As filed with the Securities and
Exchange Commission on September 1, 1999 Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
AMENDMENT NO. 1
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(5)
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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.
(5) Previously paid with original filing on August 20, 1999.
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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)
* Previously filed on August 20, 1999.
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 1st day
of September, 1999.
UBARTER.COM INC.
By: /s/ Steven White
-------------------------------------
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
- -----------------------
Steven White Chairman of the Board, Chief September 1, 1999
Executive Officer and Director
(Principal Executive Officer)
/s/ Kevin R. Andersen
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Kevin R. Andersen Chief Financial Officer September 1, 1999
(Principal Financial Officer
and Accounting Officer)
/s/ Alan Zimmelman
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Alan Zimmelman Director September 1, 1999
/s/ Richard Mayer
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Richard Mayer Director September 1, 1999
/s/ Glen T. White
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Glen T. White Director September 1, 1999
II-5
<PAGE>
Exhibit index
Exhibit Number Exhibit Page
- -------------- ------- ----
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)
* Previously filed on August 20, 1999.
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
---------------------------
Exercise Price per Share: $0.8125
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Total Number of Shares Granted: 40,000
---------------------------
1-
<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
---------------------------
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 4.3
INTERNATIONAL BARTER CORP.
1998 STOCK OPTION PLAN
This 1998 Stock Option Plan ("Plan") provides for the grant of options to
acquire shares of common stock, $0.001 par value ("Common Stock") of
International Barter Corp., a Nevada corporation ("Company"). Stock options
granted under this Plan are referred to in this Plan as "Options." Options that
qualify under Section 422 of the Internal Revenue Code of 1986, as amended
("Code"), are referred to in this Plan as "Incentive Stock Options." Options
granted under this Plan that do not qualify under Section 422 of the Code are
referred to as "Nonqualified Stock Options."
1.0 PURPOSES
1.1 The purposes of this Plan are (i) to retain the services of a management
team, qualified employees of the Company and non-employee advisors or
consultants as the Plan Administrators shall select in accordance with this
Plan; (ii) to retain the services of valued non-employee directors pursuant to
Section 5.15 below; (iii) to provide these persons with an opportunity to obtain
or increase a proprietary interest in the Company, to provide incentives for
effective service and high-level performance, to strengthen their incentive to
achieve the objectives of the shareholders of the Company; and (iv) to serve as
an aid and inducement in the hiring or recruitment of new employees,
consultants, non-employee directors and other persons needed for future
operations and growth of the Company. Employees, non-employee advisors and
consultants are referred to in this Plan as "Service Providers."
2.0 ADMINISTRATION
2.1 This Plan shall be administered by, or in accordance with the recommendation
of, the Board of Directors of the Company ("Board"). The Board may, in its
discretion, establish a committee composed of two or more members of the Board
to administer this Plan ("Committee") which may be an executive, compensation or
other committee, including a separate committee especially created for this
purpose. The Committee shall have the powers and authority as the Board may
delegate to it, including the power and authority to interpret any provision of
this Plan or of any Option. The members of the Committee shall serve at the
discretion of the Board. The Board, and/or the Committee if one has been
established by the Board, are referred to in this Plan as the "Plan
Administrators."
2.2 Following registration of any of the Company's securities under Section 12
of the Securities Exchange Act of 1934, as amended ("Exchange Act"), the Plan
Administrators shall not take any action which is not in full compliance with
the exemption from Section 16(b) of the Exchange Act provided by Rule 16b-3, as
amended, or any successor rule or rules, and any other rules or regulations of
the Securities and Exchange Commission, a national exchange, the Nasdaq Stock
Market, the NASD Bulletin Board, or any other applicable regulatory authorities,
and any such action shall be void and of no effect.
2.3 Except as limited by Section 5.15 below, and subject to the provisions of
this Plan, and with a view to effecting its purpose, the Plan Administrators
shall have sole authority, in their absolute
<PAGE>
discretion, to (i) construe and interpret this Plan; (ii) define the terms used
in this Plan; (iii) prescribe, amend and rescind rules and regulations relating
to this Plan; (iv) correct any defect, supply any omission or reconcile any
inconsistency in this Plan; (v) select the Service Providers to whom Options
shall be granted under this Plan and whether the Option is an Incentive Stock
Option or a Nonqualified Stock Option; (vi) determine the time or times at which
Options shall be granted under this Plan; (vii) determine the number of shares
of Common Stock subject to each Option, the exercise price of each Option, the
duration of each Option and the times at which each Option shall become
exercisable; (viii) determine all other terms and conditions of Options; (ix)
approve the forms of agreement to be used under the Plan; (x) to determine the
"Fair Market Value", as defined in Section 2.4 below; (xi) to reduce the
exercise price of any Option to the then current Fair Market Value if the Fair
Market Value of the Common Stock covered by the Option shall have declined since
the date the Option was granted; (xii) to institute a program whereby
outstanding options are surrendered in exchange for options with a lower
exercise price; (xiii) to allow Optionees to satisfy withholding tax obligations
by electing to have the Company withhold from the shares of Common Stock to be
issued upon exercise of an Option 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 Plan Administrators may deem necessary or advisable; (xiv) to authorize
any person to execute on behalf of the Company any instrument required to effect
the grant of an Option previously granted by the Plan Administrators; and (xv)
make all other determinations necessary or advisable for the administration of
this Plan. All decisions, determinations and interpretations made by the Plan
Administrators shall be binding and conclusive on all participants in this Plan
and on their legal representatives, heirs and beneficiaries. None of the Plan
Administrators shall be liable for any action taken or determination made in
good faith with respect to the Plan or any grant.
2.4 "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;
(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.
3.0 ELIGIBILITY
3.1 Incentive Stock Options may be granted to any individual who, at the time
the Option is granted, is an employee of the Company or any parent, subsidiary
or other corporation permitted by the Code, including employees who are
directors of the Company ("Employees"). Nonqualified Stock Options may be
granted to Service Providers as the Plan Administrators shall select, and to
non-employee directors of the Company pursuant to the formula set forth in
Section 5.15 below. Options may be granted in substitution for outstanding
Options of another
<PAGE>
corporation in connection with the merger, consolidation, acquisition of
property or stock or other reorganization between such other corporation and the
Company or any subsidiary of the Company. Options also may be granted in
exchange for outstanding Options. Any person to whom an Option is granted under
this Plan is referred to as an "Optionee."
4.0 NUMBER OF SHARES AVAILABLE
4.1 The Plan Administrators are authorized to grant Options to acquire up to a
total of 20% of the total number of outstanding shares of the Company's Common
Stock. The number of shares with respect to which Options may be granted
hereunder is subject to adjustment as set forth below in Section 5.14. If any
outstanding Option expires or is terminated for any reason, the shares of Common
Stock allocable to the unexercised portion of such Option may again be subject
to an Option to the same Optionee or to a different person eligible under this
Plan.
5.0 TERMS AND CONDITIONS OF OPTIONS
5.1 Each Option granted under this Plan shall be evidenced by a written
agreement approved by the Plan Administrators ("Agreement"). Agreements may
contain such additional provisions, not inconsistent with this Plan, as the Plan
Administrators in their discretion may deem advisable. All Options also shall
comply with the following requirements.
5.2 Number of Shares and Type of Option. Each Agreement shall state the number
of shares of Common Stock to which it pertains and designate whether the Option
is intended to be an Incentive Stock Option or a Nonqualified Stock Option. In
the absence of action or designation to the contrary by the Plan Administrators
in connection with the grant of an Option, all Options shall be Nonqualified
Stock Options. The aggregate Fair Market Value, determined at the Date of Grant,
as defined below, of the stock with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year, granted
under this Plan and all other Incentive Stock Option plans of the Company, a
related corporation or a predecessor corporation, shall not exceed $100,000, or
such other limit as may be prescribed by the Code as it may be amended from time
to time. Any Option which exceeds the annual limit shall not be void but rather
shall be a Nonqualified Stock Option.
5.3 Date of Grant. Each Agreement shall state the date the Plan Administrators
have deemed to be the effective date of the Option for purposes of, and in
accordance with, this Plan ("Date of Grant").
5.4 Option Price. Each Agreement shall state the price per share of Common Stock
at which it is exercisable. The exercise price shall be fixed by the Plan
Administrators at whatever price the Plan Administrators may determine in the
exercise of its sole discretion; provided, that the per share exercise price for
any Option granted following the effective date of registration of any of the
Company's securities under the Exchange Act shall not be less than the Fair
Market Value per share of the Common Stock at the Date of Grant as determined by
the Plan Administrators in good faith; and, provided further, that Incentive
Stock Options granted in substitution for outstanding Options of another
corporation in connection with the merger, consolidation, acquisition of
property or stock or other reorganization involving such other corporation and
the Company or any subsidiary of the Company may be granted with an exercise
price equal to the exercise price for the substituted Option of the other
corporation, subject to any adjustment consistent with the terms of the
transaction pursuant to which the substitution is to occur.
<PAGE>
5.5 Duration of Options. At the time of the grant of the Option, the Plan
Administrators shall designate, subject to paragraph 5.8 below, the expiration
date of the Option, which date shall not be later than 5 years from the Date of
Grant; provided, that the expiration date of any Incentive Stock Option granted
to a greater-than-10 percent shareholder of the Company (as determined with
reference to Section 424(d) of the Code) shall not be later than five years from
the Date of Grant. In the absence of action to the contrary by the Plan
Administrators in connection with the grant of a particular Option, and except
in the case of Incentive Stock Options as described above, all Options granted
under this Plan shall expire 5 years from the Date of Grant.
5.6 Vesting Schedule. No Option shall be exercisable until it has vested. The
vesting schedule for each Option shall be specified by the Plan Administrators
at the time of grant of the Option; provided, that if no vesting schedule is
specified at the time of grant or in the Agreement, the entire Option shall vest
according to the following schedule:
NUMBER OF YEARS FOLLOWING DATE OF GRANT and
PERCENTAGE OF TOTAL OPTION TO BE EXERCISABLE
After first twelve months 50%
After eighteen months 75%
After twenty-four months 100%
5.7 Acceleration of Vesting. The vesting of one or more outstanding Options may
be accelerated by the Plan Administrators at such times and in such amounts as
it shall determine in its sole discretion. The vesting of Options also shall be
accelerated under the circumstances described below in Section 5.14.
5.8 Term of Option.
5.8.1 Vested Options shall terminate, to the extent not previously exercised,
upon the occurrence of the first of the following events: (i) the expiration of
the Option, as designated by the Plan Administrators; (ii) the expiration of 90
days from the date of an Optionee's termination of employment, contractual or
director relationship with the Company or any Related Corporation for any reason
whatsoever other than death or Disability, as defined below, unless, in the case
of a Nonqualified Stock Option, the exercise period is otherwise defined by
terms of an agreement with Optionee entered into prior to the effective date of
the Plan, or the exercise period is extended by the Plan Administrators until a
date not later than the expiration date of the Option; or (iii) the expiration
of one year from (A) the date of death of the Optionee or (B) cessation of an
Optionee's employment, contractual or director relationship with the Company or
any Related Corporation by reason of Disability (as defined below) unless, in
the case of a Nonqualified Stock Option, the exercise period is extended by the
Plan Administrators until a date not later than the expiration date of the
Option. If an Optionee's employment, contractual or director relationship with
the Company or any Related Corporation is terminated by death, any Option held
by the Optionee shall be exercisable only by the person or persons to whom such
Optionee's rights under such Option shall pass by the Optionee's will or by the
laws of descent and distribution of the state or county of the Optionee's
domicile at the time of death. "Disability" shall mean that a person is unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of
not less than 12 months. The Plan Administrators shall determine whether an
Optionee has incurred a Disability on the basis of
<PAGE>
medical evidence acceptable to the Plan Administrators. Upon making a
determination of Disability, the Committee shall, for purposes of the Plan,
determine the date of an Optionee's termination of employment, contractual or
director relationship.
5.8.2 Unless accelerated as set forth above, unvested Options shall terminate
immediately upon termination of Optionee's employment, contractual or director
relationship with the Company or any Related Corporation for any reason
whatsoever, including death or Disability. If, in the case of an Incentive Stock
Option, an Optionee's relationship with the Company changes (e.g., from an
employee to a non-employee, such as a consultant, or a non-employee director),
such change shall not necessarily constitute a termination of an Optionee's
contractual relationship with the Company but rather the Optionee's Incentive
Stock Option shall automatically be converted into a Nonqualified Stock Option.
For purposes of this Plan, transfer of employment between or among the Company
and/or any Related Corporation shall not be deemed to constitute a termination
of employment with the Company or any Related Corporation. For purposes of this
subsection with respect to Incentive Stock Options, employment shall be deemed
to continue while the Optionee is on military leave, sick leave or other bona
fide leave of absence as determined by the Plan Administrators. The foregoing
notwithstanding, employment shall not be deemed to continue beyond the first 90
days of such leave, unless the Optionee's re-employment rights are guaranteed by
statute or by contract.
5.8.3 Unvested Options shall terminate immediately upon any material breach, as
determined by the Plan Administrators, by Optionee of any employment,
non-competition, non-disclosure or similar agreement by and between the Company
and Optionee.
5.9 Exercise of Options. Options shall be exercisable, either all or in part, at
any time after vesting, until the Option terminates for any reason set forth
under this Plan, unless the exercise period is extended by the Plan
Administrators until a date not later than the expiration date of the Option. If
less than all of the shares included in the vested portion of any Option are
purchased, the remainder may be purchased at any subsequent time prior to the
expiration of the Option term. No portion of any Option for less than fifty (50)
shares, as adjusted pursuant to Section 5.14 below, may be exercised; provided,
that if the vested portion of any Option is less than fifty (50) shares, it may
be exercised with respect to all shares for which it is vested. Only whole
shares may be issued pursuant to an Option, and to the extent that an Option
covers less than one share, it is unexercisable. Options or portions thereof may
be exercised by giving written notice to the Company, which notice shall specify
the number of shares to be purchased, and be accompanied by payment in the
amount of the aggregate exercise price for the Common Stock so purchased, which
payment shall be in the form specified in this Plan. The Company shall not be
obligated to issue, transfer or deliver a certificate of Common Stock to any
optionee, or to his personal representative, until the aggregate exercise price
has been paid for all shares for which the Option shall have been exercised and
adequate provision has been made by the Optionee for satisfaction of any tax
withholding obligations associated with such exercise. During the lifetime of an
Optionee, Options are exercisable only by the Optionee and those assigees
specified in Section 5.12 of this Plan.
5.10 Payment upon Exercise of Option. Upon the exercise of any Option, the
aggregate exercise price shall be paid to the Company in cash or by certified or
cashier's check. In addition, upon approval of the Plan Administrators, an
Optionee may pay for all or any portion of the aggregate exercise price by (i)
delivering to the Company shares of Common Stock previously held by Optionee
which have been owned by Optionee for more than six (6) months on the date of
surrender; (ii) having shares withheld from the amount of shares of Common Stock
to be received by the Optionee; (iii) delivery of an irrevocable subscription
agreement obligating the Optionee to
<PAGE>
take and pay for the shares of Common Stock to be purchased within one year of
the date of such exercise; (iv) consideration received by the Company under a
cashless exercise program implemented by the Company in connection with the
Plan; (v) 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; or (vi) such
other consideration and method of payment for the issuance of shares to the
extent permitted by Applicable Laws. The shares of Common Stock received or
withheld by the Company as payment for shares of Common Stock purchased upon the
exercise of Options shall have a Fair Market Value at the date of exercise (as
determined by the Plan Administrators) equal to the aggregate exercise price (or
portion thereof) to be paid by the Optionee upon such exercise.
5.11 Rights as a Shareholder. An Optionee shall have no rights as a shareholder
with respect to any shares covered by an Option until such Optionee becomes a
record holder of the shares, irrespective of whether such Optionee has given
notice of exercise. Subject to the provisions of Section 5.14 of this Plan, no
rights shall accrue to an Optionee and no adjustments shall be made on account
of dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights declared on, or created in, the
Common Stock for which the record date is prior to the date the Optionee becomes
a record holder of the shares of Common Stock covered by the Option,
irrespective of whether such Optionee has given notice of exercise.
5.12 Transfer of Option. Options granted under this Plan and the rights and
privileges conferred by this Plan may not be transferred, assigned, pledged or
hypothecated in any manner, whether by operation of law or otherwise, other than
by will, by applicable laws of descent and distribution or to family members,
entities owned by family members and trusts benefitting family members or, with
respect to Nonqualified Stock Options, pursuant to a domestic relations order,
and shall not be subject to execution, attachment or similar process. Upon any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of any
Option or of any right or privilege conferred by this Plan contrary to the
provisions hereof, or upon the sale, levy or any attachment or similar process
upon the rights and privileges conferred by this Plan, such Option shall
thereupon terminate and become null and void.
5.13 Securities Regulation and Tax Withholding.
5.13.1 Shares shall not be issued with respect to an Option unless the exercise
of such Option and the issuance and delivery of such shares shall comply with
all relevant provisions of law, including, without limitation, any applicable
state securities laws, the Securities Act of 1933, as amended, the Exchange Act,
the rules and regulations thereunder and the requirements of any stock exchange
upon which such shares may then be listed. The issuance shall be further subject
to the approval of counsel for the Company with respect to such compliance,
including the availability of an exemption from registration for the issuance
and sale of such shares. The inability of the Company to obtain from any
regulatory body the authority deemed by the Company to be necessary for the
lawful issuance and sale of any shares under this Plan, or the unavailability of
an exemption from registration for the issuance and sale of any shares under
this Plan, shall relieve the Company of any liability with respect to the
non-issuance or sale of such shares.
5.13.2 As a condition to the exercise of an Option, in order to comply with
federal or state securities laws the Plan Administrators may require the
Optionee to represent and warrant in writing at the time of such exercise that
the shares are being purchased only for investment and without any then-present
intention to sell or distribute such shares. At the option of the Plan
Administrators, a stop-transfer order against such shares may be placed on the
stock books and
<PAGE>
records of the Company, and a legend indicating that the stock may not be
pledged, sold or otherwise transferred unless an opinion of counsel is provided
stating that such transfer is not in violation of any applicable law or
regulation, may be stamped on the certificates representing such shares in order
to assure an exemption from registration. The Plan Administrators also may
require such other documentation as may from time to time be necessary to comply
with federal and state securities laws. THE COMPANY HAS NO OBLIGATION TO
UNDERTAKE REGISTRATION OF OPTIONS OR THE SHARES OF STOCK ISSUABLE UPON THE
EXERCISE OF OPTIONS.
5.13.3 As a condition to the exercise of any Option granted under this Plan, the
Optionee shall make such arrangements as the Plan Administrators may require for
the satisfaction of any federal, state or local withholding tax obligations that
may arise in connection with such exercise. Alternatively, the Plan
Administrators may provide that a Grantee may elect, to the extent permitted or
required by law, to have the Company deduct federal, state and local taxes of
any kind required by law to be withheld upon such exercise from any payment of
any kind due to the Grantee. Without limitation, at the discretion of the Plan
Administrators, the withholding obligation may be satisfied by the withholding
or delivery of shares of Common Stock.
5.13.4 The issuance, transfer or delivery of certificates of Common Stock
pursuant to the exercise of Options may be delayed, at the discretion of the
Plan Administrators, until the Plan Administrators are satisfied that the
applicable requirements of the federal and state securities laws and the
withholding provisions of the Code have been met.
5.14 Stock Dividend, Reorganization or Liquidation.
5.14.1 If (i) the Company shall at any time be involved in a transaction
described in Section 424(a) of the Code (or any successor provision) or any
"corporate transaction" described in the regulations thereunder; (ii) the
Company shall declare a dividend payable in, or shall subdivide or combine, its
Common Stock or (iii) any other event with substantially the same effect shall
occur, the Plan Administrators shall, with respect to each outstanding Option,
proportionately adjust the number of shares of Common Stock and/or the exercise
price per share so as to preserve the rights of the Optionee substantially
proportionate to the rights of the Optionee prior to such event, and to the
extent that such action shall include an increase or decrease in the number of
shares of Common Stock subject to outstanding Options, the number of shares
available under Section 4.0 of this Plan shall automatically be increased or
decreased, as the case may be, proportionately, without further action on the
part of the Plan Administrators, the Company or the Company's shareholders.
5.14.2 If the Company is liquidated or dissolved, the Plan Administrators shall
allow the holders of any outstanding Options to exercise all or any part of the
unvested portion of the Options held by them; provided, however, that such
Options must be exercised prior to the effective date of such liquidation or
dissolution. If the Option holders do not exercise their Options prior to such
effective date, each outstanding Option shall terminate as of the effective date
of the liquidation or dissolution.
5.14.3 The foregoing adjustments in the shares subject to Options shall be made
by the Plan Administrators, or by any successor administrator of this Plan, or
by the applicable terms of any assumption or substitution document.
5.14.4 The grant of an Option shall not affect in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
of its capital or business structure,
<PAGE>
to merge, consolidate or dissolve, to liquidate or to sell or transfer all or
any part of its business or assets.
5.15 Option Grants to Non-Employee Directors.
5.15.1 Automatic Grants. Upon the initial appointment of a Non-Employee
Director, as defined below, the Plan Administrators are authorized to grant
initial Options ("Initial Options") to each Non-Employee Director in such
amounts and upon such terms, provisions and vesting schedule as determined in
the sole discretion of the Plan Administrators. After the Initial Options are
fully vested, or in the event no Inital Options are granted to a Non-Employee
Director, Options shall be granted to Non-Employee Directors under the terms and
conditions of this Section 5.15 of this Plan. Unless the number of shares
available under Section 4.0 of this Plan shall have been decreased to less than
15,000, immediately after each annual meeting of shareholders at which he or she
is elected a director, each Non-Employee Director, as defined below, of the
Company shall automatically be granted a Nonqualified Stock Option to purchase
2.500 shares of Common Stock for each year included in the term for which such
he or she was elected a director at such meeting; provided, however, that if a
director is appointed to fill a vacancy in the Company's Board of Directors, a
Non-Employee Director shall be granted a Nonqualified Stock Option to purchase
that number of shares of Common Stock equal to 2.500 multiplied by a fraction,
the numerator of which shall be equal to the number of months from the date of
his or her appointment until the next regularly scheduled annual meeting of
shareholders at which directors are to be elected (as determined by the
Company's bylaws and rounded to the nearest whole number) and the denominator of
which shall be twelve (12). "Non-Employee Director" shall have the meaning set
forth in Rule 16b-3 under the Exchange Act as such rule is in effect on the date
this Plan is approved by the shareholders of the Company, as it may be amended
from time to time, or any successor rule or rules.
5.15.2 Option Price. The option price for the Options granted under Section 5.15
shall be not less than one hundred percent (100%) of the Fair Market Value of
the shares of Common Stock on the Date of Grant, as determined by the Plan
Administrators in good faith in accordance with the definition set forth in
Section 2.4 of this Plan. Each such Option shall have a five-year term from the
Date of Grant, unless earlier terminated pursuant to Section 5.8.
5.15.3 Vesting Schedule. No Option shall be exercisable by a Non-Employee
Director until it has vested. For Options granted in connection with the
election of a director at an annual meeting of shareholders, each Option shall
vest as to 2,500 shares of Common Stock for each year of service as a director
on each anniversary date of the annual meeting. For Options granted in
connection with the appointment of a director, each Option shall vest as to
2,500 shares of Common Stock (or, if a lesser number of shares of Common Stock
remain unvested, the remaining number of shares) for each year of service as a
director on each anniversary date of such appointment.
5.16 Common Stock Repurchase Rights
5.16.1 Repurchase Option. At the sole discretion of the Plan Administrators,
each Option granted under this Plan may contain repurchase provisions pursuant
to which, after exercise of the Option, the Company is granted an irrevocable,
exclusive option ("Repurchase Option") to purchase from Optionee the Common
Stock issued upon exercise of the Option. If the Plan Administrators determine
that Options granted under the Plan will be subject to a Repurchase Option,
Service Providers shall be notified by the Plan Administrators of the terms,
conditions and restrictions of the Repurchase Option by means of a Restricted
Stock Purchase Agreement, and Options shall be accepted by Service Providers by
execution of a Restricted Stock Purchase Agreement in the
<PAGE>
form determined by the Plan Administrators. Unless the Plan Administrators
determine 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).
5.16.2 Purchase Price and Duration. The purchase price for shares of Common
Stock repurchased pursuant to the Restricted Stock Purchase Agreement shall be
the original price per share paid by the purchaser and may be paid by
cancellation of any indebtedness of the purchaser to the Company. The Repurchase
Option shall lapse after one year following the date of exercise, unless the
repurchase period is shortened in accordance with a rate determined by the Plan
Administrators.
5.16.3 Escrow of Shares. The Restricted Stock Purchase Agreement may also
provide that the shares of Common Stock be delivered and deposited with an
escrow holder designated by the Company until such time as the Repurchase Option
expires.
5.16.4 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.
5.16.5 Rights as a Shareholder. Once the Option is exercised and unless and
until the Repurchase Option is exercised by the Company, 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.
6.0 EFFECTIVE DATE; TERM
6.1 This Plan shall be effective as of June 1, 1998. The Plan shall include all
options granted by Plan Administrators prior to the effective date of the Plan,
in accordance with the effective Date of Grant and other terms of each agreement
with Optionee. Incentive Stock Options may be granted by the Plan Administrators
from time to time thereafter until June 1, 2003. Nonqualified Stock Options may
be granted until this Plan is terminated by the Board in its sole discretion.
Termination of this Plan shall not terminate any Option granted prior to such
termination. Any Incentive Stock Options granted by the Plan Administrators
prior to the approval of this Plan by a majority of the shareholders of the
Company shall be granted subject to ratification of this Plan by the
shareholders of the Company within 12 months after this Plan is adopted by the
Board, and if shareholder ratification is not obtained, each and every Incentive
Stock Option shall become a Nonqualified Stock Option.
7.0 NO OBLIGATIONS TO EXERCISE OPTION
7.1 The grant of an Option shall impose no obligation upon the Optionee to
exercise such Option.
8.0 NO RIGHT TO OPTIONS OR TO EMPLOYMENT, CONTRACTUAL OR DIRECTOR RELATIONSHIP
8.1 Except as provided in Section 5.15 above, whether or not any Options are to
be granted under this Plan shall be exclusively within the discretion of the
Plan Administrators, and nothing
<PAGE>
contained in this Plan shall be construed as giving any person or Service
Provider any right to participate under this Plan. The grant of an Option shall
in no way constitute any form of agreement or understanding binding on the
Company or any Related Corporation, express or implied, that the Company or any
Related Corporation will employ, contract with, or use any efforts to cause to
continue service as a director by, an Optionee for any length of time.
9.0 APPLICATION OF FUNDS
9.1 The proceeds received by the Company from the sale of Common Stock issued
upon the exercise of Options shall be used for general corporate purposes,
unless otherwise directed by the Board.
10.0 INDEMNIFICATION OF PLAN ADMINISTRATOR
10.1 In addition to all other rights of indemnification they may have as members
of the Board, members of the Plan Administrators shall be indemnified by the
Company for all reasonable expenses and liabilities of any type or nature,
including attorneys' fees, incurred in connection with any action, suit or
proceeding to which they or any of them are a party by reason of, or in
connection with, this Plan or any Option granted under this Plan, and against
all amounts paid by them in settlement thereof, provided that such settlement is
approved by independent legal counsel selected by the Company, except to the
extent that such expenses relate to matters for which it is adjudged that such
Plan Administrators member is liable for willful misconduct; provided, that
within 15 days after the institution of any such action, suit or proceeding, the
Plan Administrator member involved therein shall, in writing, notify the Company
of such action, suit or proceeding, so that the Company may have the opportunity
to make appropriate arrangements to prosecute or defend the same.
11.0 AMENDMENT OF PLAN
11.1 Except as otherwise provided above in Section 5.15, the Plan Administrators
may, at any time, modify, amend or terminate this Plan and Options granted under
this Plan; provided, that no amendment with respect to an outstanding Option
shall be made over the objection of the Optionee thereof; and provided further,
that if required in order to keep the Plan in full compliance with the exemption
from Section 16(b) of the Exchange Act provided by Rule 16b-3, as amended, or
any successor rule or rules, or any other rules or regulations of the Securities
and Exchange Commission, a national exchange, the Nasdaq Stock Market, the NASD
Bulletin Board, or other regulatory authorities, amendments to this Plan shall
be subject to approval by the Company's shareholders in compliance with the
requirements of any such rules or regulations.
Without limiting the generality of the foregoing, the Plan Administrators may
modify grants to persons who are eligible to receive Options under this Plan who
are foreign nationals or employed outside the United States to recognize
differences in local law, tax policy or custom.
Date Approved by Board of Directors of Company: June 1, 1998
International Barter Corp.
<PAGE>
by: Norma Fetz
--------------------------
Corporate Secretary
<PAGE>
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:
("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: -----------------------------------
Date of Grant: -----------------------------------
Vesting Commencement Date: -----------------------------------
Exercise Price per Share: -----------------------------------
Total Number of Shares Granted: -----------------------------------
Total Exercise Price: $ -----------------------------------
<PAGE>
Type of Option: ----- Incentive Stock Option
----- Nonqualified Stock Option
Expiration Date: -----------------------------------
Vesting Schedule: This Option may be exercised, in whole or in part, in
accordance with the following schedule: 50% of the Shares subject to the Option
shall immediately vest and be exercisable after one (1) year following the date
of grant, 75% of the Shares subject to the Option shall be fully vested and be
exercisable after eighteen (18) months following the date of grant, and 100% of
the Shares subject to the Option shall be fully vested and be exercisable after
two (2) years following the date of grant.
Termination Period: This Option may be exercised for 30 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.
<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 and any
associated withholding taxes incurred in connection with the exercise, 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.
<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
<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 RESALE RESTRICTIONS
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.
12.0 SIGNATURES
Dated -------------------,1998
<PAGE>
INTERNATIONAL BARTER CORP.
By: -----------------------------------
Steven White, President
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: ----------------,1998
OPTIONEE:
- -----------------------------------
Signature
- -----------------------------------
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.
- -----------------------------------
Spouse of Optionee
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
