-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DlosksN4Ho83679VaD6fT5Et4WsY1VFudrge4RD31Um1HO5Xe4lwM/jSRAYV5t+i 1KfI5b0pxg87eytQcLdKvA== 0000950117-01-500298.txt : 20010514 0000950117-01-500298.hdr.sgml : 20010514 ACCESSION NUMBER: 0000950117-01-500298 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20010511 EFFECTIVENESS DATE: 20010511 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DOUBLECLICK INC CENTRAL INDEX KEY: 0001049480 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING [7310] IRS NUMBER: 133870996 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-60746 FILM NUMBER: 1630535 BUSINESS ADDRESS: STREET 1: 450 W 33RD ST STREET 2: 16TH FL CITY: NEW YORK STATE: NY ZIP: 10001 BUSINESS PHONE: 2126830001 MAIL ADDRESS: STREET 1: 450 W 33RD ST STREET 2: 16TH FL CITY: NEW YORK STATE: NY ZIP: 10001 S-8 1 a29654.txt DOUBLECLICK, INC As filed with the Securities and Exchange Commission on May 11, 2001 Registration No. 333-_____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------- FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 -------------------------- DOUBLECLICK INC. (Exact name of issuer as specified in its charter) Delaware 13-3870996 (State or other jurisdiction (IRS Employer Identification No.) of incorporation or organization)
450 West 33rd Street New York, New York 10001 (Address of principal executive offices) (Zip Code) -------------------------- FloNetwork Inc. Share Incentive Plan (Full title of the plans) -------------------------- Kevin P. Ryan Chief Executive Officer DoubleClick Inc. 450 West 33rd Street New York, New York 10001 (Name and address of agent for service) (212) 683-0001 (Telephone number, including area code, of agent for service) -------------------------- CALCULATION OF REGISTRATION FEE
Amount to be Offering Price Aggregate Amount of Title of Securities to be Registered Registered (1) per Share(2) Offering Price Registration Fee - --------------------------------------------------------------------------------------------------------------------- FloNetwork Inc. Share Incentive Plan Common Stock, no par value 422,800 $12.81 $5,416,068 $1,355 - ---------------------------------------------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of the Registrant's Common Stock which become issuable under the FloNetwork Inc. Share Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant's receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the weighted average exercise price of the outstanding options. ================================================================================ PART II Information Required in the Registration Statement Item 3. Incorporation of Documents by Reference DoubleClick Inc. (the "Registrant") hereby incorporates by reference in this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "SEC"): (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, filed with the SEC on March 13, 2001; (b) The Registrant's Current Report on Form 8-K filed with the SEC on March 22, 2001; and (c) The Registrant's Registration Statement No. 000-23709 on Form 8-A filed with the SEC on February 2, 1998 and amended on February 9, 1998 and December 1, 1998, in which there is described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock. All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Capital Stock Inapplicable. Item 5. Interests of Named Experts and Counsel Inapplicable. Item 6. Indemnification of Directors and Officers The amended and restated certificate of incorporation of the Registrant provides that, except to the extent prohibited by the Delaware General Corporation Law (the "DGCL"), no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director. Under the DGCL, the directors have a fiduciary duty to the Registrant which is not eliminated by this provision of the amended II-1 and restated certificate of incorporation and, in appropriate circumstances, equitable remedies such as injunctive or other forms of nonmonetary relief will remain available. In addition, each director will continue to be subject to liability under the DGCL for breach of the director's duty of loyalty to the Registrant, for acts or omissions not in good faith or involving intentional misconduct, for knowing violation of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are prohibited by the DGCL. This provision also does not affect the directors' responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. The Registrant has obtained liability insurance for its officers and directors. Section 145 of the DGCL empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers, provided that this provision does not eliminate or limit the liability of the director: (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) arising under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. The DGCL provides further that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under a corporation's certificate of incorporation or bylaws, any agreement, a vote of stockholders or otherwise. The Registrant's amended and restated certificate of incorporation eliminates the personal liability of directors to the fullest extent permitted by the DGCL and provides that the Registrant shall fully indemnify any person who was or is a party or is threatened to be made a party to, any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person is or was a director or officer of the Registrant, or is or was serving at the request of the Registrant as a director or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Item 7. Exemption from Registration Claimed Inapplicable. Item 8. Exhibits
Exhibit Number Exhibit - ------- ------- 4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 000-23709 on Form 8-A, and the exhibits thereto, which are incorporated herein by reference pursuant to Item 3(d) of this Registration Statement. 5 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 23.3 Consent of KPMG LLP, Independent Auditors.
II-2
Exhibit Number Exhibit - ------- ------- 24 Power of Attorney is contained in this Registration Statement. 99.1 FloNetwork Inc. Share Incentive Plan. 99.2 Form of Assumption Agreement.
Item 9. Undertakings A. The Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"), (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement, and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in this Registration Statement; (2) that for the purpose of determining any liability under the 1933 Act each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold upon the termination of the FloNetwork Inc. Share Incentive Plan. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Registrant. Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 11th day of May, 2001. DoubleClick Inc. By: /s/ Kevin P. Ryan ------------------------------------- Kevin P. Ryan Chief Executive Officer and Director II-4 POWER OF ATTORNEY We, the undersigned officers and directors of DoubleClick Inc., a Delaware corporation, hereby severally constitute and appoint Kevin P. Ryan and Stephen R. Collins, and each of them individually, with full powers of substitution and resubstitution, our true and lawful attorneys and agents, with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents determine may be necessary, advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signatures Title Date - --------------------------------------- ------------------------------------ ------------ /s/ Kevin J. O'Connor Chairman of the Board May 11, 2001 - --------------------------------------- Kevin J. O'Connor /s/ Kevin P. Ryan Chief Executive Officer and Director May 11, 2001 - --------------------------------------- Kevin P. Ryan /s/ Dwight A. Merriman Director May 11, 2001 - --------------------------------------- Dwight A. Merriman /s/ David N. Strohm Director May 11, 2001 - --------------------------------------- David N. Strohm /s/ Mark E. Nunnelley Director May 11, 2001 - --------------------------------------- Mark E. Nunnelley /s/ W. Grant Gregory Director May 11, 2001 - --------------------------------------- W. Grant Gregory /s/ Don Peppers Director May 11, 2001 - --------------------------------------- Don Peppers /s/ Thomas S. Murphy Director May 11, 2001 - --------------------------------------- Thomas S. Murphy /s/ Stephen R. Collins Chief Financial Officer (principal May 11, 2001 - --------------------------------------- financial officer) Stephen R. Collins /s/ Thomas Etergino Vice President, Corporate Finance May 11, 2001 - --------------------------------------- (principal accounting officer) Thomas Etergino
II-5 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 EXHIBITS TO FORM S-8 UNDER SECURITIES ACT OF 1933 DOUBLECLICK INC. EXHIBIT INDEX
Exhibit Number Exhibit - ------ -------- 4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 000-23709 on Form 8-A, and the exhibits thereto, which are incorporated herein by reference pursuant to Item 3(d) of this Registration Statement. 5 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 23.3 Consent of KPMG LLP, Independent Auditors. 24 Power of Attorney is contained in this Registration Statement. 99.1 FloNetwork Inc. Share Incentive Plan. 99.2 Form of Assumption Agreement.
EX-5 2 ex-5.txt EXHIBIT 5 EXHIBIT 5 OPINION OF BROBECK, PHLEGER & HARRISON LLP May 11, 2001 DoubleClick Inc. 450 West 33rd Street New York, New York 10001 Re: DoubleClick Inc. Registration Statement on Form S-8 for an aggregate of 422,800 Shares of Common Stock and Related Stock Options Ladies and Gentlemen: We have acted as counsel to DoubleClick Inc., a Delaware corporation (the "Company"), in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 422,800 shares of common stock (the "Shares") and related stock options for issuance under the FloNetwork Inc. Share Incentive Plan (the "Plan"). This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K. We have reviewed the Company's charter documents and the corporate proceedings taken by the Company in connection with the assumption of the Plan and the outstanding options thereunder. Based on such review, we are of the opinion that if, as and when the Shares have been issued and sold (and the consideration therefor received) pursuant to the provisions of option agreements duly authorized under the Plan and in accordance with the Registration Statement, such Shares will be duly authorized, legally issued, fully paid and non-assessable. We consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Plans or the shares of Common Stock issuable under the Plans. Very truly yours, /s/ Brobeck, Phleger & Harrison LLP ------------------------------------ BROBECK, PHLEGER & HARRISON LLP EX-23 3 ex23-1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 11, 2001, except as to Note 16 which is as of February 22, 2001, relating to the consolidated financial statements and financial statement schedule, which appears in DoubleClick Inc.'s Annual Report on Form 10-K for the year ended December 31, 2000. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP New York, New York May 7, 2001 EX-23 4 ex23-3.txt EXHIBIT 23.3 Exhibit 23.3 Consent of Independent Auditors The Board of Directors NetGravity, Inc. and Subsidiaries: We consent to the incorporation herein by reference in the registration statement on Form S-8 of DoubleClick Inc. of our report dated January 27, 1999, relating to the consolidated statements of operations, stockholders' equity (deficit), and cash flows of NetGravity, Inc. and subsidiaries for the year ended December 31, 1998, and the related financial statement schedule, which report appears in the December 31, 2000, annual report on Form 10-K of DoubleClick Inc. /s/ KPMG LLP San Francisco, California May 7, 2001 EX-99 5 ex99-1.txt EXHIBIT 99.1 EXHIBIT 99.1 FLONETWORK INC. SHARE INCENTIVE PLAN FLONETWORK INC. SHARE INCENTIVE PLAN 1. Purpose. The purpose of this Share Incentive Plan, as amended and restated from time to time (the "Plan") of FloNetwork Inc., a corporation incorporated under the laws of Ontario, Canada (the "Company"), is to advance the interests of the Company's shareholders by enhancing the Company's ability to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company by providing such persons with equity ownership opportunities and performance-based incentives and thereby better aligning the interests of such persons with those of the Company's shareholders. Except where the context otherwise requires, the term "Company" shall include any of the Company's present or future subsidiary corporations as defined in Section 424(f) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the "Code") and any other business venture (including, without limitation, joint venture or limited liability company) in which the Company has a significant interest, as determined by the Board of Directors of the Company (the "Board"). 2. Eligibility. All of the Company's employees, officers, directors, consultants and advisors (and any individuals who have accepted an offer for employment) are eligible to be granted options, restricted share awards, or other share-based awards (each, an "Award") under the Plan. Each person who has been granted an Award under the Man shall be deemed a "Participant". 3. Administration, Delegation. (a) Administration by Board of Directors. The Plan will be administered by the Board of Directors of the Company (the "Board"). The Board shall have authority to grant Awards and to adopt, amend and repeal such administrative rules, guidelines and practices relating to the Plan as it shall deem advisable. The Board may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency. All decisions by the Board shall be made in the Board's sole discretion and shall be final and binding on all persons having or claiming any interest in the Plan or in any Award. No director or person acting pursuant to the authority delegated by the Board shall be liable for any action or determination relating to or under the Plan made in good faith. (b) Delegation to Executive Officers. To the extent permitted by applicable law, the Board may delegate to one or more executive officers of the Company the power to make Awards and exercise such other powers under the Plan as the Board may determine, provided that the Board shall fix the maximum number of shares subject to Awards and the maximum number of shares for any one Participant to be made by such executive officers. (c) Appointment of Committees. To the extent permitted by applicable law, the Board may delegate any or all of its powers under the Plan to one or more committees or subcommittees of the Board (each a "Committee"). All references in the Plan to the "Board" shall mean the Board or a Committee or the executive officer referred to in Section 3(b) to the extent that the Board's powers or authority under the Plan have been delegated to such Committee or executive officer. (d) Accounts and Statements. The Company shall maintain records of the details of each Option granted to each Participant under the Plan, including the date of grant, Designated Amount and the Option Price of each Option, the number of common shares of the Company ("Common Shares") in respect of which the Option has been exercised and the maximum number of Common Shares which the Participant may still purchase under the Option. Upon request therefor from a Participant and at such other times as the Company shall determine, the Company shall furnish the Participant with a statement setting forth the details of his Options. Such statement shall be deemed to have been accepted by the Participant as correct unless written notice to the contrary is given to the Company within 30 days after such statement is given to the Participant. 4. Shares Available for Awards. (a) Number of Shares. Subject to adjustment under Section 8, Awards may be made under the Plan for up to 9,000,000 Common Shares of the Company. If any Award expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part or results in any Common Shares not being issued, the unused Common Shares covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Share Options (as hereinafter defined), to any limitation required under the Code. (b) Per-Participant Limit. Subject to adjustment under Section 8, for Awards granted after the Common Shares are registered under the Securities Exchange Act of 1934 (the "Exchange Act"), the maximum number of Common Shares with respect to which Awards may be granted to any Participant under the Plan shall be 1,750,000 per calendar year. The per-Participant limit described in this Section 4(b) shall be construed and applied consistently with Section 162(m) of the Code ("Section 162(m)"). 5. Share Options. (a) General. From time to time, the Board may grant one or more options to a Participant to purchase Common Shares (each, an "Option") in accordance with the Plan and determine the number of Common Shares to be covered by each Option, the exercise price of each Option and the conditions and limitations applicable to the exercise of each Option, including conditions relating to applicable federal or state securities laws, as it considers necessary or advisable. An Option which is not intended to be an Incentive Share Option (as hereinafter defined) shall be designated a "Nonstatutory Share Option". (b) Incentive Share Options. An Option that the Board intends to be an "incentive share option" as defined in Section 422 of the Code (an "Incentive Share Option") shall only be granted to employees of the Company and shall be subject to and shall be construed consistently with the requirements of Section 422 of the Code. The Company shall have no liability to a Participant, or any other party, if an Option (or any part thereof) which is intended to be an Incentive Share Option is not an Incentive Share Option. (c) Exercise Price. The Board shall establish the exercise price at the time each Option is granted and specify it in the applicable option agreement. (d) Duration of Options. Each Option shall be exercisable at such times and subject to such terms and conditions as the Board may specify in the applicable option agreement. (e) Exercise of Option. Options may be exercised by delivery to the Company of a written notice of exercise signed by the proper person or by any other form of notice (including electronic notice) approved by the Board delivered in accordance win Section 10, together with payment in full as specified in Section 5(f) for the number of shares for which the Option is exercised. (f) Payment Upon Exercise. Common Shares purchased upon the exercise of an Option granted under the Plan shall be paid for as follows: (1) in cash or by check, payable to the order of the Company; (2) except as the Board may, in its sole discretion, otherwise provide in an option agreement, by (i) delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price or (ii) delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price; (3) when the Common Shares are registered under the Exchange Act, by delivery of Common Shares owned by the Participant valued at their fair market value as determined by (or in a manner approved by) the Board in good faith ("Fair Market Value"), provided (i) such method of payment is then permitted under applicable law and (ii) such Common Shares were owned by the Participant at least six months prior to such delivery; (4) to the extent permitted by applicable law and the Board, in its sole discretion by (i) delivery of a promissory note of the Participant to the Company on terms determined by the Board, or (ii) payment of such other lawful consideration as the Board may determine; or (5) by any combination of the above permitted forms of payment. (g) Substitute Options. In connection with a merger or consolidation of an entity with the Company or the acquisition by the Company of property or shares of an entity, the Board may grant Options in substitution for any options or other shares or share-based awards granted by such entity or an affiliate thereof. Substitute Options may be granted on such terms as the Board deems appropriate in the circumstances, notwithstanding any limitations on Options contained in the other sections of this Section 5. 6. Restricted Shares (a) Grants. The Board may grant Awards entitling recipients to acquire Common Shares, subject to the right of the Company to repurchase all or part of such shares at their issue price or other stated or formula price (or to require forfeiture of such shares if issued at no cost) from the recipient in the event that conditions specified by the Board in the applicable Award are not satisfied prior to the end of the applicable restriction period or periods established by the Board for such Award (each, a "Restricted Share Award"). Any Common Shares repurchased by the Company shall be canceled in accordance with applicable Law. (b) Terms and Conditions. The Board shall determine the terms and conditions of any such Restricted Share, including the conditions for repurchase (or forfeiture) and the issue price, if any. Any share certificates issued in respect of a Restricted Share Award shall be registered in the name of the Participant and, unless otherwise determined by the Board, deposited by the Participant, together with a share power endorsed in blank, with the Company (or its designee). At the expiration of the applicable restriction periods, the Company (or such designee) shall deliver the certificates no longer subject to such restrictions to the Participant or if the Participant has died, to the beneficiary designated, in a manner determined by the Board, by a Participant to receive amounts due or exercise rights of the Participant in the event of the Participant's death (the "Designated Beneficiary"). In the absence of an effective designation by a Participant Designated Beneficiary shall mean the Participant's estate. 7. Other Share-Based Awards The Board shall have the right to grant other Awards based upon the Common Shares having such terms and conditions as the Board may determine, including the grant of shares based upon certain conditions, the grant of securities convertible into Common Shares and the grant of share appreciation rights. 8. Adjustments for Changes in Common Shares and Certain Other Events (a) Changes in Capitalization. In the event of any share split, reverse share split, share dividend, recapitalization of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any distribution to holders of Common Shares other than a normal cash dividend, (i) the number and class of securities available under this Plan, (ii) the per-Participant limit set forth in Section 4(b), (iii) the number and class of securities and exercise price per share subject to each outstanding Option, (iv) the repurchase price per share subject to each outstanding Restricted Share Award, and (v) the terms of each other outstanding Award shall be appropriately adjusted by the Company (or substituted Awards may be made, if applicable) to the extent the Board shall determine, in good faith, that such an adjustment (or substitution) is necessary and appropriate. If this Section 8(a) applies and Section 8(c) also applies to any event, Section 8(c) shall be applicable to such event, and this Section 8(a) shall not be applicable. (b) Liquidation or Dissolution. In the event of a proposed liquidation or dissolution of the Company, the Board shall upon written notice to the Participants provide that all then unexercised Options will (i) become exercisable in full as of a specified time at least 10 business days prior to the effective date of such liquidation or dissolution and (ii) terminate effective upon such liquidation or dissolution, except to the extent exercised before such effective date. The Board may specify the effect of a liquidation or dissolution on any Restricted Share Award or other Award granted under the Plan at the time of the grant of such Award (c) Acquisition Events (1) Definition. An "Acquisition Event" shall mean: (a) any merger, consolidation or amalgamation of the Company with or into another entity as a result of which the Common Share is converted into or exchanged for the right to receive cash, securities or other property or (b) any exchange of shares of the Company for cash, securities or other property pursuant to a statutory share exchange transaction or plan of arrangement. (2) Consequences of an Acquisition Event on Options. Upon the occurrence of an Acquisition Event, or the execution by the Company of any agreement approved by the Board with respect to an Acquisition Event, the Board shall provide that all outstanding Options shall be assigned, or equivalent options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof). For purposes hereof, an Option shall be considered to be assumed if, following consummation of the Acquisition Event, the Option confers the right to purchase, for each Common Share subject to the Option immediately prior to the consummation of the Acquisition Event, the consideration (whether cash, securities or other property) received as a result of the Acquisition Event by holders of Common Share for each Common Share held immediately prior to the consummation of the Acquisition Event (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Common Shares); provided, however, that if the consideration received as a result of the Acquisition Event is not solely common shares of the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the exercise of Options to consist solely of common shares of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in fair market value to the per share consideration received by holders of outstanding Common Shares as a result of the Acquisition Event. (3) Notwithstanding the foregoing, if the acquiring or succeeding corporation (or an affiliate thereof) does not agree to assume, or substitute for, such Options, then the Board shall, upon written notice to the Participants, provide that all then unexercised Options will become exercisable in full as of a specified time prior to the Acquisition Event and will terminate immediately prior to the consummation of such Acquisition Event, except to the extent exercised by the Participants before the consummation of such Acquisition Event; provided, however, that in the event of an Acquisition Event under the terms of which holders of Common Shares will receive upon consummation thereof a cash payment for each Common Share surrendered pursuant to such Acquisition Event (the "Acquisition Price"), then the Board may instead provide that all outstanding Options shall terminate upon consummation of such Acquisition Event and that each Participant shall receive, in exchange therefor, a cash payment equal to the amount (if any) by which (A) the Acquisition Price multiplied by the number of Common Shares subject to such outstanding Options (whether or not then exercisable), exceeds (B) the aggregate exercise price of such Options. (4) Consequences of an Acquisition Event on Restricted Share Awards. Upon the occurrence of an Acquisition Event, the repurchase and other rights of the Company under each outstanding Restricted Share Award shall inure to the benefit of the Company's successor and shall apply to the cash, securities or other property which the Common Shares converted into or exchanged for pursuant to such Acquisition whole or in part by delivery of Common Shares, including shares retained from the Award creating the tax obligation, valued at their Fair Market Value. The Company may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to a Participant. (d) Amendment of Award. The Board may amend, modify or terminate any outstanding Award, including but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise or realization, and converting an Incentive Share Option to a Nonstatutory Share Option, provided that the Participant's consent to such action shall be required unless the Board determines that the action, taking into account any related action, would not materially and adversely affect the Participant. (e) Conditions on Delivery of Shares. The Company will not be obligated to deliver any Common Shares pursuant to the Plan or to remove restrictions from shares previously delivered under the Plan until (i) all conditions of the Award have been met or removed to the satisfaction of the Company, (ii) in the opinion of the Company counsel, all other legal maters in connection with the issuance and delivery of such shares have been satisfied, including any applicable securities laws and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirements of any applicable laws, rules or regulation. (f) Acceleration. The Board may at any time provide that any Options shall become immediately exercisable in full or in part, that any Restricted Share Awards shall be free of restrictions in full or in part or that any other Awards may become exercisable in full or in part or free of some or all restrictions or conditions, or otherwise realizable in full or in part, as the case may be. 9. Miscellaneous. (a) Shareholders' Agreement. Upon issuance of any Common Shares upon the exercise of an Award, the Participant receiving such shares shall agree, in writing, to be bound by the terms of the Second Amended and Restated Shareholders' Agreement dated as of November 24,1999, as amended from time to time, by and among the Company and persons and entities who are signatories thereto. (b) Right to Employment or Other Status. No person shall have any claim or right to be granted an Award, and the grant of an Award shall not be construed as giving a Participant the right to continued employment or any other relationship with the Company. The Company expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a Participant free from any liability or claim under the Plan, except as expressly provided in the applicable Award. Unless otherwise determined by the Board, neither any period of notice, if any, nor any payment in lieu thereof, or combination thereof, upon termination of employment shall be considered as extending the period of employment for the purposes of the Plan. (c) No Rights As Shareholder. Subject to the provisions of the applicable Award, no Participant or Designated Beneficiary shall have any rights as a shareholder with respect to any Common Shares to be distributed with respect to an Award until becoming the record holder of such shares. Notwithstanding the foregoing, in the event the Company effects a split of the Common Shares by means of a share dividend and the exercise price of and the number of shares subject to such Option are adjusted as of the date of the distribution of the dividend (rather than as of the record date for such dividend), then an optionee who exercises an Option between the record date and the distribution date for such share dividend shall be entitled to receive, on the distribution date, the share dividend with respect to the Common Shares acquired upon such Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such share dividend. (d) Effective Date and Term of Plan. The Plan shall become effective as of the date on which it is adopted by the Board, but no Award granted to a Participant that is intended to comply win Section 162(m) shall become exercisable, vested or realizable, as applicable to such Award, unless and until the Plan has been approved by the Company's shareholders to the extent shareholder approval is required by Section 162(m) in the manner required under Section 162(m) (including the vote required under Section 162(m)). No Awards shall be granted under the Plan after the completion of ten years from the earlier of (i) the date on which the Plan was adopted by the Board or (ii) the date the Plan was approved by the Company's shareholders, but Awards previously granted may extend beyond that date. (e) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any portion thereof at any time , provided that to the extent required by Section 162(m), no Award granted to a Participant that is intended to comply win Section 162(m) after the date of such amendment shall become exercisable, realizable or vested, as applicable to such Award, unless and until such amendment shall have been approved by the Company's shareholders as required by Section 162(m) (including the vote required under Section 162(m)). (f) Governing Law. The provisions of the Plan and all Awards made hereunder shall be governed by, and interpreted in accordance with, the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein, without regard to any applicable conflicts of law principles. EX-99 6 ex99-2.txt EXHIBIT 99.2 EXHIBIT 99.2 EFFECTIVE DATE: APRIL 23, 2001 FORM OF ASSUMPTION AGREEMENT DOUBLECLICK INC. SHARE OPTION ASSUMPTION AGREEMENT Dear _____________: As you know, on April 23, 2001 (the "Closing Date") DoubleClick Inc. ("DoubleClick") acquired FloNetwork Inc. ("FloNetwork") (the "Acquisition"). On the Closing Date you held one or more outstanding options to purchase FloNetwork common shares granted to you under the FloNetwork Inc. Share Incentive Plan (the "Plan") and documented with one or more Share Option Agreement(s) (collectively, the "Option Agreement") issued to you under the Plan (the "FloNetwork Options"). In accordance with the Acquisition, on the Closing Date, DoubleClick assumed all obligations of FloNetwork under the FloNetwork Options. As such, each outstanding FloNetwork Option has been converted into an option to purchase .229726 of a share of DoubleClick common stock (the "Exchange Ratio"), with the exercise price adjusted accordingly and converted into U.S. dollars based on a currency exchange rate of 1.5463, (the U.S. dollar/Canadian dollar Noon Spot Rate exchange rate effective 12:00 p.m. Eastern Standard Time on the Closing Date as reported by the Bank of Canada). This Agreement evidences the assumption of your FloNetwork Options, including the necessary adjustments to your FloNetwork Options required by the Acquisition. Your FloNetwork Options immediately before and after the Acquisition are as follows:
FLONETWORK STOCK OPTIONS DOUBLECLICK ASSUMED OPTIONS # of Common Shares FloNetwork Exercise # of Shares of DoubleClick Common of FloNetwork Price Per Share DoubleClick Exercise Price (in Canadian $) Common Stock Per Share (in US $) - ---------- ------------ ----------- -------------
The post-Acquisition adjustments are based on the Exchange Ratio and are intended to: (i) assure that the total spread of each assumed FloNetwork Option (i.e., the difference between the aggregate fair market value and the aggregate exercise price) does not exceed the total spread that existed immediately prior to the Acquisition; (ii) to preserve, on a per share basis, the ratio of exercise price to fair market value that existed immediately prior to the Acquisition; and (iii) to the extent applicable and allowable by law, to retain incentive stock option status under the United States Federal tax laws. Unless the context otherwise requires, any references in the Plan and the Option Agreement (i) to the "Company" or the "Corporation" means DoubleClick, (ii) to "Common Shares" or "Shares" means shares of DoubleClick common stock, (iii) to the "Board of Directors" or the "Board" means the Board of Directors of DoubleClick and (iv) to the "Committee" means the Compensation Committee of the DoubleClick Board of Directors. All references in the Option Agreement and the Plan relating to your status as an employee of FloNetwork will now refer to your status as an employee of DoubleClick or DoubleClick Email Canada Inc. or any other present or future DoubleClick subsidiary. To the extent the Option Agreement allowed you to deliver FloNetwork common shares as payment for the exercise price, shares of DoubleClick common stock may be delivered in payment of the adjusted exercise price, and the period for which such common shares were held prior to the Acquisition will be taken into account. The grant date, vesting commencement date, vesting schedule and the expiration date of your assumed FloNetwork Options remain the same as set forth in your Option Agreement, but the number of shares subject to each vesting installment has been adjusted to reflect the Exchange Ratio. All other provisions which govern either the exercise or the termination of the assumed FloNetwork Option(s) remain the same as set forth in your Option Agreement, and the provisions of the Option Agreement (except as expressly modified by this Agreement and the Acquisition) will govern and control your rights under this Agreement to purchase shares of DoubleClick common stock. Upon your termination of employment with DoubleClick or its subsidiaries, as applicable, you will have the limited time period specified in your Option Agreement to exercise your assumed FloNetwork Option(s) to the extent vested and outstanding at the time, after which time your FloNetwork Option(s) will expire and NOT be exercisable for DoubleClick common stock. To exercise your FloNetwork Option(s), you must deliver to DoubleClick (i) a written notice of exercise for the number of shares of DoubleClick common stock you want to purchase, (ii) the adjusted exercise price, and (iii) all applicable taxes. The exercise notice and payment should be delivered to DoubleClick at the following address: DoubleClick Inc. Attention: Stock Administration 450 West 33rd Street, 16th Floor New York, NY 10001 Nothing in this Agreement or your Option Agreement interferes in any way with your rights and DoubleClick's rights, which rights are expressly reserved, to terminate your employment at any time for any reason. Any future options, if any, you may receive from DoubleClick will be governed by the terms of the DoubleClick stock option plan(s), and such terms may be different from the terms of your assumed FloNetwork Option(s), including, but not limited to, the time period in which you have to exercise vested options after your termination of employment. Please sign and date this Agreement and return it promptly to the address listed above. Until your fully executed Agreement is received by DoubleClick your DoubleClick account will not be activated. If you have any questions regarding this Agreement or your assumed FloNetwork Options, please contact Jenifer Gornstein at 212-381-5723. DOUBLECLICK INC. By: ----------------------------------- Stephen Collins Corporate Secretary ACKNOWLEDGMENT The undersigned acknowledges receipt of the foregoing Stock Option Assumption Agreement and understands that all rights and liabilities with respect to each of his or her FloNetwork Options hereby assumed by DoubleClick are as set forth in the Option Agreement, the Plan and such Stock Option Assumption Agreement. DATED: , 2001 ----------------- ----------------------------------------------- , Optionee ---------------- -----END PRIVACY-ENHANCED MESSAGE-----