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As filed with the Securities and Exchange Commission on November 4, 1999
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
AT HOME CORPORATION
(Exact name of the Registrant as specified in its charter)
DELAWARE 77-0408542
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
450 BROADWAY STREET
REDWOOD CITY, CALIFORNIA 94063
(Address of principal executive offices, including zip code)
OPTIONS OF iMALL, INC. ISSUED UNDER THE
iMALL 1999 STOCK OPTION PLAN AND THE
iMALL 1997 STOCK OPTION PLAN AND ASSUMED BY THE REGISTRANT
(Full titles of the plans)
KENNETH A. GOLDMAN
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
AT HOME CORPORATION
425 BROADWAY STREET
REDWOOD CITY, CALIFORNIA 94063
(650) 569-5000
(Name, address and telephone number of agent for service)
Copy to:
Jeffrey R. Vetter, Esq.
Douglas N. Cogen, Esq.
Craig A. Menden, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED PROPOSED
TO BE MAXIMUM MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED OFFERING PRICE OFFERING REGISTRATION
REGISTERED (1) PER SHARE (2) PRICE (2) FEE
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<S> <C> <C> <C> <C>
Series A Common Stock,
$.01 par value 1,517,892 $11.14 $16,909,317 $4,701
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(1) Represents the number of shares subject to options assumed from iMALL, Inc.,
a Nevada corporation, which was acquired by the Registrant on October 27,
1999.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(h)(1) of the Securities Act of
1933, as amended (the "Securities Act"), based on the weighted average per
share exercise price of the options assumed by the Registrant.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION (1)
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION (1)
(1) Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from the Registration
Statement in accordance with Rule 428 under the Securities
Act of 1933, as amended (the "Securities Act") and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
For the purposes of this registration statement, the terms "we,"
"our" and "us" refer to At Home Corporation, a Delaware
corporation.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission are
incorporated into this registration statement by reference:
(a) Our annual report on Form 10-K for the fiscal year ended
December 31, 1998, as amended on March 31, 1999 and on
April 27, 1999;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since December 31, 1998, including: (1)
our quarterly reports on Form 10-Q for the fiscal quarters
ended March 31 and June 30, 1999; (2) our current report
on Form 8-K filed on January 14, 1999, as amended on
February 19, 1999; (3) our two current reports on Form 8-K
filed on January 21, 1999; (4) our current report on Form
8-K filed on February 19, 1999; (5) our current report on
Form 8-K filed on April 8, 1999; (6) our current report on
Form 8-K filed on June 14, 1999 as amended August 13,
1999; (7) our current report on Form 8-K filed on August
2, 1999; and (8) our current report on Form 8-K filed on
October 27, 1999.
(c) The description of the Registrant's Series A common stock
contained in the Registrant's registration statement on
Form 8-A filed under Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all
securities registered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed
incorporated into this registration statement by reference and to
be a part hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY
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Section 145 of the Delaware General Corporation Law authorizes a
court to award, or a corporation's board of directors to grant,
indemnity to directors and officers in terms sufficiently broad
to permit such indemnification under certain circumstances for
liabilities (including reimbursement for expenses incurred)
arising under the Securities Act.
As permitted by the Delaware General Corporation Law, the
Registrant's Amended and Restated Certificate of Incorporation
includes a provision that eliminates the personal liability of
its directors for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholders,
(ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) under
section 174 of the Delaware General Corporation Law (regarding
unlawful dividends and stock purchases) or (iv) for any
transaction from which the director derived an improper personal
benefit.
As permitted by the Delaware General Corporation Law, the Bylaws
of the Registrant provide that (i) the Registrant is required to
indemnify its directors and officers to the fullest extent
permitted by the Delaware General Corporation Law, subject to
certain very limited exceptions, (ii) the Registrant may
indemnify its other employees and agents as set forth in the
Delaware General Corporation Law, (iii) the Registrant is
required to advance expenses, as incurred, to its directors and
executive officers in connection with a legal proceeding to the
fullest extent permitted by the Delaware General Corporation Law,
subject to certain very limited exceptions and (iv) the rights
conferred in the Bylaws are not exclusive.
The Registrant has entered into Indemnification Agreements with
each of its directors and executive officers to give such
directors and officers additional contractual assurances
regarding the scope of the indemnification set forth in the
Registrant's Amended and Restated Certificate of Incorporation
and to provide additional procedural protections. At present,
there is no pending litigation or proceeding involving a
director, officer or employee of the Registrant regarding which
indemnification is sought, nor is the Registrant aware of any
threatened litigation that may result in claims for
indemnification.
The indemnification provision in the Registrant's Amended and
Restated Certificate of Incorporation, Bylaws and the
Indemnification Agreements entered into between the Registrant
and each of its directors and executive officers may be
sufficiently broad to permit indemnification of the Registrant's
directors and executive officers for liabilities arising under
the Securities Act.
The Registrant, with approval by the Registrant's Board of
Directors, has obtained directors' and officers' liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIM
Not applicable.
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ITEM 8. EXHIBITS
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EXHIBIT EXHIBIT
NUMBER TITLE
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4.01* The Registrant's Fifth Amended and Restated Certificate of
Incorporation, as filed with the Delaware Secretary of State on
May 28, 1999 (incorporated by reference to Exhibit 4.01 of our
registration statement on Form S-8, filed with the Commission on
June 3, 1999 (File No. 333-79883)).
4.02* The Registrant's Second Amended and Restated Bylaws effective
July 16, 1997 (incorporated by reference to Exhibit 3.05 of our
registration statement on Form S-1 declared effective by the
Commission on July 11, 1997 (File No. 333-27323)).
4.03* iMall, Inc. 1997 Stock Option Plan (incorporated by reference to
Exhibit 4.1 to iMall, Inc.'s registration statement on Form S-8
filed with the Commission on May 15, 1998 (File No. 333-52905)).
4.04 iMall, Inc. 1999 Stock Option Plan.
5.01 Opinion of Fenwick & West LLP regarding the legality of the
securities to be offered.
23.01 Consent of Ernst & Young LLP, Independent Auditors.
23.02 Consent of Fenwick & West LLP (included in Exhibit 5.01).
24.01 Power of Attorney (see page 4).
</TABLE>
* The exhibits were previously filed with the Commission as indicated and are
incorporated herein by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
the 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 the 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 end of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Securities and Exchange Commission pursuant
to Rule 424(b) if, in the aggregate, the
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changes in volume and price represent no
more than a 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 the Registration
Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered
therein, and the offering of such securities at
that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby further undertakes that,
for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has
been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by
a director, officer or controlling person of the
Registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
[REMAINDER OF PAGE INTENTIONALLY LEFT BANK]
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant, At
Home Corporation, 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 Redwood City, State of California, on this 4th day of
November, 1999.
AT HOME CORPORATION
By: /s/ Thomas A. Jermoluk
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Thomas A. Jermoluk
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Thomas A. Jermoluk, Kenneth A. Goldman
and David G. Pine, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, 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 on Form S-8, and to
file the same with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or his or their substitute or
substitutes, 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.
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SIGNATURE TITLE DATE
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PRINCIPAL EXECUTIVE OFFICER:
Chairman and
/s/ Thomas A. Jermoluk Chief Executive Officer November 4, 1999
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Thomas A. Jermoluk
PRINCIPAL FINANCIAL OFFICER:
Senior Vice President and
/s/ Kenneth A. Goldman Chief Financial Officer November 4, 1999
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Kenneth A. Goldman
PRINCIPAL ACCOUNTING OFFICER:
/s/ Robert A. Lerner Corporate Controller November 1, 1999
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Robert A. Lerner
ADDITIONAL DIRECTORS
/s/ William R. Hearst III Vice Chairman October 29, 1999
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William R. Hearst III
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<TABLE>
<S> <C> <C>
/s/ C. Michael Armstrong Director October 29, 1999
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C. Michael Armstrong
Director ___________, 1999
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George Bell
/s/ L. John Doerr Director November 4 1999
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L. John Doerr
/s/ John C. Malone Director November 4, 1999
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John C. Malone
Director ___________, 1999
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John C. Petrillo
/s/ Brian L. Roberts Director November 4 1999
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Brian L. Roberts
Director ___________, 1999
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James R. Shaw, Jr.
/s/ David M. Woodrow Director October 28, 1999
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David M. Woodrow
</TABLE>
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EXHIBIT INDEX
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EXHIBIT EXHIBIT
NUMBER TITLE
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4.04 iMall, Inc. 1999 Stock Option Plan.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Ernst & Young LLP, Independent Auditors.
23.02 Consent of Fenwick & West LLP (included in Exhibit 5.01).
24.01 Power of Attorney (see page 4).
</TABLE>
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Exhibit 4.4
iMALL, INC.
1999 STOCK OPTION PLAN
1. PURPOSE. The purpose of this Plan is to provide incentives to attract,
retain and motivate eligible persons whose present and potential contributions
are important to the success of the Company, its Parent and Subsidiaries, by
offering them an opportunity to participate in the Company's future performance
through awards of Options. This Plan is intended to meet the "broadly based
plan" exemption from the stockholder approval requirement under the Nasdaq
National Market listing rules. Capitalized terms not defined in the text are
defined in Section 21.
2. SHARES SUBJECT TO THE PLAN.
2.1 Number of Shares Available. Subject to Sections 2.2 and 16, the
total number of Shares reserved and available for grant and issuance pursuant to
this Plan will be 660,000 Shares.
Subject to Sections 2.2 and 16 hereof, Shares that are subject to
issuance upon exercise of an Option granted under this Plan that cease to be
subject to such Option for any reason other than exercise of such Option will
again be available for grant and issuance in connection with future Options
under this Plan.
At all times the Company shall reserve and keep available a sufficient
number of Shares as shall be required to satisfy the requirements of all
outstanding Options granted under this Plan.
2.2 Adjustment of Shares. In the event that the number of outstanding
Shares is changed by a stock dividend, recapitalization, stock split, reverse
stock split, subdivision, combination, reclassification or similar change in the
capital structure of the Company without consideration, then (a) the number of
Shares reserved for issuance under this Plan, and (b) the Exercise Prices of and
number of Shares subject to outstanding Options will be proportionately
adjusted, subject to any required action by the Board or the stockholders of the
Company and compliance with applicable securities laws; provided, however, that
fractions of a Share will not be issued but will either be replaced by a cash
payment equal to the Fair Market Value of such fraction of a Share or will be
rounded up to the nearest whole Share, as determined by the Committee.
3. ELIGIBILITY. Options may be granted to employees, officers,
consultants, independent contractors and advisors of the Company or any Parent
or Subsidiary of the Company; provided such consultants, contractors and
advisors render bona fide services not in
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connection with the offer and sale of securities in a capital-raising
transaction. A person may be granted more than one Option under this Plan.
4. ADMINISTRATION.
4.1 Committee Authority. This Plan will be administered by the
Committee or by the Board acting as the Committee. Subject to the general
purposes, terms and conditions of this Plan, and to the direction of the Board,
the Committee will have full power to implement and carry out this Plan. Without
limitation, the Committee will have the authority to:
(a) construe and interpret this Plan, any Option Agreement and
any other agreement or document executed pursuant to this Plan;
(b) prescribe, amend and rescind rules and regulations relating
to this Plan or any Option;
(c) select persons to receive Options;
(d) determine the form and terms of Options;
(e) determine the number of Shares or other consideration
subject to Options;
(f) determine whether Options will be granted singly, in
combination with, in tandem with, in replacement of, or as
alternatives to, other awards under any other incentive or
compensation plan of the Company or any Parent or Subsidiary of
the Company;
(g) grant waivers of Plan or Option conditions;
(h) determine the vesting, exercisability and payment of
Options;
(i) correct any defect, supply any omission or reconcile any
inconsistency in this Plan, any Option or any Option Agreement;
(j) determine whether an Option has been earned; and
(k) make all other determinations necessary or advisable for the
administration of this Plan.
4.2 Committee Discretion. Any determination made by the Committee
with respect to any Option will be made in its sole discretion at the time of
grant of the Option or, unless in contravention of any express term of this Plan
or Option, at any later time, and such determination will be final and binding
on the Company and on all persons having an interest in
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any Option under this Plan. The Committee may delegate to one or more officers
of the Company the authority to grant an Option under this Plan to Participants
who are not Insiders of the Company.
5. OPTIONS. The Committee may grant Options to eligible persons and will
determine the number of Shares subject to the Option, the Exercise Price of the
Option, the period during which the Option may be exercised, and all other terms
and conditions of the Option, subject to the following:
5.1 Form of Option Grant. Each Option granted under this Plan will be
evidenced by a Stock Option Agreement (an "Option Agreement") which will be in
such form and contain such provisions (which need not be the same for each
Participant) as the Committee may from time to time approve, and which will
comply with and be subject to the terms and conditions of this Plan. No Option
granted under this Plan will be an "incentive stock option" within the meaning
of Section 422 of the Code.
5.2 Date of Grant. The date of grant of an Option will be the date on
which the Committee makes the determination to grant such Option, unless
otherwise specified by the Committee. The Option Agreement and a copy of this
Plan will be delivered to the Participant within a reasonable time after the
granting of the Option.
5.3 Exercise Period. Options may be exercisable within the times or
upon the events determined by the Committee as set forth in the Option Agreement
governing such Option; provided, however, that no Option will be exercisable
after the expiration of ten (10) years from the date the Option is granted. The
Committee also may provide for Options to become exercisable at one time or from
time to time, periodically or otherwise, in such number of Shares or percentage
of Shares as the Committee determines.
5.4 Exercise Price. The Exercise Price of an Option will be
determined by the Committee when the Option is granted and may be not less than
85% of the Fair Market Value of the Shares on the date of grant. Payment for the
Shares purchased may be made in accordance with Section 6 of this Plan.
5.5 Method of Exercise. Options may be exercised only by delivery to
the Company of a written stock option exercise agreement (the "Exercise
Agreement") in a form approved by the Committee (which need not be the same for
each Participant), stating the number of Shares being purchased, the
restrictions imposed on the Shares purchased under such Exercise Agreement, if
any, and such representations and agreements regarding Participant's investment
intent and access to information and other matters, if any, as may be required
or desirable by the Company to comply with applicable securities laws, together
with payment in full of the Exercise Price for the number of Shares being
purchased.
5.6 Termination. Notwithstanding the exercise periods set forth in
the Option Agreement, exercise of an Option will always be subject to the
following:
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(a) If the Participant is Terminated for any reason except death
or Disability, then the Participant may exercise such
Participant's Options only to the extent that such Options would
have been exercisable upon the Termination Date no later than
three (3) months after the Termination Date (or such shorter or
longer time period not exceeding five (5) years as may be
determined by the Committee), but in any event, no later than the
expiration date of the Options.
(b) If the Participant is Terminated because of Participant's
death or Disability (or the Participant dies within three (3)
months after a Termination other than because of Participant's
Disability or Cause), then Participant's Options may be exercised
only to the extent that such Options would have been exercisable
by Participant on the Termination Date and must be exercised by
Participant (or Participant's legal representative or authorized
assignee) no later than twelve (12) months after the Termination
Date (or such shorter or longer time period not exceeding five
(5) years as may be determined by the Committee), but in any
event no later than the expiration date of the Options.
(c) If a Participant is terminated for Cause, then the
Participant may exercise such Participant Options only to the
extent that such Options would have been exercisable upon the
Termination Date no later than one (1) month after the
Termination Date (or such shorter period as may be determined by
the Committee), but in any event, no later than the expiration
date of the Options. In making such determination, the Board
shall give the Participant an opportunity to present to the Board
evidence on his behalf. For the purpose of this paragraph,
termination of service shall be deemed to occur on the date when
the Company dispatches notice or advice to the Participant that
his service is terminated.
5.7 Limitations on Exercise. The Committee may specify a reasonable
minimum number of Shares that may be purchased on any exercise of an Option,
provided that such minimum number will not prevent Participant from exercising
the Option for the full number of Shares for which it is then exercisable.
5.8 Modification, Extension or Renewal. The Committee may modify,
extend or renew outstanding Options and authorize the grant of new Options in
substitution therefor, provided that any such action may not, without the
written consent of a Participant, impair any of such Participant's rights under
any Option previously granted. The Committee may reduce the Exercise Price of
outstanding Options without the consent of Participants affected by a written
notice to them; provided, however, that the Exercise Price may not be reduced
below the minimum Exercise Price that would be permitted under Section 5.4 of
this Plan for Options granted on the date the action is taken to reduce the
Exercise Price.
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6. PAYMENT FOR SHARE PURCHASES.
6.1 Payment. Payment for Shares purchased pursuant to this Plan may
be made in cash (by check) or, where expressly approved for the Participant by
the Committee and where permitted by law:
(a) by cancellation of indebtedness of the Company to the
Participant;
(b) by surrender of shares that either: (1) have been owned by
Participant for more than six (6) months and have been paid for
within the meaning of SEC Rule 144 (and, if such shares were
purchased from the Company by use of a promissory note, such note
has been fully paid with respect to such shares); or (2) were
obtained by Participant in the public market;
(c) by tender of a full recourse promissory note having such
terms as may be approved by the Committee and bearing interest at
a rate sufficient to avoid imputation of income under Sections
483 and 1274 of the Code; provided, however, that Participants
who are not employees or directors of the Company will not be
entitled to purchase Shares with a promissory note unless the
note is adequately secured by collateral other than the Shares;
(d) by waiver of compensation due or accrued to the Participant
for services rendered;
(e) provided that a public market for the Company's stock
exists:
(1) through a "same day sale" commitment from the
Participant and a broker-dealer that is a member of the
National Association of Securities Dealers (an "NASD
Dealer") whereby the Participant irrevocably elects to
exercise the Option and to sell a portion of the Shares so
purchased to pay for the Exercise Price, and whereby the
NASD Dealer irrevocably commits upon receipt of such Shares
to forward the Exercise Price directly to the Company; or
(2) through a "margin" commitment from the Participant and
a NASD Dealer whereby the Participant irrevocably elects to
exercise the Option and to pledge the Shares so purchased to
the NASD Dealer in a margin account as security for a loan
from the NASD Dealer in the amount of the Exercise Price,
and whereby the NASD Dealer irrevocably commits upon receipt
of such Shares to forward the Exercise Price directly to the
Company; or
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(f) by any combination of the foregoing.
6.2 Loan Guarantees. The Committee may help the Participant pay for
Shares purchased under this Plan by authorizing a guarantee by the Company of a
third-party loan to the Participant.
7. WITHHOLDING TAXES.
7.1 Withholding Generally. Whenever Shares are to be issued in
satisfaction of Options granted under this Plan, the Company may require the
Participant to remit to the Company an amount sufficient to satisfy federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares. Whenever, under this Plan, payments
in satisfaction of Options are to be made in cash, such payment will be net of
an amount sufficient to satisfy federal, state, and local withholding tax
requirements.
7.2 Stock Withholding. When, under applicable tax laws, a Participant
incurs tax liability in connection with the exercise or vesting of any Option
that is subject to tax withholding and the Participant is obligated to pay the
Company the amount required to be withheld, the Committee may in its sole
discretion allow the Participant to satisfy the minimum withholding tax
obligation by electing to have the Company withhold from the Shares to be issued
that number of Shares having a Fair Market Value equal to the minimum amount
required to be withheld, determined on the date that the amount of tax to be
withheld is to be determined. All elections by a Participant to have Shares
withheld for this purpose will be made in accordance with the requirements
established by the Committee and be in writing in a form acceptable to the
Committee
8. PRIVILEGES OF STOCK OWNERSHIP. No Participant will have any of the
rights of a stockholder with respect to any Shares until the Shares are issued
to the Participant. After Shares are issued to the Participant, the Participant
will be a stockholder and have all the rights of a stockholder with respect to
such Shares, including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares; provided, that the
Participant will have no right to retain such stock dividends or stock
distributions with respect to Shares that are repurchased at the Participant's
Exercise Price pursuant to Section 10.
9. TRANSFERABILITY. Options granted under this Plan, and any interest
therein, will not be transferable or assignable by Participant, and may not be
made subject to execution, attachment or similar process, otherwise than by will
or by the laws of descent and distribution or as determined by the Committee and
set forth in the Option Agreement. During the lifetime of the Participant an
Option will be exercisable only by the Participant, and any elections with
respect to an Option may be made only by the Participant unless otherwise
determined by the Committee and set forth in the Option Agreement.
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10. RESTRICTIONS ON SHARES. At the discretion of the Committee, the
Company may reserve to itself and/or its assignee(s) in the Option Agreement a
right to repurchase a portion of or all Unvested Shares held by a Participant
following such Participant's Termination at any time within ninety (90) days
after the later of Participant's Termination Date and the date Participant
purchases Shares under this Plan, for cash and/or cancellation of purchase money
indebtedness, at the Participant's Exercise Price.
11. CERTIFICATES. All certificates for Shares or other securities
delivered under this Plan will be subject to such stock transfer orders, legends
and other restrictions as the Committee may deem necessary or advisable,
including restrictions under any applicable federal, state or foreign securities
law, or any rules, regulations and other requirements of the SEC or any stock
exchange or automated quotation system upon which the Shares may be listed or
quoted.
12. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on a
Participant's Shares, the Committee may require the Participant to deposit all
certificates representing Shares, together with stock powers or other
instruments of transfer approved by the Committee, appropriately endorsed in
blank, with the Company or an agent designated by the Company to hold in escrow
until such restrictions have lapsed or terminated, and the Committee may cause a
legend or legends referencing such restrictions to be placed on the
certificates. Any Participant who is permitted to execute a promissory note as
partial or full consideration for the purchase of Shares under this Plan will be
required to pledge and deposit with the Company all or part of the Shares so
purchased as collateral to secure the payment of Participant's obligation to the
Company under the promissory note; provided, however, that the Committee may
require or accept other or additional forms of collateral to secure the payment
of such obligation and, in any event, the Company will have full recourse
against the Participant under the promissory note notwithstanding any pledge of
the Participant's Shares or other collateral. In connection with any pledge of
the Shares, Participant will be required to execute and deliver a written pledge
agreement in such form as the Committee will from time to time approve. The
Shares purchased with the promissory note may be released from the pledge on a
pro rata basis as the promissory note is paid.
13. EXCHANGE AND BUYOUT OF OPTIONS. The Committee may, at any time or from
time to time, authorize the Company, with the consent of the respective
Participants, to issue new Options in exchange for the surrender and
cancellation of any or all outstanding Options. The Committee may at any time
buy from a Participant an Option previously granted with payment in cash, Shares
or other consideration, based on such terms and conditions as the Committee and
the Participant may agree.
14. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Option will not be
effective unless such Option is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the
Shares may then be listed or quoted, as they are in effect on the date of grant
of the Option and also on the date of exercise or
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other issuance. Notwithstanding any other provision in this Plan, the Company
will have no obligation to issue or deliver certificates for Shares under this
Plan prior to: (a) obtaining any approvals from governmental agencies that the
Company determines are necessary or advisable; and/or (b) completion of any
registration or other qualification of such Shares under any state or federal
law or ruling of any governmental body that the Company determines to be
necessary or advisable. The Company will be under no obligation to register the
Shares with the SEC or to effect compliance with the registration, qualification
or listing requirements of any state securities laws, stock exchange or
automated quotation system, and the Company will have no liability for any
inability or failure to do so.
15. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Option granted
under this Plan will confer or be deemed to confer on any Participant any right
to continue in the employ of, or to continue any other relationship with, the
Company or any Parent or Subsidiary of the Company or limit in any way the right
of the Company or any Parent or Subsidiary of the Company to terminate
Participant's employment or other relationship at any time, with or without
cause.
16. CORPORATE TRANSACTIONS.
16.1 Assumption or Replacement of Options by Successor. In the event
of (a) a dissolution or liquidation of the Company, (b) a merger or
consolidation in which the Company is not the surviving corporation (other than
a merger or consolidation with a wholly-owned subsidiary, a reincorporation of
the Company in a different jurisdiction, or other transaction in which there is
no substantial change in the stockholders of the Company or their relative stock
holdings and the Options granted under this Plan are assumed, converted or
replaced by the successor corporation, which assumption will be binding on all
Participants), (c) a merger in which the Company is the surviving corporation
but after which the stockholders of the Company immediately prior to such merger
(other than any stockholder that merges, or which owns or controls another
corporation that merges, with the Company in such merger) cease to own their
shares or other equity interest in the Company, (d) the sale of substantially
all of the assets of the Company, or (e) the acquisition, sale, or transfer of
more than 50% of the outstanding shares of the Company by tender offer or
similar transaction, any or all outstanding Options may be assumed, converted or
replaced by the successor corporation (if any), which assumption, conversion or
replacement will be binding on all Participants. In the alternative, the
successor corporation may substitute equivalent Options or provide substantially
similar consideration to Participants as was provided to stockholders (after
taking into account the existing provisions of the Options). The successor
corporation may also issue, in place of outstanding Shares of the Company held
by the Participant, substantially similar shares or other property subject to
repurchase restrictions no less favorable to the Participant. In the event such
successor corporation (if any) refuses to assume or substitute Options, as
provided above, pursuant to a transaction described in this Subsection 16.1, the
Options will become exercisable in full prior to the consummation of such event
at such times and on such conditions as the Committee determines, and if such
Options are not exercised prior to the consummation of the corporate
transaction, they shall terminate in accordance with the provisions of this
Plan.
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16.2 Other Treatment of Options. Subject to any greater rights granted
to Participants under the foregoing provisions of this Section 16, in the event
of the occurrence of any transaction described in Section 16.1, any outstanding
Options will be treated as provided in the applicable agreement or plan of
merger, consolidation, dissolution, liquidation, or sale of assets.
16.3 Assumption of Options by the Company. The Company, from time to
time, also may substitute or assume outstanding awards granted by another
company, whether in connection with an acquisition of such other company or
otherwise, by either; (a) granting an Option under this Plan in substitution of
such other company's award; or (b) assuming such award as if it had been granted
under this Plan if the terms of such assumed award could be applied to an Option
granted under this Plan. Such substitution or assumption will be permissible if
the holder of the substituted or assumed award would have been eligible to be
granted an Option under this Plan if the other company had applied the rules of
this Plan to such grant. In the event the Company assumes an award granted by
another company, the terms and conditions of such award will remain unchanged
(except that the exercise price and the number and nature of Shares issuable
upon exercise of any such option will be adjusted appropriately pursuant to
Section 424(a) of the Code). In the event the Company elects to grant a new
Option rather than assuming an existing option, such new Option may be granted
with a similarly adjusted Exercise Price.
17. EFFECTIVE DATE. This Plan will become effective on the date on which
it is adopted by the Board (the "Effective Date"). Upon the Effective Date, the
Committee may grant Options pursuant to this Plan.
18. TERM OF PLAN/GOVERNING LAW. Unless earlier terminated as provided
herein, this Plan will terminate ten (10) years from the date this Plan is
adopted by the Board or, if earlier, the date of stockholder approval. This Plan
and all agreements thereunder shall be governed by and construed in accordance
with the laws of the State of California.
19. AMENDMENT OR TERMINATION OF PLAN. The Board may at any time terminate
or amend this Plan in any respect, including without limitation amendment of any
form of Option Agreement or instrument to be executed pursuant to this Plan;
provided, however, that the Board will not, without the approval of the
stockholders of the Company, amend this Plan in any manner that requires such
stockholder approval.
20. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of this Plan by the
Board nor any provision of this Plan will be construed as creating any
limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options and bonuses otherwise than under this Plan, and such
arrangements may be either generally applicable or applicable only in specific
cases.
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<PAGE> 10
21. DEFINITIONS. As used in this Plan, the following terms will have the
following meanings:
"Board" means the Board of Directors of the Company.
"Cause" means the commission of an act of theft, embezzlement, fraud,
dishonesty or a breach of fiduciary duty to the Company or a Parent or
Subsidiary of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Compensation Committee of the Board.
"Company" means iMall, Inc. or any successor corporation.
"Disability" means a disability, whether temporary or permanent,
partial or total, within the meaning of Section 22(e)(3) of the Code, as
determined by the Committee.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Price" means the price at which a holder of an Option may
purchase the Shares issuable upon exercise of the Option.
"Fair Market Value" means, as of any date, the value of a share of the
Company's common stock, par value $.001 per share (the "Common Stock"),
determined as follows:
(a) if such Common Stock is then quoted on the Nasdaq National
Market, its closing price on the Nasdaq National Market on the
date of determination (or, if no trading takes place on such
date, the closing price on the last trading date immediately
preceding the date of determination) as reported in The Wall
Street Journal;
(b) if such Common Stock is publicly traded and is then listed
on a national securities exchange, its closing price on the date
of determination on the principal national securities exchange on
which the Common Stock is listed or admitted to trading as
reported in The Wall Street Journal;
(c) if such Common Stock is publicly traded but is not quoted on
the Nasdaq National Market nor listed or admitted to trading on a
national securities exchange, the average of the closing bid and
asked prices on the date of determination as reported in The Wall
Street Journal;
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(d) if none of the foregoing is applicable, by the Committee in
good faith.
"Insider" means an officer or director of the Company or any other
person whose transactions in the Company's Common Stock are subject to Section
16 of the Exchange Act.
"Option" means an award of an option to purchase Shares pursuant to
Section 5.
"Option Agreement" means, with respect to each Option, the signed
written agreement between the Company and the Participant setting forth the
terms and conditions of the Option.
"Parent" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company if each of such corporations other
than the Company owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
"Participant" means a person who receives an Option under this Plan.
"Plan" means this iMall, Inc. 1999 Stock Option Plan, as amended from
time to time.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means shares of the Company's Common Stock reserved for
issuance under this Plan or any other compensatory arrangement of the Company,
as adjusted pursuant to Sections 2 and 16, and any successor security.
"Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
"Termination" or "Terminated" means, for purposes of this Plan with
respect to a Participant, that the Participant has for any reason ceased to
provide services as an employee, officer, director, consultant, independent
contractor, or advisor to the Company or a Parent or Subsidiary of the Company.
An employee will not be deemed to have ceased to provide services in the case of
(i) sick leave, (ii) military leave, or (iii) any other leave of absence
approved by the Committee, provided, that such leave is for a period of not more
than 90 days, unless reemployment upon the expiration of such leave is
guaranteed by contract or statute or unless provided otherwise pursuant to
formal policy adopted from time to time by the Company and issued and
promulgated to employees in writing. In the case of any employee on an approved
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<PAGE> 12
leave of absence, the Committee may make such provisions respecting suspension
of vesting of the Option while on leave from the employ of the Company or a
Subsidiary as it may deem appropriate, except that in no event may an Option be
exercised after the expiration of the term set forth in the Option Agreement.
The Committee will have sole discretion to determine whether a Participant has
ceased to provide services and the effective date on which the Participant
ceased to provide services (the "Termination Date").
"Unvested Shares" means "Unvested Shares" as defined in the Option
Agreement.
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EXHIBIT 5.01
November 2, 1999
At Home Corporation
450 Broadway Road
Redwood City, CA 94063
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") filed by you with the Securities and Exchange
Commission (the "COMMISSION") on or about November 4, 1999 in connection with
the registration under the Securities Act of 1933, as amended, of an aggregate
of 1,517,892 shares of your Series A Common Stock, $0.01 par value (the "SERIES
A COMMON STOCK") which are issuable upon the exercise of options originally
granted by iMall, Inc., a Nevada corporation and your subsidiary ("iMALL"),
under the iMALL 1997 Stock Option Plan (the "1996 PLAN") and the iMALL 1999
Stock Option Plan (the "1999 PLAN") that have been assumed by you and converted
into options to purchase shares of Series A Common Stock (the "ASSUMED OPTIONS")
pursuant to the Agreement and Plan of Reorganization, dated as of July 12, 1999,
by and among you, Shop Nevada, Inc. and iMALL (the "PLAN OF REORGANIZATION").
In rendering this opinion, we have examined the following:
(1) your registration statement on Form 8-A filed with the Commission
on June 13, 1997, together with the order of effectiveness issued
by the Commission therefor on July 11, 1997;
(2) the Registration Statement, together with the Exhibits filed as a
part thereof;
(3) the prospectuses prepared in connection with the Registration
Statement;
(4) the Nasdaq National Market Listing of Additional Shares
Notification prepared in connection with the Registration
Statement;
(5) the iMALL 1997 Plan and related award grant and exercise
agreement forms;
(6) the iMALL 1999 Plan and related award grant and exercise
agreement forms;
(7) the Plan of Reorganization;
(8) your Fifth Amended and Restated Certificate of Incorporation
filed with the Delaware Secretary of State on May 28, 1999 and
your Second Amended and Restated Bylaws;
(9) the minutes of meetings and actions by written consent of your
stockholders and Board of Directors that are contained in your
minute books that are in our possession;
(10) A certificate from your transfer agent dated of even date
herewith, verifying the number of your issued and outstanding
shares of capital stock as of the date hereof; and
(11) a Management Certificate addressed to us and dated of even date
herewith executed by you containing certain factual and other
representations.
We have also have confirmed the continued effectiveness of your
registration under the Securities Act of 1934, as amended, by telephone call to
the offices of the Commission and have confirmed your eligibility to use Form
S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and
<PAGE> 2
express no opinion as to, the genuineness of all signatures on original
documents, the authenticity and the completeness of all documents submitted to
us as originals, the conformity to originals and completeness of all documents
submitted to us as copies, the legal capacity of all natural persons executing
the same, the lack of any undisclosed termination, modification, waiver or
amendment to any document reviewed by us and the due authorization, execution
and delivery of all documents where due authorization, execution and delivery
are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records referred to above. We have made no independent
investigation or other attempt to verify the accuracy of any of such information
or to determine the existence or non-existence of any other factual matters;
however, we are not aware of any facts that would cause us to believe that the
opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we
express no opinion herein with respect to the application or effect of the laws
of any jurisdiction other than the existing laws of the United States of America
and the State of California and (without reference to any case law or secondary
sources) the existing Delaware General Corporation Law.
Based upon the foregoing, it is our opinion that the 1,517,892 shares of
Series A Common Stock that may be issued and sold by you pursuant to exercise of
the Assumed Options, when issued and sold in accordance with the applicable plan
and award grant and exercise agreements to be entered into thereunder, and in
the manner referred to in the prospectus associated with the Registration
Statement, will be validly issued, fully paid and nonassessable; and
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Jeffrey R. Vetter
------------------------------
Jeffrey R. Vetter, a Partner
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EXHIBIT 23.01
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of At Home Corporation pertaining to the iMall 1997 Stock Option Plan and
the iMall 1999 Stock Option Plan, of our report dated January 19, 1999, with
respect to the consolidated financial statements of At Home Corporation,
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
as amended, filed with the Securities and Exchange Commission.
Walnut Creek, California /s/ Ernst & Young LLP
November 2, 1999
