EXHIBIT 99.4
FORM OF NONSTATUTORY STOCK OPTION AGREEMENT
VALUECLICK, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
THIS NONSTATUTORY STOCK OPTION AGREEMENT (the "Agreement") is made and
entered into to be effective as ________, (the "Effective Date"), by and between
ValueClick, Inc., a Delaware corporation (the "Company"), and _______ (the
"Optionee"), pursuant to the Company's 1999 Stock Option Plan (the "Plan").
R E C I T A L S
A. This Agreement, and the Options granted hereunder, are executed and
granted under the terms of the ValueClick, Inc. 1999 Stock Option Plan, a copy
of which is attached hereto as Exhibit A (the "Plan"), which reserves for
issuance to persons serving the Company as consultants or directors certain
shares of the Company's Common Stock (hereinafter called the "Common Stock").
B. 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 a nonstatutory stock option, as hereinafter provided.
C. The Optionee desires to accept the Options hereby granted and to
comply with the terms and conditions of this Agreement and of the Plan as a
condition thereto.
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" or the "Options") 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
be a nonstatutory stock option.
2. PURCHASE PRICE
The purchase price of the Option Shares shall be $____ per share, which
price has been determined by the Board of Directors (the "Board") or the Stock
Option Committee (hereinafter called the "Committee") appointed by the Board to
be 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. The Options shall be exercisable in
accordance with the terms of this Agreement for a period of ten (10) 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 Agreement, and
the Options, 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 exercised, whichever first occurs.
(b) VESTING SCHEDULE. Subject to the provisions of paragraph
(a) above and Sections 3(e) and 8, below, the Options shall be and become
exercisable as follows:
(i) The Option vesting start date ("Vesting
Start Date") shall be ________.
(ii) All Options shall be fully vested at the
Vesting Start Date.
(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 CONSULTANCY/DIRECTORSHIP.
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 a
consultant or director and shall have continuously held such status with 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 CONSULTANCY/DIRECTORSHIP
(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 consultancy or directorship 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 RELATIONSHIP. 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 a
consultant or director for any specific period of time. Except as may otherwise
be agreed to in writing between the Company and the Optionee, any consulting
arrangement 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.
(i) GENERAL. If, during the Option Term as
described in Section 3(a), above, the Optionee's consultancy, or directorship
is terminated for any reason other than his or her death or disability, or
for cause, and whether at the instance of the Company or the Optionee, then
any Options or unexercised portion thereof held by such Optionee shall
terminate unless exercised within thirty (30) days after the date on which
the Optionee's consultancy or directorship shall have ceased, but not after
the termination date described in Section 3(a), above.
(ii) TERMINATION UPON DEATH OR DISABILITY. If,
during the Option Term as described in Section 3(a), above, the Optionee's
consultancy or directorship is terminated as a result of his or her (i)
death, or (ii) disability as defined in either Section 422(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.
(iii) TERMINATION FOR CAUSE. In the event that any
Optionee's consultancy, or Directorship shall be terminated for cause, any
and all Options then remaining unexercised shall, effective immediately upon
such termination and without any requirement of further notice, terminate,
and shall thereafter be void and unexercisable. For purposes of this Section
6, the term "cause" shall include (A) any conviction of a felony or of a
misdemeanor involving theft or the misappropriation of funds, (B) any willful
failure or willful refusal without proper cause to perform fully the
Optionee's obligations to the Company as directed by the Board of Directors,
or (C) any material breach of the Optionee's fiduciary obligations to the
Company or its stockholders.
(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 consultancy or directorship
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.
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 written notice, 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 the 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 it 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 to the Optionee, or at his
direction, a certificate (or certificates) representing the shares as to
which the Option shall have been exercised.
(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 the 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. 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 10 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 its 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.
In light of the nonstatutory nature of the Option, the
Optionee will (again, under the current Internal Revenue Code (the "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 is exercised. 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. 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 state)
located in the County of Santa Barbara, 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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(signature)
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(print name)
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(title)
OPTIONEE:
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(signature)
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(address)
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(telephone/facsimile numbers)
