<PAGE> 1
As filed with the Securities and Exchange Commission on March 27, 2000
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
INTERNET PICTURES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 52-2213841
(State of Incorporation) (I.R.S. Employer Identification No.)
1009 Commerce Park Drive
Oak Ridge, Tennessee 37830
(Address of principal executive offices)
INTERACTIVE PICTURES CORPORATION AMENDED AND
RESTATED 1997 EQUITY COMPENSATION PLAN
BAMBOO.COM, INC. AMENDED AND RESTATED 1998 EMPLOYEE,
DIRECTOR AND CONSULTANT STOCK PLAN
BAMBOO.COM, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
STOCK OPTION AGREEMENTS
(Full Title of the Plans)
JAMES M. PHILLIPS
Chairman and Chief Executive Officer
Internet Pictures Corporation
1009 Commerce Park Drive
Oak Ridge, Tennessee 37830
(423) 482-3000
(Name, address and telephone number of agent for service)
(with copies to:)
J. PORTER DURHAM, JR.
Baker, Donelson, Bearman & Caldwell
1800 Republic Centre
633 Chestnut Street
Chattanooga, Tennessee 37450
(423) 209-4198
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 4,105,027 shares(1) $ 32.25(2) $132,387,121(2) $ 34,950.20(1)(2)
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 1,054,729 shares(3) $ 32.25(2) $ 34,015,010(2) $ 8,979.96(2)(3)
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 562,015 shares(4) $ 32.25(2) $ 18,124,984(2) $ 4,785.00(2)(4)
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 2,766,813 shares(5) $ 15.57(6) $ 43,077,328(6) $ 11,372.41(5)(6)
===========================================================================================================================
</TABLE>
(1) On September 17, 1999, Interactive Pictures Corporation ("IPIX")
registered 1,998,559 shares of common stock under its original 1997
Equity Compensation Plan (the "Plan") on a Form S-8 filed with the
Securities and Exchange Commission (the "Commission"), File No.
333-87309. On January 19, 2000, IPIX amended the Plan by increasing the
number of shares reserved under the Plan from 1,998,559 to 2,998,559.
Pursuant to this Registration Statement, the Registrant is registering
the total number of shares reserved under the Plan multiplied by the
Exchange Ratio, as defined herein.
(2) Estimated solely for the purpose of determining the amount of the
registration fee. Such estimate has been calculated in accordance with
Rules 457(c) and 457(h) under the Securities Act of 1933, as amended,
and are based upon the average high and low sales prices of the
Registrant's common stock as reported on the National Market of the
Nasdaq Stock Market on March 21, 2000.
(3) On October 22, 1999, bamboo.com, Inc. ("bamboo") registered 6,612,975
shares under its Amended and Restated 1998 Employee, Director and
Consultant Stock Plan (the "Amended and Restated Plan") on a Form S-8
filed with the Commission, File No. 333-89499 (the "bamboo Form S-8").
On January 19, 2000, bamboo amended the Amended and Restated Plan by
increasing the number of shares reserved under the Amended and Restated
Plan from 8,179,394 to 9,303,423. Pursuant to this Registration
Statement, the Registrant is registering the 1,054,729 registerable
shares reserved under the Amended and Restated Plan.
(4) On October 22, 1999, bamboo registered 700,000 shares under its 1999
Employee Stock Purchase Plan (the "Stock Purchase Plan") on the bamboo
Form S-8. On January 19, 2000, bamboo amended the Stock Purchase Plan
by increasing the number of shares reserved under the Stock Purchase
Plan from 700,000 to 1,262,015. Pursuant to this Registration
Statement, the Registrant is registering the additional 562,015 shares
reserved under the Stock Purchase Plan.
(5) This figure represents the aggregate number of shares of common stock
registered hereby for purchase by certain individuals under the
Executive Employment Agreement entered into by and between the
Registrant and James M. Phillips and the Stock Option Agreements
entered into by and between the Registrant and John M. Murphy,
Christopher M. King, Michael J. Sher, Michael J. Tourville, Edmond B.
Lewis, H. Craig Grantham, Laban P. Jackson, III, Douglas E. Snyder and
Laban P. Jackson, Jr. (collectively, the "Option Agreements"). Pursuant
to this Registration Statement, the Registrant is registering the
number of shares purchaseable by these individuals under the Option
Agreements.
(6) Such amount has been calculated in accordance with Rule 457(h) under
the Securities Act of 1933 (the "1933 Act"), as amended, and is based
upon the Option Price of the common stock stated in the Option
Agreements.
Pursuant to Rule 462 of the 1933 Act, the Registration Statement on
Form S-8 shall be effective upon filing with the Commission.
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EXPLANATORY NOTE
Internet Pictures Corporation (the "Registrant") was formed as a result
of a merger between Interactive Pictures Corporation ("IPIX") and bamboo.com,
Inc. ("bamboo"), effective as of January 19, 2000. The Registrant hereby files
this Registration Statement on Form S-8 relating to 8,488,584 shares of common
stock, $0.001 par value per share, of the Registrant, issuable pursuant to 1)
the Interactive Pictures Corporation Amended and Restated 1997 Equity
Compensation Plan (the "Plan"), 2) the bamboo.com, Inc. Amended and Restated
1998 Employee, Director and Consultant Plan (the "Amended and Restated Plan"),
3) the bamboo.com, Inc. 1999 Employee Stock Purchase Plan (the "Stock Purchase
Plan") and 4) the Executive Employment Agreement entered into by and between the
Registrant and James M. Phillips and the Stock Option Agreements entered into by
and between the Registrant and John M. Murphy, Christopher M. King, Michael J.
Sher, Michael J. Tourville, Edmond B. Lewis, H. Craig Grantham, Laban P.
Jackson, III, Douglas E. Snyder, and Laban P. Jackson, (collectively, the
"Option Documents").
Pursuant to the Agreement and Plan of Merger dated as of October 25,
1999 between IPIX and bamboo, as supplemented by a certain amendment dated
January 19, 2000 among bamboo, IPIX and Bamboo-Merger sub, Inc. ("Merger Sub")
and the transactions contemplated thereby, (i) Merger Sub merged with and into
IPIX (the "Merger"), (ii) IPIX became a wholly-owned subsidiary of bamboo, (iii)
the Registrant merged with and into bamboo and (iv) bamboo changed its name to
Internet Pictures Corporation. Each share of common stock, par value $0.001 of
IPIX issued and outstanding immediately prior to the Effective Time of the
Merger (the "Effective Time") was converted into the right to receive 1.369
shares of bamboo common stock, par value $0.001 (the "Exchange Ratio") at the
Effective Time and bamboo assumed all outstanding obligations to issue bamboo
common stock under the Option Documents.
This Registration Statement relates to an aggregate amount of 8,488,584
shares of the Registrant's common stock issuable pursuant to the Plan, the
Amended and Restated Plan, the Stock Purchase Plan, and the Option Documents. In
connection with the Merger, bamboo filed its Registration Statement on Form S-4,
declared effective on December 16, 1999, which registered 24,763,830 shares of
its common stock.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The audited financial statements for Interactive Pictures Corporation's
fiscal year ended December 31, 1998, contained in the prospectus, dated
August 5, 1999, filed pursuant to Rule 424(b) under the 1933 Act.
(b) The audited financial statements for bamboo.com, Inc.'s fiscal year
ended December 31, 1998, contained in the prospectus, dated August 25,
1999, filed pursuant to Rule 424(b) under the 1933 Act.
(c) The bamboo.com, Inc. Current Report on Form 8-K dated November 1, 1999.
(d) The Interactive Pictures Corporation Current Report on Form 8-K dated
November 2, 1999.
(e) The bamboo.com, Inc. Report on Form 10-Q for the fiscal quarter ended
September 30, 1999, as filed with the Commission on November 15, 1999.
(f) The Interactive Pictures Corporation Reports on Forms 10-Q for the
fiscal quarter ended June 30, 1999, as filed with the Commission on
September 16, 1999 and for the fiscal quarter ended September 30, 1999,
as filed with the Commission on November 15, 1999.
(g) The bamboo.com, Inc. Registration Statement on Form S-4, File No.
333-91139, declared effective on December 16, 1999.
(h) The Registrant's Current Report on Form 8-K dated February 10, 2000.
(i) The Registrant's Current Report on Form 8-K dated March 14, 2000.
(j) The Registrant's Registration Statement on Form S-1, File No.
333-32680, filed with the Commission on March 17, 2000.
(k) All other reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Securities Act of 1934 (the "1934 Act"), since
December 31, 1998.
(l) The description of the Registrant's common stock set forth under the
caption "Description of Capital Stock" on page 54 contained in the
Registrant's Registration Statement on Form S-1, File No. 333-32680,
filed with the Commission on March 17, 2000.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part thereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
No response is required to this item.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No response is required to this item.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant has adopted provisions in its certificate of
incorporation that eliminates the personal liability of its directors for
monetary damages arising from a breach of their fiduciary duties in certain
circumstances to the fullest extent permitted by law. Additionally, the
Registrant's certificate of incorporation and bylaws provide that it will
indemnify its directors, officers, employees or agents for any liability
incurred in their official capacity to the maximum extent permissible under
Delaware General Corporation Law (the "DGCL"). Under Delaware law, a corporation
may indemnify any person made or threatened to be made a party to any action or
proceeding (other than shareholder derivative suits) because he or she is or was
a director, officer, employee or agent of the corporation or is or was serving
at the request of the corporation, as a director, officer, employee or agent of
another corporation or firm. In order to be indemnified, the director, officer,
employee or agent must (i) act in good faith and in a manner he or she
reasonably believed to be in, and not opposed to, the best interest of the
corporation and (ii) in respect to a criminal proceeding, he or she had no
reasonable cause to believe that his or her conduct was unlawful.
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In the case of shareholder derivative suits under Delaware law, the
corporation may also indemnify if the director, officer, employee or agent acted
in good faith and in a manner the director reasonably believed to be in, and not
opposed to, the best interest of the corporation. Unless a court finds that an
individual is fairly and reasonably entitled to indemnity, the corporation
cannot indemnify an individual in shareholder derivative suits where there is
any claim, issue or matter in which the individual has been found liable to the
corporation.
Under the DGCL, a corporation must indemnify a director or officer who
successfully defends himself or herself in a proceeding to which he or she was a
party because of his or her position as a director or officer for expenses
actually or reasonably incurred by the person. Expenses incurred by an officer
or director in defending any civil or criminal proceeding may be paid by the
corporation in advance of the final disposition of the proceeding upon receipt
of an undertaking by or on behalf of the director or officer to repay the amount
if it is ultimately determined that he or she is not entitled to be indemnified
by the corporation. The indemnification and expense advancement provisions under
Delaware law described above are not exclusive of other rights of
indemnification and advancement that a director or officer may be granted by a
corporation in its bylaws or by a vote of shareholders or disinterested
directors or by an agreement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
No response is required to this item.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Interactive Pictures Corporation Amended and Restated 1997
Equity Compensation Plan(1)(2)
4.2 bamboo.com, Inc. Amended and Restated 1998 Employee, Director
and Consultant Stock Plan(3)
4.3 bamboo.com, Inc. 1999 Employee Stock Purchase Plan(4)
4.4 Executive Employment Agreement - James M. Phillips(5)(6)
4.5 Stock Option Agreement - John M. Murphy(6)(7)
4.6 Stock Option Agreement - Christopher M. King(6)(8)
4.7 Stock Option Agreement - Michael J. Sher(6)(9)
4.8 Stock Option Agreement - Michael J. Tourville(6)(10)
4.9 Stock Option Agreement - Edmond B. Lewis(6)(11)
4.10 Stock Option Agreement - H. Craig Grantham(6)(12)
4.11 Stock Option Agreement - Laban P. Jackson, III(6)(13)
4.12 Stock Option Agreement - Douglas E. Snyder(6)(14)
4.13 Stock Option Agreement - Laban P. Jackson, Jr.
5 Opinion and Consent of Baker, Donelson, Bearman & Caldwell
23.1 Consent of Baker, Donelson, Bearman & Caldwell (contained in
Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP, Independent
Accountants of Internet Pictures Corporation (formerly
bamboo.com, Inc.).
23.3 Consent of PricewaterhouseCoopers LLP, Independent
Accountants of Interactive Pictures Corporation
23.4 Consent of PricewaterhouseCoopers LLP, Independent
Accountants of PictureWorks Technology, Inc.
24 Power of Attorney (Included on signature page)
</TABLE>
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(1) Incorporated by reference as Annex I to the bamboo.com, Inc. Registration
Statement on Form S-4, File No. 333-91139, declared effective on December 16,
1999.
(2) All references to shares of common stock presented in this document do not
reflect the Exchange Ratio.
(3) Incorporated by reference as Exhibit 10.3 to the bamboo.com, Inc. Amendment
No. 2 to Registration Statement on Form S-1 File No. 333-80639, declared
effective on August 26, 1999.
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(4) Incorporated by reference as Exhibit 10.4 to the bamboo.com, Inc.
Registration Statement on Form S-1, File No. 333-80639, declared effective on
August 26, 1999.
(5) Incorporated by reference as Exhibit 10.1 to the Interactive Pictures
Corporation Registration Statement on Form S-1, File No. 333-78983, declared
effective on August 4, 1999, as further amended by amendment number 3 dated
February 22, 2000 filed herewith (the "Amendment").
(6) All references to shares of common stock presented in these documents do not
reflect a 0.34009-for-1 reverse stock split effected on August 4, 1999 or the
Exchange Ratio. However, shares of common stock referenced in the Amendment are
not subject to the reverse stock split or the Exchange Ratio.
(7) Incorporated by reference as Exhibit 4.3 to Interactive Pictures Corporation
Registration Statement on Form S-8, File No. 333-87309 as filed with the
Commission on September 17, 1999 (the "IPIX Form S-8").
(8) Incorporated by reference as Exhibit 4.4 to the IPIX Form S-8.
(9) Incorporated by reference as Exhibit 4.5 to the IPIX Form S-8.
(10) Incorporated by reference as Exhibit 4.6 to the IPIX Form S-8.
(11) Incorporated by reference as Exhibit 4.7 to the IPIX Form S-8.
(12) Incorporated by reference as Exhibit 4.8 to the IPIX Form S-8.
(13) Incorporated by reference as Exhibit 4.9 to the IPIX Form S-8.
(14) Incorporated by reference as Exhibit 4.10 to the IPIX Form S-8.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement 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.
(2) That, for the purpose of determining any liability under the 1933
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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(b) The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, 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 1933 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 Oak Ridge, State of Tennessee, on the 17th day of
March, 2000.
INTERNET PICTURES CORPORATION
By: /s/ James M. Phillips
-------------------------------------
James M. Phillips, Chairman and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James M. Phillips and John J. Kalec his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary fully to all
intents and purposes as he might or could do in person thereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes or substitute, may lawfully 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 below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
<S> <C> <C>
/s/ James M. Phillips Chairman and Chief Executive Officer March 17, 2000
- -------------------------------
James M. Phillips
/s/ John J. Kalec Vice President and Chief Financial February 25, 2000
- ------------------------------- Officer (Principal Accounting
John J. Kalec Officer)
/s/ Laban P. Jackson, Jr. Director February 24, 2000
- -------------------------------
Laban P. Jackson, Jr.
/s/ Leonard B. McCurdy Director February 28, 2000
- -------------------------------
Leonard B. McCurdy
/s/ John S. Hendricks Director March 2, 2000
- -------------------------------
John S. Hendricks
/s/ Kevin B. McCurdy Director March 1, 2000
- -------------------------------
Kevin B. McCurdy
/s/ John S. Moragne Director February 28, 2000
- -------------------------------
John S. Moragne
/s/ John H. Trezevant Director March 21, 2000
- -------------------------------
John H. Trezevant
/s/ Michael D. Easterly Director February 28, 2000
- -------------------------------
Michael D. Easterly
</TABLE>
7
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EXHIBIT 4.4
AMENDMENT NUMBER 3 TO
EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment Number 3 (the "Amendment") is effective as of February
22, 2000 by and between INTERNET PICTURES CORPORATION, a Delaware Corporation
(the "Company") and JAMES M. PHILLIPS (the "Executive").
WITNESSETH:
WHEREAS, the Company and the Executive entered into an Executive
Employment Agreement dated January 24, 1997, as amended by Amendment No. 1 dated
November 21, 1997 and Amendment No. 2 dated January 20, 1999 (as amended, the
"Employment Agreement");
WHEREAS, the Company and Executive desire to amend the Employment
Agreement;
NOW, THEREFORE, in consideration of the covenants and mutual agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
1. TERM OF EMPLOYMENT. Section 2 of the Employment Agreement is hereby amended
by deleting the date "December 31, 2001" in both places where said date appears
and inserting in such places the date "December 31, 2004".
2. BASE COMPENSATION. Section 4 of the Employment Agreement is hereby amended by
(a) deleting the first word of that Section and adding the phrase "Effective
January 1, 2000 and throughout" in lieu thereof; and (b) deleting the phrase
"Three Hundred Seventy-Five Thousand Dollars ($375,000)," and inserting in its
place "Four Hundred Twenty-Five Thousand Dollars ($425,000)".
3. [RESERVED].
4. ANNUAL BONUS PAYMENT. Section 5 of the Employment Agreement is hereby amended
by deleting the text of the paragraph and adding the following: "Within forty
five (45) days following each fiscal year of the Company covered by the Term
hereof, and in addition to his Base Compensation, the Company shall pay
Executive an annual bonus in an amount equal to one-half of his Base
Compensation (a bonus in the amount of $212,500) in the event his performance
warrants same and/or the Company's business plan goals have been met."
5. STOCK OPTION. Section 6 of the Employment Agreement is hereby amended by
deleting the last two sentences of the section and adding the following Section
6d. at the end of Section 6:
"d. Effective as of February 22, 2000, Executive is granted an
option to purchase One Million (1,000,000) shares of the capital stock
of the Company issued as an Incentive Stock Option, meeting the
requirements of Section 442(b) of the Internal
<PAGE> 2
Revenue Code of 1986 as amended. Executive may exercise this option at
the last quoted per share market price for the capital stock of the
Company as of the close of business on February 22, 2000. This option
shall be vested and exercisable as follows:
i. 100,000 shares as of February 22, 2000;
ii. 250,000 shares on December 31, 2000;
iii. 18,055 shares on the first of each month from
February 1, 2001 for the next 35 months, through December 1,
2003; and
iv. 18,075 shares on January 1, 2004.
The option granted pursuant to this Section 6d. shall be in addition to
all other options granted by the Company to Executive pursuant to this
Employment Agreement or any incentive compensation program or the
Equity Compensation Plan."
6. BENEFITS. Section 7 of the Employment Agreement is hereby amended by
inserting the following language immediately after Section 7e.:
"f. During the Term of Employment, the Company shall:
i. pay for the membership fees, dues and assessments at one
country club in the Knoxville, Tennessee area plus one or more
luncheon or dinner clubs as Executive determines are
appropriate to his carrying out his duties hereunder;
ii. provide Executive with personal financial (including
tax) counseling by a firm to be chosen by Executive from a
list of providers selected by the Company; and
iii. provide Executive with the cost of reasonable and
adequate security for himself and his family during the term
of this Employment Agreement.
g. It is the intention of the Company that Executive shall,
after taking into account any taxes on reimbursements or other benefits
under Sections 6(d), 7, 8 and 10 of this Employment Agreement, be kept
whole with respect to such reimbursement or other benefit. Accordingly,
except to the extent otherwise provided in the preceding sentence, to
the extent the benefits provided in such Sections 6(d), 7, 8 and/or 10
are taxable as income to Executive, the Company shall pay Executive in
connection therewith an amount which, after all taxes incurred by
Executive on such benefits are computed, equals the tax to be paid by
Executive."
h. During the term of this Agreement, the Company shall make
available to the Executive a loan of up to $2,000,000 (the "Line of
Credit"). Executive shall have the
2
<PAGE> 3
right to draw down any amount, up to and including the total amount
available under the Line of Credit, at any time during the term of this
Agreement. Any amounts drawn down by Executive from the Line of Credit
will be bear an interest rate not to exceed the Company's most
favorable borrowing rate at SunTrust or, if it ceases to maintain a
principal banking relationship with SunTrust, at such other financial
institutions where the Company maintains relationships. Any loan under
the Line of Credit will be secured solely by Company stock owned by
Executive or the Stock Options granted pursuant to this Employment
Agreement, and the Company may seek payment from Executive for amounts
due to the Company pursuant to any loan made under the Line of Credit
solely from proceeds of the sale of such Company stock. Proceeds from
the sale of Company stock sold by Executive shall be first applied to
the reduction of any outstanding indebtedness under the Line of Credit.
7. ATTORNEYS FEES. Section 8 of the Employment Agreement is hereby amended by
deleting the last sentence thereof.
8. [RESERVED].
9. TERMINATION.
Section 11a. of the Employment Agreement is hereby amended by inserting
the language "raised in a timely manner by the Board of Directors" after the
word "part" at the conclusion of the second sentence of such Section and by
inserting the following sentence in lieu of the penultimate sentence: "Further,
any termination for Cause must be in writing, approved by a majority of the
members of the Board of Directors of the Company excluding Executive and must
state the bona fide reasons therefor."
Section 11b. of the Employment Agreement is hereby amended by deleting
the text in its entirety and replacing it with the following:
"b. i. In the event (1) Executive terminates his employment by
resigning for Good Reason (as defined herein), (2) the Company elects
to terminate Executive prior to the expiration of the Term or any
renewal term for reasons that do not constitute a termination for
Cause,or (3) if Executive's employment is terminated in connection with
a Change of Control of the Company (as defined in the Company's 1997
Equity Compensation Plan), then Executive is free to obtain other
employment and Executive shall receive the following from the Company,
at the Company's expense:
A) Within one month of the Termination Date (as
defined herein), a lump sum severance payment in the amount of
three million dollars ($3,000,000);
B) The amount and value of his entire plan account
and interest under any investment plan or stock ownership plan
and all employer contributions made or payable to any such
plan for his account prior to the end of the month in which
the Termination Date occurs, shall be deemed vested and
payable to him. Such
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<PAGE> 4
payment or distribution shall be in accordance with written
directions made by Executive;
C) All stock options, stock appreciation rights,
restricted stock and other incentive compensation granted to
Executive by the Company shall become immediately vested; and
D) Executive shall be entitled to continued
participation in all medical, dental, hospitalization and life
insurance coverage and in other employee benefit plans or
programs in which he was participating on the date of the
termination of his employment for a period of 36 months
following the Termination Date; provided that if Executive is
precluded from continuing his participation in any employee
benefit plan or program as provided in this subsection of this
Employment Agreement, he shall be provided with the after-tax
economic equivalent of the benefits provided under the plan or
program in which he is unable to participate for the period
specified in this clause, with the economic equivalent of any
benefit foregone deemed to be the lowest cost that would be
incurred by Executive in obtaining such benefit himself on an
individual basis, and payment of such after-tax economic
equivalent shall be made quarterly in advance.
b. ii. In the event that the termination of Executive's
employment is for one of the reasons set forth in this Section 11b. and
the aggregate of all payments or benefits made or provided to Executive
under Section 11b. and under all other plans and programs of the
Company (the "Aggregate Payment") is determined to constitute a
Parachute Payment, as such term is defined in Section 280G(b)(2) of the
Internal Revenue Code, the Company shall pay to Executive, prior to the
time any excise tax imposed by Section 4999 of the Internal Revenue
Code ("Excise Tax") is payable with respect to such Aggregate Payment,
an additional amount which, after the imposition of all income and
excise taxes thereon, is equal to the Excise Tax on the Aggregate
Payment. The determination of whether the Aggregate Payment constitutes
a Parachute Payment and, if so, the amount to be paid to the Executive
and the time of payment pursuant to this Section 11b. shall be made by
an independent auditor (the "Auditor") jointly selected by the Company
and Executive and paid by the Company. The Auditor shall be a
nationally recognized United States public accounting firm which has
not, during the two years preceding the date of its selection, acted in
any way on behalf of the Company or any Affiliate thereof. If Executive
and the Company cannot agree on the firm to serve as the Auditor, then
Executive and the Company shall each select one accounting firm and
those two firms shall jointly select the accounting firm to serve as
the Auditor.
iii. In the event of any termination of employment under this Section
11, Executive shall be under no obligation to seek other employment and
there shall be no offset against amounts due Executive under this
Employment Agreement on account of any remuneration attributable to any
subsequent employment.
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<PAGE> 5
iv. Any amounts due under this Section 11 are in the nature of
severance payments in amounts considered to be reasonable by the
Company and are not in the nature of a penalty.
v. `Good Reason' shall mean, at any time during the Term of this
Employment Agreement or any renewal or other extension of the Term of
this Employment Agreement, the occurrence of any one of the following
events:
A) The assignment to Executive by the Company of
duties inconsistent with Executive's duties as defined in
Section 3 of this Employment Agreement, any change to the
Executive's title as Chairman and Chief Executive Officer, or
any material change in his duties or responsibilities without
his prior written consent, except in connection with the
termination of the Executive's employment (1) for Cause, (2)
if the Executive becomes Disabled (as defined herein), (3) as
a result of the Executive's death or (4) by the Executive
other than for Good Reason;
B) A reduction by the Company in Executive's Base
Compensation as is defined by this Employment Agreement or as
the same may be increased from time to time during the term of
this Employment Agreement;
C) The failure of the Company to obtain the specific,
written assumption of this Employment Agreement by any
successor or assign of the Company or any person acquiring
substantially all of the Company's assets;
D) Any material breach by the Company of this
Employment Agreement; or
E) The Company relocates its principal place of
business to a location more than 50 miles from Oak Ridge,
Tennessee.
vi. `Termination Date' means the date as of which the Executive's
employment with the Company is terminated by the Company or by the
Executive for any reason which, except in the event of the Executive's
death, shall be specified in a written notice received by either party
from the other."
Section 11c.iii. of the Employment Agreement is hereby amended by
deleting the text in its entirety and replacing it with the following:
"iii. The Executive becomes disabled while employed during the term of
this Employment Agreement. `Disabled' shall mean that the Executive has
a medically determinable physical or mental impairment that renders the
Executive substantially unable to perform all of the Executive's duties
as required under Section 3 of this Employment Agreement for 180 days
out of any 360 day period. The date of the disability is the date
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<PAGE> 6
on which the Executive is certified as having incurred a disability by
a physician mutually acceptable to the Executive (or the Executive's
representative) and the Company."
Section 11 of the Employment Agreement is hereby amended by deleting
the last sentence of Section 11 -- for clarity, the sentence following
subsection 11c. that commences with "In such event ...." -- entirely and
replacing it with the following:
"d. In the event Executive's employment is terminated due to his death,
his estate or his beneficiaries, as the case may be, shall be entitled
to:
i. Base Compensation for a period of 90 days
following the date of death;
ii. the continued right to exercise any
stock option for the remainder of its term, such
option to become fully vested and exercisable at the
date of his death;
iii. any amounts earned, accrued or owing to
Executive but not yet paid under this Employment
Agreement;
iv. have any amount of the note provided for
in Section 7g. of this Employment Agreement that
remains unpaid by Executive or unforgiven by the
Company immediately forgiven;
v. his wife shall be entitled, at the
Company's expense, to continued participation in all
medical, dental, and hospitalization programs in
which he was participating on the date of his death
until his wife reaches the age of 65; and
vi. his wife shall be entitled to receive,
at the Company's expense, in addition to any survivor
benefits otherwise provided, a life annuity equal to
50% of any pension to which Executive would have been
entitled assuming he had retired and had been
receiving retirement payments at the time of his
death based upon his credited service to that date.
e. In the event Executive's employment is terminated due to his
Disability, he shall be entitled in such case to the following (but in
no event less than the benefits due him under the then-current
disability program of the Company):
i. an amount equal to the sum of 60% of Base
Compensation, at the annual rate in effect at
Termination of his employment, for a period ending
with the end of the month in which he becomes 65,
less the amount of any disability benefits provided
to Executive by the Company (other than
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<PAGE> 7
benefits attributable to Executive's own
contributions) under any disability plan;
ii. the continued right to exercise any
stock option for the remainder of its term, such
option to become fully vested and exercisable on the
date of his termination due to Disability;
iii. any amounts earned, accrued or owing to
Executive but not yet paid under this Employment
Agreement;
iv. continued participation, at the
Company's expense, in medical, dental,
hospitalization and life insurance coverage and in
all other employee plans and programs in which he was
participating on the date of termination of his
employment due to Disability until he attains age 65;
and
v. other or additional benefits in
accordance with applicable plans and programs of the
Company."
10. NOTICES AND OTHER COMMUNICATIONS. The addresses for Executive and the
Company, as reflected on the Employment Agreement, shall be changed to reflect
the Company's current address of 1009 Commerce Park Drive, Oak Ridge, TN 37830.
The address to which Executive's counsel shall be sent copies shall be changed
to reflect the following: Shepherd D. Tate, Esq., Tate, Lazarini & Beall, PLC,
50 N. Front Street, Suite 850, Memphis, TN 38103.
11. NO FURTHER CHANGES. All other terms of the Employment Agreement not
otherwise amended hereby shall continue to be in full force and effect.
12. COUNTERPARTS. This Amendment may be executed in counterparts, with each such
counterpart being deemed an original.
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<PAGE> 8
IN WITNESS WHEREOF, the parties have executed the Amendment Number 3 as
of the date first above written.
COMPANY:
INTERNET PICTURES CORPORATION
By: /s/ John J. Kalec
---------------------------------------
Its: Vice President/Chief Executive Officer
--------------------------------------
EXECUTIVE:
/s/ James M. Phillips
-------------------------------------------
JAMES M. PHILLIPS
8
<PAGE> 1
EXHIBIT 4.13
INTERNET PICTURES CORPORATION
NONQUALIFIED STOCK OPTION GRANT
This stock option grant, dated as of February 22, 2000 (the "Date of
Grant"), is delivered by Internet Pictures Corporation (the "Company"), to
Laban P. Jackson, Jr. (the "Grantee").
RECITALS
The Board of Directors of the Company (the "Board") or a committee
appointed by the Board (the "Committee") has decided to make a stock option
grant as an inducement for the Grantee to promote the best interest of the
Company and its stockholders and for the Grantee's participation as a member of
the Board.
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound hereby, agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth in this
Agreement, the Company hereby grants to the Grantee a nonqualified stock option
(the "Option") to purchase 300,000 shares of common stock of the Company
("Shares") at an option price of $30.438 per Share. The Option shall become
vested and exercisable according to Paragraph 2 below.
2. Vesting of Option. The Option shall become vested and exercisable as of
the following vesting dates, so long as the Grantee continues to serve as a
member of the Board, as of the applicable vesting date:
Vesting Date Vested Shares
------------ -------------
February 22, 2000 100,000 shares
February 22, 2001 100,000 shares
March 22, 2001 8,333 shares
April 22, 2001 8,333 shares
May 22, 2001 8,333 shares
June 22, 2001 8,333 shares
July 22, 2001 8,333 shares
August 22, 2001 8,333 shares
September 22, 2001 8,333 shares
October 22, 2001 8,333 shares
November 22, 2001 8,334 shares
December 22, 2001 8,334 shares
January 22, 2002 8,334 shares
February 22, 2002 8,334 shares
<PAGE> 2
3. Term of Option.
A. The Option shall have a term of ten years from the Date of
Grant and shall terminate at the expiration of that period (February
22, 2010), unless it is terminated at an earlier date pursuant to the
provisions of this Agreement.
B. The Option shall automatically terminate upon the happening of the
first of the following events:
1. The expiration of the 90 day period after the Grantee ceases to
serve on the Board, if the termination is for any reason other than
disability (as defined in the Company's Amended and Restated 1997
Equity Compensation Plan (the "Plan"), death or cause (as defined in
the Plan); or
2. The expiration of the one year period after the Grantee ceases
to serve on the Board, on account of the Grantee's disability (as
defined in the Plan) or death.
Notwithstanding the foregoing, in no event may the Option be exercised
after the date that is ten years from the Date of Grant. Any portion
of the Option that is not vested at the time the Grantee ceases to
serve on the Board, shall immediately terminate.
4. Exercise Procedures.
A. Subject to the vesting provision of Paragraph 2 above, the Grantee
may exercise part or all of the vested Option by giving the Committee
written notice of intent to exercise in the manner provided in
Paragraph B below, specifying the number of Shares as to which the
Option is to be exercised. On the delivery date, the Grantee shall pay
the exercise price (i) in cash, (ii) with the approval of the
Committee, by delivering Shares of the Company which shall be valued
at their fair market value on the date of delivery, (iii) by such
other method as the committee may approve, including payment through a
broker in accordance with procedures permitted by Regulation T of the
Federal Reserve Board, or (iv) by any combination of the foregoing.
The Committee may impose from time to time such limitations as it
deems appropriate on the use of Shares of the Company to exercise the
Option.
B. The obligation of the Company to deliver Shares upon exercise of
the Option shall be subject to all applicable laws, rules, and
regulations and such approvals by governmental agencies as may be
deemed appropriate by the Committee, including such actions as Company
counsel shall deem necessary or appropriate to comply with relevant
securities laws and regulations. The Company may require that the
Grantee (or other person exercising the Option after the Grantee's
death) represent that the Grantee is purchasing Shares for the
Grantee's own account and not with a view to use for sale in
connection with any distribution of the Shares, or such other
representation as the Committee deems appropriate. All obligations of
the Company under this Agreement shall be subject to the rights of the
Company as set forth in the Plan to withhold amounts required to be
withheld for any taxes, if applicable.
2
<PAGE> 3
1. Change of Control. The provisions of the Plan applicable to a
Change of Control shall apply to the Option, and, in the event of a
Change of Control, the Committee may take such actions as it deems
appropriate pursuant to the Plan.
2. Stockholder's Agreement. As a condition of receiving this
Option, the Grantee hereby agrees that, if requested by the Company,
the Grantee (or other person exercising the Option after the Grantee's
death) will execute a stockholder's agreement, on such terms as may be
approved by the Company, with respect to all shares issued upon the
exercise of the Option.
3. Restrictions on Exercise. Only the Grantee may exercise the
Option during the Grantee's lifetime. After the Grantee's death, the
Option shall be exercisable (subject to the limitations specified in
the Plan) solely by the legal representatives of the Grantee, or by
the person who acquires the right to exercise the Option by will or by
the laws of descent and distribution, to the extent that the Option is
exercisable pursuant to this Agreement.
4. Grant Subject to Plan Provisions. This grant is not made
pursuant to the Plan, however the terms of the Plan are incorporated
herein by reference. The Committee shall have the authority to
interpret and construe the Option pursuant to the terms of the Plan,
and its decisions shall be conclusive as to any questions arising
hereunder.
5. No Employment Rights. The grant of the Option shall not confer
upon the Grantee any right to be retained by or in the employ of the
Company and shall not interfere in any way with the right of the
Company to terminate the Grantee's service at any time. The right of
the Company to terminate at will the Grantee's service at any time for
any reason is specifically reserved.
6. No Stockholder Rights. Neither the Grantee, nor any person
entitled to exercise the Grantee's rights in the event of the
Grantee's death, shall have any of the rights and privileges of a
stockholder with respect to the Shares subject to the Option, until
certificates for Shares have been issued upon the exercise of the
Option.
7. Assignment and Transfers. The rights and interests of the
Grantee under this Agreement may not be sold, assigned, encumbered or
otherwise transferred except, in the event of the death of the
Grantee, by will or by the laws of descent and distribution. In the
event of any attempt by the Grantee to alienate, assign, pledge,
hypothecate, or otherwise dispose of the Option or any right
hereunder, except as provided for in this Agreement, or in the event
of the levy or any attachment, execution or similar process upon the
rights or interests hereby conferred, the Company may terminate the
Option by notice to the Grantee, and the Option and all rights
hereunder shall thereupon become null and void. The rights and
protections of the Company hereunder shall extend to any successors or
assigns of the Company and to the Company's parents, subsidiaries and
affiliates. This Agreement may be assigned by the Company without the
Grantee's consent. Notwithstanding the foregoing, if the Grantee
serves as the representative or
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<PAGE> 4
designee of a stockholder of the Company which has the right, either
pursuant to contract or the Company's Certificate of Incorporation, to
specifically designate or elect a director, then the Grantee may
assign his rights and interests under this Agreement to such
stockholder.
8. Applicable Law. The validity, construction, interpretation and
effect of this instrument shall be governed by and determined in
accordance with the laws of the State of Delaware.
9. Notice. Any notice to the Company provided for in this
Instrument shall be addressed to the Company in care of the President
at 1009 Commerce Park Drive, Oak Ridge, Tennessee 37830, and any
notice to the Grantee shall be addressed to such address as the
Grantee may designate to the Company in writing. Any notice shall be
delivered by hand, sent by telecopy or enclosed in a properly sealed
envelope addressed as stated above, registered and deposited, postage
prepaid, in a post office regularly maintained by the United States
Postal Service.
IN WITNESS WHEREOF, the Company has caused its duly authorized
officers to execute and attest this Agreement, and the Grantee has executed
this Agreement, effective as of the Date of Grant.
INTERNET PICTURES CORPORATION
By: /s/ James M. Phillips
Accepted: /s/ Laban P. Jackson, Jr.
4
<PAGE> 1
EXHIBIT 5
Opinion And Consent of Baker, Donelson, Bearman & Caldwell
Exhibit 5-1
<PAGE> 2
March 27, 2000
Internet Pictures Corporation
1009 Commerce Park Drive
Oak Ridge, Tennessee 37830
Gentlemen:
We have acted as securities counsel for Internet Pictures Corporation,
a Delaware corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement"), pursuant to
the Securities Act of 1933, as amended, relating to the plans and stock option
agreements listed on the Exhibit A attached (collectively, the "Option
Documents"). This opinion is being furnished in response to Item 601 of
Regulation S-K and the instructions to Form S-8.
We are familiar with the proceedings to date with respect to the
proposed offering and have examined such records, documents and matters of law
and satisfied ourselves as to such matters of fact as we have considered
relevant for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the State of Delaware.
2. The Option Documents have been duly and validly authorized and
adopted, and the shares of common stock of the Company (the "Shares") that may
be issued and sold from time to time in accordance with the Option Documents
have been duly authorized for issuance and will, when issued, sold and paid for
in accordance with the Option Documents, be validly issued, fully paid and
non-assessable.
The foregoing opinion is limited to the federal laws of the United
States and the corporate laws of the State of Delaware, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, we have relied to the extent we
deem such reliance appropriate as to certain matters on statements,
representations and other information obtained from public officials, officers
of the Company and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
BAKER, DONELSON, BEARMAN & CALDWELL,
a Professional Corporation
Exhibit 5-2
<PAGE> 3
EXHIBIT A
Interactive Pictures Corporation Amended and Restated 1997 Equity Compensation
Plan
Bamboo.com, Inc. Amended and Restated 1998 Employee, Director and Consultant
Plan
Bamboo.com, Inc. 1999 Employee Stock Purchase Plan
Executive Employment Agreement entered into by and between the Registrant and
James M. Phillips
Stock Option Agreements entered into by and between the Registrant and John M.
Murphy, Christopher M. King, Michael J. Sher, Michael J. Tourville, Edmond B.
Lewis, H. Craig Grantham, Laban P. Jackson, III, Douglas E. Snyder and Laban P.
Jackson, Jr.
Exhibit 5-3
<PAGE> 1
EXHIBIT 23.2
Consent of PricewaterhouseCoopers LLP
Exhibit 23.2-2
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Internet Pictures Corporation of our
report dated March 12, 1999, except for Note 14, which is as of July 19, 1999
relating to the consolidated financial statements of bamboo.com, Inc. which
appear in the Registration Statement (No. 333-80639) and our report dated
January 31, 2000, except for Note 12 which is as of March 6, 2000 relating to
the consolidated financial statements and the supplemental consolidated pooled
financial statements of Internet Pictures Corporation (formerly bamboo.com),
which appear in the Registration Statement (No. 333-32680) on Form S-1. We also
consent to the references to us under the headings "Experts" and "Selected
Historical Financial Information" in the Registration Statement (No. 333-32680)
on Form S-1 of Internet Pictures Corporation.
/s/ PricewaterhouseCoopers LLP
- ---------------------------------
PricewaterhouseCoopers LLP
San Jose, California
March 26, 2000
Exhibit 23.2-3
<PAGE> 1
EXHIBIT 23.3
Consent of PricewaterhouseCoopers LLP
Exhibit 23.3-1
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Internet Pictures Corporation, of our report dated
January 29, 1999, except as to Notes 5 and 6 for which the date is April 12,
1999 and as to Note 13 for which the date is July 2, 1999, relating to the
consolidated financial statements which appears in the Interactive Pictures
Corporation Registration Statement on Form S-1 (No. 333-78983).
/s/ PricewaterhouseCoopers LLP
- ---------------------------------
PricewaterhouseCoopers LLP
Knoxville, Tennessee
March 24, 2000
Exhibit 23.3-2
<PAGE> 1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Internet Pictures Corporation of our
report dated January 25, 2000, except for Note 16 which is as of March 6, 2000
relating to the financial statements of PictureWorks Technology, Inc., which
appear in the Registration Statement (No. 333-32680) on Form S-1. We also
consent to the references to us under the headings "Experts" in the Registration
Statement (No. 333-32680) on Form S-1 of Internet Pictures Corporation.
/s/ PricewaterhouseCoopers LLP
- ---------------------------------
PricewaterhouseCoopers LLP
San Jose, California
March 26, 2000
Exhibit 23.4-2
