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As filed with the Securities and Exchange Commission on September 7, 1999
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INTERVU INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0680870
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
-----------
6815 FLANDERS DRIVE, SUITE 200
SAN DIEGO, CALIFORNIA 92121
(619) 350-1600
(Address of principal executive offices, including zip code, and telephone
number)
NETPODIUM INC. 1998 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the plans)
-----------
HARRY E. GRUBER Copies to:
CHIEF EXECUTIVE OFFICER SCOTT N. WOLFE, ESQ.
INTERVU INC. LATHAM & WATKINS
6815 FLANDERS DRIVE, SUITE 200 701 "B" STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92121 SAN DIEGO, CALIFORNIA 92101
(619) 623-8400 (619) 236-1234
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share Price Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 192,276 $1.66(2) $319,179(2) $89.00
====================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), this Registration Statement shall also cover
any additional shares of the Registrant's Common Stock that become
issuable under the plans by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt
of consideration that increases the number of the Registrant's
outstanding shares of Common Stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon the actual exercise price for shares
subject to outstanding stock options previously granted under the
Netpodium Inc. 1998 Stock Option/Stock Issuance Plan (the "Plan"). Of
the 192,276 shares of Common Stock reserved for issuance under the Plan
being registered hereunder, (i) 47,381 shares of Common Stock are
subject to outstanding options with an exercise price of $1.45 per share
and (ii) 144,895 shares of Common Stock are subject to outstanding
options with an exercise price of $1.72 per share.
1
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by InterVU Inc., a Delaware corporation
(the "Company"), are hereby incorporated by reference in this Registration
Statement:
(a) The Annual Report on Form 10-K filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on March
30, 1999 (the "Annual Report on Form 10-K");
(b) The Quarterly Reports on Form 10-Q filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
on May 17, 1999 and August 16, 1999 (the "Quarterly Reports on
Form 10-Q");
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the effective date of the Annual Report
on Form 10-K; and
(d) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on
November 12, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date this Registration Statement
is filed with the Commission and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part of it
from the respective dates of filing of such documents. 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 which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act.
The Company's Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws provide that the Company will indemnify its
directors and officers to the fullest extent permitted by Delaware law. Delaware
law permits, but does not require, a corporation to indemnify officers,
directors, employees or agents and expressly provides that the indemnification
provided for under Delaware law shall not be deemed exclusive of any
indemnification right under any bylaw, vote of stockholders or disinterested
directors, or otherwise. Delaware law permits indemnification against expenses
and certain other liabilities arising out of legal actions brought or threatened
against such persons for their conduct on behalf of the Company, provided that
each such person acted in good faith and in a manner that he or she reasonably
believed was in or not opposed to the Company's best interests and in the case
of a criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. Delaware law does not allow indemnification of directors in the
case of an action by or in the right of the Company (including stockholder
derivative suits) unless the directors successfully defend the action or
indemnification is ordered by the court.
The Company is a party to indemnification agreements with each of its
directors and officers. In addition, the Company maintains directors' and
officers' liability insurance covering its executive officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
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(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 (the "Securities
Act");
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(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 the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the Registration Statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Company pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in 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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on September 7, 1999.
InterVU Inc.
By: /s/ HARRY E. GRUBER
-----------------------------------------
Harry E. Gruber
Chief Executive Officer and Chairman of
the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Harry E. Gruber his true and lawful
attorney-in-fact, acting alone, 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 Commission, hereby
ratifying and confirming all that said attorney-in-fact or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, 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/ HARRY E. GRUBER Chairman of the Board and Chief September 7, 1999
- ------------------------------------ Executive Officer (Principal
Harry E. Gruber Executive Officer)
/s/ KENNETH L. RUGGIERO Vice President and Chief Financial September 7, 1999
- ------------------------------------ Officer (Principal Financial
Kenneth L. Ruggiero Officer and Principal Accounting
Officer)
/s/ EDWARD DAVID Director September 7, 1999
- ------------------------------------
Edward David
/s/ MARK DOWLEY Director September 7, 1999
- ------------------------------------
Mark Dowley
/s/ ALAN Z. SENTER Director September 7, 1999
- ------------------------------------
Alan Z. Senter
/s/ J. WILLIAM GRIMES Vice Chairman September 7, 1999
- ------------------------------------
J. William Grimes
/s/ ISAAC WILLIS Director September 7, 1999
- ------------------------------------
Isaac Willis
</TABLE>
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EXHIBIT INDEX
EXHIBIT
4.1 Netpodium Inc. 1998 Stock Option/Stock Issuance Plan
5.1 Opinion of Latham & Watkins.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page hereto).
7
<PAGE> 1
EXHIBIT 4.1
NETPODIUM INC.
1998 STOCK OPTION/STOCK ISSUANCE PLAN
ARTICLE I
GENERAL PROVISIONS
1. PURPOSE
This 1998 Stock Option/Stock Issuance Plan is intended to
promote the interests of Netpodium Inc. (the "Corporation") by providing
eligible individuals who are responsible for the management, growth and
financial success of the Corporation or who otherwise render valuable services
to the Corporation with the opportunity to acquire a proprietary interest, or
increase their proprietary interest, in the Corporation and thereby encourage
them to remain in the service of the Corporation.
Capitalized terms used herein shall have the meanings ascribed
to such terms in Section 6 of this Article I.
2. STRUCTURE OF THE PLAN
The Plan shall be divided into two separate components: the
Option Grant Program specified in Article II and the Stock Issuance Program
specified in Article III. The provisions of Articles I and IV of the Plan shall
apply to both the Option Grant Program and the Stock Issuance Program and shall
accordingly govern the interests of all individuals in the Plan.
3. ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by the Board. The Board
at any time may appoint a Committee and delegate to such Committee some or all
of the administrative powers allocated to the Board pursuant to the provisions
of the Plan. Members of the Committee shall serve for such period of time as the
Board may determine and shall be subject to removal by the Board at any time.
The Board at any time may terminate the functions of the Committee and reassume
all powers and authority previously delegated to the Committee.
1.
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(b) The Plan Administrator (either the Board or the
Committee, to the extent the Committee is at the time responsible for the
administration of the Plan) shall have full power and authority (subject to the
provisions of the Plan) to establish such rules and regulations as it may deem
appropriate for the proper Plan administration and to make such determinations
under, and issue such interpretations of, the Plan and any outstanding option
grants or share issuances as it may deem necessary or advisable. Decisions of
the Plan Administrator shall be final and binding on all parties who have an
interest in the Plan or any outstanding option or share issuance.
4. OPTION GRANTS AND SHARE ISSUANCES
(a) The persons eligible to receive option grants pursuant
to the Option Grant Program (each an "Optionee") and/or share issuances under
the Stock Issuance Program (each a "Participant") are limited to the following:
(1) Key employees (including officers and directors)
of the Corporation (or its Parent or Subsidiary corporations, if any) who render
services that contribute to the success and growth of the Corporation (or its
Parent or Subsidiary corporations), or that reasonably may be anticipated to
contribute to the future success and growth of the Corporation (or its Parent or
Subsidiary corporations);
(2) The non-employee members of the Board or the
non-employee members of the board of directors
of any Parent or Subsidiary corporations; and
(3) Those consultants or independent contractors who
provide valuable services to the Corporation (or its Parent or Subsidiary
corporations, if any).
(b) The Plan Administrator shall have full authority to
determine: (i) with respect to the option grants made under the Plan, which
eligible individuals are to receive option grants, the number of shares to be
covered by each such grant, the status of the granted option as either an
Incentive Option or a Non-Statutory Option, the time or times at which each
granted option is to become exercisable and the maximum term for which the
option may remain outstanding, and (ii) with respect to share issuances under
the Stock Issuance Program, the number of shares to be issued to each
Participant, the vesting schedule (if any) to be applicable to the issued
shares, and the consideration to be paid by the individual for such shares.
2.
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(c) The Plan Administrator shall have the absolute
discretion either to grant options in accordance with Article II of the Plan or
to effect share issuances in accordance with Article III of the Plan.
5. STOCK SUBJECT TO THE PLAN
(a) The stock issuable under the Plan shall be shares of the
Corporation's authorized but unissued or reacquired Common Stock (the "Common
Stock"). The maximum number of shares that may be issued over the term of the
Plan shall not exceed two million two hundred and fifty thousand (2,250,000)
shares of Common Stock. The total number of shares issuable under the Plan shall
be subject to adjustment from time to time in accordance with the provisions of
Section 5(c).
(b) Shares subject to (i) the portion of one or more
outstanding options that are not exercised or surrendered prior to expiration or
termination and (ii) outstanding options canceled in accordance with the
cancellation-regrant provisions of Section 5 of Article II will be available for
subsequent option grants or stock issuances under the Plan. Shares issued under
either the Option Grant Program or the Stock Issuance Program (whether as vested
or unvested shares) that are repurchased by the Corporation shall not be
available for subsequent option grants or stock issuances under the Plan.
(c) In the event any change is made to the Common Stock
issuable under the Plan by reason of any stock dividend, stock split,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without receipt of consideration, then
appropriate adjustments shall be made to (i) the aggregate number and/or class
of shares issuable under the Plan and (ii) the aggregate number and/or class of
shares and the option price per share in effect under each outstanding option in
order to prevent the dilution or enlargement of benefits thereunder. The
adjustments determined by the Plan Administrator shall be final, binding and
conclusive.
(d) Common Stock issuable under the Plan, whether under the
Option Grant Program or the Stock Issuance Program, may be subject to such
restrictions on transfer, repurchase rights or other restrictions as may be
determined by the Plan Administrator.
6. DEFINITIONS
The following definitions shall apply to the respective
capitalized terms used herein:
3.
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Board means the Board of Directors of Netpodium Inc.
Code means the Internal Revenue Code of 1986, as amended.
Committee means either the Compensation Committee of the Board
or another committee comprised of two or more members thereof and appointed
pursuant to the Plan to function as the Plan Administrator.
Corporation means Netpodium Inc., a Washington corporation.
Corporate Transaction means one or more of the following
transactions:
(a) A merger or consolidation in which the Corporation is
not the surviving entity, except for a transaction the principal purpose of
which is to change the state of the Corporation's incorporation,
(b) Any reverse merger in which the Corporation is the
surviving entity but in which fifty percent (50%) or more of the Corporation's
outstanding voting stock is transferred to holders different from those who held
the stock immediately prior to such merger, or
(c) The sale, transfer or other disposition of all or
substantially all of the assets of the Corporation.
Employee means an individual who is in the employ of the
Corporation or one or more Parent or Subsidiary corporations. An optionee shall
be considered to be an Employee for so long as such individual remains in the
employ of the Corporation or one or more Parent or Subsidiary corporations,
subject to the control and direction of the employer entity as to both the work
to be performed and the manner and method of performance.
Exercise Date shall be the date on which written notice of the
exercise of an outstanding option under the Plan is delivered to the
Corporation. Such notice shall be effected pursuant to a stock purchase
agreement incorporating any repurchase rights or first refusal rights retained
by the Corporation with respect to the Common Stock purchased under the option.
Fair Market Value of a share of Common Stock on any relevant
date shall be determined in accordance with the following provisions:
4.
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(a) If the Common Stock is at the time listed or admitted to
trading on any stock exchange, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in question on the stock
exchange determined by the Plan Administrator to be the primary market for the
Common Stock. If there is no reported sale of Common Stock on such exchange on
the date in question, then the Fair Market Value shall be the closing selling
price on the exchange on the last preceding date for which such quotation
exists.
(b) If the Common Stock is not at the time listed or
admitted to trading on any stock exchange but is traded in the over-the-counter
market, the Fair Market Value shall be the mean between the highest bid and the
lowest asked prices (or if such information is available the closing selling
price) per share of Common Stock on the date in question in the over-the-counter
market, as such prices are reported by the National Association of Securities
Dealers through its NASDAQ National Market System or any successor system. If
there are no reported bid and asked prices (or closing selling price) for the
Common Stock on the date in question, then the mean between the highest bid and
lowest asked prices (or closing selling price) on the last preceding date for
which such quotations exist shall be determinative of Fair Market Value.
(c) If the Common Stock is at the time neither listed nor
admitted to trading on any stock exchange nor traded in the over-the-counter
market, or if the Plan Administrator determines that the valuation provisions of
subsections (a) and (b) above will not result in a true and accurate valuation
of the Common Stock then the Fair Market Value shall be determined by the Plan
Administrator after taking into account such factors as the Plan Administrator
shall deem appropriate under the circumstances.
Incentive Option means an incentive stock option that satisfies
the requirements of Section 422 of the Code.
Non-Statutory Option means an option not intended to meet the
statutory requirements prescribed for an Incentive Option.
Parent corporation means any corporation (other than the
Corporation) in an unbroken chain of corporations ending with the Corporation,
provided each such corporation other than the Corporation in the unbroken chain
owns, at the time of the determination, stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
5.
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Permanent Disability means the inability of an individual 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.
Plan means this 1998 Stock Option/Stock Issuance Plan.
Plan Administrator means the Board or the Committee, to the
extent the Committee is responsible for plan administration in accordance with
Article I, Section 3.
Service means the performance of services for the Corporation or
one or more Parent or Subsidiary corporations by an individual in the capacity
of an Employee, a non-employee member of the board of directors or an
independent consultant or advisor, unless a different meaning is specified in
the option agreement evidencing the option grant, the purchase agreement
evidencing the purchased option shares or the issuance agreement evidencing any
direct stock issuance. An optionee shall be deemed to remain in Service for so
long as such individual renders services to the Corporation or any Parent or
Subsidiary corporation on a periodic basis in the capacity of an Employee, a
non-employee member of the board of directors or an independent consultant or
advisor.
Subsidiary corporation means any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the
Corporation, provided each such corporation other than the last corporation in
the unbroken chain owns, at the time of the determination, stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
Ten Percent Shareholder means the owner of stock (as determined
under Section 424(d) of the Code) possessing ten percent (10%) or more of the
total combined voting power of all classes of stock of the Corporation or any
Parent or Subsidiary corporation.
6.
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ARTICLE II
OPTION GRANT PROGRAM
1. TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to the Plan shall be authorized by
action of the Plan Administrator and, at the discretion of the Plan
Administrator, may be either Incentive Options or Non-Statutory Options. Each
granted option shall be evidenced by one or more instruments in the form
approved by the Plan Administrator; provided, that each such instrument shall
comply with and incorporate the terms and conditions specified below. In
addition, each instrument evidencing an Incentive Option shall be subject to the
applicable provisions of Section 2 of this Article II. The initial grant of
options is attached hereto as Schedule I.
(a) Option Price.
(1) The option price per share shall be fixed by the
Plan Administrator.
(2) The option price shall become immediately due
upon exercise of the option, and subject to the provisions of Article IV,
Section 2, shall be payable in cash or check drawn to the Corporation's order.
Should the Corporation's outstanding Common Stock be registered under Section
12(g) of the Securities Exchange Act of 1934, as amended (the "1934 Act") at the
time the option is exercised, then the option price may also be paid as follows:
(A) In shares of Common Stock held by the
optionee for the requisite period necessary to avoid a charge to the
Corporation's earnings for financial reporting purposes and valued at Fair
Market Value on the Exercise Date; or
(B) Through a special sale and remittance
procedure pursuant to which the Optionee is to (i) provide irrevocable written
instructions to a designated brokerage firm to effect the immediate sale of the
purchased shares and remit to the Corporation, out of the sale proceeds, an
amount sufficient to cover the aggregate option price payable for the purchased
shares plus all applicable Federal and State income and employment taxes
required to be withheld by the Corporation by reason of such purchase and (ii)
concurrently provide written directives to the Corporation to deliver the
certificates for the purchased shares directly to such brokerage firm in order
to effect the sale transaction.
7.
<PAGE> 8
(b) Term and Exercise of Options. Each option granted under
the Plan shall be exercisable at such time or times, during such period, and for
such number of shares as shall be determined by the Plan Administrator and set
forth in the notice of grant and stock option agreement evidencing such option.
No option granted under the Plan, however, shall have a term in excess of ten
(10) years from the grant date. During the lifetime of the Optionee, the option
shall be exercisable only by the Optionee and shall not be assignable or
transferable by the Optionee otherwise than by will or by the laws of descent
and distribution following the Optionee's death.
(c) Termination of Service.
(1) Should the Optionee cease to remain in Service
for any reason (including death or Permanent Disability) while holding one or
more outstanding options under the Plan, then except to the extent otherwise
provided pursuant to Section 6 of this Article II, each such option shall remain
exercisable for the limited period of time (not to exceed twelve (12) months
after the date of such cessation of Service) specified by the Plan Administrator
in the option agreement. In no event, however, shall any such option be
exercisable after the specified expiration date of the option term. During such
limited period of exercisability, the option may not be exercised for more than
that number of shares (if any) for which such option is exercisable on the date
of the Optionee's cessation of Service. Upon the expiration of such period or
(if earlier) upon the expiration of the option term, the option shall terminate
and cease to be exercisable.
(2) Any option granted to an Optionee under the Plan
and exercisable in whole or in part on the date of the Optionee's death may be
subsequently exercised by the personal representative of the Optionee's estate
or by the person or persons to whom the option is transferred pursuant to the
Optionee's will or in accordance with the laws of descent and distribution. The
maximum number of shares for which such option may be exercised shall be limited
to the number of shares (if any) for which the option is exercisable on the date
of the Optionee's cessation of Service. Any such exercise of the option must be
effected prior to the earlier of the first anniversary of the date of the
Optionee's death or the specified expiration date of the option term. Upon the
occurrence of either such event, the option shall terminate and cease to be
exercisable.
(3) Notwithstanding Subsections (1) and (2) above,
the Plan Administrator shall have discretion, exercisable either at the time the
option is granted or at the time the Optionee ceases Service, to allow one or
more outstanding options held by the Optionee to be exercised, during the
limited period of exercisability following the Optionee's
8.
<PAGE> 9
cessation of Service, not only with respect to the number of shares for which
the option is exercisable at the time of the Optionee's cessation of Service but
also with respect to one or more subsequent installments of purchasable shares
for which the option otherwise would have become exercisable had such cessation
of Service not occurred.
(4) Notwithstanding any provision of this Article II
or any other provision of this Plan to the contrary, any options granted under
this Plan shall terminate as of the date the Optionee ceases to be in the
Service of the Corporation if the Optionee was terminated for "cause" or could
have been terminated for "cause." If the Optionee has an employment or
consulting agreement with the Corporation, the term "cause" shall have the
meaning given that term in such employment or consulting agreement. If the
Optionee does not have an employment or consulting agreement with the
Corporation, or if such agreement does not define the term "cause," the term
"cause" shall mean: (A) misconduct or dishonesty that materially adversely
affects the Corporation, including without limitation (i) an act materially in
conflict with the financial interests of the Corporation, (ii) an act that could
damage the reputation or customer relations of the Corporation, (iii) an act
that could subject the Corporation to liability, (iv) an act constituting sexual
harassment or other violation of the civil rights of coworkers, (v) failure to
obey any lawful instruction of the Board or any officer of the Corporation and
(vi) failure to comply with, or perform any duty required under, the terms of
any confidentiality, inventions or noncompetition agreement the Optionee may
have with the Corporation, or (B) acts constituting the unauthorized disclosure
of any of the trade secrets or confidential information of the Corporation,
unfair competition with the Corporation or the inducement of any customer of the
Corporation to breach any contract with the Corporation. The right to exercise
any option shall be suspended automatically during the pendency of any
investigation by the Board or its designee, and/or any negotiations by the Board
or its designee and the Optionee, regarding any actual or alleged act or
omission by the Optionee of the type described in this section.
(d) Shareholder Rights. An Optionee shall have none of the
rights of a shareholder with respect to any shares covered by the option until
such Optionee shall have exercised the option and paid the option price.
(e) Repurchase Rights. The shares of Common Stock issued
under the Plan shall be subject to certain repurchase rights of the Corporation
in accordance with the following provisions:
(1) (A) The Plan Administrator shall have the
discretion to authorize the issuance of unvested shares of Common Stock under
the Plan. Should the Optionee cease Service or should the Corporation consummate
a Corporate Transaction
9.
<PAGE> 10
while the Optionee is holding such unvested shares, the Corporation shall have
the right to repurchase, at the option price paid per share, all or (at the
discretion of the Corporation and with the consent of the Optionee) any portion
of those such shares The terms and conditions upon which such repurchase right
shall be exercisable (including the period and procedure for exercise and the
appropriate vesting schedule for the purchased shares) shall be established by
the Plan Administrator and set forth in an instrument evidencing such right.
(B) The repurchase right shall be assignable
to any person or entity selected by the Corporation, including one or more of
the Corporation's shareholders. If the selected assignee is other than a Parent
or Subsidiary corporation, however, then the assignee must make a cash payment
to the Corporation, upon the assignment of the repurchase right, in an amount
equal to the amount by which the Fair Market Value of the unvested shares at the
time subject to the assigned right exceeds the aggregate repurchase price
payable for such unvested shares.
(C) Upon the occurrence of a Corporate
Transaction, the Plan Administrator may, at its sole discretion, (i) terminate
all or any outstanding repurchase rights under the Plan and thereby cause the
shares subject to such rights to vest immediately in full, (ii) arrange for all
or any of the repurchase rights to be assigned to the successor corporation (or
parent thereof) in connection with the Corporate Transaction or (iii) exercise
the Corporation's right to repurchase any unvested shares contemporaneously with
the consummation of the Corporate Transaction if such right is provided in the
instrument pursuant to which such unvested shares were issued.
(2) Until such time as the Corporation's outstanding
shares of Common Stock are first registered under Section 12(g) of the 1934 Act,
the Corporation shall have the right of first refusal with respect to any
proposed sale or other disposition by the Optionee (or any successor in interest
by reason of purchase, gift or other mode of transfer) of any shares of Common
Stock issued under the Plan. Such right of first refusal shall be exercisable by
the Corporation (or its assignees) in accordance with the terms and conditions
established by the Plan Administrator and set forth in the instrument evidencing
such right.
2. INCENTIVE OPTIONS
The terms and conditions specified below shall be applicable to
all Incentive Options granted under the Plan. Incentive Options may be granted
only to individuals who are Employees. Options that are specifically designated
as Non-Statutory Options when issued under the Plan shall not be subject to the
following terms and conditions.
10.
<PAGE> 11
(a) Option Price. The option price per share of the Common
Stock subject to an Incentive Option shall in no event be less than one hundred
percent (100%) of the Fair Market Value of a share of Common Stock on the grant
date; provided, if the individual to whom the option is granted is at the time a
Ten Percent Shareholder, then the option price per share shall not be less than
one hundred ten percent (110%) of the Fair Market Value of the Common Stock on
the grant date.
(b) Dollar Limitation. The aggregate Fair Market Value
(determined as of the respective date or dates of grant) of the Common Stock for
which one or more options granted to any Employee under this Plan (or any other
option plan of the Corporation or any Parent or Subsidiary corporation) may for
the first time become exercisable as incentive stock options under the Federal
tax laws during any one calendar year shall not exceed the sum of one hundred
thousand dollars ($100,000). To the extent the Employee holds two or more such
options which become exercisable for the first time in the same calendar year,
the foregoing limitation on the exercisability thereof as Incentive Options
under the Federal tax laws shall be applied on the basis of the order in which
such options are granted.
(c) Option Term for Ten Percent Shareholder. No option
granted to a Ten Percent Shareholder shall have a term in excess of five (5)
years from the grant date.
Except as modified by the preceding provisions of this
Section 2, all the provisions of the Plan shall be applicable to the Incentive
Options granted hereunder.
3. CORPORATE TRANSACTION
(a) In connection with any Corporate Transaction, the Plan
Administrator, in its sole discretion, may (i) accelerate each or any
outstanding option under the Plan so that each or any such option, immediately
prior to the specified effective date for such Corporate Transaction, shall
become fully exercisable with respect to the total number of shares of Common
Stock at the time subject to such option and may be exercised for all or any
portion of such shares, (ii) arrange for each or any outstanding option either
to be assumed by the successor corporation or parent thereof or to be replaced
with a comparable option to purchase shares of the capital stock of the
successor corporation or parent thereof, (iii) arrange for the option to be
replaced by a comparable cash incentive program of the successor corporation
based on the option spread (the amount by which the Fair Market Value of the
shares of Common Stock subject at the time to the option exceeds the option
price payable for such shares), or (iv) take none of the actions described in
clauses (i), (ii) or (iii) above and allow the option to terminate as provided
in Section 4(b) below. The
11.
<PAGE> 12
determination of comparability under clauses (ii) and (iii) above shall be made
by the Plan Administrator, and such determination shall be final, binding and
conclusive.
(b) In the event of any Corporate Transaction, each option
outstanding under the Plan shall terminate upon the consummation of such
Corporate Transaction and cease to be exercisable, unless the Plan Administrator
takes one of the actions set forth in Section 3(a) above.
(c) If the outstanding options under the Plan are assumed by
the successor corporation (or parent thereof) in the Corporate Transaction or
are otherwise to continue in effect following such Corporate Transaction, then
each such assumed or continuing option, immediately after such Corporate
Transaction, shall be appropriately adjusted to apply and pertain to the number
and class of securities or other property that would have been issuable to the
option holder, in consummation of the Corporate Transaction, had the option been
exercised immediately prior to such Corporate Transaction. Appropriate
adjustments shall also be made to the option price payable per share, provided
the aggregate option price payable for such securities or other property shall
remain the same. In addition, the number and class of securities or other
property available for issuance under the Plan following the consummation of
such Corporate Transaction shall be appropriately adjusted.
(d) The exercisability as incentive stock options under the
Federal tax laws of any options accelerated in connection with the Corporate
Transaction shall remain subject to the applicable dollar limitation of
Subsection 2(b) of this Article II.
(e) The grant of options under this Plan shall in no way
affect the right of the Corporation to adjust, reclassify, reorganize or
otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.
4. CANCELLATION AND NEW GRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at
any time and from time to time, with the consent of the affected Optionees, the
cancellation of any or all outstanding options under the Plan and to grant in
substitution therefor new options under the Plan covering the same or different
numbers of shares of Common Stock but having, in the case of an Incentive
Option, an option price per share not less than one hundred percent (100%) of
such Fair Market Value per share of Common Stock on the new grant date, or, in
the case of a Ten Percent Shareholder, not less than one hundred and ten percent
(110%) of such Fair Market Value.
12.
<PAGE> 13
5. EXTENSION OF EXERCISE PERIOD
The Plan Administrator shall have full power and authority to
extend (either at the time the option is granted or at any time that the option
remains outstanding) the period of time for which the option is to remain
exercisable following the Optionee's cessation of Service, from the limited
period set forth in the option agreement, to such greater period of time as the
Plan Administrator may deem appropriate under the circumstances. In no event,
however, shall such option be exercisable after the specified expiration date of
the option term.
ARTICLE III
STOCK ISSUANCE PROGRAM
1. TERMS AND CONDITIONS OF STOCK ISSUANCES
Shares of Common Stock shall be issuable under the Stock
Issuance Program through direct and immediate issuances without any intervening
stock option grants. Each such stock issuance shall be evidenced by a Stock
Issuance Agreement ("Issuance Agreement") that complies with the terms and
conditions of this Article III.
(a) Issue Price.
(1) Shares may, in the absolute discretion of the
Plan Administrator, be issued for consideration with a value less than
one-hundred percent (100%) of the Fair Market Value of the issued shares.
(2) Shares shall be issued under the Plan for such
consideration as the Plan Administrator shall from time to time determine,
provided that in no event shall shares be issued for consideration other than:
(A) Cash or check payable to the
Corporation,
(B) A promissory note in favor of the
Corporation, which may be subject to cancellation by the Corporation in whole or
in part upon such terms and conditions as the Plan Administrator shall specify,
or
(C) Services rendered.
13.
<PAGE> 14
(b) Vesting Schedule.
(1) In the discretion of the Plan Administrator, the
interest of a Participant in the shares of Common Stock issued to such
Participant under the Plan may be fully and immediately vested upon issuance or
may vest in one or more installments in accordance with the vesting provisions
of Subsection (b)(4) below. Except as otherwise provided in Subsection (b)(2),
the Participant may not transfer any issued shares in which such Participant
does not have a vested interest. Accordingly, all unvested shares issued under
the Plan shall bear the restrictive legend specified in Article IV, Section 1
until such legend is removed in accordance with such section. Regardless of
whether or not a Participant's interest in such shares is vested, such
Participant shall be entitled to exercise all the rights of a shareholder with
respect to the shares of Common Stock issued to Participant hereunder, including
the right to vote such shares and to receive any cash dividends or other
distributions paid or made with respect to such shares. Any new, additional or
different shares of stock or other property (including money paid other than as
a regular cash dividend) that the holder of unvested Common Stock may have the
right to receive with respect to such unvested shares by reason of a stock
dividend, stock split, reclassification or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration therefor shall be issued subject to (i) the same vesting
requirements under Subsection (b)(4) applicable to the unvested Common Stock and
(ii) such escrow arrangements as the Plan Administrator shall deem appropriate.
(2) As used in this Article III, the term "transfer"
shall include (without limitation) any sale, pledge, encumbrance, gift or other
disposition of such shares. A Participant shall have the right to make a gift of
unvested shares acquired under the Stock Issuance Program to Participant's
spouse, parents or issue or to a trust established for such spouse, parents or
issue, provided the donee of such shares delivers to the Corporation, at the
time of such donee's acquisition of the gifted shares, a written agreement to be
bound by all the provisions of the Plan and the Issuance Agreement executed by
the Participant.
(3) Should the Participant cease Service for any
reason while Participant's interest in the Common Stock remains unvested, then
the Corporation shall have the right to repurchase, at the original purchase
price paid by the Participant, all or (at the discretion of the Corporation and
with the consent of the Participant) any portion of the shares in which the
Participant is not at the time vested, and the Participant shall thereafter
cease to have any further shareholder rights with respect to the repurchased
shares.
14.
<PAGE> 15
(4) Any shares of Common Stock issued under the
Stock Issuance Program that are not vested at the time of such issuance shall
vest in one or more installments thereafter. The elements of the vesting
schedule, specifically, the performance or service objectives to be completed or
achieved, the number of installments in which the shares are to vest, the
interval or intervals (if any) that are to lapse between installments and the
effect that death, Permanent Disability or other event designated by the Plan
Administrator is to have upon the vesting schedule, shall be determined by the
Plan Administrator and specified in the Issuance Agreement.
(5) In its discretion, the Plan Administrator may
elect not to exercise, in whole or in part, its repurchase rights with respect
to any unvested Common Stock or other assets that would otherwise at the time be
subject to repurchase pursuant to the provisions of Subsection (b)(3) above.
Such an election shall result in the immediate vesting of the Participant's
interest in the shares of Common Stock as to which the election applies.
(6) No shares of Common Stock or other assets shall
be issued or delivered under this Plan unless and until, in the opinion of
counsel for the Corporation (or its successor in the event of any Corporate
Transaction), there shall have been compliance with all applicable requirements
of the securities exchange on which stock of the same class is then listed and
all other requirements of Federal and state law or of any regulatory bodies
having jurisdiction over such issuance and delivery.
(c) Right of First Refusal. The Plan Administrator may also
in its discretion establish as a term and condition of the issuance of one or
more shares of Common Stock under the Stock Issuance Program that the
Corporation shall have a right of first refusal with respect to any proposed
disposition by the Participant (or any successor in interest by reason of
purchase, gift or other mode of transfer) of one or more shares of such Common
Stock. Such right of first refusal shall be exercisable by the Corporation (or
its assignees) in accordance with the terms and conditions specified in the
instrument evidencing such right.
15.
<PAGE> 16
2. CORPORATE TRANSACTION
Upon the occurrence of a Corporate Transaction, the Plan
Administrator, in its discretion, may (i) terminate all or any outstanding
repurchase rights under this Article III of the Plan and thereby cause the
shares subject to such rights to vest immediately in full, (ii) arrange for all
or any of the repurchase rights to be assigned to the successor corporation (or
parent thereof) in connection with the Corporate Transaction or (iii) exercise
the Corporation's right to repurchase any unvested shares contemporaneously with
the consummation of the Corporate Transaction if such right is provided in the
Issuance Agreement pursuant to which such unvested shares were issued.
ARTICLE IV
MISCELLANEOUS
1. STOCK LEGENDS.
Each certificate representing shares of Common Stock (or other
securities) issued pursuant to the Plan shall bear restrictive legends
substantially as follows:
(a) "The shares represented by this certificate have not
been registered under the Securities Act of 1933. The
shares may not be sold, offered for sale, pledged or
hypothecated in the absence of an effective registration
statement for the shares under said Act and laws or an
opinion of counsel satisfactory to the Corporation that
such registration is not required with respect to such
sale or offer."
(b) "This certificate and the shares represented hereby may
not be sold, assigned, transferred, encumbered, or in
any manner disposed of except in conformity with the
terms of written agreements between the Company and the
registered holder of the shares (or the predecessor in
interest to the shares). Upon written request, the
Company will furnish without charge a copy of such
agreements to the holder hereof."
2. LOANS
(a) The Plan Administrator, in its discretion, may assist
any Optionee or Participant (including an Optionee or Participant who is an
officer or director of the Corporation) in the exercise of one or more options
granted to such Optionee under the
16.
<PAGE> 17
Article II Option Grant Program or the purchase of one or more shares issued to
such Participant under the Article III Stock Issuance Program, including the
satisfaction of any Federal and State income and employment tax obligations
arising therefrom, by
(1) Authorizing the extension of a loan from the
Corporation to such Optionee or Participant, or
(2) Permitting the Optionee or Participant to pay
the option price or purchase price for the purchased Common Stock in
installments over a period of years.
(b) The terms of any loan or installment method of payment
(including the interest rate and terms of repayment applicable thereto) shall be
established by the Plan Administrator. Loans or installment payments may be
granted with or without security or collateral; provided that any loan made to a
consultant or other non-employee advisor must be secured by property other than
the purchased shares of Common Stock. In all events the maximum credit available
to each Optionee or Participant may not exceed the sum of (i) the aggregate
option price or purchase price payable for the purchased shares (less the par
value of such shares rounded up to the nearest whole cent) plus (ii) any Federal
and State income and employment tax liability incurred by the Optionee or
Participant in connection with such exercise or purchase.
(c) The Plan Administrator, in its discretion, may determine
that one or more loans extended under the financial assistance program shall be
subject to forgiveness by the Corporation in whole or in part upon such terms
and conditions as the Board deems appropriate.
3. AMENDMENT OF THE PLAN AND AWARDS
(a) The Board shall have complete and exclusive power and
authority to amend or modify the Plan in any or all respects whatsoever;
provided, that no such amendment or modification shall adversely affect the
rights and obligations of an Optionee with respect to options at the time
outstanding under the Plan, nor adversely affect the rights of any Participant
with respect to Common Stock issued under the Plan prior to such action, unless
the Optionee or Participant consents to such amendment. In addition, the Board
shall not, without the approval of the Corporation's shareholders, amend the
Plan to (i) materially increase the maximum number of shares issuable under the
Plan (except for permissible adjustments under Article I, Section 5(c)), (ii)
materially increase the benefits accruing to individuals who participate in the
Plan, or (iii) materially modify the eligibility requirements for participation
in the Plan.
17.
<PAGE> 18
(b) Options to purchase shares of Common Stock may be
granted under the Option Grant Program and shares of Common Stock may be issued
under the Stock Issuance Program, which in both instances are in excess of the
number of shares then available for issuance under the Plan, provided any excess
shares actually issued under the Option Grant Program or the Stock Issuance
Program are held in escrow until the Corporation's shareholders approve an
amendment that sufficiently increases the number of shares of Common Stock
available for issuance under the Plan. If such shareholder approval is not
obtained within twelve (12) months after the date the initial excess stock
option grants or direct stock issuances are made, then any unexercised options
representing such excess shall terminate and cease to be exercisable and the
Corporation shall promptly refund to the Optionees and Participants the option
or purchase price paid for any excess shares issued under the Plan and held in
escrow, together with interest (at the applicable Short Term Federal Rate)
thereon for the period the shares were held in escrow.
4. EFFECTIVE DATE AND TERM OF PLAN
(a) The Plan shall become effective when adopted by the
Board, but no option granted under the Plan shall become exercisable, and no
shares shall be issuable under the Stock Issuance Program, unless and until the
Plan shall have been approved by the Corporation's shareholders. This Plan was
adopted by the Board on January 24, 1998. If such shareholder approval is not
obtained within twelve (12) months after the date of the Board's adoption of the
Plan, then all options previously granted under the Plan shall terminate, and no
further options shall be granted and no shares shall be issued under the Stock
Issuance Program. Subject to such limitation, the Plan Administrator may grant
options under the Plan at any time after the effective date and before the date
fixed herein for termination of the Plan.
(b) The Plan shall terminate upon the earlier of (i) ten
years after the adoption of the Plan or (ii) the date on which all shares
available for issuance under the Plan have been issued or canceled pursuant to
the exercise of options granted under Article II or the issuance of shares under
Article III. If the date of termination is determined under clause (i) above,
then no options outstanding on such date under Article II and no shares issued
and outstanding on such date under Article III shall be affected by the
termination of the Plan, and such securities shall thereafter continue to have
force and effect in accordance with the provisions of the stock option
agreements evidencing such Article II options and the stock purchase agreements
evidencing the issuance of such Article III shares.
18.
<PAGE> 19
5. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the issuance
of shares of Common Stock under the Plan shall be used for general corporate
purposes.
6. WITHHOLDING
The Corporation's obligation to deliver shares upon the exercise
of any options granted under Article II or upon the purchase of any shares
issued under Article III shall be subject to the satisfaction of all applicable
Federal, state and local income and employment tax withholding requirements.
7. REGULATORY APPROVALS
The implementation of the Plan, the granting of any options
under the Option Grant Program, the issuance of any shares under the Stock
Issuance Program, and the issuance of Common Stock upon the exercise of the
option grants made hereunder shall be subject to the Corporation's procurement
of all approvals and permits required by regulatory authorities having
jurisdiction over the Plan, the options granted under it, and the Common Stock
issued pursuant to it.
19.
<PAGE> 1
EXHIBIT 5.1
[LATHAM & WATKINS LETTERHEAD]
September 7, 1999
FILE NO. 025202-0011
InterVU Inc.
6815 Flanders Drive, Suite 200
San Diego, California 92121
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
In connection with the registration by InterVU Inc., a Delaware
corporation (the "Company"), of 192,276 shares of common stock, par value $.001
per share (the "Shares"), of the Company to be issued pursuant to the Netpodium
Inc. 1998 Stock Option/Stock Issuance Plan (the "Plan") under the Securities Act
of 1933, as amended (the "Act"), on a Registration Statement on Form S-8 filed
with the Securities and Exchange Commission on September 7, 1999 (as amended
from time to time, the "Registration Statement"), you have requested our opinion
with respect to the matters set forth below.
In our capacity as your counsel in connection with such
registration, we are familiar with the proceedings taken and proposed to be
taken by the Company in connection with the authorization, issuance and sale of
the Shares, and for the purposes of this opinion, have assumed such proceedings
will be timely completed in the manner presently proposed. In addition, we have
made such legal and factual examinations and inquiries, including an examination
of originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us
as copies.
<PAGE> 2
Latham & Watkins
InterVu Inc.
September 7, 1999
Page 2
We are opining herein as to the effect on the subject
transaction only of the General Corporation Law of the State of Delaware, and we
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or any other laws, or as to any
matters of municipal law or the laws of any other local agencies within the
state.
Subject to the foregoing, it is our opinion that as of the date
hereof the Shares have been duly authorized, and, upon the issuance of and
payment for the Shares in accordance with the terms set forth in the Plan, the
Shares will be validly issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE> 1
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Netpodium Inc. 1998 Stock Option/Stock Issuance Plan of
InterVU Inc. of our report dated February 12, 1999 (except for the last
paragraph of Note 6, as to which the date is March 19, 1999), with respect to
the financial statements and schedule of InterVU Inc., included in the Annual
Report (Form 10-K) for the year ended December 31, 1998.
/s/ Ernst & Young LLP
August 30, 1999
San Diego, California
