1996 Director Option Plan - Open Market Inc.
OPEN MARKET, INC.
AMENDED AND RESTATED 1996 DIRECTOR OPTION PLAN
1. PURPOSE.
The purpose of this Amended and Restated 1996 Director Stock Option
Plan (the "Plan") of Open Market, Inc. (the "Company") is to encourage ownership
in the Company by outside directors of the Company whose continued services are
considered essential to the Company's future progress and to provide them with a
further incentive to remain as directors of the Company.
2. ADMINISTRATION.
The Board of Directors shall supervise and administer the Plan. Grants
of stock options under the Plan and the amount and nature of the awards to be
granted shall be automatic in accordance with Section 5. However, all questions
concerning interpretation of the Plan or any options granted under it shall be
resolved by the Board of Directors and such resolution shall be final and
binding upon all persons having an interest in the Plan.
3. PARTICIPATION IN THE PLAN.
Directors of the Company who are not founders or full-time employees of
the Company or any subsidiary of the Company ("outside directors") and who first
become members of the Board of Directors after the closing date (the "Closing
Date") of the Company's initial public offering of Common Stock pursuant to an
effective registration statement under the Securities Act of 1933 (the "Initial
Public offering") shall be eligible to receive Initial Options (as defined
below) under the Plan. All outside directors of the Company shall be eligible to
receive Additional Options (as defined below) under the Plan.
4. NON-STATUTORY OPTIONS.
All options granted under the Plan shall be non-statutory options not
entitled to special tax treatment under Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code").
5. TERMS, CONDITIONS AND FORM OF OPTIONS.
Each option granted under the Plan shall be evidenced by a written
agreement in such form as the Board of Directors shall from time to time
approve, which agreements shall comply with and be subject to the following
terms and conditions:
(a) OPTION GRANT DATES. Options shall automatically be granted to
all eligible outside directors as follows:
(i) each person who first becomes an eligible outside
director after the Closing Date shall be granted an option ("Initial Option") to
purchase 20,000 shares of Common Stock of the Company (the "Common Stock").
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(ii) each eligible outside director shall be granted an
additional option ("Additional Option") to purchase 10,000 shares of Common
Stock on the dated of each Annual Meeting of Stockholders of the Company,
provided that he or she continues to serve as a director immediately following
such Annual Meeting.
(b) OPTION EXERCISE PRICE. The option exercise price per share for
each Initial Option and Additional Option shall be determined as follows: (i) if
the Common Stock is listed on the Nasdaq National Market or another nationally
recognized exchange or trading system as of the Option Grant Date, the option
exercise price shall be deemed to be the lesser of (x) the last reported sale
price per share of Common Stock thereon on such date (or if no such price is
reported on such date, such pride on the nearest preceding date on which such a
price is reported) or (y) the average of the last reported sales price per share
of Common Stock, as published in The Wall Street Journal, for a period of ten
consecutive trading days prior to such date; and (ii) if the Common Stock is not
listed on the Nasdaq National Market or another nationally recognized exchange
or trading system as of the Option Grant Date, the exercise price per share
shall be deemed to be the fair market value of the Common Stock as of the Option
Grant Date as determined in good faith by the Board of Directors.
(c) OPTIONS NON-TRANSFERABLE. To the extent required to qualify
for the exemption provided by Rule 16b-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), any option granted under the Plan to an
optionee shall not be transferable by the optionee other than by will or the
laws of descent and distribution or pursuant to a qualified domestic relations
order as defined by the Code or Title I of the Employee Retirement Income
Security Act, or the rules thereunder, and shall be exercisable during the
optionee's lifetime only by the optionee or the optionee's guardian or legal
representative.
(d) VESTING PERIOD.
(i) GENERAL. Each option described in Section 5(a) shall
become exercisable as to 25% of the shares subject to such option on the first
anniversary of the date of grant and in 12 equal quarterly installments
thereafter; provided, however, that for each such installment the optionee
continue to serve as a director on such date.
(ii) ACCELERATION UPON CHANGE-IN CONTROL. Notwithstanding
the foregoing, each outstanding option granted under the Plan shall immediately
become exercisable in full in the event a Change in Control (as defined in
Section 8) of the Company occurs.
(e) TERMINATION. Each option shall terminate, and may no longer be
exercised, on the earlier of the (i) the date 10 years after the Option Grant
Date or (ii) the date 60 days after the optionee ceases to serve as a director
of the Company; provided that, in the event an optionee ceases to serve as a
director due to his or her death or disability (within the meaning of Section
22(e)(3) of the Code or any successor provision), then the exercisable portion
of the option may be exercised, within the period of 180 days following the date
the optionee ceases to serve as a director (but in no event later than 10 years
after the Option Grant Date), by the optionee or by the person to whom the
option is transferred by will, by the laws of descent and distribution, or by
written notice pursuant to Section 5(g).
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(f) EXERCISE PROCEDURE. An option may be exercised only by written
notice to the Company at its principal office accompanied by payment in cash of
the full consideration for the shares as to which the option is exercised.
(g) EXERCISE-BY REPRESENTATIVE FOLLOWING DEATH OF DIRECTOR. An
optionee, by written notice to the Company, may designate one or more persons
(and from time to time change such designation), including his or her legal
representative, who, by reason of the optionee's death, shall acquire the right
to exercise all or a portion of the option. If the person or persons so
designated wish to exercise any portion of the option, they must do so within
the term of the option as provided herein. Any exercise by a representative
shall be subject to the provisions of the Plan.
6. LIMITATION OF RIGHTS.
(a) NO RIGHT TO CONTINUE AS A DIRECTOR. Neither the Plan, nor the
granting of an option nor any other action taken pursuant to the Plan, shall
constitute or be evidence of any agreement or understanding, express or implied,
that the Company will retain the optionee as a director for any period of time.
(b) NO STOCKHOLDERS' RIGHTS FOR OPTIONS. An optionee shall have no
rights as a stockholder with respect to the shares covered by his or her option
until the date of the issuance to him or her of a stock certificate therefor,
and no adjustment will be made for dividends or other rights (except as provided
in Section 7) for which the record date is prior to the date such certificate is
issued.
7. ADJUSTMENT PROVISIONS FOR MERGERS, RECAPITALIZATIONS AND RELATED
TRANSACTIONS.
If, through or as a result of any merger, consolidation,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split, or other similar transaction, (i) the outstanding shares of
Common Stock are exchanged for a different number or kind of securities of the
Company or of another entity, or (ii) additional shares or new or different
shares or other securities of the Company or of another entity are distributed
with respect to such shares of Common Stock, the Board of Directors shall make
an appropriate and proportionate adjustment in (x) the maximum number and kind
of shares reserved for issuance under the Plan, (y) the number and kind of
shares or other securities subject to then outstanding options under the Plan,
and/or (y) the price for each share subject to any then outstanding options
under the Plan (without changing the aggregate purchase price for such options),
to the end that each option shall be exercisable, for the same aggregate
exercise price, for such securities as such optionholder would have held
immediately following such event if he had exercised such option immediately
prior to such event. No fractional shares will be issued under the Plan on
account of any such adjustments.
8. CHANGE IN CONTROL. For purposes of the Plan, a "Change in Control"
shall be deemed to have occurred only if any of the following events occurs: (i)
any "person", as such term is used in Sections 13(d) and 14(d) of the Exchange
Act (other than the Company, any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, or any corporation owned directly
or indirectly by the stockholders of the Company in substantially the same
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proportion as their ownership of stock of the company), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities; (ii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation; (iii) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets; or (iv) individuals who, on the date
on which the Plan was adopted by the Board of Directors, constituted the Board
of Directors of the Company, together with any new director whose election by
the Board of Directors or nomination for election by the Company's stockholders
was approved by a vote of at least a majority of the directors then still in
office who were directors on the date on which the Plan was adopted by the Board
of Directors or whose election or nomination was previously so approved, cease
for any reason to constitute at least a majority of the Board of Directors.
9. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS.
The Board of Directors shall have the power to modify or amend
outstanding options; provided, however, that no modification or amendment may
(i) have the effect of altering or impairing any rights or obligations of any
option previously granted without the consent of the optionee, or (ii) modify
the number of shares of Common Stock subject to the option (except as provided
in Section 7).
10. TERMINATION AND AMENDMENT OF THE PLAN.
The Board of Directors may suspend, terminate or discontinue the Plan
or amend it in any respect whatsoever; provided, however, that without approval
of the stockholders of the Company, no amendment may (i) increase the number of
shares subject to the Plan (except as provided in Section 7), (ii) materially
modify the requirements as to eligibility to receive options under the Plan, or
(iii) materially increase the benefits accruing to participants in the Plan; and
provided further that the Board of Directors may not amend the provisions of
Sections 3, 5(a) or 5(b) more frequently than once every six months, other than
to comply with changes in the Code or the rules thereunder.
11. NOTICE.
Any written notice to the Company required by any of the provisions of
the Plan shall be addressed to the Controller of the Company and shall become
effective when it is received.
12. GOVERNING LAW.
The Plan and all determinations made and actions taken pursuant hereto
shall be governed by the laws of the State of Delaware.
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13. STOCKHOLDER APPROVAL.
The Plan is conditional upon stockholder approval of the Plan within
one year from its date of adoption by the Board of Directors. No option under
the Plan may be exercised until such stockholder approval is obtained, and the
Plan and all options granted under the Plan shall be null and void if the Plan
is not so approved by the Company's stockholders.
First adopted by the Board of
Directors on April 8, 1996
First adopted by the Stockholders of
the Company on April 24, 1996
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