As filed with the Securities and Exchange Commission on April 27, 2000.
Registration
Number 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
GO2NET, INC.
(Exact name of issuer as specified in its charter)
Delaware 91-1710182
- ------------------------------ ----------
(State of Incorporation) (IRS Employer Identification Number)
999 Third Avenue, Suite 4700, Seattle, Washington 98104
(Address of Principal Executive Offices)
(206) 447-1595
(Registrant's telephone number, including area code)
GO2NET, INC. 2000 STOCK OPTION PLAN
(Full title of the Plan)
Russell C Horowitz
Chief Executive Officer and Chief Financial Officer
Go2Net, Inc.
999 Third Avenue, Suite 4700
Seattle, Washington 98104
(206) 447-1595
(Name, address and telephone number of agent for service)
copy to:
Francis J. Feeney, Jr., Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------- -------------------------------------- -------------------- ------------------ ------------------
Title of Amount of Securities to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered (1) Offering Price Per Aggregate Registration Fee
Registered Share (2) Offering Price
(2)
- -------------------- -------------------------------------- -------------------- ------------------ ------------------
- -------------------- -------------------------------------- -------------------- ------------------ ------------------
<S> <C> <C> <C> <C>
Common Stock, par 6,000,000
value $.01 per $51.3125 $307,875,000 $81,279
share
- -------------------- -------------------------------------- -------------------- ------------------ ------------------
</TABLE>
(1) Also registered hereunder are such additional number of shares of
Common Stock, presently indeterminable, as may be necessary to satisfy
the antidilution provisions of the Plan to which this Registration
Statement relates.
(2) Calculated solely for the purpose of this offering under Rule 457(h) of
the Securities Act of 1933, as amended (the "Securities Act") on the
basis of the high and low selling prices per share of Go2Net's Common
Stock on April 24, 2000, as reported on the Nasdaq National Market
which was $51.3125.
<PAGE>
PART I
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 1. Plan Information
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
Item 2. Registration Information and Employee Plan Annual Information
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Go2Net, Inc. ("Go2Net" or the "Company") hereby incorporates by
reference the documents listed in (a) through (c) below. In addition, all
documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (prior to filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold) shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
thereof from the date of filing of such documents.
(a) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act on Form 10-K for the fiscal year ended September
30, 1999 filed on December 29, 1999.
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the annual
report referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
the Registration Statement filed by the Company on April 10, 1997 under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed with the Commission pursuant to
Sections 13(a), 13(b), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold under
this Registration Statement, shall be deemed to be incorporated by reference in
this Registration Statement and to be part hereof from the date of filing of
such documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed documents which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement, except as so modified or superseded.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
As permitted by Section 145 of the Delaware General Corporation Law,
Go2Net's Amended and Restated Certificate of Incorporation, as amended, includes
a provision that eliminates the personal liability of its directors for monetary
damages for breach or alleged breach of their duty of care. In addition, the
Delaware General Corporation Law and Go2Net's Amended and Restated By-laws
provide for indemnification of Go2Net's directors and officers for liabilities
and expenses that they may incur in such capacities. In general, directors and
officers are indemnified with respect to actions taken in good faith in a manner
reasonably believed to be in, or not opposed to, the best interests of Go2Net,
and with respect to any criminal action or proceeding, actions that the
indemnitee has no reasonable choice to believe were unlawful.
Go2Net has purchased insurance with respect to, among other things, the
liabilities that may arise under the provisions referred to above. The directors
and officers of the Company also are insured against certain liabilities,
including certain liabilities arising under the Securities Act of 1933, as
amended, which might be incurred by them in such capacities and against which
they are not indemnified by Go2Net.
Item 7. Exemption from Registration Claimed
Inapplicable.
Item 8. Exhibits
Number Description
4.1 Go2Net, Inc. 2000 Stock Option Plan
4.2 Restated Certificate of Incorporation of Go2Net, Inc.
4.3 Certificate of Designation of Series A Convertible Preferred Stock of
Go2Net, Inc. (*)
4.4 Amended and Restated By-Laws of Go2Net, Inc. (**)
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation ("HWD"), as to legality of shares being
registered and consent of HWD.
23.1 Consent of KPMG LLP, Independent Auditors
23.2 Consent of HWD (included in Exhibit 5.1)
24.1 Powers of Attorney (included on page S-1)
* Incorporated by reference to Exhibit 3.1 to Go2Net, Inc.'s Form 8-K filed with
the Commission on April 12, 1999.
** Incorporated by reference to Exhibit 3.3 to
Go2Net, Inc.'s Registration Statement on Form S-1 filed with the Commission on
December 31, 1996.
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
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 this Registration
Statement or any material change to such information in this
Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes, that, insofar as
indemnification for liabilities arising under the Securities Act of 1933 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 of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Seattle, Washington on April 27, 2000.
GO2NET, INC.
By: /s/ Russell C. Horowitz
Russell C. Horowitz
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Russell C. Horowitz his true and lawful
attorney-in- fact and agent, with full power of substitution and resubstitution,
for him or in his name, place and stead, in any and all capacities to sign any
and all amendments or post-effective amendments to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agents, full power and authority to do and perform
each and every act and thing requisite or 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 attorney-in-fact and
agent, or his 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>
Director, Chief Executive Officer and Chief
/s/ Russell C. Horowitz Financial Officer(principal executive officer
Russell C. Horowitz and accounting officer) April 27, 2000
/s/ William D. Savoy
William D. Savoy Director April 27, 2000
/s/ Diane Daggatt Director April 27, 2000
Diane Daggatt
/s/ Dennis Cline
Dennis Cline Director April 27, 2000
/s/ William A. Fleckenstein Director April 27, 2000
William A. Fleckenstein
</TABLE>
S-1
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
GO2NET, INC.
(Exact name of registrant as specified in its charter)
EXHIBIT 4.1
Go2Net, Inc.
2000 STOCK OPTION PLAN
1. Purpose of the Plan.
-------------------
This stock option plan (the "Plan") is intended to provide incentives:
(a) to the officers and other employees of Go2Net, Inc. (the "Company") and any
present or future subsidiary corporations of the Company by providing them with
opportunities to purchase stock in the Company pursuant to options granted
hereunder which qualify as "incentive stock options" under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") ("ISO" or "ISOs"); and
(b) to officers, employees, directors, independent contractors, advisers, and
consultants of the Company and any present or future subsidiaries or other
entities designated by the Board of Directors of the Company in which the
Company has a material business interest by providing them with opportunities to
purchase stock in the Company pursuant to options granted hereunder which do not
qualify as ISOs ("Non-Qualified Option" or "Non-Qualified Options").
2. Stock Subject to the Plan.
-------------------------
(a) The total number of shares of the authorized but unissued shares of
the common stock, $.01 par value, of the Company ("Common Stock") for which
options may be granted under the Plan shall not exceed 6,000,000 shares, plus an
annual increase to be added on October 1st of each year equal to five percent
(5%) of the outstanding Common Stock (including for this purpose any shares of
Common Stock issuable on conversion of any outstanding preferred stock of the
Company) on such date; provided, however, that notwithstanding the foregoing,
the total number of shares of Common Stock for which options designated as ISOs
may be granted under the Plan shall not exceed 10,000,000 shares, in each case
subject to adjustment as provided in Section 11 hereof.
(b) If an option granted hereunder shall expire or terminate for any
reason without having been exercised in full, or an option shall be cancelled or
settled in cash, the unpurchased shares subject thereto shall again be available
for subsequent option grants under the Plan.
(c) Stock issuable upon exercise of an option granted under the Plan
may be subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Committee (as defined in Section 3
below).
3. Administration of the Plan.
--------------------------
(a) The Plan shall be administered by a committee (the "Committee")
consisting of two or more members of the Company's Board of Directors. The Board
of Directors may from time to time appoint a member or members of the Committee
in substitution for or in addition to the member or members then in office and
may fill vacancies on the Committee however caused. The Committee shall choose
one of its members as Chairman and shall hold meetings at such times and places
as it shall deem advisable. A majority of the members of the Committee shall
constitute a quorum and any action may be taken by a majority of those present
and voting at any meeting. Any action may also be taken without the necessity of
a meeting by a written instrument signed by a majority of the Committee. The
decision of the Committee as to all questions of interpretation and application
of the Plan shall be final, binding and conclusive on all persons. The Committee
shall have the authority to adopt, amend and rescind such rules and regulations
as, in its opinion, may be advisable in the administration of the Plan. The
Committee may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Option Agreement (as defined in Section 5)
in the manner and to the extent it shall deem expedient to carry the Plan into
effect and shall be the sole and final judge of such expediency. No Committee
member shall be liable for any action or determination made in good faith.
(b) Subject to the terms of the Plan, the Committee shall have the
authority to (i) determine the employees of the Company and its subsidiary
corporations (from among the class of employees eligible under Section 4 to
receive ISOs) to whom ISOs may be granted, and to determine (from the class of
individuals eligible under Section 4 to receive Non-Qualified Options) to whom
Non-Qualified Options may be granted; (ii) determine the time or times at which
options may be granted; (iii) determine the option price of shares subject to
each option which price shall not be less than the minimum price specified in
Section 6; (iv) determine whether each option granted shall be an ISO or a
Non-Qualified Option; (v) determine (subject to Section 9) the time or times
when each option shall become exercisable and the duration of the exercise
period; (vi) determine whether restrictions such as repurchase options are to be
imposed on the shares subject to options and the nature of such restrictions,
and (vii) determine the terms and conditions of the Option Agreement as
described in Section 5.
4. Eligibility.
-----------
Options designated as ISOs may be granted only to officers and other
employees of the Company or any "subsidiary corporation" as defined in Section
424 of the Code. Non-Qualified Options may be granted to any officer, employee,
director, independent contractor, adviser, or consultant of the Company or of
any of its subsidiaries or "designated entities" (as described in Section 1).
Non-Qualified Options may be granted to an individual in connection with the
hiring or engagement of the individual prior to the date that the individual
first performs services for the Company, any subsidiary, or designated entity.
No option designated as an ISO shall be granted to any employee of the
Company or any subsidiary corporation if such employee owns, immediately prior
to the grant of an option, stock representing more than 10% of the voting power
or more than 10% of the value of all classes of stock of the Company or a
"parent corporation" (as defined in Section 424 of the Code) or a subsidiary
corporation, unless the purchase price for the stock under such option shall be
at least 110% of its fair market value at the time such option is granted and
the option, by its terms, shall not be exercisable more than five years from the
date it is granted. In determining the stock ownership under this paragraph, the
provisions of Section 424(d) of the Code shall be controlling. In determining
the fair market value under this paragraph, the provisions of Section 6 hereof
shall apply.
The maximum number of shares of Common Stock with respect to which an
option or options may be granted to any individual under the Plan in any one
calendar year shall not exceed 1,000,000 shares of Common Stock, taking into
account shares under options that are granted during such calendar year and also
terminated in such calendar year, subject to adjustment as provided in Section
11.
5. Option Agreement.
----------------
Each option shall be evidenced by an option agreement (the "Option
Agreement") between the Company and the optionee to whom such option is granted,
which Option Agreement shall comply with and be subject to the terms and
conditions of the Plan. The Option Agreement may contain such other terms,
provisions and conditions which are not inconsistent with the Plan as may be
determined by the Committee. By way of illustration and not limitation, the
Committee may include in the Option Agreement of all or any option holders
provisions to address special circumstances such as termination of employment by
the Company for cause, change in status from employee to consultant, forfeiture
of option gains for competition or other activities materially detrimental to
the interests of the Company, beneficiary designations, reduction in hours from
full-time employment, and paid and unpaid leaves of absence. The date of grant
of an option shall be as determined by the Committee. More than one option may
be granted to an individual.
6. Option Price.
------------
The option price or prices of shares of the Company's Common Stock for
options designated as Non-Qualified Options shall be as determined by the
Committee, but in no event shall the option price be less than the minimum legal
consideration required therefor under the laws of the State of Delaware or the
laws of any jurisdiction in which the Company or its successors in interest may
be organized. The option price or prices of shares of the Company's Common Stock
for ISOs shall be the fair market value of such Common Stock at the time the
option is granted as determined by the Committee.
7. Manner of Payment; Manner of Exercise.
-------------------------------------
(a) Options granted under the Plan may provide for the payment of the
exercise price by delivery of (i) cash or a check payable to the order of the
Company in an amount equal to the exercise price of such options, (ii) shares of
Common Stock of the Company owned by the optionee having a fair market value
equal in amount to the exercise price of the options being exercised, or (iii)
any combination of (i) and (ii) provided, however, that payment of the exercise
price by delivery of shares of Common Stock of the Company owned by such
optionee may be made only under such circumstances and on such terms as may from
time to time be established by the Committee and reflected in the Option
Agreements. The fair market value of any shares of the Company's Common Stock
which may be delivered upon exercise of an option shall be determined by the
Committee in accordance with Section 6 hereof. With the consent of the Committee
and reflected in the Option Agreements, payment may also be made by delivery of
a properly executed exercise notice to the Company, together with a copy of
irrevocable instruments to a broker to deliver promptly to the Company the
amount of sale or loan proceeds to pay the exercise price. To facilitate the
foregoing, the Company may enter into agreements for coordinated procedures with
one or more brokerage firms.
(b) To the extent that the right to purchase shares under an option has
accrued and is in effect, options may be exercised in full at one time or in
part from time to time, by giving written notice, signed by the person or
persons exercising the option, to the Company, stating the number of shares with
respect to which the option is being exercised, accompanied by payment in full
for such shares as provided in paragraph (a) above. Upon such exercise, delivery
of a certificate for paid-up non-assessable shares shall be made at the
principal office of the Company to the person or persons exercising the option
at such time, during ordinary business hours, after ten business days from the
date of receipt of the notice by the Company, as shall be designated in such
notice, or at such time, place and manner as may be agreed upon by the Company
and the person or persons exercising the option.
8. Exercise of Options.
-------------------
Subject to the provisions of Sections 9 through 11, each option granted
under the Plan shall be exercisable as follows:
(a) Vesting. The option shall either be fully exercisable on the date
of grant or shall become exercisable thereafter in such installments as the
Committee may specify.
(b) Full Vesting of Installments. Once an installment becomes
----------------------------
exercisable it shall remain exercisable until expirationor termination of the
option, unless otherwise specified by the Committee.
(c) Partial Exercise. Each option or installment may be
----------------
exercised at any time or from time to time, in whole or inpart, for up to the
total number of shares with respect to which it is then exercisable.
(d) Acceleration of Vesting. The Committee shall have the right to
accelerate the date of exercise of any installment or any option; provided,
however, that the Committee shall not (except as otherwise permitted under
Section 11), without the consent of an optionee, accelerate the exercise date of
any installment of any option granted to any employee as an ISO if such
acceleration would violate the annual vesting limitation contained in Section
422(d) of the Code.
9. Term of Options: Exercisability.
--------------------------------
(a) Term. Each option shall expire not more than ten (10)
years from the date of the granting thereof, but shall be subject to earlier
termination as provided in the Option Agreement.
(b) Exercisability. Except as otherwise provided in the
Option Agreement, an option granted to an employee optionee who ceases to be an
employee of the Company or one of its subsidiaries shall be exercisable only to
the extent that the right to purchase shares under such option has accrued and
is in effect on the date such optionee ceases to be an employee of the Company
or one of its subsidiaries.
10. Options Not Transferable. The right of any optionee to exercise any
option granted to him or her shall not be assignable or transferable by such
optionee otherwise than by will or the laws of descent and distribution, or
pursuant to a domestic relations order, and any such option shall be exercisable
during the lifetime of such optionee only by him; provided, however, that the
Committee may permit the further transferability on a general or specific basis
and may impose conditions and limitations on any permitted transferee. Any
option granted under the Plan shall be null and void and without effect upon the
bankruptcy of the optionee to whom the option is granted, or upon any attempted
assignment or transfer, except as herein provided, including without limitation
any purported assignment, whether voluntary or by operation of law, pledge,
hypothecation or other disposition, attachment, divorce, except as provided
above with respect to Non-Qualified Options, trustee process or similar process,
whether legal or equitable, upon such option.
11. Adjustments. Upon the occurrence of any of the following
-----------
events, an optionee's rights with respect to optionsgranted to him or her
hereunder shall be adjusted as hereinafter provided, unless otherwise
specifically provided in the written agreement between the optionee and the
Company relating to such option.
(a) Stock Dividends and Stock Splits. If the shares of Common Stock
shall be subdivided or combined into a greater or smaller number of shares or if
the Company shall issue any shares of Common Stock as a stock dividend on its
outstanding Common Stock, the number of shares of Common Stock deliverable upon
the exercise of options shall be appropriately increased or decreased
proportionately, and appropriate adjustments shall be made in the purchase price
per share to reflect such subdivision, combination or stock dividend.
(b) Consolidations or Mergers. If the Company is to be consolidated
with or acquired by another entity in a merger, sale of all or substantially all
of the Company's assets or otherwise (an "Acquisition"), the Committee or the
board of directors of any entity assuming the obligations of the Company
hereunder (the "Successor Board"), shall, as to outstanding options, either (i)
make appropriate provision for the continuation of such options by substituting
on an equitable basis for the shares then subject to such options the
consideration payable with respect to the outstanding shares of Common Stock in
connection with the Acquisition; or (ii) upon written notice to the optionees,
provide that all options must be exercised, to the extent then exercisable,
within a specified number of days of the date of such notice, at the end of
which period the options shall terminate; or (iii) terminate all options in
exchange for a cash payment equal to the excess of the fair market value of the
shares subject to such options (to the extent then exercisable) over the
exercise price thereof.
(c) Recapitalization or Reorganization. In the event of a
recapitalization or reorganization of the Company (other than a transaction
described in paragraph (b) above) pursuant to which securities of the Company or
of another corporation are issued with respect to the outstanding shares of
Common Stock, an optionee upon exercising an option shall be entitled to receive
for the purchase price paid upon such exercise the securities he would have
received if he had exercised his option prior to such recapitalization or
reorganization.
(d) Modification of ISOs. Notwithstanding the foregoing, any
adjustments made pursuant to paragraphs (a), (b) or (c) with respect to ISOs
shall be made only after the Committee, after consulting with counsel for the
Company, determines whether such adjustments would constitute a "modification"
of such ISOs (as that term is defined in Section 424 of the Code) or would cause
any adverse tax consequences for the holders of such ISOs. If the Committee
determines that such adjustments made with respect to ISOs would constitute a
modification of such ISOs, it may refrain from making such adjustments.
(e) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, each option will terminate
immediately prior to the consummation of such proposed action or at such other
time and subject to such other conditions as shall be determined by the
Committee.
(f) Issuances of Securities. 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
subject to options. No adjustments shall be made for dividends paid in cash or
in property other than securities of the Company.
(g) Fractional Shares. No fractional shares shall be issued under
-----------------
the Plan and the optionee shall receive from the Company cash in lieu of such
fractional shares.
(h) Adjustments. Upon the happening of any of the events described in
paragraphs (a), (b) or (c) above, the class and aggregate number of shares set
forth in Section 2 hereof that are subject to options which previously have been
or subsequently may be granted under the Plan shall also be appropriately
adjusted to reflect the events described in such subparagraphs. The Committee or
the Successor Board shall determine the specific adjustments to be made under
this Section 11 and, subject to Section 3, its determination shall be
conclusive.
If any person or entity owning restricted Common Stock obtained by
exercise of an option made hereunder receives shares or securities or cash in
connection with a corporate transaction described in paragraphs (a), (b) or (c)
above as a result of owning such restricted Common Stock, such shares or
securities or cash shall be subject to all of the conditions and restrictions
applicable to the restricted Common Stock with respect to which such shares or
securities or cash were issued, unless otherwise determined by the Committee or
the Successor Board.
12. No Special Employment Rights.
----------------------------
Nothing contained in the Plan or in any option granted under the Plan
shall confer upon any option holder any right with respect to the continuation
of his employment by the Company (or any subsidiary) or interfere in any way
with the right of the Company (or any subsidiary), subject to the terms of any
separate employment agreement to the contrary, at any time to terminate such
employment or to increase or decrease the compensation of the option holder from
the rate in existence at the time of the grant of an option. Whether an
authorized leave of absence, or absence in military or government service, shall
constitute termination of employment shall be determined by the Committee at the
time.
13. Withholding.
-----------
The Company's obligation to deliver shares or provide any benefits
under this Plan shall be subject to the option holder's satisfaction of all
applicable income, employment, and excise tax withholding requirements of all
applicable jurisdictions. With the approval of the Committee, which it shall
have sole discretion to grant, and on such terms and conditions as the Committee
may impose, the option holder may satisfy the foregoing condition by electing to
have the Company withhold from delivery shares having a value equal to the
amount of tax to be withheld. The Committee shall also have the right to require
that shares be withheld from delivery to satisfy such condition.
14. Restrictions on Issue of Shares.
-------------------------------
(a) Notwithstanding the provisions of Section 7, the Company may delay
the issuance of shares covered by the exercise of an option and the delivery of
a certificate for such shares until the delivery or distribution of any shares
issued under this Plan complies with all applicable laws (including without
limitation, the Securities Act of 1933, as amended), and with the applicable
rules of any stock exchange upon which the shares of the Company are listed or
traded.
(b) It is intended that all exercises of options shall be effective,
and the Company shall use its best efforts to bring about compliance with all
applicable legal and regulatory requirements within a reasonable time, except
that the Company shall be under no obligation to qualify shares or to cause a
registration statement or a post-effective amendment to any registration
statement to be prepared for the purpose of covering the issue of shares in
respect of which any option may be exercised, except as otherwise agreed to by
the Company in writing.
15. Loans.
-----
The Company may make loans to optionees to permit them to exercise
options. If loans are made, the requirements of all applicable Federal and state
laws and regulations regarding such loans must be met.
16. Modification of Outstanding Options.
-----------------------------------
The Committee may authorize the amendment of any outstanding option
with the consent of the optionee when and subject to such conditions as are
deemed to be in the best interests of the Company and in accordance with the
purposes of this Plan.
17. Approval of Shareholders.
------------------------
The Plan shall be subject to approval by the vote of shareholders
holding at least a majority of the voting stock of the Company voting in person
or by proxy at a duly held shareholders' meeting, or by written consent of
stockholders holding at least a majority of the voting stock of the Company,
within twelve (12) months after the adoption of the Plan by the Board of
Directors and shall take effect as of the date of adoption by the Board of
Directors upon such approval. The Committee may grant options under the Plan
prior to such approval, but any such option shall become effective as of the
date of grant only upon such approval and, accordingly, no such option may be
exercisable prior to such approval.
18. Termination and Amendment.
-------------------------
Unless sooner terminated as herein provided, the Plan shall terminate
ten (10) years from the date upon which the Plan was duly adopted by the Board
of Directors of the Company. The Board of Directors may at any time terminate
the Plan or make such modification or amendment thereof as it deems advisable;
provided, however, that except as provided in this Section 18, the Board of
Directors may not terminate, modify, or amend the Plan without shareholder
approval if such shareholder approval is required by applicable law. The
Committee may terminate, amend, or modify any outstanding option without the
consent of the option holder, provided, however, that, except as provided in
Section 11, without the consent of the optionee, the Committee shall not change
the number of shares subject to an option, nor the exercise the price thereof,
nor extend the term of such option.
19. Reservation of Stock.
--------------------
The Company shall at all times during the term of the Plan reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of the Plan and shall pay all fees and expenses necessarily
incurred by the Company in connection therewith.
20. Limitation of Rights in the Option Shares.
-----------------------------------------
Any communication or notice required or permitted to be given under the
Plan shall be in writing, and mailed by registered or certified mail or
delivered by hand, if to the Company, to its principal place of business,
attention: President, and, if to an optionee, to the address as appearing on the
records of the Company.
Exhibit 4.2
RESTATED
CERTIFICATE OF INCORPORATION
OF
GO2NET, INC.
go2net, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY as follows:
The Corporation was originally incorporated under the name of
"GO2NET, INC." and the date of filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware was
February 12, 1996.
The Board of Directors of the Corporation, at a special
meeting held on April 21, 1998, duly adopted resolutions setting forth
the Restated Certificate of Incorporation herein contained, declaring
its advisability and directing that such Restated Certificate of
Incorporation be submitted to the holders of the issued and outstanding
Common Stock, $.01 par value, for approval in accordance with the
applicable provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware and the Corporation's Restated
Certificate of Incorporation. The Restated Certificate of Incorporation
was duly adopted, after having been declared advisable by the Board of
Directors of the Corporation, by at least a majority of the outstanding
shares of Common Stock, $.01 par value, of the Corporation, all in
accordance with the applicable provisions of Sections 228, 242 and 245
of the General Corporation Law of the State of Delaware and the
Corporation's Certificate of Incorporation, as previously amended.
The text of the Certificate of Incorporation of the
Corporation, as restated and amended (herein called the "Restated
Certificate of Incorporation") shall read in its entirety as follows:
FIRST: The name of the Corporation shall be:
-----
go2net, Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at 1209 Orange Street, in the City of Wilmington, State of
Delaware, and its registered agent at such address is The Corporation Trust
Company.
THIRD: The purpose or purposes of the Corporation shall be to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is:
51,000,000 shares, consisting of 50,000,000 shares of common
stock with $.01 par value per share (herein called the "Common
Stock"); and 1,000,000 shares of Preferred Stock with $.01 par
value per share (herein called the "Preferred Stock").
A description of the respective classes of stock and a statement of the
designations, preferences, voting powers (or special, preferential or no voting
powers), relative, participating, optional or other special rights and
privileges and the qualifications, limitations and restrictions of the Preferred
Stock and Common Stock are as follows:
A. COMMON STOCK
1. General. The voting, dividend and liquidation rights of the
holders of the Common Stock are subject to and qualified by the rights of
holders of the Preferred Stock.
2. Dividends. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor as and when determined by the
Board of Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
3. Dissolution, Liquidation or Winding Up. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, each issued and outstanding share of Common
Stock shall entitle the holder thereof to receive an equal portion of the net
assets of the Corporation available for distribution to holders of Common Stock,
subject to any preferential rights of any then outstanding Preferred Stock.
4. Voting Rights. Except as otherwise required by law or this Restated
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of stock held by him of record on the books of the
Corporation for the election of directors and on all matters submitted to a vote
of stockholders of the Corporation. There shall be no cumulative voting.
B. PREFERRED STOCK
The Preferred Stock may be issued in one or more series at such time or
times and for such consideration or considerations as the Board of Directors of
the Corporation may determine. Each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and classes.
Except as otherwise provided in this Restated Certificate of Incorporation,
different series of Preferred Stock shall not be construed to constitute
different classes of shares for the purpose of voting by classes.
The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the undesignated Preferred Stock in one or more
series, each with such designations, preferences, voting powers (or special,
preferential or no voting powers), relative, participating, optional or other
special rights and privileges and such qualifications, limitations or
restrictions thereof as shall be stated in the resolution or resolutions adopted
by the Board of Directors to create such series, and a certificate of said
resolution or resolutions shall be filed in accordance with the General
Corporation Law of the State of Delaware. The authority of the Board of
Directors with respect to each such series shall include, without limitation of
the foregoing, the right to provide that the shares of each such series may be:
(i) subject to redemption at such time or times and at such price or prices;
(ii) entitled to receive dividends (which may be cumulative or non-cumulative)
at such rates, on such conditions, and at such times, and payable in preference
to, or in such relation to, the dividends payable on any other class or classes
or any other series; (iii) entitled to such rights upon the dissolution of, or
upon any distribution of the assets of, the Corporation; (iv) convertible into,
or exchangeable for, shares of any other class or classes of stock, or of any
other series of the same or any other class or classes of the Corporation at
such price or prices or at such rates of exchange and with such adjustments, if
any; (v) entitled to the benefit of such limitations, if any, on the issuance of
additional shares of such series or shares of any other series of Preferred
Stock; or (vi) entitled to such other preferences, powers, qualifications,
rights and privileges, all as the Board of Directors may deem advisable and as
are not inconsistent with law and the provisions of this Restated Certificate of
Incorporation.
FIFTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, to
be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
the Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
SIXTH: The Corporation hereby affirmatively elects in this Restated
Certificate of Incorporation to be governed by Section 203 of the General
Corporation Law of Delaware.
SEVENTH: No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director notwithstanding any provision of law imposing such liability;
provided that, to the extent provided by applicable law, this provision shall
not eliminate the liability of a director (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director occurring
prior to such amendment or repeal.
EIGHTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware:
A. The Board of Directors of the Corporation is expressly
authorized to adopt, amend, or repeal the By-laws of the Corporation.
B. Elections of directors need not be by written ballot unless
the By-laws of the Corporation shall so provide.
C. The books of the Corporation may be kept at such place within or
without the State of Delaware as the By-laws of the Corporation may provide or
as may be designated from time to time by the Board of Directors of the
Corporation.
* * * * *
IN WITNESS WHEREOF, go2net, Inc. has caused its corporate seal to be
hereunto affixed and this Restated Certificate of Incorporation to be signed by
its President, Russell C. Horowitz, who hereby acknowledges under penalties of
perjury that the facts herein stated are true and that this Restated Certificate
of Incorporation is his act and deed, and attested by its Secretary, Ethan
Caldwell, as of the 23rd day of June, 1998.
go2net, Inc.
By: /s/ Russell C. Horowitz
Russell C. Horowitz
President
ATTEST:
By: /s/ Ethan Caldwell
Ethan Caldwell
Secretary
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
GO2NET, INC.
Go2Net, Inc., a corporation duly organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), hereby
certifies:
FIRST: That the Board of Directors of the Corporation, by the unanimous
written consent of its members, filed with the minutes of the Board, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation of the Corporation:
RESOLVED: That the first paragraph of Article Fourth of the
Certificate of Incorporation of the Corporation be
and it hereby is deleted in its entirety and a new
first paragraph of Article Fourth be inserted in
lieu thereof to read as follows:
"FOURTH: The total number of shares of all classes of
capital stock which the Corporation shall have
authority to issue is 500,000,000 shares,
consisting of 499,000,000 shares of common stock
with a par value of $.01 per share (herein called
the "Common Stock"), and 1,000,000 shares of
Preferred Stock with a par value of $.01 per share
(herein called the "Preferred Stock").
SECOND: That in accordance with the provisions of Section 212 of the
General Corporation Law of the State of Delaware, the stockholders have
approved said amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 212 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed on its behalf by Russell C. Horowitz, its Chief Executive Officer as of
this 17th day of June, 1999.
GO2NET, INC.
By: /s/ Russell C. Horowitz
Russell C. Horowitz, Chief Executive Officer
EXHIBIT 5.1
April 27, 2000
Go2Net, Inc.
999 Third Avenue
Suite 4700
Seattle, Washington 98104
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Go2Net, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") on or about April 27, 2000
in connection with the registration under the Securities Act of 1933, as
amended, of a total of 6,000,000 shares of the Company's Common Stock reserved
for issuance under the Company's 2000 Stock Option Plan. As the Company's legal
counsel in connection with the Registration Statement, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
the Company in connection with the sale and issuance of the foregoing shares
under the 2000 Stock Option Plan (the "Shares").
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares, when
issued and sold in the manner described in the Registration Statement, will be
legally and validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the caption "Interests
of Named Experts and Counsel" in the Registration Statement, including the
Prospectus constituting a part thereof, and in any amendment thereto.
Very truly yours,
/s/ Hutchins, Wheeler & Dittmar
HUTCHINS, WHEELER & DITTMAR,
A Professional Corporation
EXHIBIT 23.1
CONSENT OF KPMG LLP, INDEPENDENT AUDITORS
The Board of Directors
Go2Net, Inc.:
We consent to the use of our report dated December 17, 1999 relating to
the consolidated financial statements of Go2Net, Inc. incorporated herein by
reference.
We also consent to the use of our report dated December 15, 1999
relating to the financial statements of FreeYellow.com, Inc. incorporated herein
by reference from the Go2Net, Inc. Form 8-K/A filed on January 4, 2000 and
January 10, 2000.
/s/KPMG LLP
Seattle, Washington
April 27, 2000
