-----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, BFtvi4Y5U3wwbQK1KOEvO2xjtV+wCRIOUWefSSb4CMWQrNVJqZOqGN4Z4S7F81XA posh4FgqExmynWNaXSjnfg== 0000912057-00-016913.txt : 20000410 0000912057-00-016913.hdr.sgml : 20000410 ACCESSION NUMBER: 0000912057-00-016913 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20000407 EFFECTIVENESS DATE: 20000407 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ADAPTEC INC CENTRAL INDEX KEY: 0000709804 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 942748530 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-34358 FILM NUMBER: 596397 BUSINESS ADDRESS: STREET 1: 691 S MILPITAS BLVD STREET 2: M/S25 CITY: MILPITAS STATE: CA ZIP: 95035 BUSINESS PHONE: 4089458600 MAIL ADDRESS: STREET 1: 691 SOUTH MILPITAS BLVD STREET 2: M/S25 CITY: MILPITAS STATE: CA ZIP: 95035 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on April 7, 2000 Registration No. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------- ADAPTEC, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ---------------------- DELAWARE 94-2748530 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 691 MILPITAS BOULEVARD MILPITAS, CALIFORNIA 95035 (408) 945-8600 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ---------------------- WILD FILE, INC. 1999 INCENTIVE STOCK OPTION PLAN WILD FILE, INC. 1994 STOCK OPTION PLAN (FULL NAME OF PLANS) ---------------------- ROBERT N. STEPHENS PRESIDENT AND CHIEF EXECUTIVE OFFICER ADAPTEC, INC. 691 MILPITAS BOULEVARD MILPITAS, CALIFORNIA 95035 (408) 945-8600 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------------- COPIES TO: KATHARINE A. MARTIN, ESQ. WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 PAGE MILL ROAD PALO ALTO, CALIFORNIA 94304 (650) 493-9300 ----------------------
CALCULATION OF REGISTRATION FEE ================================================================================================================================== PROPOSED PROPOSED MAXIMUM MAXIMUM TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE - ---------------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.001 par value issuable under the Wild File, Inc. 1999 Incentive Stock Option Plan... 7,004 $ 18.8133 $ 131,768 $ 35 - ---------------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.001 par value issuable under the Wild File, Inc. 1999 Incentive Stock Option Plan... 4,582 $ 35.6006 $ 163,122 $ 43 Common Stock, $0.001 par value issuable under the Wild File, Inc. 1999 Incentive Stock Option Plan... 691 $ 130.2460 $ 90,000 $ 24 - ---------------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.001 par value issuable under the Wild File, Inc. 1994 Stock Option Plan............. 9,743 $ 0.0072 $ 70 $ 0 - ---------------------------------------------------------------------------------------------------------------------------------- Total.......................... 22,020 $ 384,960 $ 102 ================================================================================================================================== (1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) of the Securities Act of 1933, as amended. The proposed maximum aggregate offering price per share and proposed maximum aggregate offering price is based on the aggregate exercise price and the exercise price per share, respectively, of issued and outstanding options under such plans, as adjusted in accordance with the terms and conditions set forth in the Agreement and Plan of Reorganization dated as of March 3, 2000 among the Registrant, Wild File, Inc. and certain other parties.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. There are hereby incorporated by reference in this registration statement the following documents and information heretofore filed with the Securities and Exchange Commission (the "Commission"): (a) The Registrant's Annual Report on Form 10-K for its fiscal year ended March 31, 1999, filed pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"). (b) The Registrant's Quarterly Reports on Form 10-Q relating to the fiscal quarters ended June 30, 1999 and December 31, 1999, the Registrant's Quarterly Report on Form 10-Q, as amended, relating to the quarter ended September 30, 1999, filed pursuant to the Exchange Act; and the Registrant's Current Report on Form 8-K filed January 6, 2000, as amended by the Registrant's Current Report on Form 8-K/A filed March 3, 2000, filed pursuant to the Exchange Act. (c) Items 1 and 2 of the Registrant's registration statement on Form 8-A filed July 20, 1992 pursuant to the Exchange Act and Exhibit No. 1 to Amendment No. 4 of the Registrant's registration statement on Form 8-A filed January 14, 1997 amending its Form 8-A filed May 11, 1989. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which de-registers 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 filing of such documents. 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 Certificate of Incorporation limits the liability of directors to the maximum extent permitted by Delaware law. Delaware law provides that directors of a corporation will not be personally liable for monetary damages for a breach of their fiduciary duties as directors, except for liability (i) for any breach of their duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant's Bylaws provide that the Registrant shall indemnify its directors and officers and may indemnify its employees and other agents to the fullest extent permitted by law. The Registrant's Bylaws also permit the Registrant to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in such capacity, regardless of whether the Registrant would have the power to indemnify him or her against such liability under the General Corporation Law of the State of Delaware. The Registrant currently has secured such insurance on behalf of its officers and directors. The Registrant has entered into agreements to indemnify its directors and officers, in addition to indemnification provided for in the Registrant's Bylaws. Subject to certain conditions, these agreements, among other II-1 things, indemnify the Registrant's directors and officers for certain expenses (including attorneys' fees), judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by or in the right of the Registrant, arising out of such person's services as a director or officer of the Registrant, any subsidiary of the Registrant or any other company or enterprise to which the person provides services at the request of the Registrant. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION -------------- ----------------------------------------------------------------------------------- 4.1 Wild File, Inc. 1999 Incentive Stock Option Plan and form of Stock Option Agreement 4.2 Wild File, Inc. 1994 Stock Option Plan and form of Stock Option Agreement 5.1 Opinion of Wilson Sonsini Goodrich & Rosati 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants 23.2 Consent of Arthur Andersen LLP, Independent Certified Public Accountants 23.3 Consent of Wilson Sonsini Goodrich & Rosati (contained in Exhibit 5.1) 24.1 Power of Attorney (included on the signature page hereto)
ITEM 9. UNDERTAKINGS. (a) The undersigned 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. (b) The undersigned 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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, 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 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 Securities Act and will be governed by the final adjudication of such issue. II-2 SIGNATURES Pursuant to the requirements of the Securities Act, 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 Milpitas, State of California, on April 7, 2000. ADAPTEC, INC. By: /s/ Robert N. Stephens -------------------------------------- Robert N. Stephens President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert N. Stephens and Andrew J. Brown, jointly and severally, as his or her attorneys-in-fact, each 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 or her 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 by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Robert N. Stephens President, Chief Executive Officer and Director (principal April 7, 2000 - ----------------------------- executive officer) Robert N. Stephens /s/ Andrew J. Brown Vice President, Finance and Chief Financial Officer April 7, 2000 - ----------------------------- (principal financial officer) Andrew J. Brown /s/ Kenneth B. Arola Vice President and Corporate Controller (principal April 7, 2000 - ----------------------------- accounting officer) Kenneth B. Arola /s/ Laurence B. Boucher Chairman of the Board and Director April 7, 2000 - ----------------------------- Laurence B. Boucher /s/ John G. Adler Director April 7, 2000 - ----------------------------- John G. Adler Director - ----------------------------- Carl J. Conti Director - ----------------------------- John East /s/ Ilene H. Lang Director April 7, 2000 - ----------------------------- Ilene H. Lang /s/ Robert J. Loarie Director April 7, 2000 - ----------------------------- Robert J. Loarie /s/ B.J. Moore Director April 7, 2000 - ----------------------------- B.J. Moore /s/ W. Ferrell Sanders Director April 7, 2000 - ----------------------------- W. Ferrell Sanders /s/ Phillip E. White Director April 7, 2000 - ----------------------------- Phillip E. White
II-3 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION ------------------ ----------------------------------------------------------------------------------- 4.1 Wild File, Inc. 1999 Incentive Stock Option Plan and form of Stock Option Agreement 4.2 Wild File, Inc. 1994 Stock Option Plan and form of Stock Option Agreement 5.1 Opinion of Wilson Sonsini Goodrich & Rosati 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants 23.2 Consent of Arthur Andersen LLP, Independent Certified Public Accountants 23.3 Consent of Wilson Sonsini Goodrich & Rosati (contained in Exhibit 5.1) 24.1 Power of Attorney (included on the signature page hereto)
EX-4.1 2 EX-4.1 EXHIBIT 4.1 WILD FILE, INC. 1999 INCENTIVE STOCK OPTION PLAN 1. PURPOSE. This 1999 Incentive Stock Option Plan (hereinafter referred to as this "Plan") is intended to promote the best interests of the Company and its stockholders by enabling the Company to attract and retain persons of ability as employees, providing an incentive to employees of the Company by affording them an equity participation in the Company and rewarding those employees who contribute to the operating progress and earning power of the Company. 2. DEFINITIONS. The following terms shall have the following meanings when used herein unless the context clearly otherwise requires: (a) "BOARD OF DIRECTORS" means the Board of Directors of Wild File, Inc., a Delaware corporation. (b) "CODE" means the Internal Revenue Code of 1986, as amended, or any successor provisions. (c) "CONTROLLING PARTICIPANT" means any Eligible Employee who, immediately before any Option is granted to that particular Eligible Employee, directly or indirectly possesses more than ten percent (10%) of the total combined voting power of all classes of stock of the Company (or any parent or subsidiary company thereof, as such terms are defined in Section 424(e) and (f) of the Code, respectively). (d) "COMPANY" means Wild File, Inc., a Delaware corporation, and an subsidiary corporation, as defined in Section 424(f) of the Code, to which the Board of Directors has determined to extend the application of this Plan. (e) "ELIGIBLE EMPLOYEE" means any employee of the Company. (f) "EXERCISE PRICE" means the price at which a share of Incentive Stock may be purchased by a particular Participant pursuant to the exercise of an Option, as determined in accordance with Article 7 hereof. (g) "INCENTIVE STOCK" means the Non-Voting Common Stock of the Company, par value one cent ($.01) per share, issued pursuant to this Plan. (h) "INCENTIVE STOCK OPTION AGREEMENT" means an agreement by and between a Participant and the Company setting forth the specific terms and conditions of an Option as well as the specific terms and conditions under which the Incentive Stock may be purchased by such Participant pursuant to the exercise of such Option. Such Incentive Stock Option Agreement shall be subject to the provisions of this Plan (which shall be incorporated by reference therein) and shall contain such provisions as the Board of Directors, in its sole discretion, may authorize. (i) "OPTION" means the right of a Participant to purchase shares of Incentive Stock in accordance with the terms of this Plan and the Incentive Stock Option Agreement between such Participant and the Company. (j) "PARTICIPANT" means any Eligible Employee who is designated (in accordance with the provisions of Article 5 hereof) to be granted an Option and who is a party to an Incentive Stock Option Agreement. 2 3. ADOPTION AND ADMINISTRATION OF PLAN. This Plan shall become effective upon its adoption by the Board of Directors; provided, however, that the stockholders of the Company shall approve this Plan in accordance with applicable state law, within 12 months before or after the adoption of this Plan by the Board of Directors. Upon such effectiveness, except as expressly limited in Articles 4 and 7 hereof and Sections 5(d) and 6(c) hereof, any action taken by the Board of Directors with respect to the implementation, interpretation of administration of this Plan shall be final, conclusive and binding. 4. TOTAL NUMBER OF SHARES OF INCENTIVE STOCK. The number of shares of Incentive Stock which may be issued in the aggregate by the Company under this Plan pursuant to the exercise of Options granted hereunder shall not be more than 1,500,000, which number may be increased only by a resolution adopted by the Board of Directors and approved within 12 months after such adoption by the stockholders of the Company in accordance with applicable state law. Such shares of Incentive Stock may be issued out of the authorized and unissued or reacquired Non-Voting Common Stock of the Company. Any shares subject to an Option which expires or is terminated unexercised as to such shares may again be subject to an Option under this Plan. To the extent there shall be any adjustment pursuant to the provisions of Article 11 hereof, the aforesaid number of shares shall be appropriately so adjusted. 5. ELIGIBILITY AND AWARDS. The Board of Directors shall designate, at any time and from time to time thereafter, (a) the Eligible Employees of the Company who shall be granted an Option, (b) 3 the number of shares of Incentive Stock which each Eligible Employee so designated may purchase pursuant to the exercise of an Option, (c) the Exercise Price for each designated Eligible Employee, (d) the other terms of each Eligible Employee's Option, including, without limitation, the term during which such Option shall be in effect, which term for any Option shall not be greater than 10 years from the date this Plan is adopted by the Board of Directors or the date this Plan is approved by the stockholders of the Company, whichever is earlier; provided, however, that the term shall not be greater than five years from such date for any Option granted to a Controlling Participant, and (e) the restrictions, if any, applicable to the shares of Incentive Stock which each Eligible Employee so designated may purchase. Notwithstanding anything stated herein, the aggregate fair market value, determined at the time an Option is granted to a Participant, of the Incentive Shares with respect to which Options held by such Participant first become exercisable in any calendar year (under this Plan and all other incentive stock option plans of the Company, or any parent or subsidiary thereof) shall not exceed $100,000. 6. GRANT, EXERCISE AND TERMINATION OF OPTIONS. (a) As soon as practicable after a designation is made by the Board of Directors pursuant to Article 5 hereof, the appropriate officer or officers of the Company shall give notice (written or oral) to such effect each Eligible Employee of the Company so designated, which such notice shall be accompanied by a copy or copies of the Incentive Stock Option Agreement to be executed by such Eligible Employee. (b) Upon receipt of the notice specified in Section 6(a) hereof, an Eligible Employee so designated shall have an Option, and shall thereby become and be a Participant, 4 only after the due execution by such Eligible Employee and the Company of an Incentive Stock Option Agreement within such number of days from the giving of such notice as shall be specified in such notice. (c) Any Option granted pursuant to this Plan must be granted within 10 years from the date that this Plan is adopted by the Board of Directors or the date this Plan is approved by the stockholders of the Company, whichever is earlier. (d) An Option of a Participant may be exercised during the period such Option is in effect and as set forth herein and in the Incentive Stock Option Agreement, and only if compliance with all applicable Federal and state securities laws can be effected, and may be exercised only by (i) such Participant's completion, execution and delivery to the Company of a notice of such Participant's exercise of such Option, which notice shall include a certification by Participant that from the commencement of the Participant's employment to the date of exercise of the Option, Participant has not breached any covenant of his or her employment, and an "investment letter" (if required by the Company) as supplied by the Company and (ii) the payment to the Company of the aggregate Exercise Price, as provided under Article 8 hereof, for the shares of Incentive Stock to be purchased pursuant to such exercise (as shall be specified by such Participant in such notice) in accordance with the terms of this Plan and the Incentive Stock Option Agreement. Except as specifically provided by a duly executed Incentive Stock Option Agreement, an Option or any of the rights thereunder may be exercised by such Participant only, and may not be transferred or assigned, voluntarily, involuntarily or by operation of law including, without limitation, the laws of bankruptcy, intestacy, descent and distribution and succession. 5 (e) Notwithstanding any terms or provisions of this Plan to the contrary, the Board of Directors may delegate to the appropriate officer or officers of the Company the authority to prepare, execute and deliver any Incentive Stock Option Agreement reflecting any option granted under this Plan; provided, however, that any such Incentive Stock Option Agreement shall be consistent with the terms and conditions of this Plan. 7. PURCHASE PRICE OF INCENTIVE STOCK. The determination of the Exercise Price shall be made by the Board of Directors, in its sole discretion, it being understood that the Exercise Price may not be less than one hundred percent (100%) of the fair market value of the shares of Non-Voting Common Stock of the Company on the date that such Option shall be granted; provided, however, that, if an Option shall be granted to a Controlling Participant, the Exercise Price may not be less than one hundred ten percent (110%) of the fair market value of the shares of Non-Voting Common Stock of the Company on the date that such Option is granted. The fair market value of the shares of Incentive Stock of the Company shall be determined for purposes of this Plan by the Board of Directors in accordance with the Code, and such determination shall be final, conclusive and binding upon each Participant and the Company for all purchases of this Plan. 8. PAYMENT FOR SHARES OF INCENTIVE STOCK. Payment by each Participant for the shares of Incentive Stock purchased hereunder shall be made by good check or in accordance with the terms of any Incentive Stock Option Agreement executed by such Participant. 6 9. COSTS AND EXPENSES. All costs and expenses with respect to the adoption, implementation, interpretation and administration of this Plan shall be borne by the Company; provided, however, that, except as otherwise specifically provided in this Plan or the applicable Incentive Stock Option Agreement between the Company and a Participant, the Company shall not be obligated to pay any costs or expenses (including legal fees) incurred by any Participant in connection with any Incentive Stock Option Agreement, this Plan or any Option or Incentive Stock held by any Participant. 10. NO PRIOR RIGHT OF AWARD. Nothing in this Plan shall be deemed to give any officer or employee of the Company, or such person's legal representatives or assigns, or any other person or entity claiming under or through such person, any contract or other right to participate in the benefits of this Plan. Nothing in this Plan shall be construed as constituting a commitment, guarantee, agreement or understanding of any kind or nature that the Company shall continue to employ any individual (whether or not a Participant). This Plan shall not affect in any way the right of the Company to terminate the employment of any individual (whether or not a Participant) at any time and for any reason whatsoever. No change of a Participant's duties as an employee of the Company shall result in a modification of the terms of any rights of such Participant under this Plan or any Incentive Stock Option Agreement executed by such Participant. 7 11. CHANGES IN CAPITAL STRUCTURE. Subject to any required action by the stockholders of the Company and the provisions of the General Corporation Law of the State of Delaware, the number of shares of Incentive Stock represented by the unexercised portion of an Option and the number of shares of Incentive Stock which has been authorized or reserved for issuance hereunder (whether such shares are unissued, reacquired or subject to an Option that expired, was surrendered or terminated unexercised as to such shares), as well as the Exercise Price of a share of Incentive Stock represented by the unexercised portion of an Option, may be appropriately adjusted by the Board of Directors in its sole discretion to give effect to adjustments made in the number of outstanding shares of Non-Voting Common Stock of the Company through a merger, consolidation, reorganization, reclassification, combination, stock dividend, stock split or other relevant change, provided that fractional shares shall be rounded to the nearest whole share. 12. MERGER, CONSOLIDATION, DISSOLUTION OR LIQUIDATION. In the event of: (a) a proposed merger or consolidation of the Company with or into any other corporation, regardless of whether the Company is the surviving corporation (unless appropriate provision shall have been made for the protection of the outstanding Options granted under this Plan by the substitution, in lieu of such Options, of options to purchase appropriate voting common stock (the "Survivor's Stock") of the corporation surviving any such merger or consolidation or, if appropriate, the parent corporation of the Company or such surviving corporation, or, alternatively, by the delivery of a number of shares of the 8 Survivor's Stock which has a fair market value, as determined in good faith by the Board of Directors as of the effective date of such merger or consolidation equal to the product of (i) the excess of (x) the Event Proceeds per Common Share (as hereinafter defined) covered by the Option as of such effective date, over (y) the Exercise Price of a share of Incentive Stock, multiplied by (ii) the number of shares of Incentive Stock covered by such Option), or; (b) the proposed dissolution or liquidation of the Company (such merger, consolidation, dissolution or liquidation being herein called an "Event"); then the Board of Directors shall declare, at least ten days prior to the actual effective date of an Event, and provide written notice to each Participant of the declaration, that each outstanding Option, whether or not then exercisable, shall be cancelled at the time of, or immediately prior to the occurrence of, the Event (unless it shall have been exercised prior to the occurrence of the Event) in exchange for payment to the Participant, within ten days after the Event, of cash equal to the amount (if any) for each Share of Incentive Stock covered by the cancelled Option, by which the Event Proceeds per Common Share exceeds the Exercise Price of a share of Incentive Stock. At the time of such declaration, each Option shall immediately become exercisable in full and each Participant shall have the right, during the period preceding the time of cancellation of the Option, to exercise his or her Option as to all or any part of the Incentive Shares covered thereby. Each outstanding Option granted pursuant to this Plan that shall not have been exercised prior to the Event shall be cancelled at the time of, or immediately prior to, the Event, as provided in the declaration, and this Plan 9 shall terminate at the time of such cancellation, subject to the payment obligations of the Company provided in the Article 12. For purposes of this Article 12, "Event Proceeds per Common Share" shall mean the cash plus the fair market value, as determined in good faith by the Board of Directors, of the non-cash consideration to be received per share of Non-Voting Common Stock by the stockholders of the Company upon the occurrence of the Event. 13. AMENDMENT OR TERMINATION OF PLAN. Except as otherwise provided herein, this Plan may be amended or terminated in whole or in part by the Board of Directors (in its sole discretion), but no such action shall adversely affect or alter any right or obligation with respect to any Option or Incentive Stock Option Agreement then in effect, except to the extent that any such action shall be required or desirable (in the opinion of the Company or its counsel) in order to comply with the Code or any rule or regulation promulgated or proposed thereunder. 14. BURDEN AND BENEFIT. The terms and provisions of this Plan shall be binding upon, and shall inure to the benefit of, each Participant and such Participant's executors and administrators, estate, heirs and personal and legal representatives. 15. HEADINGS. The headings and other captions contained in this Plan are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Plan. 10 16. INTERPRETATION. Notwithstanding any provision of this Plan or any provision of any Incentive Stock Option Agreement to the contrary, this Plan and each Incentive Stock Option Agreement are intended to comply with all requirements for qualification under the Code and with any rule or regulation promulgated or proposed thereunder, and shall be interpreted and construed in a manner which is consistent with this Plan and each Incentive Stock Option Agreement being so qualified. 11 WILD FILE, INC. 1999 INCENTIVE STOCK OPTION PLAN STOCK OPTION AGREEMENT - ------------------------------------------------------------------------------- Name of Participant: - ------------------------------------------------------------------------------- Nature of Employment with Company: - ------------------------------------------------------------------------------- No. of Shares Covered: Date of Grant: - ------------------------------------------------------------------------------- Exercise Price Per Share: Expiration Date: - ------------------------------------------------------------------------------- Vesting Commencement Date: - ------------------------------------------------------------------------------- Vesting Schedule (cumulative): Period After Amount of Vesting Commencement Date Options Exercisable ------------------------- ------------------- - ------------------------------------------------------------------------------- STOCK OPTION AGREEMENT dated as of __________________ between Wild File, Inc., a Delaware corporation (the "Company"), and the employee (the "Participant" or "Optionee") listed above. WHEREAS, the Company desires to carry out the purposes of the Wild File, Inc. 1999 Incentive Stock Option Plan (the "Plan") by affording the Participant an opportunity to purchase Common Stock, par value $0.0001 per share, of the Company ("Common Shares") according to the terms set forth herein. NOW, THEREFORE, the parties hereto hereby agree as follows: 1. GRANT OF OPTION. Subject to the terms of the Plan, the Company hereby grants to the Participant the right and option (the "Option") to purchase the number of Common Shares specified in the schedule at the beginning of this Agreement, on the terms and conditions hereinafter set forth. The Option is intended by the Company to be an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. PURCHASE PRICE. The purchase price of each of the Common Shares subject to the Option shall be the exercise price per share specified in the Schedule at the beginning of this Agreement, which price has been specified in accordance with the Plan. The Board of Directors of the Company, exercising good faith, has determined that the purchase price is at least equal to the fair market value of each share on the date hereof. 3. OPTION PERIOD. (a) Subject to the provisions of Section 3(c) and Section 5 hereof, the Option shall be exercisable, in whole or in part, at any time on or prior to the expiration date specified in such schedule; as to the number of shares specified in the Schedule at the beginning of this Agreement with respect to which the Option shall have vested; provided, however, that the Participant shall have been in the continuous employ of the Company from and after the date of grant to and including the date specified. Notwithstanding the foregoing or any other provision herein to the contrary, the Option shall become immediately exercisable in the event the Board of Directors of the Company shall declare pursuant to Article 12 of the Plan that the Option shall be canceled at the time of, or immediately prior to the occurrence of an Event, as therein defined. (b) The Option and all rights to purchase shares thereunder shall cease on the earliest of: (i) the expiration date specified in the Schedule at the beginning of this Agreement; (ii) the expiration of the period after the termination of the Participant's employment within which the Option is exercisable as specified in Section 3(c); or (iii) the date, if any, fixed for cancellation pursuant to Article 12 of the Plan. Notwithstanding any other provision in this Agreement, in no event may anyone exercise the option, in whole or in part, after its original expiration date. (c) During the lifetime of the Participant, the Option may be exercised only while the Participant is employed by the Company and only if the Participant has been continuously so employed since the date of this Agreement, except that: (i) the Option shall continue to be exercisable for three months after termination of the Participant's employment but only to the extent that the Option was exercisable immediately prior to the Participant's termination of employment; (ii) in the event the Participant is disabled (within the meaning of Section 22(e)(3) of the Code) while employed, the Participant or his legal representative may exercise the Option within one year after the termination of the Participant's employment but only to the extent that the Option was exercisable immediately prior to the Participant's termination of employment; and 2 (iii) if the Participant's employment terminates after a declaration pursuant to Article 12 of the Plan, the Participant may exercise the Option at any time permitted by such declaration. 4. MANNER OF EXERCISING OPTION. (a) Subject to the terms and conditions of this Agreement, the Option may be exercised by delivering written notice of exercise to the Company at its principal executive office, to the attention of the President. The notice shall state the election to exercise the Option and the number of Common Shares in respect of which it is being exercised, and shall be signed by the person exercising the Option. If the person exercising the Option is not the Participant, he or she also shall send with the notice appropriate proof of his or her right to exercise the Option. Such notice shall be accompanied by payment in cash of the full purchase price of the Common Shares being purchased. (b) As soon as practicable after receipt of the purchase price provided for above, the Company shall deliver to the person exercising the Option, in the name of the Participant or his or her estate or heirs, as the case may be, a certificate or certificates representing the Common Shares being purchased. The Company shall pay all original issue or transfer taxes, if any, with respect to the issue or transfer of the Common Shares to the person exercising the Option and all fees and expenses necessarily incurred by the Company in connection therewith. All Common Shares so issued shall be fully paid and nonassessable. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required, upon the exercise of this Option or any part thereof, to issue or deliver any Common Shares prior to the completion of any registration or other qualification of such Common Shares required by applicable federal and state securities laws. 5. ACCELERATION AND CANCELLATION OF OPTION IN CERTAIN EVENTS. As provided in Article 12 of the Plan, in certain events the Board of Directors of the Company shall declare by prior written notice to the Participant that the Option, whether or not then exercisable, shall be canceled at the time of, or immediately prior to the occurrence of the Event, as defined in Article 12 of the Plan, in exchange for certain payments to the Participant. At the time of any such declaration, the Option shall become immediately exercisable. The Option, to the extent not exercised prior to the Event, shall be canceled at the time of, or immediately prior to, the Event in accordance with the declaration. 6. LIMITATION ON TRANSFER. During the lifetime of the Participant, only the Participant or his or her guardian or legal representative may exercise the Option. In the event of the Participant's death, the legal representative, heirs or legatees of the Participant's estate or the person who acquired the right to exercise the Option by bequest or inheritance may exercise the Option within one year after the death of the Participant but only to the extent that the Option was exercisable, in whole or in part, immediately prior to the Participant's death. The Participant shall not assign or transfer the Option otherwise than by will or the laws of descent and distribution, and the Option shall not be subject to pledge, hypothecation, execution, attachment or similar process. Any attempt to assign, transfer, pledge, hypothecate or otherwise dispose of 3 the Option contrary to the provisions hereof, and the levy of any attachment or similar process upon the Option, shall be null and void. 7. STOCKHOLDER RIGHTS BEFORE EXERCISE. The Participant shall have none of the rights of a stockholder of the Company with respect to any share subject to the Option until the share is actually issued to him or her upon exercise of the Option. 8. DISCRETIONARY ADJUSTMENT. The Board of Directors may in its sole discretion make appropriate adjustments in the number of shares subject to the Option and in the purchase price per share to give effect to any adjustments made in the number of outstanding Common Shares of the Company through a merger, consolidation, recapitalization, reclassification, combination, stock dividend, stock split or other relevant change, provided that fractional shares shall be rounded to the nearest whole share. 9. DISPOSITION AFTER EXERCISE. No disposition of any Common Shares purchased by the Participant hereunder shall be made prior to two years from the date hereof or within one year after the date of any such purchase. 10. RIGHT OF FIRST REFUSAL. (a) The Participant agrees not to sell, exchange or otherwise transfer for value, or pledge or otherwise encumber, all or any part of the Common Shares issued pursuant to this Agreement, or any shares of capital stock of the Company from time to time issued in respect thereof, whether as a stock dividend, pursuant to a stock split or otherwise (such Common Shares, together with such shares of capital stock of the Company issued in respect thereof hereinafter collectively called the "Restricted Shares") unless the Participant first offers the Restricted Shares he or she intends to transfer or encumber to the Company on the terms and conditions hereinafter contained. Any such offer shall be made in writing and shall contain the name and address of each person to or in favor of whom the Participant intends to transfer or encumber all or any part of the Restricted Shares and shall specify the terms and conditions of the intended transfer or encumbrance, including, without limitation, the proposed consideration. The Company may, prior to the purchase of any Restricted Shares hereunder, require evidence of a bona fide intention to transfer or encumber the Restricted Shares. (b) All offers under Section 10(a) hereof shall specify the notice address of the offeror for acceptance of such offer. If the Participant shall fail to extend an offer required by Section 10(a) hereof, then for purposes of this Agreement the Participant shall be deemed to have extended an offer on such date, if any, as the Company gives written notice to the person stating that such person has failed to extend an offer and that such notice from the Company shall be deemed to constitute such offer for purposes of this Agreement. (c) After receipt of an offer under Section 10(a) hereof, the Company shall have the right for a period of 60 days to elect to purchase, at the price specified in this Section 10 all or any part of the Restricted Shares offered to the Company by mailing written notice of such election within such period to the offeror at the address specified in the offer (or, if the offer fails 4 to specify a notice address, at the address to which notice to the Participant is given pursuant to Section 14 hereof). (d) In the event that the Company does not exercise a right granted to it pursuant to Section 10(a) hereof, the Participant may transfer or encumber the Restricted Shares which were subject to such right without regard to Section 10(a) hereof, but only (i) during a period of 30 days following the 60-day period specified in Section 10(c) hereof, (ii) solely to the persons or entities listed in the offer to the Company, and (iii) at a price and upon terms not less advantageous to the Participant than the price and terms stated in the offer to the Company. If the transfer or encumbrance of the Restricted Shares is not consummated within such 30-day period, such Restricted Shares shall again be subject to all requirements of Section 9 hereof, including without limitation, Section 10(a). (e) In the event of any transfer of all or any part of the Restricted Shares, the transferee shall agree in writing to take the Restricted Shares subject to the provisions of this Section 10 and the related provisions of this Agreement giving effect thereto. (f) Except as otherwise provided in this Section 10(f), the purchase price for Restricted Shares purchased pursuant to this Section 10 shall be the appraised value of the Restricted Shares determined pursuant to Section 12 hereof. In the case of a right granted pursuant to Section 10(a) hereof where the Participant proposes to transfer the Restricted Shares to a third party for consideration expressed in monetary terms or having a readily ascertainable market value, then the purchase price at which the Company has the right to purchase such Restricted Shares shall be an amount equal to the value of the consideration for which the Participant proposes to transfer the Restricted Shares to a third party. 11. PAYMENT FOR REPURCHASE OF SHARES. In order to effect a repurchase of Restricted Shares pursuant to Section 10 hereof, within 10 days of the later of (i) the date on which the right is exercised, or (ii) the date on which the Company receives the report of the Appraiser setting forth the appraised value of the Restricted Shares, the seller shall tender to the Company the Restricted Shares to be purchased and the Company shall simultaneously pay the purchase price therefor in cash. 12. APPRAISAL OF SHARES. Whenever it will be necessary to determine the appraised value of Restricted Shares for purposes of this Agreement, the Board of Directors of the Company shall select an investment banking firm or other entity expert in the valuation of closely-held companies (the "Appraiser"), who shall be engaged at the expense of the Company, to value the Restricted Shares based upon a going-concern value without discount for any minority interest. The appraised value of the Restricted Shares shall be as of a date not more than six months prior to the date on which the option to repurchase the Restricted Shares is exercised. 13. EXPIRATION UPON PUBLIC MARKET. The rights granted pursuant to Section 10 hereof shall expire at such time as there has been sold to the general public in an underwritten offering or offerings pursuant to one or more registration statements filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as 5 amended, an aggregate number of Shares equal to at least 25% of the Shares outstanding before the last such sale. 14. NOTICE. Every notice to be given pursuant to the provisions of this Agreement shall be in writing and delivered by hand or sent by certified mail, return receipt requested. Any such notice to the Company shall be addressed to 17020 12th Avenue North, Plymouth, Minnesota 55447, Attention: President. Except as otherwise provided in this Agreement, any such notice to the Participant shall be addressed as set forth following the signature of the Participant. Either party may change its address by notice to the other party in accordance with this Section 14. 15. LEGEND ON STOCK CERTIFICATES. In addition to such legends as the Company employs to evidence that the Restricted Shares have not been registered under any federal or state securities laws, all Restricted Shares shall contain the following legend: The shares evidenced by this certificate and any transfer thereof are subject to the terms of the Stock Option Agreement between ______________________ and the Company dated as of _________________, a copy of which is on file at the registered office of the Company. 16. INTERPRETATION OF THIS AGREEMENT. All decisions and interpretations made by the Board of Directors with regard to any questions arising hereunder or under the Plan shall be binding and conclusive upon the Company and the Participant. In the event that there is any inconsistency between the provisions of this Agreement and the Plan, the provisions of the Plan shall govern. 17. DISCONTINUANCE OF EMPLOYMENT OR ASSOCIATION. This Agreement shall not give the Participant a right to continued employment or association with the Company or any subsidiary or affiliate thereof, and the Company or any subsidiary or affiliate thereof employing the Participant or with whom the Participant is associated may terminate his or her employment or association and otherwise deal with the Participant without regard to the effect it may have upon him or her under this Agreement. 18. GENERAL. The Company shall at all times during the term of this Option reserve and keep available such number of Common Shares as will be sufficient to satisfy the requirements of this Option Agreement. This Agreement shall be binding in all respects on the Participant's heirs, representatives, successors and assigns. This Agreement is entered into under the laws of the state of Minnesota and shall be construed and interpreted thereunder. 6 IN WITNESS WHEREOF, the Participant and the Company have executed this Agreement as of the day and year first above written. _____________________________________ Participant Print Name:__________________________ Address: WILD FILE, INC. By:__________________________________ Eric D. Schneider, President 7 EX-4.2 3 EX-4.2 EXHIBIT 4.2 WILD FILE, INC. 1994 STOCK OPTION PLAIN 1. PURPOSE OF PLAN. The purpose of this Wild File, Inc. 1994 Stock Option Plan (the "Plan"), is to promote the interests of Wild File, Inc., a Delaware corporation (the "Company"), and its stockholders by providing key persons employed by, or associated with the Company with an opportunity to acquire a proprietary interest in the Company and thereby develop a greater personal commitment to the success and growth of the Company. 2. ADMINISTRATION OF PLAN. This Plan shall be administered by a committee of two or more directors (the "Committee") appointed by the Company's board of directors (the "Board"). A majority of the members of the Committee shall constitute a quorum for any meeting of the Committee, and the acts of a majority of the members present at any meeting at which a quorum is present or the acts unanimously approved in writing by all members of the Committee shall be the acts of the Committee. Subject to the provisions of this Plan, the Committee may from time to time adopt such rules for the administration of this Plan as it deems appropriate. The decision of the Committee on any matter affecting this Plan or the rights and obligations arising under this Plan or any option granted hereunder, shall be final, conclusive and binding upon all persons, including without limitation the Company, stockholders, employees and optionees. To the full extent permitted by law, no member of the Committee shall be liable for any action or determination taken or made in good faith with respect to this Plan or any option granted hereunder. If a Committee shall not have been appointed by the Board, the Plan shall be administered by the Board and all references in this Plan to the "Committee." shall be deemed to be references to the Board. 3. SHARES SUBJECT TO PLAN. The shares that may be made subject to options granted under this Plan shall be authorized and unissued shares of Common Stock, par value $0.01 of the Company ("Common Shares"), and they shall not exceed 10,000 in the aggregate; provided, however, if any option lapses or terminates for any reason before such option has been completely exercised, the Common Shares covered by the unexercised portion of such option may again be made subject to options granted under this Plan. Appropriate adjustments in the number of shares and in the purchase price per share-may be made by the Committee in its sole discretion to give effect to adjustments made in the number of outstanding Common Shares of the Company through a merger, consolidation, recapitalization, reclassification, combination, stock dividend, stock split or other relevant change, provided that fractional shares shall be rounded to the nearest whole share. 4. ELIGIBLE PARTICIPANTS. Options may be granted under this Plan to any person employed by the Company or any person associated with the Company as director, advisor, consultant or otherwise, whether or not such person receives consideration from the Company for such association. 5. TERMS AND CONDITIONS OF OPTIONS. (a) Subject to the terms and conditions of this Plan, the Committee may, from time to time, grant to such persons as the Committee may determine options to purchase such number of Common Shares of the Company on such terms and conditions as the Committee may determine. In determining the persons to whom options shall be granted and the number of Common Shares to be covered by each option, the Committee may take into account the nature of the employment of or association with such persons, their present and potential contributions to the success of the Company, and such other factors as the Committee in its sole discretion shall deem relevant. The date and time of approval by the Committee of the granting of an option shall be considered the date and the time of the grant of such option. (b) The purchase price of each Common Share subject to an option granted pursuant to this Plan shall be fixed by the Committee. (c) In connection with - the grant of an option pursuant to this Plan, the Committee may specify the date when such option shall become exercisable; provided that if the Committee does not specify such a date, then the option shall be immediately exercisable. (d) Each option granted pursuant to this Plan and all rights to purchase shares thereunder shall cease on the earliest of: (i) ten years after the date such option is granted or on such date prior thereto as may be fixed by the Committee on or before the date such option is granted; or (ii) the date, if any, fixed for cancellation pursuant to Section 8 of this Plan. In no event shall any option be exercisable at any time after its original expiration date. When an option is no longer exercisable, it shall be deemed to have lapsed or terminated and will no longer be outstanding. 6. MANNER OF EXERCISING OPTIONS. A person entitled to exercise an option granted under this Plan may, subject to its terms and conditions and the terms and conditions of this Plan, exercise it, in whole at any time, or in part from time to time, by delivery to the Company at its principal executive office, to the attention of its President, of written notice of exercise, specifying the number of shares with respect to which the option is being exercised, accompanied by payment in full of the purchase price of the shares to be purchased at the time. No shares shall be issued until full payment therefor has been made. The granting of an option to an individual shall give such individual no rights as a stockholder except as to shares issued to such individual. 7. TRANSFERABILITY AND TERMINATION OF OPTIONS. During the lifetime of an optionee, only such optionee or his or her guardian or legal representative may exercise options granted under this Plan. An option may be exercised within one year after the death of the optionee by such individual's legal representatives, heirs or legatees, but only to the extent -2- that the option was exercisable, in whole or in part, immediately prior to such individual's death. No option granted under this Plan shall be assignable or transferable by the optionee otherwise than by will or the laws of descent and distribution. 8. MERGER, CONSOLIDATION, DISSOLUTION OR LIQUIDATION. In the event of (a) a proposed merger or consolidation of the Company with or into any other corporation, regardless of whether the Company is the surviving corporation (unless appropriate provision shall have been made for the protection of the outstanding options granted under this Plan by the substitution, in lieu of such options, of options to Purchase appropriate voting common stock (the "Survivor's Stock") of the corporation surviving any such merger or consolidation or, if appropriate, the parent corporation of the Company or such surviving corporation, or, alternatively, by the delivery of a number of shares of the Survivor's Stock which has a fair market value, as determined in good faith by the Committee, as of the effective date of such merger or consolidation equal to the product of (i) the excess of (x) the Event Proceeds per Common Share (as hereinafter defined) covered by the option as of such effective date, over (y) the option price per Common Share, multiplied by (ii) the number of Common Shares covered by such option), or (b) the, proposed dissolution or liquidation of the Company (such merger, consolidation, dissolution or liquidation being herein called an "Event"), then the Committee shall declare, at least ten days prior to the actual effective date of an Event, and provide written notice to each optionee of the declaration, that each outstanding option, whether or not then exercisable, shall be cancelled at the time of, or immediately prior to the occurrence of, the Event (unless it shall have been exercised prior to the occurrence of the Event) in exchange for payment to each optionee, within ten days after the Event, of cash equal to the amount (if any), for each Common Share covered by the cancelled option, by which the Event Proceeds per Common Share exceeds the exercise price per Common Share covered by such option. At the time of such declaration, each option shall immediately become exercisable in full and each optionee shall have the right, during the period preceding the time of cancellation of the option, to exercise his or her option as to all or any part of the Common Shares covered thereby. Each outstanding option granted pursuant to this Plan that shall not have been exercised prior to the Event shall be cancelled at the time of, or immediately prior to, the Event, as provided in the declaration, and this Plan shall terminate at the time of such cancellation, subject to the payment obligations of the Company provided in this Section 8. For purposes of this Section, "Event Proceeds per Common Share" shall mean the cash plus the fair market value, as determined in good faith by the Committee, of the non-cash consideration to be received per Common Share by the stockholders of the Company upon the occurrence of the Event. 9. TAX WITHHOLDING. Delivery of Common Shares upon exercise of any stock option granted under this Plan shall be subject to any required withholding taxes. A person exercising such an option may, as a condition precedent to receiving the Common Shares, be required to pay the Company a cash amount equal to the amount of any required withholdings. 10. OTHER TERMS AND CONDITIONS. The Committee shall have the power, subject to the terms and conditions contained herein, to fix any other terms and conditions for the grant or exercise of any option under this Plan. Nothing contained in this Plan, or in any -3- option granted pursuant to this Plan, shall confer upon any employee holding an option any right to continued employment by the Company or any subsidiary of the Company or limit in any way the right of the Company or any such subsidiary to terminate an employee's employment at any time. 11. OPTION AGREEMENTS. All options granted under this Plan shall be evidenced by a written agreement in such form or forms as the Committee may from time to time determine. The Committee may condition the granting of options to a person hereunder upon the execution by such person of an agreement regarding the transferability of Common Shares in form and substance reasonably satisfactory to the Company. 12. AMENDMENT AND DISCONTINUANCE OF PLAN. The Board may at any time amend, suspend or discontinue this Plan; provided, however, that no amendment to this Plan shall, without the consent of the holder of the option, alter or impair any options previously granted under this Plan. 13. EFFECTIVE DATE. This Plan shall be effective as of August 29, 1994. -4- WILD FILE, INC. 1994 STOCK OPTION PLAN STOCK OPTION AGREEMENT ======================================================================================== Name of Optionee: - ---------------------------------------------------------------------------------------- Nature of Employment by, or Association with Company: Consultant - ---------------------------------------------------------------------------------------- No. of Shares Covered: Date of Grant: - ---------------------------------------------------------------------------------------- Exercise Price Per Share: Expiration Date: ========================================================================================
STOCK OPTION AGREEMENT dated as ____________________ between Wild File, Inc., a Delaware corporation (the "Company"), and the optionee (the "Optionee") listed above. WHEREAS, the Company desires to carry out the purposes of the Wild File, Inc. 1994 Stock Option Plan (the "Plan") by affording the Optionee an opportunity to purchase Common Stock, par value $0.01 per share, of the Company ("Common Shares") according to the terms set forth herein. NOW, THEREFORE, the parties hereto hereby agree as follows: 1. GRANT OF OPTION. Subject to the terms of the Plan, the Company hereby grants to the Optionee the right and option (the "Option") to purchase the number of Common Shares specified in the schedule at the beginning of this Agreement, on the terms and conditions hereinafter set forth. The Option is not intended by the Company to be an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. PURCHASE PRICE. The purchase price of each of the Common Shares subject to the Option shall be the exercise price per share specified in the schedule at the beginning of this Agreement, which price has been specified in accordance with the Plan. 3. OPTION PERIOD. (a) Subject to the provisions of Section 5 hereof, the Option shall be exercisable, in whole or in part, as to the number of shares specified in the schedule at the beginning of this Agreement at any time on or prior to the expiration date specified in such schedule. Notwithstanding the foregoing or any other provision herein to the contrary, the Option shall become immediately exercisable in the event that the committee under the Plan (the "Committee") shall declare pursuant to Section 8 of the Plan that the Option shall be cancelled at the time of, or immediately prior to the occurrence of an Event, as therein defined. (b) The Option and all rights to purchase shares thereunder shall cease on the earliest of: (i) the expiration date specified in the schedule at the beginning of this Agreement (which date shall not be more than ten years after the date of this Agreement); or (ii) the date, if any, fixed for cancellation pursuant to Section 8 of the Plan. Notwithstanding any other provision in this Agreement, in no event may anyone exercise the Option, in whole or in part, after its original expiration date. 4. MANNER OF EXERCISING OPTION. (a) Subject to the terms and conditions of this Agreement, the Option may be exercised by delivering written notice of exercise to the Company at its principal executive office, to the attention of the President. The notice shall state the election to exercise the Option and the number of Common Shares in respect of which it is being exercised, and shall be signed by the person exercising the Option. If the person exercising the Option is not the Optionee, he or she also shall send with the notice appropriate proof of his or her right to exercise the Option. Such notice shall be accompanied by payment in cash of the full purchase price of the Common Shares being purchased. (b) As soon as practicable after receipt of the purchase price provided for above, the Company shall deliver to the person exercising the Option, in the name of the Optionee or his or her estate or heirs, as the case may be, a certificate or certificates representing the Common Shares being purchased. The Company shall pay all original issue or transfer taxes, if any, with respect to the issue or transfer of the Common Shares to the person exercising the Option and all fees and expenses necessarily incurred by the Company in connection therewith. All Common Shares so issued shall be fully paid and nonassessable. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required, upon the exercise of this Option or any part thereof, to issue or deliver any Common Shares prior to the completion of any registration or other qualification of such Common Shares required by applicable federal and state securities laws. -2- 5. ACCELERATION AND CANCELLATION OF OPTION IN CERTAIN EVENTS. As provided in Section 8 of the Plan, in certain events the Committee shall declare by prior written notice to the Optionee that the Option, whether or not then exercisable, shall be cancelled at the time of, or immediately prior to the occurrence of the Event, as defined in Section 8 of the Plan, in exchange for certain payments to the Optionee. At the time of any such declaration, the Option shall become immediately exercisable. The Option, to the extent not exercised prior to the Event, shall be cancelled at the time of, or immediately prior to, the Event in accordance with the declaration. 6. LIMITATION ON TRANSFER. During the lifetime of the Optionee, only the Optionee or his or her guardian or legal representative may exercise the Option. In the event of the Optionee's death, the legal representative, heirs or legatees of the Optionee's estate or the person who acquired the right to exercise the Option by bequest or inheritance may exercise the Option within one year after the death of the Optionee but only to the extent that the Option was exercisable, in whole or in part, immediately prior to the Optionee's death. The Optionee shall not assign or transfer the Option otherwise than by will or the laws of descent and distribution, and the Option shall not be subject to pledge, hypothecation, execution, attachment or similar process. Any attempt to assign, transfer, pledge, hypothecate or otherwise dispose of the Option contrary to the provisions hereof, and the levy of any attachment or similar process upon the Option, shall be null and void. 7. STOCKHOLDER RIGHTS BEFORE EXERCISE. The Optionee shall have none of the rights of a stockholder of the Company with respect to any share subject to the Option until the share is actually issued to him or her upon exercise of the Option. 8. DISCRETIONARY ADJUSTMENT. The Committee may in its sole discretion make appropriate adjustments in the number of shares subject to the Option and in the purchase price per share to give effect to any adjustments made in the number of outstanding Common Shares of the Company through a merger, consolidation, recapitalization, reclassification, combination, stock dividend, stock split or other relevant change, provided that fractional shares shall be rounded to the nearest whole share. 9. TAX WITHHOLDING. The parties hereto recognize that the Company or a subsidiary thereof may be obligated to withhold federal and state income taxes and social security or other taxes upon the Optionee's exercise of the Option. The Optionee agrees that, at the time he or she exercises the Option, if the Company or subsidiary thereof is required to withhold such taxes, he or she will promptly pay in cash upon demand to the Company, or the subsidiary having such obligation, such amounts as shall be necessary to satisfy such obligation. 10. RIGHT OF FIRST REFUSAL. (a) The Optionee agrees not to sell, exchange or otherwise transfer for value, or pledge or otherwise encumber, all or any part of the Common Shares issued pursuant to this Agreement, or any shares of capital stock of the Company from time to time issued in respect thereof, whether as a stock dividend, pursuant to a stock split or otherwise (such Common Shares, -3- together with such shares of capital stock of the Company issued in respect thereof, hereinafter collectively called the "Restricted Shares") unless the Optionee first offers the Restricted Shares he or she intends to transfer or encumber to the Company on the terms and conditions hereinafter contained. Any such offer shall be made in writing and shall contain the name and address of each person to or in favor of whom the Optionee intends to transfer or encumber all or any pall of the Restricted Shares and shall specify the terms and conditions of the intended transfer or encumbrance, including without limitation, the proposed consideration. The Company may, prior to the purchase of any Restricted Shares hereunder, require evidence of a bona fide intention to transfer or encumber the Restricted Shares. (b) All offers under Section 10(a) hereof shall specify the notice address of the offeror for acceptance of such offer. If the Optionee shall fail to extend an offer required by Section 10(a) hereof, then for purposes of this Agreement the Optionee shall be deemed to have extended an offer on such date, if any, as the Company gives written notice to the person stating that such person has failed to extend an offer and that such notice from the Company shall be deemed to constitute such offer for purposes of this Agreement. (c) After receipt of an offer under Section 10(a) hereof, the Company shall have the right for a period of sixty (60) days to elect to purchase, at the price specified in this Section 10, all or any part of the Restricted Shares offered to the Company by mailing written notice of such election within such period to the offeror at the address specified in the offer (or, if the offer fails to specify a notice address, at the address to which notice to the Optionee is given pursuant to Section 14 hereof). (d) In the event that the Company does not exercise a right granted to it pursuant to Section 10(a) hereof, the Optionee may transfer or encumber the Restricted Shares which were subject to such right without regard to Section 10(a) hereof, but only (i) during a period of thirty (30) days following the 60-day period specified in Section 10(c) hereof, (ii) solely to the persons or entities listed in the offer to the Company, and (iii) at a price and upon terms not less advantageous to the Optionee than the price and terms stated in the offer to the Company. If the transfer or encumbrance of the Restricted Shares is not consummated within such 30-day period, such Restricted Shares shall again be the subject to all requirements of Section 10 hereof, including without limitation Section 10(a). (e) In the event of any transfer of all or any part of the Restricted Shares., the transferee shall agree in writing to take the Restricted Shares subject to the provisions of this Section 10 and the related provisions of this Agreement giving effect thereto. (f) Except as otherwise provided in this Section 10(f), the purchase price for Restricted Shares purchased pursuant to this Section 10 shall be the appraised value of the Restricted Shares determined pursuant to Section 12 hereof. In the case of a fight granted pursuant to Section 10(a) hereof where the Optionee proposes to transfer the Restricted Shares to a third party for consideration expressed in monetary terms or having a readily ascertainable market value, then the purchase price at which the Company has the right to purchase such -4- Restricted Shares shall be an amount equal to the value of the consideration for which the Optionee proposes to transfer the Restricted shares to a third party. 11. PAYMENT FOR REPURCHASE OF SHARES. In order to effect a repurchase of Restricted Shares pursuant to Section 10 hereof, within ten (10) days of the later of (i) the date on which the right is exercised, or (ii) the date on which the Company receives the report of the Appraiser setting forth the appraised value of the Restricted Shares, the seller shall tender to the Company the Restricted Shares to be purchased and the Company shall simultaneously pay the purchase price therefor in cash. 12. APPRAISAL OF SHARES. Whenever it will be necessary to determine the appraised value of Restricted Shares for purposes of this Agreement, the Board of Directors of the Company shall select an investment baking firm or other entity expert in the valuation of closely-held companies (the "Appraiser"), who shall be engaged at the expense of the Company, to value the Restricted Shares based upon a going-concern value without discount for any minority interest. The appraised value of the Restricted Shares shall be as of a date not more than six (6) months prior to the date on which the option to repurchase the Restricted Shares is exercised. 13. EXPIRATION UPON PUBLIC MARKET. The rights granted pursuant to Section 10 hereof shall expire at such time as there has been sold to the general public in an underwritten offering or offerings pursuant to one or more registration statements filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended, an aggregate number of Shares equal to at least twenty-five percent of the Shares outstanding after the last such sale. 14. NOTICE. Every notice to be given pursuant to the provisions of this Agreement shall be in writing and delivered by hand or sent by certified mail, return receipt requested. Any such notice to the Company shall be addressed to 17020 12th Avenue North, Plymouth, Minnesota 55447, Attention: President. Except as otherwise provided in this Agreement, any such notice to the Optionee shall be the address set forth following the signature of the Optionee. Either party may change its address by notice to the other party in accordance with this Section 14. 15. LEGEND ON STOCK CERTIFICATES. In addition to such legends as the Company employs to evidence that the Restricted Shares have not been registered under any federal or state securities laws, all Restricted Shares shall contain the following legend: The shares evidenced by this certificate and any transfer thereof are subject to the terms of the Option Agreement between __________________ and the Company dated as of ________________ a copy of which is on file at the registered office of the Company. 16. INTERPRETATION OF THIS AGREEMENT. All decisions and interpretations made by the Committee with regard to any question arising hereunder or under the Plan shall be binding and conclusive upon the Company and the Optionee. In the event that there is any -5- inconsistency between the provisions of this Agreement arid the Plan, the provisions of the Plan shall govern. 17. DISCONTINUANCE OF EMPLOYMENT OR ASSOCIATION This Agreement shall not give the Optionee a right to continued employment or association with the Company or any subsidiary thereof, and the Company or any subsidiary thereof employing the Optionee or with whom the Optionee is associated may terminate his or her employment or association and otherwise deal with the Optionee without regard to the effect it may have upon him or her under this Agreement. 18. GENERAL. The Company shall at all times during the term of this Option reserve and keep available such number of Common Shares as win be sufficient to satisfy the requirements of this Option Agreement. This Agreement shall be binding in all respects on the Optionee's heirs, representatives, successors and assigns. This Agreement is entered into under the laws of the State of Minnesota and shall be construed and interpreted thereunder. IN WITNESS WHEREOF, the Optionee and the Company have executed this Agreement as of the day and year first above written. --------------------------------------- Optionee Address: WILD FILE, INC. By ------------------------------------- -6- EX-5.1 4 EX-5.1 EXHIBIT 5.1 Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION April 7, 2000 Adaptec, Inc. 691 South Milpitas Boulevard Milpitas, California 95035 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have acted as counsel to Adaptec, Inc., a Delaware corporation (the "Company" or "you"), and have examined the Company's registration statement on Form S-8 (the "Registration Statement") to be filed by the Company with the Securities and Exchange Commission on or about April 7, 2000 in connection with the registration under the Securities Act of 1933, as amended, of 22,020 shares of common stock, $0.001 par value per share (the "Shares") reserved for issuance under the Wild File, Inc. 1999 Incentive Stock Option Plan and Wild File, Inc. 1994 Stock Option Plan (collectively, the "Plans"). As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings to be taken in connection with the sale and issuance of the Shares under the Plans. It is our opinion that the Shares, when sold and issued in the manner referred to under the Plans and pursuant to the agreements that accompany the Plans, will be legally and validly issued, fully paid and non-assessable. 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 amendments thereto. Sincerely, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ WILSON SONSINI GOODRICH & ROSATI EX-23.1 5 EX-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 April 28, 1999 relating to the financial statements of Adaptec, Inc., which appears in Adaptec, Inc.'s Annual Report on Form 10-K for the year ended March 31, 1999. /s/ PricewaterhouseCoopers LLP - ---------------------------------- PricewaterhouseCoopers LLP San Jose, California April 6, 2000 EX-23.2 6 EX-23.2 [ARTHUR ANDERSEN LETTERHEAD] EXHIBIT 23.2 ------------ CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS As independent certified public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-8 of our report dated February 26, 1999 (except with respect to matters discussed in Note 12 as to which the dates are November 19, 1999, and December 22, 1999) related to the financial statements of Distributed Processing Technology Corp., which are included in Adaptec, Inc.'s current report on Form 8-K/A filed on March 3, 2000, and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Orlando, Florida, April 6, 2000 -----END PRIVACY-ENHANCED MESSAGE-----