<PAGE>
As filed with the Securities and Exchange Commission on October 23, 1998
Registration No. 333-__________
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
YAHOO! INC.
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(Exact name of Registrant as specified in its charter)
CALIFORNIA 77-0398689
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(State of Incorporation) (I.R.S. Employer Identification No.)
3420 CENTRAL EXPRESSWAY
SANTA CLARA, CA 95051
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(Address of principal executive offices)
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YOYODYNE ENTERTAINMENT, INC. 1996 STOCK OPTION PLAN
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(Full title of the Plan)
-----------------------
TIMOTHY KOOGLE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
3420 CENTRAL EXPRESSWAY
SANTA CLARA, CA 95051
408-731-3300
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(Name, address and telephone number, including area code, of agent for service)
-----------------------
Copy to:
James L. Brock
Keith A. Miller
Venture Law Group
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
(Calculation of Registration Fee on following page)
<PAGE>
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
YOYODYNE ENTERTAINMENT, INC. 1996
STOCK OPTION PLAN (1)
Common Stock,
$0.00033 par value . . . . . . . . . . . .25,865 Shares $31.16 (2) $805,953 (2) $225.00 (2)
</TABLE>
- -----------------------
(1) Pursuant to the Agreement and Plan of Merger dated as of October 9, 1998,
among Registrant, YO Acquisition Corporation and Yoyodyne Entertainment,
Inc. ("YOYODYNE"), Registrant assumed, effective as of October 20, 1998,
all of the outstanding options to purchase Common Stock of Yoyodyne under
the Yoyodyne 1996 Stock Option Plan, and such options became exercisable
to purchase shares of Registrant's Common Stock, with appropriate
adjustments to the number of shares and exercise price of each assumed
option.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
as amended (the "SECURITIES ACT"), solely for the purpose of calculating
the registration fee.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Securities and
Exchange Commission (the "COMMISSION") are incorporated by reference:
1. Registrant's Annual Report on Form 10-K for the year ended December
31, 1997 (File No. 0-26822).
2. Registrant's definitive Proxy Statement dated March 12, 1998, filed
in connection with the Registrant's April 17, 1998 Annual Meeting of
Shareholders.
3. Registrant's Quarterly Report on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998 (File No. 0-26822).
4. Registrant's Current Reports on Form 8-K, filed with the Commission
on January 5, 1998, January 15, 1998, June 8, 1998, June 12, 1998 (as amended
on June 18, 1998), July 9, 1998 (as amended on September 4, 1998) and October
23, 1998 (File No. 0-26822).
5. The description of Registrant's Common Stock set forth in
Registrant's Registration Statement on Form 8-A, filed with the Commission on
March 12, 1996 (File No. 0-026822).
6. Registrant's Registration Statements on Form S-8, filed with the
Commission on April 17, 1996 (File No. 333-3694), October 30, 1997 (File No.
333-39105) and June 12, 1998 (File No. 333-56781).
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), after the date hereof, and prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder have been
sold or which deregisters all securities then remaining unsold under this
registration statement, shall be deemed to be incorporated by reference
herein and to be part hereof from the date of filing of such document. Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated by reference herein) modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed
to constitute a part hereof, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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<PAGE>
Certain legal matters with respect to the shares will be passed upon by
Venture Law Group, a Professional Corporation, Menlo Park, California.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 317 of the California Corporations Code allows for the
indemnification of officers, directors, and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act. Article VII of Registrant's Articles of Incorporation and
Article VI of Registrant's Bylaws provide for indemnification of Registrant's
directors, officers, employees and other agents to the extent and under the
circumstances permitted by the California Corporations Code. Registrant has
also entered into agreements with its directors and officers that will
require Registrant, among other things, to indemnify them against certain
liabilities that may arise by reason of their status or service as directors
to the fullest extent not prohibited by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
4.1 Yoyodyne Entertainment, Inc. 1996 Stock Option Plan and form of Option
Agreement thereunder.
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation (included in
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.1 Powers of Attorney (see p. II-5).
</TABLE>
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
II-2
<PAGE>
(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 this offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
Registrant pursuant to the foregoing provisions, or otherwise, 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 Registrant of expenses incurred or
paid by a director, officer or controlling person of 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, 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.
[Signature Pages Follow]
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Registrant, Yahoo! Inc., a corporation organized and existing under the laws
of the State of California, 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 Santa Clara, State of
California, on October 23, 1998.
YAHOO! INC.
By: /s/ TIMOTHY KOOGLE
-------------------------------
Timothy Koogle
President and Chief Executive
Officer
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<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy Koogle and Gary Valenzuela,
jointly and severally, his attorneys-in-fact and agents, each with the power
of substitution and resubstitution, for him and in his name, place or stead,
in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file such amendments, together with exhibits
and other documents in connection therewith, with the Securities and Exchange
Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully as he might or could
do in person, and ratifying and confirming all that the attorneys-in-fact and
agents, or his substitute or substitutes, may do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ TIMOTHY KOOGLE President, Chief Executive Officer and October 23, 1998
- -------------------- Director (Principal Executive Officer)
Timothy Koogle
/s/ GARY VALENZUELA Senior Vice President, Finance and October 23, 1998
- -------------------- Administration, and Chief Financial
Gary Valenzuela Officer (Principal Financial
Officer)
/s/ JAMES J. NELSON Vice President, Finance (Chief October 23, 1998
- -------------------- Accounting Officer)
James J. Nelson
/s/ ERIC HIPPEAU Director October 23, 1998
- --------------------
Eric Hippeau
/s/ ARTHUR H. KERN Director October 23, 1998
- --------------------
Arthur H. Kern
/s/ MICHAEL MORITZ Director October 23, 1998
- --------------------
Michael Moritz
/s/ JERRY YANG Director October 23, 1998
- --------------------
Jerry Yang
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
- -------
<S> <C>
4.1 Yoyodyne Entertainment, Inc. 1996 Stock Option Plan and Form of Option
Agreement thereunder
5.1 Opinion of Venture Law Group, a Professional Corporation
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
24.1 Powers of Attorney (see p. II-5)
</TABLE>
<PAGE>
EXHIBIT 4.1
YOYODYNE ENTERTAINMENT, INC.
AMENDED AND RESTATED
1996 STOCK OPTION PLAN
<PAGE>
1. PURPOSE. The purpose of this Plan is to promote the success of the
Company by providing a method whereby (i) eligible employees and directors of
the Company and its Subsidiaries and Affiliates and (ii) independent
contractors and consultants providing services to the Company or its
Subsidiaries or its Affiliates may be awarded additional remuneration for
services rendered and encouraged to invest in capital stock of the Company,
thereby increasing their proprietary interest in the Company's businesses,
encouraging them to remain in the employ or directorship of the Company or
its Subsidiaries, and increasing their personal interest in the continued
success and progress of the Company or its Subsidiaries. The Plan is also
intended to aid (i) in attracting persons of exceptional ability to become
directors, officers and employees of the Company and its Subsidiaries and
Affiliates and (ii) inducing independent contractors to agree to provide
services to the Company and its Subsidiaries and Affiliates.
2. DEFINITIONS. Capitalized terms used in the Plan shall have the
following meanings (whether used in the singular or plural):
"AFFILIATE" of the Company means any corporation, partnership, or
other business association that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with
the Company.
"AGREEMENT" means a stock option agreement, as any such Agreement
may be supplemented or amended from time to time.
"APPROVED TRANSACTION" means any transaction in which the Board (or,
if approval of the Board is not required as a matter of law, the stockholders
of the Company) shall approve that constitutes (i) any consolidation or
merger of the Company, or binding share exchange, pursuant to which shares of
Common Stock would be changed or converted into or exchanged for cash,
securities or other property, other than any such transaction in which the
common stockholders of the Company immediately prior to such transaction have
the same proportionate ownership of the common stock of, and voting power
with respect to, the surviving corporation immediately after such
transaction, (ii) any merger, consolidation or binding share exchange to
which the Company is a party as a result of which the persons who are common
stockholders of the Company immediately prior thereto have less than a
majority of the combined voting power of the outstanding capital stock of the
Company ordinarily (and apart from the rights accruing under special
circumstances) having the right to vote in the election of directors
immediately following such merger, consolidation or binding share exchange,
(iii) the adoption of any plan or proposal for the liquidation or dissolution
of the Company, or (iv) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially
all, of the assets of the Company.
"AWARD" means a grant of Options under this Plan.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statue or statues thereto. Reference to any
specific Code section shall include any successor section.
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<PAGE>
"COMMITTEE" means the committee of the Board appointed pursuant to
section 5.1 to administer the Plan.
"COMMON STOCK" means (i) the Common Stock, $.01 par value per share,
of the Company or (ii) any other class or designation of common stock that
the Company may authorize anytime in the future, including, without
limitation, a non-voting common stock.
"COMPANY" means Yoyodyne Entertainment, Inc., a Delaware corporation.
"DISABILITY" means the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.
"DOMESTIC RELATIONS ORDER" means a domestic relations order as
defined by the Code or Title I of the Employee Retirement Income Security
Act, or the rules thereunder.
"EFFECTIVE DATE" means the date on which the Plan becomes effective
pursuant to section 3.
"EQUITY SECURITY" shall have the meaning ascribed to such term in
Section 3(a)(11) of the Exchange Act, and an equity security of an issuer
shall have the meaning ascribed thereto in Rule 16a-1 promulgated under the
Exchange Act, or any successor Rule.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute or statutes thereto. Reference to
any specific Exchange Act section shall include any successor section.
"FAIR MARKET VALUE" of a share of the Common Stock on any day means
the fair market value of the Common Stock as determined in good faith by the
Committee on the basis of such considerations as the Committee deems
appropriate; PROVIDED, that if the Common Stock becomes a listed security,
the "FAIR MARKET VALUE" of a share of Common Stock on any day will mean the
last sale price (or, if no last sale price is reported, the average of the
high bid and low asked prices) for a share of Common Stock on such day (or,
if such day is not a trading day, on the next preceding trading day) as
reported on NASDAQ or, if not reported on NASDAQ, as quoted by the National
Quotation Bureau Incorporated, or if the Common Stock is listed on an
exchange, on the principal exchange on which the Common Stock is listed;
PROVIDED, FURTHER, that if for any day the Fair Market Value of a share of
Common Stock, is not determinable by any of the foregoing means, then the
Fair Market Value for such day shall be determined in good faith by the
Committee on the basis of such quotations and other considerations as the
Committee deems appropriate.
"HOLDER" means an employee or director of the Company or a
Subsidiary or an independent contractor or consultant who has received an
Award under this Plan.
"INCENTIVE STOCK OPTION" means a stock option granted under section
7 that is designated as such in the related Agreement and that qualifies as
such within the meaning of Section 422 of the Code.
"NONQUALIFIED STOCK OPTION" means (a) a stock option granted under
section 7 that is designated
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<PAGE>
as such in the related Agreement or (b) a stock option granted under section
7 designated as an Incentive Stock Option in the related Agreement but that
does not qualify as such under the Code or for any other reason.
"OPTION" means any Incentive Stock Option or Nonqualified Stock
Option.
"PLAN" means the Yoyodyne Entertainment, Inc. Amended and Restated
1996 Stock Plan.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, or any successor statute or statutes thereto. Reference to any
specific Securities Act section shall include any successor section.
"SUBSIDIARY" of the Company means any present or future subsidiary
(as defined in Section 424(f) of the Code) of the Company or any business
entity in which the Company owns directly or indirectly, 50% or more of the
voting, capital or profits interests. An entity shall be deemed a subsidiary
of the Company for purposes of this definition only for such periods as the
requisite ownership or control relationship is maintained.
3. EFFECTIVE DATE. The Plan shall be subject to, and become effective
upon, the approval by the affirmative vote of the holders of at least a
majority of the outstanding shares of capital stock of the Company.
4. SHARES SUBJECT TO THE PLAN
4.1 NUMBER OF SHARES. Subject to the provisions of this section
4, the maximum number of shares of Common Stock with respect to which Awards
may be granted during the term of the Plan shall be 1,000,000 and will be
made available from the authorized but unissued shares of the Company. The
shares of Common Stock subject to any Award granted under the Plan that shall
expire, terminate or be annulled for any reason with out having been
exercised (or considered to have been exercised as provided in section 7),
shall again be available for purposes of the Plan.
4.2 ADJUSTMENTS. If the Company subdivides its outstanding
shares of Common Stock into a greater number of shares of Common Stock (by
stock dividend, stock split, reclassification or otherwise) or combines its
outstanding shares of Common Stock into a similar number of shares of Common
Stock (by reverse stock split, reclassification or otherwise), or if the
Committee determines that any stock dividend, extraordinary cash dividend,
reclassification, recapitalization, reorganization, split-up, spin-off,
combination, exchange of shares, rights offering to purchase Common Stock, or
other similar corporate event (including mergers or consolidations other than
those which constitute Approved Transactions) affects the Common Stock such
that an adjustment is required in order to preserve the benefits or potential
benefits intended to be made available under this Plan, then the Committee
shall, in its sole discretion and in such manner as the Committee may deem
equitable and appropriate, make such adjustments to any or all of (i) the
number and kind of shares which thereafter may be optioned or otherwise made
subject to the benefits contemplated by the Plan, (ii) the number and kind of
shares subject to outstanding Awards, and (iii) the purchase or exercise
price with respect to any of the foregoing, provided, that the number of
shares subject to any Award shall always be a whole number. The Committee
may, if deemed appropriate, provide for a cash payment to any Holder of an
Award in connection with any adjustment made pursuant to this section 4.2.
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<PAGE>
5. ADMINISTRATION.
5.1 COMMITTEE. The Plan shall be administered by the
Compensation Committee of the Board unless a different committee is appointed
by the Board. The Committee shall be comprised of not less than two persons.
The Committee shall select one of its members as its chairman and shall hold
its meetings at such times and places as it shall deem advisable. A majority
of its members shall constitute a quorum and all determinations shall be made
by a majority of such quorum.
5.2 POWERS. The Committee shall have full power and authority
to grant to eligible persons Options under the Plan, to determine the terms
and conditions (which need not be identical) of all Awards so granted, to
interpret the provisions of the Plan and any Agreements relating to Awards
granted under the Plan, and to supervise the administration of the Plan. The
Committee in making an Award may provide for the granting or issuance of
additional, replacement or alternative Awards upon the occurrence of
specified events, including the exercise of the original Award. The Committee
shall have sole authority in the selection of persons to whom Awards may be
granted under the Plan and in the determination of the timing, pricing and
amount of any such Award, subject only to the express provisions of the Plan.
5.3 INTERPRETATION. The Committee is authorized, subject to the
provisions of the Plan, to establish, amend and rescind such rules and
regulations as it deems necessary or advisable for the proper administration
of the Plan and to take such other action in connection with or in relation
to the Plan as it deems necessary or advisable. Each action and determination
made or taken pursuant to the Plan by the Committee, including any
interpretation or construction of the Plan, shall be final and conclusive for
all purposes and upon all persons. No member of the Committee shall be liable
for any action or determination made or take by him or the Committee in good
faith with respect to the Plan.
6. ELIGIBILITY. The persons who shall be eligible to participate in the
Plan and to receive Awards under the Plan shall be such employees (including
officers and directors), non-employee directors, independent contractors or
consultants of the Company, its Subsidiaries or Affiliates as the Committee
shall select.
7. STOCK OPTIONS.
7.1 GRANT OF OPTIONS. Subject to the limitations of the Plan,
the Committee shall designate from time to time those eligible persons to be
granted Options, the time when each Option shall be granted to such eligible
persons, the number of shares subject to such Option, whether such Option is
an Incentive Stock Option or a Nonqualified Stock Option, the purchase price
of the shares of Common Stock subject to such Option and the term of such
Option. Subject to the other provisions of the Plan, the same person may
receive Incentive Stock Options and Nonqualified Stock Options at the same
time and pursuant to the same Agreement, provided that Incentive Stock
Options and Nonqualified Stock Options are clearly designated as such.
7.2 EXERCISE OF OPTIONS. An Option granted under the Plan shall
become (and remain) exercisable during the term of the Option to the extent
provided in the applicable Agreement and this Plan and, unless the Agreement
otherwise provides, may be exercised to the extent exercisable, in whole or
in part, at any time and from time to time during such term; PROVIDED, that
subsequent to the grant of an Option, the Committee, at any time before
complete termination of such Option, may
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<PAGE>
accelerate the time or time at which such Option may be exercised in whole or
in part (without reducing the term of such Option).
7.3 MANNER OF EXERCISE.
(a) FORM OF PAYMENT. An Option shall be exercised by
written notice to the Company in accordance with the Agreement and such other
procedures as the Committee may establish from time to time. The method or
methods of payment of the purchase price for the shares to be purchased upon
exercise of an Option and of any amounts required by section 9.10 may consist
of (i) cash, (ii) a check, (iii) a promissory note, (iv) whole shares of
Common Stock already owned by the Holder, (v) the withholding of shares of
Common Stock issuable upon such exercise of the Option, (vi) the delivery,
together with a properly executed exercise notice, of irrevocable
instructions to a broker to deliver promptly to the Company the amount of
sale or loan proceeds required to pay the purchase price, (vii) any
combination of the foregoing methods of payment, or such other consideration
and method of payment as may be permitted for the issuance of shares under
the Delaware General Corporation Law, unless the Committee determines
otherwise in the applicable Agreement.
(b) VALUE OF SHARES. Shares of Common Stock delivered
in payment of all or any part of the amounts payable in connection with the
exercise of an Option, and shares of Common Stock withheld for such payment,
shall be valued for such purpose at their Fair Market Value as of the
exercise date.
(c) ISSUANCE OF SHARES. The Company shall effect the
transfer of the shares of Common Stock purchased under the Option as soon as
practicable after the exercise thereof and payment in full of the purchase
price therefor and of any amounts required by section 9.10, and within a
reasonable time thereafter such transfer shall be evidenced on the books of
the Company. No Holder or other person exercising an Option shall have any of
the rights of a stockholder of the Company with respect to shares of Common
Stock subject to an Option granted under the Plan until due exercise and full
payment has been made to and accepted by the Company. No adjustment shall be
made for cash dividends or other rights for which the record date is prior to
the date of such due exercise and full payment.
7.4 NONTRANSFERABILITY. Unless otherwise determined by the
Committee and provided in the applicable Agreement, Options shall not be
transferable other than by will or the laws of descent and distribution or
pursuant to a domestic relations order and, except as otherwise required
pursuant to a domestic relations order, Options may be exercised during the
lifetime of the Holder thereof only by such Holder (or his or her court
appointed legal representative).
8. INTENTIONALLY OMITTED.
9. GENERAL PROVISIONS
9.1 ACCELERATION OF OPTIONS. If a Holder's employment shall
terminate by reason of death or Disability, each outstanding Option granted
under the Plan shall immediately become exercisable in full in respect of the
aggregate number of shares covered thereby, notwithstanding anything to the
contrary in the Plan, unless the applicable Agreement provides otherwise.
9.2 TERMINATION OF EMPLOYMENT.
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<PAGE>
(a) GENERAL. Subject to an applicable Agreement, if a
Holder's employment with the Company or a Subsidiary or Affiliate shall be
terminated by the Company or such Subsidiary or Affiliate for any reason
prior to the exercise of any Option, then all Options held by such Holder
shall immediately terminate; provided, that if such Holder's employment
terminates for any other reason other than cause, such Option shall remain
exercisable for a period of one year following such termination (but not
later than the scheduled expiration of such Option) if and to the extent such
Option was exercisable on the date of such termination.
For these purposes of this Agreement, "cause" shall have the meaning
ascribed thereto in any employment agreement to which such Holder is a party
or, in the absence thereof, shall include but not be limited to,
insubordination, dishonesty, incompetence, moral turpitude, other misconduct
of any kind or the refusal to perform his duties and responsibilities for any
reason other than illness or incapacity.
(b) MISCELLANEOUS. The Committee may determine whether
any given leave of absence constitutes a termination of employment.
9.3 RIGHT OF COMPANY TO TERMINATE EMPLOYMENT. Nothing contained
in the Plan or in any Award, and no action of the Company or the Committee
with respect thereto, shall confer or be construed to confer on any Holder
any right to continue in the employ of the Company or any of its Subsidiaries
or Affiliates or interfere in any way with the right of the Company or a
Subsidiary or Affiliate to terminate the employment of the Holder at any
time, with or without cause.
9.4 NONALIENATION OF BENEFITS. No right or benefit under the
Plan shall be subject to alienation, sale, assignment, hypothecation, pledge,
exchange, transfer, encumbrance or charge, and any attempt to alienate, sell,
assign, hypothecate, pledge, exchange, transfer, encumber or charge the same
shall be void. No right or benefit hereunder shall in any manner be liable
for or subject to the debts, contracts, liabilities or torts of the person
entitled to such benefits.
9.5 WRITTEN AGREEMENT. Each grant of an Option under the Plan
shall be evidenced by a stock option agreement which shall designate the
Options granted thereunder as Incentive Stock Options or Nonqualified Stock
Options, in such form and containing such terms and provisions not
inconsistent with the provisions of the Plan as the Committee from time to
time shall approve. Any such agreement may be supplemented or amended from
time to time as approved by the Committee as contemplated by section 9.8(b).
9.6 INTENTIONALLY OMITTED.
9.7 BRING-ALONG; TAG-ALONG; RIGHT OF FIRST REFUSAL.
(a) BRING-ALONG. So long as the Common Stock
beneficially owned by any Holder is not registered under the Securities Act,
in the event of an Approved Transaction, upon delivering a written notice to
a Holder, the Board or the Committee may elect (but shall not have the
obligation) to require such Holder to sell or otherwise dispose of (and
thereupon, such Holder shall sell or otherwise dispose of) all but not less
than all of the Common Stock of such Holder in accordance with the same terms
and conditions set forth in the definitive agreement memorializing such
Approved Transaction.
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<PAGE>
(b) TAG-ALONG. So long as the Common Stock beneficially
owned by any Holder is not registered under the Securities Act, in the event
of an Approved Transaction, upon delivering a written notice to the Company,
a Holder may elect (but shall not have the obligation) to require the Company
to include or cause to be included all but not less than all the Common Stock
beneficially owned by such Holder in the sale or other disposition of (and
thereupon, such the Company shall or shall cause such Common stock to be
included in the sale or other disposition) Common Stock pursuant to and in
accordance with the same terms and conditions set forth in the definitive
agreement memorializing such Approved Transaction.
(c) RIGHT OF FIRST REFUSAL. So long as the Common Stock
beneficially owned by any Holder is not registered under the Securities Act,
if a Holder has a firm offer or acceptance (a "BUYER OFFER") from a person (a
"PROSPECTIVE BUYER") to purchase or have transferred to it any shares of such
Holder's Common Stock, such Holder may not sell or transfer such Common Stock
to such Prospective Buyer until such Holder shall have offered (such offer
being referred to herein as a "COMPANY OFFER") such Common Stock to the
Company upon the same terms and conditions as such Buyer Offer; and the
Company shall have 20 calendar days (the "ACCEPTANCE PERIOD") to accept such
Company Offer. If the Company rejects the Company Offer or fails to accept
the Company Offer during the Acceptance Period, such Holder may sell or
transfer such Common Stock to the Prospective Buyer in accordance with the
terms and conditions of the Buyer Offer within 20 calendar days after the
earlier of such rejection and expiration of the Acceptance Period; PROVIDED,
that as a condition to such sale or transfer, the Holder shall require to
Prospective Buyer to execute and deliver to the Company (A) a joinder
agreement (a "JOINDER AGREEMENT"), in form and substance acceptable to the
Company whereby the Prospective Buyer agrees to be bound by the terms of this
section 9.7 of the Plan as if the Prospective Buyer were such Holder (except
that such Prospective Buyer may not avail itself to section 9.7(e) or any
provision in the Holder's Agreement without the express prior written consent
of the Board or the Committee), and (B) a certificate (a "NON-COMPETITION
CERTIFICATE") in form and substance satisfactory to the Company certifying
that the Prospective Buyer is not directly or indirectly a competitor of the
Company, an affiliate of any competitor of the Company, or an equityholder,
creditor, officer, director, employee or consultant of any such competitor or
affiliate of any competitor (collectively a "COMPETITOR") and shall not
become a direct or indirect Competitor at anytime the Prospective Buyer owns
or beneficially owns any Common Stock. Any attempted sale or transfer of
Common Stock by a Holder in violation of this section 9.7 shall be null and
void.
(d) LEGENDS. Certificates representing shares issued
upon exercise of Options shall bear a restrictive legend to the effect that
transferability of such shares are subject to the restrictions contained in
the Plan and the applicable Agreement and the Company may cause the transfer
agent for the Common Stock to place a stop transfer order with respect to
such shares.
(e) NON-APPLICABILITY ELECTION. An Agreement may
contain a provision to the effect that one or more of clauses (a) through (e)
of this Section 9.7 shall not apply to Holder in respect of the Common Stock
underlying the Awards granted to such Holder pursuant to such Agreement.
9.8 TERMINATION AND AMENDMENT.
(a) GENERAL. Unless the Plan shall theretofore have
been terminated as hereinafter provided, no Awards may be made under the Plan
on or after the tenth anniversary of the Effective
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Date. The Board or the Committee may at any time prior to the tenth
anniversary of the Effective Date terminate the Plan, and may, from time to
time, suspend or discontinue the Plan or modify or amend the Plan in such
respects as it shall deem advisable.
(b) MODIFICATION. No termination, modification or
amendment of the Plan may, without the consent of the person to whom any
Award shall theretofore have been granted (i) adversely affect the rights of
such person with respect to such Award or (ii) unless the same is consistent
with the provisions of the Plan. With the consent of the Holder and subject
to the terms and conditions of the Plan, the Committee may amend outstanding
Agreements with any Holder, including any amendment which would extend the
scheduled expiration date of the Award. Without limiting the generality of
the foregoing, the Committee may, but solely with the Holder's consent unless
otherwise provided in the Agreement, agree to cancel any Award under the Plan
and issue a new Award in substitution therefor, provided that the Award so
substituted shall satisfy all of the requirements of the Plan as of the date
such new Award is made. Nothing contained in the foregoing provisions of this
section 9.8(b) shall be construed to prevent the Committee from providing in
any Agreement that the rights of the Holder with respect to the Award
evidenced thereby shall be subject to such rules and regulations as the
Committee may, subject to the express provisions of the Plan, adopt from time
to time, or impair the enforceability of any such provision.
9.9 GOVERNMENT AND OTHER REGULATIONS. The obligation of the
Company with respect to Awards shall be subject to all applicable laws, rules
and regulations and such approvals by any governmental agencies as may be
required, including, without limitation, the effectiveness of any
registration statement required under the Securities Act of 1933, and the
rules and regulations of any securities exchange or association on which the
Common Stock may be listed or quoted.
9.10 WITHHOLDING. The Company's obligation to deliver shares of
Common Stock or pay cash in respect of any Award under the Plan shall be
subject to applicable federal, state and local tax withholding requirements.
Federal, state and local withholding tax due at the time of an Award, upon
the exercise of any Option, may, in the discretion of the Committee, be paid
in shares of Common Stock already owned by the Holder or through the
withholding of shares otherwise issuable to such Holder, upon such terms and
conditions (including, without limitation, the conditions referenced in
section 7.5) as the Committee shall determine. If the Holder shall fail to
pay, or make arrangements satisfactory to the Committee for the payment, to
the Company of all such federal, state and local taxes required to be
withheld by the Company, then the Company shall, to the extent permitted by
law, have the right to deduct from any payment of any kind otherwise due to
such Holder an amount equal to any federal, state or local taxes of any kind
required to be withheld by the Company with respect to such Award.
9.11 INTENTIONALLY OMITTED.
9.12 NON-EXCLUSIVITY OF THE PLAN. Neither the adoption of the
Plan by the Board nor the submission of the Plan to the stockholders of the
Company for approval shall be construed as creating any limitations on the
power of the Board to adopt such other incentive arrangements as it may deem
desirable, including, without limitation, the granting of stock options and
the awarding of stock and cash otherwise then under the Plan, and such
arrangements may be either generally applicable or applicable only in
specific cases.
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9.13 EXCLUSION FROM PENSION AND PROFIT-SHARING COMPUTATION. By
acceptance of an Award, unless otherwise provided in the applicable
Agreement, each Holder shall be deemed to have agreed that such Award is
special incentive compensation that will not be taken into account, in any
manner, as salary, compensation or bonus in determining the amount of any
payment under any pension, retirement or other employee benefit plan, program
or policy of the Company or any Subsidiary. In addition, each beneficiary of
a deceased Holder shall be deemed to have agreed that such Award will not
affect the amount of any life insurance coverage, if any, provided by the
Company on the life of the Holder which is payable to such beneficiary under
any life insurance plan covering employees of the Company or any Subsidiary.
9.14 UNFUNDED PLAN. Neither the Company nor any Subsidiary shall
be required to segregate any cash or any shares of Common Stock which may at
any time be represented by Awards and the Plan shall constitute an "unfunded"
plan of the Company.
9.15 GOVERNING LAW. The Plan shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
9.16 ACCOUNTS. The delivery of any shares of Common Stock and
the payment of any amount in respect of an Award shall be for the account of
the Company or the applicable Subsidiary or Affiliates, as the case maybe,
and any such delivery or payment shall not be made until the recipient shall
have paid or made satisfactory arrangements for the payment of any applicable
withholding taxes as provided in section 9.10.
9.17 LEGENDS. In addition to any legend contemplated by section
9.7, each certificate evidencing Common Stock subject to an Award shall bear
such legends as the Committee deems necessary or appropriate to reflect or
refer to any terms, conditions or restrictions of the Award applicable to
such shares, including, without limitation, any to the effect that the shares
represented thereby may not be disposed of unless the Company has received an
opinion of counsel, acceptable to the Company, that such disposition will not
violate any federal or state securities laws.
9.18 COMPANY'S RIGHTS. The grant of Awards pursuant to the Plan
shall not affect in any way the right or power of the Company to make
reclassifications, reorganizations or other changes of or to its capital or
business structure or to merge, consolidate, liquidate, sell or otherwise
dispose of all or any part of its business or assets.
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<PAGE>
YOYODYNE ENTERTAINMENT, INC.
One Bridge Street, #26
Irvington, New York 10533
February __, 1997
[INSERT EMPLOYEE NAME]
[INSERT ADDRESS]
Dear [EMPLOYEE FIRST NAME]:
You are hereby granted the option to purchase ________ shares of the
Common Stock of Yoyodyne Entertainment, Inc., a Delaware corporation (the
"Company"), at an exercise price of $1.00 per share, pursuant to the
Company's Amended and Restated Stock Option Plan (the "Plan"). This letter
agreement supersedes all prior agreements between you and the Company
concerning stock options, including but not limited to the Substitution
Agreement, the FAQ sheet I circulated regarding the Substitute Agreement and
any agreements prior to that.
These options may be exercised in whole or in part, from time to
time, in accordance with the vesting schedule below, and expire ten years
from the date hereof, except as otherwise provided in the Plan. The vesting
schedule is as follows:
- _________ options become exercisable on ____________
- An additional ________ options become exercisable on ___________
- An additional ________ options become exercisable on _________
To buy shares of Common Stock pursuant to this agreement you must
deliver to the Company a completed exercise notice in the form attached and
accompanied by payment of the exercise price.
You may not sell, give or otherwise transfer, to any person or
entity any of your rights under this agreement, except that you may transfer
them under a will or otherwise under the laws of descent and distribution.
During your lifetime, only you or your legal representative may exercise
these options.
Securities laws generally limit whether and how you may sell the
Common Stock you acquire upon exercise of your options. The Plan also
contains certain other restrictions on the transferability of the stock that
you purchase upon exercise of your options. The stock certificates issued to
you may bear an appropriate legend reflecting those restrictions and that the
Common Stock represented by the certificate is subject to the terms and
conditions of this agreement and the Plan. When any option is exercised, the
Company may require you to
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confirm that you are buying the Common Stock for investment purposes without
the intent to distribute or sell it, if the Company determines that such a
representation is advisable under applicable securities laws.
These options are granted to you pursuant to the Plan and are
intended to be incentive stock options as described in the Internal Revenue
Code of 1986, as amended. You should consult your tax advisor now to
determine factors that may impact the tax consequence of this option, as well
as prior to each exercise of this option. This is not an employment agreement
and does not increase or decrease the Company's obligation, if any, to employ
you as in effect prior hereto. This agreement shall be governed by the
internal laws of the State of New York.
Your signature in the space below will signify your acceptance of
the terms of this agreement.
Sincerely,
Seth Godin
ACCEPTED, AGREED TO AND ACKNOWLEDGED,
THIS __ DAY OF FEBRUARY, 1997
- -------------------------------------
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EXERCISE NOTICE
To: Yoyodyne Entertainment, Inc.
Attention: Chief Financial Officer
The undersigned hereby irrevocably elects to exercise __________ options to
purchase _____ shares of common stock of Yoyodyne Entertainment, Inc., a
Delaware corporation, under a Stock Option Agreement dated February ___,
1997, and to purchase the common stock issuable upon exercise thereof for a
total of $_________ ($1.00 per share). Stock certificates should be issued in
the name of the undersigned and delivered to the address set forth below.
<TABLE>
<S> <C>
- ----------------------------------- ------------------------------------
[Please Sign Name] [Please provide Social Security Number]
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[Please Print Name]
- -----------------------------------
- -----------------------------------
- -----------------------------------
[Please Print Address]
</TABLE>
<PAGE>
EXHIBIT 5.1
OPINION OF COUNSEL
October 23, 1998
Yahoo! Inc.
3420 Central Expressway
Santa Clara, CA 95051
REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"REGISTRATION STATEMENT") to be filed by Yahoo! Inc. ("YAHOO!") with the
Securities and Exchange Commission (the "COMMISSION") on or about October 23,
1998 in connection with the registration under the Securities Act of 1933, as
amended, of 25,865 shares of Yahoo! Common Stock issued under Yahoo!'s
assumed Yoyodyne Entertainment, Inc. 1996 Stock Option Plan ("YOYODYNE
PLAN"). As Yahoo!'s legal counsel in connection with this transaction, we
have examined the proceedings taken and are familiar with the proceedings
proposed to be taken by Yahoo! in connection with the sale and issuance of
the foregoing shares under the Yahoo! Plan and Yoyodyne Plan, respectively
(collectively, the "SHARES").
It is our opinion that upon conclusion of the proceedings being taken or
contemplated by us, as Yahoo!'s counsel, to be taken prior to the issuance of
the Shares, and upon completion of the proceedings being taken in order to
permit such transactions to be carried out in accordance with the securities
laws of the various states where required, the Shares when issued and sold in
the manner described in the Registration Statement 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, including the Prospectus constituting a part
thereof, and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
/s/ VENTURE LAW GROUP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 9, 1998, which appears on
page 40 of the 1997 Annual Report to Shareholders of Yahoo! Inc., which is
incorporated by reference in the Annual Report on Form 10-K of Yahoo! Inc.
for the year ended December 31, 1997. We also consent to the incorporation by
reference of our report, dated June 2, 1998, except as to Note 8, which is as
of June 10, 1998, relating to the financial statements of Viaweb Inc. (a
development stage enterprise), which appears in the Current Report on Form
8-K of Yahoo! Inc. dated June 12, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
San Jose, California
October 23, 1998
