Conversant, Inc.
VALUECLICK INC/CA (Form: S-8, Received: 09/06/2011 06:02:59)


As filed with the Securities and Exchange Commission on September 6, 2011
Registration No. 333-               
 


  UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549
  
FORM S-8
 
REGISTRATION STATEMENT
Under
The Securities Act of 1933
  
VALUECLICK, INC.
(Exact name of registrant as specified in its charter)
 
Delaware
 
77-0495335
(State or Other Jurisdiction of Incorporation or Organization)
 
(I.R.S. Employer Identification No.)
 
30699 Russell Ranch Road, Suite 250
Westlake Village, California 91362
(Address of Principal Executive Offices Including Zip Code)
 
______________________

Dotomi, Inc. 2003 Stock Option and Incentive Plan
(Full title of the Plan)
 
______________________
 
James R. Zarley
Chief Executive Officer
ValueClick, Inc.
30699 Russell Ranch Road, Suite 250
Westlake Village, California 91362
(818) 575-4500
(Name and Address, Including Zip Code, and
Telephone Number, Including Area Code, of Agent for Service)
 
______________________
 
Copies to:
Stewart L. McDowell, Esq.
Gibson, Dunn & Crutcher LLP
555 Mission Street, Suite 3000
San Francisco, California 94105
(415) 393-8200
 
______________________






CALCULATION OF REGISTRATION FEE
 
Title of Securities
to be Registered(1)
 
Amount to be Registered (2)
 
Proposed Maximum
Offering Price per Share (3)
 
Proposed Maximum
Aggregate Offering Price (3)
 
Amount of
Registration Fee
Common Stock, par value $0.001 per share
 
1,009,001 shares
 
$
2.14

 
$
2,159,262.14

 
$
250.69

 _____________________

(1)
Includes, with respect to each share of Common Stock, Rights, pursuant to the Registrant’s Rights Agreement, dated as of June 4, 2002, between the Registrant and Mellon Investor Services, L.L.C., as Rights Agent. Until a triggering event thereunder, the Rights trade with, and cannot be separated from, the Common Stock.

(2)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement also covers additional securities that may be offered as a result of stock splits, stock dividends or similar transactions, and pursuant to Rule 416(c) also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein, the 2003 Stock Option and Incentive Plan (the “Plan”) of Dotomi, Inc., a Delaware corporation (“Dotomi”).

(3)
Calculated on a weighted-average basis and rounded to the nearest whole cent solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the offering and rounded to the nearest whole cent price per share at which such options may be exercised.

Proposed sale to take place as soon after the effective date of the Registration
Statement as outstanding shares are purchased.






PART I
 
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
 
Pursuant to the instructions to Form S-8, Part I (Information Required in the Section 10(a) Prospectus) is not filed as part of this registration statement.

The shares of Common Stock registered hereunder are issuable upon exercise of options that have been assumed by the Registrant pursuant to an Agreement and Plan of Merger, dated as of August 1, 2011, among the Registrant, Dotomi, Dragon Subsidiary Corp., a Delaware corporation and wholly-owned subsidiary of the Registrant, Viper Subsidiary, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Registrant, and David Vogel, as Equityholder Agent (as replaced by Jackie Kelly). These options were originally granted to directors, employees and consultants of Dotomi under the Plan.
 







PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3.  Incorporation of Documents by Reference
 
The Registrant hereby incorporates by reference into this registration statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
 
(a)
The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2010, including all material incorporated by reference therein;
(b)
The Registrant's Quarterly Report on Form 10-Q for the period ended March 31, 2011 filed on May 6, 2011;
(c)
The Registrant's Quarterly Report on Form 10-Q for the period ended June 30, 2011 filed on August 8, 2011;
(d)
Current Reports on Form 8-K filed on February 15, 2011 (as to information filed under Item 5.02 of Form 8-K), May 11, 2011 (as amended on August 1, 2011), August 2, 2011 (as to the information filed under Item 1.01), August 24, 2011, and September 1, 2011;
(e)
The description of the Registrant's Common Stock to be offered hereby contained in the Registrant's Registration Statement on Form 8-A filed with the Commission on March 28, 2000; and
(f)
The description of the Registrant's Preferred Share Purchase Rights contained in the Registrant's Registration Statement on Form 8-A filed with the Commission on June 14, 2002.

All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing of such documents.

Any document, and any statement contained in a document, incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein, or in any other subsequently filed document that also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such document or statement. Any such document or statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Subject to the foregoing, all information appearing in this registration statement is qualified in its entirety by the information appearing in the documents incorporated by reference.
 
Item 4.  Description of Securities
 
Not Applicable.
 
Item 5.  Interests of Named Experts and Counsel
 
Not Applicable.
 





Item 6.  Indemnification of Directors and Officers
 
Section 145 of the Delaware General Corporation Law permits indemnification of a corporation's officers and directors under certain conditions and subject to certain limitations. Section 145 of the Delaware General Corporation Law also provides that a corporation has the power to purchase and maintain insurance on behalf of its officers and directors against any liability asserted against such person and incurred by him or her in such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of Section 145 of the Delaware General Corporation Law.
Article VII, Section I of our Bylaws provides that we will indemnify our directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law. The rights to indemnity thereunder continue as to a person who has ceased to be a director, officer, employee or agent and inure to the benefit of the heirs, executors and administrators of the person. In addition, expenses incurred by a director or executive officer in defending any civil, criminal, administrative or investigative action, suit or proceeding by reason of the fact that he or she is or was our director or officer (or was serving at our request as a director or officer of another corporation) shall be paid by us in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by us as authorized by the relevant section of the Delaware General Corporation Law.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law, Article VIII of our Amended and Restated Certificate of Incorporation provides that our directors shall not be personally liable for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director's duty of loyalty to us or our stockholders, (b) for acts or omissions not in good faith or acts or omissions that involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the Delaware General Corporation Law or (d) for any transaction from which the director derived any improper personal benefit.
We have entered into indemnification agreements with the majority of our directors and executive officers. Generally, the indemnification agreements attempt to provide the maximum protection permitted by Delaware law as it may be amended from time to time. Moreover, the indemnification agreements provide for certain additional indemnification. Under such additional indemnification provisions, however, an individual will not receive indemnification for judgments, settlements or expenses if he or she is found liable to us (except to the extent the court determines he or she is fairly and reasonably entitled to indemnity for expenses). The indemnification agreements provide for us to advance to the individual any and all reasonable expenses (including legal fees and expenses) incurred in investigating or defending any such action, suit or proceeding. In order to receive an advance of expenses, the individual must submit to us a statement or statements that reasonably evidences such expenses. Also, the individual must repay such advances upon a final judicial decision that he or she is not entitled to indemnification.

We have purchased directors' and officers' liability insurance. The foregoing summaries are necessarily subject to the complete text of the statute, our Amended and Restated Certificate of Incorporation, our Bylaws, and the arrangements referred to above, and are qualified in their entirety by reference thereto.
 
Item 7.  Exemption from Registration Claimed
 
Not Applicable.
 





Item 8.  Exhibits
 
Exhibit Number
 
Exhibit
 
 
 
4.1
 
Registrant’s Registration Statements on Form 8-A filed with the Commission on March 28, 2000 and June 14, 2002 incorporated by reference pursuant to Items 3(f) and (g).
 
 
 
5.1
 
Opinion and consent of Gibson, Dunn & Crutcher LLP.
 
 
 
23.1
 
Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1).
 
 
 
23.2
 
Consent of PricewaterhouseCoopers, LLP.
 
 
 
24.1
 
Power of Attorney (included on the signature pages to this Registration Statement on Form S-8).
 
 
 
99.1
 
Dotomi, Inc. 2003 Stock Option and Incentive Plan, as amended May 25, 2004, September 10, 2004, June 15, 2006, and December 2, 2010.

 
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 (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended; (ii) to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided however, that clauses (1)(i) and (l)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference into this registration statement; (2) that for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold upon the termination of the offering under the Plan.

B.    The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated by reference into this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

C.    Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnity provisions incorporated by reference in Item 6, 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 of 1933, as amended, 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 of 1933, as amended, and will be governed by the final adjudication of such issue.








SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Westlake Village, State of California, on this 2nd day of September, 2011.


 
 
VALUECLICK, INC.
 
 
 
 
By:
/s/ John Pitstick
 
 
John Pitstick
 
 
Chief Financial Officer







POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James R. Zarley, John Pitstick and Scott Barlow, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

 
Signature
 
Title
 
Date
 
 
 
 
 
/s/ James R. Zarley
 
Chief Executive Officer
 
September 2, 2011
James R. Zarley
 
(Principal Executive Officer)
 
 
 
 
 
 
 
/s/ John Pitstick
 
Chief Financial Officer
 
September 2, 2011
John Pitstick
 
(Principal Financial Officer and Principal
 
 
 
 
Accounting Officer)
 
 
 
 
 
 
 
/s/ Martin T. Hart
 
Director
 
September 2, 2011
Martin T. Hart
 
 
 
 
 
 
 
 
 
/s/ David S. Buzby
 
Director
 
September 2, 2011
David S. Buzby
 
 
 
 
 
 
 
 
 
/s/ James A. Crouthamel
 
Director
 
September 2, 2011
James A. Crouthamel
 
 
 
 
 
 
 
 
 
/s/ James R. Peters
 
Director
 
September 2, 2011
James R. Peters
 
 
 
 
 
 
 
 
 
/s/ Jeffrey F. Rayport
 
Director
 
September 2, 2011
Jeffrey F. Rayport
 
 
 
 
 
 
 
 
 
/s/ John Giuliani
 
Director
 
September 2, 2011
John Giuliani
 
 
 
 







EXHIBIT INDEX
 
Exhibit Number
 
Description
 
 
 
4.1
 
Registrant’s Registration Statements on Form 8-A filed with the Commission on March 28, 2000 and June 14, 2002 incorporated by reference pursuant to Items 3(f) and (g).
 
 
 
5.1
 
Opinion and consent of Gibson, Dunn & Crutcher LLP.
 
 
 
23.1
 
Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1).
 
 
 
23.2
 
Consent of PricewaterhouseCoopers, LLP.
 
 
 
24.1
 
Power of Attorney (included on the signature pages to this Registration Statement on Form S-8).
 
 
 
99.1
 
Dotomi, Inc. 2003 Stock Option and Incentive Plan, as amended May 25, 2004, September 10, 2004, June 15, 2006, and December 2, 2010.





Exhibit 5.1

 
Gibson, Dunn & Crutcher LLP
 
555 Mission Street
 
San Francisco, CA 94105-2933
 
Tel 415.393.8200
 
www.gibsondunn.com
September 2, 2011
C 94515-00117
ValueClick, Inc.
30699 Russell Ranch Road, Suite 250
Westlake Village, California 91362
Re:
ValueClick, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the “Registration Statement”), of ValueClick, Inc., a Delaware corporation (the “Company”) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offering by the Company of up to 1,009,001 shares of the Company's common stock, par value $0.001 per share (the “Shares”), subject to issuance by the Company upon exercise of options granted under the 2003 Stock Option and Incentive Plan of Dotomi, Inc. (the “Plan”). The options issuable under the Plan were assumed by the Company pursuant to the terms of that certain Agreement and Plan of Merger, dated as of August 1, 2011 by and among the Company, Dragon Subsidiary Corp. (a wholly-owned subsidiary of the Company), Viper Subsidiary, LLC (a wholly-owned subsidiary of the Company), Dotomi, Inc. and David Vogel as Equityholder Agent (as replaced by Jackie Kelly).
We have examined the originals, or photostatic or certified copies, of such records of the Company and certificates of officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinions set forth below. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies.
Based upon the foregoing examination and in reliance thereon, and subject to the assumptions stated and in reliance on statements of fact contained in the documents that we have examined, we are of the opinion that the Shares, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the laws of any jurisdiction other than the Delaware General Corporation Law (the “DGCL”). We are not admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and have made such inquiries as we consider necessary to render the opinions above. This opinion is limited to the effect of the current state of the law of the DGCL and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such law or the interpretations thereof or such facts.
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
Gibson, Dunn & Crutcher LLP




Exhibit 23.2


CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S‑8 of our report dated February 28, 2011 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in ValueClick, Inc.'s Annual Report on Form 10‑K for the year ended December 31, 2010.

/s/ PricewaterhouseCoopers LLP

Los Angeles, California
September 1, 2011





Exhibit 99.1

DOTOMI INC.

2003 Stock Option and Incentive Plan

(As approved April 1, 2004, and amended May 25, 2004, September 10, 2004, June 15, 2006, & December 2, 2010)

1.      Purpose and Eligibility

The purpose of this 2003 Stock Option and Incentive Plan (the “ Plan ”) of Dotomi Inc. (the “ Company ”) is to provide stock options and other equity interests in the Company (each an “ Award ”) to employees, officers, directors, consultants and advisors of the Company and its Subsidiaries, all of whom are eligible to receive Awards under the Plan. Any person to whom an Award has been granted under the Plan is called a “ Participant ”. Additional definitions are contained in Section 8.

2.      Administration

a.      Administration by Board of Directors . The Plan will be administered by the Board of Directors of the Company (the " Board "). The Board, in its sole discretion, shall have the authority to grant and amend Awards, to adopt, amend and repeal rules relating to the Plan and to interpret and correct the provisions of the Plan and any Award. All decisions by the Board shall be final and binding on all interested persons. Neither the Company nor any member of the Board shall be liable for any action or determination relating to the Plan.

b.      Appointment of Committees . To the extent permitted by applicable law, the Board may delegate any or all of its powers under the Plan to one or more committees or subcommittees of the Board (a " Committee "). All references in the Plan to the " Board " shall mean such Committee or the Board.

c.      Delegation to Executive Officers . To the extent permitted by applicable law, the Board may delegate to one or more executive officers of the Company the power to grant Awards and exercise such other powers under the Plan as the Board may determine, provided that the Board shall fix the maximum number of Awards to be granted and the maximum number of shares issuable to any one Participant pursuant to Awards granted by such executive officers.

3.      Stock Available for Awards

a.      Number of Shares . Subject to adjustment under Section 3(c), the aggregate number of shares of Common Stock of the Company (the “ Common Stock ”) that may be issued pursuant to the Plan is 12,122,441 shares. If any Award expires, or is terminated, surrendered or forfeited, in whole or in part, the unissued Common Stock covered by such Award shall again be available for the grant of Awards under the Plan. If shares of Common Stock issued pursuant to the Plan are repurchased by, or are surrendered or forfeited to, the Company at no more than cost, such shares of Common Stock shall again be available for the grant of Awards under the Plan; provided, however, that the cumulative number of such shares that may be so reissued under the Plan will not exceed 12,122,441. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares.

b.      Per-Participant Limit . Subject to adjustment under Section 3(c), no Participant may be granted Awards during any one fiscal year to purchase more than 3,000,000 shares of Common Stock.


1



c.      Adjustment to Common Stock . In the event of any stock split, stock dividend, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, combination, exchange of shares, liquidation, spin-off, split-up, or other similar change in capitalization or event, (i) the number and class of securities available for Awards under the Plan and the per-Participant share limit, (ii) the number and class of securities, vesting schedule and exercise price per share subject to each outstanding Option, (iii) the repurchase price per security subject to repurchase, and (iv) the terms of each other outstanding stock-based Award shall be adjusted by the Company (or substituted Awards may be made) to the extent the Board shall determine, in good faith, that such an adjustment (or substitution) is appropriate. If Section 7(e)(i) applies for any event, this Section 3(c) shall not be applicable.

4.      Stock Options

a.      General . The Board may grant options to purchase Common Stock (each, an " Option ") and determine the number of shares of Common Stock to be covered by each Option, the exercise price of each Option and the conditions and limitations applicable to the exercise of each Option and the Common Stock issued upon the exercise of each Option, including vesting provisions, repurchase provisions and restrictions relating to applicable federal or state securities laws, as it considers advisable.

b.      Incentive Stock Options . An Option that the Board intends to be an "incentive stock option" as defined in Section 422 of the Code (an " Incentive Stock Option ") shall be granted only to employees of the Company and shall be subject to and shall be construed consistently with the requirements of Section 422 of the Code. The Board and the Company shall have no liability if an Option or any part thereof that is intended to be an Incentive Stock Option does not qualify as such. An Option or any part thereof that does not qualify as an Incentive Stock Option is referred to herein as a " Nonstatutory Stock Option .”

c.      Exercise Price . The Board shall establish the exercise price (or determine the method by which the exercise price shall be determined) at the time each Option is granted and specify it in the applicable option agreement.

d.      Duration of Options . Each Option shall be exercisable at such times and subject to such terms and conditions as the Board may specify in the applicable option agreement.

e.      Exercise of Option . Options may be exercised only by delivery to the Company of a written notice of exercise signed by the proper person together with payment in full as specified in Section 4(f) for the number of shares for which the Option is exercised.

f.      Payment Upon Exercise . Common Stock purchased upon the exercise of an Option shall be paid for by one or any combination of the following forms of payment:

(i)      by check payable to the order of the Company;

(ii)      except as otherwise explicitly provided in the applicable option agreement, and only if the Common Stock is then publicly traded, delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price, or delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price; or

(iii)      to the extent explicitly provided in the applicable option agreement, by (x) delivery of shares of Common Stock which (1) have been vested and owned by the Participant for more than six

2



months on the date of delivery and (2) valued at fair market value (as determined by the Board or as determined pursuant to the applicable option agreement), (y) delivery of a promissory note of the Participant to the Company (and delivery to the Company by the Participant of a check in an amount equal to the par value of the shares purchased), or (z) payment of such other lawful consideration as the Board may determine.

5.      Restricted Stock

a.      Grants . The Board may grant Awards entitling recipients to acquire shares of Common Stock, subject to (i) delivery to the Company by the Participant of cash or other lawful consideration in an amount at least equal to the par value of the shares purchased, and (ii) the right of the Company to repurchase all or part of such shares at their issue price or other stated or formula price from the Participant in the event that conditions specified by the Board in the applicable Award are not satisfied prior to the end of the applicable restriction period or periods established by the Board for such Award (each, a " Restricted Stock Award ").

b.      Terms and Conditions . The Board shall determine the terms and conditions of any such Restricted Stock Award. Any stock certificates issued in respect of a Restricted Stock Award shall be registered in the name of the Participant and, unless otherwise determined by the Board, deposited by the Participant, together with a stock power endorsed in blank, with the Company (or its designee). After the expiration of the applicable restriction periods, the Company (or such designee) shall deliver the certificates no longer subject to such restrictions to the Participant or, if the Participant has died, to the beneficiary designated by a Participant, in a manner determined by the Board, to receive amounts due or exercise rights of the Participant in the event of the Participant's death (the " Designated Beneficiary "). In the absence of an effective designation by a Participant, Designated Beneficiary shall mean the Participant's estate.

6.      Other Stock-Based Awards

The Board shall have the right to grant other Awards based upon the Common Stock having such terms and conditions as the Board may determine, including, without limitation, the grant of shares based upon certain conditions, the grant of securities convertible into Common Stock and the grant of stock appreciation rights, phantom stock awards or stock units.

7.      General Provisions Applicable to Awards

a.      Transferability of Awards . Except as the Board may otherwise determine or provide in an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the life of the Participant, shall be exercisable only by the Participant. References to a Participant, to the extent relevant in the context, shall include references to authorized transferees.

b.      Documentation . Each Award under the Plan shall be evidenced by a written instrument in such form as the Board shall determine or as executed by an officer of the Company pursuant to authority delegated by the Board. Each Award may contain terms and conditions in addition to those set forth in the Plan provided that such terms and conditions do not contravene the provisions of the Plan.

c.      Board Discretion . The terms of each type of Award need not be identical, and the Board need not treat Participants uniformly.

3




d.      Termination of Status . The Board shall determine the effect on an Award of the disability, death, retirement, authorized leave of absence or other change in the employment or other status of a Participant and the extent to which, and the period during which, the Participant, or the Participant's legal representative, conservator, guardian or Designated Beneficiary, may exercise rights under the Award.

e.      Acquisition of the Company

(i)      Consequences of an Acquisition . Upon the consummation of an Acquisition, the Board or the board of directors of the surviving or acquiring entity (as used in this Section 7(e)(i), also the “ Board ”), shall, as to outstanding Awards (on the same basis or on different bases as the Board shall specify), make appropriate provision for the continuation of such Awards by the Company or the assumption of such Awards by the surviving or acquiring entity and by substituting on an equitable basis for the shares then subject to such Awards either (a) the consideration payable with respect to the outstanding shares of Common Stock in connection with the Acquisition, (b) shares of stock of the surviving or acquiring corporation or (c) such other securities or other consideration as the Board deems appropriate, the fair market value of which (as determined by the Board in its sole discretion) shall not materially differ from the fair market value of the shares of Common Stock subject to such Awards immediately preceding the Acquisition. In addition to or in lieu of the foregoing, with respect to outstanding Options, the Board may, on the same basis or on different bases as the Board shall specify, upon written notice to the affected optionees, provide that one or more Options then outstanding must be exercised, in whole or in part, within a specified number of days of the date of such notice, at the end of which period such Options shall terminate, or provide that one or more Options then outstanding, in whole or in part, shall be terminated in exchange for a cash payment equal to the excess of the fair market value (as determined by the Board in its sole discretion) for the shares subject to such Options over the exercise price thereof; provided, however, that before terminating any portion of an Option that is not vested or exercisable (other than in exchange for a cash payment), the Board must first accelerate in full the exercisability of the portion that is to be terminated. Unless otherwise determined by the Board (on the same basis or on different bases as the Board shall specify), any repurchase rights or other rights of the Company that relate to an Option or other Award shall continue to apply to consideration, including cash, that has been substituted, assumed or amended for an Option or other Award pursuant to this paragraph. The Company may hold in escrow all or any portion of any such consideration in order to effectuate any continuing restrictions.

(ii)      Acquisition Defined . An " Acquisition " shall mean: (x) the sale of the Company by merger in which the shareholders of the Company in their capacity as such no longer own a majority of the outstanding equity securities of the Company (or its successor); or (y) any sale of all or substantially all of the assets or capital stock of the Company (other than in a spin-off or similar transaction) or (z) any other acquisition of the business of the Company, as determined by the Board.
                
(iii)      Assumption of Options Upon Certain Events . In connection with a merger or consolidation of an entity with the Company or the acquisition by the Company of property or stock of an entity, the Board may grant Awards under the Plan in substitution for stock and stock-based awards issued by such entity or an affiliate thereof. The substitute Awards shall be granted on such terms and conditions as the Board considers appropriate in the circumstances.

     f.      Withholding . Each Participant shall pay to the Company, or make provisions satisfactory to the Company for payment of, any taxes required by law to be withheld in connection with Awards to such Participant no later than the date of the event creating the tax liability. The Board may allow Participants to satisfy the minimum withholding requirement by transferring shares of Common Stock,

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including shares retained from the Award creating the tax obligation, valued at their fair market value (as determined by the Board or as determined pursuant to the applicable option agreement). The Company may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to a Participant.

g.      Amendment of Awards . The Board may amend, modify or terminate any outstanding Award including, but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise or realization, and converting an Incentive Stock Option to a Nonstatutory Stock Option, provided that the Participant's consent to such action shall be required unless the Board determines that the action, taking into account any related action, would not materially and adversely affect the Participant.

h.      Conditions on Delivery of Stock . The Company will not be obligated to deliver any shares of Common Stock pursuant to the Plan or to remove restrictions from shares previously delivered under the Plan until (i) all conditions of the Award have been met or removed to the satisfaction of the Company, (ii) in the opinion of the Company's counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including any applicable securities laws and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirements of any applicable laws, rules or regulations.

i.      Acceleration . The Board may at any time provide that any Options shall become immediately exercisable in full or in part, that any Restricted Stock Awards shall be free of some or all restrictions, or that any other stock-based Awards may become exercisable in full or in part or free of some or all restrictions or conditions, or otherwise realizable in full or in part, as the case may be, despite the fact that the foregoing actions may (i) cause the application of Sections 280G and 4999 of the Code if a change in control of the Company occurs, or (ii) disqualify all or part of the Option as an Incentive Stock Option. In the event of the acceleration of the exercisability of one or more outstanding Options, including pursuant to paragraph (e)(i), the Board may provide, as a condition of full exercisability of any or all such Options, that the Common Stock or other substituted consideration, including cash, as to which exercisability has been accelerated shall be restricted and subject to forfeiture back to the Company at the option of the Company at the cost thereof upon termination of employment or other relationship, with the timing and other terms of the vesting of such restricted stock or other consideration being equivalent to the timing and other terms of the superseded exercise schedule of the related Option.

8.      Miscellaneous

a. Definitions .
        
(i)      " Company, " for purposes of eligibility under the Plan, shall include any present or future subsidiary corporations of Dotomi Inc., as defined in Section 424(f) of the Code (a " Subsidiary "), and any present or future parent corporation of Dotomi Inc., as defined in Section 424(e) of the Code. For purposes of Awards other than Incentive Stock Options, the term “ Company ” shall include any other business venture in which the Company has a direct or indirect significant interest, as determined by the Board in its sole discretion.

(ii)      Code ” means the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder.

(iii)      employee ” for purposes of eligibility under the Plan (but not for purposes of

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Section 4(b)) shall include a person to whom an offer of employment has been extended by the Company.

b.      No Right To Employment or Other Status . No person shall have any claim or right to be granted an Award, and the grant of an Award shall not be construed as giving a Participant the right to continued employment or any other relationship with the Company. The Company expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a Participant free from any liability or claim under the Plan.

c.      No Rights As Stockholder . Subject to the provisions of the applicable Award, no Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed with respect to an Award until becoming the record holder thereof.

d.      Effective Date and Term of Plan . The Plan shall become effective on the date on which it is adopted by the Board. No Awards shall be granted under the Plan after the completion of ten years from the date on which the Plan was adopted by the Board, but Awards previously granted may extend beyond that date.

e.      Amendment of Plan . The Board may amend, suspend or terminate the Plan or any portion thereof at any time.

f.      Governing Law . The provisions of the Plan and all Awards made hereunder shall be governed by and interpreted in accordance with the laws of Delaware, without regard to any applicable conflicts of law.

Adopted by the Board of Directors on
April 1, 2004

Approved by the stockholders on
April 1, 2004

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Register of Amendments to the 2003 Stock Option and Incentive Plan



Date
Section Affected
Change
5/24/2004
3(a)
Increase option pool from 956,153 to 1,500,000 shares.
9/10/2004
3(a)
Increase option pool from 1,500,000 to 3,700,738 shares.
6/15/2006
3(a)
Increase option pool from 3,700,738 to 10,622,441 shares.
6/15/2006
3(a)
Increase option pool from 10,622,441 to 11,122,441 shares.
6/15/2006
3(b)
Increase per-participant limit for awards granted during any one fiscal year from 500,000 to 3,000,000 shares of Common Stock.
12/2/2010
3(a)
Increase option pool from 11,122,441 to 12,122,441 shares.





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