<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
thatlook.com, Inc.
---------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Nevada 87-0447497
(State or Other Jurisdiction (IRS Employer ID No.)
of incorporation or organization)
210 West Fourth Street, Suite 101
East Stroudsburg, Pennsylvania 18301
--------------------------
(Address of Principal Executive Offices)
570-420-0318
--------------
(Issuer's Telephone Number, including Area Code)
Consultant Compensation Agreement No. 3 and
1999 Stock Incentive Plan
-------------------------
(Full Title of the Plan)
Gerard A. Powell
210 West Fourth Street, #101
East Stroudsburg, PA 18301
--------------------------
(Name and Address of Agent for Service)
570-420-0318
--------------
(Telephone Number, Including Area Code, of Agent for Service)
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR
INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX: [ ]
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------
Title of Each Proposed Proposed
Class of Maximum Maximum Amount of
Securities to Amount to Price per Aggregate Registration
be Registered be Registered Unit/Share Offering Price Fee
- -----------------------------------------------------------------------------
$0.001 par
value common
voting stock 1,315,553 $2.67 $132,920 $365.72
- -----------------------------------------------------------------------------
* Calculated according to Rule 230.457(h) of the Securities
and Exchange Commission, based upon the exercise price of the
options covering the underlying common stock to be
issued under the Plan.
PART I
Item 1. Plan Information.
- -------------------------
Plan.
----
A copy of the Consultant Compensation Agreement No. 3 (the "Plan")
is attached hereto and incorporated herein by reference.
Item 2. Registrant Information and Employee Plan Annual Information.
- -------------------------------------------------------------------
Available Information.
---------------------
Copies of the Plan, 10-KSB Annual Report of the Registrant for the
year ended June 30, 1998, all 10-QSB Quarterly Reports and any Current
Reports filed with the Securities and Exchange Commission (the "Commission")
during the past twelve months have been provided to the Plan participants.
The Registrant also undertakes to furnish, without charge, to any
such participant or person purchasing any of the securities registered hereby
copies of all of such documentation. Requests should be directed to Gerard
A. Powell, President, at the address and telephone appearing on the Cover Page
of this Registration Statement.
Additional information regarding the Registrant may be reviewed at
the Commission's web site www.sec.gov in the Edgar Archives.
PART II
Information Required in the Registration Statement
--------------------------------------------------
Item 3. Incorporation of Documents by Reference.
- -------------------------------------------------
The following documents are incorporated by reference into this
Registration Statement and made a part hereof, to wit:
(a) The Registrant's 10-KSB Annual Report for the fiscal year
ended June 30, 1998, filed with the Commission on or
about October 6, 1998;
(b) All other reports filed pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act")
for the past twelve months;
(c) Not applicable.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall
also be deemed to be incorporated by reference into this Registration
Statement and made a part hereof from the date of the filing of such
documents.
Item 4. Description of Securities.
- -----------------------------------
The Registrant is authorized to issue one class of securities, being
comprised of $0.001 par value common voting stock.
The holders of the $0.001 par value common stock of the Registrant
have traditional rights as to voting, dividends and liquidation. All shares
of common stock are entitled to one vote on all matters; there are no
pre-emptive rights and cumulative voting is not allowed. The common stock is
not subject to redemption and carries no subscription or conversion rights.
In the event of liquidation of the Registrant, the holders of common stock are
entitled to share equally in corporate assets after satisfaction of all
liabilities.
Item 5. Interest of Named Experts and Counsel.
- -----------------------------------------------
Leonard W. Burningham, Esq., who has prepared this Registration
Statement, the Plan and an Opinion regarding the authorization, issuance and
fully-paid and non-assessable status of the securities covered by this
Registration Statement, owns 6,900 shares of common stock of the Registrant
and is not deemed to be an affiliate of the Registrant or a person associated
with an affiliate of the Registrant. See Item 8 below.
Item 6. Indemnification of Directors and Executive Officers.
- -------------------------------------------------------------
Under the Nevada Revised Statutes, a corporation has the power to
indemnify any person who is made a party to any civil, criminal,
administrative or investigative proceeding, other than an action by or in the
right of the corporation, by reason of the fact that such person was a
director, officer, employee or agent of the corporation, against expenses,
including reasonable attorneys' fees, judgments, fines and amounts paid in
settlement of any such actions; provided, however, in any criminal proceeding,
the indemnified person shall have had no reason to believe the conduct
committed was unlawful.
Item 7. Exemption from Registration Claimed.
- ---------------------------------------------
None.
Item 8. Exhibits.
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Exhibit
Number
- ------
5 Opinion regarding Legality
23.1 Consent of Leonard W. Burningham, Esq.
23.2 Consent of Jones Jensen & Company
Certified Public Accountants
23.3 Consent of Lazar Levine & Felix
Certified Public Accountants
99.1 Consultant Compensation Agreement No. 3
Counterpart Signature Pages with Consultant Response Letters
99.2 1999 Stock Incentive Plan
Item 9. Undertakings.
- ----------------------
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the
"1933 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; and
(iii) To include any additional or changed 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, only to the extent required
by the general rules and regulations of the
Commission.
(2) That, for the purpose of determining any liability under
the 1933 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) That for purposes of determining any liability under the 1933
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(h) Insofar as indemnification for liabilities arising under the
1933 Act, as amended, may be permitted to directors, executive
officers and controlling persons of the Registrant as outlined
above or otherwise, the Registrant has been advised that in the
opinion of the Commission, such indemnification is against
public policy as expressed in the 1933 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,
executive officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, executive 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 1933 Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the 1933 Act, 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, on the date or dates appearing opposite the respective signatures
hereto.
REGISTRANT:
Date: Oct. 27, 1999 By /s/ Gerard A. Powell
-------------- ----------------------
President and Director
Pursuant to the requirements of the 1933 Act, this Registration
Statement has been signed by the following persons in the capacities and on
the date indicated.
Date: Oct. 27, 1999 By /s/ Gerard A. Powell
-------------- ---------------------
President and Director
Date: 11/1/99 By /s/ Saul Epstein
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Director
Date: Nov. 2, 1999 By /s/ J. Peter Gaskins
------------- ---------------------
Director
Date: Oct. 27, 1999 By /s/ Vincent J. Trapasso
-------------- ------------------------
Vice President
Date: Oct. 27, 1999 By /s/ Charlie Lynn Trapasso
--------- --------------------------
Secretary/Treasurer
<PAGE>
Securities and Exchange Commission File No. 0-23905
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
thatlook.com, Inc.
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- -------
5 Opinion regarding Legality
23.1 Consent of Leonard W. Burningham, Esq.
23.2 Consent of Jones Jensen & Company
Certified Public Accountants
23.3 Consent of Lazar Levine & Felix
Certified Public Accountants
99.1 Consultant Compensation Agreement No. 3
Counterpart Signature Pages with Consultant Response Letters
99.2 1999 Stock Incentive Plan
(Letterhead of Leonard W. Burningham, Esq.)
October 27, 1999
thatlook.com, Inc.
210 West Fourth Street, Suite 101
East Stroudsburg, PA 18301
Re: Opinion concerning the legality of the securities to
be issued pursuant to the Registration Statement on
Form S-8 to be filed by thatlook.com, Inc., a Nevada
corporation
Board of Directors:
As counsel for thatlook.com, Inc., a Nevada corporation (the
"Company"), and in connection with the issuance of 65,553 shares of the
Company's $0.001 par value common stock to four individual consultants (the
"Consultants") pursuant to a written compensation agreement, a copy of which
is incorporated herein by reference (the "Consultant Compensation Agreement"
[the "Plan"]), and 1,250,000 shares of the Company's $0.001 par value common
stock pursuant to an employee stock incentive plan ("Stock Incentive Plan")
(collectively, the "Securities"), I have been asked to render an opinion as to
the legality of these Securities, which are to be covered by a Registration
Statement to be filed by the Company on Form S-8 of the Securities and
Exchange Commission (the "Commission"), and as to which this opinion is to be
filed as an exhibit.
As you are aware, no services to be performed and billed to you
which are in any way related to a "capital raising" transaction may be paid by
the issuance of Securities pursuant to the Plan.
You are also aware that I am the owner of 6,900 shares of the
Company's common stock; and that I have no interest in any of the Securities
covered hereby.
In connection with rendering my opinion, which is set forth below,
I have reviewed and examined originals or copies of the following documents,
to-wit:
1. Articles of Incorporation and all amendments thereto;
2. Bylaws;
3. 10-KSB Annual Report for the fiscal year ended June 30,
1998, filed with the Commission on or about October 6, 1998;
4. 10-QSB Quarterly Reports and 8-K Current Reports for the
past twelve months;
5. Copies of the Plan and the Stock Incentive Plan;
6. The Unanimous Consent of the Board of Directors adopting the
Plan and the Stock Incentive Plan, designating the name of the Plan and the
name, address and telephone number of the Plan's Agent; and
7. Correspondence with the four consultants regarding the types
of services rendered and to be rendered, and discussions with them relating to
Securities Act Release No. 33-7646, dated February 26, 1999.
I have also examined various other documents, books, records,
instruments and certificates of public officials, directors, executive
officers and agents of the Company, and have made such investigations as I
have deemed reasonable, necessary or prudent under the circumstances. Also,
in rendering this opinion, I have reviewed various statutes and judicial
precedence as I have deemed relevant or necessary.
Further, as counsel for the Company, I have discussed the items
relied upon in rendering this opinion and the documents I have examined with
one or more directors and executive officers of the Company, and in all
instances, I have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity with the original documents of all documents
submitted to me as certified or photostatic copies and the authenticity of the
originals of such copies. I have further assumed that the recipients of these
Securities under the Plan will have paid the consideration required under the
terms of the Plan prior to the issuance of the Securities, and that none of
the services performed by the recipients shall be related to "capital raising"
transactions.
I have also provided the individual participants in the Plan with
a copy of the documents enumerated in paragraphs 3 through 7, inclusive,
above.
Based upon the foregoing and in reliance thereon, it is my opinion
that, subject to the limitations set forth in the Plan, the Securities to be
issued pursuant to the Plan will, upon their issuance and delivery to the
recipients thereof, after receipt of full payment therefor, be deemed duly and
validly authorized, legally issued and fully paid and non-assessable under the
Nevada Revised Statues.
This opinion is expressly limited in scope to the Securities
described herein and which are to be expressly covered by the above referenced
Registration Statement and does not cover any subsequent issuances of any
securities to be made in the future pursuant to any other plans, if any,
pertaining to services performed in the future. Any such transactions are
required to be included in a new Registration Statement or a post-effective
amendment to the above referenced Registration Statement, which will be
required to include a revised or a new opinion concerning the legality of the
Securities to be issued.
Further, this opinion is limited to the corporate laws of the
State of Nevada and the securities laws, rules and regulations of the United
States, and I express no opinion with respect to the laws of any other
jurisdiction.
I consent to the filing of this opinion with the Commission as an
exhibit to the above referenced Registration Statement; however, this opinion
is not to be used, circulated, quoted or otherwise referred to for any other
purpose without my prior written consent.
This opinion is based upon my knowledge of the law and facts as of
the date hereof, and I assume no duty to communicate with you with respect to
any matter which may hereafter come to my attention.
Yours very sincerely,
/s/ Leonard W. Burningham
Leonard W. Burningham
LWB/sr
cc: thatlook.com, Inc.
(Letterhead of Leonard W. Burningham, Esq.)
October 27, 1999
U.S. Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
Re: Consent to be named in the S-8 Registration Statement
of thatlook.com, Inc., a Nevada corporation (the
"Registrant"), SEC File No.0-23905, to be filed on or
about October 29, 1999, covering the registration and
issuance of 65,553 shares of common stock to four
individual consultants and 1,250,000 shares pursuant
to an Employee Stock Incentive Plan
Ladies and Gentlemen:
I hereby consent to be named in the above referenced Registration
Statement, and to have my opinion appended as an exhibit thereto.
Yours very sincerely,
/s/ Leonard W. Burningham
Leonard W. Burningham
LWB/sr
cc: thatlook.com, Inc.
[LETTERHEAD OF JONES, JENSEN & COMPANY, LLC]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
U.S. Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
Re: Consent to be named in the S-8 Registration Statement
of thatlook.com (formerly "First Target Acquisition,
Inc.") (formerly "Cookie Cup International, Inc.") a
Nevada corporation (the "Registrant"), SEC File
No.0-23905, to be filed on or about October 29, 1999,
covering the registration and issuance of common stock
to four individual consultants and 1,250,000 shares
pursuant to an Employee Stock Incentive Plan
Ladies and Gentlemen:
We hereby consent to the use of our report prepared for First Target
Acquisition, Inc. (formerly "Cookie Cup International, Inc."), a predecessor
of the Registrant, for the years ended June 30, 1998 and 1997, dated July 31,
1998, in the above referenced Registration Statement. We also consent to the
use of our name as experts in such Registration Statement.
Yours very sincerely,
/s/ Jones, Jensen & Company
Jones, Jensen & Company
Salt Lake City, Utah
October 29, 1999
<PAGE>
INDEPENDENT AUDITOR'S CONSENT
-----------------------------
We hereby consent to the use of our report prepared for Cooperative
Images, Inc. and Elective Investments, Inc., subsidiaries of the Registrant,
for the years ended December 31, 1998 and 1997, dated June 17, 1999, in the
above referenced Registration Statement. We also consent to the use of our
name as experts in such Registration Statement.
/s/ LAZAR LEVINE & FELIX LLP
LAZAR LEVINE & FELIX LLP
Certified Public Accountants
New York, New York
November 1, 1999
CONSULTANT COMPENSATION AGREEMENT NO. 3
THIS CONSULTANT COMPENSATION AGREEMENT (the "Plan") is made
this 27th day of October, 1999, among thatlook.com, Inc., a Nevada corporation
("Thatlook"); and the following individuals who have executed and delivered
this Plan by the execution and delivery of the Counterpart Signature Pages
which are designated as Exhibits "A" through "D" hereof: Thomas Joseph, Jr.,
Branden T. Burningham, Esq., Andrew J. Katsock, III, and Allen M. Stern
(collectively, the "Consultants").
WHEREAS, the Board of Directors of thatlook has adopted a
written compensation agreement for compensation of four individual Consultants
who are natural persons; and
WHEREAS, thatlook has engaged the Consultants to provide
services at the request of and subject to the satisfaction of its management;
and
WHEREAS, the Consultants have provided services at the request
and subject to the approval of the management of thatlook; and
WHEREAS, a general description of the nature of the services
performed and to be performed by the Consultants and the maximum value of such
services under this Plan are listed in the Counterpart Signature Pages and
exhibits thereto; and
WHEREAS, thatlook and the Consultants intend that this Plan
and the services performed hereunder shall be made, requested and performed in
such a manner that this Plan shall be a "written compensation agreement" as
defined in Rule 405 of the Securities and Exchange Commission ("Commission")
pursuant to which thatlook may issue "freely tradeable" shares (except as may
be limited by "affiliate" status) of its common stock as payment for services
rendered pursuant to an S-8 Registration Statement to be filed with the
Commission by thatlook;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, it is agreed:
Section 1
Compensation Plan
1.1 Employment. thatlook hereby employs the Consultants and the
Consultants hereby accept such employment, and have and will perform the
services requested by management of thatlook to its satisfaction during the
term hereof. The services performed by the Consultants hereunder have been
and will be personally rendered by the Consultants, and no one acting for or
on behalf of the Consultants, except those persons normally employed by the
consultants in rendering services to others, such as secretaries, bookkeepers
and the like.
1.2 Independent Contractors. Regardless of the Consultants'
status as "employees" under Rule 405 of the Commission, all services rendered
by the Consultants hereunder have been rendered as independent contractors,
and the Consultants shall be liable for any FICA taxes, withholding or other
similar taxes or charges, and the Consultants shall indemnify and hold
thatlook harmless therefrom; it is understood and agreed that the value of all
such items has been taken into account by the Consultants in computing the
billable rate for the services the Consultants have rendered and agreed to
render to thatlook.
1.3 Term. All services performed at the request of thatlook by
the Consultants shall have been performed within 120 days from the date
hereof, at which time this Plan shall terminate, unless otherwise provided
herein; provided, however, this Plan may be extended for an additional 120 day
period by written agreement of thatlook and any of the Consultants.
1.4 Payment. thatlook and the Consultants agree that thatlook
shall pay the invoices of the Consultants for the services performed under
this Plan by the issuance of shares of its common stock at a price per share
that is equal to the amount of the maximum value of the services to be
rendered by each Consultant as indicated on the appropriate counterpart
signature page hereof, divided by the amount of the maximum number of shares
to be issued to such Consultant as set forth therein; provided, however, such
shares of common stock shall be issued pursuant to and shall be subject to the
filing and effectiveness of a Registration Statement on Form S-8 covering such
shares with the Commission.
1.5 Invoices for Services. On the completion of rendering the
services performed by the Consultants hereunder, each of the Consultants shall
provide thatlook with a written invoice detailing the services duly performed.
Such invoice shall be paid by thatlook in accordance with Section 1.4 above,
subject to the satisfaction of the management of thatlook that the services
have been performed, and to the extent performed, that the performance was in
a satisfactory manner. The submission of an invoice for the services
performed by each of the Consultants shall be deemed to be a subscription by
the respective Consultants to purchase shares of common stock of thatlook at
the price outlined in Section 1.4 above, subject only to the filing and
effectiveness of a Registration Statement on Form S-8 covering such shares
with the Commission.
1.6 Common Stock Price. To the extent deemed required or
necessary and for all purposes of this Plan, the Consultants shall have an
"option" covering such shares of common stock at the per share price set forth
in paragraph 1.4 above during the term hereof; the Consultants assume the risk
of any decrease in the per share price or value of the shares of common stock
of thatlook that may be issued by thatlook for services performed by the
Consultants hereunder, and the Consultants agree that any such decrease shall
in no way affect the rights, obligations or duties of the Consultants
hereunder.
1.7 Limitation on Services. None of the services rendered by
the Consultants and paid for by the issuance of shares of common stock of
thatlook shall be services related to any "capital raising" transaction.
1.8 Delivery of Shares. On submission of an invoice for
services actually performed by the respective Consultants, and duly verified
to the satisfaction of thatlook, and subject to the filing and effectiveness
of a Registration Statement on Form S-8 of the Commission covering such
shares, one or more stock certificates representing such shares shall be
delivered to the respective Consultants at the addresses listed on the
Counterpart Signature Pages, unless another address shall be provided to
thatlook in writing prior to the issuance of such shares.
1.9 Adjustments in the Number of Shares of Common Stock and
Price Per Share. thatlook and the Consultants agree that the per share price
of shares of common stock that may be issued by thatlook to the Consultants
for services performed under this Plan has been arbitrarily set by thatlook;
however, in the event thatlook shall undergo a merger, consolidation,
reorganization, or recapitalization, declare a stock dividend of its shares of
common stock or cause to be implemented a forward or reverse stock split which
affects the present number of issued and outstanding shares of common stock of
thatlook prior to the issuance of shares to the Consultants, that the per
share price and the number of shares issuable to the Consultants for services
actually rendered hereunder after such event shall be appropriately adjusted
to reflect any such event.
1.10 Effective Date. The Effective Date of the Plan for each of
the Consultants shall be the date set forth on the respective Counterpart
Signature Pages.
1.11 Conditions. The Plan is subject to the following
conditions, to-wit:
The number of shares of common stock to be issued under the
Plan shall in no event exceed 10% of the total issued and
outstanding shares of common stock of the thatlook.
Section 2
Representations and Warranties of thatlook
thatlook represents and warrants to, and covenants with, the
Consultants as follows:
2.1 Corporate Status. thatlook is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
2.2 Compensation Plan. The Board of Directors of thatlook has
duly adopted a Compensation Plan as defined in Rule 405 of the Commission
pursuant to which thatlook may issue "freely tradeable" shares of its common
stock as payment for services rendered, subject to the filing and
effectiveness of an S-8 Registration Statement to be filed with the Commission
by thatlook.
2.3 Registration Statement on Form S-8. thatlook shall engage
the services of a competent professional to prepare and file a Registration
Statement on Form S-8 with the Commission to cover the shares of common stock
to be issued under the Plan; shall cooperate with such professional in every
manner whatsoever to the extent reasonably required or necessary so that such
Registration Statement shall be competently prepared, which Registration
Statement shall not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading, and
which Registration Statement shall become effective immediately upon its
filing; such Registration Statement shall be prepared at the sole cost and
expense of thatlook; and thatlook will provide to the Consultants prior to the
issuance and delivery of any such shares of common stock a copy of such
Registration Statement, the Compensation Plan adopted by its Board of
Directors, all quarterly, annual or current reports or other documents
incorporated by reference into such Registration Statement and any other
similar reports filed or publicly disseminated following the effective date of
any such Registration Statement.
2.4 Federal and State Securities Laws, Rules and Regulations.
thatlook shall fully comply with any and all federal or state securities laws,
rules and regulations governing the issuance of any such shares of common
stock.
2.5 Limitation on Services. thatlook shall not request the
Consultants to perform any services in connection with any "capital raising"
transaction under this Plan.
2.6 Reports With the Commission. thatlook is required to file
reports with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and thatlook has or will
file with the Commission all reports required to be filed by it forthwith, and
shall continue to file such reports with the Commission so long as required,
but for a period of not less than one year; and such reports are or will be
true and correct in every material respect.
2.7 Corporate Authority and Due Authorization. thatlook has
full corporate power and authority to enter into this Plan and to carry out
its obligations hereunder. Execution of this Plan and performance by thatlook
hereunder have been duly authorized by all requisite corporate action on the
part of thatlook, and this Plan constitutes a valid and binding obligation of
thatlook and performance hereunder will not violate any provision of the
Articles of Incorporation, Bylaws, agreements, mortgages or other commitments
of thatlook.
Section 3
Representations and Warranties of the Consultants
Each of the Consultants represents and warrants to, and
covenants with, thatlook as follows:
3.1 Employment. Each of the Consultants hereby accepts
employment by thatlook for the services performed pursuant to this Agreement.
The services performed by the Consultants hereunder have been personally
rendered by the Consultants, and no one acting for or on behalf of the
Consultants.
3.2 Accredited Investors. Each of the Consultants represents
and warrants that, by reason of income, net assets, education, background and
business acumen, the Consultants have the experience and knowledge to evaluate
the risks and merits attendant to an investment in shares of common stock of
thatlook, either singly or through the aid and assistance of a competent
professional, and are fully capable of bearing the economic risk of loss of
the total investment of services; further, they are "accredited investors" as
that term is defined under the 1933 Act or the rules and regulations
promulgated thereunder.
3.3 Suitability of Investment. Prior to the execution of this
Plan, each of the Consultants shall have provided the services outlined in the
respective Counterpart Signature Pages to thatlook, and the Consultants,
singly, or through the advice of a competent professional, fully believe that
an investment in shares of common stock of thatlook is a suitable investment
for the Consultants.
3.4 Limitation on Services. None of the services rendered by
the Consultants and paid for by the issuance of shares of common stock of
thatlook shall be services related to any "capital raising" transaction.
3.5 Authority and Authorization. Each of the Consultants has
full power and authority to enter into this Plan and carry out the obligations
hereunder. Execution of this Plan and performance by the Consultants
hereunder constitutes a valid and binding obligation of the Consultants and
performance hereunder will not violate any other agreement to which any of the
Consultants is a party.
Section 4
Indemnity
thatlook and the Consultants agree to indemnify and hold the
other harmless for any loss or damage resulting from any misstatement of a
material fact or omission to state a material fact by the other contained
herein or contained in the S-8 Registration Statement of thatlook to be filed
hereunder, to the extent that any misstatement or omission contained in the
Registration Statement was based upon information supplied by the other.
Section 5
Termination
Prior to the performance of services hereunder, this Plan may
be terminated (1) by mutual consent of thatlook and the respective Consultants
in writing; (2) by either the Directors of thatlook or the respective
Consultants if there has been a material misrepresentation or material breach
of any warranty or covenant by the other party; and (3) shall automatically
terminate at the expiration of the term hereof, provided, however, all
representations and warranties shall survive the termination hereof; provided,
further, however, that any obligation of thatlook to pay for any services
actually rendered by the Consultants hereunder shall survive any such
termination.
Section 6
General Provisions
6.1 Further Assurances. At any time, and from time to time,
after the execution hereof, each party will execute such additional
instruments and take such action as may be reasonably requested by the other
party to carry out the intent and purposes of this Plan.
6.2 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first-class registered or certified mail, return
receipt requested, as follows:
If to Thatlook: 210 West Fourth Street, #101
East Stroudsburg, PA 18301
If to Consultants: The addresses listed on the
Counterpart Signature Pages
6.3 Entire Agreement. This Plan constitutes the entire
agreement between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
6.4 Headings. The section and subsection headings in this
Plan are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Plan.
6.5 Governing law. This Plan shall be governed by and construed
and enforced in accordance with the laws of the State of Nevada, except to the
extent pre-empted by federal law, in which event (and to that extent only),
federal law shall govern.
6.6 Assignment. Neither thatlook nor the Consultants can
assign any rights, duties or obligations under this Plan, and in the event of
any such assignment, such assignment shall be deemed null and void.
6.7 Counterparts. This Plan may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Plan effective
the day and year first above written.
THATLOOK.COM, INC.
By /s/ Gerard A. Powell
---------------------
Gerard A. Powell,
President and Director
<PAGE>
EXHIBIT "A"
CONSULTANT COMPENSATION AGREEMENT NO. 3
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 3 between thatlook.com, Inc. and the undersigned
Consultant is executed as of the date set forth hereinbelow.
Consultant:
Thomas Joseph, Jr.
17 Tiller Road
Shavertown, PA 18708
Date: 11/3/99 /s/ Thomas Joseph, Jr.
------- ----------------------
Number of Shares and
Maximum Value
of Services
General Description of Services to be Performed
See Exhibit A-1 attached hereto and incorporated
herein by reference as will be set forth in invoices 6,350
to thatlook as payment of the option price $16,878.32
<PAGE>
EXHIBIT A-1
[LETTERHEAD OF THOMAS JOSEPH JR.]
Leonard W. Burningham, Esq.
Hermes Building, Suite 205
455 East Fifth South
Salt Lake City, Utah 84111-3323
Dear Mr. Burningham:
I have worked with Gerard Powell designing, preparing and placing direct
mail marketing promotions for thatlook.com, Inc. We have collectively tested
various mail packages to generate sales leads for thatlook.com, Inc. Our
current control package has been very successful generating many new
profitable customers. We have accomplished this by specifically targeting
plastic surgeons, dentists, oral surgeons and other medical professionals, who
all wish to increase their businesses by getting new patients. Our mail
marketing packages are designed to get potential customers to call
thatlook.com, Inc. and inquire about their services available. Once the
potential customer calls, it [sic] up to the marketing person at thatlook.com,
Inc. to convert calls into sales.
Please note that all of my services are solely for the purpose of
marketing thatlook.com, Inc's. products and services. They are not for the
purpose of promoting the company's stock or raising capital.
If you need further information or clarification, please contact me at
anytime. Also, please direct all correspondence to the address noted above.
Sincerely,
/s/ Thomas Joseph Jr.
Thomas Joseph Jr.
<PAGE>
EXHIBIT "B"
CONSULTANT COMPENSATION AGREEMENT NO. 3
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 3 between thatlook, Inc. and the undersigned
Consultant is executed as of the date set forth hereinbelow.
Consultant:
Branden T. Burningham, Esq.
455 East 500 South, #205
Salt Lake City, Utah 84111
Date: 11-4-99 /s/ Branden T. Burningham
------- -------------------------
Number of Shares
Maximum Value
of Services
General Description of Services to be Performed
See Exhibit B-1 attached hereto and incorporated
herein by reference as will be set forth in invoices 29,618
to thatlook as payment of the option price $40,000
<PAGE>
EXHIBIT "B-1"
October 27, 1999
Leonard W. Burningham, Esq.
Suite 205, 455 East 500 South
Salt Lake City, Utah 84111
Re: thatlook.com, Inc., a Nevada corporation (the
"Company")
Dear Mr. Burningham:
Thank you for your letter dated September 14, 1999, regarding the
S-8 amendments of the Securities and Exchange Commission, which I have
reviewed.
I am not a promoter or public relations person for the Company or
any other entity. I have not and do not intend to raise any funding for the
Company. The services I have rendered and intend to render for the benefit of
the Company include various non-capital raising legal services, including but
not limited to the preparation and filing of reports with the Securities and
Exchange Commission, minutes, conferences, and telephone conversations with
the Securities and Exchange Commission and the National Association of
Securities Dealers, Inc., regarding certain non-capital raising matters.
I acknowledge receipt of a copy of all reports filed by the
Company with the Securities and Exchange Commission during the past 12 months,
and a copy of the written compensation agreement for my services.
Thank you.
Very truly yours,
/s/ Branden T. Burningham
Branden T. Burningham, Esq.
<PAGE>
EXHIBIT "C"
CONSULTANT COMPENSATION AGREEMENT NO. 3
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 3 between thatlook, Inc. and the undersigned
Consultant is executed as of the date set forth hereinbelow.
Consultant:
Andrew J. Katsock, III
5 Gail Drive
Plains, PA 18702-2701
Date: 11-2-99 /s/ Andrew J. Katsock, III
------- --------------------------
Number of Shares
Maximum Value
of Services
General Description of Services to be Performed
See Exhibit C-1 attached hereto and incorporated
herein by reference as will be set forth in invoices 9,335
to thatlook as payment of the option price $25,000
<PAGE>
EXHIBIT "C-1"
[LETTERHEAD OF ANDREW J. KATSOCK, III]
September 22, 1999
Via Facsimile Only
------------------
Leonard W. Burningham
Lawyer
Hermes Building, Suite 205
455 East Fifth South
Salt Lake City, Utah 84111-3323
Dear Mr. Burningham:
In response to your September 14, 1999 correspondence, attached is a copy
of the Summary that you forwarded to me. Please be advised I have rendered
and continue to render non-capital raising legal services to That Look.com,
Inc.
Kindly provide me with copies of the reports which That Look.com, Inc.
filed with the Securities and Exchange Commission, as well as a copy of the
written consulting agreement regarding the shares to be issued to me pursuant
to the Form S-8. All information and documentation should be forwarded to me
at the above address.
If you should have any questions, please do not hesitate to call me.
Your anticipated cooperation in this matter is appreciated.
Very truly yours,
/s/ Andrew J. Katsock, III
ANDREW J. KATSOCK, III
AJK/fn
Enclosure
cc: That Look.com, Inc.
Attn: Gerard A. Powell
Chief Executive Officer
<PAGE>
EXHIBIT "D"
CONSULTANT COMPENSATION AGREEMENT NO. 3
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consultant
Compensation Agreement No. 3 between thatlook, Inc. and the undersigned
Consultant is executed as of the date set forth hereinbelow.
Consultant:
Allen M. Stern
656 East Swedesford Road, Suite 325
Wayne, PA 19087
Date: 10-28-99 /s/ Allen M. Stern 10/28/99
-------- ---------------------------
Number of Shares
Maximum Value
of Services
General Description of Services to be Performed
See Exhibit D-1 attached hereto and incorporated
herein by reference as will be set forth in invoices 20,250
to thatlook as payment of the option price $51,042.13
<PAGE>
EXHIBIT "D-1"
[LETTERHEAD OF KING MEDIA, INC.]
September 16, 1999
Mr. Leonard W. Burningham
Hermes Building, Suite 205
455 East Fifth South
Salt Lake City, Utah 84111-3323
Dear Leonard,
Jerry Powell faxed your form S-8 to us. It looks fine, and we certainly
qualify to receive it. We are not involved in promoting the stock in any
manner.
My role is to consult with Jerry and thatlook.com on direct response media
planning and placement. The shares should therefore be issued directly to me
personally.
Thanks,
/s/ Allen Stern
Allen Stern
THATLOOK.COM, INC.
1999 STOCK INCENTIVE PLAN
ARTICLE ONE
GENERAL PROVISIONS
PURPOSE OF THE PLAN
This 1999 Stock Incentive Plan is intended to promote the interests of
thatlook.com, Inc., a Nevada corporation, by providing eligible persons in the
Corporation's service with the opportunity to acquire a proprietary interest,
or otherwise increase their proprietary interest, in the Corporation as an
incentive for them to remain in such service.
Capitalized terms shall have the meanings assigned to such terms in the
attached Appendix.
STRUCTURE OF THE PLAN
The Plan shall be divided into five separate equity programs:
The Discretionary Option Grant Program under which eligible
persons may, at the discretion of the Plan Administrator, be
granted options to purchase shares of Common Stock;
The Salary Investment Option Grant Program under which eligible
employees may elect to have a portion of their base salary
invested each year in special option grants;
The Stock Issuance Program under which eligible persons may, at
the discretion of the Plan Administrator, be issued shares of
Common Stock directly, either through the immediate purchase of
such shares or as a bonus for services rendered the Corporation
(or any Parent or Subsidiary);
The Automatic Option Grant Program under which eligible non-
employee Board members shall automatically receive option
grants at designated intervals over their period of continued
Board service; and
The Director Fee Option Grant Program under which non-employee
Board members may elect to have all or any portion of their
annual retainer fee otherwise payable in cash applied to a
special stock option grant.
The provisions of Articles One and Seven shall apply to all equity
programs under the Plan and shall govern the interests of all
persons under the Plan.
ADMINISTRATION OF THE PLAN
The Primary Committee shall have sole and exclusive authority to
administer the Discretionary Option Grant and Stock Issuance
Programs with respect to Section 16 Insiders. Administration of
the Discretionary Option Grant and Stock Issuance Programs with
respect to all other persons eligible to participate in those
programs may, at the Board's discretion, be vested in the Primary
Committee or a Secondary Committee, or the Board may retain the
power to administer those programs with respect to all such
persons. However, any discretionary option grants or stock
issuances for members of the Primary Committee shall be made by a
disinterested majority of the Board.
Members of the Primary Committee or any Secondary Committee shall serve
for such period of time as the Board may determine and may be
removed by the Board at any time. The Board may also at any time
terminate the functions of any Secondary Committee and reassume
all powers and authority previously delegated to such committee.
Each Plan Administrator shall, within the scope of its
administrative functions under the Plan, have full power and
authority (subject to the provisions of the Plan) to establish
such rules and regulations as it may deem appropriate for proper
administration of the Discretionary Option Grant and Stock
Issuance Programs and to make such determinations under, and issue
such interpretations of, the provisions of those programs and any
outstanding options or stock issuances thereunder as it may deem
necessary or advisable. Decisions of the Plan Administrator
within the scope of its administrative functions under the Plan
shall be final and binding on all parties who have an interest in
the Discretionary Option Grant and Stock Issuance Programs under
its jurisdiction or any option or stock issuance thereunder.
The Primary Committee shall have the sole and exclusive authority to
determine which Section 16 Insiders and other highly compensated
Employees shall be eligible for participation in the Salary
Investment Option Grant Program for one or more calendar years.
However, all option grants under the Salary Investment Option
Grant Program shall be made in accordance with the express terms
of that program, and the Primary Committee shall not exercise any
discretionary functions with respect to the option grants made
under that program.
Service on the Primary Committee or the Secondary Committee shall
constitute service as a Board member, and members of each such
committee shall accordingly be entitled to full indemnification
and reimbursement as Board members for their service on such
committee. No member of the Primary Committee or the Secondary
Committee shall be liable for any act or omission made in good
faith with respect to the Plan or any option grants or stock
issuances under the Plan.
Administration of the Automatic Option Grant and Director Fee Option
Grant Programs shall be self-executing in accordance with the
terms of those programs, and no Plan Administrator shall exercise
any discretionary functions with respect to any option grants or
stock issuances made under those programs.
ELIGIBILITY
The persons eligible to participate in the Discretionary Option Grant
and Stock Issuance Programs are as follows:
Employees;
Non-employee members of the Board or the board of directors of any
Parent or Subsidiary; and
Consultants and other independent advisors who provide services to
the Corporation (or any Parent or Subsidiary); PROVIDED,
however:
That none of the services rendered by such consultants or
advisors and paid for by the issuance of shares under
this Plan shall be service related to any "capital
raising" transaction; and
That the issuance of such shares as contemplated in this
paragraph IV.A.3. be subject to satisfaction of the
Corporation and its counsel that both the consultant and
the services rendered fall within the guidelines of the
Securities & Exchange Commission as set forth in S.E.C.
Release No. 33-7646 and in any future S.E.C. guidelines
on this subject.
Only Employees who are Section 16 Insiders or other highly compensated
individuals shall be eligible to participate in the Salary
Investment Option Grant Program.
Each Plan Administrator shall, within the scope of its administrative
jurisdiction under the Plan, have full authority to determine,
With respect to the option grants under the Discretionary Option
Grant Program, which eligible persons are to receive such
grants, the time or times when those grants are to be made,
the number of shares to be covered by each such grant, the
status of the granted option as either an Incentive Option
or a Non-Statutory Option, the time or times when each
option is to become exercisable, the vesting schedule (if
any) applicable to the option shares and the maximum term
for which the option is to remain outstanding and
With respect to stock issuances under the Stock Issuance Program,
which eligible persons are to receive such issuances, the
time or times when the issuances are to be made, the number
of shares to be issued to each Participant, the vesting
schedule (if any) applicable to the issued shares and the
consideration for such shares.
The Plan Administrator shall have the absolute discretion either to
grant options in accordance with the Discretionary Option Grant
Program or to effect stock issuances in accordance with the Stock
Issuance Program.
The individuals who shall be eligible to participate in the Automatic
Option Grant Program shall be limited to:
Those individuals who are or first become non-employee Board
members on or after the Plan Effective Date, whether through
appointment by the Board or election by the Corporation's
stockholders; and
Those individuals who continue to serve as non-employee Board
members at one or more Annual Stockholders Meetings held
after the Plan Effective Date. A non-employee Board member
who has previously been in the employ of the Corporation (or
any Parent or Subsidiary) shall not be eligible to receive
an option grant under the Automatic Option Grant Program at
the time he or she first becomes a non-employee Board
member, but shall be eligible to receive periodic option
grants under the Automatic Option Grant Program while he or
she continues to serve as a non-employee Board member.
All non-employee Board members shall be eligible to participate in the
Director Fee Option Grant Program.
STOCK SUBJECT TO THE PLAN
The stock issuable under the Plan shall be shares of authorized but
unissued or reacquired Common Stock, including shares repurchased
by the Corporation on the open market. The number of shares of
Common Stock initially reserved for issuance over the term of the
Plan shall not exceed 1,250,000 shares. Such reserve shall be
approved by the Corporation's stockholders.
The number of shares of Common Stock available for issuance under the
Plan shall automatically increase on the first trading day of
January each calendar year during the term of the Plan, beginning
with calendar year 2000, by an amount equal to four percent (4%)
of the total number of shares of Common Stock outstanding on the
last trading day in December of the immediately preceding calendar
year, but in no event shall any such annual increase exceed
900,000 shares.
No one person participating in the Plan may receive options, separately
exercisable stock appreciation rights and direct stock issuances
for more than 250,000 shares of Common Stock in the aggregate per
calendar year.
Shares of Common Stock subject to outstanding options shall be available
for subsequent issuance under the Plan to the extent:
Those options expire or terminate for any reason prior to exercise
in full; or
The options are cancelled in accordance with the cancellation-
regrant provisions of Article Two.
Unvested shares issued under the Plan and subsequently cancelled
or repurchased by the Corporation at the original issue price paid
per share, pursuant to the Corporation's repurchase rights under
the Plan shall be added back to the number of shares of Common
Stock reserved for issuance under the Plan and shall accordingly
be available for reissuance through one or more subsequent option
grants or direct stock issuances under the Plan.
However, should the exercise price of an option under the Plan be
paid with shares of Common Stock or should shares of Common Stock
otherwise issuable under the Plan be withheld by the Corporation
in satisfaction of the withholding taxes incurred in connection
with the exercise of an option or the vesting of a stock issuance
under the Plan, then the number of shares of Common Stock
available for issuance under the Plan shall be reduced by the
gross number of shares for which the option is exercised or which
vest under the stock issuance, and not by the net number of shares
of Common Stock issued to the holder of such option or stock
issuance.
Shares of Common Stock underlying one or more stock appreciation
rights exercised under Section V of Article Two, Section III of
Article Three, Section II of Article Five or Section III of
Article Six of the Plan shall NOT be available for subsequent
issuance under the Plan.
If any change is made to the Common Stock by reason of any stock split,
stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock
as a class without the Corporation's receipt of consideration,
appropriate adjustments shall be made by the Plan Administrator
to:
The maximum number and/or class of securities issuable under the
Plan;
The number and/or class of securities for which any one person may
be granted stock options, separately exercisable stock
appreciation rights and direct stock issuances under the
Plan per calendar year;
The number and/or class of securities for which grants are
subsequently to be made under the Automatic Option Grant
Program to new and continuing non-employee Board members;
The number and/or class of securities and the exercise price per
share in effect under each outstanding option under the
Plan; and
The maximum number and/or class of securities by which the share
reserve is to increase automatically each calendar year
pursuant to the provisions of Section V.B of this Article
One. Such adjustments to the outstanding options are to be
effected in a manner which shall preclude the enlargement or
dilution of rights and benefits under such options. The
adjustments determined by the Plan Administrator shall be
final, binding and conclusive.
ARTICLE TWO
DISCRETIONARY OPTION GRANT PROGRAM
OPTION TERMS
Each option shall be evidenced by one or more documents in the form
approved by the Plan Administrator; PROVIDED, however, that each such
document shall comply with the terms specified below. Each document
evidencing an Incentive Option shall, in addition, be subject to the
provisions of the Plan applicable to such options.
EXERCISE PRICE.
The exercise price per share shall be fixed by the Plan
Administrator, but shall not be less than one hundred
percent (100%) of the Fair Market Value per share of Common
Stock on the option grant date.
The exercise price shall become immediately due upon exercise of
the option and shall, subject to the provisions of Section I
of Article Seven and the documents evidencing the option, be
payable in one or more of the forms specified below:
Cash or check made payable to the Corporation;
Shares of Common Stock held for the requisite period
necessary to avoid a charge to the Corporation's
earnings for financial reporting purposes and valued
at Fair Market Value on the Exercise Date; or
To the extent the option is exercised for vested shares,
through a special sale and remittance procedure
pursuant to which the Optionee shall concurrently
provide irrevocable instructions to:
A Corporation-designated brokerage firm to effect the
immediate sale of the purchased shares and remit
to the Corporation, out of the sale proceeds
available on the settlement date, sufficient
funds to cover the aggregate exercise price
payable for the purchased shares plus all
applicable Federal, state and local income and
employment taxes required to be withheld by the
Corporation by reason of such exercise; and
The Corporation to deliver the certificates for the
purchased shares directly to such brokerage firm
in order to complete the sale. Except to the
extent such sale and remittance procedure is
utilized, payment of the exercise price for the
purchased shares must be made on the Exercise
Date.
EXERCISE AND TERM OF OPTIONS.
Each option shall be exercisable at such time or times, during
such period and for such number of shares as shall be determined
by the Plan Administrator and set forth in the documents
evidencing the option. However, no option shall have a term in
excess of ten (10) years measured from the option grant date.
EFFECT OF TERMINATION OF SERVICE.
The following provisions shall govern the exercise of any options
held by the Optionee at the time of cessation of Service or
death:
Any option outstanding at the time of the Optionee's
cessation of Service for any reason shall remain
exercisable for such period of time thereafter as
shall be determined by the Plan Administrator and set
forth in the documents evidencing the option, but no
such option shall be exercisable after the expiration
of the option term.
Any option held by the Optionee at the time of death and
exercisable in whole or in part at that time may be
subsequently exercised by the personal representative
of the Optionee's estate or by the person or persons
to whom the option is transferred pursuant to the
Optionee's will or in accordance with the laws of
descent and distribution or by the Optionee's
designated beneficiary or beneficiaries of that
option.
Should the Optionee's Service be terminated for Misconduct,
then all outstanding options held by the Optionee
shall terminate immediately and cease to be
outstanding.
During the applicable post-Service exercise period, the
option may not be exercised in the aggregate for more
than the number of vested shares for which the option
is exercisable on the date of the Optionee's cessation
of Service. Upon the expiration of the applicable
exercise period or (if earlier) upon the expiration of
the option term, the option shall terminate and cease
to be outstanding for any vested shares for which the
option has not been exercised. However, the option
shall, immediately upon the Optionee's cessation of
Service, terminate and cease to be outstanding to the
extent the option is not otherwise at that time
exercisable for vested shares.
The Plan Administrator shall have complete discretion, exercisable
either at the time an option is granted or at any time while
the option remains outstanding, to:
Extend the period of time for which the option is to remain
exercisable following the Optionee's cessation of
Service from the limited exercise period otherwise in
effect for that option to such greater period of time
as the Plan Administrator shall deem appropriate, but
in no event beyond the expiration of the option term;
and/or
Permit the option to be exercised, during the applicable
post-Service exercise period, not only with respect to
the number of vested shares of Common Stock for which
such option is exercisable at the time of the
Optionee's cessation of Service but also with respect
to one or more additional installments in which the
Optionee would have vested had the Optionee continued
in Service.
STOCKHOLDER RIGHTS
The holder of an option shall have no stockholder rights with
respect to the shares subject to the option until such person
shall have exercised the option, paid the exercise price and
become a holder of record of the purchased shares.
REPURCHASE RIGHTS
The Plan Administrator shall have the discretion to grant options
which are exercisable for unvested shares of Common Stock. Should
the Optionee cease Service while holding such unvested shares, the
Corporation shall have the right to repurchase, at the exercise
price paid per share, any or all of those unvested shares. The
terms upon which such repurchase right shall be exercisable
(including the period and procedure for exercise and the
appropriate vesting schedule for the purchased shares) shall be
established by the Plan Administrator and set forth in the
document evidencing such repurchase right.
LIMITED TRANSFERABILITY OF OPTIONS
During the lifetime of the Optionee, Incentive Options shall be
exercisable only by the Optionee and shall not be assignable or
transferable other than by will or by the laws of descent and
distribution following the Optionee's death. However, a Non-
Statutory Option may, in connection with the Optionee's estate
plan, be assigned in whole or in part during the Optionee's
lifetime to one or more members of the Optionee's immediate family
or to a trust established exclusively for one or more such family
members. The assigned portion may only be exercised by the person
or persons who acquire a proprietary interest in the option
pursuant to the assignment. The terms applicable to the assigned
portion shall be the same as those in effect for the option
immediately prior to such assignment and shall be set forth in
such documents issued to the assignee as the Plan Administrator
may deem appropriate.
Notwithstanding the foregoing, the Optionee may also designate one
or more persons as the beneficiary or beneficiaries of his or her
outstanding options under this Article Two, and those options
shall, in accordance with such designation, automatically be
transferred to such beneficiary or beneficiaries upon the
Optionee's death while holding those options. Such beneficiary or
beneficiaries shall take the transferred options subject to all
the terms and conditions of the applicable agreement evidencing
each such transferred option, including (without limitation) the
limited time period during which the option may be exercised
following the Optionee's death.
INCENTIVE OPTIONS
The terms specified below shall be applicable to all Incentive Options.
Except as modified by the provisions of this Section II, all the
provisions of Articles One, Two and Seven shall be applicable to
Incentive Options. Options which are specifically designated as Non-
Statutory Options when issued under the Plan shall NOT be subject to the
terms of this Section II.
ELIGIBILITY
Incentive Options may only be granted to Employees.
DOLLAR LIMITATION
The aggregate Fair Market Value of the shares of Common Stock
(determined as of the respective date or dates of grant) for which
one or more options granted to any Employee under the Plan (or any
other option plan of the Corporation or any Parent or Subsidiary)
may for the first time become exercisable as Incentive Options
during any one calendar year shall not exceed the sum of One
Hundred Thousand Dollars ($100,000). To the extent the Employee
holds two (2) or more such options which become exercisable for
the first time in the same calendar year, the foregoing limitation
on the exercisability of such options as Incentive Options shall
be applied on the basis of the order in which such options are
granted.
10% STOCKHOLDER
If any Employee to whom an Incentive Option is granted is a 10%
Stockholder, then the exercise price per share shall not be less
than one hundred ten percent (110%) of the Fair Market Value per
share of Common Stock on the option grant date, and the option
term shall not exceed five (5) years measured from the option
grant date.
CORPORATE TRANSACTION/CHANGE IN CONTROL
In the event of any Corporate Transaction, each outstanding option shall
automatically accelerate so that each such option shall,
immediately prior to the effective date of the Corporate
Transaction, become fully exercisable for the total number of
shares of Common Stock at the time subject to such option and may
be exercised for any or all of those shares as fully vested shares
of Common Stock. However, an outstanding option shall NOT become
exercisable on such an accelerated basis if and to the extent:
Such option is, in connection with the Corporate Transaction, to
be assumed by the successor corporation (or parent thereof);
or
Such option is to be replaced with a cash incentive program of the
successor corporation which preserves the spread existing at
the time of the Corporate Transaction on any shares for
which the option is not otherwise at that time exercisable
and provides for subsequent payout in accordance with the
same exercise/vesting schedule applicable to those option
shares; or
The acceleration of such option is subject to other limitations
imposed by the Plan Administrator at the time of the option
grant.
All outstanding repurchase rights shall automatically terminate, and the
shares of Common Stock subject to those terminated rights shall
immediately vest in full, in the event of any Corporate
Transaction, except to the extent:
Those repurchase rights are to be assigned to the successor
corporation (or parent thereof) in connection with such
Corporate Transaction; or
Such accelerated vesting is precluded by other limitations imposed
by the Plan Administrator at the time the repurchase right
is issued.
Immediately following the consummation of the Corporate Transaction, all
outstanding options shall terminate and cease to be outstanding,
except to the extent assumed by the successor corporation (or
parent thereof).
Each option which is assumed in connection with a Corporate Transaction
shall be appropriately adjusted, immediately after such Corporate
Transaction, to apply to the number and class of securities which
would have been issuable to the Optionee in consummation of such
Corporate Transaction had the option been exercised immediately
prior to such Corporate Transaction. Appropriate adjustments to
reflect such Corporate Transaction shall also be made to:
The exercise price payable per share under each outstanding
option, PROVIDED the aggregate exercise price payable for
such securities shall remain the same;
The maximum number and/or class of securities available for
issuance over the remaining term of the Plan; and
The maximum number and/or class of securities for which any one
person may be granted stock options, separately exercisable
stock appreciation rights and direct stock issuances under
the Plan per calendar year; and
The maximum number and/or class of securities by which the share
reserve is to increase automatically each calendar year.
The Plan Administrator shall have the discretionary authority to
structure one or more outstanding options under the Discretionary
Option Grant Program so that those options shall, immediately
prior to the effective date of such Corporate Transaction, become
fully exercisable for the total number of shares of Common Stock
at the time subject to those options and may be exercised for any
or all of those shares as fully vested shares of Common Stock,
whether or not those options are to be assumed in the Corporate
Transaction. In addition, the Plan Administrator shall have the
discretionary authority to structure one or more of the
Corporation's repurchase rights under the Discretionary Option
Grant Program so that those rights shall not be assignable in
connection with such Corporate Transaction and shall accordingly
terminate upon the consummation of such Corporate Transaction, and
the shares subject to those terminated rights shall thereupon vest
in full.
A. The Plan Administrator shall have full power and authority to
structure one or more outstanding options under the Discretionary
Option Grant Program so that those options shall become fully
exercisable for the total number of shares of Common Stock at the
time subject to those options in the event the Optionee's Service
is subsequently terminated by reason of an Involuntary Termination
within a designated period (not to exceed eighteen (18) months)
following the effective date of any Corporate Transaction in which
those options are assumed and do not otherwise accelerate. Any
options so accelerated shall remain exercisable for fully vested
shares until the EARLIER of:
The expiration of the option term; or
The expiration of the one-(1) year period measured from the
effective date of the Involuntary Termination.
In addition, the Plan Administrator may structure one or more of
the Corporation's repurchase rights so that those rights shall
immediately terminate with respect to any shares held by the
Optionee at the time of his or her Involuntary Termination, and
the shares subject to those terminated repurchase rights shall
accordingly vest in full at that time.
The Plan Administrator shall have the discretionary authority to
structure one or more outstanding options under the Discretionary
Option Grant Program so that those options shall, immediately
prior to the effect date of a Change in Control, become fully
exercisable for the total number of shares of Common Stock at the
time subject to those options and may be exercised for any or all
of those shares as fully vested shares of Common Stock. In
addition, the Plan Administrator shall have the discretionary
authority to structure one or more of the Corporation's repurchase
rights under the Discretionary Option Grant Program so that those
rights shall terminate automatically upon the consummation of such
Change in Control, and the shares subject to those terminated
rights shall thereupon vest in full. Alternatively, the Plan
Administrator may condition the automatic acceleration of one or
more outstanding options under the Discretionary Option Grant
Program and the termination of one or more of the Corporation's
outstanding repurchase rights under such program upon the
subsequent termination of the Optionee's Service by reason of an
Involuntary Termination within a designated period (not to exceed
eighteen (18) months) following the effective date of such Change
in Control.
Each option so accelerated shall remain exercisable for fully
vested shares until the EARLIER of:
The expiration of the option term; or
The expiration of the one-(1) year period measured from the
effective date of Optionee's cessation of Service.
The portion of any Incentive Option accelerated in connection with a
Corporate Transaction or Change in Control shall remain
exercisable as an Incentive Option only to the extent the
applicable One Hundred Thousand Dollar ($100,000) limitation is
not exceeded. To the extent such dollar limitation is exceeded,
the accelerated portion of such option shall be exercisable as a
Non-Statutory Option under the Federal tax laws.
The outstanding options shall in no way affect the right of the
Corporation to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its
business or assets.
IV. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any time
and from time to time, with the consent of the affected option holders,
the cancellation of any or all outstanding options under the
Discretionary Option Grant Program (including outstanding options
incorporated from the Predecessor Plan) and to grant in substitution new
options covering the same or different number of shares of Common Stock
but with an exercise price per share based on the Fair Market Value per
share of Common Stock on the new grant date.
V. STOCK APPRECIATION RIGHTS
The Plan Administrator shall have full power and authority to grant to
selected Optionees tandem stock appreciation rights and/or limited
stock appreciation rights.
The following terms shall govern the grant and exercise of tandem stock
appreciation rights:
One or more Optionees may be granted the right, exercisable upon
such terms as the Plan Administrator may establish, to elect
between the exercise of the underlying option for shares of
Common Stock and the surrender of that option in exchange
for a distribution from the Corporation in an amount equal
to the excess of:
The Fair Market Value (on the option surrender date) of the
number of shares in which the Optionee is at the time
vested under the surrendered option (or surrendered
portion thereof) over;
The aggregate exercise price payable for such shares.
No such option surrender shall be effective unless it is approved
by the Plan Administrator, either at the time of the actual
option surrender or at any earlier time. If the surrender
is so approved, then the distribution to which the Optionee
shall be entitled may be made in shares of Common Stock
valued at Fair Market Value on the option surrender date, in
cash, or partly in shares and partly in cash, as the Plan
Administrator shall in its sole discretion deem appropriate.
If the surrender of an option is not approved by the Plan
Administrator, then the Optionee shall retain whatever
rights the Optionee had under the surrendered option (or
surrendered portion thereof) on the option surrender date
and may exercise such rights at any time prior to the LATER
of:
Five (5) business days after the receipt of the rejection
notice; or
The last day on which the option is otherwise exercisable in
accordance with the terms of the documents evidencing
such option, but in no event may such rights be
exercised more than ten (10) years after the option
grant date.
The following terms shall govern the grant and exercise of limited stock
appreciation rights:
One or more Section 16 Insiders may be granted limited stock
appreciation rights with respect to their outstanding
options.
Upon the occurrence of a Hostile Take-Over, each individual
holding one or more options with such a limited stock
appreciation right shall have the unconditional right
(exercisable for a thirty (30)-day period following such
Hostile Take-Over) to surrender each such option to the
Corporation. In return for the surrendered option, the
Optionee shall receive a cash distribution from the
Corporation in an amount equal to the excess of:
The Take-Over Price of the shares of Common Stock at the
time subject to such option (whether or not the
Optionee is otherwise vested in those shares) over;
The aggregate exercise price payable for those shares. Such
cash distribution shall be paid within five (5) days
following the option surrender date.
At the time such limited stock appreciation right is granted, the
Plan Administrator shall pre-approve any subsequent exercise
of that right in accordance with the terms of this Paragraph
C. Accordingly, no further approval of the Plan
Administrator or the Board shall be required at the time of
the actual option surrender and cash distribution.
ARTICLE THREE
SALARY INVESTMENT OPTION GRANT PROGRAM
I. OPTION GRANTS
The Primary Committee shall have the sole and exclusive authority to
determine the calendar year or years (if any) for which the Salary
Investment Option Grant Program is to be in effect and to select the
Section 16 Insiders and other highly compensated Employees eligible to
participate in the Salary Investment Option Grant Program for such
calendar year or years. Each selected individual who elects to
participate in the Salary Investment Option Grant Program must, prior to
the start of each calendar year of participation, file with the Plan
Administrator (or its designate) an irrevocable authorization directing
the Corporation to reduce his or her base salary for that calendar year
by an amount not less than Ten Thousand Dollars ($10,000.00) nor more
than Fifty Thousand Dollars ($50,000.00). Each individual who files
such a timely authorization shall automatically be granted an option
under the Salary Investment Grant Program on the first trading day in
January of the calendar year for which the salary reduction is to be in
effect.
OPTION TERMS
Each option shall be a Non-Statutory Option evidenced by one or more
documents in the form approved by the Plan Administrator; PROVIDED,
however, that each such document shall comply with the terms specified
below.
EXERCISE PRICE
The exercise price per share shall be thirty-three and one-third
percent (33-1/3%) of the Fair Market Value per share of
Common Stock on the option grant date.
The exercise price shall become immediately due upon exercise of
the option and shall be payable in one or more of the
alternative forms authorized under the Discretionary Option
Grant Program. Except to the extent the sale and remittance
procedure specified thereunder is utilized, payment of the
exercise price for the purchased shares must be made on the
Exercise Date.
NUMBER OF OPTION SHARES.
The number of shares of Common Stock subject to the option shall
be determined pursuant to the following formula (rounded down to
the nearest whole number):
X = A DIVIDED BY (B x 66-2/3%), where
X equals the number of option shares;
A equals the dollar amount of the reduction in the
Optionee's base salary for the calendar year to be in
effect pursuant to this program; and
B equals the Fair Market Value per share of Common
Stock on the option grant date.
EXERCISE AND TERM OF OPTIONS.
The option shall become exercisable in a series of twelve (12)
successive equal monthly installments upon the Optionee's
completion of each calendar month of Service in the calendar year
for which the salary reduction is in effect. Each option shall
have a maximum term of ten (10) years measured from the option
grant date.
EFFECT OF TERMINATION OF SERVICE.
Should the Optionee cease Service for any reason while holding one
or more options under this Article Three, then each such option
shall remain exercisable, for any or all of the shares for which
the option is exercisable at the time of such cessation of
Service, until the EARLIER of:
The expiration of the ten (10)-year option term; or
The expiration of the three (3)-year period measured from the date
of such cessation of Service.
Should the Optionee die while holding one or more options under
this Article Three, then each such option may be exercised, for
any or all of the shares for which the option is exercisable at
the time of the Optionee's cessation of Service (less any shares
subsequently purchased by Optionee prior to death), by the
personal representative of the Optionee's estate or by the person
or persons to whom the option is transferred pursuant to the
Optionee's will or in accordance with the laws of descent and
distribution or by the designated beneficiary or beneficiaries of
such option. Such right of exercise shall lapse, and the option
shall terminate, upon the EARLIER of:
the expiration of the ten (10)-year option term; or
The three (3)-year period measured from the date of the Optionee's
cessation of Service.
However, the option shall, immediately upon the Optionee's
cessation of Service for any reason, terminate and cease to remain
outstanding with respect to any and all shares of Common Stock for
which the option is not otherwise at that time exercisable.
CORPORATE TRANSACTION/ CHANGE IN CONTROL/ HOSTILE TAKE-OVER
In the event of any Corporate Transaction while the Optionee remains in
Service, each outstanding option held by such Optionee under this
Salary Investment Option Grant Program shall automatically
accelerate so that each such option shall, immediately prior to
the effective date of the Corporate Transaction, become fully
exercisable for the total number of shares of Common Stock at the
time subject to such option and may be exercised for any or all of
those shares as fully-vested shares of Common Stock. Each such
outstanding option shall terminate immediately following the
Corporate Transaction, except to the extent assumed by the
successor corporation (or parent thereof) in such Corporate
Transaction. Any option so assumed and shall remain exercisable
for the fully-vested shares until the EARLIER of:
The expiration of the ten (10)-year option term; or
The expiration of the three (3)-year period measured from the date
of the Optionee's cessation of Service.
In the event of a Change in Control while the Optionee remains in
Service, each outstanding option held by such Optionee under this
Salary Investment Option Grant Program shall automatically
accelerate so that each such option shall immediately become fully
exercisable for the total number of shares of Common Stock at the
time subject to such option and may be exercised for any or all of
those shares as fully-vested shares of Common Stock. The option
shall remain so exercisable until the EARLIEST to occur of:
The expiration of the ten (10)-year option term;
The expiration of the three (3)-year period measured from the date
of the Optionee's cessation of Service;
The termination of the option in connection with a Corporate
Transaction; or
The surrender of the option in connection with a Hostile Take-
Over.
Upon the occurrence of a Hostile Take-Over, the Optionee shall have a
thirty (30)-day period in which to surrender to the Corporation
each outstanding option granted him or her under the Salary
Investment Option Grant Program. The Optionee shall in return be
entitled to a cash distribution from the Corporation in an amount
equal to the excess of:
The Take-Over Price of the shares of Common Stock at the time
subject to the surrendered option (whether or not the
Optionee is otherwise at the time vested in those shares)
over
The aggregate exercise price payable for such shares.
Such cash distribution shall be paid within five (5) days
following the surrender of the option to the Corporation. The
Primary Committee shall, at the time the option with such limited
stock appreciation right is granted under the Salary Investment
Option Grant Program, pre-approve any subsequent exercise of that
right in accordance with the terms of this Paragraph C.
Accordingly, no further approval of the Primary Committee or the
Board shall be required at the time of the actual option surrender
and cash distribution.
Each option which is assumed in connection with a Corporate Transaction
shall be appropriately adjusted, immediately after such Corporate
Transaction, to apply to the number and class of securities which
would have been issuable to the Optionee in consummation of such
Corporate Transaction had the option been exercised immediately
prior to such Corporate Transaction. Appropriate adjustments
shall also be made to the exercise price payable per share under
each outstanding option, PROVIDED the aggregate exercise price
payable for such securities shall remain the same.
The grant of options under the Salary Investment Option Grant Program
shall in no way affect the right of the Corporation to adjust,
reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any partof its business or assets.
REMAINING TERMS
The remaining terms of each option granted under the Salary Investment
Option Grant Program shall be the same as the terms in effect for option
grants made under the Discretionary Option Grant Program.
ARTICLE FOUR STOCK
ISSUANCE PROGRAM
I. STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock Issuance Program
through direct and immediate issuances without any intervening option
grants. Each such stock issuance shall be evidenced by a Stock Issuance
Agreement which complies with the terms specified below. Shares of
Common Stock may also be issued under the Stock Issuance Program
pursuant to share right awards which entitle the recipients to receive
those shares upon the attainment of designated performance goals.
PURCHASE PRICE.
The purchase price per share shall be fixed by the Plan
Administrator, but shall not be less than one hundred
percent (100%) of the Fair Market Value per share of Common
Stock on the issuance date.
Subject to the provisions of Section I of Article Seven, shares of
Common Stock may be issued under the Stock Issuance Program
for any of the following items of consideration which the
Plan Administrator may deem appropriate in each individual
instance:
Cash or check made payable to the Corporation; or
Past services rendered to the Corporation (or any Parent or
Subsidiary).
VESTING PROVISIONS.
Shares of Common Stock issued under the Stock Issuance Program
may, in the discretion of the Plan Administrator, be fully
and immediately vested upon issuance or may vest in one or
more installments over the Participant's period of Service
or upon attainment of specified performance objectives. The
elements of the vesting schedule applicable to any unvested
shares of Common Stock issued under the Stock Issuance
Program shall be determined by the Plan Administrator and
incorporated into the Stock Issuance Agreement. Shares of
Common Stock may also be issued under the Stock Issuance
Program pursuant to share right awards which entitle the
recipients to receive those shares upon the attainment of
designated performance goals.
Any new, substituted or additional securities or other property
(including money paid other than as a regular cash dividend)
which the Participant may have the right to receive with
respect to the Participant's unvested shares of Common Stock
by reason of any stock dividend, stock split,
recapitalization, combination of shares, exchange of shares
or other change affecting the outstanding Common Stock as a
class without the Corporation's receipt of consideration
shall be issued subject to:
The same vesting requirements applicable to the
Participant's unvested shares of Common Stock; and
Such escrow arrangements as the Plan Administrator shall
deem appropriate.
The Participant shall have full stockholder rights with respect to
any shares of Common Stock issued to the Participant under
the Stock Issuance Program, whether or not the Participant's
interest in those shares is vested. Accordingly, the
Participant shall have the right to vote such shares and to
receive any regular cash dividends paid on such shares.
Should the Participant cease to remain in Service while holding
one or more unvested shares of Common Stock issued under the
Stock Issuance Program or should the performance objectives
not be attained with respect to one or more such unvested
shares of Common Stock, then those shares shall be
immediately surrendered to the Corporation for cancellation,
and the Participant shall have no further stockholder rights
with respect to those shares. To the extent the surrendered
shares were previously issued to the Participant for
consideration paid in cash or cash equivalent (including the
Participant's purchase-money indebtedness), the Corporation
shall repay to the Participant the cash consideration paid
for the surrendered shares and shall cancel the unpaid
principal balance of any outstanding purchase-money note of
the Participant attributable to the surrendered shares.
The Plan Administrator may in its discretion waive the surrender
and cancellation of one or more unvested shares of Common
Stock which would otherwise occur upon the cessation of the
Participant's Service or the non-attainment of the
performance objectives applicable to those shares. Such
waiver shall result in the immediate vesting of the
Participant's interest in the shares of Common Stock as to
which the waiver applies. Such waiver may be effected at
any time, whether before or after the Participant's
cessation of Service or the attainment or non-attainment of
the applicable performance objectives.
Outstanding share right awards under the Stock Issuance Program
shall automatically terminate, and no shares of Common Stock
shall actually be issued in satisfaction of those awards, if
the performance goals established for such awards are not
attained. The Plan Administrator, however, shall have the
discretionary authority to issue shares of Common Stock
under one or more outstanding share right awards as to which
the designated performance goals have not been attained.
CORPORATE TRANSACTION/CHANGE IN CONTROL
All of the Corporation's outstanding repurchase rights under the Stock
Issuance Program shall terminate automatically, and all the shares
of Common Stock subject to those terminated rights shall
immediately vest in full, in the event of any Corporate
Transaction, except to the extent:
Those repurchase rights are to be assigned to the successor
corporation (or parent thereof) in connection with such
Corporate Transaction; or
Such accelerated vesting is precluded by other limitations imposed
in the Stock Issuance Agreement.
The Plan Administrator shall have the discretionary authority to
structure one or more of the Corporation's repurchase rights under
the Stock Issuance Program so that those rights shall
automatically terminate in whole or in part, and the shares of
Common Stock subject to those terminated rights shall immediately
vest, in the event the Participant's Service should subsequently
terminate by reason of an Involuntary Termination within a
designated period (not to exceed eighteen (18) months) following
the effective date of any Corporate Transaction in which those
repurchase rights are assigned to the successor corporation (or
parent thereof).
The Plan Administrator shall also have the discretionary authority to
structure one or more of the Corporation's repurchase rights under
the Stock Issuance Program so that those rights shall
automatically terminate in whole or in part, and the shares of
Common Stock subject to those terminated rights shall immediately
vest, in the event the Participant's Service should subsequently
terminate by reason of an Involuntary Termination within a
designated period (not to exceed eighteen (18) months) following
the effective date of any Change in Control.
SHARE ESCROW/LEGENDS
Unvested shares may, in the Plan Administrator's discretion, be held in
escrow by the Corporation until the Participant's interest in such
shares vests or may be issued directly to the Participant with
restrictive legends on the certificates evidencing those unvested
shares.
ARTICLE FIVE
AUTOMATIC OPTION GRANT PROGRAM
I. OPTION TERMS
GRANT DATES. Option grants shall be made on the dates specified below:
Each individual who is currently or is first elected or appointed
as a non-employee Board member at any time on or after the
Plan Effective Date shall automatically be granted, on the
Plan Effective Date or the date of such initial election or
appointment, a Non-Statutory Option to purchase 21,000
shares of Common Stock, provided that individual has not
previously been in the employ of the Corporation or any
Parent or Subsidiary.
On the date of each Annual Stockholders Meeting held after the
Plan Effective Date, each individual who is to continue to
serve as an Eligible Director, whether or not that
individual is standing for re-election to the Board at that
particular Annual Meeting, shall automatically be granted a
Non-Statutory Option to purchase 6,000 shares of Common
Stock, provided such individual has served as a non-employee
Board member for at least six (6) months. There shall be no
limit on the number of such 6,000 share option grants any
one Eligible Director may receive over his or her period of
Board service, and non-employee Board members who have
previously been in the employ of the Corporation (or any
Parent or Subsidiary) or who have otherwise received one or
more stock option grants from the Corporation prior to the
Plan Effective Date shall be eligible to receive one or more
such annual option grants over their period of continued
Board service.
EXERCISE PRICE.
The exercise price per share shall be equal to one hundred percent
(100%) of the Fair Market Value per share of Common Stock on
the option grant date.
The exercise price shall be payable in one or more of the
alternative forms authorized under the Discretionary Option
Grant Program. Except to the extent the sale and remittance
procedure specified thereunder is utilized, payment of the
exercise price for the purchased shares must be made on the
Exercise Date.
OPTION TERM.
Each option shall have a term of ten (10) years measured from the
option grant date.
EXERCISE AND VESTING OF OPTIONS.
Each option shall be immediately exercisable for any or all of the
option shares. However, any shares purchased under the option
shall be subject to repurchase by the Corporation, at the exercise
price paid per share, upon the Optionee's cessation of Board
service prior to vesting in those shares. Each initial 21,000
share grant shall vest, and the Corporation's repurchase right
shall lapse, in a series of six (6) successive equal semi-annual
installments upon the Optionee's completion of each six (6)-month
period of service as a Board member over the thirty-six (36)-month
period measured from the option grant date. Each annual 6,000
share automatic option shall vest, and the Corporation's
repurchase right shall lapse, in two (2) successive equal semi-
annual installments upon the Optionee's completion of each six
(6)-month period of Board service measured from the option grant
date.
LIMITED TRANSFERABILITY OF OPTIONS.
Each option under this Article Five may, in connection with the
Optionee's estate plan, be assigned in whole or in part during the
Optionee's lifetime to one or more members of the Optionee's
immediate family or to a trust established exclusively for one or
more such family members. The assigned portion may only be
exercised by the person or persons who acquire a proprietary
interest in the option pursuant to the assignment. The terms
applicable to the assigned portion shall be the same as those in
effect for the option immediately prior to such assignment and
shall be set forth in such documents issued to the assignee as the
Plan Administrator may deem appropriate. The Optionee may also
designate one or more persons as the beneficiary or beneficiaries
of his or her outstanding options under this Article Three, and
those options shall, in accordance with such designation,
automatically be transferred to such beneficiary or beneficiaries
upon the Optionee's death while holding those options. Such
beneficiary or beneficiaries shall take the transferred options
subject to all the terms and conditions of the applicable
agreement evidencing each such transferred option, including
(without limitation) the limited time period during which the
option may be exercised following the Optionee's death.
TERMINATION OF BOARD SERVICE.
The following provisions shall govern the exercise of any options
held by the Optionee at the time the Optionee ceases to serve as a
Board member:
The Optionee (or, in the event of Optionee's death, the personal
representative of the Optionee's estate or the person or
persons to whom the option is transferred pursuant to the
Optionee's will or in accordance with the laws of descent
and distribution or by the designated beneficiary or
beneficiaries of such option) shall have a twelve (12)-month
period following the date of such cessation of Board service
in which to exercise each such option.
During the twelve (12)-month exercise period, the option may not
be exercised in the aggregate for more than the number of
vested shares of Common Stock for which the option is
exercisable at the time of the Optionee's cessation of Board
service.
Should the Optionee cease to serve as a Board member by reason of
death or Permanent Disability, then all shares at the time
subject to the option shall immediately vest so that such
option may, during the twelve (12)-month exercise period
following such cessation of Board service, be exercised for
all or any portion of those shares as fully-vested shares of
Common Stock.
In no event shall the option remain exercisable after the
expiration of the option term. Upon the expiration of the
twelve (12)-month exercise period or (if earlier) upon the
expiration of the option term, the option shall terminate
and cease to be outstanding for any vested shares for which
the option has not been exercised. However, the option
shall, immediately upon the Optionee's cessation of Board
service for any reason other than death or Permanent
Disability, terminate and cease to be outstanding to the
extent the option is not otherwise at that time exercisable
for vested shares.
CORPORATE TRANSACTION/ CHANGE IN CONTROL/ HOSTILE TAKE-OVER
In the event of any Corporate Transaction, the shares of Common Stock at
the time subject to each outstanding option but not otherwise
vested shall automatically vest in full so that each such option
shall, immediately prior to the effective date of the Corporate
Transaction, become fully exercisable for all of the shares of
Common Stock at the time subject to such option and may be
exercised for all or any portion of those shares as fully-vested
shares of Common Stock. Immediately following the consummation of
the Corporate Transaction, each automatic option grant shall
terminate and cease to be outstanding, except to the extent
assumed by the successor corporation (or parent thereof).
In connection with any Change in Control, the shares of Common Stock at
the time subject to each outstanding option but not otherwise
vested shall automatically vest in full so that each such option
shall, immediately prior to the effective date of the Change in
Control, become fully exercisable for all of the shares of Common
Stock at the time subject to such option and maybe exercised for
all or any portion of those shares as fully-vested shares of
Common Stock. Each such option shall remain exercisable for such
fully-vested option shares until the expiration or sooner
termination of the option term or the surrender of the option in
connection with a Hostile Take-Over.
All outstanding repurchase rights shall automatically terminate, and the
shares of Common Stock subject to those terminated rights shall
immediately vest in full, in the event of any Corporate
Transaction or Change in Control.
Upon the occurrence of a Hostile Take-Over, the Optionee shall have a
thirty (30)-day period in which to surrender to the Corporation
each of his or her outstanding automatic option grants. The
Optionee shall in return be entitled to a cash distribution from
the Corporation in an amount equal to the excess of:
The Take-Over Price of the shares of Common Stock at the time
subject to each surrendered option (whether or not the
Optionee is otherwise at the time vested in those shares)
over;
The aggregate exercise price payable for such shares.
Such cash distribution shall be paid within five (5) days
following the surrender of the option to the Corporation.
Stockholder approval of the Plan shall constitute pre-approval of
the grant of each such limited cash-out right and the subsequent
exercise of that right in accordance with the terms of this
Paragraph D. Accordingly, no approval or consent of the Board or
any Plan Administrator shall be required at the time of the actual
option surrender and cash distribution.
Each option which is assumed in connection with a Corporate Transaction
shall be appropriately adjusted, immediately after such Corporate
Transaction, to apply to the number and class of securities which
would have been issuable to the Optionee in consummation of such
Corporate Transaction had the option been exercised immediately
prior to such Corporate Transaction. Appropriate adjustments
shall also be made to the exercise price payable per share under
each outstanding option, PROVIDED the aggregate exercise price
payable for such securities shall remain the same.
The grant of options under the Automatic Option Grant Program
shall in no way affect the right of the Corporation to adjust,
reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
REMAINING TERMS
The remaining terms of each option granted under the Automatic Option
Grant Program shall be the same as the terms in effect for option grants
made under the Discretionary Option Grant Program.
ARTICLE SIX
DIRECTOR FEE OPTION GRANT PROGRAM
I. OPTION GRANTS
The Primary Committee shall have the sole and exclusive authority to
determine the calendar year or years for which the Director Fee Option
Grant Program is to be in effect. For each such calendar year the
program is in effect, each non-employee Board member may elect to apply
all or any portion of the annual retainer fee otherwise payable in cash
for his or her service on the Board for that year to the acquisition of
a special option grant under this Director Fee Option Grant Program.
Such election must be filed with the Corporation's Chief Financial
Officer prior to first day of the calendar year for which the annual
retainer fee which is the subject of that election is otherwise payable.
Each non-employee Board member who files such a timely election shall
automatically be granted an option under this Director Fee Option Grant
Program on the first trading day in January in the calendar year for
which the annual retainer fee which is the subject of that election
would otherwise be payable in cash.
OPTION TERMS
Each option shall be a Non-Statutory Option governed by the terms and
conditions specified below.
EXERCISE PRICE.
The exercise price per share shall be thirty-three and one-third
percent (33-1/3%) of the Fair Market Value per share of
Common Stock on the option grant date.
The exercise price shall become immediately due upon exercise of
the option and shall be payable in one or more of the
alternative forms authorized under the Discretionary Option
Grant Program. Except to the extent the sale and remittance
procedure specified thereunder is utilized, payment of the
exercise price for the purchased shares must be made on the
Exercise Date.
NUMBER OF OPTION SHARES.
The number of shares of Common Stock subject to the option shall
be determined pursuant to the following formula (rounded down to
the nearest whole number):
X = A DIVIDED BY (B x 66-2/3%),
where X equals the number of option shares,
A equals the portion of the annual retainer fee
subject to the non-employee Board member's election,
and
B equals the Fair Market Value per share of Common
Stock on the option grant date.
EXERCISE AND TERM OF OPTIONS.
The option shall become exercisable in a series of twelve (12)
equal monthly installments upon the Optionee's completion of each
month of Board service over the twelve (12)-month period measured
from the grant date. Each option shall have a maximum term of ten
(10)- years measured from the option grant date.
LIMITED TRANSFERABILITY OF OPTIONS
Each option under this Article Six may, in connection with the
Optionee's estate plan, be assigned in whole or in part during the
Optionee's lifetime to one or more members of the Optionee's
immediate family or to a trust established exclusively for one or
more such family members. The assigned portion may only be
exercised by the person or persons who acquire a proprietary
interest in the option pursuant to the assignment. The terms
applicable to the assigned portion shall be the same as those in
effect for the option immediately prior to such assignment and
shall be set forth in such documents issued to the assignee as the
Plan Administrator may deem appropriate.
The Optionee may also designate one or more persons as the
beneficiary or beneficiaries of his or her outstanding options
under this Article Six, and those options shall, in accordance
with such designation, automatically be transferred to such
beneficiary or beneficiaries upon the Optionee's death while
holding those options. Such beneficiary or beneficiaries shall
take the transferred options subject to all the terms and
conditions of the applicable agreement evidencing each such
transferred option, including (without limitation) the limited
time period during which the option may be exercised following the
Optionee's death.
TERMINATION OF BOARD SERVICE.
Should the Optionee cease Board service for any reason (other than
death or Permanent Disability) while holding one or more options
under this Director Fee Option Grant Program, then each such
option shall remain exercisable, for any or all of the shares for
which the option is exercisable at the time of such cessation of
Board service, until the EARLIER of:
The expiration of the ten (10)-year option term; or
The expiration of the three (3)-year period measured from the date
of such cessation of Board service.
However, each option held by the Optionee under this Director Fee
Option Grant Program at the time of his or her cessation of Board
service shall immediately terminate and cease to remain
outstanding with respect to any and all shares of Common Stock for
which the option is not otherwise at that time exercisable.
DEATH OR PERMANENT DISABILITY
Should the Optionee's service as a Board member cease by reason of
death or Permanent Disability, then each option held by such
Optionee under this Director Fee Option Grant Program shall
immediately become exercisable for all the shares of Common Stock
at the time subject to that option, and the option may be
exercised for any or all of those shares as fully-vested shares
until the EARLIER of:
The expiration of the ten(10)-year option term; or
The expiration of the three (3)-year period measured from the date
of such cessation of Board service.
Should the Optionee die after cessation of Board service but while
holding one or more options under this Director Fee Option Grant
Program, then each such option may be exercised, for any or all of
the shares for which the option is exercisable at the time of the
Optionee's cessation of Board service (less any shares
subsequently purchased by Optionee prior to death), by the
personal representative of the Optionee's estate or by the person
or persons to whom the option is transferred pursuant to the
Optionee's will or in accordance with the laws of descent and
distribution or by the designated beneficiary or beneficiaries of
such option.
Such right of exercise shall lapse, and the option shall
terminate, upon the EARLIER of:
The expiration of the ten (10)-year option term; or
The three (3)-year period measured from the date of the Optionee's
cessation of Board service.
CORPORATE TRANSACTION/CHANGE IN CONTROL/HOSTILE TAKE-OVER
In the event of any Corporate Transaction while the Optionee remains a
Board member, each outstanding option held by such Optionee under
this Director Fee Option Grant Program shall automatically
accelerate so that each such option shall, immediately prior to
the effective date of the Corporate Transaction, become fully
exercisable for the total number of shares of Common Stock at the
time subject to such option and may be exercised for any or all of
those shares as fully-vested shares of Common Stock. Each such
outstanding option shall terminate immediately following the
Corporate Transaction, except to the extent assumed by the
successor corporation (or parent thereof) in such Corporate
Transaction. Any option so assumed and shall remain exercisable
for the fully-vested shares until the EARLIER of:
The expiration of the ten (10)-year option term; or
The expiration of the three (3)-year period measured from the date
of the Optionee's cessation of Board service.
In the event of a Change in Control while the Optionee remains in
Service, each outstanding option held by such Optionee under this
Director Fee Option Grant Program shall automatically accelerate
so that each such option shall immediately become fully
exercisable for the total number of shares of Common Stock at the
time subject to such option and may be exercised for any or all of
those shares as fully-vested shares of Common Stock.
The option shall remain so exercisable until the EARLIEST to occur
of;
The expiration of the ten (10)-year option term;
The expiration of the three (3)-year period measured from the date
of the Optionee's cessation of Board service;
The termination of the option in connection with a Corporate
Transaction; or
The surrender of the option in connection with a Hostile Take-
Over.
Upon the occurrence of a Hostile Take-Over, the Optionee shall have a
thirty (30)-day period in which to surrender to the Corporation
each outstanding option granted him or her under the Director Fee
Option Grant Program.
The Optionee shall in return be entitled to a cash distribution
from the Corporation in an amount equal to the excess of:
The Take-Over Price of the shares of Common Stock at the time
subject to each surrendered option (whether or not the
Optionee is otherwise at the time vested in those shares)
over
The aggregate exercise price payable for such shares.
Such cash distribution shall be paid within five (5) days following
the surrender of the option to the Corporation. Stockholder approval of the
Plan shall constitute pre-approval of the grant of each such limited cash-out
right and the subsequent exercise of that right in accordance with the terms
of this Paragraph C. Accordingly, no approval or consent of the Board or any
Plan Administrator shall be required at the time of the actual option
surrender and cash distribution.
The grant of options under the Director Fee Option Grant Program shall
in no way affect the right of the Corporation to adjust,
reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
REMAINING TERMS
The remaining terms of each option granted under this Director Fee
Option Grant Program shall be the same as the terms in effect for option
grants made under the Discretionary Option Grant Program.
ARTICLE SEVEN
MISCELLANEOUS
I. FINANCING
The Plan Administrator may permit any Optionee or Participant to pay the
option exercise price under the Discretionary Option Grant Program or
the purchase price of shares issued under the Stock Issuance Program by
delivering a full-recourse, interest bearing promissory note payable in
one or more installments. The terms of any such promissory note
(including the interest rate and the terms of repayment) shall be
established by the Plan Administrator in its sole discretion.
In no event may the maximum credit available to the Optionee or
Participant exceed the sum of:
The aggregate option exercise price or purchase price payable for the
purchased shares, plus;
Any Federal, state and local income and employment tax liability
incurred by the Optionee or the Participant in connection with the
option exercise or share purchase.
TAX WITHHOLDING
The Corporation's obligation to deliver shares of Common Stock upon the
exercise of options or the issuance or vesting of such shares
under the Plan shall be subject to the satisfaction of all
applicable Federal, state and local income and employment tax
withholding requirements.
The Plan Administrator may, in its discretion, provide any or all
holders of Non-Statutory Options or unvested shares of Common
Stock under the Plan (other than the options granted or the shares
issued under the Automatic Option Grant or Director Fee Option
Grant Program) with the right to use shares of Common Stock in
satisfaction of all or part of the Taxes incurred by such holders
in connection with the exercise of their options or the vesting of
their shares.
Such right may be provided to any such holder in either or both of
the following formats:
STOCK WITHHOLDING: The election to have the Corporation
withhold, from the shares of Common Stock otherwise issuable
upon the exercise of such Non-Statutory Option or the
vesting of such shares, a portion of those shares with an
aggregate Fair Market Value equal to the percentage of the
Taxes (not to exceed one hundred percent (100%)) designated
by the holder.
STOCK DELIVERY: The election to deliver to the Corporation,
at the time the Non-Statutory Option is exercised or the
shares vest, one or more shares of Common Stock previously
acquired by such holder (other than in connection with the
option exercise or share vesting triggering the Taxes) with
an aggregate Fair Market Value equal to the percentage of
the Taxes (not to exceed one hundred percent (100%))
designated by the holder.
EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective immediately on the Plan Effective Date.
However, the Salary Investment Option Grant Program and the
Director Fee Option Grant Program shall not be implemented until
such time as the Primary Committee may deem appropriate. Options
may be granted under the Discretionary Option Grant at any time on
or after the Plan Effective Date. However, no options granted
under the Plan may be exercised, and no shares shall be issued
under the Plan, until the Plan is approved by the Corporation's
stockholders. If such stockholder approval is not obtained within
twelve (12) months after the Plan Effective Date, then all options
previously granted under this Plan shall terminate and cease to be
outstanding, and no further options shall be granted and no shares
shall be issued under the Plan.
The Plan shall terminate upon the EARLIEST to occur of:
July 31, 2009;
The date on which all shares available for issuance under the Plan
shall have been issued as fully-vested shares; or
The termination of all outstanding options in connection with a
Corporate Transaction.
Should the Plan terminate on July 31, 2009, then all option grants
and unvested stock issuances outstanding at that time shall
continue to have force and effect in accordance with the
provisions of the documents evidencing such grants or issuances.
AMENDMENT OF THE PLAN
The Board shall have complete and exclusive power and authority to amend
or modify the Plan in any or all respects. However, no such
amendment or modification shall adversely affect the rights and
obligations with respect to stock options or unvested stock
issuances at the time outstanding under the Plan unless the
Optionee or the Participant consents to such amendment or
modification. In addition, certain amendments may require
stockholder approval pursuant to applicable laws or regulations.
Options to purchase shares of Common Stock may be granted under the
Discretionary Option Grant and Salary Investment Option Grant
Programs and shares of Common Stock may be issued under the Stock
Issuance Program that are in each instance in excess of the number
of shares then available for issuance under the Plan, provided any
excess shares actually issued under those programs shall be held
in escrow until there is obtained stockholder approval of an
amendment sufficiently increasing the number of shares of Common
Stock available for issuance under the Plan. If such stockholder
approval is not obtained within twelve (12) months after the date
the first such excess issuances are made, then:
Any unexercised options granted on the basis of such excess shares
shall terminate and cease to be outstanding; and
The Corporation shall promptly refund to the Optionees and the
Participants the exercise or purchase price paid for any
excess shares issued under the Plan and held in escrow,
together with interest (at the applicable Short Term Federal
Rate) for the period the shares were held in escrow, and
such shares shall thereupon be automatically cancelled and
cease to be outstanding.
USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of shares of
Common Stock under the Plan shall be used for general corporate
purposes.
REGULATORY APPROVALS
The implementation of the Plan, the granting of any stock option under
the Plan and the issuance of any shares of Common Stock (1) upon
the exercise of any granted option or (2) under the Stock Issuance
Program shall be subject to the Corporation's procurement of all
approvals and permits required by regulatory authorities having
jurisdiction over the Plan, the stock options granted under it and
the shares of Common Stock issued pursuant to it.
No shares of Common Stock or other assets shall be issued or delivered
under the Plan unless and until there shall have been compliance
with all applicable requirements of Federal and state securities
laws, including the filing and effectiveness of the Form S-8
registration statement for the shares of Common Stock issuable
under the Plan, and all applicable listing requirements of any
stock exchange (or the Nasdaq National, Small Cap, or Bulletin
Board Markets, if applicable) on which Common Stock is then listed
for trading.
NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee or the Participant
any right to continue in Service for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the
Corporation (or any Parent or Subsidiary employing or retaining such
person) or of the Optionee or the Participant, which rights are hereby
expressly reserved by each, to terminate such person's Service at any
time for any reason, with or without cause.
<PAGE>
APPENDIX
The following definitions shall be in effect under the Plan:
AUTOMATIC OPTION GRANT PROGRAM shall mean the automatic option grant program
in effect under the Plan.
BOARD shall mean the Corporation's Board of Directors.
CHANGE IN CONTROL shall mean a change in ownership or control of the
Corporation effected through either of the following transactions:
The acquisition, directly or indirectly by any person or related group
of persons (other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under common
control with, the Corporation), of beneficial ownership (within
the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined
voting power of the Corporation's outstanding securities pursuant
to a tender or exchange offer made directly to the Corporation's
stockholders; or
A change in the composition of the Board over a period of thirty-six
(36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either:
Have been Board members continuously since the beginning of such
period; or
Have been elected or nominated for election as Board members
during such period by at least a majority of the Board
members described in clause (a.) who were still in office at
the time the Board approved such election or nomination.
CODE shall mean the Internal Revenue Code of 1986, as amended.
COMMON STOCK shall mean the Corporation's common stock.
CORPORATE TRANSACTION shall mean either of the following stockholder-approved
transactions to which the Corporation is a party:
A merger or consolidation in which securities possessing more than fifty
percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person
or persons different from the persons holding those securities
immediately prior to such transaction; or
The sale, transfer or other disposition of all or substantially all of
the Corporation's assets in complete liquidation or dissolution of
the Corporation.
CORPORATION shall mean thatlook.com, Inc., a Nevada corporation, and any
corporate successor to all or substantially all of the assets or voting
stock of thatlook.com, Inc. which shall by appropriate action adopt the
Plan.
DIRECTOR FEE OPTION GRANT PROGRAM shall mean the special stock option grant in
effect for non-employee Board members under Article Six of the Plan.
DISCRETIONARY OPTION GRANT PROGRAM shall mean the discretionary option grant
program in effect under the Plan.
ELIGIBLE DIRECTOR shall mean a non-employee Board member eligible to
participate in the Automatic Option Grant Program in accordance with the
eligibility provisions of Articles One and Five.
EMPLOYEE shall mean an individual who is in the employ of the Corporation (or
any Parent or Subsidiary), subject to the control and direction of the
employer entity as to both the work to be performed and the manner and
method of performance.
EXERCISE DATE shall mean the date on which the Corporation shall have received
written notice of the option exercise.
FAIR MARKET VALUE per share of Common Stock on any relevant date shall be
determined in accordance with the following provisions:
If the Common Stock is at the time traded on any of the Nasdaq National,
Small Cap, or Bulletin Board Markets, then the Fair Market Value
shall be the closing selling price per share of Common Stock on
the date in question, as such price is reported by the National
Association of Securities Dealers on the applicable market. If
there is no closing selling price for the Common Stock on the date
in question, then the Fair Market Value shall be the closing
selling price on the last preceding date for which such quotation
exists.
If the Common Stock is at the time listed on any Stock Exchange, then
the Fair Market Value shall be the closing selling price per share
of Common Stock on the date in question on the Stock Exchange
determined by the Plan Administrator to be the primary market for
the Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange. If there is no
closing selling price for the Common Stock on the date in
question, then the Fair Market Value shall be the closing selling
price on the last preceding date for which such quotation exists.
HOSTILE TAKE-OVER shall mean the acquisition, directly or indirectly, by any
person or related group of persons (other than the Corporation or a
person that directly or indirectly controls, is controlled by, or is
under common control with, the Corporation) of beneficial ownership
(within the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities pursuant to a tender
or exchange offer made directly to the Corporation's stockholders which
the Board does not recommend such stockholders to accept.
INCENTIVE OPTION shall mean an option which satisfies the requirements of Code
Section 422.
INVOLUNTARY TERMINATION shall mean the termination of the Service of any
individual which occurs by reason of:
Such individual's involuntary dismissal or discharge by the Corporation
for reasons other than Misconduct; or
Such individual's voluntary resignation following:
A change in his or her position with the Corporation which
materially reduces his or her duties and responsibilities or
the level of management to which he or she reports:
A reduction in his or her level of compensation (including base
salary, fringe benefits and target bonus under any
corporate-performance based bonus or incentive programs) by
more than fifteen percent (15%); or
A relocation of such individual's place of employment by more than
fifty (50) miles, provided and only if such change,
reduction or relocation is effected by the Corporation
without the individual's consent.
MISCONDUCT shall mean the commission of any act of fraud, embezzlement or
dishonesty by the Optionee or Participant, any unauthorized use or
disclosure by such person of confidential information or trade secrets
of the Corporation (or any Parent or Subsidiary), or any other
intentional misconduct by such person adversely affecting the business
or affairs of the Corporation(or any Parent or Subsidiary) in a material
manner. The foregoing definition shall not be deemed to be inclusive of
all the acts or omissions which the Corporation (or any Parent or
Subsidiary) may consider as grounds for the dismissal or discharge of
any Optionee, Participant or other person in the Service of the
Corporation (or any Parent or Subsidiary).
A. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
B. NON-STATUTORY OPTION shall mean an option not intended to satisfy the
requirements of Code Section 422.
C. OPTIONEE shall mean any person to whom an option is granted under the
Discretionary Option Grant, Salary Investment Option Grant, Automatic
Option Grant or Director Fee Option Grant Program.
D. PARENT shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided
each corporation in the unbroken chain (other than the Corporation)
owns, at the time of the determination, stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
E. PARTICIPANT shall mean any person who is issued shares of Common Stock
under the Stock Issuance Program.
F. PERMANENT DISABILITY OR PERMANENTLY DISABLED shall mean the inability of
the Optionee or the Participant to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment expected to result in death or to be of continuous duration
of twelve(12) months or more. However, solely for purposes of the
Automatic Option Grant and Director Fee Option Grant Programs, Permanent
Disability or Permanently Disabled shall mean the inability of the non-
employee Board member to perform his or her usual duties as a Board
member by reason of any medically determinable physical or mental
impairment expected to result in death or to be of continuous duration
of twelve (12) months or more.
G. PLAN shall mean the Corporation's 1999 Stock Incentive Plan, as set
forth in this document.
H. PLAN ADMINISTRATOR shall mean the particular entity, whether the Primary
Committee, the Board, or the Secondary Committee, which is authorized to
administer the Discretionary Option Grant and Stock Issuance Programs
with respect to one or more classes of eligible persons, to the extent
such entity is carrying out its administrative functions under those
programs with respect to the persons under its jurisdiction.
I. PLAN EFFECTIVE DATE shall mean the date the Plan shall become effective
and shall be July 31, 1999.
J. PRIMARY COMMITTEE shall mean the committee of two (2) or more non-
employee Board members appointed by the Board to administer the
Discretionary Option Grant and Stock Issuance Programs with respect to
Section 16 Insiders and to administer the Salary Investment Option Grant
Program solely with respect to the selection of the eligible individuals
who may participate in such program.
K. SALARY INVESTMENT OPTION GRANT PROGRAM shall mean the salary investment
option grant program in effect under the Plan.
L. SECONDARY COMMITTEE shall mean a committee of one or more Board members
appointed by the Board to administer the Discretionary Option Grant and
Stock Issuance Programs with respect to eligible persons other than
Section 16 Insiders.
M. SECTION 16 INSIDER shall mean an officer or director of the Corporation
subject to the short-swing profit liabilities of Section 16 of the1934
Act.
N. SERVICE shall mean the performance of services for the Corporation (or
any Parent or Subsidiary) by a person in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or
independent advisor, except to the extent otherwise specifically
provided in the documents evidencing the option grant or stock issuance.
O. STOCK EXCHANGE shall mean either the American Stock Exchange or the New
York Stock Exchange.
P. STOCK ISSUANCE AGREEMENT shall mean the agreement entered into by the
Corporation and the Participant at the time of issuance of shares of
Common Stock under the Stock Issuance Program.
Q. STOCK ISSUANCE PROGRAM shall mean the stock issuance program in effect
under the Plan.
R. SUBSIDIARY shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain
owns, at the time of the determination, stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
S. TAKE-OVER PRICE shall mean the GREATER of (1) the Fair Market Value per
share of Common Stock on the date the option is surrendered to the
Corporation in connection with a Hostile Take-Over or (2) the highest
reported price per share of Common Stock paid by the tender offer or in
effecting such Hostile Take-Over. However, if the surrendered option is
an Incentive Option, the Take-Over Price shall not exceed the clause (1)
price per share.
T. TAXES shall mean the Federal, state and local income and employment tax
liabilities incurred by the holder of Non-Statutory Options or unvested
shares of Common Stock in connection with the exercise of those options
or the vesting of those shares.
U. 10% STOCKHOLDER shall mean the owner of stock (as determined under Code
Section 424(d)) possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Corporation (or any
Parent or Subsidiary).
THATLOOK.COM, INC.
NOTICE OF GRANT OF STOCK OPTION
Notice is hereby given of the following option grant (the "Option") to
purchase shares of the Common Stock of thatlook.com, Inc. (the "Corporation"):
OPTIONEE: _____________________________________________________
GRANT DATE: __________________________________________________
VESTING COMMENCEMENT DATE: _______________________________
EXERCISE PRICE: $ ______________________per share
NUMBER OF OPTION SHARES: _________________________shares
EXPIRATION DATE: ______________________________________________
TYPE OF OPTION:
____________Incentive Stock Option
____________Non-Statutory Stock Option
EXERCISE SCHEDULE: The Option shall become exercisable for twenty-five
percent (25%) of the Option Shares upon Optionee's completion of one (1)
year of Service measured from the Vesting Commencement Date and shall
become exercisable for the balance of the Option Shares in thirty-six
(36) successive equal monthly installments upon Optionee's completion of
each additional month of Service over the thirty-six (36) month period
measured from the first anniversary of the Vesting Commencement Date.
In no event shall the Option become exercisable for any additional
Option Shares after Optionee's cessation of Service.
Optionee understands and agrees that the Option is granted subject to and in
accordance with the terms of the thatlook.com, Inc. 1999 Stock Incentive Plan
(the "Plan"). Optionee further agrees to be bound by the terms of the Plan
and the terms of the Option as set forth in the Stock Option Agreement
attached hereto as EXHIBIT A. Optionee hereby acknowledges the receipt of
the Corporation's periodic reports for the preceding twelve (12) month period
as filed with the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, and attached hereto as EXHIBIT B. A copy of
the Plan is available upon request made to the Corporate Secretary at the
Corporation's principal offices.
EMPLOYMENT AT WILL
Nothing in this Notice or in the attached Stock Option Agreement or in
the Plan shall confer upon Optionee any right to continue in Service for
any period of specific duration or interfere with or otherwise restrict
in any way the rights of the Corporation (or any Parent or Subsidiary
employing or retaining Optionee) or of Optionee, which rights are hereby
expressly reserved by each, to terminate Optionee's Service at any time
for any reason, with or without cause.
DEFINITIONS
All capitalized terms in this Notice shall have the meaning assigned to
them in this Notice or in the attached Stock Option Agreement.
DATED: ____________________
THATLOOK.COM, INC.
By: __________________________
Title:
_________________________
______________________________
OPTIONEE
Address:
______________________________
______________________________
ATTACHMENTS
EXHIBIT A - STOCK OPTION AGREEMENT
EXHIBIT B - PLAN SUMMARY AND PERIODIC S.E.C. FILINGS
EXHIBIT A
STOCK OPTION AGREEMENT
EXHIBIT B
PLAN SUMMARY AND PERIODIC S.E.C. FILINGS
THATLOOK.COM, INC.
STOCK OPTION AGREEMENT
RECITALS:
The Board has adopted the Plan for the purpose of retaining the services of
selected Employees, non-employee members of the Board or of the board of
directors of any Parent or Subsidiary and consultants and other
independent advisors who provide services to the Corporation (or any
Parent or Subsidiary).
Optionee is to render valuable services to the Corporation (or a Parent or
Subsidiary), and this Agreement is executed pursuant to, and is intended
to carry out the purposes of, the Plan in connection with the
Corporation's grant of an option to Optionee.
All capitalized terms in this Agreement shall have the meaning assigned to
them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
GRANT OF OPTION
The Corporation hereby grants to Optionee, as of the Grant Date, an
option to purchase up to the number of Option Shares specified in the
Grant Notice. The Option Shares shall be purchasable from time to time
during the option term specified in Paragraph 2 at the Exercise Price.
OPTION TERM
This option shall have a maximum term of ten (10) years measured from
the Grant Date and shall accordingly expire at the close of business on
the Expiration Date, unless sooner terminated in accordance with
Paragraph 5 or 6.
LIMITED TRANSFERABILITY
This option shall be neither transferable nor assignable by Optionee
other than by will or by the laws of descent and distribution
following Optionee's death and may be exercised, during Optionee's
lifetime, only by Optionee. However, Optionee may designate one
or more persons as the beneficiary or beneficiaries of this
option, and this option shall, in accordance with such
designation, automatically be transferred to such beneficiary or
beneficiaries upon the Optionee's death while holding such option.
Such beneficiary or beneficiaries shall take the transferred
option subject to all the terms and conditions of this Agreement,
including (without limitation) the limited time period during
which this option may, pursuant to Paragraph 5, be exercised
following Optionee's death.
If this option is designated a Non-Statutory Option in the Grant Notice,
then this option may, in connection with the Optionee's estate
plan, be assigned in whole or in part during Optionee's lifetime
to one or more members of Optionee's immediate family or to a
trust established for the exclusive benefit of one or more such
family members. The assigned portion shall be exercisable only by
the person or persons who acquire a proprietary interest in the
option pursuant to such assignment. The terms applicable to the
assigned portion shall be the same as those in effect for this
option immediately prior to such assignment.
DATES OF EXERCISE
This option shall become exercisable for the Option Shares in one or
more installments as specified in the Grant Notice. As the option
becomes exercisable for such installments, those installments shall
accumulate and the option shall remain exercisable for the accumulated
installments until the Expiration Date or sooner termination of the
option term under Paragraph 5 or 6.
CESSATION OF SERVICE
The option term specified in Paragraph 2 shall terminate (and this
option shall cease to be outstanding) prior to the Expiration Date
should any of the following provisions become applicable:
Should Optionee cease to remain in Service for any reason (other than
death, Permanent Disability or Misconduct) while holding this
option, then Optionee shall have a period of three (3) months
(commencing with the date of such cessation of Service) during
which to exercise this option, but in no event shall this option
be exercisable at any time after the Expiration Date.
Should Optionee die while holding this option, then the personal
representative of Optionee's estate or the person or persons to
whom the option is transferred pursuant to Optionee's will or in
accordance with the laws of inheritance shall have the right to
exercise this option. However, if Optionee has designated one or
more beneficiaries of this option, then those persons shall have
the exclusive right to exercise this option following Optionee's
death. Such right shall lapse, and this option shall cease to be
outstanding, upon the EARLIER of (i) the expiration of the twelve
(12)-month period measured from the date of Optionee's death, or
(ii) the Expiration Date.
Should Optionee cease Service by reason of Permanent Disability while
holding this option, then Optionee shall have a period of twelve
(12) months (commencing with the date of such cessation of
Service) during which to exercise this option. In no event shall
this option be exercisable at any time after the Expiration Date.
During the limited period of post-Service exercisability, this option
may not be exercised in the aggregate for more than the number of
Option Shares for which the option is exercisable at the time of
Optionee's cessation of Service. Upon the expiration of such
limited exercise period or (if earlier) upon the Expiration Date,
this option shall terminate and cease to be outstanding for any
exercisable Option Shares for which the option has not been
exercised. However, this option shall, immediately upon
Optionee's cessation of Service for any reason, terminate and
cease to be outstanding with respect to any Option Shares for
which this option is not otherwise at that time exercisable.
Should Optionee's Service be terminated for Misconduct, then this option
shall terminate immediately and cease to remain outstanding.
SPECIAL ACCELERATION OF OPTION
This option, to the extent outstanding at the time of a Corporate
Transaction but not otherwise fully exercisable, shall
automatically accelerate so that this option shall, immediately
prior to the effective date of such Corporate Transaction, become
exercisable for all of the Option Shares at the time subject to
this option and may be exercised for any or all of those Option
Shares as fully vested shares of Common Stock. No such
acceleration of this option shall occur, however, if and to the
extent: (i) this option is, in connection with the Corporate
Transaction, to be assumed by the successor corporation (or parent
thereof) or (ii) this option is to be replaced with a cash
incentive program of the successor corporation which preserves the
spread existing at the time of the Corporate Transaction on the
Option Shares for which this option is not otherwise at that time
exercisable (the excess of the Fair Market Value of those Option
Shares over the aggregate Exercise Price payable for such shares)
and provides for subsequent payout in accordance with the same
option exercise/vesting schedule set forth in the Grant Notice.
Immediately following the Corporate Transaction, this option shall
terminate and cease to be outstanding, except to the extent
assumed by the successor corporation (or parent thereof) in
connection with the Corporate Transaction.
If this option is assumed in connection with a Corporate Transaction,
then this option shall be appropriately adjusted, immediately
after such Corporate Transaction, to apply to the number and class
of securities which would have been issuable to Optionee in
consummation of such Corporate Transaction had the option been
exercised immediately prior to such Corporate Transaction, and
appropriate adjustments shall also be made to the Exercise Price,
PROVIDED the aggregate Exercise Price shall remain the same.
To the extent the option is, in connection with a Corporate Transaction,
to be assumed in accordance with this Paragraph 6, the Option
shall not accelerate upon the occurrence of that Corporate
Transaction, and the Option shall accordingly continue, over
Optionee's period of Service after the Corporate Transaction, to
become exercisable for the Option Shares in one or more
installments in accordance with the provisions of the Option
Agreement. However, immediately upon an Involuntary Termination
of Optionee's Service within eighteen (18) months following such
Corporate Transaction, the assumed Option, to the extent
outstanding at the time but not otherwise fully exercisable, shall
automatically accelerate so that the Option shall become
immediately exercisable for all the Option Shares at the time
subject to the Option and may be exercised for any or all of those
Option Shares as fully vested shares.
Further, the extent to which the Option is to be assumed in
accordance with this paragraph 6, the option shall not accelerate
upon the occurrence of a Change in Control, and the Option shall,
over Optionee's period of Service following such Change in
Control, continue to become exercisable for the Option Shares in
one or more installments in accordance with the provisions of the
Option Agreement.
However, immediately upon an Involuntary Termination of Optionee's
Service within eighteen (18) months following a Change in Control,
the Option, to the extent outstanding at the time but not
otherwise fully exercisable, shall automatically accelerate so
that the Option shall become immediately exercisable for all the
Option Shares at the time subject to the Option and may be
exercised for any or all of those Option Shares as fully vested
shares.
The Option as accelerated pursuant to this Addendum shall remain
so exercisable until the EARLIER of (i) the Expiration Date or
(ii) the expiration of the one (1)-year period measured from the
date of the Optionee's Involuntary Termination.
a. For purposes of paragraph 6.d. above and only as used therein,
the following definitions shall be in effect:
An INVOLUNTARY TERMINATION shall mean the termination of
Optionee's Service by reason of:
Optionee's involuntary dismissal or discharge by the
Corporation for reasons other than Misconduct, or
Optionee's voluntary resignation following
A change in Optionee's position with the Corporation
(or Parent or Subsidiary employing Optionee)
which materially reduces Optionee's duties and
responsibilities or the level of management to
which Optionee reports; or
A reduction in Optionee's level of compensation
(including base salary, fringe benefits and
target bonus under any corporate performance
based bonus or incentive programs) by more than
fifteen percent (15%); or
A relocation of Optionee's place of employment by more
than fifty (50) miles, provided and only if such
change, reduction or relocation is effected by
the Corporation without Optionee's consent.
A CHANGE IN CONTROL shall be deemed to occur in the event of a
change in ownership or control of the Corporation effected
through either of the following transactions:
The acquisition, directly or indirectly, by any person or
related group of persons (other than the Corporation
or a person that directly or indirectly controls, is
controlled by, or is under common control with, the
Corporation) of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities Exchange Act
of 1934, as amended) of securities possessing more
than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities
pursuant to a tender or exchange offer made directly
to the Corporation's stockholders; or
A change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a
majority of the Board members ceases, by reason of one
or more contested elections for Board membership, to
be comprised of individuals who either (1) have been
Board members continuously since the beginning of such
period or (2) have been elected or nominated for
election as Board members during such period by at
least a majority of the Board members described in
clause (1) who were still in office at the time the
Board approved such election or nomination.
This Agreement shall not in any way affect the right of the Corporation
to adjust, reclassify, reorganize or otherwise change its capital
or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or
assets.
ADJUSTMENT IN OPTION SHARES
Should any change be made to the Common Stock by reason of any stock
split, stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock as a
class without the Corporation's receipt of consideration, appropriate
adjustments shall be made to:
The total number and/or class of securities subject to this option; and
The Exercise Price in order to reflect such change and thereby preclude
a dilution or enlargement of benefits hereunder.
STOCKHOLDER RIGHTS
The holder of this option shall not have any stockholder rights with
respect to the Option Shares until such person shall have exercised the
option, paid the Exercise Price and become a holder of record of the
purchased shares.
MANNER OF EXERCISING OPTION
In order to exercise this option with respect to all or any part of the
Option Shares for which this option is at the time exercisable,
Optionee (or any other person or persons exercising the option)
must take the following actions:
Execute and deliver to the Corporation a Notice of Exercise for
the Option Shares for which the option is exercised;
Pay the aggregate Exercise Price for the purchased shares in one
or more of the following forms:
Cash or check made payable to the Corporation;
A promissory note payable to the Corporation, but only to
the extent authorized by the Plan Administrator in
accordance with Paragraph 13;
Shares of Common Stock held by Optionee (or any other person
or persons exercising the option) for the requisite
period necessary to avoid a charge to the
Corporation's earnings for financial reporting
purposes and valued at Fair Market Value on the
Exercise Date; or
Through a special sale and remittance procedure pursuant to
which Optionee (or any other person or persons
exercising the option) shall concurrently provide
irrevocable instructions
To a Corporation-designated brokerage firm to effect
the immediate sale of the purchased shares and
remit to the Corporation, out of the sale
proceeds available on the settlement date,
sufficient funds to cover the aggregate Exercise
Price payable for the purchased shares plus all
applicable Federal, state and local income and
employment taxes required to be withheld by the
Corporation by reason of such exercise and
To the Corporation to deliver the certificates for the
purchased shares directly to such brokerage firm
in order to complete the sale. Except to the
extent the sale and remittance procedure is
utilized in connection with the option exercise,
payment of the Exercise Price must accompany the
Notice of Exercise delivered to the Corporation
in connection with the option exercise.
Furnish to the Corporation appropriate documentation
that the person or persons exercising the option
(if other than Optionee) have the right to
exercise this option.
Make appropriate arrangements with the Corporation (or
Parent or Subsidiary employing or retaining
Optionee) for the satisfaction of all Federal,
state and local income and employment tax
withholding requirements applicable to the
option exercise.
As soon as practical after the Exercise Date, the Corporation shall
issue to or on behalf of Optionee (or any other person or persons
exercising this option) a certificate for the purchased Option
Shares, with the appropriate legends affixed thereto.
In no event may this option be exercised for any fractional shares.
COMPLIANCE WITH LAWS AND REGULATIONS
The exercise of this option and the issuance of the Option Shares upon
such exercise shall be subject to compliance by the Corporation
and Optionee with all applicable requirements of law relating
thereto and with all applicable regulations of any stock exchange
(or the Nasdaq National, Small Cap or Bulletin Board Markets, if
applicable) on which the Common Stock may be listed for trading at
the time of such exercise and issuance.
The inability of the Corporation to obtain approval from any regulatory
body having authority deemed by the Corporation to be necessary to
the lawful issuance and sale of any Common Stock pursuant to this
option shall relieve the Corporation of any liability with respect
to the non-issuance or sale of the Common Stock as to which such
approval shall not have been obtained. The Corporation, however,
shall use its best efforts to obtain all such approvals.
SUCCESSORS AND ASSIGNS
Except to the extent otherwise provided in Paragraphs 3 and 6, the
provisions of this Agreement shall inure to the benefit of, and be
binding upon, the Corporation and its successors and assigns and
Optionee, Optionee's assigns, the legal representatives, heirs and
legatees of Optionee's estate and any beneficiaries of this option
designated by Optionee.
NOTICES
Any notice required to be given or delivered to the Corporation under
the terms of this Agreement shall be in writing and addressed to the
Corporation at its principal corporate offices. Any notice required to
be given or delivered to Optionee shall be in writing and addressed to
Optionee at the address indicated below Optionee's signature line on the
Grant Notice. All notices shall be deemed effective upon personal
delivery or upon deposit in the U.S. mail, postage prepaid and properly
addressed to the party to be notified.
FINANCING
The Plan Administrator may, in its absolute discretion and without any
obligation to do so, permit Optionee to pay the Exercise Price for the
purchased Option Shares by delivering a full-recourse promissory note
payable to the Corporation. The terms of any such promissory note
(including the interest rate, the requirements for collateral and the
terms of repayment) shall be established by the Plan Administrator in
its sole discretion.
CONSTRUCTION
This Agreement and the option evidenced hereby are made and granted
pursuant to the Plan and are in all respects limited by and subject to
the terms of the Plan. All decisions of the Plan Administrator with
respect to any question or issue arising under the Plan or this
Agreement shall be conclusive and binding on all persons having an
interest in this option.
GOVERNING LAW
The interpretation, performance and enforcement of this Agreement shall
be governed by the laws of the State of Pennsylvania without resort to
that State's conflict-of-laws rules.
EXCESS SHARES
If the Option Shares covered by this Agreement exceed, as of the Grant
Date, the number of shares of Common Stock which may without stockholder
approval be issued under the Plan, then this option shall be void with
respect to those excess shares, unless stockholder approval of an
amendment sufficiently increasing the number of shares of Common Stock
issuable under the Plan is obtained in accordance with the provisions of
the Plan.
ADDITIONAL TERMS APPLICABLE TO AN INCENTIVE OPTION
In the event this option is designated an Incentive Option in the Grant
Notice, the following terms and conditions shall also apply to the
grant:
This option shall cease to qualify for favorable tax treatment as an
Incentive Option if (and to the extent) this option is exercised
for one or more Option Shares:
More than three (3) months after the date Optionee ceases to be an
Employee for any reason other than death or Permanent
Disability; or
More than twelve (12) months after the date Optionee ceases to be
an Employee by reason of Permanent Disability.
No installment under this option shall qualify for favorable tax
treatment as an Incentive Option if (and to the extent) the
aggregate Fair Market Value (determined at the Grant Date) of the
Common Stock for which such installment first becomes exercisable
hereunder would, when added to the aggregate value (determined as
of the respective date or dates of grant) of the Common Stock or
other securities for which this option or any other Incentive
Options granted to Optionee prior to the Grant Date (whether under
the Plan or any other option plan of the Corporation or any Parent
or Subsidiary) first become exercisable during the same calendar
year, exceed One Hundred Thousand Dollars ($100,000) in the
aggregate. Should such One Hundred Thousand Dollar($100,000)
limitation be exceeded in any calendar year, this option shall
nevertheless become exercisable for the excess shares in such
calendar year as a Non-Statutory Option.
Should the exercisability of this option be accelerated upon a Corporate
Transaction, then this option shall qualify for favorable tax
treatment as an Incentive Option only to the extent the aggregate
Fair Market Value (determined at the Grant Date) of the Common
Stock for which this option first becomes exercisable in the
calendar year in which the Corporate Transaction occurs does not,
when added to the aggregate value (determined as of the respective
date or dates of grant) of the Common Stock or other securities
for which this option or one or more other Incentive Options
granted to Optionee prior to the Grant Date (whether under the
Plan or any other option plan of the Corporation or any Parent or
Subsidiary) first become exercisable during the same calendar
year, exceed One Hundred Thousand Dollars ($100,000) in the
aggregate. Should the applicable One Hundred Thousand Dollar
($100,000) limitation be exceeded in the calendar year of such
Corporate Transaction, the option may nevertheless be exercised
for the excess shares in such calendar year as a Non-Statutory
Option.
Should Optionee hold, in addition to this option, one or more other
options to purchase Common Stock which become exercisable for the
first time in the same calendar year as this option, then the
foregoing limitations on the exercisability of such options as
Incentive Options shall be applied on the basis of the order in
which such options are granted.
EXHIBIT I
NOTICE OF EXERCISE
I hereby notify thatlook.com, Inc. (the "Corporation") that I elect to
purchase _______________ shares of the Corporation's Common Stock (the
"Purchased Shares") at the option exercise price of $____________ per share
(the "Exercise Price") pursuant to that certain option (the "Option") granted
to me under the Corporation's 1999 Stock Incentive Plan on
_____________________, _______.
Concurrently with the delivery of this Exercise Notice to the Corporation, I
shall hereby pay to the Corporation the Exercise Price for the Purchased
Shares in accordance with the provisions of my agreement with the Corporation
(or other documents) evidencing the Option and shall deliver whatever
additional documents may be required by such agreement as a condition for
exercise. Alternatively, I may utilize the special broker-dealer sale and
remittance procedure specified in my agreement to effect payment of the
ExercisePrice.
_____________________, ________
Date
______________________________
Optionee
Address:
______________________
______________________________
Print name in exact manner it is
to appear on the stock certificate: _______________________________
Address to which certificate is to be
sent, if different from address above: ______________________________
_______________________________
Social Security Number: _______________________________
<PAGE>
APPENDIX
The following definitions shall be in effect under the Agreement:
AGREEMENT shall mean this Stock Option Agreement.
BOARD shall mean the Corporation's Board of Directors.
COMMON STOCK shall mean shares of the Corporation's common stock.
CODE shall mean the Internal Revenue Code of 1986, as amended.
CORPORATE TRANSACTION shall mean either of the following stockholder-approved
transactions to which the Corporation is a party:
A merger or consolidation in which securities possessing more than fifty
percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person
or persons different from the persons holding those securities
immediately prior to such transaction; or
The sale, transfer or other disposition of all or substantially all of
the Corporation's assets in complete liquidation or dissolution of
the Corporation.
CORPORATION shall mean thatlook.com Inc., a Nevada corporation, and any
successor corporation to all or substantially all of the assets or
voting stock of thatlook.com, Inc. which shall by appropriate action
adopt the Plan.
A. EMPLOYEE shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and
direction of the employer entity as to both the work to be performed and
the manner and method of performance.
B. EXERCISE DATE shall mean the date on which the option shall have been
exercised in accordance with Paragraph 9 of the Agreement.
C. EXERCISE PRICE shall mean the exercise price per Option Share as
specified in the Grant Notice.
D. EXPIRATION DATE shall mean the date on which the option expires as
specified in the Grant Notice.
E. FAIR MARKET VALUE per share of Common Stock on any relevant date shall
be determined in accordance with the following provisions:
If the Common Stock is at the time traded on the Nasdaq National, Small
Cap, or Bulletin Board Markets, then the Fair Market Value shall
be deemed equal to the closing selling price per share of Common
Stock on the date in question, as the price is reported by the
National Association of Securities Dealers on the appropriate
Market. If there is no closing selling price for the Common Stock
on the date in question, then the Fair Market Value shall be the
closing selling price on the last preceding date for which such
quotation exists; or
If the Common Stock is at the time listed on any Stock Exchange, then
the Fair Market Value shall be deemed equal to the closing selling
price per share of Common Stock on the date in question on the
Stock Exchange determined by the Plan Administrator to be the
primary market for the Common Stock, as such price is officially
quoted in the composite tape of transactions on such exchange. If
there is no closing selling price for the Common Stock on the date
in question, then the Fair Market Value shall be the closing
selling price on the last preceding date for which such quotation
exists.
GRANT DATE shall mean the date of grant of the option as specified in the
Grant Notice.
GRANT NOTICE shall mean the Notice of Grant of Stock Option accompanying the
Agreement, pursuant to which Optionee has been informed of the basic
terms of the option evidenced hereby.
INCENTIVE OPTION shall mean an option which satisfies the requirements of Code
Section 422.
MISCONDUCT shall mean the commission of any act of fraud, embezzlement or
dishonesty by Optionee, any unauthorized use or disclosure by Optionee
of confidential information or trade secrets of the Corporation (or any
Parent or Subsidiary), or any other intentional misconduct by Optionee
adversely affecting the business or affairs of the Corporation (or any
Parent or Subsidiary) in a material manner. The foregoing definition
shall not be deemed to be inclusive of all the acts or omissions which
the Corporation (or any Parent or Subsidiary) may consider as grounds
for the dismissal or discharge of Optionee or any other individual in
the Service of the Corporation (or any Parent or Subsidiary).
NON-STATUTORY OPTION shall mean an option not intended to satisfy the
requirements of Code Section 422.
NOTICE OF EXERCISE shall mean the notice of exercise in the form attached
hereto as Exhibit I.
OPTION SHARES shall mean the number of shares of Common Stock subject to the
option as specified in the Grant Notice.
OPTIONEE shall mean the person to whom the option is granted as specified in
the Grant Notice.
PARENT shall mean any corporation (other than the Corporation) in an unbroken
chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at
the time of the determination, stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
PERMANENT DISABILITY shall mean the inability of Optionee to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment which is expected to result in death or
has lasted or can be expected to last for a continuous period of twelve
(12) months or more.
PLAN shall mean the Corporation's 1999 Stock Incentive Plan.
PLAN ADMINISTRATOR shall mean either the Board or a committee of the Board
acting in its capacity as administrator of the Plan.
SERVICE shall mean the Optionee's performance of services for the Corporation
(or any Parent or Subsidiary) in the capacity of an Employee, a non-
employee member of the board of directors or a consultant or independent
advisor.
STOCK EXCHANGE shall mean the American Stock Exchange or the New YorkStock
Exchange.
SUBSIDIARY shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain
owns, at the time of the determination, stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
ADDENDUM TO STOCK OPTION AGREEMENT
The following provisions are hereby incorporated into, and are hereby made a
part of, that certain Stock Option Agreement (the "Option Agreement") by and
between thatlook.com, Inc. (the "Corporation")
and_________________________________ ("Optionee") evidencing the stock option
(the "Option") granted this day to Optionee under the terms of the
Corporation's 1999 Stock Incentive Plan, and such provisions are effective
immediately.
All capitalized terms in this Addendum, to the extent not otherwise defined
herein, shall have the meanings assigned to them in the Option Agreement.
LIMITED STOCK APPRECIATION RIGHT
Optionee is hereby granted a limited stock appreciation right exercisable upon
the following terms and conditions:
Optionee shall have the unconditional right, exercisable at any time
during the thirty (30)-day period immediately following a Hostile
Take-Over, to surrender the Option to the Corporation. In return
for the surrendered Option, Optionee shall receive a cash
distribution from the Corporation in an amount equal to the excess
of (i) the Take-Over Price of the shares of Common Stock which are
the time subject to the surrendered option (whether or not the
Option is otherwise at the time exercisable for those shares) over
(ii) the aggregate Exercise Price payable for such shares.
To exercise this limited stock appreciation right, Optionee must, during
the applicable thirty (30)-day exercise period, provide the
Corporation with written notice of the option surrender in which
there is specified the number of Option Shares as to which the
Option is being surrendered. Such notice must be accompanied by
the return of Optionee's copy of the Option Agreement, together
with any written amendments to such Agreement. The cash
distribution shall be paid to Optionee within five (5) business
days following such delivery date.
The exercise of the limited stock appreciation right in accordance
with the terms of this Addendum is hereby pre-approved by the Plan
Administrator in advance of such exercise, and no further approval
of the Plan Administrator or the Board shall be required at the
time of the actual option surrender and cash distribution. Upon
receipt of such cash distribution, the Option shall be cancelled
with respect to the Option Shares for which the Option has been
surrendered, and Optionee shall cease to have any further right to
acquire those Option Shares under the Option Agreement. The
Option shall, however, remain outstanding for the balance of the
Option Shares (if any) in accordance with the terms of the Option
Agreement, and the Corporation shall issue a replacement stock
option agreement (substantially in the same form of the
surrendered Option Agreement) for those remaining Option Shares.
In no event may this limited stock appreciation right be exercised when
there is not a positive spread between the Fair Market Value of
the Option Shares subject to the surrendered option and the
aggregate Exercise Price payable for such shares. This limited
stock appreciation right shall in all events terminate upon the
expiration or sooner termination of the option term and may not be
assigned or transferred by Optionee, except to the extent the
Option is transferable in accordance with the provisions of the
Option Agreement.
For purposes of this Addendum, the following definitions shall be in effect:
A HOSTILE TAKE-OVER shall be deemed to occur upon the acquisition,
directly or indirectly, by any person or related group of persons
(other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control
with, the Corporation) of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities Exchange Act of 1934, as amended)
of securities possessing more than fifty percent (50%) of the
total combined voting power of the Corporation's outstanding
securities pursuant to a tender or exchange offer made directly to
the Corporation's stockholders which the Board does not recommend
such stockholders to accept.
The TAKE-OVER PRICE per share shall be deemed to be equal to the GREATER
of (i) the Fair Market Value per Option Share on the option
surrender date or (ii) the highest reported price per share of
Common Stock paid by the tender offer or in effecting the Hostile
Take-Over. However, if the surrendered Option is designated as an
Incentive Option in the Grant Notice, then the Take-Over Price
shall not exceed the clause (i) price per share.
IN WITNESS HEREOF, thatlook.com, Inc. has caused this Addendum to be executed
by its duly authorized officer.
THATLOOK.COM, INC.
By:
______________________________
Title:
______________________________
EFFECTIVE DATE: _______________________________
<PAGE>
THATLOOK.COM, INC.
STOCK ISSUANCE AGREEMENT
AGREEMENT made this ________ day of ______________________, by and between
thatlook.com, Inc., a Nevada corporation, and
_______________________________________________, a Participant in the
Corporation's 1999 Stock Incentive Plan.
All capitalized terms in this Agreement shall have the meaning assigned to
them in this Agreement or in the attached Appendix.
PURCHASE OF SHARES
PURCHASE
Participant hereby purchases ______________ shares of Common Stock
(the "Purchased Shares") pursuant to the provisions of the Stock
Issuance Program at the purchase price of $_________ per share
(the "Purchase Price").
PAYMENT
Concurrently with the delivery of this Agreement to the
Corporation, Participant shall pay the Purchase Price for the
Purchased Shares in cash or check payable to the Corporation and
shall deliver a duly-executed blank Assignment Separate From
Certificate (in the form attached hereto as Exhibit I) with
respect to the Purchased Shares.
STOCKHOLDER RIGHTS
Until such time as the Corporation exercises the Repurchase Right,
Participant (or any successor in interest) shall have all the
rights of a stockholder (including voting, dividend and
liquidation rights) with respect to the Purchased Shares, subject,
however, to the transfer restrictions of this Agreement.
ESCROW
The Corporation shall have the right to hold the Purchased Shares
in escrow until those shares have vested in accordance with the
Vesting Schedule.
COMPLIANCE WITH LAW
Under no circumstances shall shares of Common Stock or other
assets be issued or delivered to Participant pursuant to the
provisions of this Agreement unless, in the opinion of counsel for
the Corporation or its successors, there shall have been
compliance with all applicable requirements of Federal and state
securities laws, all applicable listing requirements of any stock
exchange (or the Nasdaq National, Small Cap or Bulletin Board
Markets, if applicable) on which the Common Stock is at the time
listed for trading and all other requirements of law or of any
regulatory bodies having jurisdiction over such issuance and
delivery.
TRANSFER RESTRICTIONS
RESTRICTION ON TRANSFER
Except for any Permitted Transfer, Participant shall not transfer,
assign, encumber or otherwise dispose of any of the Purchased
Shares which are subject to the Repurchase Right.
RESTRICTIVE LEGEND
The stock certificate for the Purchased Shares shall be endorsed
with the following restrictive legend: "The shares represented by
this certificate are unvested and subject to certain repurchase
rights granted to the Corporation and accordingly may not be sold,
assigned, transferred, encumbered, or in any manner disposed of
except in conformity with the terms of a written agreement dated
_______________, ______ between the Corporation and the registered
holder of the shares (or the predecessor in interest to the
shares). A copy of such agreement is maintained at the
Corporation's principal corporate offices."
TRANSFEREE OBLIGATIONS
Each person (other than the Corporation) to whom the Purchased
Shares are transferred by means of a Permitted Transfer must, as a
condition precedent to the validity of such transfer, acknowledge
in writing to the Corporation that such person is bound by the
provisions of this Agreement and that the transferred shares are
subject to the Repurchase Right to the same extent such shares
would be so subject if retained by Participant.
REPURCHASE RIGHT
GRANT
The Corporation is hereby granted the right (the "Repurchase
Right"), exercisable at any time during the ninety (90)-day period
following the date Participant ceases for any reason to remain in
Service, to repurchase at the Purchase Price all or any portion of
the Purchased Shares in which Participant is not, at the time of
his or her cessation of Service, vested in accordance with the
Vesting Schedule set forth in Paragraph C.3 of this Agreement or
the special vesting acceleration provisions of Paragraph C.5 of
this Agreement (such shares to be hereinafter referred to as the
"Unvested Shares").
EXERCISE OF THE REPURCHASE RIGHT
The Repurchase Right shall be exercisable by written notice
delivered to each Owner of the Unvested Shares prior to the
expiration of the ninety (90)-day exercise period. The notice
shall indicate the number of Unvested Shares to be repurchased and
the date on which the repurchase is to be effected, such date to
be not more than thirty(30) days after the date of such notice.
The certificates representing the Unvested Shares to be
repurchased shall be delivered to the Corporation on or before the
close of business on the date specified for the repurchase.
Concurrently with the receipt of such stock certificates, the
Corporation shall pay to Owner, in cash or cash equivalent
(including the cancellation of any purchase-money indebtedness),
an amount equal to the Purchase Price previously paid for the
Unvested Shares to be repurchased from Owner.
TERMINATION OF THE REPURCHASE RIGHT
The Repurchase Right shall terminate with respect to any Unvested
Shares for which it is not timely exercised under Paragraph C.2.
In addition, the Repurchase Right shall terminate and cease to be
exercisable with respect to any and all Purchased Shares in which
Participant vests in accordance with the following Vesting
Schedule:
Upon Participant's completion of one (1) year of Service, measured
from _________________, _________, Participant shall acquire
a vested interest in, and the Repurchase Right shall lapse
with respect to, twenty-five percent (25%) of the Purchased
Shares.
Participant shall acquire a vested interest in, and the Repurchase
Right shall lapse with respect to, the remaining Purchased
Shares in a series of thirty six (36) successive equal
monthly installments upon Participant's completion of each
additional month of Service over the thirty-six (36)-month
period measured from the initial vesting date under
subparagraph (a) above.
RECAPITALIZATION
Any new, substituted or additional securities or other property
(including cash paid other than as a regular cash dividend) which is by
reason of any Recapitalization distributed with respect to the Purchased
Shares shall be immediately subject to the Repurchase Right and any
escrow requirements hereunder, but only to the extent the Purchased
Shares are at the time covered by such right or escrow requirements.
Appropriate adjustments to reflect such distribution shall be made to
the number and/or class of securities subject to this Agreement and to
the price per share to be paid upon the exercise of the Repurchase Right
in order to reflect the effect of any such Recapitalization upon the
Corporation's capital structure; PROVIDED, however, that the aggregate
purchase price shall remain the same.
CORPORATE TRANSACTION
Immediately prior to the consummation of any Corporate Transaction, the
Repurchase Right shall automatically lapse in its entirety and the
Purchased Shares shall vest in full, except to the extent the
Repurchase Right is to be assigned to the successor corporation
(or parent thereof) in connection with the Corporate Transaction.
To the extent the Repurchase Right remains in effect following a
Corporate Transaction, such right shall apply to the new capital
stock or other property (including any cash payments) received in
exchange for the Purchased Shares in consummation of the Corporate
Transaction, but only to the extent the Purchased Shares are at
the time covered by such right. Appropriate adjustments shall be
made to the price per share payable upon exercise of the
Repurchase Right to reflect the effect of the Corporate
Transaction upon the Corporation's capital structure; provided,
however, that the aggregate purchase price shall remain the same.
The new securities or other property (including cash payments)
issued or distributed with respect to the Purchased Shares in
consummation of the Corporate Transaction shall immediately be
deposited in escrow with the Corporation (or the successor entity)
and shall not be released from escrow until Participant vests in
such securities or other property in accordance with the same
Vesting Schedule in effect for the Purchased Shares.
SPECIAL TAX ELECTION
SECTION 83(b) ELECTION
Under Code Section 83, the excess of the fair market value of the
Purchased Shares on the date any forfeiture restrictions
applicable to such shares lapse over the Purchase Price paid for
such shares will be reportable as ordinary income on the lapse
date. For this purpose, the term "forfeiture restrictions"
includes the right of the Corporation to repurchase the Purchased
Shares pursuant to the Repurchase Right. Participant may elect
under Code Section 83(b) to be taxed at the time the Purchased
Shares are acquired, rather than when and as such Purchased Shares
cease to be subject to such forfeiture restrictions. Such
election must be filed with the Internal Revenue Service within
thirty (30) days after the date of this Agreement. Even if the
fair market value of the Purchased Shares on the date of this
Agreement equals the Purchase Price paid (and thus no tax is
payable), the election must be made to avoid adverse tax
consequences in the future.
THE FORM FOR MAKING THIS ELECTION IS ATTACHED AS EXHIBIT II
HERETO. PARTICIPANT UNDERSTANDS THAT FAILURE TO MAKE THIS FILING
WITHIN THE APPLICABLE THIRTY (30)-DAY PERIOD WILL RESULT IN THE
RECOGNITION OF ORDINARY INCOME AS THE FORFEITURE RESTRICTIONS
LAPSE.
FILING RESPONSIBILITY. PARTICIPANT ACKNOWLEDGES THAT IT ISPARTICIPANT'S
SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO FILE A
TIMELYELECTION UNDER CODE SECTION 83(b), EVEN IF PARTICIPANT
REQUESTS THE CORPORATIONOR ITS REPRESENTATIVES TO MAKE THIS FILING
ON HIS OR HER BEHALF.
GENERAL PROVISIONS
ASSIGNMENT
The Corporation may assign the Repurchase Right to any person or
entity selected by the Board, including (without limitation) one
or more stockholders of the Corporation.
AT WILL EMPLOYMENT
Nothing in this Agreement or in the Plan shall confer upon
Participant any right to continue in Service for any period of
specific duration or interfere with or otherwise restrict in any
way the rights of the Corporation (or any Parent or Subsidiary
employing or retaining Participant) or of Participant, which
rights are hereby expressly reserved by each, to terminate
Participant's Service at any time for any reason, with or without
cause.
NOTICES
Any notice required to be given under this Agreement shall be in
writing and shall be deemed effective upon personal delivery or
upon deposit in the U.S. mail, registered or certified, postage
prepaid and properly addressed to the party entitled to such
notice at the address indicated below such party's signature line
on this Agreement or at such other address as such party may
designate by ten (10) days advance written notice under this
paragraph to all other parties to this Agreement.
NO WAIVER
The failure of the Corporation in any instance to exercise the
Repurchase Right shall not constitute a waiver of any other
repurchase rights that may subsequently arise under the provisions
of this Agreement or any other agreement between the Corporation
and Participant. No waiver of any breach or condition of this
Agreement shall be deemed to be a waiver of any other or
subsequent breach or condition, whether of like or different
nature.
CANCELLATION OF SHARES
If the Corporation shall make available, at the time and place and
in the amount and form provided in this Agreement, the
consideration for the Purchased Shares to be repurchased in
accordance with the provisions of this Agreement, then from and
after such time, the person from whom such shares are to be
repurchased shall no longer have any rights as a holder of such
shares (other than the right to receive payment of such
consideration in accordance with this Agreement). Such shares
shall be deemed purchased in accordance with the applicable
provisions hereof, and the Corporation shall be deemed the owner
and holder of such shares, whether or not the certificates
therefor have been delivered as required by this Agreement.
PARTICIPANT UNDERTAKING
Participant hereby agrees to take whatever additional action and
execute whatever additional documents the Corporation may deem
necessary or advisable in order to carry out or effect one or more
of the obligations or restrictions imposed on either Participant
or the Purchased Shares pursuant to the provisions of this
Agreement.
AGREEMENT IS ENTIRE CONTRACT
This Agreement constitutes the entire contract between the parties
hereto with regard to the subject matter hereof. This Agreement
is made pursuant to the provisions of the Plan and shall in all
respects be construed in conformity with the terms of the Plan.
GOVERNING LAW
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Pennsylvania without resort to that
State's conflict-of-laws rules.
COUNTERPARTS
This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SUCCESSORS AND ASSIGNS
The provisions of this Agreement shall inure to the benefit of,
and be binding upon, the Corporation and its successors and
assigns and upon Participant, Participant's assigns and the legal
representatives, heirs and legatees of Participant's estate,
whether or not any such person shall have become a party to this
Agreement and have agreed in writing to join herein and be bound
by the terms hereof.
IN WITNESS HEREOF, the parties have executed this Agreement on theday and year
first indicated above.
THATLOOK.COM, INC.
By:
______________________________
Title:
_________________________
Address:
______________________
_____________________________
PARTICIPANT
______________________________
Signature
Address: _____________________
_____________________________
SPOUSAL ACKNOWLEDGMENT
The undersigned spouse of the Participant has read and hereby approves the
foregoing Stock Issuance Agreement. In consideration of the Corporation's
granting the Participant the right to acquire the Purchased Shares in
accordance with the terms of such Agreement, the undersigned hereby agrees to
be irrevocably bound by all the terms of such Agreement, including (without
limitation) the right of the Corporation (or its assigns) to purchase any
Purchased Shares in which the Participant is not vested at the time of his or
her termination of Service.
______________________________
PARTICIPANT'S SPOUSE
Address:
______________________
______________________________
EXHIBIT I
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED _______________________________ hereby sell(s),
assign(s)and transfer(s) unto thatlook.com, Inc. (the "Corporation"),
_____________________________ (_____________) shares of the Common Stock of
the Corporation standing in his or her name on the books of the Corporation
represented by Certificate No. _____________________ herewith and do(es)
hereby irrevocably constitute and appoint ______________________________
Attorney to transfer the said stock on the books of the Corporation with full
power of substitution in the premises.
Dated: _________________, _____.
Signature:
_________________________________
INSTRUCTION: Please do not fill in any blanks other than the signature line.
Please sign exactly as you would like your name to appear on the issued stock
certificate. The purpose of this assignment is to enable the Corporation to
exercise the Repurchase Right without requiring additional signatures on the
part of Participant.
<PAGE>
EXHIBIT II
SECTION 83(b) TAX ELECTION
This statement is being made under Section 83(b) of the Internal Revenue Code,
pursuant to Treas. Reg. Section 1.83-2.
The taxpayer who performed the services is:
Name: _____________________________________________
Address: _____________________________________________
Taxpayer Ident. No.: _________________________________
The property with respect to which the election is being made is ____________
shares of the common stock of thatlook.com, Inc.
The property was issued on _________________, _________.
The taxable year in which the election is being made is the calendar year
___________.
The property is subject to a repurchase right pursuant to which the issuer has
the right to acquire the property at the original purchase price if for
any reason taxpayer's service with the issuer terminates. The issuer's
repurchase right lapses in a series of annual and monthly installments
over a four (4)-year period ending on ____________________.
The fair market value at the time of transfer (determined without regard to
any restriction other than a restriction which by its terms will never
lapse) is $_____________ per share.
The amount paid for such property is $_____________ per share.
A copy of this statement was furnished to thatlook.com, Inc. for whom taxpayer
rendered the services underlying the transfer of property.
This statement is executed on ________________________, _______.
_________________________________________ __________________________________
Spouse (if any) TAXPAYER
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE CENTER WITH
WHICH TAXPAYER FILES HIS OR HER FEDERAL INCOME TAX RETURNS AND MUST BE
MADEWITHIN THIRTY (30) DAYS AFTER THE EXECUTION DATE OF THE STOCK
ISSUANCEAGREEMENT. THIS FILING SHOULD BE MADE BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED. PARTICIPANT MUST RETAIN TWO (2) COPIES OF THE
COMPLETED FORM FOR FILING WITH HIS OR HER FEDERAL AND STATE TAX RETURNS FOR
THE CURRENT TAX YEAR AND AN ADDITIONAL COPY FOR HIS OR HER RECORDS.
APPENDIX
The following definitions shall be in effect under the Agreement:
AGREEMENT shall mean this Stock Issuance Agreement.
BOARD shall mean the Corporation's Board of Directors.
COMMON STOCK shall mean shares of the Corporation's common stock.
CODE shall mean the Internal Revenue Code of 1986, as amended.
CORPORATE TRANSACTION shall mean either of the following stockholder-approved
transactions:
A merger or consolidation in which securities possessing more than fifty
percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person
or persons different from the persons holding those securities
immediately prior to such transaction; or
The sale, transfer or other disposition of all or substantially all of
the Corporation's assets in complete liquidation or dissolution of
the Corporation.
CORPORATION shall mean thatlook.com, Inc., a Nevada corporation, and any
successor corporation to all or substantially all of the assets or
voting stock of thatlook.com, Inc.
OWNER shall mean Participant and all subsequent holders of the Purchased
Shares who derive their chain of ownership through a Permitted Transfer
from Participant.
PARENT shall mean any corporation (other than the Corporation) in an unbroken
chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at
the time of the determination, stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
PARTICIPANT shall mean the person to whom the Purchased Shares are issued
under the Stock Issuance Program.
PERMITTED TRANSFER shall mean
A gratuitous transfer of the Purchased Shares, PROVIDED AND ONLY IF
Participant obtains the Corporation's prior written consent to
such transfer;
A transfer of title to the Purchased Shares effected pursuant to
Participant's will or the laws of intestate succession following
Participant's death; or
A transfer to the Corporation in pledge as security for any purchase-
money indebtedness incurred by Participant in connection with the
acquisition of the Purchased Shares.
PLAN shall mean the Corporation's 1999 Stock Incentive Plan.
PLAN ADMINISTRATOR shall mean either the Board or a committee of the Board
acting in its administrative capacity under the Plan.
PURCHASE PRICE shall have the meaning assigned to such term in Paragraph A.1
of the Stock Issuance Agreement.
PURCHASED SHARES shall have the meaning assigned to such term in Paragraph A.1
of the Stock Issuance Agreement.
RECAPITALIZATION shall mean any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
Corporation's outstanding Common Stock as a class without the
Corporation's receipt of consideration.
REPURCHASE RIGHT shall mean the right granted to the Corporation in accordance
with Article C.
SERVICE shall mean the Participant's performance of services for the
Corporation (or any Parent or Subsidiary) in the capacity of an
employee, subject to the control and direction of the employer entity as
to both the work to be performed and the manner and method of
performance, a non-employee member of the board of directors or a
consultant or other advisor.
STOCK ISSUANCE PROGRAM shall mean the Stock Issuance Program under the Plan.
SUBSIDIARY shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain
owns, at the time of the determination, stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
VESTING SCHEDULE shall mean the vesting schedule specified in Paragraph C.3 or
as otherwise specified by the Plan Administrator in its sole discretion,
pursuant to which the Purchased Shares are to vest in a series of
installments over Participant's period of Service.
UNVESTED SHARES shall have the meaning assigned to such term in Paragraph C.1.
ADDENDUM TO STOCK ISSUANCE AGREEMENT
The following provisions are hereby incorporated into, and are hereby made a
part of, that certain Stock Issuance Agreement (the "Issuance Agreement") by
and between thatlook.com, Inc. (the "Corporation") and
______________________________ ("Participant") evidencing the stock issuance
made this day to Participant under the terms of the Corporation's 1999 Stock
Incentive Plan, and such provisions are effective immediately.
All capitalized terms in this Addendum, to the extent not otherwise defined
herein, shall have the meanings assigned to such terms in the Issuance
Agreement.
INVOLUNTARY TERMINATION FOLLOWING CORPORATE TRANSACTION/
CHANGE IN CONTROL
To the extent the Repurchase Right is assigned to the successor corporation
(or parent thereof) in connection with a Corporate Transaction, no
accelerated vesting of the Purchased Shares shall occur upon such
Corporate Transaction, and the Repurchase Right shall continue to remain
in full force and effect in accordance with the provisions of the
Issuance Agreement. The Participant shall, over Participant's period of
Service following the Corporate Transaction, continue to vest in the
Purchased Shares in one or more installments in accordance with the
provisions of the Issuance Agreement.
1. No accelerated vesting of the Purchased Shares shall occur upon a Change
in Control, and the Repurchase Right shall continue to remain in full
force and effect in accordance with the provisions of the Issuance
Agreement. The Participant shall, over Participant's period of Service
following the Change in Control, continue to vest in the Purchased
Shares in one or more installments in accordance with the provisions of
the Issuance Agreement.
2. Immediately upon an Involuntary Termination of Participant's Service
within eighteen (18) months following the Corporate Transaction or
Change in Control, the Repurchase Right shall terminate automatically,
and all the Purchased Shares shall vest in full at that time.
3. For purposes of this Addendum, the following definitions shall be in
effect:
INVOLUNTARY TERMINATION shall mean the termination of Participant's
Service by reason of:
Participant's involuntary dismissal or discharge by the Corporation for
reasons other than Misconduct; or
Participant's voluntary resignation following:
A change in Participant's position with the Corporation (or Parent
or Subsidiary employing Participant) which materially
reduces Participant's duties and responsibilities or the
level of management to which Participant reports;
A reduction in Participant's level of compensation (including base
salary, fringe benefits and target bonus under any corporate
performance based bonus or incentive programs) by more than
fifteen percent (15%) or
A relocation of Participant's place of employment by more than
fifty (50) miles, provided and only if such change,
reduction or relocation is effected by the Corporation
without Participant's consent.
CHANGE IN CONTROL shall be deemed to occur in the event of a change in
ownership or control of the Corporation effected through either of the
following transactions:
The acquisition, directly or indirectly, by any person or related group
of persons (other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under common
control with, the Corporation) of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as
amended) of securities possessing more than fifty percent (50%) of
the total combined voting power of the Corporation's outstanding
securities pursuant to a tender or exchange offer made directly to
the Corporation's stockholders; or
A change in the composition of the Board over a period of thirty-six
(36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (i)
have been Board members continuously since the beginning of such
period or (ii) have been elected or nominated for election as
Board members during such period by at least a majority of the
Board members described in clause (i) who were still in office at
the time the Board approved such election or nomination.
MISCONDUCT shall mean the commission of any act of fraud, embezzlement
or dishonesty by the Participant, any unauthorized use or disclosure by
the Participant of confidential information or trade secrets of the
Corporation (or any Parent or Subsidiary), or any other intentional
misconduct by the Participant adversely affecting the business or
affairs of the Corporation (or any Parent or Subsidiary) in a material
manner. The foregoing definition shall not be deemed to be inclusive of
all the acts or omissions which the Corporation (or any Parent or
Subsidiary) may consider as grounds for the dismissal or discharge of
the Participant or other person in the Service of the Corporation (or
any Parent or Subsidiary).
IN WITNESS HEREOF, thatlook.com, Inc. has caused this Addendum to be executed
by its duly-authorized officer, effective as of the Effective Date specified
below.
THATLOOK.COM, INC.
By: __________________________
Title:
_________________________
EFFECTIVE DATE:___________________________
THATLOOK.COM, INC.
NOTICE OF GRANT OF NON-EMPLOYEE DIRECTOR
AUTOMATIC STOCK OPTION
Notice is hereby given of the following option grant (the "Option") to
purchase shares of the Common Stock of thatlook.com, Inc. (the "Corporation"):
OPTIONEE:___________________________________________________________
GRANT DATE:_________________________________________________________
EXERCISE PRICE: $_________________________________________ per share
NUMBER OF OPTION SHARES: 21,000 shares
EXPIRATION DATE:____________________________________________________
TYPE OF OPTION: Non-Statutory Stock Option
DATE EXERCISABLE: Immediately Exercisable
VESTING SCHEDULE: The Option Shares shall initially be unvested and
subject to repurchase by the Corporation at the Exercise Price paid per
share. Optionee shall acquire a vested interest in, and the
Corporation's repurchase right shall accordingly lapse with respect to,
the Option Shares in a series of six (6) successive equal semi-annual
installments upon Optionee's completion of each six (6)-month period of
service as a member of the Corporation's Board of Directors (the "Board")
over the thirty-six (36) month period measured from the Grant Date. In no
event shall any additional Option Shares vest after Optionee's cessation
of Board Service.
Optionee understands and agrees that the Option is granted subject to and in
accordance with the terms of the automatic option grant program under the
thatlook.com, Inc. 1999 Stock Incentive Plan (the "Plan"). Optionee further
agrees to be bound by the terms of the Plan and the terms of the Option as set
forth in the Automatic Stock Option Agreement attached hereto as EXHIBIT A.
Optionee hereby acknowledges the receipt of the Corporation's periodic reports
for the preceding twelve (12) month period as filed with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended, and
attached hereto as EXHIBIT B. A copy of the Plan is available upon request
made to the Corporate Secretary at the Corporation's principal offices.
REPURCHASE RIGHT
OPTIONEE HEREBY AGREES THAT ALL UNVESTED OPTION SHARES ACQUIRED UPON THE
EXERCISE OF THE OPTION SHALL BE SUBJECT TO A REPURCHASE RIGHT
EXERCISABLE BY THE CORPORATION AND ITS ASSIGNS. THE TERMS OF SUCH RIGHT
SHALL BE SPECIFIED IN A STOCK PURCHASE AGREEMENT, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CORPORATION, EXECUTED BY OPTIONEE AT THE TIME OF THE
OPTION EXERCISE.
NO IMPAIRMENT OF RIGHTS
Nothing in this Notice or the attached Automatic Stock Option Agreement
or in the Plan shall interfere with or otherwise restrict in any way the
rights of the Corporation and the Corporation's stockholders to remove
Optionee from the Board at any time in accordance with the provisions of
applicable law.
DEFINITIONS
All capitalized terms in this Notice shall have the meaning assigned to
them in this Notice or in the attached Automatic Stock Option Agreement.
DATED: _________________, _______
THATLOOK.COM, INC.
By___________________________
Title:
_________________________
______________________________
OPTIONEE
Address:
______________________
______________________________
ATTACHMENTS:
EXHIBIT A - AUTOMATIC STOCK OPTION AGREEMENT
EXHIBIT B - PLAN SUMMARY AND PERIODIC S.E.C. FILINGS
EXHIBIT A
AUTOMATIC STOCK OPTION AGREEMENT
EXHIBIT B
PLAN SUMMARY AND PERIODIC S.E.C. FILINGS
<PAGE>
THATLOOK.COM, INC.
NOTICE OF GRANT OF NON-EMPLOYEE DIRECTOR
AUTOMATIC STOCK OPTION
Notice is hereby given of the following option grant (the "Option") to
purchase shares of the Common Stock of thatlook.com, Inc. (the "Corporation"):
OPTIONEE: ___________________________________________________________
GRANT DATE: _________________________________________________________
EXERCISE PRICE: $ _______________ per share
NUMBER OF OPTION SHARES: 6,000 shares
EXPIRATION DATE: ____________________________________________________
TYPE OF OPTION: Non-Statutory Stock Option
DATE EXERCISABLE: Immediately Exercisable
VESTING SCHEDULE: The Option Shares shall initially be unvested and
subject to repurchase by the Corporation at the Exercise Price paid per
share. Optionee shall acquire a vested interest in, and the
Corporation's repurchase right shall accordingly lapse with respect to,
the Option Shares in two (2) successive equal semi-annual installments
upon Optionee's completion of each six (6)-month period of service as a
member of the Corporation's Board of Directors (the "Board") over the
twelve (12) month period measured from the Grant Date. In no event
shall any additional Option Shares vest after Optionee's cessation of
Board Service.
Optionee understands and agrees that the Option is granted subject to and in
accordance with the terms of the automatic option grant program under the
thatlook.com, Inc. 1999 Stock Incentive Plan (the "Plan"). Optionee further
agrees to be bound by the terms of the Plan and the terms of the Option as set
forth in the Automatic Stock Option Agreement attached hereto as EXHIBIT A.
Optionee hereby acknowledges the receipt of the Corporation's periodic reports
for the preceding twelve (12) month period as filled with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended, and
attached hereto as EXHIBIT B. A copy of the Plan is available upon request
made to the Corporate Secretary at the Corporation's principal offices.
REPURCHASE RIGHT
OPTIONEE HEREBY AGREES THAT ALL UNVESTED OPTIONSHARES ACQUIRED UPON THE
EXERCISE OF THE OPTION SHALL BE SUBJECT TO A REPURCHASERIGHT EXERCISABLE
BY THE CORPORATION AND ITS ASSIGNS. THE TERMS OF SUCH RIGHTSHALL BE
SPECIFIED IN A STOCK PURCHASE AGREEMENT, IN FORM AND
SUBSTANCESATISFACTORY TO THE CORPORATION, EXECUTED BY OPTIONEE AT THE
TIME OF THE OPTIONEXERCISE.
NO IMPAIRMENT OF RIGHTS
Nothing in this Notice or the attached Automatic Stock Option Agreement
or in the Plan shall interfere with or otherwise restrict in any way the
rights of the Corporation and the Corporation's stockholders to remove
Optionee from the Board at any time in accordance with the provisions of
applicable law.
DEFINITIONS
All capitalized terms in this Notice shall have the meaning assigned to
them in this Notice or in the attached Automatic Stock Option Agreement.
DATED: _________________, _______
THATLOOK.COM
By: __________________________
Title:
_________________________
______________________________
OPTIONEE
Address:
______________________
______________________________
ATTACHMENTS:
EXHIBIT A - AUTOMATIC STOCK OPTION AGREEMENT
EXHIBIT B - PLAN SUMMARY AND PERIODIC S.E.C. FILINGS
EXHIBIT A
AUTOMATIC STOCK OPTION AGREEMENT
EXHIBIT B
PLAN SUMMARY AND PERIODIC S.E.C. FILINGS
<PAGE>
THATLOOK.COM, INC.
AUTOMATIC STOCK OPTION AGREEMENT
RECITALS:
The Corporation has implemented an automatic option grant program under the
Plan pursuant to which eligible non-employee members of the Board will
automatically receive special option grants at periodic intervals over
their period of Board service in order to provide such individuals with
a meaningful incentive to continue to serve as members of the Board.
Optionee is an eligible non-employee Board member, and this Agreement is
executed pursuant to, and is intended to carry out the purposes of, the
Plan in connection with the automatic grant of an option to purchase
shares of Common Stock under the Plan.
All capitalized terms in this Agreement shall have the meaning assigned to
them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
GRANT OF OPTION.
The Corporation hereby grants to Optionee, as of the Grant Date, a Non-
Statutory Option to purchase up to the number of Option Shares specified
in the Grant Notice. The Option Shares shall be purchasable from time
to time during the option term specified in paragraph 2 at the Exercise
Price.
OPTION TERM
This option shall have a term of ten (10) years measured from the Grant
Date and shall accordingly expire at the close of business on the
Expiration Date, unless sooner terminated in accordance with Paragraph
5, 6 or 7.
3. LIMITED TRANSFERABILITY
This option may, in connection with the Optionee's estate plan, be
assigned in whole or in part during Optionee's lifetime to one or
more members of the Optionee's immediate family or to a trust
established for the exclusive benefit of one or more such family
members. The assigned portion shall be exercisable only by the
person or persons who acquire a proprietary interest
In the option pursuant to such assignment. The terms applicable to the
assigned portion shall be the same as those in effect for this
option immediately prior to such assignment.
Should the Optionee die while holding this option, then this option
shall be transferred in accordance with Optionee's will or the
laws of descent and distribution. However, Optionee may designate
one or more persons as the beneficiary or beneficiaries of this
option, and this option shall, in accordance with such
designation, automatically be transferred to such beneficiary or
beneficiaries upon the Optionee's death while holding such option.
Such beneficiary or beneficiaries shall take the transferred
option subject to all the terms and conditions of this Agreement,
including (without limitation) the limited time period during
which this option may, pursuant to Paragraph 5, be exercised
following Optionee's death or by the Optionee's designated
beneficiary or beneficiaries of that option.
4. EXERCISABILITY/VESTING
This option shall be immediately exercisable for any or all of the
Option Shares, whether or not the Option Shares are at the time
vested in accordance with the Vesting Schedule, and shall remain
so exercisable until the Expiration Date or sooner termination of
the option term under Paragraph 5, 6 or 7.
Optionee shall, in accordance with the Vesting Schedule set forth in the
Grant Notice, vest in the Option Shares in one or more
installments over his or her period of Board service. Vesting in
the Option Shares may be accelerated pursuant to the provisions of
Paragraph 5, 6 or 7. In no event, however, shall any additional
Option Shares vest following Optionee's cessation of service as a
Board member.
CESSATION OF BOARD SERVICE
Should Optionee's service as a Board member cease while this option
remains outstanding, then the option term specified in Paragraph 2 shall
terminate (and this option shall cease to be outstanding) prior to the
Expiration Date in accordance with the following provisions:
Should Optionee cease to serve as a Board member for any reason (other
than death or Permanent Disability) while this option is
outstanding, then the period during which this option may be
exercised shall be reduced to a twelve (12)-month period measured
from the date of such cessation of Board service, but in no event
shall this option be exercisable at any time after the Expiration
Date. During such limited period of exercisability, this option
may not be exercised in the aggregate for more than the number of
Option Shares (if any) in which Optionee is vested on the date of
his or her cessation of Board service. Upon the EARLIER of (i)
the expiration of such twelve (12)-month period or (ii) the
specified Expiration Date, the option shall terminate and cease to
be exercisable with respect to any vested Option Shares for which
the option has not been exercised.
Should Optionee die during the twelve (12)-month period following his or
her cessation of Board service and hold this option, at the time
of his or her death, then the personal representative of
Optionee's estate or the person or persons to whom the option is
transferred pursuant to Optionee's will or in accordance with the
laws of descent and distribution or the designated beneficiary or
beneficiaries of this option (as the case may be) shall have the
right to exercise this option for any or all of the Option Shares
in which Optionee is vested at the time of Optionee's cessation of
Board service (less any Option Shares purchased by Optionee after
such cessation of Board service but prior to death). Such right
of exercise shall terminate, and this option shall accordingly
cease to be exercisable for such vested Option Shares, upon the
EARLIER of (i) the expiration of the twelve (12)-month period
measured from the date of Optionee's cessation of Board service or
(ii) the specified Expiration Date.
a. Should Optionee cease service as a Board member by reason of death
or Permanent Disability, then all Option Shares at the time
subject to this option but not otherwise vested shall vest in full
so that this option may be exercised for any or all of the Option
Shares as fully vested shares of Common Stock at any time prior to
the EARLIER of (i) the expiration of the twelve (12)-month period
measured from the date of Optionee's cessation of Board service or
(ii) the specified Expiration Date, whereupon this option shall
terminate and cease to be outstanding.
b. Upon Optionee's cessation of Board service for any reason other
than death or Permanent Disability, this option shall immediately
terminate and cease to be outstanding with respect to any and all
Option Shares in which Optionee is not otherwise at that time
vested in accordance with the normal Vesting Schedule or the
special vesting acceleration provisions of Paragraphs 6 and 7
below.
6. CORPORATE TRANSACTION
In the event of a Corporate Transaction, all the Option Shares at the
time subject to this option but not otherwise vested shall
automatically vest so that this option shall, immediately prior to
the specified effective date for the Corporate Transaction, become
exercisable for all of the Option Shares as fully-vested shares of
Common Stock and may be exercised for all or any portion of those
vested shares. Immediately following the consummation of the
Corporate Transaction, this option shall terminate and cease to be
outstanding, except to the extent assumed by the successor
corporation or its parent company.
If this option is assumed in connection with a Corporate Transaction,
then this option shall be appropriately adjusted, immediately
after such Corporate Transaction, to apply to the number and class
of securities which would have been issuable to Optionee in
consummation of such Corporate Transaction had the option been
exercised immediately prior to such Corporate Transaction, and
appropriate adjustments shall also be made to the Exercise Price,
PROVIDED the aggregate Exercise Price shall remain the same.
7. CHANGE IN CONTROL/HOSTILE TAKE-OVER
All the Option Shares subject to this option at the time of a Change in
Control but not otherwise vested shall automatically vest so that
this option shall, immediately prior to the effective date of such
Change in Control, become exercisable for all of the Option Shares
as fully-vested shares of Common Stock and may be exercised for
all or any portion of those vested shares. This option shall
remain exercisable for such fully-vested Option Shares until the
EARLIEST to occur of (i) the specified Expiration Date, (ii) the
sooner termination of this option in accordance with Paragraph 5
or 6 or (iii) the surrender of this option under Paragraph 7(b).
Optionee shall have an unconditional right, exercisable at the time
during the thirty (30)-day period immediately following the
consummation of a Hostile Take-Over to surrender this option to
the Corporation in exchange for a cash distribution from the
Corporation in an amount equal to the excess of (i) the Take-Over
Price of the Option Shares at the time subject to the surrendered
option (whether or not those Option Shares are otherwise at the
time vested) over (ii) the aggregate Exercise Price payable for
such shares. This Paragraph 7(b) limited stock appreciation right
shall in all events terminate upon the expiration or sooner
termination of the option term and may not be assigned or
transferred by Optionee.
To exercise the Paragraph 7(b) limited stock appreciation right,
Optionee must, during the applicable thirty (30)-day exercise
period, provide the Corporation with written notice of the option
surrender in which there is specified the number of Option Shares
as to which the option is being surrendered. Such notice must be
accompanied by the return of Optionee's copy of this Agreement,
together with any written amendments to such Agreement. The cash
distribution shall be paid to Optionee within five (5) business
days following such delivery date. The exercise of such limited
stock appreciation right in accordance with the terms of this
Paragraph 7 has been pre-approved pursuant to the express
provisions of the Automatic Option Grant Program, and neither the
approval of the Plan Administrator nor the consent of the Board
shall be required at the time of the actual option surrender and
cash distribution. Upon receipt of the cash distribution, this
option shall be cancelled with respect to the shares subject to
the surrendered option (or the surrendered portion), and Optionee
shall cease to have any further right to acquire those Option
Shares under this Agreement. The option shall, however, remain
outstanding for the balance of the Option Shares (if any) in
accordance with the terms and provisions of this Agreement, and
the Corporation shall accordingly issue a replacement stock option
agreement (substantially in the same form as this Agreement) for
those remaining Option Shares.
8. ADJUSTMENT IN OPTION SHARES
Should any change be made to the Common Stock by reason of any stock
split, stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock as a
class without the Corporation's receipt of consideration, appropriate
adjustments shall be made to (i) the total number and/or class of
securities subject to this option and (ii) the Exercise Price in order
to reflect such change and thereby preclude a dilution or enlargement of
benefits hereunder.
9. STOCKHOLDER RIGHTS
The holder of this option shall not have any stockholder rights with
respect to the Option Shares until such person shall have exercised the
option, paid the Exercise Price and become a holder of record of the
purchased shares.
10. MANNER OF EXERCISING OPTION.
In order to exercise this option with respect to all or any part of the
Option Shares for which this option is at the time exercisable,
Optionee (or any other person or persons exercising the option)
must take the following actions:
To the extent the option is exercised for vested Option Shares,
execute and deliver to the Corporation a Notice of Exercise
for the Option Shares for which the option is exercised. To
the extent this option is exercised for unvested Option
Shares, execute and deliver to the Corporation a Purchase
Agreement for those unvested Option Shares.
Pay the aggregate Exercise Price for the purchased shares in one
or more of the following forms:
Cash or check made payable to the Corporation;
Shares of Common Stock held by Optionee (or any other person
or persons exercising the option) for the requisite
period necessary to avoid a charge to the
Corporation's earnings for financial reporting
purposes and valued at Fair Market Value on the
Exercise Date; or
To the extent the option is exercised for vested Option
Shares, through a special sale and remittance
procedure pursuant to which Optionee (or any other
person or persons exercising the option) shall
concurrently provide irrevocable instructions (I.) to
a Corporation-designated brokerage firm to effect the
immediate sale of the purchased shares and remit to
the Corporation, out of the sale proceeds available on
the settlement date, sufficient funds to cover the
aggregate Exercise Price payable for the purchased
shares plus all applicable Federal, state and local
income and employment taxes required to be withheld by
the Corporation by reason of such exercise and (II.)
to the Corporation to deliver the certificates for the
purchased shares directly to such brokerage firm in
order to complete the sale.
Furnish to the Corporation appropriate documentation that the
person or persons exercising the option (if other than
Optionee) have the right to exercise this option.
Except to the extent the sale and remittance procedure is utilized in
connection with the option exercise, payment of the Exercise Price
must accompany the Notice of Exercise (or the Purchase Agreement)
delivered to the Corporation in connection with the option
exercise.
As soon after the Exercise Date as practical, the Corporation shall
issue to or on behalf of Optionee (or any other person or persons
exercising this option) a certificate for the purchased Option
Shares, with the appropriate legends affixed thereto. To the
extent any such Option Shares are unvested, the certificates for
those Option Shares shall be endorsed with an appropriate legend
evidencing the Corporation's repurchase rights and may be held in
escrow with the Corporation until such shares vest.
In no event may this option be exercised for any fractional shares.
11. NO IMPAIRMENT OF RIGHTS
This Agreement shall not in any way affect the right of the Corporation
to adjust, reclassify, reorganize or otherwise make changes in its
capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or assets.
In addition, this Agreement shall not in any way be construed or
interpreted so as to affect adversely or otherwise impair the right of
the Corporation or the stockholders to remove Optionee from the Board at
any time in accordance with the provisions of applicable law.
12. COMPLIANCE WITH LAWS AND REGULATIONS.
The exercise of this option and the issuance of the Option Shares upon
such exercise shall be subject to compliance by the Corporation
and Optionee with all applicable requirements of law relating
thereto and with all applicable regulations of any stock exchange
(or the Nasdaq National, Small Cap or Bulletin Board Markets, if
applicable) on which the Common Stock may be listed for trading at
the time of such exercise and issuance.
The inability of the Corporation to obtain approval from any regulatory
body having authority deemed by the Corporation to be necessary to
the lawful issuance and sale of any Common Stock pursuant to this
option shall relieve the Corporation of any liability with respect
to the non-issuance or sale of the Common Stock as to which such
approval shall not have been obtained. The Corporation, however,
shall use its best efforts to obtain all such approvals.
SUCCESSORS AND ASSIGNS
Except to the extent otherwise provided in Paragraph 3 or 6, the
provisions of this Agreement shall inure to the benefit of, and be
binding upon, the Corporation and its successors and assigns and
Optionee, Optionee's assigns, the legal representatives, heirs and
legatees of Optionee's estate and any beneficiaries of this option
designated by Optionee.
NOTICES
Any notice required to be given or delivered to the Corporation under
the terms of this Agreement shall be in writing and addressed to the
Corporation at its principal corporate offices. Any notice required to
be given or delivered to Optionee shall be in writing and addressed to
Optionee at the address indicated below Optionee's signature line on the
Grant Notice. All notices shall be deemed effective upon personal
delivery or upon deposit in the U.S. mail, postage prepaid and properly
addressed to the party to be notified.
CONSTRUCTION
This Agreement and the option evidenced hereby are made and granted
pursuant to the Plan and are in all respects limited by and subject to
the terms of the Plan.
GOVERNING LAW
The interpretation, performance and enforcement of this Agreement shall
be governed by the laws of the State of Pennsylvania without resort to
that State's conflict-of-laws rules.
EXHIBIT I
NOTICE OF EXERCISE
I hereby notify thatlook.com, Inc. (the "Corporation") that I elect to
purchase _____________ shares of the Corporation's Common Stock (the
"Purchased Shares") at the option exercise price of $___________ per share
(the "Exercise Price") pursuant to that certain option (the "Option") granted
to me under the Corporation's 1999 Stock Incentive Plan on
_________________,________.
Concurrently with the delivery of this Exercise Notice to the Corporation, I
shall hereby pay to the Corporation the Exercise Price for the Purchased
Shares in accordance with the provisions of my agreement with the Corporation
(or other documents) evidencing the Option and shall deliver
whatever additional documents may be required by such agreement as a condition
for exercise. Alternatively, I may utilize the special broker-dealer sale and
remittance procedure specified in my agreement to effect payment of the
Exercise Price for any Purchased Shares in which I am vested at the time of
exercise of the Option.
Date: ____________________, ________
______________________________
Optionee
Address:
______________________
______________________________
Print name in exact manner
it is to appear on the
stock certificate: ______________________________________
Address to which certificate
is to be sent, if different
from address above:
___________________________________
___________________________________
Social Security Number: _________________________________
<PAGE>
APPENDIX
The following definitions shall be in effect under the Agreement:
AGREEMENT shall mean this Automatic Stock Option Agreement.
BOARD shall mean the Corporation's Board of Directors.
CHANGE IN CONTROL shall mean a change in ownership or control of the
Corporation effected through either of the following transactions:
The acquisition, directly or indirectly, by any person or related group
of persons (other than the Corporation or a person that directly
or indirectly controls, is controlled by, or is under common
control with, the Corporation) of beneficial ownership (within the
meaning of Rule 13d-3 of the 1934 Act) of securities possessing
more than fifty percent (50%) of the total combined voting power
of the Corporation's outstanding securities pursuant to a tender
or exchange offer made directly to the Corporation's stockholders;
or
A change in the composition of the Board over a period of thirty-six
(36) consecutive months or less such that a majority of the Board
members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (A)
have been Board members continuously since the beginning of such
period or (B) have been elected or nominated for election as Board
members during such period by at least a majority of the Board
members described in clause (A) who were still in office at the
time the Board approved such election or nomination.
COMMON STOCK shall mean shares of the Corporation's common stock.
CODE shall mean the Internal Revenue Code of 1986, as amended.
CORPORATE TRANSACTION shall mean either of the following stockholder-approved
transactions to which the Corporation is a party:
A merger or consolidation in which securities possessing more than fifty
percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person
or persons different from the persons holding those securities
immediately prior to such transaction; or
the sale, transfer or other disposition of all or substantially all of
the Corporation's assets in complete liquidation or dissolution of
the Corporation.
CORPORATION shall mean thatlook.com, Inc., a Nevada corporation, and any
successor corporation to all or substantially all of the assets or
voting stock of thatlook.com, Inc. which shall by appropriate action
adopt the Plan.
EXERCISE DATE shall mean the date on which the option shall have been
exercised in accordance with Paragraph 10 of the Agreement.
A. EXERCISE PRICE shall mean the exercise price per share as specified in
the Grant Notice.
B. EXPIRATION DATE shall mean the date on which the option expires as
specified in the Grant Notice.
C. FAIR MARKET VALUE per share of Common Stock on any relevant date shall
be determined in accordance with the following provisions:
If the Common Stock is at the time traded on the Nasdaq National, Small
Cap or Bulletin Board Markets, then the Fair Market Value shall be
the closing selling price per share of Common Stock on the date in
question, as the price is reported by the National Association of
Securities Dealers on the appropriate Nasdaq Market. If there is
no closing selling price for the Common Stock on the date in
question, then the Fair Market Value shall be the closing selling
price on the last preceding date for which such quotation exists.
If the Common Stock is at the time listed on any Stock Exchange, then
the Fair Market Value shall be the closing selling price per share
of Common Stock on the date in question on the Stock Exchange
which serves as the primary market for the Common Stock, as such
price is officially quoted in the composite tape of transactions
on such exchange. If there is no closing selling price for the
Common Stock on the date in question, then the Fair Market Value
shall be the closing selling price on the last preceding date
for which such quotation exists.
GRANT DATE shall mean the date of grant of the option as specified in the
Grant Notice.
GRANT NOTICE shall mean the Notice of Grant of Automatic Stock Option
accompanying the Agreement, pursuant to which Optionee has been informed
of the basic terms of the option evidenced hereby.
HOSTILE TAKEOVER shall mean the acquisition, directly or indirectly, by any
person or related group of persons (other than the Corporation or a
person that directly or indirectly controls, is controlled by, or is
under common control with, the Corporation) of beneficial ownership
(within the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities pursuant to a tender
or exchange offer made directly to the Corporation's stockholders which
the Board does not recommend such stockholders to accept.
1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
NON-STATUTORY OPTION shall mean an option not intended to satisfy the
requirements of Code Section 422.
NOTICE OF EXERCISE shall mean the notice of exercise in the form of Exhibit I.
OPTION SHARES shall mean the number of shares of Common Stock subject to the
option.
OPTIONEE shall mean the person to whom the option is granted as specified in
the Grant Notice.
PERMANENT DISABILITY shall mean the inability of Optionee to perform his or
her usual duties as a member of the Board by reason of any medically
determinable physical or mental impairment which is expected to result
in death or has lasted or can be expected to last for a continuous
period of twelve (12) months or more.
PLAN shall mean the Corporation's 1999 Stock Incentive Plan.
PURCHASE AGREEMENT shall mean the stock purchase agreement (in form and
substance satisfactory to the Corporation) which grants the Corporation
the right to repurchase, at the Exercise Price, any and all unvested
Option Shares held by Optionee at the time of Optionee's cessation of
Board service and which precludes the sale, transfer or other
disposition of any purchased Option Shares while those shares are
unvested and subject to such repurchase right.
STOCK EXCHANGE shall mean the American Stock Exchange or the New York Stock
Exchange.
TAKE-OVER PRICE shall mean the GREATER of
The Fair Market Value per share of Common Stock on the date the option
is surrendered to the Corporation in connection with a Hostile
Take-Over; or
The highest reported price per share of Common Stock paid by the tender
offer or in effecting the Hostile Take-Over.
VESTING SCHEDULE shall mean the vesting schedule specified in the Grant
Notice, pursuant to which the Option Shares will vest in one or more
installments over the Optionee's period of Board service, subject to
acceleration in accordance with the provisions of the Agreement.
