<PAGE>
As filed with the Securities and Exchange Commission on June 1, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
____________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GENESIS DIRECT, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 22-3449666
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
100 Plaza Drive
Secaucus, New Jersey 07094
(Address of Principal Executive Offices, Including Zip Code)
Genesis Direct, Inc. 1997 Long-Term Incentive Plan
Genesis Direct, Inc. 1998 Employee Stock Purchase Plan
(Full Title of Plans)
Warren Struhl
Chief Executive Officer
Genesis Direct, Inc.
100 Plaza Drive
Secaucus, New Jersey 07094
(Name and Address of Agent For Service)
(201) 867-2800
(Telephone Number, Including Area Code, of Agent For Service)
__________________________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount Proposed Maximum Proposed Maximum Amount Of
Title Of Securities To Be Offering Price Aggregate Offering Registration
To Be Registered Registered Per Share (1) Price (1) Fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 4,375,000 shares $12.8125 $56,054,687.50 $16,536.13
par value per share
=====================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee. Pursuant
to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as
amended, the proposed maximum offering price per share and the proposed
maximum aggregate offering price have been determined on the basis of the
average of the high and low prices reported on the Nasdaq Stock Market on
May 26, 1998.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(Plan Information, Registrant Information and Employee Plan Annual Information)
will be sent or given to participants as specified by Rule 428(b)(1). Such
documents need not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. These documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended (the "Securities Act").
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Genesis Direct. Inc. (the "Registrant")
with the Commission are incorporated by reference herein:
(a) The Registrant's prospectus, dated May 7, 1998, filed pursuant to
Rule 424(b) under the Securities Act, which prospectus constitutes a part of the
Registrant's Registration Statement on Form S-1 (No. 333-47455), as amended,
which was declared effective on May 6, 1998.
(b) The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on May 1, 1998
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
that they may incur in such capacities, including liabilities under the
Securities Act.
The Registrant's Amended and Restated Certificate of Incorporation limits
the liability of directors to the maximum extent permitted by Delaware law.
Delaware law provides that directors of a company will not be personally liable
to the company or its stockholders for monetary damages for breach of their
fiduciary duties as directors, except liability for (i) any breach of their duty
of loyalty to the company or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) unlawful payments of dividends or unlawful stock repurchases or
redemptions or (iv) any transaction from which the directors derived an improper
personal benefit. The Amended and Restated Certificate of Incorporation also
provides that the Registrant shall indemnify any director or officer to the
maximum extent provided by Delaware law, and that such right of indemnification
shall continue as to a person who has ceased to be a director or officer of the
Registrant.
II-1
<PAGE>
Responsibility for determinations with respect to such indemnification will be
made by the Board of Directors. In addition the Registrant has entered into
indemnity agreements with its directors and officers that further indemnify
them to the maximum extent permitted by Delaware law.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Amended and Restated Certificate of Incorporation of the Registrant.
Incorporated by reference to Exhibit 3.3 of the Registrant's Registration
Statement on Form S-1 (No. 333-47455), as amended, which was declared effective
on May 6, 1998.
4.2 Amended and Restated Bylaws of the Registrant. Incorporated by
reference to Exhibit 3.5 of the Registrant's Registration Statement on Form S-1
(No. 333-47455), as amended, which was declared effective on May 6, 1998.
4.3 Specimen certificates for shares of Registrant's Common Stock.
Incorporated by reference to Exhibit 4.1 of the Registrant's Registration
Statement on Form S-1 (No. 333-47455), as amended, which was declared effective
on May 6, 1998.
4.4 Stockholders Agreement. Incorporated by reference to Exhibit 4.2 of
the Registrant's Registration Statement on Form S-1 (No. 333-47455), as amended,
which was declared effective on May 6, 1998.
4.5 Genesis Direct, Inc. 1997 Long-Term Incentive Plan (as amended).
4.6 Genesis Direct, Inc. 1998 Employee Stock Purchase Plan (as amended).
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of Boscia Goldenberg & Company.
23.5 Consent of Arthur Andersen LLP.
23.6 Consent of Mendlowitz Weitsen, LLP.
24.1 Power of Attorney (See pages II-4 and II-5).
II-2
<PAGE>
Item 9. Undertakings.
(a) Rule 415 Offering.
------------------
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 this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum offering price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this
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 herein, 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) Filings Incorporating Subsequent Exchange Act Documents By Reference.
---------------------------------------------------------------------
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 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 this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Request for Acceleration of Effective Date or Filing of Registration
--------------------------------------------------------------------
Statement on Form S-8.
- ----------------------
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
II-3
<PAGE>
otherwise, the Registrant has been advised that, in the opinion of the
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 by a director, officer or controlling person of
the Registrant in the successful defense or any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Secaucus, State of New Jersey, on May 26, 1998.
GENESIS DIRECT, INC.
By: /s/ Warren Struhl
---------------------
Warren Struhl
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Warren
Struhl, Hunter C. Cohen and David M. Sable, and each of them, as attorneys-in-
fact, each with the power of substitution, for him or her in any and all
capacities, to sign any amendment to this Registration Statement and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Commission, granting to said attorneys-in-fact, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Warren Struhl Chairman of the Board, May 26, 1998
----------------- President and Chief
Warren Struhl Executive Officer
(Principal Executive Officer)
/s/ Hunter C. Cohen Chief Operating Officer and May 26, 1998
------------------- Director
Hunter C. Cohen
II-4
<PAGE>
/s/ David M. Sable Chief Marketing Officer and May 26, 1998
------------------ Director
David M. Sable
/s/ Ronald R. Benanto Chief Financial Officer May 26, 1998
--------------------- (Principal Financial and
Ronald R. Benanto Accounting Officer)
/s/ Edward Spiegel
--------------------- Director May 26, 1998
Edward Spiegel
/s/ David W. Wiederecht Director May 26, 1998
-----------------------
David W. Wiederecht
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Sequential
- -------------- ----------- Page No.
-----------
<C> <S> <C>
4.1 Amended and Restated Certificate of Incorporation of Registrant.
Incorporated by reference to Exhibit 3.3 of the Registrant's *
Registration Statement on Form S-1 (No. 333-47455), as amended,
which was declared effective on May 6, 1998.
4.2 Amended and Restated Bylaws of Registrant. Incorporated by
reference to Exhibit 3.5 of the Registrant's Registration Statement *
on Form S-1 (No. 333-47455), as amended, which was declared
effective on May 6, 1998.
4.4 Specimen certificates for shares of Registrant's Common Stock.
Incorporated by reference to Exhibit 4.1 of the Registrant's *
Registration Statement on Form S-1 (No. 333-47455), as amended,
which was declared effective on May 6, 1998.
4.4 Stockholders Agreement. Incorporated by reference to Exhibit 4.2 of
the Registrant's Registration Statement on Form S-1 (No. 333-47455), *
as amended, which was declared effective on May 6, 1998.
4.5 Genesis Direct, Inc. 1997 Long-Term Incentive Plan (as amended). 9
4.6 Genesis Direct, Inc. 1998 Employee Stock Purchase Plan (as amended). 20
5.1 Opinion of Morrison & Foerster LLP. 32
23.1 Consent of Morrison & Foerster LLP (included in Exhibit 5.1). 32
23.2 Consent of Ernst & Young LLP. 33
23.3 Consent of KPMG Peat Marwick LLP. 34
23.4 Consent of Boscia Goldenberg & Company. 35
23.5 Consent of Arthur Andersen LLP. 36
23.6 Consent of Mendlowitz Weitsen, LLP. 37
24.1 Power of Attorney (See pages II-4 and II-5). 6-7
</TABLE>
* Incorporated by reference.
<PAGE>
Exhibit 4.5
GENESIS DIRECT, INC.
1997 LONG-TERM INCENTIVE PLAN
1. Purpose
The purpose of this Plan is to further the growth in earnings and market
appreciation of Genesis Direct, Inc. (the "Company") by providing long-term
incentives to officers, employees, directors and consultants of the Company
and its present and future subsidiaries, partnerships and joint ventures.
The Company intends that the Plan will help attract, retain and motivate
officers and key employees of high caliber and good potential and promote
the alignment of the Participant's interests with that of the Company's
shareholders.
2. Definitions
As used in the Plan, the following words shall have the following meanings:
"Award" means an award made to a Participant pursuant to the Plan and
described in Paragraph 5, including, without limitation, an award of
Incentive Stock Options, Nonqualified Stock Options, Stock Appreciation
Rights, Restricted Stock, Performance Units, Performance Shares, or Other
Stock-Based Awards or any combination of the foregoing.
"Award Agreement" means an agreement between the Company and a Participant
that sets forth the terms, conditions and limitations applicable to an
Award.
"Board" means the Board of Directors of the Company, as constituted from
time to time.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means the Compensation Committee of the Board.
"Employee" means any officer or other employee of the Company or a
Subsidiary, or any consultant, director or advisor, within the meaning of
Regulation Section 230.701 of the Securities Act of 1933, as amended,
providing bona fide services to the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
<PAGE>
"Fair Market Value" means, as of any date:
(a) the value of a Share as determined in accordance with any
applicable resolutions or regulations of the Committee in effect
at the relevant time; or
(b) if the Stock of the Company is publicly traded, the average of
the highest and lowest prices at which the Stock is traded on
such date on the principal market on which the Stock is traded,
or if the Stock is not traded on such date, on the immediately
preceding date on which the Stock is traded.
"Incentive Stock Option" means an option intended to be and designated as
an incentive stock option which meets the requirements of Section 422 of
the Code.
"Nonqualified Stock Option" means an option that is not intended to be nor
designated as an Incentive Stock Option.
"Other Stock-Based Awards" means any Award other than a Stock Option, Stock
Appreciation Right, Restricted Stock, Performance Unit or Performance Share
that is valued by reference to or otherwise based upon Stock of the
Company.
"Participant" means an Employee who, as of any date, has been granted one
or more Awards under the Plan which are still outstanding (i.e., have not
been exercised, forfeited or terminated).
"Performance Goals" means, with respect to any Performance Period,
performance goals based on any of the following criteria and established by
the Committee prior to the beginning of such Performance Period or
performance goals based on any of the following criteria and established by
the Committee after the beginning of such Performance Period that meet the
requirements to be considered pre-established performance goals under
Section 162(m) of the Code: earnings or earnings growth; return on equity,
assets or investment; revenues; expenses; stock price; market share;
charge-offs; or reductions in non-performing assets. Such Performance
Goals may be particular to an Employee or the division, department, branch,
line of business, Subsidiary or other unit in which the Employee works, or
may be based on the performance of the Company generally.
"Performance Period" means (when and if applicable) the period of time
designated by the Committee during which Performance Goals will be measured
in connection with an Award.
"Plan" means the Genesis Direct, Inc. 1997 Long-Term Incentive Plan.
"Public Offering" means any event pursuant to which the Company's Stock
becomes publicly traded, including without limitation, an initial public
offering by the Company by
2
<PAGE>
registration under the Securities Act of 1933, as amended, or a
reorganization, consolidation, merger, or other business arrangement
between the Company and a publicly traded corporation pursuant to which the
shareholders of the Company become shareholders of a publicly traded
corporation.
"Rule 16b-3" means Rule 16b-3 promulgated by the Securities and Exchange
Commission pursuant to the Exchange Act, as amended from time to time.
"Other Stock-Based Awards" means any Award other than a Stock Option, Stock
Appreciation Right, Restricted Stock, Performance Unit or Performance Share
that is valued by reference to or otherwise based upon Stock of the
Company.
"Stock" or "Share" means common stock of the Company which may be
authorized but unissued or issued and reacquired.
"Stock Options" means the collective reference to Incentive Stock Options
and Nonqualified Stock Options.
"Subsidiary" means any corporation, partnership, joint venture or other
entity in which the Company has at least a fifty percent beneficial
ownership interest; provided, however, that when used in conjunction with
an Incentive Stock Option, "Subsidiary" means any corporation which in
relation to the Company satisfies Section 424(f) of the Code.
3. Administration
(a) The Plan shall be administered by the Committee. Members of the
Committee shall qualify to administer and make Awards under the Plan
for purposes of Section 162(m) of the Code and Rule 16b-3 (and any
other applicable rule) promulgated under Section 16(b) of the Exchange
Act to the extent that the Company is subject to such rules. The
Committee may adopt its own rules or procedures, and the action of a
majority of the Committee, taken at a meeting or taken without a
meeting by a writing signed by such majority, shall constitute action
by the Committee. The Committee shall have the power and authority to
administer, construe and interpret the Plan, to make rules for
carrying it out and to make changes in such rules. Any such
interpretations, rules, and administration shall be consistent with
the basic purposes of the Plan.
(b) The Committee may delegate to the Chief Executive Officer and to other
senior officers of the Company its duties under the Plan subject to
such conditions and limitations as the Committee shall prescribe,
except that only the Committee may designate and make Awards to
Participants who are subject to Section 16 of the Exchange Act and
Section 162(m) of the Code.
3
<PAGE>
(c) The Committee may employ attorneys, consultants, accountants,
appraisers, brokers or other persons. The Committee, the Company, and
the officers and directors of the Company shall be entitled to rely
upon the advice, opinions or valuations of any such persons. All
actions taken and all interpretations and determinations made by the
Committee in good faith shall be final and binding upon all
Participants, the Company and all other interested persons. No member
of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the
Plan or Awards made under the Plan, and all members of the Committee
shall be fully protected by the Company with respect to any such
action, determination or interpretation.
4. Eligibility
Subject to the terms hereof, the Committee, in its discretion, may grant
Awards to any Employee. Notwithstanding the preceding sentence, Awards to
members of the Committee may only be granted by the Board. No Employee
shall be entitled as a matter of right to receive an Award, nor shall the
grant of an Award entitle an Employee to receive any future Award. The
terms, conditions and limitations of each Award under the Plan shall be set
forth in an Award Agreement, in a form approved by the Committee or the
Board, consistent, however, with the terms of the Plan; provided, however,
that such Award Agreement shall contain provisions dealing with the
treatment of Awards in the event of the termination, death or disability of
a Participant.
5. Awards
As the Committee may determine, the following types of Awards may be
granted under the Plan to Employees, either alone, in combination or on an
alternative basis:
(a) Incentive Stock Options: These are options to purchase Stock which
satisfy the requirements of Section 422 of the Code and which are
designated by the Committee as intended to be Incentive Stock Options.
At the time of the Award, the Committee shall determine, and shall
have included in the Award Agreement or other Plan rules, the option
exercise period, the option price, and such other conditions or
restrictions as may be appropriate. In addition to other
restrictions-contained in the Plan, an option granted under this
Paragraph 5(a), (i) may not be exercised more than 10 years after-the
date it is granted, (ii) may not have an option price less than the
Fair Market Value of Company Stock on the date the option is granted,
(iii) must otherwise comply with the requirements of Code Section 422,
and (iv) must be designated as an "Incentive Stock Option" by the
Committee. To the extent the aggregate fair market value (determined
as of the time the Incentive Stock Option is granted) of the stock
with respect to which Incentive Stock Options become exercisable for
the first time by an individual during any
4
<PAGE>
calendar year under all plans of the Company or any Subsidiary exceeds
ONE HUNDRED THOUSAND DOLLARS ($100,000), such options shall be treated
as Nonqualified Stock Options. Subject to the foregoing restrictions,
an Incentive Stock Option may be granted with respect to a full or
fractional number of Shares of Company Stock. Payment of the option
price shall be made (i) in cash or in shares of Stock, or a
combination thereof, or (ii) any other reasonable method specified in
the applicable Award Agreement, including, but not limited to, a
cashless exercise pursuant to which the number of Shares of Company
Stock issuable upon exercise of an option is reduced by a number of
shares having a Fair Market Value equal to the option's exercise
price.
(b) Nonqualified Stock Options: These are options to purchase Stock which
are not designated by the Committee as "Incentive Stock Options." At
the time of the Award, the Committee shall determine, and shall have
included in the Award Agreement or other Plan rules, the option
exercise period, the option price, and such other conditions or
restrictions as may be appropriate. In addition to the other
restrictions contained in the Plan, an option granted under this
Paragraph 5(b) may not be exercised more than 10 years after the date
it is granted. Subject to the foregoing restrictions, a Nonqualified
Stock Option may be granted with respect to a full or fractional
number of Shares of Company Stock. Payment of the option price shall
be made (i) in cash or in shares of Stock, or a combination thereof,
or (ii) any other reasonable method specified in the applicable Award
Agreement, including, but not limited to, a cashless exercise pursuant
to which the number of Shares of Company Stock issuable upon exercise
of an option is reduced by a number of shares having a Fair Market
Value equal to the option's exercise price.
(c) Stock Appreciation Rights: These are rights that on exercise entitle
the holder to receive the excess of (i) the Fair Market Value of a
share of Stock on the date of exercise over (ii) the Fair Market Value
on the date of Award or, if connected with a previously issued stock
option, the Fair Market Value at the time such previously issued stock
option was granted (the "base value"), multiplied by (iii) the number
of rights exercised as determined by the Committee. Stock
Appreciation Rights granted under the Plan may, but need not be,
granted in tandem with a Stock Option under Paragraphs 5(a) or 5(b).
The Committee, in the Award Agreement or by other Plan rules, may
impose such restrictions or conditions on the exercise of Stock
Appreciation Rights as it deems appropriate, and may terminate, amend,
or suspend such Stock Appreciation Rights at any time. No Stock
Appreciation Right granted under this Plan may be exercised more than
10 years after the date it is granted.
(d) Restricted Stock: Restricted Stock is Company Stock delivered to a
Participant with or without payment of consideration subject to such
conditions, terms and restrictions ( including performance-based or
employment-based vesting,
5
<PAGE>
forfeiture conditions and transfer restrictions) on the Participant's
right to transfer or sell such stock. The number of shares of
Restricted Stock and the restrictions or conditions on such shares
shall be as the Committee determines, in the Award Agreement or by
other Plan rules, and the certificate for the Restricted Stock shall
bear evidence of the restrictions or conditions.
(e) Performance Shares and Performance Units: An Award of Performance
Shares or Performance Units shall entitle a Participant to receive
Stock or a cash payment specified by the Committee, depending upon the
attainment of certain Performance Goals over a Performance Period.
The Performance Period and Performance Goals shall be specified by the
Committee and may relate to the performance of the Company or one or
more Subsidiaries or a combination thereof. At the time an Award of
such shares or units is made, the Committee shall, in the Award
Agreement, determine the base value of the Award or specify a formula
for determining such value. The Committee may adjust previously
established performance criteria and other terms and conditions of an
Award at any time prior to the determination of the payment amount, to
reflect major unforeseen events such as changes in laws, regulations
or accounting policies or procedures, mergers, acquisitions or
divestitures or extraordinary, unusual or non-recurring items or
events; provided, however, that the Committee may refrain from making
any such adjustment in order to comply with Section 162(m) of the
Code.
Payment pursuant to an Award of Performance Shares or Performance
Units shall be made following the Committee's determination of the
extent to which the Performance Goals were satisfied, and shall be
made in the form of Stock, cash or a combination thereof, as the
Committee may determine. Payment shall be made as promptly as
practicable following the end of the Performance Period unless
deferred subject to such terms and conditions as may be prescribed by
the Committee.
(f) Other Stock-Based Awards: Other Stock Based Awards may be granted to
such Employees as the Committee may select, at any time and from time
to time as the Committee shall determine. The Committee shall have
complete discretion in determining the number of Shares subject to
such Awards, the consideration for such Awards and the terms,
conditions and limitations pertaining to same including, without
limitation, restrictions based upon the achievement of specific
business objectives, tenure, and other measurements of individual or
business performance, and/or restrictions under applicable federal or
state securities laws, and conditions under which same will lapse.
Such Awards may include the issuance of Stock in payments of amounts
earned under other incentive compensation plans of the Company. The
terms, restrictions and conditions of the Award need not be the same
with respect to each Participant.
6
<PAGE>
The Committee may, in its sole discretion, direct the Company to issue
Shares subject to such restrictive legends and/or stop transfer
instructions as the Committee deems appropriate.
6. Limitations and Conditions
(a) The number of Shares available for Awards under this Plan is limited
to 4,125,000. The limitations contained in this paragraph are subject
to further adjustment, as provided in Paragraph 9 hereof. To the
extent that any Award is canceled or forfeited, or terminates,
expires, or lapses for any reason, any unissued Shares subject to such
Award shall again be available for grant under the Plan.
(b) No Awards shall be made under the Plan beyond ten years after the
effective date of the Plan, but the terms of Awards made on or before
the expiration thereof may extend beyond such expiration. The
Committee may provide for limitations or conditions on an Award at the
time the Award is granted or amended, or at the time the terms or
conditions of a Award are changed.
(c) Nothing in this Plan shall interfere with or limit in any way the
right of the Company or any Subsidiary to terminate any Participant's
employment at any time, nor confer upon any Participant any right to
continue in the employ of the Company or any Subsidiary.
(d) Deferral of Award payouts may be provided for, at the sole discretion
of the Committee, in the Award Agreements.
(e) Participants shall not have any of the rights or privileges of
stockholders of the Company with respect to any Shares purchasable in
connection with any Award, unless and until certificates representing
such Shares have been issued by the Company to such Participants,
except as otherwise specifically provided.
(f) Except as otherwise provided in this Paragraph 6, no Stock Option or
other Award under the Plan shall be sold, transferred, assigned or
otherwise alienated or hypothecated by the Participant, other than by
will or by the laws of descent and distribution, and all Stock Options
shall be exercisable during the Participant's lifetime only by the
Participant or the Participant's legal representative. The Committee
may, if permitted by state law and the rules and regulations governing
any exchange on which the Company's Stock is traded, establish
guidelines providing for the transfer, without payment of
consideration, of any Nonqualified Stock Option by the Participant to
a member of the Participant's immediate family or to a trust or
partnership whose beneficiaries are members of the Participant's
immediate family. For purposes of this Paragraph, the term "immediate
family" shall include the Participant's spouse, children,
grandchildren, parents and siblings.
7
<PAGE>
(g) Except as specifically provided in a retirement or other benefit plan
of the Company, Awards under this Plan shall not be deemed
compensation for purposes of computing benefits or contributions under
any retirement plan of the Company or its Subsidiaries, and shall not
affect any benefits under any other benefit plan of any kind or any
benefit plan subsequently instituted under which the availability or
amount of benefits is related to level of compensation. This Plan is
not a "Retirement-Plan" or "Welfare Plan" under the Employee
Retirement Income Security Act of 1974, as amended.
(h) Unless the Committee determines otherwise, no benefit or promise under
the Plan shall be secured by any specific assets of the Company or any
of its Subsidiaries, nor shall any assets of the Company or any of it
Subsidiaries be designated as attributable or allocated to the
satisfaction of the Company's obligations under the Plan.
(i) Notwithstanding anything to the contrary hereunder, no grant or Award
shall be made under the Plan which would be prohibited by operation of
any applicable law or contractual agreement between the Company and
any third-party.
7. Dividends and Dividend Equivalents
The Committee may provide that Awards earn dividends or dividend
equivalents. Such dividend equivalents may be paid currently or may be
credited to an account established by the Committee under the Plan in the
name of the Participant. Any crediting of dividends or dividend
equivalents may be subject to such restrictions and conditions as the
Committee may establish, including reinvestment in additional Shares or
Share equivalents.
8. Transfers and Leaves of Absence
For purposes of the Plan: (a) the transfer of a Participant's employment
without an intervening period of separation from the Company to any
Subsidiary or vice versa or from one Subsidiary to another shall not be
deemed a termination of employment, and (b) a Participant who is granted in
writing a leave of absence shall be deemed to have remained in the employ
of the Company during such leave of absence; provided, however, that no
Awards may be granted to an Employee while absent on leave.
8
<PAGE>
9. Adjustments
In the event of a reclassification, recapitalization, merger,
consolidation, reorganization, issuance of warrants, rights or debentures,
stock dividends, stock split or reverse stock split, cash dividend,
property dividend, including, without limitation, a distribution of the
stock of a Subsidiary, combination or exchange of shares, repurchase of
shares, or any other change in corporate structure, which, in the judgment
of the Board, materially affects the value of the Company's Shares, the
Board shall determine, in its discretion, the appropriate adjustments, if
any, to (a) the number of Shares which may be issued under the Plan (b) the
number of Shares issuable and the exercise price per Share pursuant to an
outstanding Award therefore granted under this Plan and, (c) the number of
Shares which may underlie an Award.
10. Amendment and Termination
(a) The Committee shall have the authority to make such amendments to any terms
and conditions applicable to outstanding Awards as are consistent with this
Plan; provided, however, that subject to Paragraph 9 hereof, no Award shall
be modified in a manner adverse to the Participant without the
Participant's consent, except as such modification is provided for or
contemplated in the terms of the Award.
(b) The Board may terminate, amend or modify the provisions of this Plan
(including any performance criteria or conditions which must be achieved in
order for an Employee to receive an Award or Awards) at any time and from
time to time; provided, however, that an amendment which requires
stockholder approval in order for the Plan to continue to comply with Rule
16b-3, Section 162(m) of the Code or any other law, regulation or stock
exchange requirement shall not be effective unless approved by the
requisite vote of stockholders. The termination, amendment or modification
of the Plan may be in response to changes in the Code, the Exchange Act,
national securities exchange regulations or for other reasons deemed
appropriate by the Board.
11. Foreign Options and Rights
The Committee may, consistent with the purposes and intent of this Plan,
make Awards to Employees who are subject to the laws of nations other than
the United States, which Awards may have terms and conditions that differ
from the terms otherwise provided in the Plan, for the purpose of complying
with foreign laws.
9
<PAGE>
12. Withholding Taxes
The Company shall have the right to deduct from any cash payment made under
the Plan any federal, state or local income or other taxes required by law
to be withheld with respect to such payment. It shall be a condition to
the obligation of the Company to deliver shares upon the exercise of a
Stock Option or Stock Appreciation Right, upon payment of Performance units
or shares, upon delivery of Restricted Stock or upon exercise, settlement
or payment of any Other Stock-Based Award that the Participant pay to the
Company such amount as may be requested by the Company for the purpose of
satisfying any liability for such withholding taxes. Any Award Agreement
may provide that the Participant may elect, in accordance with any
conditions set forth in such Award Agreement, to pay a portion or all of
such withholding taxes in shares of Stock.
13. Indemnification
Each current or former member of the Committee, and of the Board, shall be
indemnified and held harmless by the Company, to the fullest extent
permissible under the Company's Certificate of Incorporation and By-laws
and applicable law, against any loss, cost, liability or expense that may
be imposed upon, or reasonably incurred by him or her in connection with or
resulting from any claim, action, suit or proceeding to which the member
may be a party or in which the member may be involved by reason of any
action taken or failure to act under the Plan and against and from any and
all amounts paid by the member in settlement thereof, with the Company's
approval, or paid by the member in satisfaction of any judgment in any such
action, suit or proceeding against the member, provided such member shall
give the Company an opportunity, at its own expense, to handle and defend
the same before the member undertakes to handle and defend it on his or her
own behalf. The foregoing right of indemnification shall not be exclusive
of any other rights of indemnification to which the member may be entitled
under the Company's Certificate of Incorporation or By-laws, as a matter
of law, or otherwise, or any power that the Company may have to indemnify
them or hold them harmless.
14. Successors
The terms of the Plan shall be binding upon the Company and its successors
and assigns.
15. Requirements of Law and Other Limitations
(a) The granting of Awards and the issuance of Shares under the Plan shall
be subject to all applicable laws, rules and regulations, and to such
approval by any governmental agencies or national securities exchanges
as may be required.
10
<PAGE>
(b) In the event any provision of the Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
(c) To the extent not preempted by federal law, the Plan and all Award
Agreements, shall be constructed in accordance with and governed by
the laws of the State of New Jersey.
(d) Notwithstanding anything herein to the contrary, no Award shall be
granted under the Plan which is inconsistent with or exceeds the
Company's ability to make a grant hereunder, whether such inability or
limitation is the result of any applicable law or is the result of an
agreement between the Company or its shareholders and a shareholder or
debtholder of the Company, and to the extent that any Award granted
hereunder exceeds such ability or limitation, such Award shall be null
and void.
16. Effective Date and Termination Dates
The Plan shall be effective on and as of the date of its approval by the
stockholders of the Company and shall terminate ten years later, subject to
earlier termination by the Board pursuant to Paragraph 10.
11
<PAGE>
EXHIBIT 4.6
GENESIS DIRECT, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
The following constitute the provisions of the 1998 Employee Stock
Purchase Plan of Genesis Direct, Inc.
1. Purpose. The purpose of the Plan is to provide employees of the
-------
Company and its Designated Parents or Subsidiaries with an opportunity to
purchase Common Stock of the Company through accumulated payroll deductions. It
is the intention of the Company to have the Plan qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Code. The provisions of the Plan,
accordingly, shall be construed so as to extend and limit participation in a
manner consistent with the requirements of that section of the Code.
2. Definitions. As used herein, the following definitions shall
-----------
apply:
(a) "Board" means the Board of Directors of the Company.
-----
(b) "Change in Control" means a change in ownership or control of the
-----------------
Company effected through the direct or indirect acquisition by any person or
related group of persons (other than an acquisition from or by the Company or by
a Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing more than 50% of the total combined
voting power of the Company's outstanding securities.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
----
(d) "Common Stock" means the common stock of the Company.
------------
(e) "Company" means Genesis Direct, Inc., a Delaware corporation.
-------
(f) "Compensation" means an Employee's base salary from the Company or
------------
one or more Designated Parents or Subsidiaries, including such amounts of base
salary as are deferred by the Employee (i) under a qualified cash or deferred
arrangement described in Section 401(k) of the Code, or (ii) to a plan qualified
under Section 125 of the Code. Compensation does not include overtime, bonuses,
annual awards, other incentive payments, reimbursements or other expense
allowances, fringe benefits (cash or noncash), moving expenses, deferred
compensation, contributions (other than contributions described in the first
sentence) made on the Employee's behalf by the Company or one or more Designated
Parents or Subsidiaries under any employee benefit or welfare plan now or
hereafter established, and any other payments not specifically referenced in the
first sentence.
(g) "Corporate Transaction" means any of the following transactions:
---------------------
1
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(1) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose of
which is to change the state in which the Company is incorporated;
(2) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the capital
stock of the Company's subsidiary corporations) in connection with
complete liquidation or dissolution of the Company;
(3) any reverse merger in which the Company is the surviving
entity but in which securities possessing more than 50% of the total
combined voting power of the Company's outstanding securities are
transferred to a person or persons different from those who held such
securities immediately prior to such merger; or
(4) any person or related group of persons (other than the
Company or by a Company-sponsored employee benefit plan) who becomes
the beneficial owner (within the meaning of Rule 13d-3 of the Exchange
Act) of securities possessing more than 50% of the total combined
voting power of the Company's outstanding securities (whether or not
in a transaction also constituting a Change in Control), but excluding
any such transaction that the Plan Administrator determines shall not
be a Corporate Transaction
(h) "Designated Parents or Subsidiaries" means the Parents or
----------------------------------
Subsidiaries which have been designated by the Plan Administrator from time to
time as eligible to participate in the Plan.
(i) "Effective Date" means a date designated as such by the Plan
--------------
Administrator, which shall be not earlier than the effective date of the
Registration Statement relating to the Company's initial public offering of its
Common Stock. However, should any Designated Parent or Subsidiary become a
participating company in the Plan after such date, then such entity shall
designate a separate Effective Date with respect to its employee-participants.
(j) "Employee" means any individual, including an officer or director,
--------
who is an employee of the Company or a Designated Parent or Subsidiary for
purposes of Section 423 of the Code. For purposes of the Plan, the employment
relationship shall be treated as continuing intact while the individual is on
sick leave or other leave of absence approved by the individual's employer.
Where the period of leave exceeds ninety (90) days and the individual's right to
reemployment is not guaranteed either by statute or by contract, the employment
relationship shall be deemed to have terminated on the ninety-first (91st) day
of such leave, for purposes of determining eligibility to participate in the
Plan.
(k) "Enrollment Date" means the first day of each Offer Period.
---------------
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended.
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<PAGE>
(m) "Exercise Date" means the last day of each Purchase Period.
-------------
(n) "Fair Market Value" means, as of any date, the value of Common
-----------------
Stock determined as follows:
(1) Where there exists a public market for the Common Stock, the
Fair Market Value shall be (A) the closing price for a share of Common
Stock for the last market trading day prior to the time of the
determination (or, if no closing price was reported on that date, on
the last trading date on which a closing price was reported) on the
stock exchange determined by the Plan Administrator to be the primary
market for the Common Stock or the Nasdaq National Market, whichever
is applicable or (B) if the Common Stock is not traded on any such
exchange or national market system, the average of the closing bid and
asked prices of a share of Common Stock on the Nasdaq Small Cap Market
for the day prior to the time of the determination (or, if no such
prices were reported on that date, on the last date on which such
prices were reported), in each case, as reported in The Wall Street
Journal or such other source as the Plan Administrator deems reliable;
(2) In the absence of an established market of the type described
in (1), above, for the Common Stock, and subject to (3), below, the
Fair Market Value thereof shall be determined by the Plan
Administrator in good faith; or
(3) On the Effective Date, the Fair Market Value shall be the
price at which the Board, or if applicable, the Pricing Committee of
the Board, and the underwriters agree to offer the Common Stock to the
public in the initial public offering of the Common Stock, net of
discounts and underwriting commissions.
(o) "Offer Period" means an Offer Period established pursuant to
------------
Section 4 hereof.
(p) "Parent" means a "parent corporation," whether now or hereafter
------
existing, as defined in Section 424(e) of the Code.
(q) "Participant" means an Employee of the Company or Designated
-----------
Parent or Subsidiary who is actively participating in the Plan.
(r) "Plan" means this Employee Stock Purchase Plan.
----
(s) "Plan Administrator" means either the Board or a committee of the
------------------
Board that is responsible for the administration of the Plan as is designated
from time to time by resolution of the Board.
(t) "Pricing Date" means, with respect to each Offer Period, the date
------------
designated as such by the Plan Administrator, which date shall be either the
Enrollment Date or the Exercise Date, or both, with respect to that Offer
Period.
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<PAGE>
(u) "Purchase Period" means a period of approximately six months,
---------------
commencing and ending on such dates as the Plan Administrator shall determine.
(v) "Purchase Price" shall mean an amount equal to the Purchase Price
--------------
Percentage multiplied by the Fair Market Value of a share of Common Stock on the
Enrollment Date or on the Exercise Date, whichever is designated as the Pricing
Date, or the lesser of the Fair Market Value on both such dates if both are
designated as the Pricing Date.
(w) "Purchase Price Percentage" shall mean, with respect to each Offer
-------------------------
Period, a percentage, not less than 85% nor more than 100%, as established by
the Plan Administrator with respect to that Offer Period.
(x) "Reserves" means the sum of the number of shares of Common Stock
--------
covered by each option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but not yet placed under option.
(y) "Subsidiary" means a "subsidiary corporation," whether now or
----------
hereafter existing, as defined in Section 424(f) of the Code.
3. Eligibility.
-----------
(a) General. Any individual who is an Employee on an Enrollment Date
-------
shall be eligible to participate in the Plan for the Offer Period commencing
with that Enrollment Date.
(b) Limitations on Grant and Accrual. Any provisions of the Plan to
--------------------------------
the contrary notwithstanding, no Employee shall be granted an option under the
Plan (i) if, immediately after the grant, such Employee (taking into account
stock owned by any other person whose stock would be attributed to such Employee
pursuant to Section 424(d) of the Code) would own stock or hold outstanding
options to purchase stock, or both, which in aggregate possess five percent (5%)
or more of the total combined voting power or value of all classes of stock of
the Company or of any Parent or Subsidiary, or (ii) which permits the Employee's
rights to purchase stock under all employee stock purchase plans of the Company
and its Parents or Subsidiaries to accrue at a rate which exceeds $25,000 worth
of stock (determined at the Fair Market Value of the shares at the time such
option is granted) for each calendar year in which such option is outstanding at
any time. The determination of the accrual of the right to purchase stock shall
be made in accordance with Section 423(b)(8) of the Code and the regulations
thereunder.
(c) Other Limits on Eligibility. Notwithstanding Subsection (a),
---------------------------
above, the following Employees shall not be eligible to participate in the Plan
for any relevant Offer Period: (i) Employees whose customary employment is 20
hours or less per week; (ii) Employees whose customary employment is for not
more than 5 months in any calendar year; (iii) Employees, other than those
employed by the Company on the Effective Date, who have been employed for fewer
than six months; and (iv) Employees who are subject to rules or laws of a
foreign jurisdiction that prohibit or make impractical the participation of such
Employees in the Plan.
4
<PAGE>
4. Offer Periods.
-------------
(a) The Plan shall be implemented through overlapping or consecutive
Offer Periods until such time as (i) the maximum number of shares of Common
Stock available for issuance under the Plan shall have been purchased or (ii)
the Plan shall have been sooner terminated in accordance with Section 19 hereof.
The maximum duration of an Offer Period shall be twenty-seven (27) months. The
Plan shall be implemented through Offer Periods of such duration and commencing
on such dates as the Plan Administrator shall determine. The Plan Administrator
shall have the authority to change the length of any Offer Period and the length
of Purchase Periods within any such Offer Period subsequent to the initial Offer
Period by announcement at least thirty (30) days prior to the commencement of
the Offer Period and to determine whether subsequent Offer Periods shall be
consecutive or overlapping. In addition, the Plan Administrator shall have the
authority to shorten any Offer Period to the extent provided elsewhere herein.
(b) A Participant shall be granted a separate option for each Offer
Period in which the Participant participates. The option shall be granted on
the Enrollment Date and shall be automatically exercised on the last day of the
Offer Period. However, with respect to any Offer Period, the Plan Administrator
may specify shorter Purchase Periods within an Offer Period, in which case the
option granted on the Enrollment Date shall be automatically exercised in
successive installments on the last day of each Purchase Period ending within
the Offer Period.
(c) If on the first day of any Purchase Period in an Offer Period in
which a Participant is participating, the Fair Market Value of the Common Stock
is less than the Fair Market Value of the Common Stock on the Enrollment Date of
the Offer Period (after taking into account any adjustment during the Offer
Period pursuant to Section 18(a)), the Offer Period that had earlier commenced
shall be terminated automatically and the Participant shall be enrolled
automatically in the new Offer Period which has its first Purchase Period
commencing on that date, provided the Participant is eligible to participate in
the Plan on that date and has not elected to terminate participation in the
Plan.
(d) Except as specifically provided herein, the acquisition of Common
Stock through participation in the Plan for any Offer Period shall neither limit
nor require the acquisition of Common Stock by a Participant in any subsequent
Offer Period.
5. Participation.
-------------
(a) An eligible Employee may become a Participant in the Plan by
completing a subscription agreement authorizing payroll deductions in the form
of Exhibit A to this Plan and filing it with the designated payroll office of
the Company at least ten (10) business days prior to the Enrollment Date for the
Offer Period in which such participation will commence, unless a later time for
filing the subscription agreement is set by the Plan Administrator for all
eligible Employees with respect to a given Offer Period.
(b) Payroll deductions for a Participant shall commence with the first
partial or full payroll period beginning on the Enrollment Date and shall end on
the last complete
5
<PAGE>
payroll period during the Offer Period, unless sooner terminated by the
Participant as provided in Section 10.
6. Payroll Deductions.
------------------
(a) In the subscription agreement by which a Participant elects to
participate, the Participant shall elect to have payroll deductions made during
the Offer Period in an amount not less than 1% nor more than 10%, in whole
percentages only, of the Compensation which the Participant is to receive during
the Offer Period.
(b) All payroll deductions made for a Participant shall be credited to
an account under the Plan. A Participant may not make any additional payments
into the account.
(c) A Participant may discontinue participation in the Plan as
provided in Section 10, or may change the rate of payroll deductions during the
Offer Period by completing and filing with the Company a new subscription
agreement authorizing a decrease in the payroll deduction rate. A change in
rate shall be effective on the first day of the first Purchase Period commencing
at least 10 business days after the Company's receipt of the new subscription
agreement unless the Company elects to process a requested change in
participation more quickly. Any increase in the rate of payroll deductions
shall be deemed, to the extent of the increase, an enrollment in the next
available Offer Period. The portion of payroll deductions that accumulate at
the rate previously in effect, however, shall be deemed accumulated in the
ongoing Offer Period, except to the extent otherwise provided in Section 4(c).
A Participant may not increase the rate of payroll deductions for an existing
Offer Period. A Participant's subscription agreement shall remain in effect for
successive Offer Periods unless terminated as provided in Section 10.
7. Grant of Option. On the Enrollment Date, each Participant in such
---------------
Offer Period shall be granted an option to purchase on each Exercise Date of
such Offer Period (at the applicable Purchase Price) up to a number of shares of
the Common Stock determined by dividing such Participant's payroll deductions
accumulated prior to such Exercise Date and retained in the Participant's
account as of the Exercise Date by the applicable Purchase Price; provided (i)
that such purchase shall be subject to the limitations set forth in Sections
3(b) and 12 hereof, and (ii) the maximum number of shares of Common Stock a
Participant shall be permitted to purchase in any Purchase Period shall be 1,000
shares, subject to adjustment as provided in Section 18 hereof. Exercise of the
option shall occur as provided in Section 8, unless the Participant has
withdrawn pursuant to Section 10, and the option, to the extent not exercised,
shall expire on the last day of the Offer Period.
8. Exercise of Option. Unless a Participant withdraws from the Plan
------------------
as provided in Section 10, below, the Participant's option for the purchase of
shares shall be exercised automatically on each Exercise Date, and the maximum
number of full shares subject to the option shall be purchased for such
Participant at the applicable Purchase Price with the accumulated payroll
deductions in the Participant's account. No fractional shares shall be
purchased; any payroll deductions accumulated in a Participant's account which
are not sufficient to purchase a full share shall be carried over to the next
Purchase Period or Offer
6
<PAGE>
Period, whichever applies, or returned to the Participant, if the Participant
withdraws from the Plan. Notwithstanding the foregoing, any amount remaining in
a Participant's account following the purchase of shares on an Exercise Date due
to the application of Section 423(b)(8) of the Code or Section 7, above, shall
be returned to the Participant and shall not be carried over to the next Offer
Period. During a Participant's lifetime, a Participant's option to purchase
shares hereunder is exercisable only by the Participant.
9. Delivery. Upon receipt of a request from a Participant after each
--------
Exercise Date on which a purchase of shares occurs, the Company shall arrange
the delivery to the Participant, as promptly as practicable, of a certificate
representing the shares purchased upon exercise of the Participant's option.
10. Withdrawal; Termination of Employment.
-------------------------------------
(a) A Participant may withdraw all but not less than all the payroll
deductions credited to the Participant's account and not yet used to exercise an
option under the Plan at any time by giving written notice to the Company in the
form of Exhibit B to this Plan. All of the Participant's payroll deductions
credited to the Participant's account shall be paid to the Participant as
promptly as practicable after receipt of notice of withdrawal, the Participant's
option for the Offer Period shall be automatically terminated, and no further
payroll deductions for the purchase of shares shall be made during the Offer
Period. If a Participant withdraws from an Offer Period, payroll deductions
shall not resume at the beginning of the succeeding Offer Period unless the
Participant delivers to the Company a new subscription agreement.
(b) Upon a Participant's ceasing to be an Employee for any reason or
upon termination of a Participant's employment relationship (as described in
Section 2(j)), the payroll deductions credited to such Participant's account
during the Offer Period but not yet used to exercise an option shall be returned
to such Participant or, in the case of the Participant's death, to the person or
persons entitled thereto under Section 14, and such Participant's option shall
be automatically terminated; provided, however, that if an Exercise Date is
scheduled to occur within three months after the termination of the
Participant's employment, then at the discretion of the Plan Administrator the
payroll deductions credited to such Participant's account prior to termination
of employment may remain so credited and shall be applied to the purchase of
Common Stock on such Exercise Date, unless withdrawn pursuant to Section 10(a).
11. Interest. No interest shall accrue on the payroll deductions
--------
credited to a Participant's account under the Plan.
12. Stock.
-----
(a) The maximum number of shares of Common Stock which shall be made
available for sale under the Plan shall be 250,000 shares, subject to adjustment
upon changes in capitalization of the Company as provided in Section 18. If on
a given Exercise Date the number of shares with respect to which options are to
be exercised exceeds the number of shares then available under the Plan, the
Plan Administrator shall make a pro rata allocation of the shares
7
<PAGE>
remaining available for purchase in as uniform a manner as shall be practicable
and as it shall determine to be equitable.
(b) A Participant shall have no interest or voting right in shares
covered by the Participant's option until such shares are actually purchased on
the Participant's behalf in accordance with the applicable provisions of the
Plan. Except as provided in Section 18, no adjustment shall be made for
dividends, distributions or other rights for which the record date is prior to
the date of such purchase.
(c) Shares to be delivered to a Participant under the Plan shall be
registered in the name of the Participant or in the name of the Participant and
the Participant's spouse.
13. Administration. The Plan shall be administered by the Board or a
--------------
committee of members of the Board appointed by the Board. The Board or its
committee shall have full and exclusive discretionary authority to construe,
interpret and apply the terms of the Plan, to determine eligibility and to
adjudicate all disputed claims filed under the Plan. Every finding, decision
and determination made by the Board or its committee shall, to the full extent
permitted by law, be final and binding upon all persons.
14. Designation of Beneficiary.
--------------------------
(a) A Participant may file with the Company a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
Participant's account under the Plan in the event of such Participant's death.
If a Participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
(b) The designation of beneficiary may be changed by the Participant
(and the Participant's spouse, if any) at any time by filing a new designation
of beneficiary with the Company. In the event of the death of a Participant and
in the absence of a beneficiary validly designated under the Plan who is living
at the time of such Participant's death, the Company shall deliver such shares
or cash to the executor or administrator of the estate of the Participant, or if
no such executor or administrator has been appointed (to the knowledge of the
Plan Administrator), the Plan Administrator, in its discretion, may deliver such
shares or cash to the spouse or to any one or more dependents or relatives of
the Participant, or if no spouse, dependent or relative is known to the Plan
Administrator, then to such other person as the Plan Administrator may
designate.
15. Transferability. Neither payroll deductions credited to a
---------------
Participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 14 hereof) by the Participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Plan Administrator may treat such act as an election to
withdraw funds from an Offer Period in accordance with Section 10.
8
<PAGE>
16. Use of Funds. All payroll deductions received or held by the
------------
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
17. Reports. The Company shall maintain an individual account for
-------
each Participant in the Plan. The Company shall provide, or cause to be
provided, to each Participant at least annually a statements setting forth the
amounts of payroll deductions, the Purchase Price, the number of shares
purchased and the remaining cash balance, if any.
18. Adjustments upon Changes in Capitalization; Corporate
-----------------------------------------------------
Transactions.
- ------------
(a) Adjustments upon Changes in Capitalization. Subject to any
------------------------------------------
required action by the stockholders of the Company, the Reserves, as well as the
Purchase Price, shall be proportionately adjusted for any increase or decrease
in the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other similar event resulting in an increase or decrease in
the number of issued shares of Common Stock. The adjustment shall be made by
the Plan Administrator, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an option. The Plan Administrator may, if it so determines in the exercise
of its sole discretion, make provision for adjusting the Reserves, as well as
the Purchase Price, in the event the Company effects one or more
reorganizations, recapitalizations, rights offerings or other increases or
reductions of shares of its outstanding Common Stock.
(b) Corporate Transactions. In the event of a proposed Corporate
----------------------
Transaction, each option under the Plan shall be assumed or an equivalent option
shall be substituted by such successor corporation or a parent or subsidiary of
such successor corporation, unless the Plan Administrator determines, in the
exercise of its sole discretion and in lieu of such assumption or substitution,
to shorten the Offer Period then in progress by setting a new Exercise Date (the
"New Exercise Date"). If the Plan Administrator shortens the Offer Period then
in progress in lieu of assumption or substitution in the event of a Corporate
Transaction, the Plan Administrator shall notify each Participant in writing, at
least ten days prior to the New Exercise Date, that the Exercise Date for the
Participant's option has been changed to the New Exercise Date and that the
Participant's option shall be exercised automatically on the New Exercise Date,
unless prior to such date the Participant has withdrawn from the Offer Period as
provided in Section 10. For purposes of this Subsection, an option granted
under the Plan shall be deemed to be assumed if, following the Corporate
Transaction, the option confers the right to purchase with substantially
equivalent terms as the original option, for each share of Common Stock subject
to the option immediately prior to the Corporate Transaction, the consideration
(whether stock, cash or other securities or property) received in the Corporate
Transaction by holders of Common Stock for each share of Common Stock held on
the effective date of the Corporate Transaction (and if such holders were
offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares of Common Stock); provided,
however, that if such
9
<PAGE>
consideration received in the Corporate Transaction was not solely common stock
of the successor corporation or its Parent, the Plan Administrator may, with the
consent of the successor corporation and the Participant, provide for the
consideration to be received upon exercise of the option to be solely common
stock of the successor corporation or its Parent equal in fair market value to
the per share consideration received by holders of Common Stock in the Corporate
Transaction.
19. Amendment or Termination.
------------------------
(a) The Plan Administrator may at any time and for any reason
terminate or amend the Plan. Except as provided in Section 18, no such
termination can affect options previously granted, provided that an Offer Period
may be terminated by the Plan Administrator on any Exercise Date if the Plan
Administrator determines that the termination of the Offer Period is in the best
interests of the Company and its stockholders. Except as provided in Section
18, no amendment may make any change in any option theretofore granted which
adversely affects the rights of any Participant. To the extent necessary to
comply with Section 423 of the Code (or any successor rule or provision or any
other applicable law or regulation), the Company shall obtain stockholder
approval in such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the Plan
Administrator shall be entitled to limit the frequency or number of reductions
in the amount withheld during Offer Periods, establish the exchange ratio
applicable to amounts withheld in a currency other than U.S. dollars, establish
additional terms, conditions, rules or procedures to accommodate the rules or
laws of applicable foreign jurisdictions, permit payroll withholding in excess
of the amount designated by a Participant in order to adjust for delays or
mistakes in the Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods or accounting and
crediting procedures to ensure that amounts applied toward the purchase of
Common Stock for each Participant properly correspond with amounts withheld from
the Participant's Compensation, and establish such other limitations or
procedures as the Plan Administrator determines in its sole discretion advisable
and which are consistent with the Plan.
20. Notices. All notices or other communications by a Participant to
-------
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Plan Administrator at the
location, or by the person, designated by the Plan Administrator for the receipt
thereof.
21. Conditions upon Issuance of Shares. Shares shall not be issued
----------------------------------
with respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for
10
<PAGE>
the Company with respect to such compliance. As a condition to the exercise of
an option, the Company may require the Participant to represent and warrant at
the time of any such exercise that the shares are being purchased only for
investment and without any present intention to sell or distribute such shares
if, in the opinion of counsel for the Company, such a representation is required
by any of the aforementioned applicable provisions of law. In addition, no
options shall be exercised or shares issued hereunder before the Plan shall have
been approved by stockholders of the Company as provided in Section 23.
22. Term of Plan. The Plan shall become effective upon the earlier
------------
to occur of its adoption by the Board or its approval by the stockholders of the
Company. It shall continue in effect for a term of ten years unless sooner
terminated under Section 19.
23. Stockholder Approval. Continuance of the Plan shall be subject
--------------------
to approval by the stockholders of the Company within twelve months before or
after the date the Plan is adopted. If such stockholder approval is obtained at
a duly held stockholders' meeting, the Plan must be approved by a majority of
the votes cast at such stockholders' meeting at which a quorum representing a
majority of all outstanding voting stock of the Company is, either in person or
by proxy, present and voting on the Plan. If such stockholder approval is
obtained by written consent, it must be obtained by the written consent of the
holders of a majority of all outstanding voting stock of the Company. However,
approval at a meeting or by written consent may be obtained by a lesser degree
of stockholder approval if the Plan Administrator determines, after consultation
with the Company's legal counsel if the Plan Administrator deems such
consultation advisable, that such a lesser degree of stockholder approval shall
comply with all applicable laws and shall not adversely affect the qualification
of the Plan under Section 423 of the Code.
24. No Employment Rights. The Plan does not, directly or indirectly,
--------------------
create any right for the benefit of any employee or class of employees to
purchase any shares under the Plan, or create in any employee or class of
employees any right with respect to continuation of employment by the Company or
a Designated Parent or Subsidiary, and it shall not be deemed to interfere in
any way with such employer's right to terminate, or otherwise modify, an
employee's employment at any time.
25. Effect of Plan. The provisions of the Plan shall, in accordance
--------------
with its terms, be binding upon, and inure to the benefit of, all successors of
each Participant, including, without limitation, such Participant's estate and
the executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
26. Applicable Law. The laws of the State of New Jersey (excluding
--------------
that body of law pertaining to its conflicts of law) shall govern all matters
relating to this Plan except to the extent it is superseded by the laws of the
United States.
11
<PAGE>
Exhibit 5.1
[LETTERHEAD OF MORRISON & FOERSTER LLP]
May 26,1998
Genesis Direct, Inc.
100 Plaza Drive
Secaucus, New Jersey 07094
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to
be filed with the Securities and Exchange Commission (the "SEC") in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 4,375,000 shares of your common stock (the "Common Shares")
issuable in connection with awards granted pursuant to the Genesis Direct, Inc.
1997 Long-Term Incentive Plan and the Genesis Direct, Inc. 1998 Employee Stock
Purchase Plan (collectively, the "Plans").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the adoption of the
Plans and the authorization of the issuance of the Common Shares, including
shares that may be issued thereunder under awards of stock, options, stock
appreciation rights, restricted stock, performance units, performance shares and
other stock-based awards under the Plans (the "Plan Shares") and such documents
as we have deemed necessary to render this opinion. For the purpose of the
opinion rendered below, we have assumed that in connection with the issuance of
shares under the Plans, the Company will receive consideration in an amount not
less than the aggregate par value of the Plan Shares covered by each such
issuance.
Based upon and subject to the foregoing, it is our opinion that the Plan
Shares, when issued and outstanding pursuant to the terms of the Plans, will be
validly issued, fully paid and nonassessable Common Shares.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ MORRISON & FOERSTER LLP
<PAGE>
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation in the Registration Statement (Form S-8)
pertaining to the 1997 Long-Term Incentive Plan and the 1998 Employee Stock
Purchase Plan of Genesis Direct, Inc. of our report dated February 16, 1998 with
respect to the consolidated financial statements and schedule of Genesis Direct,
Inc. included in its Registration Statement (Form S-1 No. 333-47455), in the
form in which it became effective, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Hackensack, New Jersey
May 26, 1998
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Genesis Direct, Inc.:
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333- ) pertaining to the Genesis Direct, Inc. 1997
Long-Term Incentive Plan and the Genesis Direct, Inc. 1998 Employee Stock
Purchase Plan of our report included in its Registration Statement (Form S-1 No.
47455) which was filed with the Securities and Exchange Commission and declared
effective May 6, 1998. Our report refers to a change in the method of
accounting for income taxes in fiscal 1994.
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Dallas, Texas
May 26, 1998
<PAGE>
EXHIBIT 23.4
[LETTERHEAD OF BOSCIA, GOLDENBERG & COMPANY]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors of
Genesis Direct, Inc.:
As independent certified public accountants, we hereby consent to the use of our
report and to all references to our Firm included in or made a part of this Form
S-8, pertaining to Genesis Direct, Inc. 1997 Long-Term Incentive Plan and the
Genesis Direct, Inc. 1998 Employee Stock Purchase Plan, of our report included
in Genesis Direct, Inc.'s Registration Statement (Form S-1 No. 47455) which was
filed with the Securities and Exchange Commission and Declared effective May 6,
1998.
/s/ BOSCIA, GOLDENBERG & COMPANY
Wayne, New Jersey
May 26, 1998
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference and to all references to our Firm included in or made a part of this
Form S-8, pertaining to the Genesis Direct, Inc. 1997 Long-Term Incentive Plan
and the Genesis Direct, Inc. 1998 Employee Stock Purchase Plan, of our report on
the financial statements of First Step Designs Ltd., included in Genesis Direct,
Inc.'s Registration Statement (Form S-1 No. 47455) which was filed with the
Securities and Exchange Commission and declared effective May 6, 1998.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
May 26, 1998
<PAGE>
Exhibit 23.6
MENDLOWITZ WEITSEN, LLP
Certified Public Accountants
646 HIGHWAY 18
EAST BRUNSWICK, NJ 08816-3711
-----
(732) 613-9700
FAX (732) 613-9705
NEW YORK OFFICE
EDWARD MENDLOWITZ, CPA TWO PENNSYLVANIA PLAZA
PETER A. WEITZEN, CPA NEW YORK, NEW YORK 10121-0001
(212) 465-1040
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 333- ) pertaining to the Genesis Direct,
Inc. 1997 Long-Term Incentive Plan and the Genesis Direct, Inc. 1998
Employee Stock Purchase Plan of our report included in its Registration
Statement (Form S-1 No. 47455) which was filed with the Securities and
Exchange Commission and declared effective May 6, 1998.
/s/ MENDLOWITZ WEITSEN, LLP
MENDLOWITZ WEITSEN, LLP
East Brunswick, New Jersey
May 26, 1998
