<PAGE>
As filed with the Securities and Exchange Commission on April 10, 2000
Registration No. 333-______
- --------------------------------------------------------------------------------
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 Worldprints.com International, Inc. issued under the
Worldprints.com International, Inc. 1999 Stock Incentive Plan
and Assumed by the Registrant
(Full titles of the plans)
Kenneth A. Goldman
Chief Financial Officer
At Home Corporation
450 Broadway Street
Redwood City, California 94063
(650) 556-5000
(Name, address and telephone number of agent for service)
Copy to:
Jeffrey R. Vetter, Esq.
Nicholas S. Khadder, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
Proposed
Amount Proposed Maximum Maximum Amount of
to be Offering Price Aggregate Offering Registration
Title of Securities to be Registered Registered (1) Per Share (2) Price (2) Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Series A Common Stock,
$0.01 par value 278,198 $13.1145 $3,648,428 $964
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents the number of shares subject to options assumed from
Worldprints.com International, Inc., a Delaware corporation, which was
acquired by the Registrant on April 5, 2000.
(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.
<PAGE>
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, 1999;
(b) All other reports we have filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since December 31, 1999 including the current
report on Form 8-K we filed on April 3, 2000.
(c) The description of our Series A common stock contained in our
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 that we have subsequently filed 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.
As permitted by the Delaware General Corporation Law, our certificate
of incorporation, as amended and restated, includes a provision that
eliminates the personal liability of our directors or its stockholders
for monetary damages for breach of fiduciary duty as a director,
except for liability:
. for any breach of the director's duty of loyalty to the
corporation or its stockholders;
<PAGE>
. for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
. under Section 174 of the Delaware General Corporation Law; and
. for any transaction from which the director derived an improper
personal benefit.
As permitted by Section 145 of the Delaware General Corporation Law,
our certificate of incorporation, as amended and restated, further
provides:
. for mandatory indemnification, to the fullest extent permitted by
applicable law, for any person who is or was a director or
officer, or is or was serving at the request of the registrant as
a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses (including
attorneys' fees) reasonably incurred by this person;
. that our obligation to indemnify any person who was or is serving
at our request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust,
enterprise or nonprofit entity must be reduced by any amount the
person may collect as indemnification from the other corporation,
partnership, joint venture, trust, enterprise or nonprofit
entity;
. that we must advance to all indemnified parties the expenses
(including attorneys' fees) incurred in defending any proceeding
provided that indemnified parties (if they are directors or
officers) must provide the registrant an undertaking to repay the
advances if indemnification is determined to be unavailable;
. that the rights conferred in the certificate of incorporation are
not exclusive; and
. that we may not retroactively amend the certification of
incorporation provisions relating to indemnity.
The indemnification provision in our certificate of incorporation and
the indemnification agreements we have entered into with each of our
directors and executive officers may be sufficiently broad to permit
indemnification of our directors and officers for liabilities arising
under the Securities Act. We have also obtained directors' and
officers' liability insurance.
The following documents are incorporated by reference:
Document
--------
1. Fifth Amended and Restated Certificate of Incorporation (see
Exhibit 3.01).
2. Form of Indemnification Agreement entered into between the
registrant and each of its directors and executive officers
(incorporated by reference to Exhibit 10.09 to the registrant's
registration statement on Form S-1 (File No. 333-27323) declared
effective by the Commission on July 11, 1997).
In addition, we have entered into various merger agreements and
related registration rights agreements in connection with its
acquisitions of and mergers with various companies under which the
parties to those agreements have agreed to indemnify the registrant
and its directors, officers, employees and controlling persons against
specified
-2-
<PAGE>
liabilities, including liabilities arising under the Securities Act,
the Exchange Act or other federal or state laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIM
Not applicable.
-3-
<PAGE>
ITEM 8. EXHIBITS.
Exhibit Exhibit
Number Title
- ------- -----
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 Worldprints.com International, Inc. 1999 Stock Incentive 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 6).
* 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 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;
-4-
<PAGE>
(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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<PAGE>
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 7th day of
April, 2000.
AT HOME CORPORATION
By: /s/ George Bell
--------------------------------------
George Bell
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints George Bell, 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 of 1933, 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>
Principal Executive Officer:
/s/ George Bell President, Chief Executive April 7, 2000
- ----------------------------- Officer and Director
George Bell
Principal Financial Officer:
/s/ Kenneth A. Goldman Executive Vice President and April 7, 2000
- ----------------------------- Chief Financial Officer
Kenneth A. Goldman
Principal Accounting Officer:
/s/ Robert A Lerner Vice President, Chief Accounting April 7, 2000
- ----------------------------- Officer and Corporate Controller
Robert A. Lerner
</TABLE>
-6-
<PAGE>
Additional Directors:
_____________________________ Chairman April 7, 2000
Thomas A. Jermoluk
/s/ William R. Hearst III Director April 7, 2000
- -----------------------------
William R. Hearst III
_____________________________ Director April 7, 2000
C. Michael Armstrong
/s/ John Doerr Director April 7, 2000
- -----------------------------
L. John Doerr
_____________________________ Director April 7, 2000
Ray Liguori
/s/ John Malone Director April 7, 2000
- -----------------------------
John C. Malone
_____________________________ Director April 7, 2000
John C. Petrillo
_____________________________ Director April 7, 2000
Brian L. Roberts
/s/ Ted Rogers Director April 7, 2000
- -----------------------------
Ted Rogers
/s/ David Woodrow Director April 7, 2000
- -----------------------------
David M. Woodrow
-7-
<PAGE>
Exhibit Index
-------------
Exhibit Exhibit
Number Title
- ------- -----
4.03 Worldprints.com International, Inc. 1999 Stock Incentive 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 6).
<PAGE>
EXHIBIT 4.03
WORLDPRINTS.COM INTERNATIONAL, INC.
1999 STOCK INCENTIVE PLAN
(AS AMENDED AND RESTATED July 30, 1999)
1. Purposes of the Plan. The purposes of this 1999 Stock Incentive Plan are:
(a) to attract and retain the best available personnel for positions of
substantial responsibility,
(b) to provide additional incentive to Employees, Directors and
Consultants, and
(c) to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at the time of
grant. Stock Purchase Rights and Other Awards may also be granted under the
Plan.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees as shall be
administering the Plan, in accordance with Section 5 of the Plan.
(b) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U. S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options, Stock Purchase Rights or
Other Awards are, or will be, granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a committee of Directors appointed by the Board in
accordance with Section 5 of the Plan.
(f) "Common Stock" means the common stock of the Company.
(g) "Company" means Worldprints.com International, Inc., a Colorado
corporation.
(h) "Consultant" means any person, including an advisor, engaged by the
Company or a Parent or Subsidiary to render services to such entity.
(i) "Director" means a member of the Board.
(j) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of
<PAGE>
the Code.
(k) "Dividend Equivalent" means any right granted under Section 14 of the
Plan.
(l) "Employee" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. A Service
Provider shall not cease to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor.
For purposes of Incentive Stock Options, no such leave may exceed ninety days,
unless reemployment upon expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of absence approved by the
Company is not so guaranteed, on the 181st day of such leave any Incentive Stock
Option held by the Optionee shall cease to be treated as an Incentive Stock
Option and shall be treated for tax purposes as a Nonstatutory Stock Option.
Neither service as a Director nor payment of a director's fee by the Company
shall be sufficient to constitute "employment" by the Company.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(n) "Fair Market Value" means, as of any date, the value of Common Stock
determined as follows:
(i) If the Common Stock is listed on any established stock exchange
or a national market system, including, without limitation, the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for such stock (or the closing bid, if no
sales were reported) as quoted on such exchange or system for the last market
trading day prior to the time of determination, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the last market trading day prior to the day of
determination, as reported in The Wall Street Journal or such other source as
the Administrator deems reliable; or
(iii) In the absence of an established market for the Common Stock,
the Fair Market Value shall be determined in good faith by the Administrator.
(o) "Incentive Stock Option" means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(p) "Nonstatutory Stock Option" means an Option not intended to qualify as
an Incentive Stock Option.
(q) "Notice of Grant" means a written or electronic notice evidencing
certain terms and conditions of an individual Option, Stock Purchase Right or
Other Award grant. The Notice
2
<PAGE>
of Grant is part of the Option Agreement.
(r) "Officer" means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(s) "Option" means a stock option granted pursuant to the Plan.
(t) "Option Agreement" means an agreement between the Company and an
Optionee evidencing the terms and conditions of an individual Option grant. The
Option Agreement is subject to the terms and conditions of the Plan.
(u) "Option Exchange Program" means a program whereby outstanding Options
are surrendered in exchange for Options with a lower exercise price.
(v) "Optioned Stock" means the Common Stock subject to an Option, Stock
Purchase Right or Other Award.
(w) "Optionee" means the holder of an outstanding Option, Stock Purchase
Right or Other Award granted under the Plan.
(x) "Other Award" means any Stock Appreciation Right, Performance Award,
Dividend Equivalent or Other Stock-Based Award granted under the Plan.
(y) "Other Award Agreement" means a written agreement between the Company
and the Optionee evidencing the terms and conditions of an individual Other
Award. The Other Award Agreement is subject to the terms and conditions of the
Plan and the Notice of Grant
(z) "Other Stock-Based Award" means any right granted under Section 15 of
the Plan.
(aa) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(bb) "Performance Award" means any right granted under Section 13 of the
Plan.
(cc) "Plan" means this 1999 Stock Incentive Plan.
(dd) "Restricted Stock" means shares of Common Stock acquired pursuant to
a grant of Stock Purchase Rights under Section 11 of the Plan.
(ee) "Restricted Stock Purchase Agreement" means a written agreement
between the Company and the Optionee evidencing the terms and restrictions
applying to stock purchased under a Stock Purchase Right. The Restricted Stock
Purchase Agreement is subject to the terms and conditions of the Plan and the
Notice of Grant.
(ff) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor to
Rule
3
<PAGE>
16b-3, as in effect when discretion is being exercised with respect to the Plan.
(gg) "Section 16(b)" means Section 16(b) of the Exchange Act.
(hh) "Service Provider" means an Employee, Director or Consultant.
(ii) "Share" means a share of the Common Stock, as adjusted in accordance
with Section 19 of the Plan.
(jj) "Stock Appreciation Right" means any right granted under Section 12 of
the Plan.
(kk) "Stock Purchase Right" means the right to purchase Common Stock
pursuant to Section 11 of the Plan, as evidenced by a Notice of Grant.
(ll) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 19 of the
Plan, the maximum aggregate number of Shares that may be optioned and sold under
the Plan is 400,000 Shares. The Shares may be authorized, but unissued, or
reacquired Common Stock.
If an Option, Stock Purchase Right or Other Award expires or becomes
unexercisable without having been exercised in full, or is surrendered pursuant
to an Option Exchange Program, the unpurchased Shares which were subject thereto
shall become available for future grant or sale under the Plan (unless the Plan
has terminated); provided, however, that Shares that have actually been issued
under the Plan, whether upon exercise of an Option, Stock Purchase Right or
Other Award, shall not be returned to the Plan and shall not become available
for future distribution under the Plan, except that if Shares of Restricted
Stock are repurchased by the Company at their original purchase price, such
Shares shall become available for future grant under the Plan.
4. Term of Plan. Subject to Section 27 of the Plan, the Plan shall become
effective upon its adoption by the Board. It shall continue in effect for a term
of ten (10) years unless terminated earlier under Section 21 of the Plan.
5. Administration of the Plan.
(a) Procedure.
---------
(i) Multiple Administrative Bodies. The Plan may be administered by
------------------------------
different Committees with respect to different groups of Service Providers.
(ii) Section 162(m). To the extent that the Administrator determines
--------------
it to be desirable to qualify Options or Other Awards granted hereunder as
"performance-based compensation" within the meaning of Section 162(m) of the
Code, the Plan shall be administered by a Committee of two or more "outside
directors" within the meaning of Section 162(m) of the
4
<PAGE>
Code.
(iii) Rule 16b-3. To the extent desirable to qualify transactions
----------
hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder
shall be structured to satisfy the requirements for exemption under Rule 16b-3.
(iv) Other Administration. Other than as provided above, the Plan
--------------------
shall be administered by (A) the Board or (B) a Committee, which committee shall
be constituted to satisfy Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan,
---------------------------
and in the case of a Committee, subject to the specific duties delegated by the
Board to such Committee, the Administrator shall have the authority, in its
discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options, Stock Purchase
Rights and Other Awards may be granted hereunder;
(iii) to determine the number of shares of Common Stock to be covered
by each Option, Stock Purchase Right and Other Award granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any Option, Stock Purchase Right or Other Award
granted hereunder. Such terms and conditions include, but are not limited to,
the exercise price, the time or times when Options, Stock Purchase Rights or
Other Awards may be exercised (which may be based on performance criteria), any
vesting acceleration or waiver of forfeiture restrictions, and any restriction
or limitation regarding any Option, Stock Purchase Right or Other Award or the
shares of Common Stock relating thereto, based in each case on such factors as
the Administrator, in its sole discretion, shall determine;
(vi) to reduce the exercise price of any Option, Stock Purchase
Right or Other Award to the then current Fair Market Value if the Fair Market
Value of the Common Stock covered by such Option, Stock Purchase Right or Other
Award shall have declined since the date the Option, Stock Purchase Right or
Other Award was granted;
(vii) to institute an Option Exchange Program;
(viii) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan;
(ix) to prescribe, amend and rescind rules and regulations relating
to the Plan, including rules and regulations relating to sub-plans established
for the purpose of qualifying for preferred tax treatment under foreign tax
laws;
5
<PAGE>
(x) to modify or amend each Option, Stock Purchase Right or Other
Award (subject to Section 21(c) of the Plan), including the discretionary
authority to extend the post-termination exercisability period of Options longer
than is otherwise provided for in the Plan;
(xi) to allow Optionees to satisfy withholding tax obligations by
electing to have the Company withhold from the Shares to be issued upon exercise
of an Option, Stock Purchase Right or Other Award that number of Shares having a
Fair Market Value equal to the amount required to be withheld. The Fair Market
Value of the Shares to be withheld shall be determined on the date that the
amount of tax to be withheld is to be determined. All elections by an Optionee
to have Shares withheld for this purpose shall be made in such form and under
such conditions as the Administrator may deem necessary or advisable;
(xii) to authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option, Stock Purchase Right or
Other Award previously granted by the Administrator;
(xiii) to make all other determinations deemed necessary or advisable
for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's decisions,
----------------------------------
determinations and interpretations shall be final and binding on all Optionees
and any other holders of Options, Stock Purchase Rights or Other Awards.
6. Eligibility. Nonstatutory Stock Options, Stock Purchase Rights and Other
Awards may be granted to Service Providers. Incentive Stock Options may be
granted only to Employees.
7. Limitations.
(a) Each Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding
such designation, to the extent that the aggregate Fair Market Value of the
Shares with respect to which Incentive Stock Options are exercisable for the
first time by the Optionee during any calendar year (under all plans of the
Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be
treated as Nonstatutory Stock Options. For purposes of this Section 7(a),
Incentive Stock Options shall be taken into account in the order in which they
were granted. The Fair Market Value of the Shares shall be determined as of the
time the Option with respect to such Shares is granted.
(b) Neither the Plan nor any Option, Stock Purchase Right or Other Award
shall confer upon an Optionee any right with respect to continuing the
Optionee's relationship as a Service Provider with the Company, nor shall they
interfere in any way with the Optionee's right or the Company's right to
terminate such relationship at any time, with or without cause.
(c) The following limitations shall apply to grants of Options:
(i) No Service Provider shall be granted, in any fiscal year of the
Company,
6
<PAGE>
Options to purchase more than 200,000 Shares.
(ii) In connection with his or her initial service, a Service
Provider may be granted Options to purchase up to an additional 200,000 Shares
which shall not count against the limit set forth in subsection (i) above.
(iii) The foregoing limitations shall be adjusted proportionately in
connection with any change in the Company's capitalization as described in
Section 19.
(iv) If an Option is cancelled in the same fiscal year of the
Company in which it was granted (other than in connection with a transaction
described in Section 19), the cancelled Option will be counted against the
limits set forth in subsections (i) and (ii) above. For this purpose, if the
exercise price of an Option is reduced, the transaction will be treated as a
cancellation of the Option and the grant of a new Option.
8. Term of Option. The term of each Option shall be stated in the Option
Agreement. In the case of an Incentive Stock Option, the term shall be ten (10)
years from the date of grant or such shorter term as may be provided in the
Option Agreement. Moreover, in the case of an Incentive Stock Option granted to
an Optionee who, at the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or any Parent or Subsidiary, the term of the
Incentive Stock Option shall be five (5) years from the date of grant or such
shorter term as may be provided in the Option Agreement.
9. Option Exercise Price and Consideration.
(a) Exercise Price. The per share exercise price for the Shares to be
--------------
issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time the Incentive Stock
Option is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
the per Share exercise price shall be no less than 110% of the Fair Market Value
per Share on the date of grant.
(B) granted to any Employee other than an Employee described in
paragraph (A) immediately above, the per Share exercise price shall be no less
than 100% of the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be determined by the Administrator. In the case of a
Nonstatutory Stock Option intended to qualify as "performance-based
compensation" within the meaning of Section 162(m) of the Code, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share on
the date of grant.
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<PAGE>
(iii) Notwithstanding the foregoing, Options may be granted with a
per Share exercise price of less than 100% of the Fair Market Value per Share on
the date of grant pursuant to a merger or other corporate transaction.
(b) Waiting Period and Exercise Dates. At the time an Option is granted,
---------------------------------
the Administrator shall fix the period within which the Option may be exercised
and shall determine any conditions that must be satisfied before the Option may
be exercised.
(c) Form of Consideration. The Administrator shall determine the
---------------------
acceptable form of consideration for exercising an Option, including the method
of payment. In the case of an Incentive Stock Option, the Administrator shall
determine the acceptable form of consideration at the time of grant. Such
consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares which (A) in the case of Shares acquired upon
exercise of an option, have been owned by the Optionee for more than six months
on the date of surrender, and (B) have a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised;
(v) consideration received by the Company under a cashless exercise
program implemented by the Company in connection with the Plan or a cashless
exercise provision set forth in the Option Agreement;
(vi) a reduction in the amount of any Company liability to the
Optionee, including any liability attributable to the Optionee's participation
in any Company-sponsored deferred compensation program or arrangement;
(vii) any combination of the foregoing methods of payment; or
(viii) such other consideration and method of payment for the issuance
of Shares to the extent permitted by Applicable Laws.
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option granted
-----------------------------------------------
hereunder shall be exercisable according to the terms of the Plan and at such
times and under such conditions as determined by the Administrator and set forth
in the Option Agreement. Unless the Administrator provides otherwise, vesting of
Options granted hereunder shall be tolled during any unpaid leave of absence. An
Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i) written
or
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<PAGE>
electronic notice of exercise (in accordance with the Option Agreement) from the
person entitled to exercise the Option, and (ii) full payment for the Shares
with respect to which the Option is exercised. Full payment may consist of any
consideration and method of payment authorized by the Administrator and
permitted by the Option Agreement and the Plan. Shares issued upon exercise of
an Option shall be issued in the name of the Optionee or, if requested by the
Optionee, in the name of the Optionee and his or her spouse. Until the Shares
are issued (as evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company), no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. The Company shall
issue (or cause to be issued) such Shares promptly after the Option is
exercised. No adjustment will be made for a dividend or other right for which
the record date is prior to the date the Shares are issued, except as provided
in Section 19 of the Plan.
Exercising an Option in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for sale under the
Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Relationship as a Service Provider. If an Optionee
-------------------------------------------------
ceases to be a Service Provider, other than upon the Optionee's death or
Disability, the Optionee may exercise his or her Option within such period of
time as is specified in the Option Agreement to the extent that the Option is
vested on the date of termination (but in no event later than the expiration of
the term of such Option as set forth in the Option Agreement). In the absence of
a specified time in the Option Agreement, the Option shall remain exercisable
for three (3) months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option within
the time specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(c) Disability of Optionee. If an Optionee ceases to be a Service Provider
----------------------
as a result of the Optionee's Disability, the Optionee may exercise his or her
Option within such period of time as is specified in the Option Agreement to the
extent the Option is vested on the date of termination (but in no event later
than the expiration of the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the Option Agreement, the
Option shall remain exercisable for twelve (12) months following the Optionee's
termination. If, on the date of termination, the Optionee is not vested as to
his or her entire Option, the Shares covered by the unvested portion of the
Option shall revert to the Plan. If, after termination, the Optionee does not
exercise his or her Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(d) Death of Optionee. If an Optionee dies while a Service Provider, the
-----------------
Option may be exercised within such period of time as is specified in the Option
Agreement (but in no event later than the expiration of the term of such Option
as set forth in the Notice of Grant), by the Optionee's estate or by a person
who acquires the right to exercise the Option by bequest or inheritance, but
only to the extent that the Option is vested on the date of death. In the
absence of a specified time in the Option Agreement, the Option shall remain
exercisable for twelve (12)
9
<PAGE>
months following the Optionee's termination. If, at the time of death, the
Optionee is not vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall immediately revert to the Plan. The Option
may be exercised by the executor or administrator of the Optionee's estate or,
if none, by the person(s) entitled to exercise the Option under the Optionee's
will or the laws of descent or distribution. If the Option is not so exercised
within the time specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time offer to buy out
-----------------
for a payment in cash or Shares an Option previously granted based on such terms
and conditions as the Administrator shall establish and communicate to the
Optionee at the time that such offer is made.
11. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be issued either alone,
------------------
in addition to, or in tandem with other awards granted under the Plan and/or
cash awards made outside of the Plan. After the Administrator determines that it
will offer Stock Purchase Rights under the Plan, it shall advise the offeree in
writing or electronically, by means of a Notice of Grant, of the terms,
conditions and restrictions related to the offer, including the number of Shares
that the offeree shall be entitled to purchase, the price to be paid, and the
time within which the offeree must accept such offer. The offer shall be
accepted by execution of a Restricted Stock Purchase Agreement in the form
determined by the Administrator.
(b) Repurchase Option. Unless the Administrator determines otherwise, the
-----------------
Restricted Stock Purchase Agreement shall grant the Company a repurchase option
exercisable upon the voluntary or involuntary termination of the purchaser's
service with the Company for any reason (including death or Disability). The
purchase price for Shares repurchased pursuant to the Restricted Stock Purchase
Agreement shall be the original price paid by the purchaser and may be paid by
cancellation of any indebtedness of the purchaser to the Company. The repurchase
option shall lapse at a rate determined by the Administrator.
(c) Other Provisions. The Restricted Stock Purchase Agreement shall
----------------
contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion.
(d) Rights as a Shareholder. Once the Stock Purchase Right is exercised,
-----------------------
the purchaser shall have the rights equivalent to those of a shareholder, and
shall be a shareholder when his or her purchase is entered upon the records of
the duly authorized transfer agent of the Company. No adjustment will be made
for a dividend or other right for which the record date is prior to the date the
Stock Purchase Right is exercised, except as provided in Section 19 of the Plan.
12. Stock Appreciation Rights. Stock Appreciation Rights may be issued either
alone, in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator determines
that it will offer Stock Appreciation
10
<PAGE>
Rights under the Plan, it shall advise the offeree in writing or electronically,
by means of a Notice of Grant, of the terms, conditions and restrictions related
to the offer, including the grant price and the time within which the offeree
must accept such offer. A Stock Appreciation Right granted under the Plan shall
confer on the holder thereof a right to receive upon exercise thereof the excess
of (i) the Fair Market Value of one Share on the date of exercise (or, if the
Administrator shall so determine, at any time during a specified period before
or after the date of exercise) over (ii) the grant price of the Stock
Appreciation Right as specified by the Administrator. Subject to the terms of
the Plan and the applicable Other Award Agreement, the grant price, term,
methods of exercise, dates of exercise, methods of settlement and any other
terms and conditions of any Stock Appreciation Right shall be as determined by
the Administrator in its sole discretion. The offer shall be accepted by
execution of an Other Award Agreement in the form determined by the
Administrator.
13. Performance Awards. Performance Awards may be issued either alone, in
addition to, or in tandem with other awards granted under the Plan and/or cash
awards made outside of the Plan. After the Administrator determines that it will
offer Performance Awards under the Plan, it shall advise the offeree in writing
or electronically, by means of a Notice of Grant, of the terms, conditions and
restrictions related to the offer, including the form of the Performance Award,
the performance goals and the time within which the offeree must accept such
offer. A Performance Award granted under the Plan (i) may be denominated or
payable in cash, Shares (including, without limitation, Restricted Stock), other
securities, other awards described in the Plan or other property and (ii) shall
confer on the holder thereof the right to receive payments, in whole or in part,
upon the achievement of such performance goals during such performance periods
as the Administrator shall establish. Subject to the terms of the Plan and the
applicable Other Award Agreement, the performance goals to be achieved during
any performance period, the length of any performance period, the amount of any
Performance Award granted, the amount of any payment or transfer to be made
pursuant to any Performance Award and any other terms and conditions of any
Performance Award shall be as determined by the Administrator in its sole
discretion. The offer shall be accepted by execution of an Other Award Agreement
in the form determined by the Administrator.
14. Dividend Equivalents. Dividend Equivalents may be issued either alone, in
addition to, or in tandem with other awards granted under the Plan and/or cash
awards made outside of the Plan. After the Administrator determines that it will
offer Dividend Equivalents under the Plan, it shall advise the offeree in
writing or electronically, by means of a Notice of Grant, of the terms,
conditions and restrictions related to the offer, including the number of Shares
with respect to which Dividend Equivalents will be paid and the time within
which the offeree must accept such offer. Recipients of Dividend Equivalents
will be entitled to receive payments (in cash, Shares, other securities, other
awards described in the Plan or other property, as determined in the sole
discretion of the Administrator) equivalent to the amount of cash dividends paid
by the Company to a holder of Shares with respect to a number of Shares
determined by the Administrator. Subject to the terms of the Plan and the
applicable Other Award Agreement, such Dividend Equivalents shall have such
other terms and conditions as shall be determined by the Administrator in its
sole discretion. The offer shall be accepted by execution of an Other Award
Agreement in the form determined by the Administrator.
11
<PAGE>
15. Other Stock-Based Awards. The Administrator is authorized to grant such
other awards that are denominated or payable in, valued in whole or in part by
reference to, or otherwise based on or related to, Shares (including, without
limitation, securities convertible into Shares) as are deemed by the
Administrator to be consistent with the purpose of the Plan; provided, however,
-------- -------
that such grants must comply with Rule 16b-3 and all Applicable Laws. Other
Stock-Based Awards may be issued either alone, in addition to, or in tandem with
other awards granted under the Plan and/or cash awards made outside of the Plan.
After the Administrator determines it will offer Other Stock-Based Awards under
the Plan, it shall advise the offeree in writing or electronically, by means of
a Notice of Grant, of the terms, conditions and restrictions related to the
offer, including the time within which the offeree must accept such offer.
Shares or other securities delivered pursuant to an Other Stock-Based Award
granted under this Section 15 shall be purchased for such consideration, which
may be paid by such method or methods and in such form or forms (including,
without limitation, cash, Shares, promissory notes, other securities, other
awards described in the Plan, other property or any combination thereof) as the
Administrator shall determine. Subject to the terms of the Plan and the
applicable Other Award Agreement, such Other Stock-Based Award shall have such
other terms and conditions as shall be determined by the Administrator in its
sole discretion. The offer shall be accepted by execution of an Other Award
Agreement in the form determined by the Administrator.
16. Income Tax Withholding. In order to comply with all applicable federal or
state income tax laws or regulations, the Company may take such action as it
deems appropriate to ensure that all applicable federal or state payroll,
withholding, income or other taxes, which are the sole and absolute
responsibility of a Service Provider, are withheld or collected from such
Service Provider.
17. Tax Bonuses. The Administrator, in its discretion, shall have the
authority, at the time of grant of any award under the Plan or at any time
thereafter, to approve cash bonuses to designated Service Providers to be paid
upon their exercise or receipt of (or the lapse of restrictions relating to)
awards under the Plan in order to provide funds to pay all or a portion of
federal and state taxes due as a result of such exercise or receipt (or the
lapse of such restrictions). The Administrator shall have full authority in its
discretion to determine the amount of any such tax bonus.
18. Non-Transferability of Options, Stock Purchase Rights and Other Awards.
Unless determined otherwise by the Administrator, an Option, Stock Purchase
Right or Other Award may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee. If the Administrator makes an Option, Stock
Purchase Right or Other Award transferable, such Option, Stock Purchase Right or
Other Award shall contain such additional terms and conditions as the
Administrator deems appropriate.
19. Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset
Sale.
(a) Changes in Capitalization. Subject to any required action by the
-------------------------
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option,
12
<PAGE>
Stock Purchase Right and Other Award, and the number of shares of Common Stock
which have been authorized for issuance under the Plan but as to which no
Options, Stock Purchase Rights or Other Awards have yet been granted or which
have been returned to the Plan upon cancellation or expiration of an Option,
Stock Purchase Right or Other Award, as well as the price per share of Common
Stock covered by each such outstanding Option, Stock Purchase Right or Other
Award, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the Common
Stock, or any other increase or decrease in the number of issued shares of
Common Stock effected without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an Option, Stock Purchase Right or Other Award.
(b) Dissolution or Liquidation. In the event of the proposed dissolution
--------------------------
or liquidation of the Company, the Administrator shall notify each Optionee as
soon as practicable prior to the effective date of such proposed transaction.
The Administrator in its discretion may provide for an Optionee to have the
right to exercise his or her Option, Stock Purchase Right or Other Award prior
to such transaction as to all of the Optioned Stock covered thereby, including
Shares as to which the Option would not otherwise be exercisable. In addition,
the Administrator may provide that any Company repurchase option applicable to
any Shares purchased upon exercise of an Option, Stock Purchase Right or Other
Award shall lapse as to all such Shares, provided the proposed dissolution or
liquidation takes place at the time and in the manner contemplated. To the
extent it has not been previously exercised, an Option, Stock Purchase Right or
Other Award will terminate immediately prior to the consummation of such
proposed action. The Administrator may grant such other rights, including,
without limitation, greater rights than those set forth in this subsection
19(b), in any Option Agreement, Restricted Stock Purchase Agreement or Other
Award Agreement as the Administrator, in its sole discretion, deems appropriate.
(c) Merger or Asset Sale. In the event of a merger of the Company with or
--------------------
into another corporation, or the sale of substantially all of the assets of the
Company, each outstanding Option, Stock Purchase Right and Other Award shall be
assumed or an equivalent option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In the event
that the successor corporation refuses to assume or substitute for the Option,
Stock Purchase Right or Other Award, the Optionee shall fully vest in and have
the right to exercise the Option, Stock Purchase Right or Other Award as to all
of the Optioned Stock, including Shares as to which it would not otherwise be
vested or exercisable. If an Option, Stock Purchase Right or Other Award becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Administrator shall notify the Optionee in
writing or electronically that the Option, Stock Purchase Right or Other Award
shall be fully vested and exercisable for a period of fifteen (15) days from the
date of such notice, and the Option, Stock Purchase Right or Other Award shall
terminate upon the expiration of such period.
13
<PAGE>
For the purposes of this paragraph, the Option, Stock Purchase Right or Other
Award shall be considered assumed if, following the merger or sale of assets,
the option or right confers the right to purchase or receive, for each Share of
Optioned Stock subject to the Option, Stock Purchase Right or Other Award
immediately prior to the merger or sale of assets, the consideration (whether
stock, cash, or other securities or property) received in the merger or sale of
assets by holders of Common Stock for each Share held on the effective date of
the transaction (and if holders were offered a choice of consideration, the type
of consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger or sale of
assets is not solely common stock of the successor corporation or its Parent,
the Administrator may, with the consent of the successor corporation, provide
for the consideration to be received upon the exercise of the Option, Stock
Purchase Right or Other Award, for each Share of Optioned Stock subject to the
Option, Stock Purchase Right or Other Award, to be solely common stock of the
successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the merger or sale of
assets. The Administrator may grant such other rights, including, without
limitation, greater rights than those set forth in this subsection 19(c), in any
Option Agreement, Restricted Stock Purchase Agreement or Other Award Agreement
as the Administrator, in its sole discretion, deems appropriate.
20. Date of Grant. The date of grant of an Option, Stock Purchase Right or
Other Award shall be, for all purposes, the date on which the Administrator
makes the determination granting such Option, Stock Purchase Right or Other
Award, or such other later date as is determined by the Administrator. Notice of
the determination shall be provided to each Optionee within a reasonable time
after the date of such grant.
21. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend, alter,
-------------------------
suspend or terminate the Plan.
(b) Shareholder Approval. The Company shall obtain shareholder approval of
--------------------
any Plan amendment to the extent necessary and desirable to comply with
Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration,
----------------------------------
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator's ability to exercise
the powers granted to it hereunder with respect to Options granted under the
Plan prior to the date of such termination.
22. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued pursuant to the exercise
----------------
of an Option, Stock Purchase Right or Other Award unless the exercise of such
Option, Stock Purchase Right or Other Award and the issuance and delivery of
such Shares shall comply with Applicable Laws and shall be further subject to
the approval of counsel for the Company with
14
<PAGE>
respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
--------------------------
Option, Stock Purchase Right or Other Award, the Company may require the person
exercising such Option, Stock Purchase Right or Other Award to represent and
warrant at the time of any such exercise that the Shares are being purchased
only for investment and without any present intention to sell or distribute such
Shares if, in the opinion of counsel for the Company, such a representation is
required.
23. Inability to Obtain Authority. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
24. Reservation of Shares. The Company, during the term of this Plan, will at
all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
25. Severability. If any provision of the Plan, Option Agreement, Restricted
Stock Purchase Agreement, Other Award Agreement or any award is or becomes or is
deemed to be invalid, illegal or unenforceable in any jurisdiction or would
disqualify the Plan or and award under any law deemed applicable by the
Administrator, such provision shall be construed or deemed amended to conform to
Applicable Laws, or if it cannot be so construed or deemed amended without, in
the determination of the Administrator, materially altering the purpose or
intent of the Plan, Option Agreement, Restricted Stock Purchase Agreement, Other
Award Agreement or award, such provision shall be stricken as to such
jurisdiction or award, and the remainder of the Plan, or any such Option
Agreement, Restricted Stock Purchase Agreement, Other Award Agreement or award
shall remain in full force and effect.
26. No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any award, and the Administrator shall determine whether
cash shall be paid in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, terminated or otherwise
eliminated.
27. Shareholder Approval. The Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months after the date the Plan is
adopted. Such shareholder approval shall be obtained in the manner and to the
degree required under Applicable Laws.
15
<PAGE>
EXHIBIT 5.01
------------
April 10, 2000
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") to be filed by you with the Securities and
Exchange Commission (the "Commission") on or about April 10, 2000 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 278,198 shares of your Series A Common Stock, $0.01 par value per
share (the "Stock") which are issuable upon the exercise of options originally
granted by Worldprints.com International, Inc., a Colorado corporation, that
have been assumed by you and converted into options to purchase shares of Stock
(the "Assumed Options") pursuant to the Agreement and Plan of Reorganization,
dated as of April 5, 2000, by and among you, Walter Acquisition Corporation,
Worldprints.com International, Inc. and the founding shareholders of
Worldprints.com International, Inc. (the "Plan of Reorganization").
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the Exhibits filed as a
part thereof;
(2) the prospectus prepared in connection with the Registration
Statement;
(3) the Plan of Reorganization;
(4) 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 certified by the Secretary of the Company
on April 5, 2000;
(5) the minutes of meetings and actions by written consent of your
stockholders and Board of Directors that are contained in your minute
books that you have made available to us;
(6) a certificate from your transfer agent dated of even date herewith,
verifying the number of your issued and outstanding shares of Series A
common stock as of the date hereof, and representations from the
Company regarding the outstanding options and warrants respecting your
capital stock and rights to purchase capital stock, verifying the
number of such securities that are issued, outstanding or reserved for
issuance; and
<PAGE>
(7) a Management Certificate addressed to us and dated of even date
herewith executed by you containing certain factual and other
representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and 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 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. We have also assumed that the
certificates representing the Stock will be, when issued, properly signed by
authorized officers of you or your agents.
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 records and documents
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 render
this opinion only with respect to, and express no opinion herein concerning 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 the
existing Delaware General Corporation Law.
Based upon the foregoing, it is our opinion that the 278,198 shares of
Stock that may be issued and sold by you pursuant to the exercise of Assumed
Options, when issued, sold and delivered in accordance with the applicable plan
and purchase agreements to be entered into thereunder and in the manner and for
the consideration stated in the Registration Statement and the relevant
prospectus, will be validly issued, fully paid and nonassessable.
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. This opinion is intended solely for use in connection with issuance and
sale of shares in subject to the Registration Statement and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
/s/ FENWICK & WEST LLP
<PAGE>
Exhibit 23.01
-------------
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of At Home Corporation pertaining to the Worldprints.com International,
Inc. 1999 Stock Incentive Plan, of our report dated January 20, 2000, with
respect to the consolidated financial statements and schedule of At Home
Corporation, included in its Annual Report on Form 10-K for the year ended
December 31, 1999, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Jose, California
April 6, 2000
