1997 Stock Option and Incentive Plan - Digital Island Inc.
DIGITAL ISLAND, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
1. GENERAL
1.1 Purpose
This Stock Option and Incentive Plan (the "Plan") is intended to provide
incentives and encourage stock ownership on the part of officers and selected
key employees of Digital Island, Inc. (the "Company"). The purpose of the Plan
is to provide certain employees with a proprietary interest in the Company and
to encourage them to remain in the employ of and to increase their efforts on
behalf of the Company. The term "Company," as used in this Plan, includes
Digital Island, Inc. and any of its "subsidiary corporations" which meet the
definition of subsidiary corporation contained in Section 425(f) of the Code.
The Plan permits the grant of stock options, restricted stock, stock
appreciation rights, dividend equivalents and performance awards (sometimes
referred to in this Plan, collectively, as "Awards"). The Plan also permits the
grant of incentive stock options ("Incentive Stock Options") within the meaning
of Section 422A of the Internal Revenue Code of 1986, as amended (the "Code"),
and the grant of other options that do not constitute Incentive Stock Options
("Nonqualified Stock Options"), Incentive stock options and nonqualified stock
options granted under this Plan are sometimes referred-to in this Plan,
collectively, as "Options." The recipients of Options or Awards are referred to,
individually, as "Optionee" and, collectively, as "Optionees."
1.2 Administration
The Plan will be administered by the Board of Directors of the Company (the
"Board").
The Board will have full and complete authority to promulgate such rules
and regulations as it deems desirable for administering and interpreting the
Plan. All determinations, decisions and computations made by the Board under
this Plan and all interpretations by the Board of any provisions of this Plan or
of any Option or Award will be in the Board's sole and absolute discretion and
will be final and conclusive. No member of the Board will be liable for any an
or determination made in good faith with respect to the Plan or any Option or
Award.
The Board may delegate all or any portion of its authority, rights, duties
or obligations to such other person(s) as the Board will determine from time to
time, except that only the Board can make grants to persons who are subject to
Section 16 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
1.3 Eligibility
Subject to the terms and conditions of this Plan, the Board will determine
which employees and/or other individuals will be granted Options and/or Awards
and the terms and conditions of the Options and/or Awards.
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1.4 Shares of Stock Subject to the Plan
The shares that may be issued under the Plan will be authorized and
unissued or reacquired shares of the Company's common stock (the "Common
Stock"). The aggregate number of shares which may be issued under the Plan will
not exceed shares of Common Stock, as adjusted in accordance with Session
4. If an option or Award is exercised or otherwise paid, the number of shares of
Common Stock to which the exercise or payment relates will be charged against
the maximum amount of Common Stock that may be delivered pursuant to the Plan
and, if applicable, pursuant to the Option or Award.
If an Option or Award expires or is canceled for any reason without having
been fully exercised or vested, the number of shares subject to that Option or
Award which were not purchased or did not vest may again be made subject to
either an Option or an Award (to the same person or to a different person).
1.5 Amendment of the Plan
The Board may, insofar as permitted by law, from time to time, suspend or
discontinue the Plan or reuse or amend the Plan in any respect whatsoever,
except that no amendment will alter or impair any rights or obligations under
any Options or Awards without the consent of the affected Optionee(s).
1.6 Term of Plan
The Plan will become effective on January 1, 1997. Subject to suspension or
discontinuation of the Plan, Options and Awards may be granted under the Plan at
any time after the Plan becomes effective and until January 1, 2007, on which
date the Plan will terminate. Notwithstanding the foregoing, each Option and
Award granted under the Plan will remain in effect until such Option or Award
has been satisfied by the issuance of shares or terminated in accordance with
its terms and the terms of the Plan.
1.7 Other Provisions
The Option Agreements and other agreements authored under this Plan may
contain provisions not expressly set forth in this Plan, including without
limitation, restrictions upon the exercise of the Option or restrictions
required by any applicable securities laws, as the Board deems advisable.
1.8 Restrictions
The Board may impose as a condition of the exercise of any Award or Option,
that the shares subject to any Award or Option are listed, registered or
qualified under the rules of any securities exchange or under any state or
federal law or regulation and, in that event, the affected Options or Awards may
not be exercised (in whole or in part) unless and until the Board's condition
has been met.
1.9 Nonassignability
No Option or Award will be assignable or transferable by the Optionee,
except by will or by the laws of descent and distribution. During the lifetime
of the Optionee, the Option or Award will be exercisable only by that optionee,
and no other person will acquire any rights in the Option or Award.
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1.10 Withholding Taxes
Whenever shares are to be issued, or cash is to be paid, under the Plan,
the Company will have the right to require the Optionee to remit to the Company
an amount adequate to satisfy federal, stale and local withholding tax
requirements prior to the delivery of any certificate for the shares or the
payment of the cash. The Company may deduct withholding taxes from any shares or
cash paid under the Plan.
1.11 Definition of "Fair Market Value"
For the purposes of the Plan, the term "Fair Market Value" will mean, with
respect to a share of Common Stock as of any particular date, (i) the closing
sales price of a share of Common Stock on the principal national securities
exchange (as designated by the Board) for the last preceding date on which there
was a sale of the Common Stock on such exchange; or (ii) if the Common Stock is
not then listed on a national securities exchange, then the average of the
closing bid and asked prices for the shares of Common Stock on the over-the-
counter market on which the shares are traded (or, if more than one, then the
one designated by the Board) for the last preceding date (within the preceding
30-day period) on which there was a sale of the Common Stock in that market; or
(iii) if there has been no reported sale of the Common Stock on an over-the-
cover market within that period, then the average of the closing bid and asked
prices for e shares of Common Stock on the National Association of Securities
Dealers' Automated Quotations System ("NASDAQ"), or any comparable system (as
designated by the Board) on which the shares are listed, on the last preceding
date for which there are closing bid and asked prices; or (iv) if the Common
Stock is not then listed on NASDAQ or any comparable system, then the closing
sales price or, if no reported sale has taken place within the preceding 30-day
period, the average of the closing bid and asked prices, as furnished by any
member of the National Association of Securities Dealers selected from time to
time by the Board for that purpose, for the last preceding date for which there
was a closing sales price or closing bid and asked prices; or (v) if no such
sales or bid and asked prices are available, then the fair market value of a
share of the Common Stock on that date as determined in good faith by the Board.
2. INCENTIVE STOCK OPTIONS
2.1 Award of Incentive Stock Options
Incentive Stock Options may be granted to any employee under all the terms
and conditions contained in this Plan; provided that, during any calendar year,
the aggregate Fair Market Value (determined as of the date of grant) of the
stock with respect to any Incentive Stock Options which are exercisable for the
first time by any one Optionee will not exceed $100,000.
2.2 Term of Options
The term of any Incentive Stock Option shall not exceed ten years from the
date of grant; provided that, the term of any Incentive Stock Option will not
exceed five years from the date of grant if it is issued to a person who, at the
time of the grant and in accordance with Section
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425(d) of the Code, owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company.
2.3 Cancellation of and Substitution for Options
With the agreement of Optionee, the Board may cancel any Option at any time
and grant to the same Optionee in substitution a new Option containing terms and
conditions determined by the Board, subject to the express limitations provided
in this Plan.
2.4 Terms and Conditions of Options
All Options will be evidenced by written agreements (individually, "Option
Agreement" collectively, "Option Agreements") containing terms and conditions
determined by the Board from time to time; provided that, each Option Agreement
will comply with the following terms and conditions:
(a) Number of Shares and Type of Option
Each Option Agreement will state the number of shares to which the
Option pertains and whether the Option is intended to be an Incentive Stock
Option or a Nonqualified Stock Option.
(b) Option Price
Each Option Agreement will state the Option price per share (or the
method by which the price will be computed). In the case of an Incentive Stock
Option, the option price will be not less than 100% of the Fair Market Value of
a share of the Common Stock on the date the Incentive Stock Option is printed.
Notwithstanding the foregoing, if the Incentive Stock Option is granted to a
person who, on the date of the grant and in accordance with Section 425(d) of
the Code, owns stock possession more than 10% of the total combined voting power
of all classes of stock of the Company, then the price will be not less than
110% of the Fair Market Value of a share of the Common Stock on the date the
Incentive Stock Option is granted.
(c) Medium and Time of Payment
The Option price will be due and payable upon the exercise of the
Option and payment will be made in cash, in shares of the Common Stock or in a
combination of cash and shares. The Board may permit some or all of a cash
payment to be made pursuant to a promissory note from the Optionee, subject to
those terms and conditions determined by the Board. Upon receipt of payment, the
Company will deliver to the Optionee (or person entitled to exercise the option)
a certificate or certificates for the appropriate number shares of Common Stock.
(d) Exercise of Options
Each Option will state the time(s) when it becomes exercisable. The
Board may waive any vesting provisions contained in an Option Agreement. To the
extent that an Option has become vested, and subject to the foregoing
restrictions, it may be exercised in whole or in such lesser amount as may be
authorized by the Option Agreement. If exercised in part, the unexercised
portion of an Option will continue to be held by the Optionee under the terms
and conditions of the Option Agreement and this Plan.
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(e) Termination and Transfer of Options
An Option Agreement may provide for the termination of all or any
portion of an Option under certain circumstances, including, without limitation,
termination of the Optionee's employment or service as a result of resignation,
retirement, disability or death, or for cause, and may distinguish among various
causes of termination as the Board deems appropriate.
3. OTHER AWARDS
3.1 General
The Board may grant the Awards described in this Section. All Awards (other
than Options) will be evidenced by a written agreement(s) containing the terms
and conditions determined by the Board from time to time.
3.2 Restricted Stock.
The Board may award restricted stock to officers and key employees of the
Company. The number of shares of Common Stock to be delivered, the date of
delivery, the price, if any, to be paid for the shares, the dividend, voting and
other shareholder rights and the restrictions imposed on the shares will be
determined by the Board and set forth in a restricted stock agreement.
3.3 Stock Appreciation Rights.
(a) Award of Stock Appreciation Rights
Stock appreciation rights may be related or unrelated to Options or
other Awards, and may extend to all or a portion of the shares covered by a
related Option or Award. Stock appreciation rights may be awarded at any time,
unless related to an Incentive Stock Option, in which case they may be awarded
only at the time of the grant of the related Incentive Stock Option. The terms
and conditions of the exercise of stock appreciation rights will be determined
by the Board and set forth in a stock appreciation rights agreement.
(b) Payment
(i) Upon the exercise of a stock appreciation right and, if such
stock appreciation right is related to an Option, surrender of an
exercisable portion of the related Option, the employee will be entitled to
receive payment of an amount determined by multiplying: (A) the difference
obtained by subtracting (x) the purchase price of a share of Common Stock
specified in the related Option or, if such stock appreciation right is
unrelated to an Option, the initial share value specified in the award of a
share of Common Stock, from (y) the Fair Market Value (or other method of
valuation as determined by the Board) a share of Common Stock on the date
of exercise of such stock appreciation right, by (B) the number of shares
as to which such stock appreciation right has been exercised.
(ii) The Company may pay the amount determined under the preceding
paragraph in cash, in shares of Common Stock (valued at Fair Market Value
on the
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business day next preceding the date of exercise of the stock appreciation
right), or a combination of cash and shares.
3.4 Performance Awards
The Board may grant one or more performance awards to any officer or key
employee of the Company. The value of such awards will be determined based on
the Fair Market Value of the Common Stock or any other performance criteria
determined appropriate by the Board. In making its determinations, the Board
will consider (among such other factors as it deems relevant in light of the
specific type of award) the contributions, responsibilities and other
compensation of the Optionee. The payment of performance awards may be made in
shares of Common Stock, or in cash, or a combination of cash and shares.
3.5 Dividend Equivalents
Under the terms and conditions determined by the Board, an Optionee may be
granted dividend equivalents based on the dividends declared and paid on the
Common Stock covered by the Option or Award during the period between the date
the Option or Award is granted and the date the Option or Award is exercised,
vests or expires, as determined by the Board. Dividend equivalents may be
granted concurrently with or subsequent to the grant of an Option or Award;
provided that, any dividend equivalent relating to an Incentive Stock Option may
be granted only concurrently with the grant of the Incentive Stock Option.
3.6 Deferral of Awards
Payment of any portion or all of an Award may be deferred by the Board in
accordance with guidelines established by the Board. Without limiting the
generality of the foregoing, the Board may provide for (i) the crediting of
interest on cash payments that are deferred (and setting the rates(s) of
interest) and (ii) the crediting of dividends or dividend equivalents on
deferred payments denominated in the form of shares.
3.7 Termination of Awards
An award agreement may provide for the termination of all or any portion of
an Award under certain circumstances, including, without limitation, termination
of the Optionee's employment or service as a result of resignation, retirement,
disability or death, or for cause, and may distinguish among various causes of
termination as the Board deems appropriate.
4. RECAPITALIZATION AND REORGANIZATION
4.1 Stock Dividends, etc.
The number of shares of Common Stock covered by figs Plan, and the number
of shares and price per share of each outstanding Option and Award, will be
proportionately adjusted for any increase or decrease in the number of issued
and outstanding shares of Common Stock resulting from a subdivision or
consolidation of shares, or the payment of a stock dividend, or any other
increase or decrease in the number of issued and outstanding shares of Common
Stock effected without receipt of consideration by the Company.
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4.2 Mergers, etc.
If the Company is the surviving corporation in any merger or consolidation,
each outstanding Option and Award will apply to the same number and type of
securities in the new entity that would have been received if the Option or
Award had been fully exercised and the Optionee had become the holder of the
shares of Common Stock that are subject to the Option or Award. In the event of
dissolution or liquidation of the Company or a merger or consolidation in which
the Company is not the surviving corporation, each outstanding Option and Award
will be terminated, unless the agreement of merger or consolidation otherwise
provides (a "Terminating Transaction"); provided, however, each Optionee will
have the right immediately prior to the Terminating Transaction to exercise each
Option or Award in whole or in part, subject to the limitations required by the
Code.
4.3 General
Any adjustments required under this Section will be made by the Board
pursuant to Section 1.2 (Administration). The grant of an Option or Award will
not affect in any way the Company's right or power to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell, or to
transfer all or any part of its business or assets.
5. MISCELLANEOUS PROVISIONS
5.1 Rights as a Shareholder
No Optionee (or transferee) will have any rights as a shareholder of the
Company with respect to any shares covered by an Option or Award until the
exercise of the Option or Award and the receipt by the Company of all payments
due under this Plan. No adjustment will be made with respect to any Option or
Award for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights prior to the exercise of the
Option or Award and the receipt by the Company of all payments due under this
Plan, except as expressly provided in this Plan.
5.2 Modification, Extension and Renewal of Options and Awards
Subject to the terms and conditions of this Plan, the Board may modify,
extend, renew or cancel outstanding any Options and/or Awards; provided that,
any change which impairs or diminishes any rights or obligations under any
Option or Award will require the affected Optionee(s) consent.
5.3 Application of Funds
The proceeds received by the Company from the sale of Common Stock pursuant
to the exercise of Options will be used for general corporate purposes.
5.4 No Obligation to Exercise Option or Award
The granting of an Option or Award will not impose any obligation upon the
Optionee (or any transferee) to exercise the Option or Award.
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5.5 Not an Employment Agreement
Nothing in this Plan or in any Option or Award granted under this Plan will
affect the right of the Company to terminate at any time or for any reason the
employment of any Optionee.
5.6 Securities Law Requirements
(a) Investment Representation
The Board may require any person, as a condition of either the grant
or the exercise of an Option or Award pursuant to this Plan, to represent and
establish to the satisfaction of the Board that all shares of Common Stock
required upon the exercise of such Option or Award will be acquired for
investment and not for distribution.
(b) Registration Requirements
No shares of Common Stock will be issued upon the exercise of any
Option or Award if counsel for the Company determines that there has not been
met any applicable registration requirements under the Exchange Act or the
Securities Act of 1933, as mended, any applicable listing requirement of any
stock exchange on which the Common Stock is listed, any state securities law or
any other applicable provision of state or federal law.
(c) Information to Optionees
The Company will provide to each Optionee, during the period for which
he or she has one or more options or awards outstanding, copies of all annual
reports and other information which are provided to all shareholders of the
Company. The Company will not be required to provide such information if the
issuance of options under the Plan is limited to key employees whose duties in
connection with the Company assure their access to equivalent information.
5.7 Shareholder Approval
This Plan is subject to the approval of the shareholders of the Company on
or before January 1, 1998, and any Option Agreement entered into under this Plan
before that approval will contain a provision to the effect that the exercise of
that Option is subject to shareholder approval.
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