As filed with the Securities and
Exchange Commission on August __, 1999 Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
UBARTER.COM INC.
(Exact name of Registrant as specified in its charter)
Nevada 91-1739746
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization)
21400 International Blvd., Suite 207
Seattle, Washington 98198
(206) 870-9290
Address of Principal Executive Offices
Stock Option Grant to Astra Ventures, LLC
Stock Option Grant to Kevin Andersen
1998 Stock Option Plan
(Full titles of the plans)
Steven White
c/o Ubarter.com Inc.
21400 International Blvd., Suite 207
Seattle, Washington 98198
(Name and address of agent for service)
(206) 870-9290
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
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Title of Each Class of Amount to Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Securities to be Registered(1) be Registered Price Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Shares subject to 630,000 shares $11.11(2) $7,000,000 $1,946
outstanding options under the
Astra Ventures, LLC Grant
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Common Shares subject to 40,000 shares $0.8125 $ 32,500 $ 10
outstanding options under the
Kevin Andersen Grant
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Common Shares subject to 528,000 shares $2.25(3) $1,188,000 $ 330
outstanding options under the
Plan
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Common Shares not subject to 627,040 shares $3.22(4) $2,019,069 $ 562
outstanding options under the
Plan
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Total 1,825,040 shares $10,239,569 $2,848
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</TABLE>
(1) Common Shares, with a par value of $0.001 per share, offered by the Company
pursuant to the Plans described herein.
(2) Based on the average exercise price of options granted under the Stock
Option Grant to Astra Ventures, LLC outstanding as of the date of the
filing of this registration statement.
(3) Based on the average exercise price of options granted under the 1998 Stock
Option Plan outstanding as of the date of the filing of this registration
statement.
(4) The proposed maximum offering price per share and the registration fee were
calculated in accordance with rule 457(c) and (h) based on the average high
and low prices for the Registrant's common shares on July 23, 1999, as
quoted on the National Association of Securities Dealer Over-The-Counter
Bulletin Board, which was US$3.22 per share.
Page 1 of ____ pages. Exhibit
Index begins at page ________.
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<PAGE>
This registration statement on Form S-8 registers common shares, with a par
value of $0.001 per share, of Ubarter.com, Inc. (the "Registrant") to be issued
pursuant to the exercise of options or rights granted under the Stock Option
Grant to Astra Ventures, LLC, Stock Option Grant to Kevin Andersen and the
Registrant's 1998 Stock Option Plan.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a) through (c) below are incorporated by reference in
this registration statement.
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act filed on July 12, 1999 for the fiscal year
ended March 31, 1999, as amended on July 29, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
incorporated by reference herein pursuant to (a) above.
(c) The description of the Registrant's securities contained in the
Registrant's registration statement on Form SB-2 filed with the Securities
and Exchange Commission on January 29, 1999, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Named Experts and Counsel.
None
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation and the By-laws of the Registrant provide that,
subject to the Nevada Business Corporation Act (the "NBCA"), the Registrant
shall indemnify a director or officer of the Registrant, a former director or
officer of the Registrant or a person who acts or acted at the Registrant's
request as a director or officer of a body corporate of which the Registrant is
or was a shareholder or creditor, and his heirs and legal representatives,
against all costs, charges and expenses reasonably incurred by him in respect of
certain actions or proceedings to which he is made a party by reason of his
office, if he meets certain specified standards of conduct and shall also
indemnify any such person in such circumstances as the NBCA or law permits or
requires.
Under the NBCA, except in respect of an action by or on behalf of the Registrant
to procure a judgment in its favor, the Registrant may indemnify a present or
former director or officer or a person who acts or acted at the Company's
request as a director or officer of another corporation of which the Registrant
is or was a shareholder or creditor, and his heirs and legal representatives,
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by him in respect to any
civil, criminal or administrative action or proceeding to which he is made a
party by reason of his position with the Registrant and provided that the
director or officer acted honestly and in good faith with a view to the best
interests of the Registrant, and, in the case of a criminal, or administrative
action or proceeding that is enforced by a monetary penalty, has reasonable
grounds for believing that his conduct was lawful. Such indemnification may be
made in connection with a derivative action only with court approval. A director
or officer is entitled to indemnification from the Registrant as a matter of
right if he was substantially successful on the merits and fulfilled the
conditions set forth above.
The Registrant maintains Directors' and Officers' Liability Insurance for its
Directors.
II-1
<PAGE>
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
Exhibit Number Exhibit
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4.1 Stock Option Grant to Astra Ventures, LLC
4.2 Stock Option Grant to Kevin Andersen
4.3 1998 Stock Option Plan
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Moss Adams
23.3 Consent of Dorsey & Whitney LLP (Included in
Exhibit 5.1)
24.1 Power of Attorney (See page II-5 of this
registration statement)
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 and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
change in volume and price represents no more than 20% 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
II-2
<PAGE>
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.
(h) 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
Signatures
The Registrant. 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 the City of Seattle, State of Washington, on this 20th day
of August, 1999.
UBARTER.COM INC.
By: /s/ Steven White
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Steven White, Chief Executive Officer
II-4
<PAGE>
Power of Attorney
Each person whose signature appears below constitutes and appoints Steven
White and Kevin Anderson, or any of them, his attorney-in-fact, with the power
of substitution, for them in any and all capacities, to sign any amendments to
this registration statement, and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorneys-in-fact, or
their substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Steven White
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Steven White Chairman of the Board, Chief August 20, 1999
Executive Officer and Director
(Principal Executive Officer)
/s/ Kevin R. Andersen
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Kevin R. Andersen Chief Financial Officer August 20, 1999
(Principal Financial Officer
and Accounting Officer)
/s/ Alan Zimmelman
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Alan Zimmelman Director August 20, 1999
/s/ Richard Mayer
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Richard Mayer Director August 20, 1999
/s/ Glen T. White
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Glen T. White Director August 20, 1999
II-5
<PAGE>
Exhibit index
Exhibit Number Exhibit Page
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4.1 Stock Option Grant to Astra Ventures, LLC
4.2 Stock Option Grant to Kevin Andersen
4.3 1998 Stock Option Plan
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Moss Adams
23.2 Consent of Dorsey & Whitney LLP
(Included in Exhibit 5.1)
II-6
EXHIBIT 4.1
UBARTER.COM INC.
STOCK OPTION AGREEMENT
This Agreement (this "Agreement") is made this 26th day of July, 1999, by
and between Ubarter.com Inc., a Nevada corporation ("Ubarter.com"), and Astra
Ventures LLC ("Astra").
WITNESSETH, THAT:
WHEREAS, pursuant to an Amended and Restated Consulting Agreement (the
"Consulting Agreement") dated as of April 19, 1999 between Ubarter.com and
Astra, Ubarter.com agreed to grant stock options to Astra.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Grant of Option
(a) Ubarter.com granted to Astra, on October 1, 1998, the right and option
(hereinafter called "this option") to purchase all or any part of an aggregate
of 630,000 shares of Common Stock, par value $0.001 per share, at the prices per
share and on the terms and conditions set forth below:
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Number of Exercise Price
Options Per Share
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50,000 $ 4.00
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40,000 6.00
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60,000 8.00
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80,000 10.00
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160,000 12.00
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240,000 14.00
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This option is not intended to be an incentive stock option within the meaning
of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
(b) This option is subject to the anti-dilution provision set forth
in Section 6(c) of the Consulting Agreement, which terms and
conditions are incorporated by reference and made a part of this
Agreement.
2. Duration and Exercisability
(a) This option may be exercised by Astra until October 1, 2003, at which
time this option shall terminate.
<PAGE>
(b) This option shall be exercisable only by Astra. This option shall not
be assignable or transferable by Astra, except as may be agreed to by
Ubarter.com.
3. Manner of Exercise
(a) This option can be exercised only by Astra by delivering within the
option period written notice to Ubarter.com at its principal office. The notice
shall state the number of shares as to which this option is being exercised and
be accompanied by payment in full of the option price for all shares designated
in the notice.
(b) Astra may pay the option price (i) by check (bank check or certified
check) or (ii) with the approval of Ubarter.com, by delivering to Ubarter.com
for cancellation shares of Ubarter.com's Common Stock having a Fair Market Value
(as defined below) on the date of exercise equal to the option price; provided,
however, that Astra shall not be entitled to tender shares of Ubarter.com's
Common Stock pursuant to successive, substantially simultaneous exercises of
this option or any other stock option of Ubarter.com.
(c) "Fair Market Value" shall be deemed to be, 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, or if the principal
market for the Common Stock is the over-the-counter market, including without
limitation Nasdaq NMS or Nasdaq SmallCap of the Nasdaq Stock Market, the NASD
Electronic Bulletin Board or over-the-counter, as the case may be, 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 immediately preceding the date of determination, as
reported in The Wall Street Journal or such other source as the Administrator
deems reliable; or (ii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
4. Miscellaneous
(a) This Agreement will not interfere in any way with the right of
Ubarter.com to terminate the Consulting Agreement in accordance with the terms
set forth therein. Astra shall have none of the rights of a shareholder with
respect to shares subject to this option until such shares shall have been
issued to Astra upon exercise of this option.
(b) The exercise of all or any part of this option shall only be effective
at such time as the sale of Common Stock pursuant to such exercise will not
violate any state or federal securities or other laws.
<PAGE>
(c) Ubarter.com shall at all times during the term of this option reserve
and keep available such number of shares as will be sufficient to satisfy the
requirements of this Agreement.
(d) This Agreement may not be amended, superseded, cancelled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the party waiving
compliance.
(e) This option shall be governed by the internal laws of the State of
Washington, without regard to any conflict of laws principles.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
UBARTER.COM INC.
By: /s/ Steven M. White
------------------------------------
Steven M. White
Chairman, President & Chief
Executive Officer
ASTRA VENTURES LLC
By: /s/ Liad Y. Meidar
------------------------------------
Liad Y. Meidar
President
EXHIBIT 4.2
INTERNATIONAL BARTER CORP.
STOCK OPTION AGREEMENT
Neither this option nor the underlying shares of common stock have been
registered under the Securities Act of 1933, as amended ("Securities Act"). This
option or the underlying common shares may not be sold or transferred unless:
(i) there is an effective registration covering the option or shares, as the
case may be, under the Securities Act and applicable states securities laws;
(ii) the Company first receives a letter from an attorney, acceptable to the
board of directors or its agents, stating that in the opinion of the attorney
the proposed transfer is exempt from registration under the Securities Act and
applicable states securities laws; or, (iii) the transfer is made pursuant to
rule 144 under the Securities Act.
BETWEEN:
Kevin Andersen
("Optionee")
AND
International Barter Corp. ("Company")
a Nevada corporation
1.0 RECITALS
1.1 The Company has adopted the 1998 Stock Option Plan ("Plan"),
incorporated herein by reference, that provides for the grant of options to
purchase shares of Common Stock ("Shares") of the Company. Unless otherwise
defined in this Agreement, the terms defined in the Plan shall have the same
defined meanings in this Agreement.
2.0 NOTICE OF GRANT
2.1 Optionee has been granted an option to purchase Shares of the Company,
subject to the terms and conditions of the Plan and this Option Agreement, as
follows:
Grant Number: 6
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Date of Grant: August 1, 1998
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Vesting Commencement Date: August 1, 1998
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Exercise Price per Share: $0.8125
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Total Number of Shares Granted: 40,000
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<PAGE>
Total Exercise Price: $32,500
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Type of Option: -- Incentive Stock Option
X Nonqualified Stock Option
Expiration Date: August 1, 2003
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Vesting Schedule: This Option may be exercised, in whole or in part, in
accordance with the following schedule: 100% of the Shares subject to the Option
shall immediately vest on the Vesting Commencement Date
Termination Period: This Option may be exercised for 90 days after Optionee
ceases to be a Service Provider. Upon the death or Disability of the Optionee,
this Option may be exercised for such longer period as provided in the Plan. In
no event shall this Option be exercised later than the Expiration Date as
provided above.
3.0 GRANT OF OPTION
3.1 Subject to the terms and conditions of the Plan and of this Agreement,
the Plan Administrators of the Company grant to the Optionee named above an
option ("Option") to purchase the number of Shares, as set forth above in
Section 2.0 entitled "Notice of Grant", at the exercise price per share set
forth above in Notice of Grant ("Exercise Price"). Subject to any mutual
amendments of the Plan, in the event of a conflict between the terms and
conditions of the Plan and the terms and conditions of this Agreement, the terms
and conditions of the Plan shall prevail.
3.2 If designated in the Notice of Grant as an Incentive Stock Option
("ISO"), this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code. However, if this Option is intended to be an Incentive
Stock Option, to the extent that it exceeds the $100,000 rule of Code Section
422(d) it shall be treated as a Nonqualified Stock Option ("NQO").
4.0 EXERCISE OF OPTION
4.1 Right to Exercise. This Option is exercisable during its term in
accordance with the Vesting Schedule set forth above in the Notice of Grant and
the applicable provisions of the Plan and this Option Agreement.
4.2 Method of Exercise. This Option is exercisable by delivery of an
exercise notice, in the form attached as Exhibit A ("Exercise Notice"), which
shall state the election to exercise the Option, the number of Shares in respect
of which the Option is being exercised ("Exercised Shares"), and such other
representations and agreements as may be required by the Company pursuant to the
provisions of the Plan. The Exercise Notice shall be completed by the Optionee
and delivered to the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of the fully
executed Exercise Notice accompanied by the aggregate Exercise Price.
2-
<PAGE>
5.0 COMPLIANCE WITH APPLICABLE LAW
5.1 No Shares shall be issued pursuant to the exercise of this Option
unless such issuance and exercise complies with applicable state or federal law,
including securities laws, corporate laws, the Code or any stock exchange or
quotation system. If the Plan Administrators at any time determine that
registration or qualification of the Shares or the Option under state or federal
law, or the consent approval of any governmental regulatory body is necessary or
desirable, then the Option may not be exercised, in whole or in part, until such
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Plan Administrators.
Assuming compliance, for income tax purposes the Exercised Shares shall be
considered transferred to the Optionee on the date the Option is exercised with
respect to such Exercised Shares.
5.2 If required by the Company at the time of any exercise of the Option
in order to comply with federal or state securities laws, as a condition to such
exercise, the Employee shall enter into an agreement with the Company in form
satisfactory to counsel for the Company by which the Employee: (i) shall
represent that the Shares are being acquired for the Employee's own account for
investment and not with a view to, or for sale in connection with, any resale or
distribution of such Shares; and, (ii) shall agree that if the Employee should
decide to sell, transfer, or otherwise dispose of any such Shares, the Employee
may do so only if the Shares are registered under the Securities Act and the
relevant state securities law, unless, in the opinion of counsel for the
Company, such registration is not required, or the transfer is pursuant to the
Securities and Exchange Commission Rule 144.
6.0 METHOD OF PAYMENT
6.1 Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) certified or cashier's check;
(c) consideration received by the Company under a cashless exercise
program implemented by the Company in connection with the Plan;
(d) with the Plan Administrator's consent, surrender of other Shares which
(i) in the case of Shares acquired upon exercise of an option, have been owned
by the Optionee for more than six (6) months on the date of surrender, and (ii)
have a Fair Market Value on the date of surrender equal to the aggregate
Exercise Price of the Exercised Shares; or
(e) with the Plan Administrator's consent, delivery of Optionee's
promissory note (the "Note") in the form approved by Plan Administrators, in the
amount of the aggregate Exercise Price of the Exercised Shares together with the
execution and delivery by the Optionee of a Security Agreement in the form
approved by Plan Administrators. The Note shall bear interest at the "applicable
federal rate" prescribed under the Code and its regulations at time of purchase,
and shall be secured by a pledge of the Shares purchased by the Note pursuant to
the Security Agreement.
3-
<PAGE>
7.0 NON-TRANSFERABILITY OF OPTION
7.1 This Option may not be transferred in any manner otherwise than by
will or by the laws of descent or distribution and may be exercised during the
lifetime of Optionee only by the Optionee. The terms of the Plan and this
Agreement shall be binding upon the executors, administrators, heirs, successors
and assigns of Optionee.
8.0 TERM OF OPTION
8.1 This Option may be exercised only within the term set forth above in
the Notice of Grant, and may be exercised during that term only in accordance
with the Plan and the terms of this Option Agreement.
9.0 TAX CONSEQUENCES
Some of the federal tax consequences relating to this Option, as of the
date of this Option, are set forth below. This summary is incomplete, and the
tax laws and regulations are subject to change. The optionee should consult a
tax adviser before exercising this option or disposing of the shares.
9.1 Exercising the Option.
9.1.1 Nonqualified Stock Option. The Optionee may incur regular federal
income tax liability upon exercise of a NQO. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates) equal
to the excess, if any, of the Fair Market value of the Exercised Shares on the
date of exercise over their aggregate Exercise Price. If the Optionee is an
Employee or a former Employee, the Company will be required to withhold from his
or her compensation or collect from Optionee and pay to the applicable taxing
authorities an amount in cash equal to a percentage of this compensation income
at the time of exercise, and may refuse to honor the exercise and refuse to
deliver Shares if these withholding amounts are not delivered at the time of
exercise.
9.1.2 Incentive Stock Option. If this Option qualifies as an ISO, the
Optionee will have no regular federal income tax liability upon its exercise,
although the excess, if any, of the Fair Market Value of the Exercised Shares on
the date of exercise over their aggregate Exercise Price will be treated as an
adjustment to alternative minimum taxable income for federal tax purposes and
may subject the Optionee to alternative minimum tax in the year of exercise. In
the event that the Optionee ceases to be an Employee but remains a Service
Provider, any Incentive Stock Option of the Optionee that remains unexercised
shall cease to qualify as an Incentive Stock Option and will be treated for tax
purposes as a Nonqualified Stock Option on the date three (3) months and one (1)
day following this change of status.
9.2 Disposition of Shares.
9.2.1 NQO. If the Optionee holds NQO Shares for at least one year, except
for that portion treated as compensation income at the time of exercise, any
gain realized on disposition of the Shares will be treated as long-term capital
gain for federal income tax purposes.
9.2.2 ISO. If the Optionee holds ISO Shares for at least one year after
exercise and two years after the grant date, any gain realized on disposition of
the Shares will be treated as
4-
<PAGE>
long-term capital gain for federal income tax purposes. If the Optionee disposes
of ISO Shares within one year after exercise or two years after the grant date,
any gain realized on such disposition will be treated as compensation income
(taxable at ordinary income rates) to the extent of the excess, if any, of the
lesser of (i) the difference between the Fair Market Value of the Shares
acquired on the date of exercise and the aggregate Exercise Price, or (ii) the
difference between the sale price of such Shares and the aggregate Exercise
Price. Any additional gain will be taxed as capital gain, short-term or
long-term depending on the period that the ISO Shares were held.
9.3 Notice of Disqualifying Disposition of ISO Shares. If the Optionee
sells or otherwise disposes of any of the Shares acquired pursuant to an ISO on
or before the later of (i) two years after the grant date, or (ii) one year
after the exercise date, the Optionee shall immediately notify the Company in
writing of the disposition. The Optionee agrees that he or she may be subject to
income tax withholding by the Company on the compensation income recognized from
such early disposition of ISO Shares by payment in cash or out of the current
earnings paid to the Optionee.
10.0 SHAREHOLDERS' AGREEMENT
10.1 Optionee acknowledges and agrees that whatever period determined
appropriate by the Company, underwriter, or federal and state regulatory
officials including, but not limited to, the Securities and Exchange Commission,
National Association of Securities Dealers and NASDAQ, following the effective
date of a registration statement of the Company covering common stock (or other
securities) of the Company to be sold on its behalf in an underwriting, Optionee
will not sell or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) Shares of the Company held by Optionee at any time
during such period except securities included in that registration.
10.2 Optionee acknowledges and agrees that if for purposes of a
registration statement of the Company the underwriter or federal or state
regulatory officials fix a specific Common Stock or Option lockup period, such
fixed lockup period shall apply to Optionee under this Agreement.
11.0 NO GUARANTEE OF CONTINUED SERVICE
11.1 Optionee acknowledges and agrees that the vesting of shares pursuant
to the vesting schedule set forth in this Agreement is earned only by continuing
as a Service Provider at the will of the Company, and not through the act of
being hired, being granted an option or purchasing shares under this Agreement.
Optionee further acknowledges and agrees that this Agreement, the transactions
contemplated and the vesting schedule set forth in it do not constitute an
express or implied promise of continued engagement as a Service Provider for the
vesting period, for any period, or at all, and shall not interfere with
Optionee's right or the Company's right to terminate Optionee's relationship as
a Service Provider at any time, with or without cause.
5-
<PAGE>
12.0 SIGNATURES
Dated August 1, 1998
-------------------------
International Barter Corp.
By: /s/ Steven White
---------------------------
Steven White
President/CEO
Optionee acknowledges and represents that he or she has received a copy of the
Plan, has reviewed the Plan and this Agreement in their entirety, is familiar
with its and fully understands its terms and provisions. Optionee accepts this
Option subject to all the terms and provisions of the Plan and this Agreement.
Optionee has had an opportunity to obtain the advice of counsel prior to
executing this Agreement. Optionee agrees to accept as binding, conclusive and
final all decisions or interpretations of the Plan Administrators upon any
questions arising under the Plan and Agreement. Optionee further agrees to
notify the Company upon any change in the residence address indicated on the
first page of this Agreement.
Dated August 1, 1998
-------------------------
OPTIONEE:
/s/ Kevin Andersen
- -------------------------
Signature
Kevin Andersen
- -------------------------
Print Name
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and approves the terms and
conditions of the Plan and this Agreement. In consideration of the Company's
granting his or her spouse the right to purchase Shares as set forth in the Plan
and this Agreement, the undersigned agrees to be irrevocably bound by the terms
and conditions of the Plan and this Option Agreement and further agrees that any
community property interest shall be similarly bound. The undersigned hereby
appoints the undersigned's spouse as attorney-in-fact for the undersigned with
respect to any amendment or exercise of rights under the Plan or this Agreement.
/s/ Debra Sue Andersen
- -------------------------
Spouse of Optionee
6-
EXHIBIT 5.1
DORSEY & WHITNEY LLP
Minneapolis Billings
New York U.S. Bank Centre Great Falls
Seattle 1420 Fifth Avenue, Suite 4200 Missoula
Denver Seattle, Washington 98101 Brussels
Washington D.C. Telephone: (206) 903-8800 Fargo
Des Moines Fax: (206) 903-8820 Hong Kong
Anchorage Rochester
London Salt Lake City
Costa Mesa Vancouver
August 13, 1999
Ubarter.com Inc.
21400 International Blvd., Suite 207
Seattle, Washington 98198
Re: Ubarter.com Inc.
Ladies and Gentlemen:
We are delivering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Ubarter.com Inc. (the
"Company") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, with respect to 1,825,040 shares of its
common stock ("Shares") issuable upon the exercise of options granted pursuant
to certain employees, officers, directors, consultants and service providers to
the Company, of which (i) 1,155,040 Shares are issuable upon the exercise of
options granted pursuant to the Company's 1998 Stock Option Plan (the "Plan") by
participants in the Plan (the "Participants"); (ii) 630,000 Shares are issuable
upon the exercise of options granted pursuant to a Stock Option Agreement by and
between the Company and Astra Ventures, LLC dated July 26, 1999 (the "Astra
Grant") to Astra Ventures, LLC; and (iii) 40,000 Shares are issuable upon the
exercise of options granted pursuant to a Stock Option Agreement by and between
the Company and Kevin Andersen dated August 1, 1998 (the "Andersen Grant")
(collectively, the "Option Grants").
We have examined such documents and have reviewed such questions of law as
we have considered necessary and appropriate for the purposes of our opinions
set forth below. In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
<PAGE>
Ubarter.com Inc.
August 13, 1999
Page 2
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company. We have also assumed that the
Shares will be sold in accordance with the terms and conditions set forth in the
Option Grants, as established by the authorizing resolutions adopted by the
Company's Board of Directors in accordance with such resolutions.
Based on the foregoing and having due regard for such legal questions as we
have deemed relevant, we are of the opinion that the Shares to be sold by the
Company have been duly authorized by all requisite corporate action and, upon
issuance, delivery and payment pursuant to the terms of (i) the Plan with
respect to the Participants, (ii) the Astra Grant with respect to Astra
Ventures, LLC, and (iii) the Andersen Grant with respect to Kevin Andersen, the
Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above.
Sincerely,
/s/ Dorsey & Whitney LLC
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Ubarter.com Inc. of our report dated June 18, 1999, which is
incorporated by reference in the Annual Report on Form 10-KSB of Ubarter.com
Inc. for the year ended March 31, 1999.
/s/ Moss Adams, LLP
Seattle, Washington
August 19, 1999
