exv10w2



 





Exhibit 10.2




TALK CITY, INC.




1999 DIRECTOR OPTION PLAN




     1. Purposes of the Plan. The purposes of this 1999 Director Option Plan are to
attract and retain the best available personnel for service as Outside Directors (as defined
herein) of the Company, to provide additional incentive to the Outside Directors of the Company to
serve as Directors, and to encourage their continued service on the Board.



     All options granted hereunder shall be nonstatutory stock options.



     2. Definitions. As used herein, the following definitions shall apply:



          (a) “Board” means the Board of Directors of the Company.




          (b) “Code” means the Internal Revenue Code of 1986, as amended.




          (c) “Common Stock” means the common stock of the Company.




          (d) “Company” means Talk City, Inc., a Delaware corporation.




          (e) “Director” means a member of the Board.




          (f) “Disability” means total and permanent disability as defined in section 22(e)(3)
of the Code.




          (g) “Employee” means any person, including officers and Directors, employed by the
Company or any Parent or Subsidiary of the Company. The payment of a Director’s fee by the Company
shall not be sufficient in and of itself to constitute “employment” by the Company.




          (h) “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          (i) “Fair Market Value” means, as of any date, the value of Common Stock determined as
follows:




                    (i) If the Common Stock is listed on any established stock exchange or a national market
system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of
The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for such stock (or
the closing bid, if no sales were reported) as quoted on such exchange or system for the last
market trading day prior to the time of determination as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;



                    (ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling
prices are not reported, the Fair Market Value of a Share of Common Stock shall be the mean between
the high bid and low asked prices for the Common Stock for the last market



 









 




trading day prior to the
time of determination, as reported in The Wall Street Journal or such other source as the Board
deems reliable; or




                    (iii) In the absence of an established market for the Common Stock, the Fair Market Value
thereof shall be determined in good faith by the Board.



          Notwithstanding the foregoing, with respect to any Options granted upon the effective date of
the Company’s initial public offering (the “IPO”), as set forth in Section 4 below, the Fair Market
Value shall be the price as it appears in the final prospectus relating to the IPO.




          (j) “Inside Director” means a Director who is an Employee.




          (k) “Option” means a stock option granted pursuant to the Plan.




          (l) “Optioned Stock” means the Common Stock subject to an Option.




          (m) “Optionee” means a Director who holds an Option.




          (n) “Outside Director” means a Director who is not an Employee.




          (o) “Parent” means a “parent corporation,” whether now or hereafter existing, as
defined in Section 424(e) of the Code.




          (p) “Plan” means this 1999 Director Option Plan.




          (q) “Share” means a share of the Common Stock, as adjusted in accordance with Section
10 of the Plan.




          (r) “Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing,
as defined in Section 424(f) of the Internal Revenue Code of 1986.




     3. Stock Subject to the Plan. Subject to the provisions of Section 10 of the Plan,
the maximum aggregate number of Shares which may be optioned and sold under the Plan is 250,000
Shares (the “Pool”). The Shares may be authorized, but unissued, or reacquired Common Stock.



          If an Option expires or becomes unexercisable without having been exercised in full, the
unpurchased Shares which were subject thereto shall become available for future grant or sale under
the Plan (unless the Plan has terminated). Shares that have actually been issued under the Plan
shall not be returned to the Plan and shall not become available for future distribution under the
Plan.




     4. Administration and Grants of Options under the Plan.



          (a) Procedure for Grants. All grants of Options to Outside Directors under this Plan
shall be automatic and nondiscretionary and shall be made strictly in accordance with the following
provisions:




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                    (i) No person shall have any discretion to select which Outside Directors shall be granted
Options or to determine the number of Shares to be covered by Options.



                    (ii) Subject to subsection (iv) below, each Outside Director shall be automatically granted an
Option to purchase 20,000 Shares (the “First Option”) on the date on which such person first
becomes an Outside Director, whether through election by the shareholders of the Company or
appointment by the Board to fill a vacancy; provided, however, that an Inside Director who ceases
to be an Inside Director but who remains a Director shall not receive a First Option.



                    (iii) Subject to subsection (iv) below, each Outside Director shall be automatically granted
an Option to purchase 5,000 Shares on both (A) the effective date of the IPO and (B) the date of
the Company’s Annual Meeting of Stockholders each year, provided he or she is then an Outside
Director and if as of such date, he or she shall have served on the Board for at least the
preceding six (6) months.



                    (iv) The terms of each Option granted hereunder shall be as follows:



                         (A) the term of the Option shall be ten (10) years.



                         (B) the Option shall be exercisable only while the Outside Director remains a Director of the
Company, except as set forth in Sections 8 and 10 hereof.



                         (C) the exercise price per Share shall be 100% of the Fair Market Value per Share on the date
of grant of the Option.



                         (D) the Option shall be fully vested and exercisable on the date of grant.



                    (v) In the event that any Option granted under the Plan would cause the number of Shares
subject to outstanding Options plus the number of Shares previously purchased under Options to
exceed the Pool, then the remaining Shares available for Option grant shall be granted under
Options to the Outside Directors on a pro rata basis. No further grants shall be made until such
time, if any, as additional Shares become available for grant under the Plan through action of the
Board or the shareholders to increase the number of Shares which may be issued under the Plan or
through cancellation or expiration of Options previously granted hereunder.



     5. Eligibility. Options may be granted only to Outside Directors. All Options shall
be automatically granted in accordance with the terms set forth in Section 4 hereof.



          The Plan shall not confer upon any Optionee any right with respect to continuation of service
as a Director or nomination to serve as a Director, nor shall it interfere in any way with any
rights which the Director or the Company may have to terminate the Director’s relationship with the
Company at any time.




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     6. Term of Plan. The Plan shall become effective upon the effective date of the IPO.
It shall continue in effect for a term of ten (10) years unless sooner terminated under Section 11
of the Plan.



     7. Form of Consideration. The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall consist of (i) cash, (ii) check,
(iii) other shares which (x) in the case of Shares acquired upon exercise of an option, have been
owned by the Optionee for more than six (6) months on the date of surrender, and (y) have a Fair
Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to
which said Option shall be exercised, (iv) consideration received by the Company under a cashless
exercise program implemented by the Company in connection with the Plan, or (v) any combination of
the foregoing methods of payment.



     8. Exercise of Option.



          (a) Procedure for Exercise; Rights as a Shareholder. Any Option granted hereunder
shall be exercisable at such times as are set forth in Section 4 hereof; provided, however, that no
Options shall be exercisable until shareholder approval of the Plan in accordance with Section 16
hereof has been obtained.




          An Option may not be exercised for a fraction of a Share.




          An Option shall be deemed to be exercised when written notice of such exercise has been given
to the Company in accordance with the terms of the Option by the person entitled to exercise the
Option and full payment for the Shares with respect to which the Option is exercised has been
received by the Company. Full payment may consist of any consideration and method of payment
allowable under Section 7 of the Plan. Until the issuance (as evidenced by the appropriate entry
on the books of the Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of Shares so acquired shall be issued to the Optionee
as soon as practicable after exercise of the Option. No adjustment shall be made for a dividend or
other right for which the record date is prior to the date the stock certificate is issued, except
as provided in Section 10 of the Plan.




          Exercise of an Option in any manner shall result in a decrease in the number of Shares which
thereafter may be available, both for purposes of the Plan and for sale under the Option, by the
number of Shares as to which the Option is exercised.




          (b) Termination of Continuous Status as a Director. Subject to Section 10 hereof, in
the event an Optionee’s status as a Director terminates (other than upon the Optionee’s death or
Disability), the Optionee may exercise his or her Option, but only within three (3) months
following the date of such termination, and only to the extent that the Optionee was entitled to
exercise it on the date of such termination (but in no event later than the expiration of its ten
(10) year term). To




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the extent that the Optionee was not entitled to exercise an Option on the
date of such termination, and to the extent that the Optionee does not exercise such Option (to the
extent otherwise so entitled) within the time specified herein, the Option shall terminate.




          (c) Disability of Optionee. In the event Optionee’s status as a Director terminates
as a result of Disability, the Optionee may exercise his or her Option, but only within twelve (12)
months following the date of such termination, and only to the extent that the Optionee was
entitled to exercise it on the date of such termination (but in no event later than the expiration
of its ten (10) year term). To the extent that the Optionee was not entitled to exercise an Option
on the date of termination, or if he or she does not exercise such Option (to the extent otherwise
so entitled) within the time specified herein, the Option shall terminate.




          (d) Death of Optionee. In the event of an Optionee’s death, the Optionee’s estate or
a person who acquired the right to exercise the Option by bequest or inheritance may exercise the
Option, but only within twelve (12) months following the date of death, and only to the extent that
the Optionee was entitled to exercise it on the date of death (but in no event later than the
expiration of its ten (10) year term). To the extent that the Optionee was not entitled to
exercise an Option on the date of death, and to the extent that the Optionee’s estate or a person
who acquired the right to exercise such Option does not exercise such Option (to the extent
otherwise so entitled) within the time specified herein, the Option shall terminate.




     9. Non-Transferability of Options. The Option may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the Optionee, only by the
Optionee.



     10. Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset Sale.



          (a) Changes in Capitalization. Subject to any required action by the shareholders of
the Company, the number of Shares covered by each outstanding Option, the number of Shares which
have been authorized for issuance under the Plan but as to which no Options have yet been granted
or which have been returned to the Plan upon cancellation or expiration of an Option, as well as
the price per Share covered by each such outstanding Option, and the number of Shares issuable
pursuant to the automatic grant provisions of Section 4 hereof shall be proportionately adjusted
for any increase or decrease in the number of issued Shares resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued Shares effected without receipt of consideration by
the Company; provided, however, that conversion of any convertible securities of the Company shall
not be deemed to have been “effected without receipt of consideration.” Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of Shares subject to an Option.




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          (b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, to the extent that an Option has not been previously exercised, it
shall terminate immediately prior to the consummation of such proposed action.




          (c) Merger or Asset Sale. In the event of a merger of the Company with or into
another corporation or the sale of substantially all of the assets of the Company, outstanding
Options may be assumed or equivalent options may be substituted by the successor corporation (the
“Successor Corporation”) or a Parent or Subsidiary thereof.




     If the Successor Corporation does not assume an outstanding Option or substitute for it an
equivalent option, the Board shall notify the Optionee that the Option shall be fully exercisable
for a period of thirty (30) days from the date of such notice, and upon the expiration of such
period the Option shall terminate.



     11. Amendment and Termination of the Plan.



          (a) Amendment and Termination. The Board may at any time amend, alter, suspend, or
discontinue the Plan, but no amendment, alteration, suspension, or discontinuation shall be made
which would impair the rights of any Optionee under any grant theretofore made, without his or her
consent. In addition, to the extent necessary and desirable to comply with any applicable law,
regulation or stock exchange rule, the Company shall obtain shareholder approval of any Plan
amendment in such a manner and to such a degree as required.




          (b) Effect of Amendment or Termination. Any such amendment or termination of the Plan
shall not affect Options already granted and such Options shall remain in full force and effect as
if this Plan had not been amended or terminated.




     12. Time of Granting Options. The date of grant of an Option shall, for all purposes,
be the date determined in accordance with Section 4 hereof.



     13. Conditions Upon Issuance of Shares. Shares shall not be issued pursuant to the
exercise of an Option unless the exercise of such Option and the issuance and delivery of such
Shares pursuant thereto shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, state securities laws, and the requirements of any stock exchange upon
which the Shares may then be listed, and shall be further subject to the approval of counsel for
the Company with respect to such compliance.



          As a condition to the exercise of an Option, the Company may require the person exercising
such Option to represent and warrant at the time of any such exercise that the Shares are being
purchased only for investment and without any present intention to sell or distribute such Shares,
if, in the opinion of counsel for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.




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     Inability of the Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to
issue or sell such Shares as to which such requisite authority shall not have been obtained.



     14. Reservation of Shares. The Company, during the term of this Plan, will at all
times reserve and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.



     15. Option Agreement. Options shall be evidenced by written option agreements in such
form as the Board shall approve.



     16. Shareholder Approval. The Plan shall be subject to approval by the shareholders
of the Company within twelve (12) months after the date the Plan is adopted. Such shareholder
approval shall be obtained in the degree and manner required under applicable state and federal law
and any stock exchange rules.




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