sign this grant agreement and return it to
Norwalk Human Resources Department.
Be sure to make a copy of this agreement for your records.
5
