-----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, Wv40DlQqFrTkP1kOBQzxlFlixcWk+IpnRpMOFlWJgnOH94y0jiGt4bi/Qw9PXwRr rqLqz/0cqV5IWeaykhuR2Q== 0000891618-00-002490.txt : 20000505 0000891618-00-002490.hdr.sgml : 20000505 ACCESSION NUMBER: 0000891618-00-002490 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000504 EFFECTIVENESS DATE: 20000504 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CRITICAL PATH INC CENTRAL INDEX KEY: 0001060801 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 911788300 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-36228 FILM NUMBER: 618637 BUSINESS ADDRESS: STREET 1: 320 FIRST STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94105 BUSINESS PHONE: 4158088800 MAIL ADDRESS: STREET 1: 320 FIRST STREET CITY: SAN FRNACISCO STATE: CA ZIP: 94105 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on May 3, 2000 Registration No. 333-________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------- CRITICAL PATH, INC (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ------------------------- 320 FIRST STREET CALIFORNIA SAN FRANCISCO, CALIFORNIA 94105 - ------------------------ ---------------------------------------- (STATE OF INCORPORATION) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) SUPERNEWS, INC. (REMARQ) 1998 STOCK PLAN (FULL TITLE OF THE PLANS) ------------------------- DOUGLAS T. HICKEY CHIEF EXECUTIVE OFFICER CRITICAL PATH, INC. 320 FIRST STREET SAN FRANCISCO, CALIFORNIA 94105 (415) 808-8800 (NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------- Copies to: Alan K. Austin, Esq. Mark L. Reinstra, Esq. Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304 (650) 493-9300 -------------------------
CALCULATION OF REGISTRATION FEE ============================================================================================================= PROPOSED PROPOSED MAXIMUM MAXIMUM MAXIMUM AMOUNT OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE - ------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.001 to be issued upon exercise of options granted under the 1998 Remarq Stock Option Plan............... 326,388 shares $26.00(2) $8,486,088 $2,240.33 TOTAL............................. 326,388 shares $8,486,088 $2,240.33 =============================================================================================================
(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Plan being registered pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Computed in accordance with Rules 457(h) and 457(c) under the Securities Act of 1933. Such computation is based on the weighted average exercise price of $26.00 per share covering 326,388 outstanding options. 2 CRITICAL PATH, INC. REGISTRATION STATEMENT ON FORM S-8 PART II ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION Recent Developments To achieve our objectives, we have announced several recent acquisitions and strategic relationships that have expanded our range of products and customers and broadened our global reach, including: RemarQ Acquisition. On March 30, 2000, we acquired RemarQ Communities Inc., a provider of customized, collaborative message boards for business use. The total purchase price was valued at approximately $267.5 million in our Common Stock. The acquisition enables us to offer products that allow customers to hold online discussions for knowledge exchange and team collaboration over extranets, intranets, or the Internet. Critical Path Pacific Alliance. We have signed a memorandum of understanding to enter into a joint venture with Mitsui and Co, Ltd. and NTT Communications Corp. to bring our messaging solutions to Japan. The joint venture will leverage our technology, infrastructure and services; Mitsui's extensive partnerships in Japan and throughout Asia; and NTT's Data Centers and technical backbone to deliver advanced Internet messaging services to the Japanese business and wireless markets. Convertible Note Offering. On March 30, 2000, the Company issued $300 million of five-year, 5.75% Convertible Subordinated Notes due April 1, 2005 to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933. Holders may convert the Notes into shares of Critical Path's Common Stock at any time before their maturity or the business day before their redemption or repurchase by Critical Path. The conversion rate is 9.8546 shares per $1,000 principal amount of Notes, subject to adjustment in certain circumstances. This is equivalent to a conversion price of approximately $101.48 per share. Interest is payable on April 1 and October 1 of each year with the first interest payment due on October 1, 2000. The Notes are subordinated in right of payment to all senior debt of Critical Path and effectively subordinated to all existing and future debt and all other liabilities of Critical Path's subsidiaries. On or after the third business day after April 1, 2003 through March 31, 2004, the Company has the option to redeem all or a portion of the Notes which have not been previously converted at the redemption price equal to 102.30% of the principal amount. During the period from April 1, 2004 through March 31, 2005, the Company has the option to redeem all or a portion of the Notes which have not been previously converted at the redemption price equal to 101.15% of the principal amount. The Notes will be non-callable for three years. In the event of a "Change in Control," as defined in the Notes' Offering Circular, the Holders have the option of requiring the Company to repurchase any Notes held at a price of 100% of the principal amount of the Notes plus accrued interest to the date of repurchase. ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents previously filed by Critical Path, Inc. (the "Registrant") with the Securities and Exchange Commission (the "SEC") are hereby incorporated by reference in this Registration Statement: (a) The Registrant's Current Report on Form 8-K/A, dated March 8, 2000; (b) The Registrant's Current Report on Form 8-K, dated February 3, 2000; (c) The Registrant's Annual Report on Form 10-K/A for the fiscal year ended December 31, 1999; (d) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A, dated February 1, 1999. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, on or after the date of this Registration Statement 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 part hereof from the date of the filing of such documents. Any statement contained in this Registration Statement or in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any subsequently filed document that is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's Amended and Restated Articles of Incorporation limit the liability of the Registrant's directors for monetary damages to the maximum extent permitted by California law. Such limitation of liability has no effect on the availability of equitable remedies, such as injunctive relief or rescission. The Registrant's Amended and Restated Bylaws provide that the Registrant will indemnify its directors and officers and may indemnify its employees and agents (other than officers and directors) against certain liabilities to the maximum extent permitted by California law. The Registrant has entered into 3 indemnification agreements with each of its current directors and officers and certain of its key employees that provide for indemnification of, and advancement of expenses to, such persons to the maximum extent permitted by California law, including by reason of action or inaction occurring in the past and circumstances in which indemnification and advancement of expenses are discretionary under California law. At the present time, there is no pending litigation or proceeding involving a director, officer, employee or other agent of the Registrant in which indemnification would be required or permitted. The Registrant is not aware of any threatened litigation or proceeding that may result in a claim for such indemnification. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
Exhibit Number Description 5.1 Opinion of Wilson Sonsini Goodrich & Rosati. 10.1 Supernews, Inc. (Remarq) 1998 Stock Plan 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants 23.2 Consent of Arthur Andersen LLP, Independent Accountants 23.3 Consent of Wilson Sonsini Goodrich & Rosati (contained in Exhibit 5.1). 24.1 Power of Attorney (see signature page).
ITEM 9. UNDERTAKINGS. 1. 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 to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities 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. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the 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. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to law, the Registrant's Articles of -2- 4 Incorporation, Bylaws or indemnification agreements, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, 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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. -3- 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 San Francisco, State of California, on May 3, 2000. CRITICAL PATH, INC. By: /s/ DOUGLAS T. HICKEY ------------------------------------- Douglas T. Hickey Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears below constitutes and appoints Douglas T. Hickey and Mark J. Rubash, or either of them, his or her attorney-in-fact, with the power of substitution, for him or her in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in- fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ DOUGLAS T. HICKEY Chief Executive Officer and May 3, 2000 - ------------------------------------- Director (Principal Executive Douglas T. Hickey Officer) /s/ MARK J. RUBASH Executive Vice President and Chief May 3, 2000 - ------------------------------------- Financial Officer (Principal Mark J. Rubash Financial and Accounting Officer) /s/ DAVID C. HAYDEN Chairman of the Board May 3, 2000 - ------------------------------------- David C. Hayden /s/ CHRISTOS M. COTSAKOS Director May 3, 2000 - ------------------------------------- Christos M. Cotsakos /s/ LISA A. GANSKY Director May 3, 2000 - ------------------------------------- Lisa A. Gansky /s/ KEVIN R. HARVEY Director May 3, 2000 - ------------------------------------- Kevin R. Harvey Director May 3, 2000 - ------------------------------------- James A. Smith /s/ GEORGE ZACHARY Director May 3, 2000 - ------------------------------------- George Zachary
-4- 6 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------ ----------- 5.1 Opinion of Wilson Sonsini Goodrich & Rosati 10.1 Supernews, Inc. (Remarq) 1998 Stock Plan 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants 23.2 Consent of Arthur Andersen LLP, Independent Accountants 23.3 Consent of Wilson Sonsini Goodrich & Rosati (contained in Exhibit 5.1). 24.1 Power of Attorney (see signature page).
EX-5.1 2 EXHIBIT-5.1 1 EXHIBIT 5.1 [Letterhead of Wilson Sonsini Goodrich & Rosati] May 3, 2000 Critical Path, Inc. 320 1st Street San Francisco, California 94105 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about May 3, 2000 (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 326,388 shares of Common Stock, par value $0.001 (the "Shares"), both issued and outstanding and unissued and reserved for issuance pursuant to the 1998 Remarq Stock Option Plan (the "Plan"). As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the Shares under the Plans. It is our opinion that the Shares will be, when issued and sold in the manner referred to in the Plans, legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any subsequent amendment thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ Wilson Sonsini Goodrich & Rosati EX-10.1 3 EXHIBIT-10.1 1 SUPERNEWS, INC. 1998 STOCK PLAN (As amended through May 22, 1998) 2 TABLE OF CONTENTS
PAGE ---- SECTION 1. PURPOSE.............................................................................................1 SECTION 2. DEFINITIONS.........................................................................................1 (a) "Board".............................................................................................1 (b) "Change in Control".................................................................................1 (c) "Code"..............................................................................................1 (d) "Committee".........................................................................................1 (e) "Common Stock"......................................................................................1 (f) "Company"...........................................................................................1 (g) "Consultant"........................................................................................2 (h) "Employee"..........................................................................................2 (i) "Exercise Price"....................................................................................2 (j) "Fair Market Value".................................................................................2 (k) "Incentive Stock Option" or "ISO"...................................................................2 (l) "Non-Employee Director".............................................................................2 (m) "Nonstatutory Option" or "NSO"......................................................................2 (n) "Offeree"...........................................................................................2 (o) "Option"............................................................................................2 (p) "Optionee"..........................................................................................2 (q) "Parent"............................................................................................2 (r) "Plan"..............................................................................................2 (s) "Purchase Price"....................................................................................2 (t) "Service"...........................................................................................2 (u) "Stock Option Agreement"............................................................................2 (v) "Stock Purchase Agreement"..........................................................................2 (w) "Subsidiary"........................................................................................3 (x) "10% Stockholder"...................................................................................3 SECTION 3. ADMINISTRATION......................................................................................3 (a) Committees of the Board.............................................................................3 (b) Authority of the Board..............................................................................3 SECTION 4. ELIGIBILITY.........................................................................................3 SECTION 5. STOCK SUBJECT TO PLAN...............................................................................3 (a) Basic Limitation....................................................................................3 (b) Additional Shares...................................................................................3
i 3 SECTION 6. TERMS AND CONDITIONS OF GRANTS OR SALES.............................................................4 (a) Stock Purchase Agreement............................................................................4 (b) Duration of Offers and Nontransferability of Rights.................................................4 (c) Purchase Price......................................................................................4 (d) Withholding Taxes...................................................................................4 (e) Restrictions on Transfer of Common Stock............................................................4 SECTION 7. TERMS AND CONDITIONS OF OPTIONS.....................................................................4 (a) Stock Option Agreement..............................................................................4 (b) Number of Shares....................................................................................5 (c) Exercise Price......................................................................................5 (d) Withholding Taxes...................................................................................5 (e) Exercisability......................................................................................5 (f) Term................................................................................................5 (g) Nontransferability..................................................................................5 (h) Exercise of Options on Termination of Service.......................................................6 (i) No Rights as a Stockholder..........................................................................6 (j) Modification, Extension and Assumption of Options...................................................6 (k) Restrictions on Transfer............................................................................6 SECTION 8. FORMS OF PAYMENT....................................................................................6 (a) General Rule........................................................................................6 (b) Surrender of Stock..................................................................................6 (c) Promissory Notes....................................................................................7 (d) Cashless Exercise...................................................................................7 SECTION 9. ADJUSTMENTS UPON CHANGES IN COMMON STOCK............................................................7 (a) General.............................................................................................7 (b) Mergers and Consolidations..........................................................................7 (c) Reservation of Rights...............................................................................8 SECTION 10. LEGAL REQUIREMENTS..................................................................................8 (a) Restrictions on Issuance............................................................................8 (b) Financial Reports...................................................................................8 SECTION 11. NO EMPLOYMENT RIGHTS................................................................................8 SECTION 12. DURATION AND AMENDMENTS.............................................................................8 (a) Term of the Plan....................................................................................8 (b) Right to Amend or Terminate the Plan................................................................9 (c) Effect of Amendment or Termination..................................................................9 SECTION 13. EXECUTION...........................................................................................9
ii 4 SUPERNEWS, INC. 1998 STOCK PLAN SECTION 1. PURPOSE. The purpose of the Plan is to offer selected employees, directors and consultants an opportunity to acquire a proprietary interest in the success of the Company, or to increase such interest, to encourage such persons to remain in the employ of the Company and to attract new employees with outstanding qualifications. The Plan provides for the direct grant or sale of Common Stock and for the grant of Options to purchase Common Stock. Options granted under the Plan may include Nonstatutory Options as well as Incentive Stock Options intended to qualify under section 422 of the Internal Revenue Code. SECTION 2. DEFINITIONS. (a) "BOARD" shall mean the Board of the Company, as constituted from time to time. (b) "CHANGE IN CONTROL" shall mean: (i) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if more than 50% of the combined voting power of the continuing or surviving entity's securities outstanding immediately after such merger, consolidation or other reorganization is owned by persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization; or (ii) The sale, transfer or other disposition of all or substantially all of the Company's assets. A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company's incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company's securities immediately before such transaction. (c) "CODE" shall mean the Internal Revenue Code of 1986, as amended. (d) "COMMITTEE" shall mean a committee consisting of one or more members of the Board that is appointed by the Board to administer the Plan. (e) "COMMON STOCK" means the Company's common stock. (f) "COMPANY" shall mean Supernews, Inc., a Delaware corporation. 1 5 (g) "CONSULTANT" shall mean an individual who performs bona fide services to the Company, a Parent or a Subsidiary other than as an Employee or a member of the Board. (h) "EMPLOYEE" shall mean any individual who is a common-law employee of the Company, a Parent or a Subsidiary. (i) "EXERCISE PRICE" shall mean the amount for which one share of Common Stock may be purchased upon exercise of an Option, as specified by the Board in the applicable Stock Option Agreement. (j) "FAIR MARKET VALUE" shall mean the fair market value of a share of Common Stock, as determined by the Board in good faith. Such determination shall be conclusive and binding on all persons. (k) "INCENTIVE STOCK OPTION" or "ISO" shall mean an incentive stock option described in Code section 422(b). (l) "NON-EMPLOYEE DIRECTOR" shall mean a member of the Board who is not an Employee. (m) "NONSTATUTORY OPTION" or "NSO" shall mean a stock option that is not an ISO. (n) "OFFEREE" shall mean an individual to whom the Board has offered the right to acquire Common Stock other than upon exercise of an Option. (o) "OPTION" shall mean an ISO or NSO granted under the Plan entitling the holder to purchase Common Stock. (p) "OPTIONEE" shall mean an individual who holds an Option. (q) "PARENT" shall have the meaning set forth in Section 424(e) of the Code. (r) "PLAN" shall mean this 1998 Stock Plan. (s) "PURCHASE PRICE" shall mean the consideration for which one share of Common Stock may be acquired under the Plan pursuant to a grant or sale under Section 6, as specified by the Board. (t) "SERVICE" shall mean service as an Employee, Non-Employee Director or Consultant. (u) "STOCK OPTION AGREEMENT" shall mean the agreement between the Company and an Optionee that contains the terms, conditions and restrictions pertaining to an Option. (v) "STOCK PURCHASE AGREEMENT" shall mean the agreementbetween the Company and an Offeree who acquires Common Stock under the Plan (other than pursuant to an Option) that contains the terms, conditions and restrictions pertaining to the acquisition of such Common Stock. 2 6 (w) "SUBSIDIARY" shall have the meaning set forth in Section 424(f) of the Code. (x) "10% STOCKHOLDER" means an individual who owns more than 10% of the total combined voting power of all classes of outstanding stock of the Company, its Parent or any of its Subsidiaries. For purposes of this Subsection (b), in determining stock ownership, the attribution rules of Section 424(d) of the Code shall be applied. SECTION 3. ADMINISTRATION. (a) COMMITTEES OF THE BOARD. The Plan shall be administered by the Board. However, any or all administrative functions otherwise exercisable by the Board may be delegated to a Committee. Members of the Committee shall serve for such period of time as the Board may determine and shall be subject to removal by the Board at any time. The Board may also at any time terminate the functions of the Committee and reassume all powers and authority previously delegated to the Committee. Any reference to the Board in the Plan shall be construed as a reference to the Committee (if any) to whom the Board has assigned a particular function. (b) AUTHORITY OF THE BOARD. Subject to the provisions of the Plan, the Board shall have full authority and discretion to take any actions it deems necessary or advisable for the administration of the Plan. All decisions, interpretations and other actions of the Board shall be final and binding on all parties who have any interest in the Plan or any option or shares issued thereunder. SECTION 4. ELIGIBILITY. Only Employees, Non-Employee Directors and Consultants shall be eligible for the grant of Options or the direct grant or sale of Common Stock. Only Employees shall be eligible for the grant of ISOs. SECTION 5. STOCK SUBJECT TO PLAN. (a) BASIC LIMITATION. The stock issuable under the Plan shall be shares of authorized but unissued or reacquired Common Stock. The maximum number of shares of Common Stock which may be issued under the Plan shall not exceed 2,268,646 shares, subject to adjustment pursuant to Section 9. (b) ADDITIONAL SHARES. If any outstanding Option or other right to acquire Common Stock for any reason expires or is canceled, forfeited or otherwise terminated, the Common Stock allocable to the unexercised portion of such Option or other right shall again be available for the purposes of the Plan. If shares of Common Stock issued under the Plan are reacquired by the Company pursuant to any right of repurchase or right of first refusal, such shares of Common Stock shall again be available for the purposes of the Plan, except that the aggregate number of shares of Common Stock that may be issued upon the exercise of ISOs shall in no event exceed the number of shares of Common Stock reserved for issuance pursuant to paragraph (a) above plus the number of previously optioned shares returned to the Plan pursuant to the first sentence of this paragraph, as adjusted pursuant to Section 9. 3 7 SECTION 6. TERMS AND CONDITIONS OF GRANTS OR SALES. (a) STOCK PURCHASE AGREEMENT. Each grant or sale of Common Stock under the Plan other than upon exercise of an Option shall be evidenced by a Stock Purchase Agreement between the Offeree and the Company. Such grant or sale shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions that are not inconsistent with the Plan and that the Board deems appropriate for inclusion in a Stock Purchase Agreement. The provisions of the various Stock Purchase Agreements entered into under the Plan need not be identical. (b) DURATION OF OFFERS AND NONTRANSFERABILITY OF RIGHTS. Any right to acquire Common Stock under the Plan other than an Option shall automatically expire if not exercised by the Offeree within the number of days specified by the Board and communicated to the Offeree. Such right shall not be transferable and shall be exercisable only by the Offeree to whom such right was granted. (c) PURCHASE PRICE. The Purchase Price shall be established by the Board and set forth in the Stock Purchase Agreement and, to the extent required to comply with the California Corporations Code or the regulations thereunder, shall not be less than 85% of Fair Market Value (100% for 10% Stockholders). The Purchase Price shall be payable in a form described in Section 8 or, in the discretion of the Board, in consideration for past services rendered to the Company or for its benefit. (d) WITHHOLDING TAXES. As a condition to the purchase of Common Stock, the Offeree shall make such arrangements as the Board may require for the satisfaction of any federal, state or local withholding tax obligations that may arise in connection with such purchase. (e) RESTRICTIONS ON TRANSFER OF COMMON STOCK. No Common Stock granted or sold under the Plan may be sold or otherwise transferred or disposed of by the Offeree during the one hundred eighty (180) day period following the effective date of a registration statement covering securities of the Company filed under the Securities Act of 1933 (unless such restriction is consented to or waived by the managing underwriter). Subject to the preceding sentence, any Common Stock granted or sold under the Plan shall be subject to such special conditions, rights of repurchase, rights of first refusal and other transfer restrictions as the Board may determine. Such restrictions shall apply in addition to any general restrictions that may apply to all holders of Common Stock. SECTION 7. TERMS AND CONDITIONS OF OPTIONS. (a) STOCK OPTION AGREEMENT. Each grant of an Option under the Plan shall be evidenced by a Stock Option Agreement between the Optionee and the Company. Such Option shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions that are not inconsistent with the Plan and that the Board deems appropriate for inclusion in a Stock Option Agreement. The provisions of the various Stock Option Agreements entered into under the Plan need not be identical. 4 8 (b) NUMBER OF SHARES. Each Stock Option Agreement shall specify the number of shares of Common Stock that are subject to the Option and shall provide for the adjustment of such number in accordance with Section 9. The Stock Option Agreement shall also specify whether the Option is an ISO or an NSO. (c) EXERCISE PRICE. An Option's Exercise Price shall be established by the Board and set forth in a Stock Option Agreement. The Exercise Price of an ISO shall not be less than 100% of the Fair Market Value (110% for 10% Stockholders) on the date of grant. The Exercise Price of a Nonstatutory Option shall not be less than 85% of the Fair Market Value (110% for 10% Stockholders) on the date of grant. The Exercise Price shall be payable in a form described in Section 8. Notwithstanding the foregoing, an Option may be granted with an exercise price lower than that set prescribed in this paragraph if the Option grant is attributable to the issuance or assumption of an option in a transaction to which Code section 424(a) applies. (d) WITHHOLDING TAXES. As a condition to the exercise of an Option, the Optionee shall make such arrangements as the Board may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with such exercise. The Optionee shall also make such arrangements as the Board may require for the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with the disposition of Common Stock acquired by exercising an Option. (e) EXERCISABILITY. Each Stock Option Agreement shall specify the date when all or any installment of the Option is to vest or become exercisable. To the extent required to comply with the California Corporation Code or the regulations thereunder, an Option granted to Employees who are not officers shall vest and become exercisable no less rapidly than the rate of 20% per year for each of the first five (5) years from the date of grant. Subject to the preceding sentence, the vesting of any Option shall be determined by the Board in its sole discretion. A Stock Option Agreement may permit an Optionee to exercise an Option before it is vested, subject to the Company's right of repurchase over any shares acquired under the unvested portion of the Option (an "early exercise"), which right of repurchase shall lapse at the same rate the Option would have vested had there been no early exercise. (f) TERM. The Stock Option Agreement shall specify the term of the Option. The term shall not exceed ten (10) years from the date of grant (5 years in the case of an ISO granted to a Ten Percent Stockholder). Subject to the preceding sentence, the Board at its sole discretion shall determine when an Option is to expire. (g) NONTRANSFERABILITY. No Option shall be transferable by the Optionee other than by will or by the laws of descent and distribution. An Option may be exercised during the lifetime of the Optionee only or by the guardian or legal representative of the Optionee. No Option or interest therein may be transferred, assigned, pledged or hypothecated by the Optionee during his lifetime, whether by operation of law or otherwise, or be made subject to execution, attachment or similar process. 5 9 (h) EXERCISE OF OPTIONS ON TERMINATION OF SERVICE. To the extent required to comply with the California Corporation Code or the regulations thereunder, each Stock Option Agreement shall provide that the Optionee shall have the right to exercise the Option following termination of the Optionee's Service, during the Option's term, for at least thirty (30) days following termination of Service for any reason except cause, death or disability, and for at least six (6) months following termination of Service due to death or disability. (i) NO RIGHTS AS A STOCKHOLDER. An Optionee, or a transferee of an Optionee, shall have no rights as a stockholder with respect to any Common Stock covered by an Option until such person becomes entitled to receive such Common Stock by filing a notice of exercise and paying the Exercise Price pursuant to the terms of such Option. (j) MODIFICATION, EXTENSION AND ASSUMPTION OF OPTIONS. Within the limitations of the Plan, the Board may modify, extend or assume outstanding Options or may accept the cancellation of outstanding Options (whether granted by the Company or another issuer) in return for the grant of new Options for the same or a different number of shares of Common Stock and at the same or a different Exercise Price. The foregoing notwithstanding, no modification of an Option shall, without the consent of the Optionee, impair the Optionee's rights or increase the Optionee's obligations under such Option. (k) RESTRICTIONS ON TRANSFER. No shares of Common Stock issued upon exercise of an Option may be sold or otherwise transferred or disposed of by the Optionee during the one hundred eighty (180) day period following the effective date of a registration statement covering securities of the Company filed under the Securities Act of 1933 (unless such restriction is consented to or waived by the managing underwriter). Subject to the preceding sentence, any Common Stock issued upon exercise of an Option shall be subject to such rights of repurchase, rights of first refusal and other transfer restrictions as the Board may determine. Such restrictions shall apply in addition to any restrictions that may apply to holders of Common Stock generally. Any right to repurchase an Optionee's Common Stock at the original Exercise Price upon termination of the Optionee's Service shall lapse at least as rapidly as the schedule set forth in Subsection (e) above. Any such repurchase right may be exercised only within ninety (90) days after the termination of the Optionee's Service for cash or for cancellation of indebtedness incurred in purchasing the Common Stock. SECTION 8. FORMS OF PAYMENT. (a) GENERAL RULE. The entire Purchase Price or Exercise Price shall be payable in cash or cash equivalents acceptable to the Company at the time of exercise or purchase, except as otherwise provided in this Section 8. (b) SURRENDER OF STOCK. To the extent that a Stock Option Agreement or Stock Purchase Agreement so provides, payment may be made all or in part with Common Stock that has already been owned by the Optionee or the Optionee's representative for any time period specified by the Board and that are surrendered to the Company in good form for transfer. Such Common Stock shall be valued at Fair Market Value on the date when the new Common Stock is purchased under the Plan. 6 10 (c) PROMISSORY NOTES. To the extent that a Stock Option Agreement or Stock Purchase agreement so provides, payment may be made all or in part with a full recourse promissory note executed by the Optionee. The interest rate and other terms and conditions of such note shall be determined by the Board. The Board may require that the Optionee pledge his or her Common Stock to the Company for the purpose of securing the payment of such note. In no event shall the stock certificate(s) representing such Common Stock be released to the Optionee until such note is paid in full, unless otherwise provided in the Stock Option Agreement or Stock Purchase Agreement. (d) CASHLESS EXERCISE. To the extent that a Stock Option Agreement so provides and a public market for the Common Stock exists, payment may be made all or in part by delivery (on a form acceptable to the Board) of an irrevocable direction to a securities broker to sell Common Stock and to deliver all or part of the sale proceeds to the Company in payment of the aggregate Exercise Price. SECTION 9. ADJUSTMENTS UPON CHANGES IN COMMON STOCK. (a) GENERAL. In the event of a subdivision of the outstanding Common Stock, a declaration of a dividend payable in Common Stock, a declaration of an extraordinary dividend payable in a form other than Common Stock in an amount that has a material effect on the value of Common Stock, a combination or consolidation of the outstanding Common Stock into a lesser number of shares, a recapitalization, a reclassification or a similar occurrence, the Board shall make appropriate adjustments in one or more of (i) the number of shares of Common Stock available for future grants of Options or other rights to acquire Common Stock under Section 5, (ii) the number of shares of Common Stock covered by each outstanding Option or other right to acquire Common Stock or (iii) the Exercise Price of each outstanding Option or the Purchase Price of each other right to acquire Common Stock. (b) MERGERS AND CONSOLIDATIONS. In the event that the Company is a party to a merger or consolidation, outstanding Options or other rights to acquire Common Stock shall be subject to the agreement of merger or reorganization. Such agreement, without an Optionee's consent, may provide for: (i) The continuation of such outstanding Options by the Company (if the Company is the surviving corporation); (ii) The assumption of the Plan and such outstanding Options by the surviving corporation or its parent; (iii) The substitution by the surviving corporation or its parent of options with substantially the same terms for such outstanding Options; or (iv) The cancellation of such outstanding Options without payment of any consideration, provided that in such event vesting of Options will accelerate in full. 7 11 (c) RESERVATION OF RIGHTS. Except as provided in this Section 9, an Optionee or Offeree shall have no rights by reason of (i) any subdivision or consolidation of shares of stock of any class, (ii) the payment of any dividend, or (iii) any other increase or decrease in the number of shares of stock of any class. Any issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Common Stock subject to an Option, or the number of shares subject to any other right to acquire Common Stock and/or the Exercise Price or Purchase Price. The grant of an Option or other right to acquire Common Stock pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets. SECTION 10. LEGAL REQUIREMENTS. (a) RESTRICTIONS ON ISSUANCE. Common Stock shall not be issued under the Plan unless the issuance and delivery of such Common Stock complies with (or is exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange on which the Company's securities may then be listed, and the Company has obtained the approval or favorable ruling from any governmental agency that the Company determines is necessary or advisable. (b) FINANCIAL REPORTS. To the extent required to comply with the California Corporations Code or the regulations thereunder, not less often than annually the Company shall furnish to Optionees and Offerees Company summary financial information including a balance sheet regarding the Company's financial condition and results of operations, unless such Optionees or Offerees have duties with the Company that assure them access to equivalent information. Such financial statements need not be audited. SECTION 11. NO EMPLOYMENT RIGHTS. No provision of the Plan, nor any Option granted or other right to acquire Common Stock granted under the Plan, shall be construed to give any person any right to become, to be treated as, or to remain an Employee, Consultant or Non-Employee Director. The Company and its Subsidiaries reserve the right to terminate any person's Service at any time and for any reason. SECTION 12. DURATION AND AMENDMENTS. (a) TERM OF THE PLAN. The Plan, as set forth herein, shall become effective on the date of its adoption by the Board, subject to the approval of the Company's stockholders. In the event that the stockholders fail to approve the Plan within twelve (12) months after its adoption by the Board, any Option grants or other right to acquire Common Stock already made shall be null and void, and no additional Option grants or other right to acquire Common Stock shall be made after such date. The Plan shall terminate automatically ten (10) years after its adoption by the Board and may be terminated on any earlier date pursuant to Subsection (b) below. 8 12 (b) RIGHT TO AMEND OR TERMINATE THE PLAN. The Board may amend or terminate the Plan at any time. Rights under any Option granted or other right to acquire Common Stock granted before amendment of the Plan shall not be materially impaired by any amendment or termination, except with consent of the Optionee or Offeree. An amendment of the Plan shall be subject to the approval of the Company's stockholders only to the extent required by applicable laws, regulations or rules. (c) EFFECT OF AMENDMENT OR TERMINATION. No Common Stock shall be issued or sold under the Plan after the termination thereof, except upon exercise of an Option granted prior to such termination. The termination of the Plan, or any amendment thereof, shall not affect any Common Stock previously issued or Option previously granted under the Plan. SECTION 13. EXECUTION To record the adoption of the Plan, the Company has caused its authorized officer to execute the same. SUPERNEWS, INC. By: -------------------------------------- Title: ----------------------------------- 9 EX-23.1 4 EXHIBIT-23.1 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 Critical Path, Inc. of our report dated March 17, 2000 relating to the consolidated financial statements of Critical Path, Inc., which appears in Critical Path, Inc.'s Annual Report on Form 10-K/A for the year ended December 31, 1999. We also consent to the incorporation by reference of our report dated March 9, 2000 relating to the consolidated financial statements of ISOCOR, and of our report dated March 7, 2000, except as to the second paragraph of Note 10 which is as of March 16, 2000, relating to the consolidated financial statements of RemarQ Communities, Inc., each of which appears in Critical Path, Inc.'s Current Report on Form 8-K/A dated March 8, 2000. /s/ PRICEWATERHOUSECOOPERS LLP San Francisco, California May 3, 2000 EX-23.2 5 EXHIBIT 23.2 1 Exhibit 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Critical Path, Inc. of our report dated August 20, 1999 relating to the financial statements of The docSpace Company Inc., which appears in Critical Path, Inc.'s Current Report on Form 8-K/A dated March 8, 2000. /s/ ARTHUR ANDERSEN LLP May 3, 2000 Toronto, Ontario -----END PRIVACY-ENHANCED MESSAGE-----