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Exhibit 10.1
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES ACT AND MAY NOT BE TRANSFERRED WITHOUT
REGISTRATION UNDER SUCH ACTS OR AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
REAL MEDIA, INC.
STOCK OPTION AGREEMENT
Date of Grant: ________________
This Stock Option Agreement (the "Agreement") is made and entered
into as of the date of grant specified above (the "Date of Grant"), by and
between REAL MEDIA, INC., a Delaware corporation (the "Company"), and
_______________________________________ ("Grantee").
WHEREAS, Grantee is employed by the Company as National Account
Manager, and as compensation for the services provided by the Grantee as
_______________________ of the Company, the Company desires to issue to the
Grantee an option to purchase the Company's Common Stock, par value $.001 per
share (the "Stock").
NOW THEREFORE, in consideration of the foregoing, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Grant of Option.
Subject to the terms and conditions hereinafter set forth, the
Company hereby grants to the Grantee an option to purchase up to three thousand
(3,000) shares of Stock at a price of two dollars and seventy cents ($2.70) per
share (the "Exercise Price"). Such option is hereinafter referred to as the
"Option", and the shares of Stock purchasable upon exercise of the Option are
hereinafter referred to as the "Option Shares".
2. Period for Vesting and Exercise of Option.
Subject to such further limitations as are provided herein,
(a) One eighth of the total Options granted under this Agreement shall
become exercisable ("vest") on August 15, 1999, and thereafter one eighth of the
total Options granted under this Agreement shall vest every 90 days after the
then most recent date on which one eighth of the Options have vested until all
such Options vest.
(b) Grantee may exercise the Options to purchase Option Shares at the
Exercise Price per Option Share until the Expiration Date (hereafter defined).
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(c) The Expiration Date shall be the earlier of (i) the tenth
anniversary of the date of Grant or (ii) ninety (90) days following the date the
Grantee's employment with the company ceases for any reason (including without
limitation, by death, disability, resignation or removal, with or without cause)
at which time this Agreement shall terminate.
(d) Notwithstanding the foregoing, in the event either (i) shares of the
Company's voting stock entitled to cast more than fifty percent (50%) of the
votes entitled to be cast by all voting stock or (ii) more than seventy-five
percent (75%) in value of the assets of the Company, are sold in one transaction
or in a series of related transactions, all of which occur within a period of
not more than ninety (90) days; then the Option shall immediately vest and
become exercisable with respect to all Option Shares not previously purchased in
the same manner and to the same extent as though the date of commencement of the
exercise period above prescribed had then arrived.
3. Manner of Exercise of Option.
(a) The Grantee (or his heirs, executors or administrators), may
exercise the option with respect to all or any part of the number of Option
Shares exercisable hereunder by giving the Secretary of the Company written
notice of exercise. The notice of exercise shall specify the number of Option
Shares as to which the Option is to be exercised and the date of exercise
thereof, which date shall be at least five (5) days after the giving of such
notice unless an earlier time shall have been mutually agreed upon.
(b) Notice of exercise of the Option shall be accompanied by a written
statement, signed by the Grantee (or his heirs, executors or administrators),
and in form satisfactory to the Company, that the shares are being purchased for
the Grantee's own account, for investment and not with a view to distribution,
and that the Grantee has no present intention of dividing his interest in the
shares with others or of reselling or otherwise disposing of the shares. The
certificates for Option Shares issued without registration with the Securities
and Exchange Commission shall bear a legend substantially in the following form:
"The Securities represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") or
applicable state securities laws (the "State Acts"), and shall not
be sold, pledged, hypothecated, donated, or otherwise transferred
(whether or not for consideration) by the holder except upon the
issuance to the Corporation of a favorable opinion of its counsel
and/or the submission to the Corporation of such other evidence as
may by satisfactory to counsel for the Corporation, to the effect
that any such transfer shall not be in violation of the Act or the
State Acts."
Such statement and legend shall not be required in the event the Option Shares
are registered with the Securities and Exchange Commission.
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(c) Full payment in U.S. dollars of the Exercise Price for the Option
Shares purchased shall be made in cash or by certified or bank cashier's check,
on or before the exercise date specified in the notice of exercise.
(d) on the exercise date specified in the Grantee's notice or as soon
thereafter as is practicable, the Company shall cause to be delivered to the
Grantee a certificate or certificates registered in the name of the Grantee for
the Option Shares then being purchased, upon full payment for such Option
Shares. in addition to the legend provided for in Section 3(b) hereof, if
required, said certificates shall be subject to the same restrictions and shall
bear the same legends as other shares of the Stock would be subject to and bear
if issued on the same date.
(e) if the Grantee fails to pay for any of the Option Shares specified
in such notice on or before the date specified in such notice or fails to accept
delivery thereof, the Grantee's right to purchase such Option Shares may be
terminated by the Company. The date specified in the Grantee's notice as the
date of exercise shall be deemed the date of exercise of the option, provided
that payment in full for the Option Shares to be purchased upon such exercise
shall have been received by such date.
4. Adjustments of and Changes in Stock.
If at any time the Company shall:
(i) take a record of the holders of its Stock for the purpose of
entitling them to receive a dividend payable in, or other distribution of,
additional shares of its Stock;
(ii) subdivide its outstanding shares of its Stock into a larger
number of shares of Stock; or
(iii) combine its outstanding shares of Stock into a smaller number
of shares of Stock;
then the number of Option Shares immediately after the occurrence of any such
event shall be adjusted to equal the number of shares of Stock which a record
holder of the number of Option Shares immediately prior to the occurrence of
such event would own or be entitled to receive after the happening of such
event. The Exercise Price per Option Share immediately after the occurrence of
any such event shall be adjusted by multiplying the Exercise Price by a
fraction, the numerator of which shall be the number of Option Shares
immediately prior to such occurrence and the denominator of which shall be the
number of Option Shares as adjusted pursuant to the preceding sentence.
5. No Rights as Stockholder Prior to Exercise.
The Grantee shall have none of the rights and privileges of a
stockholder of the Company with respect to any of the Option Shares prior to the
date of issuance of such Option Shares.
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6. Non-Transferability of Option, Option Shares; Entire Agreement.
(a) During the Grantee's lifetime, the Option hereunder shall be
exercisable only by the Grantee or any guardian or legal representative of the
Grantee, and the Option shall not be transferable except, in case of the death
of the Grantee, by will or the laws of descent and distribution, nor shall the
Option be subject to attachment, execution or other similar process. In the
event of (i) any attempt by the Grantee to alienate, assign, pledge, hypothecate
or otherwise dispose of the Option, except as provided for herein, or (ii) the
levy of any attachment, execution or similar process upon the rights or interest
hereby conferred, which shall not be released or discharged within thirty (30)
days after entry, the Company may terminate the option by notice to the Grantee
and it shall thereupon become null and void.
(b) Grantee may not offer, sell, transfer, pledge or mortgage Option
Shares to any person without the prior written consent of the Company except
pursuant to this Section 6(b).
(i) If the Grantee desires to sell any Option Shares, then prior
thereto, the Grantee shall first obtain a bona fide written offer from an
independent third party for the purchase for cash of such Option Shares (the
Option Shares being subject to the bona fide offer being hereinafter referred to
as the "Offered Option Shares"). The Grantee shall then deliver to the Company
written notice stating the terms of the bona fide offer, the name and address of
the person making the offer and a copy of the offer (hereinafter referred to as
the "Notice").
(ii) Simultaneously with delivery of the Notice, the Grantee shall
offer in writing to sell to the Company the Offered Option Shares, on terms at a
price per share at least as favorable to the Company as the price and terms
stipulated in the Notice (the "Offer Price"). The Company may (and, at the
written direction of the Company's Board of Directors, purchase all (but not
less than all) of the Offered Option Shares by delivering written notice thereof
to the Grantee within 45 days after receipt by the Company of the Notice.
(iii) If the Company does not exercise its option granted pursuant
to Section 6(b)(ii) hereof, the Grantee may sell all (but not less than all) of
the Offered Option Shares, but only to the person making, and in accordance with
the terms and conditions of, the bona fide offer accompanying the Notice, and
subject to the conditions that (i) such sale is consummated no later than 45
days following the expiration of the offer to the Company described in Section
6(b)(ii) hereof, and (ii) the purchaser agrees in writing to be bound by the
terms of this Agreement and the Stockholders Agreement dated August 31, 1996 by
and among the Company and the Company's stockholders as a stockholder by
executing counterparts to such agreements. if such sale has not been consummated
within such 45 day period, the offered Option Shares shall then become subject
to all the restrictions of this Agreement.
(iv) Should Grantee be deemed by the Company's Board of Directors
to have violated any of the restrictions set forth herein, the Company shall
have the right, but not the obligation, for a period of sixty (60) days
following such determination, to repurchase all of the Option Shares then owned
of record by Grantee at the Exercise Price.
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(c) This Agreement sets forth the entire agreement and understanding
between the parties as to the subject matter hereof and supersedes all prior
discussions, agreements and understandings of any and every nature between them.
7. Governing Law.
The validity, construction, interpretation and effect of this
Agreement shall exclusively be governed by and determined in accordance with the
law of the state of Delaware, except to the extent pre-empted by federal law,
which shall to that extent govern.
IN WITNESS WHEREOF, the parties having read the foregoing document
and having agreed to it, REAL MEDIA, INC. has caused its duly authorized
officers to execute and attest to this Agreement and to apply the corporate seal
hereto, and the Grantee has placed his signature hereon, effective as of the
Date of Grant.
ATTEST: REAL MEDIA, INC.
By:
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Its Secretary Its:
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Grantee
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