<PAGE> 1
As filed with the Securities and Exchange Commission on May 3, 2000
Registration No. __________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GOTO.COM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 95-4652060
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
74 NORTH PASADENA AVENUE
THIRD FLOOR
PASADENA, CA 91105
(626) 685-5600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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AUCTIONROVER.COM, INC. 1999 STOCK AWARD PLAN
AUCTIONROVER.COM, INC. 1999 EXECUTIVE STOCK AWARD PLAN
(FULL NAME OF PLAN)
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TED MEISEL
CHIEF EXECUTIVE OFFICER
GOTO.COM, INC.
74 NORTH PASADENA AVENUE, THIRD FLOOR
PASADENA, CA 91105
(626) 685-5600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copies to:
BRADLEY L. FINKELSTEIN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock issuable under
AuctionRover.com, Inc. 1999 Stock Award
Plan.................................. 368,405 $3.38 $1,245,209 $329
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock issuable under
AuctionRover.com, Inc. 1999 Executive
Stock Award Plan..................... 153,003 $2.56 $ 391,688 $103
=============================================================================================================================
TOTAL............................ $432
=============================================================================================================================
</TABLE>
(1) Computed in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. Computation based on the weighted average
per share price (rounded to the nearest cent) of options granted under the
referenced plans, the shares issuable under which are registered hereby.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the year ended December 31,
1999, filed pursuant to the Securities and Exchange Act of 1934 (the
"Exchange Act").
(b) The Registrant's Current Report on Form 8-K filed on February 3, 2000 with
the Commission pursuant to the Exchange Act as amended by the Registrant's
Corporate Report on form 8-K/A filed on March 16, 2000 with the Commission
pursuant to the Exchange Act.
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A (File No. 000-26365) filed on June 15,
1999 under the Exchange Act and any amendment or report subsequently filed
for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this
Registration Statement, and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which de-registers
all securities then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
As of the date of this filing, certain investment partnerships composed
of certain current and former members of and persons associated with Wilson
Sonsini Goodrich & Rosati, Professional Corporation, as well as certain
individual attorneys of such firm, beneficially own an aggregate of 164,894
shares of GoTo.com's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). The Registrant's Certificate of Incorporation and Bylaws provide that the
Registrant shall indemnify its directors and officers to the fullest extent
permitted by Delaware law, including circumstances in which indemnification is
otherwise discretionary under Delaware law.
The Registrant currently carries indemnity insurance pursuant to which
its directors and officers are insured under certain circumstances against
certain liabilities or losses, including liabilities under the Securities Act.
The Registrant has entered into indemnity agreements with certain directors and
executive officers. These agreements, among other things, indemnify the
directors and executive officers for certain expenses (including attorneys'
fees), judgments, fines, and settlement payments incurred by such persons in any
action, including any action by or in the right of the Registrant, in connection
with the good faith performance of their duties as a director or officer. The
indemnification agreements also provide for the advance payment by the
Registrant of defense expenses incurred by the
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director or officer; however, the affected director or officer must undertake to
repay such amounts advanced if it is ultimately determined that such director or
officer is not entitled to be indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMS.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
4.1 AuctionRover.com, Inc. 1999 Stock Award Plan.
4.2 AuctionRover.com, Inc. 1999 Executive Stock Award Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Frank, Rimerman & Co. LLP, Independent
Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering. The undersigned registrant hereby
undertakes:
1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(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.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 ((Section )239.13 of this
chapter) or Form S-8 ((Section )239.16b of this chapter), and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the Delaware General Corporations Law, the
Certificate of Incorporation of the Registrant, the Bylaws of the Registrant,
Indemnification Agreements entered into between the Registrant and its officers
and directors, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pasadena, State of California, on May 3, 2000.
GOTO.COM, INC.
By: /s/ TED MEISEL
--------------------------------------
Ted Meisel
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Ted Meisel and Todd Tappin and
each of them severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and conforming all that each said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Date: May 3, 2000 /s/ JEFFREY S. BREWER
-----------------------------------------
Jeffrey S. Brewer, Chairman of the Board
Date: May 3, 2000 /s/ TED MEISEL
-----------------------------------------
Ted Meisel, President, Chief Executive
Officer and Director (Principal Executive
Officer)
Date: May 3, 2000 /s/ TODD TAPPIN
-----------------------------------------
Todd Tappin, Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
Date: May 3, 2000 /s/ TIMOTHY DRAPER
-----------------------------------------
Timothy Draper, Director
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Date: May 3, 2000 /s/ WILLIAM ELKUS
-----------------------------------------
William Elkus, Director
Date: May 3, 2000 /s/ WILLIAM GROSS
-----------------------------------------
William Gross, Director
Date: May 3, 2000 /s/ ROBERT M. KAVNER
-----------------------------------------
Robert M. Kavner, Director
Date: May 3, 2000 /s/ LINDA FAYNE LEVINSON
-----------------------------------------
Linda Fayne Levinson, Director
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
4.1 AuctionRover.com, Inc. 1999 Stock Award Plan.
4.2 AuctionRover.com, Inc. 1999 Executive Stock Award
Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Frank, Rimerman & Co. LLP, Independent
Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
</TABLE>
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<PAGE> 1
Exhibit 4.1
AUCTIONROVER.COM, INC.
1999 STOCK AWARD PLAN
ARTICLE I
Purpose; Term; Definitions
1.1 Purpose. The AuctionRover.com, Inc. 1999 Stock Award Plan (the
"Plan") is intended to secure for AuctionRover.com, Inc. (the "Company") and its
shareholders the benefits of the incentive inherent in stock ownership by the
employees, directors, officers, consultants and advisers of the Company and its
Affiliates who are largely responsible for the Company's and its Affiliates
future growth and continued financial success; and to afford such persons the
opportunity to obtain or increase a proprietary interest in the Company on a
favorable basis and, thereby, to have an opportunity to share in its success. It
is intended that: (1) the Incentive Stock Options issued pursuant to the Plan
shall constitute "incentive stock options" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended; (2) the Plan allow for issuance
of Non-Statutory Stock Options when the Committee deems appropriate; (3) offers
and sales of Common Stock pursuant to the Plan shall satisfy the requirements of
Rule 701 under the Securities Act; and (4) in the event that the Company becomes
a Reporting Company, the Plan shall satisfy the requirements of Rule 16b-3 under
the Exchange Act.
1.2 Effective Date of the Plan. This Plan has been approved by the
Board of Directors and the shareholders of the Company and the effective date of
the Plan is June 10, 1999.
1.3 Term. No awards shall be made under the Plan after ten (10)
years from the Effective Date; provided, however, that the Plan and all awards
made under the Plan prior to such date shall remain in effect until such awards
have been satisfied or terminated in accordance with the Plan and the terms of
such awards.
1.4 Definitions. Throughout this Plan, the following terms shall have
the meanings respectively indicated:
(a) "Affiliate" shall mean any parent corporation or subsidiary,
whether now or hereafter existing, as those terms are defined in Sections 424(e)
and (f), respectively, of the Code.
(b) "Benefits" shall mean any one or more of the following awards
that may be offered by the Committee to Participants under this Plan:
(i) Incentive Stock Options,
(ii) Non-Statutory Stock Options, or
(iii) Restricted Stock.
(c) "Board" shall mean the Board of Directors for the Company, as
elected by the shareholders of the Company.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and any successor revenue laws of the United States.
(e) "Committee" shall mean the committee of Directors appointed by
the Board to administer this Plan.
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(f) "Common Stock" shall mean the Company's no par value common
stock.
(g) "Company" shall mean AuctionRover.com, Inc., a North Carolina
corporation.
(h) "Consultant" shall mean any consultant or advisor engaged by
the Company or an Affiliate to provide advice or assistance in a field in which
the consultant or advisor has specialized knowledge or experience; the term
shall not include Directors unless such person comes within the above definition
outside his or her capacity as a director.
(i) "Director" shall mean any person elected and currently serving
as a member of the Board or of the board of directors of any Affiliate.
(j) "Disinterested Person" shall mean a Director who either (i)
was not during the one year prior to service as an "administrator" of the Plan
granted or awarded any Benefits pursuant to the Plan or any equity securities
pursuant to any other plan of the Company or any of its Affiliates entitling the
participants therein to acquire equity securities of the Company or any of its
Affiliates except as permitted by Rule 16b-3(c)(2)(i) of the Exchange Act; or
(ii) is otherwise considered to be a "disinterested person" in accordance with
Rule 16b-3(c)(2)(i) of the Exchange Act.
(k) "Effective Date" shall have the meaning assigned in Paragraph
1.2.
(l) "Employee" shall mean an employee, as defined in Section
3401(c) of the Code, of the Company or of an Affiliate, including Officers and
Directors; provided however that neither service as a Director nor payment of a
director's fee by the Company shall be sufficient to constitute the Director an
Employee.
(m) "Escrow Period" shall mean the date beginning with the initial
issuance of Restricted Stock and continuing until such time as the applicable
document indicates the Restricted Stock may be released from escrow.
(n) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
(o) "Fair Market Value" shall mean: (i) if the Common Stock is not
listed on a national securities exchange or traded in the NASDAQ National Market
System or the over-the-counter market, the fair value thereof determined in good
faith by the Committee without taking into account any restrictions on the
shares other than restrictions which, by their terms, will never lapse; or (ii)
if the Common Stock is traded in the over-the-counter market and is not listed
on a national securities exchange or traded on the NASDAQ National Market
System, the average of the closing bid and asked prices for the Common Stock as
reported by the National Association of Securities Dealers Automated Quotation
("NASDAQ") System; or (iii) if the Common Stock is listed on a national
securities exchange or traded on the NASDAQ National Market System, the closing
price of the Common Stock.
(p) "Incentive Stock Option" shall mean an option to acquire
Common Stock that is intended to qualify as an "incentive stock option" within
the meaning of Section 422 of the Code.
(q) "Incentive Stock Option Agreement" shall mean a written
agreement between the Company and an Employee pursuant to which an Incentive
Stock Option is issued to the Employee pursuant to this Plan.
(r) "Initial Public Offering" shall mean the consummation of the
Company's sale of its Common Stock in a bona fide, firm commitment or best
efforts underwriting pursuant to a registration statement under the Securities
Act, in which the net proceeds to the Company are not less than $10,000,000.
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(s) "Non-Employee Director" shall mean a director who: (i) is not
currently an officer of, or is not otherwise currently employed by, the Company
or an Affiliate of the Company, (ii) does not receive compensation, either
directly or indirectly, from the Company or an Affiliate of the Company, for
services rendered as a consultant or in any capacity other than as a director,
except in an amount permitted by Rule 16b-3 under the Exchange Act, and (iii)
who otherwise meets the definition of a "Non-Employee Director" under Rule
16b-3.
(t) "Non-Statutory Stock Option" shall mean an option to acquire
Common Stock that is not intended to be an Incentive Stock Option or does not
qualify as an Incentive Stock Option.
(u) "Non-Statutory Stock Option Agreement" shall mean a written
agreement between the Company and a Participant pursuant to which a
Non-Statutory Stock Option is issued to the Participant pursuant to this Plan.
(v) "Officer" shall mean a person who is an officer of the Company
or its Affiliate within the meaning of Section 16 of the Exchange Act.
(w) "Option" shall mean a Non-Statutory Stock Option or an
Incentive Stock Option, as the context may require, granted pursuant to this
Plan.
(x) "Optionee" shall mean the holder of a Non-Statutory Stock
Option or an Incentive Stock Option, as the context may require.
(y) "Participant" shall mean an Employee, Director, Officer or
Consultant selected by the Committee pursuant to Article III of this Plan to
receive Benefits.
(z) "Plan" shall mean the AuctionRover.com, Inc. 1999 Stock Award Plan,
as it may be amended from time to time.
(aa) "Reporting Company" shall mean a company that has a class of
equity securities registered under the Securities Exchange Act of 1934.
(bb) "Restricted Stock" shall mean Common Stock granted under
Article VI of this Plan or pursuant to the exercise of an Option, and subject to
such restrictions as the Committee may determine as evidenced in a Restricted
Stock Agreement.
(cc) "Restricted Stock Agreement" shall mean a written agreement
between the Company and a Participant pursuant to which Restricted Stock is
issued to the Participant under this Plan, including, without limitation,
Restricted Stock issued upon exercise of an Option.
(dd) "Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
ARTICLE II
Administration
2.1 Administration of Plan. The Plan shall be administered by the
Committee, which shall be appointed by the Board in accordance with Paragraph
2.2. In the event the Board should fail to appoint a Committee, the Board shall
administer the Plan as if it were the Committee.
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2.2 Committee Composition. The Committee shall consist of not less
than two (2) nor more than five (5) Directors. Once designated, the Committee
shall continue to serve until otherwise directed by the Board. From time to
time, the Board may increase the size of the Committee, appoint additional
members, remove members (with or without cause), appoint new members in
substitution therefor, fill vacancies however caused, and remove all members of
the Committee.
2.3 Operation of Committee. A majority of the entire Committee
shall constitute a quorum and the action of a majority of the members present at
any meeting at which a quorum is present shall be deemed the action of the
Committee. In addition, any decision or determination reduced to writing and
signed by all of the members of the Committee shall be fully as effective as if
it had been made by a majority vote at a meeting duly called and held. Subject
to the provisions of the Plan, to the provisions of the Company's bylaws, and to
any terms and conditions prescribed by the Board, the Committee may make such
rules and regulations for the conduct of its business as it shall deem
advisable. The Committee shall hold meetings at such time and places as it may
determine. The interpretation and construction by the Committee of any
provisions of the Plan or of any Benefit granted under it shall be final, unless
otherwise determined by the Board.
2.4 Committee Authority. Subject to the provisions of the Plan and
any conditions and limitations prescribed by the Board consistent with the Plan,
the Committee shall have the authority, in its sole discretion, to:
(a) designate the Participants eligible to participate in the Plan;
(b) grant awards provided in the Plan in such form and amount as
the Committee may determine, including without limitation whether each grant
shall be for Incentive Stock Options, Non-Statutory Stock Options or Restricted
Stock;
(c) impose such limitations, restrictions and conditions upon such
awards as the Committee shall deem appropriate;
(d) construe and interpret the Plan and Benefits granted under it,
adopt, amend and rescind rules and regulations relating to the Plan, and make
all other determinations and take all other actions necessary or advisable for
the implementation and administration of the Plan.
2.5 Good Faith Determinations. No member of the Board or the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any award under the Plan.
2.6 Administration of Plan by a Reporting Company. At any time
that the Company becomes a Reporting Company, the administration of the Plan
shall be changed as follows: The Committee shall consist of not less than two
(2) persons, each of whom shall be a Director who either: (i) is not a current
employee of the Company or an "affiliated corporation" (as defined in the
regulations promulgated under Section 162(m) of the Code), is not a former
employee of the Company or an affiliated corporation receiving compensation for
prior services (other than benefits under a tax-qualified pension plan), was not
an officer of the Company or an affiliated corporation at any time, and is not
currently receiving compensation for personal services in any capacity other
than as a Director, or (ii) is otherwise considered an "outside director" under
Section 162(m) of the Code and a Non-Employee Director.
ARTICLE III
Eligibility; Types of Benefits; Shares Subject to the Plan
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3.1 Criteria. The Committee shall from time to time determine and
designate the Participants to receive Benefits under the Plan and the number of
Incentive Stock Options, Non-Statutory Stock Options, or shares of Restricted
Stock to be awarded to such persons; provided, however, that only Employees may
be designated to receive Incentive Stock Options; and provided further, however,
that no Benefits may be received by a Consultant under this Plan for services
rendered in connection with the offer and sale of securities in a
capital-raising transaction. In making any such awards, the Committee may take
into account the nature of services rendered, commissions or other compensation
earned, the capacity of the Employee, Consultant, Officer or Director to
contribute to the success of the Company or any of its Affiliates, and such
other factors as the Committee may consider relevant.
3.2 Types of Benefits. Benefits available under the Plan may be
awarded singularly or in any combination provided, however, that Incentive Stock
Options may not be awarded in tandem with Non-Statutory Stock Options where the
exercise of one affects the right to exercise the other.
3.3 Shares Subject to the Plan. Stock that may be issued under the
Plan shall be authorized and unissued Common Stock. The maximum total number of
shares of Common Stock which may be issued under the Plan shall be two million
one hundred thousand (2,100,000) shares. For purposes of calculating the maximum
number of shares of Common Stock that may be issued under the Plan:
(a) The Common Stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise;
(b) When cash is used by the Participant as full payment for
shares issued upon exercise of a Non-Statutory Stock Option or an Incentive
Stock Option or as payment for the purchase of Restricted Shares, all the shares
issued (including the shares, if any, withheld for tax withholding requirements)
shall be counted;
(c) When shares of stock, including, without limitation, Common
Stock issued pursuant to the Plan, are used by the Participant as full or
partial payment for shares issued upon exercise of a Non-Statutory Stock Option
or an Incentive Stock Option or as payment for the purchase of Restricted
Shares, all the shares issued (including shares, if any, withheld for tax
withholding requirements, and the shares used in the purchase) shall be counted;
(d) Any shares of Common Stock subject to a Non-Statutory Stock
Option or an Incentive Stock Option which for any reason is terminated
unexercised or expires shall again be available for issuance under the Plan; and
(e) If any change is made to the Common Stock subject to the Plan,
through merger, consolidation, reorganization, recapitalization, stock dividend,
dividend in property other than cash, stock split, liquidatory dividend,
combination of shares, exchange of shares, change in corporate structure, or
otherwise, the maximum number of shares subject to the Plan shall be
appropriately adjusted.
3.4 Ten Percent Shareholders. No Employee shall be eligible to
receive an Incentive Stock Option if such Employee owns, or is deemed to
beneficially own under Section 424(d) of the Code, stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company or of any of its Affiliates, unless (i) the option price is at least
one hundred ten percent (110%) of the Fair Market Value of the Common Stock as
the time the Option is granted; and (ii) the Option is not exercisable after the
expiration of five (5) years (or such shorter period as the Committee may
determine).
3.5 Rule 701 Limitation.
(a) It is intended that this Plan shall comply with Rule 701 of the
Securities Act. Therefore, the aggregate exercise price of stock options granted
by the Company plus the aggregate offering price of securities of
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the Company sold during any consecutive twelve (12) month period in reliance on
Rule 701 shall not exceed the greater of one million dollars ($1,000,000) or the
amount determined under clause (i) or (ii) below.
(i) The aggregate exercise price of stock options granted by
the Company plus the aggregate offering price of securities of the Company sold
during any consecutive twelve (12) month period in reliance on Rule 701 shall
not exceed fifteen percent (15%) of the total assets of the Company measured at
the Company's most recent balance sheet date (if no older than its last fiscal
year end); or
(ii) The aggregate number of shares of Common Stock for which
stock options granted by the Company plus the aggregate number of shares of
Common Stock of the Company sold during any consecutive twelve (12) month period
in reliance on Rule 701 shall not exceed fifteen percent (15%) of the number of
outstanding shares of Common Stock, measured at the Company's most recent
balance sheet date (if no older than its last fiscal year end). The outstanding
shares of Common Stock shall include securities of that class issuable pursuant
to the exercise of outstanding options, warrants, rights or conversion of
convertible securities, unless such options, warrants, rights or convertible
securities were issued under Rule 701. If the securities offered or sold under
Rule 701 are convertible securities, the number of securities subject to
outstanding offers and sold under this clause shall be deemed to be shares of
the securities into which such securities may be converted. The Committee shall
ensure compliance with the restrictions set forth in Rule 701, as shall be in
effect from time to time. In furtherance of this objective, the Committee shall
maintain a record of shares subject to outstanding stock options of the Company
and the exercise price of such options, plus a record of all shares of Common
Stock issued upon the exercise of such options and the exercise price of such
options. If the Company offers securities under any other compensatory benefit
plan or written contract relating to compensation under Rule 701, the Board
shall take such steps as are required to ensure that the shares offered and sold
under this Plan and such other securities do not exceed the limitations of Rule
701.
(b) If the amount of the aggregate exercise price of stock options
granted by the Company plus the aggregate offering price of securities of the
Company sold during any consecutive twelve (12) month period exceeds five
million dollars ($5,000,000), then the Company shall deliver to any recipient of
any Incentive Stock Option, Non-Statutory Stock Option or other award under this
Plan the information required by Rule 701(e).
ARTICLE IV
Incentive Stock Options
Incentive Stock Options granted pursuant to this Article are intended
to constitute "incentive stock options" under Section 422 of the Code. No
Employee may be granted Incentive Stock Options under this Plan if the aggregate
Fair Market Value (determined as of the date the Option is granted and taking
into account such Option) of stock of the Company and its Affiliates with
respect to which incentive stock options (as defined in Section 422 of the Code)
are exercisable for the first time by such Employee during any calendar year,
under this and all other plans of the Company and its Affiliates, would exceed
one hundred thousand dollars ($100,000).
The Incentive Stock Option Agreements shall contain terms and
provisions determined by the Committee and consistent with this Plan. The
Committee from time to time may grant Incentive Stock Options to Employees under
this Plan, which grants shall be evidenced by Incentive Stock Option Agreements.
4.1 Mandatory Provisions. The Incentive Stock Option Agreements
may be need not be identical, but each such Incentive Stock Option Agreement
shall include, by appropriate language, the substance of all the following terms
and provisions:
(a) That the Option granted thereunder is an Incentive Stock
Option.
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<PAGE> 7
(b) The number of shares to which it pertains.
(c) A minimum number of the shares that may be purchased upon each
partial exercise of an Option.
(d) The option exercise price, which price shall be set by the
Committee and shall be equal to one hundred percent (100%) of the Fair Market
Value of the Common Stock at the time the Option is granted; provided, however,
that for an Employee who is a ten percent (10%) shareholder, as determined in
Paragraph 3.4, the option price for the Option shall be at least one hundred ten
percent (110%) of the Fair Market Value of the Common Stock at the time the
Option is granted.
(e) The date the Option is granted, which shall be the date
selected by the Committee as of which the Committee allots a specific number of
shares of Common Stock to an Employee pursuant to the Plan.
(f) The time after which the Option expires, provided that the
Option shall not be exercisable after the expiration of ten (10) years from the
date it is granted and that with respect to an employee who is a ten percent
(10%) shareholder, as determined in Paragraph 3.4, the Option shall not be
exercisable after the expiration of five (5) years from the date it is granted.
(g) That the Option terminates upon termination of employment of
the Employee with either the Company or an Affiliate, except as such period may
be extended under the optional provisions in Paragraph 4.2.
(h) That the Option is exercisable during the Optionee's lifetime
only by the Optionee, and that the Option shall not be assignable or
transferable by the Optionee except by will or distribution through intestate
succession.
(i) That neither the Optionee, nor any person to whom an Option is
permitted to be transferred, shall be deemed to be the holder of, or have any
rights of a holder with respect to, any shares subject to such Option unless and
until such person has satisfied all requirements for exercise of the Option,
pursuant to its terms, and then only after shares have been issued to the
Optionee.
(j) The time and medium of payment with respect to exercise of the
Option, provided that if payment is permitted to be made by Common Stock, the
stock shall be valued at its Fair Market Value as of the date the Option is
exercised.
(k) Unless modified by the optional provisions in Paragraph 4.2,
that to the extent the Employee (or other person exercising such Option)
recognizes income as a result of the exercise of the Option, the subsequent sale
of the Common Stock issued pursuant to exercise of the Option, or a lapse in the
restrictions on the Restricted Stock issued upon exercise of the Option, then
the Employee shall pay the Company or its applicable Affiliate an amount equal
to the federal, state and local withholding taxes on income so recognized at the
time required by law.
(l) The treatment of the Options upon merger, reorganization,
recapitalization, exchange of shares, change in corporate structure,
liquidation, stock dividend and similar events.
(m) If the Company is a Reporting Company, a term providing that
any Common Stock acquired upon exercise of the Option shall not be sold or
otherwise transferred before the expiration of six (6) months from the date such
Option is granted.
4.2 Optional Provisions. Incentive Stock Option Agreements may
contain such other provisions not inconsistent with the Plan and Section 422 of
the Code as the Committee, in its discretion, deems advisable. Without limiting
the foregoing, the Committee may consider inclusion of the following terms:
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<PAGE> 8
(a) That upon termination of Employee's employment with the
Company or its Affiliates other than as a result of death or disability, the
Option may be exercised for an additional period of time specified by the
Committee but not exceeding ninety (90) days.
(b) That upon termination of Employee's employment with the
Company or its Affiliates as a result of death, the Option may be exercised for
an additional period of time specified by the Committee but not exceeding one
(1) year.
(c) That upon termination of Employee's employment with the
Company or its Affiliates as a result of disability (within the meaning of
Section 22(e)(3) of the Code and as defined in the Incentive Stock Option
Agreement), the Option may be exercised for an additional period of time
specified by the Committee but not exceeding one (1) year.
(d) That the Optionee be prohibited from transferring any share of
stock issued upon exercise of an Option within two (2) years from the date of
the granting of the Option or within one (1) year after the transfer of such
share to the Optionee.
(e) That the total number of shares of stock subject to an Option
shall be allotted in periodic installments (which may, but need not, be equal)
and that from time to time during each of such installment periods, the Option
shall become exercisable ("vest") with respect to some or all of the shares
allotted to that period, and may be exercised with respect to some or all of the
shares allocated to such period and/or any prior period as to which the Option
became vested but was not fully exercised. The Option may be subject to such
other terms and conditions on the time or times when it may be exercised (which
may be based on performance or other criteria) as the Committee may deem
appropriate.
(f) The circumstances under which all or any portion of any Option
granted and not yet vested may or shall have the vesting schedule accelerated or
terminated.
(g) The circumstances under which all or any portion of any Option
previously granted and unexercised may or shall be terminated.
(h) That the shares to be received upon exercise shall be
Restricted Stock and that no exercise of an Option shall be effective until a
Restricted Stock Agreement has been executed with respect to such shares.
(i) That in the event an Employee accepting a grant of Options
under this Plan incurs federal, state or local income, employment or other
withholding taxes applicable to the income recognized by such Employee and
attributable to the Common Stock issued upon exercise of the Option, the
subsequent sale of the Common Stock issued pursuant to exercise of the Option,
or a lapse in the restrictions on the Restricted Stock issued upon exercise of
the Option, then at the time as may be required by law, the Company or its
applicable Affiliate may provide for payment of the taxes on behalf of the
Employee (or other person exercising such Option) pursuant to one or any
combination of the following: (i) by an advance on behalf of Employee by the
Company or such Affiliate pursuant to a repayment schedule satisfactory to the
Company or such Affiliate; or (ii) by withholding from the Employee's salary,
commissions or other compensation; or (iii) by payment in whole or in part by
the Company or such Affiliate.
4.3 Prohibited Provision. No Incentive Stock Option Agreement
shall impose an obligation upon the Optionee to exercise an Option.
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<PAGE> 9
ARTICLE V
Non-Statutory Stock Options
Non-Statutory Stock Options granted pursuant to this Article are not
intended to constitute "incentive stock options" under Section 422 of the Code.
The Non-Statutory Stock Option Agreement shall contain terms and provisions
determined by the Committee and consistent with this Plan. The Committee from
time to time may grant Non-Statutory Stock Options to Participants under this
Plan, which grants shall be evidenced by Non-Statutory Stock Option Agreements.
5.1 Mandatory Provisions. The Non-Statutory Stock Option
Agreements need not be identical, but each such Non-Statutory Stock Option
Agreement, by appropriate language, shall include the substance of all the
following terms:
(a) The number of shares to which it pertains.
(b) A minimum number of the shares that may be purchased upon each
partial exercise of an Option.
(c) The option exercise price, which price shall be set by the
Committee.
(d) The date the Option is granted, which shall be the date
selected by the Committee as of which date the Committee allots a specific
number of shares of Common Stock to a Participant pursuant to the Plan.
(e) The time after which the Option expires.
(f) Whether and upon what terms the Option is transferable.
(g) That neither an Optionee, nor any person to whom an Option is
permitted to be transferred, shall be deemed to be the holder of, or have any
rights of a holder with respect to, any shares subject to such Option unless and
until such person has satisfied all requirements for exercise of the Option,
pursuant to its terms, and then only after shares have been issued to the
Optionee.
(h) The time and medium of payment with respect to exercise of the
Option, provided that if payment is permitted to be made by Common Stock, the
stock shall be valued at its Fair Market Value as of the date the Option is
exercised.
(i) Unless modified by the optional provisions in Paragraph 5.2,
that to the extent the Participant (or other person exercising such Option)
recognizes income as a result of the exercise of the Option, the subsequent sale
of the Common Stock issued pursuant to exercise of the Option, or a lapse in the
restrictions on the Restricted Stock issued upon exercise of the Option, then
the Participant shall pay the Company or its applicable Affiliate an amount
equal to the federal, state and local withholding taxes on income so recognized
at the time required by law.
(j) Terms indicating treatment of the Options upon merger,
reorganization, recapitalization, exchange of shares, change in corporate
structure, liquidation, stock dividend and similar events.
(k) If the Company is a Reporting Company, a term providing that
any Common Stock acquired upon exercise of the Option shall not be sold or
otherwise transferred before the expiration of six (6) months from the date such
Option is granted.
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<PAGE> 10
5.2 Optional Provisions. Non-Statutory Stock Option Agreements may
contain such other provisions not inconsistent with the Plan as the Committee,
in its discretion, shall deem advisable. Without limiting the foregoing, the
Committee shall specifically consider inclusion of the following terms:
(a) That the total number of shares of stock subject to an Option
be allotted in periodic installments (which may, but need not, be equal) and
that from time to time during each of such installment periods, the Option may
become exercisable ("vest") with respect to some or all of the shares allotted
to that period, and may be exercised with respect to some or all of the shares
allocated to such period and/or any prior period as to which the Option became
vested but was not fully exercised. The Option may be subject to such other
terms and conditions on the time or times when it may be exercised (which may be
based on performance or other criteria) as the Committee may deem appropriate.
(b) The circumstances under which all or any portion of any Option
previously granted and unexercised may or shall be terminated, including without
limitation expiration of the Option as it may be related to termination of
employment, death, disability or retirement.
(c) The circumstances under which all or any portion of any Option
granted and not yet vested may or shall have the vesting schedule accelerated or
terminated.
(d) That the shares to be received upon exercise shall be
Restricted Stock and that no exercise of an Option shall be effective until a
Restricted Stock Agreement has been executed with respect to such shares.
(e) That in the event a Participant accepting a grant of Options
under this Plan incurs federal, state or local income, employment or other
withholding taxes applicable to the income recognized by such Participant and
attributable to the Common Stock issued upon exercise of the Option, the
subsequent sale of the Common Stock issued pursuant to exercise of the Option,
or a lapse of the restrictions on the Restricted Stock, then at the time as may
be required by law, the Company or its applicable Affiliate may provide for
payment of the taxes on behalf of the Participant (or other person exercising
such Option) pursuant to one or any combination of the following: (i) by an
advance on behalf of Participant by the Company or such Affiliate pursuant to a
repayment schedule satisfactory to the Company or such Affiliate; or (ii) by
withholding from the Participant's salary, commissions or other compensation; or
(iii) by payment in whole or in part by the Company or such Affiliate.
5.3 Prohibited Provision. No Non-Statutory Stock Option Agreement
shall impose an obligation on the Optionee to exercise an Option.
ARTICLE VI
Restricted Stock
The Committee from time to time may award Restricted Stock to
Participants under this Plan, which awards shall be evidenced by Restricted
Stock Agreements. The Restricted Stock Agreements shall contain terms and
provisions determined by the Committee, and consistent with this Plan.
6.1 Mandatory Provisions. The Restricted Stock Agreements need not
be identical, but each such Restricted Stock Agreement, by appropriate language,
shall include the substance of all the following terms:
(a) The number of shares of Restricted Stock to which it pertains.
(b) The price for the issuance of the shares of Restricted Stock,
which price shall be set by the Committee.
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<PAGE> 11
(c) The time and medium of payment with respect for the Restricted
Stock, provided that if payment is permitted to be made by Common Stock, the
stock shall be valued at its Fair Market Value as of the date the payment.
(d) The restrictions that are to be placed on the stock, which
restrictions may include but need not be limited to limitations on the sale,
transfer or encumbrance of the Restricted Stock, and rights of first refusal,
mandatory or optional puts or calls, and forfeiture upon the occurrence of
certain events.
(e) The time, if any, when the restrictions terminate or lapse.
(f) Unless modified by the optional provisions in Paragraph 6.2,
that to the extent the Participant recognizes income attributable to the receipt
of the Restricted Stock or upon subsequent lapse of the restrictions on the
Restricted Stock, then at the time as may be required by law, the Participant
shall pay the Company or its applicable Affiliate an amount equal to the
federal, state and local withholding taxes on income so recognized at the time
required by law.
(g) That if any change is made in the Common Stock by reason of
any merger, consolidation, reorganization, recapitalization, stock dividend,
split up, combination of shares, exchange of shares, change in corporate
structure, or otherwise, any shares received by a Participant with respect to
Restricted Stock shall be subject to the same restrictions applicable to such
Restricted Stock.
6.2 Optional Provisions. The Restricted Stock Agreement may
contain such other provisions not inconsistent with the Plan as the Committee in
its discretion shall deem advisable. Without limiting the foregoing, the
Committee shall specifically consider inclusion of the following terms:
(a) The circumstances under which the time at which any or all of
the restrictions lapse may be accelerated.
(b) That the certificates for Restricted Stock be required to be
held in escrow and be released to the shareholder only upon conditions specified
by the Committee in the Restricted Stock Agreement.
(c) That Restricted Stock be required to be placed in a voting
trust or be subject to an irrevocable proxy for up to the maximum period
permitted by law.
(d) That the Participant receiving the Restricted Stock must file
an election under Section 83(b) of the Code and pay the applicable taxes due
upon such filing.
(e) That in the event a Participant accepting Restricted Stock
under this Plan incurs federal, state or local income, employment or other
withholding taxes applicable to the income recognized by such Participant and
attributable to the receipt of the Restricted Stock or upon subsequent lapse of
the restrictions on the Restricted Stock, then at the time as may be required by
law, the Company or its applicable Affiliate may provide for payment of the
taxes on behalf of the Participant pursuant to one or any combination of the
following: (i) by an advance on behalf of Participant by the Company or such
Affiliate pursuant to a repayment schedule satisfactory to the Company or such
Affiliate; or (ii) by withholding from the Participant's salary, commissions or
other compensation; or (iii) by payment in whole or in part by the Company or
such Affiliate.
ARTICLE VII
Miscellaneous Provisions
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<PAGE> 12
7.1 Right to Terminate Employment. Nothing in this Plan shall
confer upon any Participant the right to be employed by the Company, or, if
already employed, to continue in the employment of the Company or of any
Affiliate or affect any right which the Company or any Affiliate may have to
terminate the employment of such Participant.
7.2 Securities Laws. Each Benefit awarded under the Plan shall be
subject to the requirement that, if at any time the Committee shall determine
that (i) the listing, registration or qualification of the shares of Common
Stock subject to the Plan upon any securities exchange or under any state or
federal law, or (ii) the consent or approval of any governmental authority, or
(iii) an agreement by the recipient of an award with respect to the disposition
of shares of Common Stock, is necessary or desirable as a condition of, or in
connection with, the granting of such Benefit or the issue or purchase of shares
of Common Stock thereunder, the award of such Benefit may not be consummated in
whole or in part unless such listing, registration, qualification, consent,
approval or agreement shall have been effected or obtained free of any
conditions not acceptable to the Committee. The inability of the Company to
obtain from any regulatory body having jurisdiction the authority deemed by the
Company's counsel to be necessary to the lawful issuance of any shares of its
Common Stock hereunder shall relieve the Company of any liability in respect of
the nonissuance or sale of such stock as to which such requisite authority shall
not have been obtained. Notwithstanding the foregoing, the Company shall not be
required to register under the Securities Act any Option or any Common Stock to
be issued under the Plan or pursuant to the exercise of any Option.
7.3 Reservation of Shares. The Company, during the term of this
Plan, shall at all times reserve and keep available, and will seek or obtain
from any regulatory body having jurisdiction any requisite authority in order to
issue such number of shares of its Common Stock as shall be sufficient to
satisfy the requirements of the Plan.
7.4 Indemnification of Committee. In addition to such other rights
of indemnification as they may have as Directors or as members of the Committee,
the members of the Committee shall be indemnified by the Company against the
reasonable expenses, including attorney's fees actually and necessarily incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with the
Plan or any Benefit granted under the Plan, and against all amounts paid by them
in settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such
Committee member is liable for gross negligence or wilful misconduct in the
performance of his duties, provided that within sixty (60) days after
institution of any such action, suit or proceeding, a Committee member shall
have offered the Company, in writing, the opportunity, at its own expense, to
handle and defend the same.
7.5 Amendment, Modification, Suspension or Discontinuance of the
Plan. The Board, without shareholder approval, may from time to time alter,
amend, suspend or terminate this Plan for the purpose of improving the
effectiveness of the Plan as an incentive device, or conforming the Plan to
applicable governmental regulations or to any change in applicable law or
regulations, or any other purpose permitted by law; provided, however, that no
such action by the Board shall adversely affect any Benefit theretofore granted
under the Plan without the consent of the holder so affected; provided further,
however, that the Board may not increase the number of shares of Common Stock
authorized under Paragraph 3.3 of this Plan or change the employees or class of
employees eligible to participate without the approval of the shareholders of
the Company; and provided further, however, that the Board shall submit any
amendments to the shareholders of the Company for approval to the extent
necessary to maintain compliance with the requirements of Rule 16b-3 under the
Exchange Act or Rule 701 under the Securities Act, and to maintain the
qualification of the Incentive Stock Options that may be granted hereunder as
"incentive stock options" within the meaning of Section 422 of the Code.
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<PAGE> 13
7.6 Use of Proceeds. Proceeds from the sale of stock pursuant to
Options or from the sale of Restricted Stock shall constitute general funds of
the Company.
7.7 Governing Law. This Plan and all rights and obligations
hereunder shall be construed in accordance with and governed by the internal
laws of the State of North Carolina.
7.8 Designation. This Plan may be referred to in other documents and
instruments as the "AuctionRover.com 1999 Stock Award Plan".
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<PAGE> 14
INCENTIVE STOCK OPTION AGREEMENT
Pursuant to the
AUCTIONROVER.COM, INC.
1999 STOCK AWARD PLAN
This Incentive Stock Agreement (this "Agreement"), is made and entered
into as of [DATE], by and between AuctionRover.com, Inc., a North Carolina
corporation (the "Company'), and [NAME], an Employee of the Company or of any
Affiliate of the Company ("Optionee").
W I T N E S S E T H:
WHEREAS, the Company has adopted the AuctionRover.com, Inc. 1999 Stock
Award Plan (the "Plan") for the purpose of securing for the Company and its
shareholders the benefit of the incentive inherent in stock ownership by the
Employees of the Company and its Affiliates who are largely responsible for the
Company's and its Affiliates' future growth and financial success; and
WHEREAS, the Company desires to encourage Optionee to remain in the
employment of the Company or its Affiliates and to afford Optionee the
opportunity to obtain or to increase a proprietary interest in the Company on a
favorable basis and, thereby, to have an opportunity to share in its success.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties mutually covenant
and agree as follows:
1. Subject to Plan. This Agreement is subject to the terms and
conditions contained in the Plan, which is incorporated herein by reference.
Optionee represents that Optionee has received a copy of the Plan with this
Agreement. All capitalized terms used herein which are not defined in this
Agreement shall have the respective meanings ascribed to them in the Plan. In
the event of any conflict between the provisions of this Agreement and those of
the Plan, the provisions of the Plan shall control. This Agreement is subject to
interpretations, amendments, rules and regulations which may from time to time
be promulgated by the Committee administering the Plan and which are adopted
pursuant to the Plan.
2. Grant of Option. Subject to the terms and conditions set forth
herein, Company grants to Optionee, during the period commencing with the date
of this Agreement and ending [DATE PLUS 10 YEARS], unless terminated in
accordance with Paragraph 4 or accelerated or terminated in accordance with
Paragraph 10 (the "Option Period"), the option to purchase from the Company
(this "Option"), at a price of Fifty Cents ($.50) per share (the "Option
Price"), [NUMBER (WRITTEN)] ([NUMBER (NUMERICAL)]) shares of the Company's
Common Stock (the "Shares"). The Option granted herein is in connection with and
in furtherance of the Company's compensatory benefit plan for participation of
the Company's Employees and is intended to comply with the provisions of Rule
701 under the Securities Act. The Option granted herein is intended to be an
"Incentive Stock Option" under Section 422 of the Code.
3 Exercise of Option
(a) The Option may be exercised, from time to time, during the
Option Period, to purchase all or any portion of the number of Shares as
follows:
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<PAGE> 15
<TABLE>
<CAPTION>
Cumulative Maximum
Percentage of
Shares that
Period from Date of Grant of the Option May Be Purchased
--------------------------------------- ----------------
<S> <C>
On or before [DATE], 2000 0%
After [DATE],2000 but
on or before [DATE], 2001 25%
After [DATE], 2001 but
on or before [DATE], 2002 50%
After [DATE], 2002 but
on or before [DATE], 2003 75%
After [DATE], 2003. 100%
</TABLE>
The maximum number of Shares that may be purchased during each time
period specified above shall be reduced by the number of Shares purchased prior
to the beginning of such period, such that the cumulative maximum for each time
period is not exceeded.
(b) Optionee may not purchase fewer than one thousand (1,000) Shares
upon any single exercise of this Option, unless the number of Shares to be
purchased at such time is the total number of Shares remaining subject to this
Option. Any exercise of less than the total number of Shares granted under this
Option shall be deemed an exercise in part, and this Option may again be
exercised at such time or times determined by Optionee, provided that this
Option is still exercisable at such times.
(c) Optionee shall exercise this Option by delivering to the Secretary
of the Company, on any business day, a written notice signed by Optionee which
specifies the number of Shares to be purchased, together with payment of the
Option Price as provided in Paragraph 5(a).
(d) Optionee may not exercise this Option, in whole or in part, after
the expiration or termination of the Option Period.
4. Termination of Employment. The Option granted hereunder and the
Option Period shall terminate upon the earlier of the end of the
originally-specified Option Period or sixty (60) days after termination of
Optionee's employment with the Company or an Affiliate of the Company
(termination of employment meaning cessation of the employment relation between
the Company and Optionee for any reason, including without limitation,
termination by death, disability, retirement, for cause, without cause,
voluntary or involuntary; termination shall not be deemed to have occurred if
Optionee changes employment from employment with the Company or an Affiliate to
employment with another Affiliate or the Company provided that Optionee is
working at least fifty percent (50%) of the time for the Company or an
Affiliate), unless such termination of employment is due to either disability
(within the meaning of Section 22(e)(3) of the Code), or to death, in which
event this Option shall terminate on the earlier of the originally-specified end
of the Option Period or six (6) months following termination of Optionee's
employment due to such disability or death. Notwithstanding anything to the
contrary contained in this Agreement, vesting of the Option shall terminate as
of the date of termination of Optionee's employment. This Option may be
exercised following termination of employment only as to that number of Shares
as to which it was exercisable on the date of termination of employment under
the provisions of Paragraph 3(a) of this Agreement.
5. Payment of Option Price and Related Taxes.
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<PAGE> 16
(a) Optionee (or other person exercising this Option) shall make
payment in full of the Option Price at the time this Option is exercised, in
U.S. dollars in cash or by certified or bank check.
(b) If and to the extent that Optionee (or other person exercising this
Option) recognizes taxable income as a result of the exercise of this Option, he
or she shall pay the Company an amount equal to the federal, state and local
withholding taxes, if any, on income so recognized within ten (10) days of the
exercise of the Option.
6. Issuance of Shares.
(a) Within fifteen (15) business days after receiving notice of
exercise and payment of the aggregate Option Price, and subject to Optionee's
(i) payment or arrangement for payment of the applicable taxes as specified in
Paragraph 5(b), and (ii) execution of the Restricted Stock Agreement pursuant to
Paragraph 7, below, the Company shall issue to Optionee the number of Shares
with respect to which this Option was exercised, and shall deliver to Optionee,
or if applicable under the Restricted Stock Agreement, to the Escrow Agent, a
certificate for such Shares. In no event shall any fractional Shares be issued
under this Agreement.
(b) Notwithstanding anything to the contrary contained in this
Agreement, this Option may not be exercised if at any time the Committee
determines it is necessary or desirable as a condition of, or in connection
with, the issuance of the Shares that (i) the Shares be listed, registered or
qualified upon any securities exchange or under any state or federal law, or
(ii) the consent or approval of any governmental authority be received. In no
event may the Shares be issued, in whole or in part, unless such listing,
registration, qualification, consent or approval has been effected or obtained
on terms acceptable to the Committee. The inability of the Company to obtain
from any regulatory body having jurisdiction the authority deemed by the
Company's counsel to be necessary to the lawful issuance of any shares of its
Common Stock hereunder shall relieve the Company of any liability in respect of
the nonissuance or sale of such Common Stock as to which such authority shall
not have been obtained. Notwithstanding the foregoing, the Company shall not be
required to register under the Securities Act any Shares to be issued pursuant
to exercise of the Option.
(c) Notwithstanding anything to the contrary contained in this
Agreement, if at any time specified herein for the issuance of shares to
Optionee, any law, or any regulation or requirement of the Securities and
Exchange Commission or any other federal, state or local governmental authority
having jurisdiction, shall require either the Company or Optionee to take any
action in connection with the Shares then to be issued, the issuance of such
Shares shall be deferred until such action shall have been taken. The Company
shall be under no obligation to take such action and the Company shall have no
liability whatsoever as a result of the non-issuance of such Shares as a result
of not taking such action, except that in such event the Company shall refund
any consideration tendered in respect of the Option Price to the Optionee.
7. Agreements Upon Exercise. Optionee agrees, by exercising this
Option, that simultaneously with each exercise of this Option, Optionee will
execute a Restricted Stock Agreement, in substantially the form of Exhibit A
attached hereto, which provides for certain restrictions on the transfer of the
Shares, which requires the Shares to be placed in Escrow for a certain period of
time and which requires that Optionee execute a Proxy in favor of the President
of the Company. The Company shall not issue any Shares to Optionee until the
Restricted Stock Agreement is executed. In the event Optionee fails to execute
the Restricted Stock Agreement within thirty (30) days after providing notice of
exercise, the Company shall return to Optionee the Option Price paid and the
notice of exercise shall be deemed void.
8. Transfer of Option. Optionee may only transfer this Option by will
or by distribution through intestate succession, and no one other than Optionee
may exercise this Option during Optionee's lifetime. No assignment or transfer
of this Option or of the rights represented thereby, whether voluntary or
involuntary, by operation of law or otherwise, shall vest in the assignee or
transferee any interest or right herein whatsoever. This
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<PAGE> 17
Option shall terminate and be of no force or effect immediately upon any attempt
to assign or transfer this Option other than by will or intestate succession.
9. Adjustments Upon Changes in Capitalization or Mergers.
(a) The Shares with respect to which this Option is granted are shares
of the Common Stock of the Company as constituted on the date of this Agreement,
but if, and whenever, prior to the delivery by the Company of all of the Shares
with respect to which this Option is granted, the Company shall pay a stock
dividend or effect a subdivision or combination of shares, or other capital
readjustment, then (i) in the event of any increase in the number of shares of
Common Stock outstanding, the number of Shares then remaining subject to this
Option shall be proportionately increased (except that any fractional share
resulting from any such adjustment shall be excluded from the operation of this
Agreement), and this Option Price payable per Share shall be proportionately
reduced, and (ii) in the event of a reduction in the number of shares of Common
Stock outstanding, the number of Shares then remaining subject to this Option
shall be proportionately reduced (except that any fractional share resulting
from any such adjustment shall be excluded from the operation of this
Agreement), and the Option Price payable per Share shall be proportionately
increased.
(b) Upon a merger or consolidation of the Company with or into or with
one or more other corporations, or any other corporate reorganization of any
form involving the Company as a party and an exchange, conversion, adjustment or
other modification of the outstanding Common Stock, Optionee shall thereafter
have the right, upon exercise of this Option, provided that this Option is
currently exercisable and has not otherwise been terminated, to receive the kind
and amount of shares of stock or other securities or property to which Optionee
would have been entitled if Optionee had received Shares by exercise of this
Option immediately prior to or simultaneously with such merger or consolidation
or similar transaction, and the Option Price shall be adjusted accordingly.
Comparable rights shall accrue to Optionee in the event of successive
transactions of the type described above. These adjustments and the manner of
their application shall be determined by the Committee in its sole discretion.
Any such adjustments may provide for the elimination of fractional shares.
10. Termination and Acceleration of Option.
(a) Anything contained herein to the contrary notwithstanding, upon a
sale or transfer of all or substantially all of the assets of the Company to
another corporation (other than a wholly-owned subsidiary), person or entity, or
upon a distribution by the Company of its assets as a liquidating or partial
liquidating dividend with respect to the Common Stock, or upon the happening of
any other similar event affecting the Common Stock, then following a
determination by the Board to effect or proceed with such event or transaction,
the Board or the Committee, in its sole discretion and upon at least ten (10)
days' written notice to the holder of all or any portion of this Option, may
either (i) accelerate the exercisability of all or any portion of this Option to
a date prior to the effectiveness of such event or transaction, notwithstanding
any other provisions contained in this Agreement which require this Option to be
outstanding for a minimum amount of time prior to exercise, or (ii) accelerate
the exercisability of all or any portion of this Option, as provided in the
preceding clause (i), and provide that any unexercised portion of this Option
shall terminate as of the effective date of such event or transaction.
(b) Anything contained herein to the contrary notwithstanding, upon the
happening of an Initial Public Offering, then following a determination by the
Board to effect or proceed with an Initial Public Offering, the Board or the
Committee, in its sole discretion and upon at least ten (10) days' written
notice to the holder of all or any portion of this Option, may either (i)
accelerate the exercisability of all or any portion of this Option to a date
prior to the effectiveness of such event or transaction, notwithstanding any
other provisions contained in this Agreement which require this Option to be
outstanding for a minimum amount of time prior to exercise, or (ii) accelerate
the exercisability of all or any portion of this Option, as provided in the
preceding clause (i), and provide that the any unexercised portion of this
Option shall terminate as of the effective date of the Initial Public Offering.
22
<PAGE> 18
(c) Anything contained herein to the contrary notwithstanding, in the
event of a merger or consolidation of the Company with or into any other
corporation or organization as a result of which the holders of the voting
capital stock of the Company prior to such merger or consolidation would receive
or hold less than a majority of the shares of voting capital stock of the
resulting or surviving corporation or organization, then, following a
determination by the Board to effect or proceed with such merger or
consolidation, the Option shall be accelerated such that, notwithstanding any
other provisions contained in this Agreement which require this Option to be
outstanding for a minimum amount of time prior to exercise, this Option shall be
immediately exercisable. Further, in the event of such merger or consolidation,
the Board or the Committee, upon at least ten (10) days' written notice to the
holder of all or any portion of this Option, may in its sole discretion, provide
that any unexercised portion of this Option outstanding as of the effective date
of such merger or consolidation shall terminate.
11. Optionee Not Shareholder. Neither Optionee, nor any person to whom
an Option is permitted to be transferred, shall be deemed to be a shareholder of
the Company for any purpose, or have any rights of a holder with respect to any
shares covered by this Option, unless this Option shall have been exercised and
the Option Price paid in the manner provided herein. Except as provided in
Paragraph 9, no adjustment shall be made for dividends or other rights where the
record date is prior to the date of exercise and payment.
12. No Effect. Neither this Option nor this Agreement shall affect in
any way the right or power of the Company or its shareholders to make or
authorize any or all adjustments, recapitalization, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issuance of bonds, debentures, preferred or
prior preference stocks ahead of or convertible into, or otherwise affecting the
Common Stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise.
13. Determination by Committee. Subject to the provisions of Paragraph
14 hereof, any dispute or disagreement which shall arise under, as a result of
or pursuant to, this Agreement shall be determined by the Committee in its
absolute and uncontrolled discretion, and any such determination or any other
determination by the Committee under or pursuant to this Agreement and any
interpretation by the Committee of the terms of this Agreement shall be final,
binding and conclusive on all persons affected thereby.
14. Board of Directors. Until such time as the Company is a Reporting
Company, the Board of Directors of the Company shall have the right, in its
absolute and uncontrolled discretion, to overrule or modify any determination or
interpretation made by the Committee as contemplated by Paragraph 13, and in
such event the determinations or interpretations by the Board shall be final,
binding and conclusive on all persons affected thereby.
15. Amendment of the Plan. The Board of Directors may amend or modify
the Plan at any time provided that no such amendment shall, without the consent
of Optionee, reduce the amount of any benefit or adversely change the terms and
conditions of this Agreement.
16. Notices. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be delivered
personally or by mail, postage prepaid, addressed as follows: President of the
Company, at 3000 Aerial Center, Suite 160, Morrisville, North Carolina 27560, or
at such other address as the Company, by notice to Optionee, may designate in
writing from time to time; to Optionee, at Optionee's address appearing below or
at such other address as Optionee, by notice to the Company, may designate in
writing from time to time.
17. Entire Agreement; Rights and Interest. This Incentive Stock Option
Agreement, including its exhibits, and the Plan pursuant to which it was issued,
constitute the entire agreement of the parties with respect to the matters
covered hereby, and supersede any previous agreements, whether written or oral.
Each party hereby
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<PAGE> 19
stipulates and acknowledges that there are no other understandings, expectations
or agreements, either written or oral, respecting Optionee's rights and
entitlements as a shareholder or Optionholder of the Company, including, without
limitation, any understandings, expectations, or agreements regarding any
employment, compensation or other benefits, governance of the Company or the
payment of dividends, except as expressly set forth in Optionee's employment
agreement with the Company, if any. Optionee hereby covenants and agrees, for
Optionee and for Optionee's successors and assigns, that no such understandings,
expectations or agreements which may hereafter arise shall be cognizable or
enforceable unless the same shall be reduced to a writing signed by the parties
to be charged.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Optionee has hereunto set
Optionee's hand and seal, all on the day and year first above written.
AuctionRover.com, Inc.
(CORPORATE SEAL)
--------------------------------
M. Scot Wingo, President
ATTEST:
---------------------------------
Aris Antanas Buinevicius, Secretary
OPTIONEE:
(SEAL)
--------------------------
[NAME OF OPTIONEE]
[ADDRESS]
24
<PAGE> 20
Exhibit A to the Incentive Stock Option Agreement
AUCTIONROVER.COM, INC.
RESTRICTED STOCK AGREEMENT
This Agreement, dated as of __________, ____, is made by and between
AuctionRover.com, Inc., a North Carolina corporation (the "company") and
_____________________ ("Employee"), an employee of the Company, with respect
to ________ (_______) shares of the Company's common stock (the "Restricted
Shares") which Employee has purchased pursuant to the terms of an Incentive
Stock Option Agreement between the Employee and the Company dated as of _______,
_______ (the "Incentive Stock Option").
WHEREAS, the Company has agreed to sell the Restricted Shares to
Employee pursuant to the terms of the Incentive Stock Option which provides,
among other things, that Employee will agree to the terms of this Agreement; and
WHEREAS, Employee wishes to purchase the Restricted Shares pursuant to
the terms of the Incentive Stock Option and this Agreement;
NOW THEREFORE, in consideration of the premises, the issuance of the
Restricted Shares, and the mutual covenants and agreements set forth below, the
parties hereby agree as follows:
1. Transfer of Stock; Investment Intent. Except as otherwise provided
in this Agreement, Employee shall not sell, transfer, assign, convey, pledge,
encumber or in any manner dispose of the Restricted Shares, either voluntarily
or involuntarily. All stock certificates evidencing the Restricted Shares shall
be restricted by a legend on each certificate in substantially this form:
The transferring or encumbrance of the shares of stock
represented by the within certificate is restricted under the terms of
a Restricted Stock Agreement dated ___________, _____, a copy of which
is on file at the principal office of the Company.
The shares represented by this certificate have not been
registered under the Securities Act of 1933. These shares have been
acquired for investment and not with a view to distribution or resale,
and may not be mortgaged, pledged, hypothecated, or otherwise
transferred without an effective registration statement for such shares
under the Securities Act of 1933 or an opinion of counsel for the
corporation that registration is not required under such act.
Employee understands that transfer of the Restricted Shares will not be
made otherwise than in accordance with the legend and that such lack of
transferability means that the economic risk of the investment may be
substantial.
Employee represents and warrants that all of the Restricted Shares are
being acquired for investment and not with a view to, or with any present
intention of, selling or otherwise distributing the Restricted Shares. Employee
further represents that Employee is capable of evaluating the merits and risks
of an investment in the Restricted Shares, has made such an evaluation and is
able to bear the economic risk of an investment in the Restricted Shares
indefinitely.
2. Termination. Termination of employment shall mean cessation of the
employment relation between the Company and Employee for any reason, including
without limitation, termination by death, disability, retirement, for cause,
without cause, voluntary or involuntary. Termination for the purposes of this
Agreement only shall be the later of the date employment terminates or the date
on which the Company learns of the termination; the date determined for purposes
of this Agreement shall not be binding on the Company for determinations made of
the
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<PAGE> 21
termination date for other purposes. Employment shall not be deemed as
terminated if Employee is working at least fifty percent (50%) of the time for
the Company or an Affiliate.
3. Option of Company Upon Termination of Employment. Upon termination
of Employee's employment, as defined in Paragraph 2 above, the Company shall
have an immediate and automatic option, without any action having to be taken on
the part of Employee to activate the option, to purchase from Employee or
Employee's estate all of the Restricted Shares obtained pursuant to this
Agreement, including, without limitation, Restricted Shares acquired after
termination of Employee's employment. The purchase price under this option shall
be the price established in Paragraph 5.
4. Involuntary Transfers. Upon the occurrence of the following events,
the Company shall have an immediate and automatic option, without any action
having to be taken on the part of Employee to activate the option, to purchase
from Employee or transferee, at the price set forth in Paragraph 5, all of the
Restricted Shares obtained pursuant to this Agreement:
(a) the death of Employee, provided that if Employee dies while
employed by the Company, the provisions of Paragraph 3 of this Agreement will
apply;
(b) An Event of Bankruptcy with respect to Employee defined as follows:
(1) an adjudication or order for relief by a state or federal court that such
person is bankrupt or insolvent or is subject to Chapter 11 or any
reorganization proceeding; or (2) filing by such person or a voluntary petition
in any state or federal court to be adjudicated a bankrupt or to subject such
person to Chapter 11 or any reorganization proceeding; or (3) the filing by a
third party of an involuntary petition in any state or federal court to have
such person adjudicated bankrupt or insolvent, or for an order for relief, or to
subject such person to the provisions of Chapter 11 or any reorganization
proceeding or to obtain the appointment of a receiver which is not dismissed
within one hundred twenty (120) days of the date of the filing; or (4) the
making by such person of a general assignment for the benefit of creditors.
(c) An order or adjudication by any court that the spouse of Employee
has acquired any right in the Restricted Shares as a result of equitable
distribution rights under any applicable law or statute, including, without
limitation, North Carolina General Statutes Section Section 50-21 and 50-22;
(d) Any other event which adversely and involuntarily affects
Employee's rights in the stock so that Employee would be required to transfer
the Restricted Shares to a third party, and which is not otherwise provided for
in this Agreement.
5. Purchase Price. If the Company exercises its purchase rights under
Paragraph 3 or 4, the price per share shall be the fair market value of the
Restricted Shares on the date of the event giving rise to the transfer. The
Board shall establish the fair market value, and shall not take into account the
impact on the valuation of any restrictions on the Restricted Shares other than
restrictions which by their terms will never lapse; and in general the Board
shall value the shares at the highest of (i) one (1) times Book Value, (ii) one
(1) times Earnings, or (iii) the most recent offering price of shares sold by
the Company, with such adjustments in such value as may be required to take into
account events that have occurred since the date such Book Value, Earnings or
offering price was last determined or other factors deemed to be material to the
Board for the purposes of determining fair market value. The Board may, however,
use a different valuation process upon presentation to and acceptance by the
Board that such process produces a more accurate calculation of the fair market
value of the Restricted Shares. For this purpose, "Book Value" shall mean the
per-share net worth of the Company as of the last day of the immediately
preceding fiscal year; and "Earnings' shall mean the earnings per share of the
Company for the immediately preceding fiscal year, all as determined by the
Company's accountants in accordance with generally accepted accounting
principles applied on a consistent basis with prior periods.
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<PAGE> 22
6. Exercise of Company's Option. The Company may exercise its options
pursuant to Paragraphs 3 or 4 by giving Employee notice of its election within
sixty (60) days of the latest of the date on which Employee's employment is
terminated, an event described in Paragraph 4 occurs, or Employee acquires the
Restricted Shares. The notice shall include a closing date, which date shall be
within thirty (30) days of the date the notice is given. The Closing shall be at
the principal office of the Company. Voting rights on the Restricted Shares
shall be vested in the Company as of the date the Company gives notice of its
election to exercise the option.
At its election, the Company may pay the full amount for the Restricted
Shares in cash or by check at the closing. Alternatively, the Company may pay
the amount due upon such other terms as the parties shall agree, or, if no
agreement is reached, by paying ten percent (10%) of the total price in cash or
by check at the Closing, and by executing a promissory note for the balance. The
promissory note shall provide for a payment of the balance in twelve (12) equal
quarterly installments, the first installment being due on the first day of the
month following the third full month after closing. The unpaid principal balance
of such note shall bear interest at the prime rate of Bank of America in
Charlotte, North Carolina, on the date of closing plus one percent (1%);
provided, however, that the interest rate shall not be lower than the rate
established by the Internal Revenue Service for the avoidance of imputed
interest on such note at such time. Accrued interest shall be paid on the dates
on which installments of principal are due. The Company shall have the right to
prepay any portion or all of the balance due under such note at any time without
penalty provided that interest is paid on the amount being prepaid.
At the closing, Employee or Employee's legal representative (as the
case may be) shall deliver to the Company the stock certificate(s) evidencing
the Restricted Shares to be redeemed, properly endorsed in blank with all
transfer and excise taxes paid (and, where appropriate, with stamps affixed
thereto); and in the event of death, Employee's legal representative shall also
deliver copies of his or her letters testamentary or authority to act on behalf
of the estate and a release or tax letter from the appropriate tax authorities
stating that the Restricted Shares transferred are not subject to taxes.
Employee, or Employee's representative if Employee is deceased, shall warrant
that the Restricted Shares transferred are free and clear of all liens,
encumbrances and claims.
7. Right of First Refusal. Employee shall not transfer any Restricted
Shares to any person, firm or corporation, unless Employee shall have first made
the offer to sell the Restricted Shares to the Company as described in this
Paragraph 7, and such offer has not been accepted.
If Employee finds an individual or entity who wishes to acquire the
Restricted Shares (the "Offeror"), Employee shall obtain from the Offeror a
written offer to purchase (the "Third-Party Offer"). The Third-Party Offer shall
set forth the name of the Offeror, the number of shares to be transferred, the
price per share and the other terms of the offer. Employee shall deliver a copy
of the Third-Party Offer to the Company. Upon receipt of the Third-Party Offer,
the Company shall, without any other action on the part of Employee, have an
option to acquire the shares of stock described in the Third-Party Offer at the
same price and upon the same terms and conditions as set forth in the
Third-Party Offer. The Company shall have thirty (30) days after its receipt of
the Third-Party Offer to elect to exercise its option to purchase the shares
described in the Third-Party Offer; acceptance must be for all offered shares.
If the Company elects to exercise its option, the Closing shall be in accordance
with the terms of Paragraph 6. If thirty (30) days after receipt of the
Third-Party Offer by the Company, the Company has not exercised its option,
Employee may make a bona fide transfer to the prospective transferee named in
the statement attached to the offer, but only in strict accordance with the
price and terms stated therein. If Employee fails to make such transfer within
30 days following the expiration of the 30-day acceptance period described
above, the Restricted Shares shall again become subject to all of the
restrictions of this Agreement. Upon transfer to anyone other than the Company,
the Restricted Shares in the hands of such transferee shall no longer be subject
to this Agreement.
Notwithstanding the foregoing, nothing in this Paragraph 7 shall
prevent the Employee from tendering the Restricted Shares in payment of the
option price for the Company's common stock upon exercise of the option
27
<PAGE> 23
granted under any stock option agreement between the Employee and the Company,
if such agreement permits payment of the exercise price by tender of shares. In
such event, the rights granted to the Company under this Paragraph 7 shall not
apply.
8. Encumbrance of Shares. The Restricted Shares owned by Employee may
not be pledged, hypothecated or otherwise encumbered during the Escrow Period
(as defined below) without the prior express written consent of the Company,
which may be withheld for any reason or without reason. If Employee encumbers
the Restricted Shares in violation of the foregoing, then the Company shall have
an additional right to repurchase the encumbered shares at the price set forth
in Paragraph 5. Such right may be exercised by giving written notice to
Employee. The repurchase shall be effective upon such notice and all rights of
Employee as a shareholder of the Company shall cease at such time. The closing
shall be in accordance with the terms in Paragraph 6.
9. Payment of Taxes. Employee agrees that concurrently with the
execution of this Agreement, Employee will pay to the Company the amount of
federal and state withholding due with respect to the Restricted Shares. The
determination of the amount of withholding due shall be made by the Company and
shall be binding on Employee. No stock certificates shall be delivered on behalf
of Employee until the payment of the withholding due is made. If the payment is
not made within five (5) days of the date that the Company gives notice to
Employee of the amount due, time being of the essence, the Company shall have
the option of declaring this Agreement and the offer to issue the Restricted
Shares to Employee void, or the Company may arrange for withholding of all
amounts due from Employee's paycheck until Employee's obligation is satisfied.
In addition, Employee agrees that concurrently with the sale or other transfer
of the Restricted Shares before the earlier of (2) years after the date of the
grant of the option pursuant to which Employee acquired the Restricted Shares
or one (1) year after the exercise of such option, Employee will pay to the
company the amount of any federal and state withholding due with respect to the
Restricted Shares so transferred.
10. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Employee shall transfer the voting rights with respect to the
Restricted Shares to the President of the Company by the execution of an
irrevocable proxy in substantially the form attached as Exhibit A, to remain in
effect until the restrictions on the Restricted Shares are terminated pursuant
to Paragraph 13 (the "Proxy").
11. Escrow. As security for the faithful performance of the terms of
this Agreement and to ensure the availability for delivery of Employee's shares
upon exercise of the purchase options and right of first refusal provided for in
this Agreement, Employee agrees to deliver to and deposit with an escrow agent
designated by the Company ("Escrow Agent"), the certificate(s) representing the
Restricted Shares, together with two (2) assignments separate from certificate
duly endorsed (with date and number of shares blank) in the form attached to
this Agreement as Exhibit B; said documents are to be held by the Escrow Agent
pursuant to the Joint Escrow Instructions of the Company and Employee set forth
in Exhibit C attached to this Agreement, which instructions shall also be
delivered to the Escrow Agent. "Escrow Period" shall mean the period beginning
the date the Restricted Shares are received by the Employee and continuing to
the date the restrictions on the Restricted Shares are terminated pursuant to
Paragraph 13.
12. Rights in Restricted Stock. Subject to the provisions of this
Agreement, the Proxy and the Joint Escrow Instructions, Employee shall exercise
all rights and privileges of a shareholder of the Company with respect to the
Restricted Shares.
13. Termination of Certain Rights and Obligations. The provisions of
Paragraphs 3, 4, 7 and 8 shall terminate upon the consummation of the Company's
sale of its Common Stock to the general public in an underwritten offering
pursuant to a registration statement under the Securities Act of 1933, as
amended, in which the
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<PAGE> 24
net proceeds to the Company are not less than $10,000,000 (an "Initial Public
Offering"). The Board of Directors of the Company shall have the right, but not
the obligation, to terminate all or any selected provisions of this Agreement
upon the happening of any of the following: (i) simultaneously with the sale of
at least ninety-five percent (95%) of the outstanding shares of the Company to a
third-party which is not a company related by ownership in any way to the
Company; or (ii) simultaneously with the merger of the Company into another
company which is not a company related by ownership in any way to the Company
and the Company is not the surviving entity; or (iii) simultaneously with the
sale of all or substantially all of the assets of the Company.
In no event shall Employee be required or requested to perform
additional services for the Company, be subject to a salary adjustment, or in
any way be required or requested to provide consideration in the form of
services for the cancellation of the restrictions pursuant to this Paragraph 13,
it being the express intention of the Company that any such cancellation be in
all respects noncompensatory.
14. Specific Performance. Because of the unique character of the
Restricted Shares, the parties to this Agreement agree that the Company and its
shareholders will be irreparably damaged in the event that this Agreement is not
specifically enforced. Should any dispute arise concerning the sale or transfer
of the Restricted Shares, an injunction may be issued restraining any sale or
transfer pending the determination of such controversy. In the event of any
controversy concerning the right of the Company to purchase or of Employee or
Employee's estate to sell any of the shares, such right or obligation shall be
enforceable in a court of equity by a decree of specific performance. Such
remedy shall, however, be in addition to any other remedies which the parties
may have.
Employee agrees that in the event of any violation of this Agreement,
an action may be commenced by the Company for any such preliminary and permanent
injunctive relief and other equitable relief in any court of competent
jurisdiction in the State of North Carolina or in any other court of competent
jurisdiction. Employee hereby waives any objections on the grounds of improper
jurisdiction or venue to the commencement of an action in the State of North
Carolina and agrees that effective service of process may be made upon him by
mail under the notice provisions contained in Paragraph 16(b).
15. No Contract of Employment. Nothing contained in this Agreement
shall be deemed to require the Company to continue Employee's employment.
Employee shall, except as otherwise provided in Employee's employment agreement
with the Company at all times be an employee-at-will of the Company and the
Company may discharge Employee at any time for any reason, with or without
cause, and with or without severance compensation. From time to time, the
Company may distribute employee manuals or handbooks, and officers or other
representatives of the Company may make written or oral statements relating to
the Company's policies and procedures. Such manuals, handbooks and statements
are intended only for the general guidance of employees. No policies, procedures
or statements of any nature by or on behalf of the Company (whether written or
oral, and whether or not contained in any formal employee manual or handbook)
shall be construed to modify this Agreement.
16. Miscellaneous.
(a) Binding Effect. This Agreement shall be binding, not only upon the
parties to this Agreement, but also on their heirs, executors, administrators,
personal representatives, successors and assigns (including any transferee of a
party to this Agreement); and the parties agree, for themselves and their
successors, assigns and representatives to execute any instrument which may be
necessary legally to give effect to the terms and conditions of this Agreement.
(b) Notices. All notices, requests and amendments under this Agreement,
shall be in writing, and notices shall be deemed to have been given when
personally delivered or the next business day after being sent by overnight
courier service addressed as follows: (i) if to the Company: 3000 Aerial Center,
Suite 160, Morrisville,
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<PAGE> 25
North Carolina 27560 Attention: President, or at such other address as the
Company shall designate by notice; (ii) if to Employee: to Employee's address
appearing below, or at such other address as Employee shall designate by notice.
(c) Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
(d) Governing Law; Jurisdiction. This Agreement is entered into in the
State of North Carolina and shall be governed by the internal laws of North
Carolina. The parties hereby consent to the exclusive jurisdiction of the
Superior Court of Wake County, North Carolina for purposes of adjudicating any
issue hereunder.
(e) Amendment. Neither this Agreement nor any of the terms and
conditions set forth in this Agreement may be altered, or amended verbally, and
any such alternation or amendment shall only be effective when reduced to
writing and signed by each of the parties.
(f) Stock Splits, etc. In the event that, as the result of a stock
split or stock dividend or combination of shares or any other change, or
exchange for other securities, by reclassification, reorganization, merger,
consolidation, recapitalization or otherwise, Employee shall, as the owner of
Restricted Shares subject to restrictions hereunder, be entitled to new or
additional or different shares of stock or securities, the certificate or
certificates for, or other evidences of, such new or additional or different
shares or securities, shall also be imprinted with a legend as provided in
Paragraph 1, be subject to the Proxy described in Paragraph 10 and be deposited
with the Escrow Agent in accordance with Paragraph 11 and all provisions of this
Agreement relating to restrictions and lapse of restrictions shall be applicable
to such new or additional or different shares or securities to the extent
applicable to the shares with respect to which they were distributed, and such
new or additional or different shares or securities shall be deemed to be
"Restricted Shares" for all purposes hereof; provided, however, that if Employee
shall receive rights, warrants or fractional interests in respect of any of such
Restricted Shares, such rights or warrants may be held, exercised, sold or
otherwise disposed of, and such fractional interests may be settled, by Employee
free and clear of the restrictions set forth in this Agreement.
(g) Entire Agreement; Rights and Interest. This Agreement constitutes
the entire agreement of the parties with respect to the matters covered hereby,
and supersedes any previous agreements, whether written or oral. Each party
hereby stipulates and acknowledges that there are no other understandings,
expectations or agreements, either written or oral, respecting Employee's rights
and entitlements as a shareholder of the Company, including, without limitation,
any understandings, expectations, or agreements regarding any employment,
compensation or other benefits, governance of the Company or the payment of
dividends, except as expressly set forth in Employee's employment agreement with
the Company. Further, no such understandings, expectations or agreements which
may hereafter arise shall be cognizable or enforceable unless the same shall be
reduced to a writing signed by the parties to be charged.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement effective the date and year first above written.
AuctionRover.com, Inc.
By:_______________________
Its:
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<PAGE> 26
---------------------------
[NAME OF EMPLOYEE]
[ADDRESS]
31
<PAGE> 27
Exhibit B
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock
Agreement dated as of ______________, _____, the undersigned hereby sells,
assigns, and transfers unto _________________, (_______________) shares of the
Common Stock of AuctionRover.com, Inc., a North Carolina corporation, standing
in the undersigned's name on the books of said Corporation represented by
Certificate No. _______ herewith, and does hereby irrevocably constitute and
appoint Daniels & Daniels, P.A., attorney to transfer, solely for purposes of
facilitating the exercise by the Corporation of its rights set forth in the
Restricted Stock Agreement to which this Assignment is attached as Exhibit B,
said stock on the books of the Corporation, with full power of substitution in
the premises.
Date:
-----------------------------------------
Signature
-----------------------------------------
(Please Print Name)
-----------------------------------------
Witness
-----------------------------------------
(Please Print Name)
32
<PAGE> 28
Exhibit C
to the Restricted
Stock Agreement
JOINT ESCROW INSTRUCTIONS
[Date]
Daniels & Daniels, P.A.
Post Office Box 12218
Research Triangle Park, NC 27709
Dear Sir or Madam:
As escrow agent for both AuctionRover.com, Inc., a North Carolina
corporation (the "Company"), and the undersigned owner of stock of the Company
(the "Shareholder"), you are authorized and directed to hold the documents
delivered to you pursuant to the terms of the Restricted Stock Agreement (the
"Agreement"), dated as of ________, ____, to which a copy of these Joint Escrow
Instructions is attached as Exhibit C, in accordance with the following
instructions:
1. The Shareholder irrevocably authorizes the Company to deposit with
you any certificates evidencing shares of stock of the Company, to be held by
you under these instructions and any additions to or substitutions for said
certificates. The Shareholder irrevocably constitutes and appoints you his
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all documents necessary or appropriate to make such
securities negotiable and to complete the transaction described in these
instructions. Subject to the restrictions in the Agreement and these
instructions, the Shareholder shall exercise all rights and privileges of a
stockholder of the Company while the stock is held by you.
2. In the event the Company or any assignee of the Company (referred to
collectively as the "Company") exercises the purchase options set forth in
Paragraph 3, 4, or 8 of the Agreement, the Company shall give to the Shareholder
and you a written notice in accordance with Paragraph 16 of the Agreement
specifying the number of shares of stock to be purchased, the purchase price,
and the time for a closing. The Shareholder and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
3. In the event the Company exercises its right of first refusal
pursuant to Paragraph 7 of the Agreement, the Company shall give to you and the
Shareholder a written notice of the exercise, specifying the purchase price, the
number of shares to be purchased, and a time for closing. The Shareholder and
the Company hereby irrevocably authorize and direct you to close the
transactions contemplated by such notice in accordance with the terms of the
notice.
4. At a closing pursuant to Section 2 or 3 of these Instructions, you
are directed (a) to complete and date stock assignments necessary for the
transfer in question, and (b) to deliver such stock assignment, together with
the certificate evidencing the shares of stock to be transferred, to the Company
against the simultaneous delivery to you of the purchase price as contemplated
in the Agreement for the number of shares of stock being purchased pursuant to
the exercise of the purchase option(s) being exercised. In the event the Company
does not purchase all shares evidenced by the escrowed certificate, you shall
also receive a new certificate for the remaining shares. In the event you have
used all previously executed Assignments Separate from Certificate and a stock
certificate is issued
33
<PAGE> 29
in the name of the Shareholder, the Shareholder agrees to execute two new
Assignments Separate from Certificate prior to receiving any of the proceeds
from the Company's exercise of its purchase option(s) or right of first refusal.
5. If the Shareholder gives notice that he wishes to sell stock to
other than the Company pursuant to Paragraph 7 of the Agreement, the Shareholder
shall provide you with written notice of the third party to whom the transfer is
to be made, together with a copy of the Shareholder's notice to the Company
required by Paragraph 7 of the Agreement, and either a copy of a notice from the
Company declining the rights of first refusal or a statement indicating that the
applicable time period has passed after delivery of the notice to the Company
without any response being given. You are entitled to rely on the Shareholder's
representation with respect to the Company's response to the notice required by
Paragraph 7 of the Agreement, and shall not be required to contact the Company
to confirm this representation. If the Company fails to exercise its right of
first refusal, then you are authorized, upon receipt of the specified
consideration and the other documentation required by this Paragraph, to deliver
to the transfer agent the stock certificate and the Assignment Separate from
Certificate endorsed so as to permit the transfer agent to close the transaction
on the part of the parties involved.
6. At the end of the Escrow Period, you are authorized to deliver to
the Shareholder, the stock certificates and assignments separate from
certificate in your possession pursuant to this Agreement.
7. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties.
8. You shall be obligated only for the performance of such duties as
are specifically set forth in these instructions and may rely and shall be
protected in relying or refraining from acting on any instrument reasonably
believed by you to be genuine and to have been signed or presented by the proper
party or parties. You shall not be personally liable for any act you may do or
omit to do as escrow agent or as attorney-in-fact for the Shareholder while
acting in good faith and in the exercise of your own good judgment, and any act
done or omitted by you pursuant to the advice of an attorney shall be conclusive
evidence of such good faith.
9. You are expressly authorized to disregard any and all warnings given
by any of the parties or by any other person or corporation, excepting only
orders or process of courts of law, and are hereby expressly authorized to
comply with and obey orders, judgments or decrees of any court. In case you obey
or comply with any such order, judgment or decree, you shall not be liable to
any of the parties or to any other person, firm or corporation by reason of such
compliance, notwithstanding any such order, judgment or decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
10. You shall not be liable in any respect on account of the identity,
authorities or rights of the executing or delivering or purporting to execute or
deliver the Agreement or any documents or papers deposited or called for under
these instructions.
11. You shall not be liable for the outlawing of any rights under the
statute of limitations with respect to these instructions or any documents
deposited with you.
12. You shall be entitled to employ such legal counsel and other
experts as you may deem necessary properly to advise you in connection with your
obligations under these instructions, may rely upon the advice of such counsel,
and may pay such counsel reasonable compensation. Cost of such counsel shall be
reimbursed by the party (as between the Company and the Shareholder) which does
not prevail.
13. Your responsibilities as escrow agent shall terminate if you shall
resign by written notice to the Shareholder and the Company. In the event of any
such termination, the Company shall appoint a successor escrow agent; but
failure of the Company to appoint a substitute shall not prevent your
resignation at the time indicated by you.
34
<PAGE> 30
14. The Shareholder and Company recognize that Daniels & Daniels, P.A.,
the initial escrow agent, is also legal counsel to AuctionRover.com, Inc.
Provided that Daniels & Daniels, P.A. resigns as Escrow Agent with respect to
Employee's Restricted Shares, Employee agrees that he will not attempt to
disqualify Daniels & Daniels, P.A. from representation of the Company with
respect to any dispute related to the Restricted Shares. The Shareholder
understands that Daniels & Daniels, P.A. is relying on this commitment by
Shareholder and would not agree to serve as escrow agent unless such a
commitment were first made by Shareholder.
15. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect of
these instructions, the necessary parties to these instructions shall join in
furnishing such instruments.
16. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you under these instructions, you are authorized and directed
to retain in your possession without liability to anyone all or any part of said
securities until such disputes shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree or judgment of a
court of competent jurisdiction after the time for appeal has expired and no
appeal has been perfected, but you shall be under no duty whatsoever to
institute or defend any such proceedings.
35
<PAGE> 31
17. Any notice required or permitted under these instructions shall be
given in writing and shall be deemed effectively given upon personal delivery or
one business day after being sent by a reputable overnight courier service,
addressed to each of the other parties thereunto entitled at the following
addresses, or at such other addresses as a party may designate by ten days'
advance written notice to each of the other parties:
CORPORATION: AuctionRover.com, Inc.
3000 Aerial Center, Suite 160
Morrisville, NC 27560
SHAREHOLDER:
ESCROW AGENT: Daniels & Daniels, P.A.
Post Office Box 12218
Research Triangle Park, NC 27709-2218
Attn: Walter E. Daniels
18. By signing these Joint Escrow Instructions, you become a party only
for the purpose of the Joint Escrow Instructions; you do not thereby become a
party to the Agreement.
19. Capitalized terms used in this Agreement that are not otherwise
defined shall have the meanings assigned in the Agreement.
20. These Joint Escrow Instructions shall inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon the Shareholder, his heirs,
executors, administrators, successors and assigns.
21. These Joint Escrow Instructions shall be construed in accordance
with and governed in all respects by the laws of the State of North Carolina.
22. These Joint Escrow Instructions set forth the entire understanding
between the parties with respect to the subject matter of these instructions and
may only be changed by agreement in writing executed by the parties.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
executed these Joint Escrow Instructions as of the date first above written.
AuctionRover.com, Inc.
By:
--------------------------------
Its:
Shareholder: [Name]
------------------------------------
(Signature)
ACCEPTED AND AGREED TO:
ESCROW AGENT: Daniels & Daniels, P.A.
36
<PAGE> 32
By:
---------------------------------
Title:
<PAGE> 1
NON-STATUTORY STOCK OPTION AGREEMENT
Pursuant to the
AUCTIONROVER.COM, INC.
1999 STOCK AWARD PLAN
This Nonstatutory Stock Option Agreement (this "Agreement"), is made
and entered into as of the ____ day of _______, _____, by and between
AuctionRover.com, Inc., a North Carolina corporation (the "Company"), and
[NAME], a _________ of the Company (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company has adopted the AuctionRover.com, Inc. 1999 Stock
Award Plan (the "Plan") for the purpose of promoting and increasing the personal
interest in the welfare of the Company of employees, officers, directors and
consultants of the Company (as defined in the Plan) by providing incentives and
rewards to such persons; and
WHEREAS, Optionee is now a __________ of the Company, and the Company
desires to afford Optionee the opportunity to acquire, or enlarge, Optionee's
stock ownership in the Company so that Optionee may have a direct proprietary
interest in the Company's success;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties mutually covenant
and agree as follows:
1. Subject to Plan. This Agreement is subject to the terms and
conditions contained in the Plan, which is incorporated herein by this
reference. Optionee represents that Optionee has received a copy of the Plan
with this Option. All capitalized terms used herein which are not defined in
this Agreement shall have the respective meanings ascribed to them in the Plan.
In the event of any conflict between the provisions of this Agreement and those
of the Plan, the Plan shall control. This Agreement is subject to
interpretations, amendments, rules and regulations which may from time to time
be promulgated by the committee administering the Plan and adopted pursuant to
the Plan.
2. Grant of Option. Subject to the terms and conditions set forth
herein, Company grants to Optionee, during the period commencing with the date
of this Agreement and ending ______, ____, unless terminated in accordance with
Paragraph 4 or accelerated or terminated in accordance with Paragraph 10 (the
"Option Period"), the option to purchase from the Company (the "Option"), at a
price of ______ dollars ($____) per share (the "Option Price")
__________________ (_________) shares of the Company's Common Stock (the
"Shares"). The Option granted herein is in connection with and in furtherance of
the Company's compensatory benefit plan for participation of the Company's
employees, officers, directors and consultants and is intended to comply with
the provisions of Rule 701 promulgated by the Securities and Exchange Commission
under the Securities Act. The Option granted herein is not intended to be an
"incentive stock option" under Section 422 of the Code.
3. Exercise of Option
(a) The Option may be exercised, from time to time, during the Option
Period, to purchase all or any portion of the number of Shares as follows:
<TABLE>
<CAPTION>
Cumulative Maximum Percentage of
Shares that
Period from Date of Grant of the Option may be Purchased
--------------------------------------- --------------------------------
<S> <C>
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
On or before ______________ ___%
After ______________________ but
on or before ____________________ ___%
After ______________________ but
on or before ____________________ ___%
After ______________________ but
on or before _____________________ ___%
After ______________________ but
on or before _____________________ ___%
After _______________________. ___%
</TABLE>
The maximum number of Shares that may be purchased during each time
period specified above shall be reduced by the number of Shares purchased prior
to the beginning of such period, such that the cumulative maximum for each time
period is not exceeded.
(b) No fewer than one thousand (1,000) Shares may be purchased upon any
one exercise of the Option, unless the number of Shares to be purchased at such
time is the total number of Shares remaining subject to the Option. Any exercise
of less than the total number of Shares identified in the Option shall be deemed
an exercise in part, and the Option may again be exercised at such time or times
determined by Optionee, provided that at such times the Option is still
exercisable.
(c) In no event shall any option granted hereunder be exercisable for a
fractional share.
(d) The Option is exercised by Optionee delivering to the Secretary of
the Company, on any business day, a written notice signed by Optionee specifying
the number of Shares to be purchased, together with the Option Price, in the
manner specified in Paragraph 5(a).
(e) The Option, or any unexercised part thereof, shall not to be
exercisable after expiration or termination of the Option Period.
7. Termination of Employment. The Option granted hereunder, and the
Option Period shall terminate upon the earlier of the end of the
originally-specified Option period or sixty (60) days after the termination of
Optionee's employment with the Company or an Affiliate of the Company
(termination of employment meaning cessation of the employment relation between
the Company and Optionee for any reason, including without limitation,
termination by death, disability, retirement, for cause, without cause,
voluntary or involuntary; termination shall not be deemed to have occurred if
Optionee changes employment from employment with the Company or an Affiliate to
employment with another Affiliate or the Company provided that Optionee is
working at least fifty percent (50%) of the time for the Company or an
Affiliate) unless:
(a) such termination of employment is due to disability (within the
meaning of Section 22(e)(3) of the Code), in which event the Option shall
terminate on the earlier of the originally-specified end of the Option Period or
six (6) months following termination of Optionee's employment due to such
disability; or
(b) such termination of employment is due to death, in which event the
Option shall terminate on the earlier of the originally-specified end of the
Option Period or six (6) months after Optionee's death.
Notwithstanding anything to the contrary contained in this Agreement,
vesting of the Option, as set forth in Paragraph 3(a), shall terminate as of the
date of termination of Optionee's employment such that the Option may be
<PAGE> 3
exercised following termination of employment only as to that number of shares
as to which it was exercisable on the date of termination of employment under
the provisions of Paragraph 3(a) of this Agreement.
5. Payment of Option Price and Related Taxes.
(a) Payment in full of the Option Price must be made at the time the
Option is exercised, and shall be paid in U.S. dollars in cash or by certified
or bank check.
(b) To the extent Optionee (or other person exercising this Option)
recognizes income as a result of the exercise of the Option, Employee shall pay
the Company an amount equal to the federal, state and local withholding taxes on
income so recognized within ten (10) days of the exercise of the Option.
6. Issuance of Shares.
(a) Within fifteen business days after receiving notice of exercise and
payment of the aggregate Option Price, and subject to Optionee's payment or
arrangement for payment of the applicable taxes as specified in Paragraph 5(b),
and execution by Optionee of the Restricted Stock Agreement pursuant to
Paragraph 7 of this Agreement, the Company shall issue to Optionee the number of
Shares with respect to which the Option was exercised, and shall deliver to
Optionee, or if applicable under a Restricted Stock Agreement to the Escrow
Agent, a certificate for such Shares.
(b) Notwithstanding anything to the contrary contained in this
Agreement, this Option may not be exercised if at any time the Committee
determines it is necessary or desirable as a condition of, or in connection
with, the issuance of the Shares that (i) the Shares be listed, registered or
qualified upon any securities exchange or under any state or federal law, or
(ii) the consent or approval of any governmental authority be received, then the
issuance of the Shares may not be consummated in whole or in part unless such
listing, registration, qualification, consent or approval has been effected or
obtained free of any conditions not acceptable to the Committee. The inability
of the Company to obtain from any regulatory body having jurisdiction the
authority deemed by the Company's counsel to be necessary to the lawful issuance
of any shares of its Common Stock hereunder shall relieve the Company of any
liability in respect of the nonissuance or sale of such stock as to which such
requisite authority shall not have been obtained. Notwithstanding the foregoing,
the Company shall not be required to register under the Securities Act any
Common Stock to be issued pursuant to exercise of the Option.
(c) Notwithstanding anything to the contrary contained in this
Agreement, if at any time specified herein for the issuance of shares to
Optionee, any law, or any regulation or requirement of the Securities and
Exchange Commission or any other federal, state or local governmental authority
having jurisdiction, shall require either the Company or Optionee to take any
action in connection with the shares then to be issued, the issuance of such
shares shall be deferred until such action shall have been taken. The Company
shall be under no obligation to take such action and the Company shall have no
liability whatsoever as a result of the non-issuance of such shares as a result
of not taking such action, except to refund to the Optionee any consideration
tendered in respect of the Option Price.
7. Agreements Upon Exercise. By exercising this Option, in whole or in
part, Optionee agrees that simultaneously with each exercise of the Option,
Employee will execute a Restricted Stock Agreement, in substantially the form of
Exhibit A, which provides for certain restrictions on the transfer of the Shares
as well as requires the Shares to be placed in Escrow for a certain period of
time. Notwithstanding the provisions of Paragraph 6, no Shares shall be issued
to Optionee until the Restricted Stock Agreement is executed. In the event
Optionee fails to execute the Restricted Stock Agreement within thirty (30) days
after providing notice of exercise, the Company shall return to Optionee the
Option Price paid and the notice of exercise shall be deemed void.
8. Transfer of Option. This Option is not transferable by Optionee
except by will or intestate succession, and is exercisable during Optionee's
lifetime only by Optionee. No assignment or transfer of this Option or of the
rights represented thereby in contravention of the foregoing, whether voluntary
or involuntary, by operation of law or otherwise, shall vest in the assignee or
transferee any interest or right herein whatsoever. Immediately upon any attempt
to assign or transfer this Option, this Option shall terminate and be of no
force or effect.
<PAGE> 4
9. Adjustments Upon Changes in Capitalization or Mergers.
(a) The Shares with respect to which this Option is granted are shares
of the Common Stock of the Company as constituted on the date of this Agreement,
but if, and whenever, prior to the delivery by the Company of all of the Shares
with respect to which this Option is granted, the Company shall pay a stock
dividend or effect a subdivision or combination of shares, or other capital
readjustment, then (i) in the event of any increase in the number of shares of
common stock outstanding, the number of Shares then remaining subject to the
Option shall be proportionately increased (except that any fraction of a share
resulting from any such adjustment shall be excluded from the operation of this
Agreement), and the Option Price payable per share shall be proportionately
reduced, and (ii) in the event of a reduction in the number of shares of common
stock outstanding, the number of Shares then remaining subject to the Option
shall be proportionately reduced (except that any fractional share resulting
from any such adjustment shall be excluded from the operation of this
Agreement), and the Option Price payable per share shall be proportionately
increased.
(b) Upon a merger or consolidation of the Company with or into or with
one or more other corporations, or any other corporate reorganization of any
form involving the Company as a party and an exchange, conversion, adjustment or
other modification of the outstanding Common Stock, Optionee shall thereafter
have the right, upon exercise of the Option, provided that such Option is
currently exercisable and has not otherwise been terminated, to receive the kind
and amount of shares of stock or other securities or property to which Optionee
would have been entitled if Optionee had received Shares by exercise of the
Option immediately prior to or simultaneously with such merger or consolidation
or similar transaction, and the Option Price shall be adjusted accordingly.
Comparable rights shall accrue to Optionee in the event of successive
transactions of the type described above. These adjustments and the manner of
their application shall be determined by the Committee in its sole discretion.
Any such adjustments may provide for the elimination of fractional shares.
10. Termination and Acceleration of Options.
(a) Anything contained herein to the contrary notwithstanding, upon a
sale or transfer of all or substantially all of the assets of the Company to
another corporation (other than a wholly-owned subsidiary), person or entity, or
upon a distribution by the Company of its assets as a liquidating or partial
liquidating dividend with respect to the Common Stock, or the happening of any
other similar event affecting the Common Stock, then following a determination
by the Board to effect or proceed with such event or transaction, the Board or
the Committee, in its sole discretion and upon at least ten (10) days written
notice to the holder of all or any portion of any Option previously granted and
unexercised, may either (i) accelerate the exercisability of all or any portion
of such Option to a date prior to the effectiveness of such event or
transaction, even if any other provisions of this Agreement require such Option
or any portion thereof be outstanding for a minimum amount of time prior to
exercise, or (ii) accelerate the exercisability of all or any portion of such
Option as provided in the preceding clause (i) and provide that such Option or
any unexercised portion thereof shall terminate as of the effective date of such
event or transaction.
(b) Anything contained herein to the contrary notwithstanding, upon the
happening of an Initial Public Offering, then following a determination by the
Board to effect or proceed with an Initial Public Offering, the Board or the
Committee, in its sole discretion and upon at least ten (10) days' written
notice to the holder of all or any portion of any Option previously granted and
unexercised, may either (i) accelerate the exercisability of all or any portion
of such Option to a date prior to the effective date of the Initial Public
Offering, even if any other provisions of this Agreement require such Option or
any portion thereof be outstanding for a minimum amount of time prior to
exercise, or (ii) accelerate the exercisability of all or any portion of such
Option as provided in the preceding clause (i) and provide that such Option or
any unexercised portion thereof shall terminate as of the effective date of the
Initial Public Offering.
(c) Anything contained herein to the contrary notwithstanding, in the
event of a merger or consolidation of the Company with or into any other
corporation or organization as a result of which the holders of the voting
capital stock of the Company prior to such merger or consolidation would receive
or hold less than a majority of the shares of voting capital stock of the
resulting or surviving corporation or organization, then, following a
determination by the Board to effect or proceed with such merger or
consolidation, the Option shall be accelerated such that, notwithstanding any
other provisions contained in this Agreement which require this Option to be
outstanding for a minimum amount of
<PAGE> 5
time prior to exercise, this Option shall be immediately exercisable. Further,
in the event of such merger or consolidation, the Board or the Committee, upon
at least ten (10) days' written notice to the holder of all or any portion of
this Option, may in its sole discretion, provide that any unexercised portion of
this Option outstanding as of the effective date of such merger or consolidation
shall terminate.
11. Optionee Not Shareholder. Optionee shall not be deemed for any
purpose to be a shareholder of the Company with respect to any shares covered by
this Option unless this Option shall have been exercised and the Option Price
paid in the manner provided herein. No adjustment will be made for dividends or
other rights where the record date is prior to the date of exercise and payment.
12. No Effect. Neither the Option granted hereunder nor this Agreement
shall affect in any way the right or power of the Company or its shareholders to
make or authorize any or all adjustments, recapitalization, reorganizations or
other changes in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issuance of bonds, debentures, preferred
or prior preference stocks ahead of or convertible into, or otherwise affecting
the common stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise.
13. Determination by Committee. Subject to the provisions of Paragraph
14 hereof, any dispute or disagreement which shall arise under, or as a result
of, or pursuant to, this Agreement shall be determined by the Committee in its
absolute and uncontrolled discretion, and any such determination or any other
determination by the Committee under or pursuant to this Agreement and any
interpretation by the Committee of the terms of this Agreement shall be final,
binding and conclusive on all persons affected thereby.
14. Board of Directors. The Board of Directors of the Company shall
have the right, in its absolute and uncontrolled discretion, to overrule or
modify any determination or interpretation made by the Committee as contemplated
by Paragraph 13, and in such event the determinations or interpretations by the
Board shall be final, binding and conclusive on all persons affected thereby.
15. Amendment of the Plan. The Board of Directors may amend or modify
the Plan at any time provided that no such amendment shall, without the consent
of Optionee, reduce the amount of any benefit or adversely change the terms and
conditions of this Agreement.
16. Notices. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be delivered
personally or by mail, postage prepaid, addressed as follows: President of the
Company, at 3000 Aerial Center, Suite 160, Morrisville, North Carolina 27560 or
at such other address as the Company, by notice to Optionee, may designate in
writing from time to time; to Optionee, at Optionee's address appearing below or
at such other address as Optionee, by notice to the Company, may designate in
writing from time to time.
17. Entire Agreement; Rights and Interest. This Non-Statutory Stock
Option Agreement, including its exhibits, and the Plan pursuant to which it was
issued, constitute the entire agreement of the parties with respect to the
matters covered hereby, and supersede any previous agreements, whether written
or oral. Each party hereby stipulates and acknowledges that there are no other
understandings, expectations or agreements, either written or oral, respecting
Optionee's rights and entitlements as a shareholder or optionholder of the
Company, including, without limitation, any understandings, expectations, or
agreements regarding any employment, compensation or other benefits, governance
of the Company or the payment of dividends, except as expressly set forth in
Optionee's employment agreement with the Company, if any. Optionee hereby
covenants and agrees, for himself and for successors and assigns, that no such
understandings, expectations or agreements which may hereafter arise shall be
cognizable or enforceable unless the same shall be reduced to a writing signed
by the parties to be charged.
<PAGE> 6
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Optionee has hereunto set
Optionee's hand and seal, all on the day and year first above written.
AuctionRover.com, Inc.
(CORPORATE SEAL)
-----------------------------------
M. Scot Wingo, President
ATTEST:
-----------------------------------
Aris Antanas Buinevicius, Secretary
OPTIONEE:
(SEAL)
-----------------------------
[NAME OF OPTIONEE]
[ADDRESS]
<PAGE> 7
Exhibit A
to Restricted Stock Agreement
IRREVOCABLE APPOINTMENT OF PROXY
I, the undersigned shareholder of AuctionRover.com, Inc., a North
Carolina corporation (the "Company"), do hereby constitute and appoint the
President of the Company, with full power of substitution, as my proxy, for and
on my behalf to attend all meetings of shareholders of the Company and to act,
vote and execute written consents, as fully and to the same extent and effect as
I might do myself, with respect to the _______ shares of common stock of the
Company, represented by Stock Certificate number(s) __________, I have received
on or about this date.
This appointment of proxy is coupled with an interest and is
irrevocable until the interest to which it is coupled is extinguished; and until
such time this appointment of proxy shall continue in full force and effect.
In the event that, as the result of a stock split or stock dividend or
combination of shares or any other change, or exchange for other securities, by
reclassification, reorganization, merger, consolidation, recapitalization or
otherwise, I should be entitled to new or additional or different shares of
stock or securities, such new or substitute shares or securities shall be
subject to this proxy.
DATE:
-----------------
(SEAL)
-----------------------------
[Name]
<PAGE> 8
Exhibit C
to the Restricted
Stock Agreement
JOINT ESCROW INSTRUCTIONS
[Date]
Daniels & Daniels, P.A.
Post Office Box 12218
Research Triangle Park, NC 27709
Dear Sir or Madam:
As escrow agent for both AuctionRover.com, Inc., a North Carolina
corporation (the "Company"), and the undersigned owner of stock of the Company
(the "Shareholder"), you are authorized and directed to hold the documents
delivered to you pursuant to the terms of the Restricted Stock Agreement (the
"Agreement"), dated as of ________, ____, to which a copy of these Joint Escrow
Instructions is attached as Exhibit C, in accordance with the following
instructions:
1. The Shareholder irrevocably authorizes the Company to deposit with
you any certificates evidencing shares of stock of the Company, to be held by
you under these instructions and any additions to or substitutions for said
certificates. The Shareholder irrevocably constitutes and appoints you his
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all documents necessary or appropriate to make such
securities negotiable and to complete the transaction described in these
instructions. Subject to the restrictions in the Agreement and these
instructions, the Shareholder shall exercise all rights and privileges of a
stockholder of the Company while the stock is held by you.
2. In the event the Company or any assignee of the Company (referred to
collectively as the "Company") exercises the purchase options set forth in
Paragraph 2, 3, 4, or 8 of the Agreement, the Company shall give to the
Shareholder and you a written notice in accordance with Paragraph 16 of the
Agreement specifying the number of shares of stock to be purchased, the purchase
price, and the time for a closing. The Shareholder and the Company hereby
irrevocably authorize and direct you to close the transaction contemplated by
such notice in accordance with the terms of said notice.
3. In the event the Company exercises its right of first refusal
pursuant to Paragraph 7 of the Agreement, the Company shall give to you and the
Shareholder a written notice of the exercise, specifying the purchase price, the
number of shares to be purchased, and a time for closing. The Shareholder and
the Company hereby irrevocably authorize and direct you to close the
transactions contemplated by such notice in accordance with the terms of the
notice.
4. At a closing pursuant to Section 2 or 3 of these Instructions, you
are directed (a) to complete and date stock assignments necessary for the
transfer in question, and (b) to deliver such stock assignment, together with
the certificate evidencing the shares of stock to be transferred, to the Company
against the simultaneous delivery to you of the purchase price as contemplated
in the Agreement for the number of shares of stock being purchased pursuant to
the exercise of the purchase option(s) being exercised. In the event the Company
does not purchase all shares evidenced by the escrowed certificate, you shall
also receive a new certificate for the remaining shares. In the event you have
used all previously executed Assignments Separate from Certificate and a stock
certificate is issued in the name of the Shareholder, the Shareholder agrees to
execute two new Assignments Separate from Certificate prior to receiving any of
the proceeds from the Company's exercise of its purchase option(s) or right of
first refusal.
5. If the Shareholder gives notice that he wishes to sell stock to
other than the Company pursuant to Paragraph 7 of the Agreement, the Shareholder
shall provide you with written notice of the third party to whom the
<PAGE> 9
transfer is to be made, together with a copy of the Shareholder's notice to the
Company required by Paragraph 7 of the Agreement, and either a copy of a notice
from the Company declining the rights of first refusal or a statement indicating
that the applicable time period has passed after delivery of the notice to the
Company without any response being given. You are entitled to rely on the
Shareholder's representation with respect to the Company's response to the
notice required by Paragraph 7 of the Agreement, and shall not be required to
contact the Company to confirm this representation. If the Company fails to
exercise its right of first refusal, then you are authorized, upon receipt of
the specified consideration and the other documentation required by this
Paragraph, to deliver to the transfer agent the stock certificate and the
Assignment Separate from Certificate endorsed so as to permit the transfer agent
to close the transaction on the part of the parties involved.
6. At the end of the Escrow Period, you are authorized to deliver to
the Shareholder, the stock certificates and assignments separate from
certificate in your possession pursuant to this Agreement.
7. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties.
8. You shall be obligated only for the performance of such duties as
are specifically set forth in these instructions and may rely and shall be
protected in relying or refraining from acting on any instrument reasonably
believed by you to be genuine and to have been signed or presented by the proper
party or parties. You shall not be personally liable for any act you may do or
omit to do as escrow agent or as attorney-in-fact for the Shareholder while
acting in good faith and in the exercise of your own good judgment, and any act
done or omitted by you pursuant to the advice of an attorney shall be conclusive
evidence of such good faith.
9. You are expressly authorized to disregard any and all warnings given
by any of the parties or by any other person or corporation, excepting only
orders or process of courts of law, and are hereby expressly authorized to
comply with and obey orders, judgments or decrees of any court. In case you obey
or comply with any such order, judgment or decree, you shall not be liable to
any of the parties or to any other person, firm or corporation by reason of such
compliance, notwithstanding any such order, judgment or decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
10. You shall not be liable in any respect on account of the identity,
authorities or rights of the executing or delivering or purporting to execute or
deliver the Agreement or any documents or papers deposited or called for under
these instructions.
11. You shall not be liable for the outlawing of any rights under the
statute of limitations with respect to these instructions or any documents
deposited with you.
12. You shall be entitled to employ such legal counsel and other
experts as you may deem necessary properly to advise you in connection with your
obligations under these instructions, may rely upon the advice of such counsel,
and may pay such counsel reasonable compensation. Cost of such counsel shall be
reimbursed by the party (as between the Company and the Shareholder) which does
not prevail.
13. Your responsibilities as escrow agent shall terminate if you shall
resign by written notice to the Shareholder and the Company. In the event of any
such termination, the Company shall appoint a successor escrow agent; but
failure of the Company to appoint a substitute shall not prevent your
resignation at the time indicated by you.
14. The Shareholder and Company recognize that Daniels & Daniels, P.A.,
the initial escrow agent, is also legal counsel to AuctionRover.com, Inc.
Provided that Daniels & Daniels, P.A. resigns as Escrow Agent with respect to
Employee's Restricted Shares, Employee agrees that he will not attempt to
disqualify Daniels & Daniels, P.A. from representation of the Company with
respect to any dispute related to the Restricted Shares. The Shareholder
understands that Daniels & Daniels, P.A. is relying on this commitment by
Shareholder and would not agree to serve as escrow agent unless such a
commitment were first made by Shareholder.
<PAGE> 10
15. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect of
these instructions, the necessary parties to these instructions shall join in
furnishing such instruments.
16. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you under these instructions, you are authorized and directed
to retain in your possession without liability to anyone all or any part of said
securities until such disputes shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree or judgment of a
court of competent jurisdiction after the time for appeal has expired and no
appeal has been perfected, but you shall be under no duty whatsoever to
institute or defend any such proceedings.
17. Any notice required or permitted under these instructions shall be
given in writing and shall be deemed effectively given upon personal delivery or
one business day after being sent by a reputable overnight courier service,
addressed to each of the other parties thereunto entitled at the following
addresses, or at such other addresses as a party may designate by ten days'
advance written notice to each of the other parties:
CORPORATION: AuctionRover.com, Inc.
3000 Aerial Center, Suite 160
Morrisville, NC 27560
SHAREHOLDER:
ESCROW AGENT: Daniels & Daniels, P.A.
Post Office Box 12218
Research Triangle Park, NC 27709-2218
Attn: Walter E. Daniels
18. By signing these Joint Escrow Instructions, you become a party only
for the purpose of the Joint Escrow Instructions; you do not thereby become a
party to the Agreement.
19. Capitalized terms used in this Agreement that are not otherwise
defined shall have the meanings assigned in the Agreement.
20. These Joint Escrow Instructions shall inure to the benefit of the
successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, be binding upon the Shareholder, his heirs,
executors, administrators, successors and assigns.
21. These Joint Escrow Instructions shall be construed in accordance
with and governed in all respects by the laws of the State of North Carolina.
22. These Joint Escrow Instructions set forth the entire understanding
between the parties with respect to the subject matter of these instructions and
may only be changed by agreement in writing executed by the parties.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
executed these Joint Escrow Instructions as of the date first above written.
AuctionRover.com, Inc.
By:
--------------------------------
Its:
<PAGE> 11
Shareholder: [Name]
------------------------------------
(Signature)
ACCEPTED AND AGREED TO:
ESCROW AGENT: Daniels & Daniels, P.A.
By:
-------------------------------------
Title:
<PAGE> 12
Exhibit 4.2
AUCTIONROVER.COM, INC.
1999 EXECUTIVE STOCK AWARD PLAN
ARTICLE I
Purpose; Term; Definitions
1.1 Purpose. The AuctionRover.com, Inc. 1999 Executive Stock Award Plan
(the "plan") is intended to secure for AuctionRover.com, Inc. (the "Company")
and its shareholders the benefits of the incentive inherent in stock ownership
by the directors and executive officers and of the Company and its Affiliates
who are bear a significant responsibility for the Company's and its Affiliates
future growth and continued financial success; and to afford such persons the
opportunity to obtain or increase a proprietary interest in the Company on a
favorable basis and, thereby, to have an opportunity to share in its success. It
is intended that: (1) the Incentive Stock Options issued pursuant to the Plan
shall constitute "incentive stock options" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended; (2) the Plan allow for issuance
of Non-Statutory Stock Options when the Committee deems appropriate; (3) offers
and sales of Common Stock pursuant to the Plan shall satisfy the requirements of
Rule 506 under the Securities Act; and (4) in the event that the Company becomes
a Reporting Company, the Plan shall satisfy the requirements of Rule 16b-3 under
the Exchange Act.
1.2 Effective Date of the Plan. This Plan has been approved by the
Board of Directors and the shareholders of the Company and the effective date of
the Plan is June 10, 1999.
1.3 Term. No awards shall be made under the Plan after ten (10) years
from the Effective Date; provided, however, that the Plan and all awards made
under the Plan prior to such date shall remain in effect until such awards have
been satisfied or terminated in accordance with the Plan and the terms of such
awards.
1.4 Definitions. Throughout this Plan, the following terms shall have
the meanings respectively indicated:
(a) Affiliate shall mean any parent corporation or subsidiary, whether
now or hereafter existing, as those terms are defined in Sections 424(e) and
(f), respectively, of the Code.
(b) Benefits shall mean any one or more of the following awards that
may be offered by the Committee to Participants under this Plan:
(i) Incentive Stock Options,
(ii) Non-Statutory Stock Options, or
(iii) Restricted Stock.
(c) Board shall mean the Board of Directors for the Company, as elected
by the shareholders of the Company.
(d) Code shall mean the Internal Revenue Code of 1986, as amended, and
any successor revenue laws of the United States.
(e) Committee shall mean the committee of Directors appointed by the
Board to administer this Plan.
(f) Common Stock shall mean the Company's no par value common stock.
(g) Company shall mean AuctionRover.com, Inc., a North Carolina
corporation.
<PAGE> 13
(h) Consultant shall mean any consultant or advisor engaged by the
Company or an Affiliate to provide advice or assistance in a field in which the
consultant or advisor has specialized knowledge or experience; the term shall
not include Directors unless such person comes within the above definition
outside his or her capacity as a director.
(i) Director shall mean any person elected and currently serving as a
member of the Board or of the board of directors of any Affiliate.
(j) Disinterested Person shall mean a Director who either (i) was not
during the one year prior to service as an administrator of the Plan granted or
awarded any Benefits pursuant to the Plan or any equity securities pursuant to
any other plan of the Company or any of its Affiliates entitling the
participants therein to acquire equity securities of the Company or any of its
Affiliates except as permitted by Rule 16b-3(c)(2)(i) of the Exchange Act; or
(ii) is otherwise considered to be a "disinterested person" in accordance with
Rule 16b-3(c)(2)(i) of the Exchange Act.
(k) Effective Date shall have the meaning assigned in Paragraph 1.2.
(l) Employee shall mean an employee, as defined in Section 3401(c) of
the Code, of the Company or of an Affiliate, including Officers and Directors;
provided however that neither service as a Director nor payment of a director's
fee by the Company shall be sufficient to constitute the Director an Employee.
(m) Escrow Period shall mean the date beginning with the initial
issuance of Restricted Stock and continuing until such time as the applicable
document indicates the Restricted Stock may be released from escrow.
(n) Exchange Act shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(o) Fair Market Value shall mean: (i) if the Common Stock is not listed
on a national securities exchange or traded in the NASDAQ National Market System
or the over-the-counter market, the fair value thereof determined in good faith
by the Committee without taking into account any restrictions on the shares
other than restrictions which, by their terms, will never lapse; or (ii) if the
Common Stock is traded in the over-the-counter market and is not listed on a
national securities exchange or traded on the NASDAQ National Market System, the
average of the closing bid and asked prices for the Common Stock as reported by
the National Association of Securities Dealers Automated Quotation ("NASDAQ)
System; or (iii) if the Common Stock is listed on a national securities exchange
or traded on the NASDAQ National Market System, the closing price of the Common
Stock.
(p) Incentive Stock Option shall mean an option to acquire Common Stock
that is intended to qualify as an incentive stock option within the meaning of
Section 422 of the Code.
(q) Incentive Stock Option Agreement shall mean a written agreement
between the Company and an Employee pursuant to which an Incentive Stock Option
is issued to the Employee pursuant to this Plan.
(r) Initial Public Offering shall mean the consummation of the
Company's sale of its Common Stock in a bona fide, firm commitment or best
efforts underwriting pursuant to a registration statement under the Securities
Act, in which the net proceeds to the Company are not less than $10,000,000.
(s) Non-Employee Director shall mean a director who: (i) is not
currently an officer of, or is not otherwise currently employed by, the Company
or an Affiliate of the Company, (ii) does not receive compensation, either
directly or indirectly, from the Company or an Affiliate of the Company, for
services rendered as a consultant or in any capacity other than as a director,
except in an amount permitted by Rule 16b-3 under the Exchange Act, and (iii)
who otherwise meets the definition of a Non-Employee Director under Rule 16b-3.
(t) Non-Statutory Stock Option shall mean an option to acquire Common
Stock that is not intended to be an Incentive Stock Option or does not qualify
as an Incentive Stock Option.
(u) Non-Statutory Stock Option Agreement shall mean a written agreement
between the Company and a Participant pursuant to which a Non-Statutory Stock
Option is issued to the Participant pursuant to this Plan.
<PAGE> 14
(v) Officer shall mean a person who is an officer of the Company or its
Affiliate within the meaning of Section 16 of the Exchange Act.
(w) Option shall mean a Non-Statutory Stock Option or an Incentive
Stock Option, as the context may require, granted pursuant to this Plan.
(x) Optionee shall mean the holder of a Non-Statutory Stock Option or
an Incentive Stock Option, as the context may require.
(y) Participant shall mean an Employee, Director, Officer or Consultant
selected by the Committee pursuant to Article III of this Plan to receive
Benefits.
(z) Plan shall mean the AuctionRover.com, Inc. 1999 Executive Stock
Award Plan, as it may be amended from time to time.
(aa) Reporting Company shall mean a company that has a class of equity
securities registered under the Securities Exchange Act of 1934.
(bb) Restricted Stock shall mean Common Stock granted under Article VI
of this Plan or pursuant to the exercise of an Option, and subject to such
restrictions as the Committee may determine as evidenced in a Restricted Stock
Agreement.
(cc) Restricted Stock Agreement shall mean a written agreement between
the Company and a Participant pursuant to which Restricted Stock is issued to
the Participant under this Plan, including, without limitation, Restricted Stock
issued upon exercise of an Option.
(dd) Securities Act shall mean the Securities Act of 1933, as amended
from time to time.
ARTICLE II
Administration
2.1 Administration of Plan. The Plan shall be administered by the
Committee, which shall be appointed by the Board in accordance with Paragraph
2.2. In the event the Board should fail to appoint a Committee, the Board shall
administer the Plan as if it were the Committee.
2.2 Committee Composition. The Committee shall consist of not less than
two (2) nor more than five (5) Directors. Once designated, the Committee shall
continue to serve until otherwise directed by the Board. From time to time, the
Board may increase the size of the Committee, appoint additional members, remove
members (with or without cause), appoint new members in substitution therefore,
fill vacancies however caused, and remove all members of the Committee.
2.3 Operation of Committee. A majority of the entire Committee shall
constitute a quorum and the action of a majority of the members present at any
meeting at which a quorum is present shall be deemed the action of the
Committee. In addition, any decision or determination reduced to writing and
signed by all of the members of the Committee shall be fully as effective as if
it had been made by a majority vote at a meeting duly called and held. Subject
to the provisions of the Plan, to the provisions of the Company's bylaws, and to
any terms and conditions prescribed by the Board, the Committee may make such
rules and regulations for the conduct of its business as it shall deem
advisable. The Committee shall hold meetings at such time and places as it may
determine. The interpretation and construction by the Committee of any
provisions of the Plan or of any Benefit granted under it shall be final, unless
otherwise determined by the Board.
<PAGE> 15
2.4 Committee Authority. Subject to the provisions of the Plan and any
conditions and limitations prescribed by the Board consistent with the Plan, the
Committee shall have the authority, in its sole discretion, to:
(a) designate the Participants eligible to participate in the Plan;
(b) grant awards provided in the Plan in such form and amount as the
Committee may determine, including without limitation whether each grant shall
be for Incentive Stock Options, Non-Statutory Stock Options or Restricted Stock;
(c) impose such limitations, restrictions and conditions upon such
awards as the Committee shall deem appropriate;
(d) construe and interpret the Plan and Benefits granted under it,
adopt, amend and rescind rules and regulations relating to the Plan, and make
all other determinations and take all other actions necessary or advisable for
the implementation and administration of the Plan.
2.5 Good Faith Determinations. No member of the Board or the Committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any award under the Plan.
2.6 Administration of Plan by a Reporting Company. At any time that the
Company becomes a Reporting Company, the administration of the Plan shall be
changed as follows: The Committee shall consist of not less than two (2)
persons, each of whom shall be a Director who either: (i) is not a current
employee of the Company or an affiliated corporation (as defined in the
regulations promulgated under Section 162(m) of the Code), is not a former
employee of the Company or an affiliated corporation receiving compensation for
prior services (other than benefits under a tax-qualified pension plan), was not
an officer of the Company or an affiliated corporation at any time, and is not
currently receiving compensation for personal services in any capacity other
than as a Director, or (ii) is otherwise considered an outside director under
Section 162(m) of the Code and a Non-Employee Director.
ARTICLE III
Eligibility; Types of Benefits; Shares Subject to the Plan
3.1 Criteria. The Committee shall from time to time determine and
designate the Participants to receive Benefits under the Plan and the number of
Incentive Stock Options, Non-Statutory Stock Options, or shares of Restricted
Stock to be awarded to such persons; provided, however, that only Employees may
be designated to receive Incentive Stock Options. In making any such awards, the
Committee may take into account the nature of services rendered, commissions or
other compensation earned, the capacity of the Employee, Consultant, Officer or
Director to contribute to the success of the Company or any of its Affiliates,
and such other factors as the Committee may consider relevant.
3.2 Types of Benefits. Benefits available under the Plan may be awarded
singularly or in any combination provided, however, that Incentive Stock Options
may not be awarded in tandem with Non-Statutory Stock Options where the exercise
of one affects the right to exercise the other.
3.3 Shares Subject to the Plan. Stock that may be issued under the Plan
shall be authorized and unissued Common Stock. The maximum total number of
shares of Common Stock which may be issued under the Plan shall be one million
four hundred thousand (1,400,000) shares. For purposes of calculating the
maximum number of shares of Common Stock that may be issued under the Plan:
(a) The Common Stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise;
<PAGE> 16
(b) When cash is used by the Participant as full payment for shares
issued upon exercise of a Non-Statutory Stock Option or an Incentive Stock
Option or as payment for the purchase of Restricted Shares, all the shares
issued (including the shares, if any, withheld for tax withholding requirements)
shall be counted;
(c) When shares of stock, including, without limitation, Common Stock
issued pursuant to the Plan, are used by the Participant as full or partial
payment for shares issued upon exercise of a Non-Statutory Stock Option or an
Incentive Stock Option or as payment for the purchase of Restricted Shares, all
the shares issued (including shares, if any, withheld for tax withholding
requirements, and the shares used in the purchase) shall be counted;
(d) Any shares of Common Stock subject to a Non-Statutory Stock Option
or an Incentive Stock Option which for any reason is terminated unexercised or
expires shall again be available for issuance under the Plan; and
(e) If any change is made to the Common Stock subject to the Plan,
through merger, consolidation, reorganization, recapitalization, stock dividend,
dividend in property other than cash, stock split, liquidatory dividend,
combination of shares, exchange of shares, change in corporate structure, or
otherwise, the maximum number of shares subject to the Plan shall be
appropriately adjusted.
3.4 Ten Percent Shareholders. No Employee shall be eligible to receive
an Incentive Stock Option if such Employee owns, or is deemed to beneficially
own under Section 424(d) of the Code, stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or of any of its Affiliates, unless (i) the option price is at least one hundred
ten percent (110%) of the Fair Market Value of the Common Stock as the time the
Option is granted; and (ii) the Option is not exercisable after the expiration
of five (5) years (or such shorter period as the Committee may determine).
3.5 Eligibility and Securities Law Limitations.
(a) No Incentive Stock Option, Non-Statutory Stock Option, or other
award under this Plan shall be granted to any individual unless such individual
is a director or executive officer of the Company. The term executive officer
means the president, any vice president in charge of a principal business unit,
division or function (such as sales, administration or finance), any other
officer who performs a policy-making function, or any other person who performs
similar policy-making functions for the Company.
(b) All certificates or other documents representing Incentive Stock
Options, Non-Statutory Stock Options, and other awards under this Plan shall
bear an appropriate legend stating that the securities represented thereby (and
any securities issuable upon exercise or conversion thereof) will be restricted
securities that may not be sold except in compliance with applicable federal and
state securities laws. The Company will place stop-transfer orders with the
transfer agent for such securities (which may be the Company).
(c) The Company shall make such filings as are required by federal and
state securities laws at the time of any grant or exercise of options under this
Plan.
ARTICLE IV
Incentive Stock Options
Incentive Stock Options granted pursuant to this Article are intended
to constitute "incentive stock options under Section 422 of the Code. No
Employee may be granted Incentive Stock Options under this Plan if the aggregate
Fair Market Value (determined as of the date the Option is granted and taking
into account such Option) of stock of the Company and its Affiliates with
respect to which incentive stock options (as defined in Section 422 of the Code)
are exercisable for the first time by such Employee during any calendar year,
under this and all other plans of the Company and its Affiliates, would exceed
one hundred thousand dollars ($100,000).
<PAGE> 17
The Incentive Stock Option Agreements shall contain terms and
provisions determined by the Committee and consistent with this Plan. The
Committee from time to time may grant Incentive Stock Options to Employees under
this Plan, which grants shall be evidenced by Incentive Stock Option Agreements.
4.1 Mandatory Provisions. The Incentive Stock Option Agreements may be
need not be identical, but each such Incentive Stock Option Agreement shall
include, by appropriate language, the substance of all the following terms and
provisions:
(a) That the Option granted thereunder is an Incentive Stock Option.
(b) The number of shares to which it pertains.
(c) A minimum number of the shares that may be purchased upon each
partial exercise of an Option.
(d) The option exercise price, which price shall be set by the
Committee and shall be equal to one hundred percent (100%) of the Fair Market
Value of the Common Stock at the time the Option is granted; provided, however,
that for an Employee who is a ten percent (10%) shareholder, as determined in
Paragraph 3.4, the option price for the Option shall be at least one hundred ten
percent (110%) of the Fair Market Value of the Common Stock at the time the
Option is granted.
(e) The date the Option is granted, which shall be the date selected by
the Committee as of which the Committee allots a specific number of shares of
Common Stock to an Employee pursuant to the Plan.
(f) The time after which the Option expires, provided that the Option
shall not be exercisable after the expiration of ten (10) years from the date it
is granted and that with respect to an employee who is a ten percent (10%)
shareholder, as determined in Paragraph 3.4, the Option shall not be exercisable
after the expiration of five (5) years from the date it is granted.
(g) That the Option terminates upon termination of employment of the
Employee with either the Company or an Affiliate.
(h) That the Option is exercisable during the Optionee's lifetime only
by the Optionee, and that the Option shall not be assignable or transferable by
the Optionee except by will or distribution through intestate succession.
(i) That neither the Optionee, nor any person to whom an Option is
permitted to be transferred, shall be deemed to be the holder of, or have any
rights of a holder with respect to, any shares subject to such Option unless and
until such person has satisfied all requirements for exercise of the Option,
pursuant to its terms, and then only after shares have been issued to the
Optionee.
(j) The time and medium of payment with respect to exercise of the
Option, provided that if payment is permitted to be made by Common Stock, the
stock shall be valued at its Fair Market Value as of the date the Option is
exercised.
(k) Unless modified by the optional provisions in Paragraph 4.2, that
to the extent the Employee (or other person exercising such Option) recognizes
income as a result of the exercise of the Option, the subsequent sale of the
Common Stock issued pursuant to exercise of the Option, or a lapse in the
restrictions on the Restricted Stock issued upon exercise of the Option, then
the Employee shall pay the Company or its applicable Affiliate an amount equal
to the federal, state and local withholding taxes on income so recognized at the
time required by law.
(l) The treatment of the Options upon merger, reorganization,
recapitalization, exchange of shares, change in corporate structure,
liquidation, stock dividend and similar events.
<PAGE> 18
(m) If the Company is a Reporting Company, a term providing that any
Common Stock acquired upon exercise of the Option shall not be sold or otherwise
transferred before the expiration of six (6) months from the date such Option is
granted.
(n) No Option may be exercised during any period in which the holder is
not a director or executive officer of the Company.
4.2 Optional Provisions. Incentive Stock Option Agreements may contain
such other provisions not inconsistent with the Plan and Section 422 of the Code
as the Committee, in its discretion, deems advisable. Without limiting the
foregoing, the Committee may consider inclusion of the following terms:
(a) That the Option may be exercised by a net exercise pursuant to
which the Optionee pays the exercise price by surrender of shares receivable
upon exercise having a fair market value equal to such exercise price.
(b) That the Optionee be prohibited from transferring any share of
stock issued upon exercise of an Option within two (2) years from the date of
the granting of the Option or within one (1) year after the transfer of such
share to the Optionee.
(c) That the total number of shares of stock subject to an Option shall
be allotted in periodic installments (which may, but need not, be equal) and
that from time to time during each of such installment periods, the Option shall
become exercisable (vest) with respect to some or all of the shares allotted to
that period, and may be exercised with respect to some or all of the shares
allocated to such period and/or any prior period as to which the Option became
vested but was not fully exercised. The Option may be subject to such other
terms and conditions on the time or times when it may be exercised (which may be
based on performance or other criteria) as the Committee may deem appropriate.
(d) The circumstances under which all or any portion of any Option
granted and not yet vested may or shall have the vesting schedule accelerated or
terminated.
(e) The circumstances under which all or any portion of any Option
previously granted and unexercised may or shall be terminated.
(f) That the shares to be received upon exercise shall be Restricted
Stock and that no exercise of an Option shall be effective until a Restricted
Stock Agreement has been executed with respect to such shares.
(g) That in the event an Employee accepting a grant of Options under
this Plan incurs federal, state or local income, employment or other withholding
taxes applicable to the income recognized by such Employee and attributable to
the Common Stock issued upon exercise of the Option, the subsequent sale of the
Common Stock issued pursuant to exercise of the Option, or a lapse in the
restrictions on the Restricted Stock issued upon exercise of the Option, then at
the time as may be required by law, the Company or its applicable Affiliate may
provide for payment of the taxes on behalf of the Employee (or other person
exercising such Option) pursuant to one or any combination of the following: (i)
by an advance on behalf of Employee by the Company or such Affiliate pursuant to
a repayment schedule satisfactory to the Company or such Affiliate; or (ii) by
withholding from the Employee's salary, commissions or other compensation; or
(iii) by payment in whole or in part by the Company or such Affiliate.
4.3 Prohibited Provision. No Incentive Stock Option Agreement shall
impose an obligation upon the Optionee to exercise an Option.
ARTICLE V
Non-Statutory Stock Options
Non-Statutory Stock Options granted pursuant to this Article are not
intended to constitute "incentive stock options under Section 422 of the Code.
The Non-Statutory Stock Option Agreement shall contain terms and provisions
determined by the Committee and consistent with this Plan. The Committee from
time to time may grant Non-Statutory
<PAGE> 19
Stock Options to Participants under this Plan, which grants shall be evidenced
by Non-Statutory Stock Option Agreements.
5.1 Mandatory Provisions. The Non-Statutory Stock Option Agreements
need not be identical, but each such Non-Statutory Stock Option Agreement, by
appropriate language, shall include the substance of all the following terms:
(a) The number of shares to which it pertains.
(b) A minimum number of the shares that may be purchased upon each
partial exercise of an Option.
(c) The option exercise price, which price shall be set by the
Committee.
(d) The date the Option is granted, which shall be the date selected by
the Committee as of which date the Committee allots a specific number of shares
of Common Stock to a Participant pursuant to the Plan.
(e) The time after which the Option expires.
(f) Whether and upon what terms the Option is transferable.
(g) That neither an Optionee, nor any person to whom an Option is
permitted to be transferred, shall be deemed to be the holder of, or have any
rights of a holder with respect to, any shares subject to such Option unless and
until such person has satisfied all requirements for exercise of the Option,
pursuant to its terms, and then only after shares have been issued to the
Optionee.
(h) The time and medium of payment with respect to exercise of the
Option, provided that if payment is permitted to be made by Common Stock, the
stock shall be valued at its Fair Market Value as of the date the Option is
exercised.
(i) Unless modified by the optional provisions in Paragraph 5.2, that
to the extent the Participant (or other person exercising such Option)
recognizes income as a result of the exercise of the Option, the subsequent sale
of the Common Stock issued pursuant to exercise of the Option, or a lapse in the
restrictions on the Restricted Stock issued upon exercise of the Option, then
the Participant shall pay the Company or its applicable Affiliate an amount
equal to the federal, state and local withholding taxes on income so recognized
at the time required by law.
(j) Terms indicating treatment of the Options upon merger,
reorganization, recapitalization, exchange of shares, change in corporate
structure, liquidation, stock dividend and similar events.
(k) If the Company is a Reporting Company, a term providing that any
Common Stock acquired upon exercise of the Option shall not be sold or otherwise
transferred before the expiration of six (6) months from the date such Option is
granted.
5.2 Optional Provisions. Non-Statutory Stock Option Agreements may
contain such other provisions not inconsistent with the Plan as the Committee,
in its discretion, shall deem advisable. Without limiting the foregoing, the
Committee shall specifically consider inclusion of the following terms:
(a) That the total number of shares of stock subject to an Option be
allotted in periodic installments (which may, but need not, be equal) and that
from time to time during each of such installment periods, the Option may become
exercisable (vest) with respect to some or all of the shares allotted to that
period, and may be exercised with respect to some or all of the shares allocated
to such period and/or any prior period as to which the Option became vested but
was not fully exercised. The Option may be subject to such other terms and
conditions on the time or times when it may be exercised (which may be based on
performance or other criteria) as the Committee may deem appropriate.
<PAGE> 20
(b) The circumstances under which all or any portion of any Option
previously granted and unexercised may or shall be terminated, including without
limitation expiration of the Option as it may be related to termination of
employment, death, disability or retirement.
(c) The circumstances under which all or any portion of any Option
granted and not yet vested may or shall have the vesting schedule accelerated or
terminated.
(d) That the shares to be received upon exercise shall be Restricted
Stock and that no exercise of an Option shall be effective until a Restricted
Stock Agreement has been executed with respect to such shares.
(e) That in the event a Participant accepting a grant of Options under
this Plan incurs federal, state or local income, employment or other withholding
taxes applicable to the income recognized by such Participant and attributable
to the Common Stock issued upon exercise of the Option, the subsequent sale of
the Common Stock issued pursuant to exercise of the Option, or a lapse of the
restrictions on the Restricted Stock, then at the time as may be required by
law, the Company or its applicable Affiliate may provide for payment of the
taxes on behalf of the Participant (or other person exercising such Option)
pursuant to one or any combination of the following: (i) by an advance on behalf
of Participant by the Company or such Affiliate pursuant to a repayment schedule
satisfactory to the Company or such Affiliate; or (ii) by withholding from the
Participant's salary, commissions or other compensation; or (iii) by payment in
whole or in part by the Company or such Affiliate.
5.3 Prohibited Provision. No Non-Statutory Stock Option Agreement shall
impose an obligation on the Optionee to exercise an Option.
ARTICLE VI
Restricted Stock
The Committee from time to time may award Restricted Stock to
Participants under this Plan, which awards shall be evidenced by Restricted
Stock Agreements. The Restricted Stock Agreements shall contain terms and
provisions determined by the Committee, and consistent with this Plan.
6.1 Mandatory Provisions. The Restricted Stock Agreements need not be
identical, but each such Restricted Stock Agreement, by appropriate language,
shall include the substance of all the following terms:
(a) The number of shares of Restricted Stock to which it pertains.
(b) The price for the issuance of the shares of Restricted Stock, which
price shall be set by the Committee.
(c) The time and medium of payment with respect for the Restricted
Stock, provided that if payment is permitted to be made by Common Stock, the
stock shall be valued at its Fair Market Value as of the date the payment.
(d) The restrictions that are to be placed on the stock, which
restrictions may include but need not be limited to limitations on the sale,
transfer or encumbrance of the Restricted Stock, and rights of first refusal,
mandatory or optional puts or calls, and forfeiture upon the occurrence of
certain events.
(e) The time, if any, when the restrictions terminate or lapse.
(f) Unless modified by the optional provisions in Paragraph 6.2, that
to the extent the Participant recognizes income attributable to the receipt of
the Restricted Stock or upon subsequent lapse of the restrictions on the
Restricted Stock, then at the time as may be required by law, the Participant
shall pay the Company or its applicable Affiliate an amount equal to the
federal, state and local withholding taxes on income so recognized at the time
required by law.
<PAGE> 21
(g) That if any change is made in the Common Stock by reason of any
merger, consolidation, reorganization, recapitalization, stock dividend, split
up, combination of shares, exchange of shares, change in corporate structure, or
otherwise, any shares received by a Participant with respect to Restricted Stock
shall be subject to the same restrictions applicable to such Restricted Stock.
6.2 Optional Provisions. The Restricted Stock Agreement may contain
such other provisions not inconsistent with the Plan as the Committee in its
discretion shall deem advisable. Without limiting the foregoing, the Committee
shall specifically consider inclusion of the following terms:
(a) The circumstances under which the time at which any or all of the
restrictions lapse may be accelerated.
(b) That the certificates for Restricted Stock be required to be held
in escrow and be released to the shareholder only upon conditions specified by
the Committee in the Restricted Stock Agreement.
(c) That Restricted Stock be required to be placed in a voting trust or
be subject to an irrevocable proxy for up to the maximum period permitted by
law.
(d) That the Participant receiving the Restricted Stock must file an
election under Section 83(b) of the Code and pay the applicable taxes due upon
such filing.
(e) That in the event a Participant accepting Restricted Stock under
this Plan incurs federal, state or local income, employment or other withholding
taxes applicable to the income recognized by such Participant and attributable
to the receipt of the Restricted Stock or upon subsequent lapse of the
restrictions on the Restricted Stock, then at the time as may be required by
law, the Company or its applicable Affiliate may provide for payment of the
taxes on behalf of the Participant pursuant to one or any combination of the
following: (i) by an advance on behalf of Participant by the Company or such
Affiliate pursuant to a repayment schedule satisfactory to the Company or such
Affiliate; or (ii) by withholding from the Participant's salary, commissions or
other compensation; or (iii) by payment in whole or in part by the Company or
such Affiliate.
ARTICLE VII
Miscellaneous Provisions
7.1 Right to Terminate Employment. Nothing in this Plan shall confer
upon any Participant the right to be employed by the Company, or, if already
employed, to continue in the employment of the Company or of any Affiliate or
affect any right which the Company or any Affiliate may have to terminate the
employment of such Participant.
7.2 Securities Laws. Each Benefit awarded under the Plan shall be
subject to the requirement that, if at any time the Committee shall determine
that (i) the listing, registration or qualification of the shares of Common
Stock subject to the Plan upon any securities exchange or under any state or
federal law, or (ii) the consent or approval of any governmental authority, or
(iii) an agreement by the recipient of an award with respect to the disposition
of shares of Common Stock, is necessary or desirable as a condition of, or in
connection with, the granting of such Benefit or the issue or purchase of shares
of Common Stock thereunder, the award of such Benefit may not be consummated in
whole or in part unless such listing, registration, qualification, consent,
approval or agreement shall have been effected or obtained free of any
conditions not acceptable to the Committee. The inability of the Company to
obtain from any regulatory body having jurisdiction the authority deemed by the
Company's counsel to be necessary to the lawful issuance of any shares of its
Common Stock hereunder shall relieve the Company of any liability in respect of
the nonissuance or sale of such stock as to which such requisite authority shall
not have been obtained. Notwithstanding the foregoing, the Company shall not be
required to register under the Securities Act any Option or any Common Stock to
be issued under the Plan or pursuant to the exercise of any Option.
<PAGE> 22
7.3 Reservation of Shares. The Company, during the term of this Plan,
shall at all times reserve and keep available, and will seek or obtain from any
regulatory body having jurisdiction any requisite authority in order to issue
such number of shares of its Common Stock as shall be sufficient to satisfy the
requirements of the Plan.
7.4 Indemnification of Committee. In addition to such other rights of
indemnification as they may have as Directors or as members of the Committee,
the members of the Committee shall be indemnified by the Company against the
reasonable expenses, including attorney's fees actually and necessarily incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with the
Plan or any Benefit granted under the Plan, and against all amounts paid by them
in settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such
Committee member is liable for gross negligence or wilful misconduct in the
performance of his duties, provided that within sixty (60) days after
institution of any such action, suit or proceeding, a Committee member shall
have offered the Company, in writing, the opportunity, at its own expense, to
handle and defend the same.
7.5 Amendment, Modification, Suspension or Discontinuance of the Plan.
The Board, without shareholder approval, may from time to time alter, amend,
suspend or terminate this Plan for the purpose of improving the effectiveness of
the Plan as an incentive device, or conforming the Plan to applicable
governmental regulations or to any change in applicable law or regulations, or
any other purpose permitted by law; provided, however, that no such action by
the Board shall adversely affect any Benefit theretofore granted under the Plan
without the consent of the holder so affected; provided further, however, that
the Board may not increase the number of shares of Common Stock authorized under
Paragraph 3.3 of this Plan or change the employees or class of employees
eligible to participate without the approval of the shareholders of the Company;
and provided further, however, that the Board shall submit any amendments to the
shareholders of the Company for approval to the extent necessary to maintain
compliance with the requirements of Rule 16b-3 under the Exchange Act or Rule
701 under the Securities Act, and to maintain the qualification of the Incentive
Stock Options that may be granted hereunder as incentive stock options within
the meaning of Section 422 of the Code.
7.6 Use of Proceeds. Proceeds from the sale of stock pursuant to
Options or from the sale of Restricted Stock shall constitute general funds of
the Company.
7.7 Governing Law. This Plan and all rights and obligations hereunder
shall be construed in accordance with and governed by the internal laws of the
State of North Carolina.
7.8 Designation. This Plan may be referred to in other documents and
instruments as the AuctionRover.com 1999 Executive Stock Award Plan.
<PAGE> 1
EXHIBIT 5.1
May 3, 2000
GoTo.com, Inc.
74 North Pasadena Avenue, Third Floor
Pasadena, California 91105
Re: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about the date hereof (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of AuctionRover, (i) an aggregate of 368,405
shares of your Common Stock reserved for issuance under the AuctionRover.com,
Inc. 1999 Stock Award Plan and (ii) an aggregate of 153,003 shares of your
common stock reserved for issuance under the AuctionRover.com, Inc. 1999
Executive Stock Award Plan (collectively, the "Shares"). As your legal counsel,
we have examined the proceedings taken and are familiar with the proceedings
proposed to be taken by you in connection with the sale and issuance of the
Shares under the Plans. In addition, for purposes of this opinion we have
assumed that the consideration received by the Company in connection with each
issuance of the Shares will include an amount in the form of cash, services
rendered or property that exceeds the greater of (i) the aggregate par value of
such Shares or (ii) the portion of such consideration determined by the
Company's Board of Directors to be "capital" for purposes of the Delaware
General Corporation Law.
Based upon the foregoing, it is our opinion that, when issued and sold
in the manner referred to in the Plans and pursuant to the agreements which
accompany the Plans, the Shares issued and sold thereby will be legally and
validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in any
abbreviated registration statement filed pursuant to General Instruction E of
Form S-8 under the Securities Act with respect to the Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 dated May 3, 2000) pertaining to the AuctionRover.com, Inc. 1999 Stock Award
Plan and the AuctionRover.com, Inc. 1999 Executive Stock Award Plan of our
report dated February 8, 2000, with respect to the financial statements of
GoTo.com, Inc. included in the Annual Report (Form 10-K) of Goto.com, Inc. for
the year ended December 31, 1999.
We also consent to the incorporation by reference in the Registration Statement
(Form S-8 dated May 3, 2000) pertaining to the AuctionRover.com, Inc. 1999 Stock
Award Plan and the AuctionRover.com, Inc. 1999 Executive Stock Award Plan of our
report dated January 31, 2000, with respect to the financial statements of
Cadabra Inc. included in the Current Report (Form 8-K) of GoTo.com filed on
March 16, 2000.
/s/ Ernst & Young LLP
Los Angeles, California
May 3, 2000
<PAGE> 1
Exhibit 23.2
FRANK, RIMERMAN & CO. LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the AuctrionRover.com, Inc. 1999 Stock Award
Plan and the AuctionRover.com, Inc.1999 Executive Stock Award Plan, each as
assumed by GoTo.com, Inc., of our report dated December 6, 1999, with respect to
the 1998 financial statements of Cadabra Inc. included in GoTo.com, Inc.'s
Current Report on Form 8-K/A dated March 15, 2000, filed with the Securities and
Exchange Commission.
/s/ Frank, Rimerman & Co. LLP
San Mateo, California
May 3, 2000
