As filed with the Securities and Exchange Commission on May 28, 1999
Registration No. 333-
==============================================================================
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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theglobe.com, inc.
(Exact name of registrant as specified in its charter)
Delaware 14-1781422
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
31 West 21st Street
New York, New York 10010
(Address of registrant's
principal executive offices)
theglobe.com, inc. 1998 STOCK OPTION PLAN
ATTITUDE NETWORK LTD. 1996 STOCK OPTION PLAN
(Full title of the plans)
CERTAIN SHARES WHICH MAY BE ISSUED TO KIM BROWN, DAVID C. RAE
AND DAVID STANWORTH PURSUANT TO STOCK OPTION AGREEMENTS DATED APRIL 15, 1999
Todd V. Krizelman
Stephan J. Paternot
theglobe.com, inc.
31 West 21st Street
New York, New York 10010
(212) 886-0800
(Name, address, and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered (1) be Offering Aggregate Registration
Registered Price Per Offering Fee
(2) Share Price
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 120,000 $33.8125 (3) $905,605.50 (3) $ 267.15
$.001 per share shares
- --------------------------------------------------------------------------------------------
Common Stock, par value 84,760 $10.68435 (5) $ 4,057.500 (5) $1,196.96
$.001 per share shares (4)
============================================================================================
Total Registration fee $1,464.11
============================================================================================
<FN>
(1) The Registrant's common stock, par value $.001 per share (the "Common
Stock"), referred to herein includes Preferred Stock Purchase Rights
(the "Rights"). The Rights will be associated and trade with the
Common Stock. The value, if any, of the Rights will be reflected in
the market price of the Common Stock.
(2) Plus such additional number of shares as may be required in the event
of a stock dividend, stock split, recapitalization or other similar
event in accordance with Rule 416 of the Securities Act of 1933, as
amended (the "Securities Act").
(3) Pursuant to Rule 457(h) of the Securities Act, the amounts are
calculated based upon the maximum price at which stock options
covering the registered shares of Common Stock may be exercised.
(4) Represents the number of shares of Common Stock, adjusted for the 2
for 1 stock split of the Registrant, reserved for issuance as a result
of the conversion of options to purchase stock of Attitude Network
Ltd. into options to purchase Common Stock pursuant to an Agreement
and Plan of Merger, dated as of April 5, 1999, between theglobe.com,
inc., Attitude Network Ltd. and certain shareholders thereof and Bucky
Acquisition Corp.
(5) Pursuant to Rule 457(h) of the Securities Act, the amounts are
calculated based upon the weighted average exercise price at which
stock options, as converted, covering the registered shares of Common
Stock may be exercised.
</FN>
</TABLE>
<PAGE>
PART I
EXPLANATORY NOTE
This Form S-8 Registration Statement relates to
(a) 120,000 shares of Common Stock, 50,000 of which may be issued to
David C. Rae, 40,000 of which may be issued to David Stanworth
and 30,000 of which may be issued to Kim Brown, in each case,
upon the exercise of nonqualified stock options granted to each
of them on April 15, 1999, and
(b) 84,760 shares of Common Stock which may be issued upon the
exercise of options granted under the Attitude Network Ltd. 1996
Stock Option Plan (the "Attitude Stock Plan").
Pursuant to the Agreement and Plan of Merger by and among
theglobe.com, inc. ("theglobe"), Attitude Network Ltd. ("Attitude") and
certain shareholders thereof and Bucky Acquisition Corp., the following
events among others, occurred:
(a) Attitude was acquired by, and became a wholly-owned subsidiary
of, theglobe;
(b) outstanding options to purchase shares of Attitude common stock
granted under the Attitude Stock Plan were converted into options
to purchase shares of Common Stock; and
(c) theglobe assumed the obligations of Attitude under the Attitude
Stock Plan.
In addition, in connection with our acquisition of Attitude, we
granted each of Messrs. Rae, Stanworth and Brown nonqualified stock options
to acquire 50,000, 40,000 and 30,000 shares of Common Stock, respectively.
The documents containing information specified by Part I of this
Registration Statement have been or will be sent or given to participants
in the Option Plan, holders of options granted under the Attitude Stock
Plan, and to Messrs. Rae, Stanworth and Brown as specified in Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the "SEC")
under the Securities Act. Such document(s) are not required to be filed
with the SEC but constitute (along with the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II
hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
References to "the Company" shall mean theglobe.com, inc., a Delaware
corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the
public from the SEC's web site at http://www.sec.gov. Reports, proxy and
information statements and other information concerning us can also be
inspected at the offices of the Nasdaq National Market System.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, (the "Exchange Act")
prior to the termination of the offering:
(a) Our Registration Statement on Form S-1, filed with the SEC on
November 12, 1998, in which there are described the terms of the
Common Stock;
(b) Our Registration Statement on Form S-1 filed with the SEC
pursuant to Rule 424(b) on May 19, 1999;
(c) Our Annual Report on Form 10-K, filed with the SEC on March 30,
1999 for the fiscal year ended December 31, 1998 as amended on
Form 10-K/A filed with the SEC on April 30, 1999;
(d) Our Quarterly Report on Form 10-Q, filed with the SEC on May 14,
1999 for the quarterly period ended March 31, 1999; and
(e) Our Current Reports on Form 8-K filed with the SEC on February
16, 1999, February 19, 1999, April 23, 1999 and May 3, 1999, and
on Form 8-K/A filed with the SEC on April 1, 1999.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors, officers, employees and other
individuals against expenses, judgments, fines, and amounts paid in
settlement in connection with specified non-derivative actions, suits,
proceedings or investigations if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of
the corporation. In addition, with respect to any criminal action or
proceeding such director must have had no reasonable cause to believe that
his or her conduct was unlawful. In the case of derivative actions, a
similar standard is applicable except that indemnification only extends to
expenses incurred in connection with the defense or settlement of such
action. In addition, the statute requires court approval before there can
be any indemnification where the person seeking indemnification has been
found liable to the corporation. The DGCL provides that it is not exclusive
of other indemnification that may be granted by a corporation's charter,
by-laws, stockholder or director vote, agreement, or otherwise.
Our By-Laws require us to indemnify any person who was or is a party
or is threatened to be made a party to or is involved in any threatened,
pending or completed non-derivative action, suit, arbitration, alternative
dispute mechanism, investigation, administrative hearing or any other
proceeding, brought by reason of the fact that he or she is or was our
director or officer, or, while our director or officer is or was serving at
our request as a director or officer of another entity, including service
with respect to an employee benefits plan, against expenses, including
attorneys' fees, judgments, fines, excise taxes under ERISA, penalties and
amounts paid in settlement, incurred by him or her in connection with such
action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to our best
interests. In addition, with respect to any criminal action or proceeding
such person shall have had no reasonable cause to believe his or her
conduct was unlawful.
Section 102(b)(7) of the DGCL permits a corporation to provide that a
director shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability for (i) any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) payment of unlawful dividends or unlawful stock
purchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
Our Charter provides that to the fullest extent that the DGCL permits
our directors will not be liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director. Any amendment to or
repeal of our Charter inconsistent with these provisions will not adversely
affect any right of our directors with respect to any acts or omissions
occurring prior to such amendment or repeal.
We have entered into indemnification agreements with our directors and
officers. These agreements provide that we will indemnify such directors
and officers for any amounts paid in settlement or incurred by, or assessed
against, such directors and officers arising in connection with the service
of such directors and officers to the fullest extent permitted by Delaware
law.
We maintain directors' and officers' liability insurance. This
insurance provides for payment, on behalf of our and our subsidiaries'
directors and officers, of certain losses of such persons arising from
claims, including claims arising under the Securities Act, for acts or
omissions by such persons while acting as directors or officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Form of Fourth Amended and Restated Certificate of
Incorporation of the Company previously filed as
Exhibit 3.1 to the Company's Registration Statement
No. 333-59751 on Form S-1, and incorporated herein
by reference
4.2 Form of By-Laws of the Company previously filed as
Exhibit 3.2 to the Company's Registration Statement
No. 333-59751 on Form S-1, and incorporated herein
by reference
4.3 Form of Rights Agreement by and between the Company
and American Stock Transfer & Trust Company as
Rights Agent previously filed as Exhibit 4.6 to the
Company's Registration Statement No. 333-59751 on
Form S-1, and incorporated herein by reference
4.4 Agreement and Plan of Merger, dated as of April 5,
1999, by and among the Company, Bucky Acquisition
Corp., Attitude Network Ltd. and certain
shareholders thereof previously filed as Exhibit
2.1 to the Company's Current Report on Form 8-K
filed with the SEC on April 23, 1999, and
incorporated herein by reference
4.5 theglobe.com, inc. 1998 Stock Option Plan, as
amended and restated, included as Exhibit A to the
Company's Definitive Proxy Statement, filed on May
14, 1999, and incorporated herein by reference
4.6* Attitude Network Ltd. 1996 Stock Option Plan
4.7* Form of Nonqualified Stock Option Agreement with
David C. Rae, Kim Brown and David Stanworth
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.2* Consent of KPMG LLP (independent public
accountants)
23.3* Consent of PricewaterhouseCoopers LLP (independent
public accountants)
- ------------------------
* Filed herewith.
Item 9. Undertakings
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the SEC by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) 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.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described in Item 6 of
this Registration Statement, or otherwise, the Company has been advised
that in the opinion of the SEC 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 Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on
May 28, 1999.
theglobe.com, inc.
/s/ Todd V. Krizelman
------------------------------
By: Todd V. Krizelman
Co-Chief Executive Officer
and Co-President
/s/ Stephan J. Paternot
------------------------------
By: Stephan J. Paternot
Co-Chief Executive Officer,
Co-President and Secretary
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of theglobe.com, inc., a
Delaware corporation, do hereby constitute and appoint Michael S. Egan,
Todd V. Krizelman and Stephan J. Paternot, and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and
all acts and things and to execute any and all instruments which said
attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the
Securities Act and any rules or regulations or requirements of the SEC in
connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include
the power and authority to sign the names of the undersigned officers and
directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments
or documents filed as part of or in conjunction with this Registration
Statement or amendments or supplements thereof, and each of the undersigned
hereby ratifies and confirms that all said attorneys and agents, or any one
of them, shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the dates indicated.
Signature Title Date
- --------- ----- ----
Chairman May ___, 1999
- ---------------------------
Michael S. Egan
/s/ Todd V. Krizelman Co-Chief Executive Officer, May 28, 1999
- --------------------------- Co-President and Director
Todd V. Krizelman
/s/ Stephan J. Paternot Co-Chief Executive May 28, 1999
- --------------------------- Officer, Co-President,
Stephan J. Paternot Secretary and Director
/s/ Francis T. Joyce Vice President and Chief May 28, 1999
- --------------------------- Financial Officer
Francis T. Joyce (Principal Accounting
Officer)
/s/ Edward A. Cespedes Director May 28, 1999
- ---------------------------
Edward A. Cespedes
/s/ Rosalie V. Arthur Director May 28, 1999
- ---------------------------
Rosalie V. Arthur
Director May ___, 1999
- ---------------------------
Robert M. Halperin
/s/ David H. Horowitz Director May 27, 1999
- ---------------------------
David H. Horowitz
/s/ H. Wayne Huizenga Director May 27, 1999
- ---------------------------
H. Wayne Huizenga
Director May ___, 1999
- ---------------------------
Henry C. Duques
<PAGE>
Index to Exhibits
Exhibit No. Description of Exhibit
4.1 Form of Fourth Amended and Restated Certificate of
Incorporation of the Company previously filed as Exhibit 3.1
to the Company's Registration Statement No. 333-59751 on
Form S-1, and incorporated herein by reference
4.2 Form of By-Laws of the Company previously filed as Exhibit
3.2 to the Company's Registration Statement No. 333-59751 on
Form S-1, and incorporated herein by reference
4.3 Form of Rights Agreement by and between the Company and
American Stock Transfer & Trust Company as Rights Agent
previously filed as Exhibit 4.6 to the Company's
Registration Statement No. 333-59751 on Form S-1, and
incorporated herein by reference
4.4 Agreement and Plan of Merger, dated as of April 5, 1999, by
and among the Company, Bucky Acquisition Corp., Attitude
Network Ltd. and certain shareholders thereof previously
filed as Exhibit 2.1 to the Company's Current Report on Form
8-K filed with the SEC on April 23, 1999, and incorporated
herein by reference
4.5 theglobe.com, inc. 1998 Stock Option Plan, as amended and
restated, included as Exhibit A to the Company's Definitive
Proxy Statement, filed on May 14, 1999, and incorporated
herein by reference
4.6* Attitude Network Ltd. 1996 Stock Option Plan
4.7* Form of Nonqualified Stock Option Agreement with David C.
Rae, Kim Brown and David Stanworth
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.2* Consent of KPMG LLP (independent public accountants)
23.3* Consent of PricewaterhouseCoopers LLP (independent public
accountants)
- ------------------------
* Filed herewith.
EXHIBIT 4.6
ATTITUDE NETWORK LTD.
1996 STOCK OPTION PLAN
EFFECTIVE AS OF JULY 1, 1996
1. PURPOSE
The purpose of the Attitude Network Ltd. 1996 Stock Option Plan (the
"Plan") is to encourage and enable eligible directors, officers and key
employees of Attitude Network Ltd. (the "Company") and its subsidiaries to
acquire proprietary interests in the Company through the ownership of
Common Stock of the Company. The Company believes that directors, officers
and key employees who participate in the Plan will have a closer
identification with the Company by virtue of their ability as shareholders
to participate in the Company's growth and earnings. The Plan also is
designed to provide motivation for participating directors, officers and
key employees to remain in the employ of and to give greater effort on
behalf of the Company. It is the intention of the Company that the Plan
provide for the award of "incentive stock options," as defined in Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations promulgated thereunder, as well as the award of nonqualified
stock options. Accordingly, the provisions of the Plan related to incentive
stock options shall be construed so as to extend and limit participation in
a manner consistent with the requirements of Section 422 of the Code.
2. DEFINITIONS
The following words or terms shall have the following meanings:
(a) "Agreement" shall mean a stock option agreement between the
Company and an Eligible Employee or Eligible Participant pursuant to the
terms of this Plan.
(b) "Board of Directors" shall mean the Board of Directors of the
Company or the Executive Committee of such Board.
(c) "Committee" shall mean the committee appointed by the Board of
Directors to administer the Plan.
(d) "Company" shall mean Attitude Network Ltd., a Delaware
corporation.
(e) "Eligible Employee(s)" shall mean key employees regularly employed
by the Company or a Subsidiary (including officers, whether or not they are
directors) as the Board of Directors or the Committee shall select from
time to time.
(f) "Eligible Participant(s)" shall mean directors, officers, key
employees of the Company and its Subsidiaries, consultants and other
persons who are not otherwise eligible to receive incentive stock options
pursuant to Section 8 of the Plan.
(g) "Market Price" shall mean the fair market value of the Company's
Common Stock as determined by the Board of Directors or the Committee,
acting in good faith, under any method consistent with the Code, or
Treasury Regulations thereunder, as the Board of Directors or the Committee
shall in its discretion select and apply at the time of the grant of the
option concerned. Subject to the foregoing, the Board of Directors or the
Committee, in fixing the market price, shall have full authority and
discretion and be fully protected in doing so.
(h) "Optionee" shall mean an Eligible Employee or Eligible Participant
having a right to purchase Common Stock under an Agreement.
(i) "Option(s)" shall mean the right or rights granted to Eligible
Employees or Eligible Participants to purchase Common Stock under the Plan.
(j) "Permanent and Total Disability" as used in this Plan shall be as
defined in Section 22(c)(3) of the Code.
(k) "Plan" shall mean this Attitude Network Ltd. 1996 Stock Option
Plan.
(l) "Shares" or "Common Stock" shall mean shares of the $.01 par value
common stock of the Company.
(m) "Subsidiary" shall mean any corporation, if the Company owns or
controls, directly or indirectly, more than a majority of the voting stock
of such corporation.
(n) "Ten Percent Owner" shall mean an individual who, at the time an
Option is granted, owns directly or indirectly more than ten percent (10%)
of the total combined voting power of all classes of stock of the Company
or a Subsidiary.
3. EFFECTIVE DATE
The effective date of the Plan (the "Effective Date") shall be the
date the Plan is adopted by the Board of Directors or the date the Plan is
approved by the shareholders of the Company, whichever is earlier. The Plan
must be approved by the affirmative vote of shareholders with a majority of
the total combined voting power of all classes of the Company's outstanding
stock within twelve (12) months after the date the Plan is adopted by the
Board of Directors. Such shareholder vote shall not alter the Effective
Date of the Plan. In the event shareholder approval of the adoption of the
Plan is not obtained within such twelve (12) month period, then any Options
granted in the intervening period shall be void.
4. SHARES RESERVED FOR PLAN
The Shares to be sold to Eligible Employees and Eligible Participants
under the Plan may at the election of the Board of Directors be either
treasury shares or Shares originally issued for such purpose. The maximum
number of Shares which shall be reserved and made available for sale under
the Plan shall be 120,000, subject to the adjustments provided in Section
8(h). Any Shares subject to an Option which for any reason expires or is
terminated unexercised may again be subject to an Option under the Plan.
5. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Board of Directors if each
member is a disinterested person (as defined herein), or the Committee. The
Committee shall be comprised of not less than two (2) members appointed by
the Board of Directors of the Company from among its members. No member of
the Board of Directors shall be appointed or serve as a member of the
Committee, and any such appointment or service immediately and
automatically shall terminate, in the event that such person is not a
disinterested person. As used herein, the term "disinterested person" means
a director who is not, during the one year prior to service as an
administrator of the Plan, or during such service, granted or awarded
equity securities pursuant to the Plan or any other plan of the Company or
any of its affiliates (as such term is defined in the General Rules and
Regulations of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), except for such grants or awards which would not
disqualify the director as a "disinterested person" under Rule 16b-3 under
the Exchange Act.
Within the limitations described herein, the Board of Directors or the
Committee shall administer the Plan, select the Eligible Employees and
Eligible Participants to whom Options will be granted, determine the number
of Shares subject to any such Options and interpret, construe and implement
the provisions of the Plan. The Board of Directors or the Committee shall
also determine the price to be paid for the Shares upon exercise of each
Option, the period within which each Option may be exercised, and the terms
and conditions of each Option. The Board of Directors and Committee members
shall be reimbursed for out-of-pocket expenses reasonably incurred in the
administration of the Plan.
If the Plan is administered by the Board of Directors, a majority of
the members of the Board of Directors shall constitute a quorum, and the
act of a majority of the members of the Board of Directors present at any
meeting at which a quorum is present, or acts approved in writing by all
members of the Board of Directors, shall be the acts of the Board of
Directors. If the Plan is administered by the Committee, a majority of the
members of the Committee shall constitute a quorum, and the acts of a
majority of the members present at any meeting at which a quorum is
present, or acts approved in writing by all of the members of the
Committee, shall be the acts of the Committee.
6. ELIGIBILITY
Options granted pursuant to Section 8 shall be granted only to
Eligible Employees. Options granted pursuant to Section 9 may be granted to
Eligible Employees and to Eligible Participants.
7. DURATION OF THE PLAN
The Plan shall remain in effect until all Shares subject to or which
may become subject to the Plan shall have been purchased pursuant to
Options granted under the Plan. Options under the Plan must be granted
within ten (10) years from the Effective Date. The Plan shall expire on the
tenth anniversary of the Effective Date.
8. INCENTIVE STOCK OPTIONS
It is intended that Options granted under this Section 8 shall be
incentive stock options under the provisions of Section 422 of the Code and
the regulations thereunder or corresponding provisions of subsequent laws
and regulations in effect at the time such Options are granted. Such
Options shall be evidenced by Agreements in such form as the Board of
Directors or the Committee shall approve from time to time, which
Agreements shall be consistent with the following terms and conditions:
(a) Price. The purchase price for Shares purchased upon exercise will
be equal to 100% of the Market Price on the day the Option is granted, as
determined by the Board of Directors or the Committee; provided that the
purchase price of Shares deliverable upon the exercise of an incentive
stock option granted to a Ten Percent Owner shall be not less than one
hundred ten percent (110%) of the Market Price on the day the Option is
granted, as determined by the Board of Directors or the Committee, but in
no case less than the par value of such Shares.
(b) Number of Shares. The Agreement shall specify the number of Shares
which the Optionee may purchase under such Option.
(c) Exercise of Options. The Shares subject to the Option may be
purchased in whole or in part by the Optionee in accordance with the terms
of the Agreement, from time to time after shareholder approval of the Plan,
but no Option shall be exercisable after ten (10) years from the date of
grant of the Option, and Shares subject to an Option granted to a Ten
Percent Owner shall not be exercisable after five (5) years from the date
of grant of the Option.
(d) Medium and Time of Payment. Stock purchased pursuant to an
Agreement shall be paid for in full at the time of purchase. Payment of the
purchase price shall be in cash or Shares, or a combination of cash and
Shares, in the discretion of, and as authorized by, the Board of Directors
or the Committee. Upon receipt of payment, the Company shall, without
transfer or issue tax, deliver to the Optionee (or other person entitled to
exercise the Option) a certificate or certificates for such Shares.
(e) Rights as a Shareholder. An Optionee shall have no rights as a
shareholder with respect to any Shares covered by an Option until the date
of issuance of the stock certificate to the Optionee for such Shares.
Except as otherwise expressly provided in the Plan, no adjustments shall be
made for dividends (ordinary or extraordinary, whether in cash, securities
or other property) or distributions or other rights for which the record
date is prior to the date such stock certificate is issued.
(f) Nonassignability of Option. No option shall be assignable or
transferable by the Optionee except by will or by the laws of descent and
distribution. During the lifetime of the Optionee, the Option shall be
exercisable only by him or her.
(g) Effect of Termination of Employment.
(1) In the event that an Optionee during his or her lifetime
ceases to be an employee of the Company or of any Subsidiary of the
Company for any reason other than death or Permanent and Total
Disability, any Option or portion thereof which was otherwise
exercisable on the date of termination of employment shall expire
unless exercised within a period of three (3) months from the date on
which the Optionee ceased to be an employee, but in no event after the
term provided in the Optionee's Agreement. Any Option which is not
then exercisable shall terminate and be null and void. Whether
authorized leave of absence for military or government service shall
constitute termination of employment for the purpose of this Plan
shall be determined by the Board of Directors or the Committee, which
determination shall be final and conclusive.
(2) In the event that an Optionee ceases to be an employee of the
Company or any Subsidiary of the Company by reason of death or
Permanent and Total Disability, any Option or portion thereof which
was otherwise exercisable on the date such Optionee ceased employment
shall expire unless exercised within a period of one (1) year from the
date on which the Optionee ceased to be an employee, but in no event
after the term provided in the Optionee's Agreement. Any Option which
is not then exercisable shall terminate and be null and void.
(3) In the event of the death of an Optionee, the Option shall be
exercisable by his or her personal representatives, heirs or legatees,
as provided herein.
(h) Recapitalization. In the event that dividends are payable in
Common Stock of the Company or in the event there are splits, subdivisions
or combinations of Shares, the number of Shares available under the Plan
shall be increased or decreased proportionately, as the case may be, and
the number and Option exercise price of Shares deliverable upon the
exercise thereafter of any Option theretofore granted shall be increased or
decreased proportionately, as the case may be, as determined to be proper
and appropriate by the Board of Directors or the Committee.
(i) Reorganization.
(1) In case the Company is merged or consolidated with another
corporation and the Company is not the surviving corporation, or in
case the property or stock of the Company is acquired by another
corporation, or in case of a separation, reorganization,
recapitalization or liquidation of the Company, the Board of Directors
of the Company, or the Board of Directors of any corporation assuming
the obligations of the Company hereunder shall either (i) make
appropriate provision for the protection of any outstanding Options by
the substitution on an equitable basis of appropriate stock of the
Company, or of the merged, consolidated or otherwise reorganized
corporation which will be issuable in respect to the Shares; provided
that the excess of the aggregate fair market value of the Shares
subject to option immediately after such substitution over the
purchase price thereof is not more than the excess of the aggregate
fair market value of the Shares subject to option immediately before
such substitution over the purchase price thereof, or (ii) upon
written notice to the Optionee provide that the Option (including, in
the discretion of the Board of Directors, any portion of such Option
which is not then exercisable) must be exercised within sixty (60)
days of the date of such notice or it will be terminated. If any
adjustment under this Section 8(i) would create a fractional Share or
a right to acquire a fractional Share, the number of Shares available
under the Plan and the number of Shares covered under any Options
previously granted pursuant to the Plan shall be the next lower number
of Shares, rounding all fractions downward.
(2) Except as otherwise expressly provided in this Plan, (i) the
Optionee shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, or the payment of any
stock dividend or any other increase or decrease in the number of
shares of stock of any class, or by reason of any dissolution,
liquidation, merger, or consolidation or spin-off of assets or stock
of another corporation; and (ii) no issue by the Company of shares of
stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of Shares subject to an
Option.
(3) The grant of an Option pursuant to the Plan shall not affect
in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or
business structure or to merge or to consolidate or to dissolve,
liquidate or sell, or transfer all or any part of its business or
assets.
(j) Annual Limitation. The aggregate fair market value (determined at
the time the Option is granted) of the Shares with respect to which
incentive stock options are exercisable for the first time by an Optionee
during any calendar year (under all incentive stock option plans of the
Company) shall not exceed $100,000. Any excess over such amount shall be
deemed to be related to and part of a nonqualified stock option granted
pursuant to Section 9.
(k) General Restriction. Each Option shall be subject to the
requirement that if at any time the Board of Directors shall determine, in
its discretion, that the listing, registration or qualification of the
Shares subject to such Option upon any securities exchange or under any
state or federal law, or the consent or approval of any government
regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such Option or the issue or purchase of
Shares thereunder, such Option may not be exercised in whole or in part
unless such listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions not acceptable to the
Board of Directors. Alternatively, such Options shall be issued and
exercisable only upon such terms and conditions and with such restrictions
as shall be necessary or appropriate to effect exemption from such listing,
registration, or other qualification requirement.
9. NONQUALIFIED OPTIONS
The Board of Directors or the Committee may grant to Eligible
Employees or Eligible Participants Options under the Plan which are not
incentive stock options under the provisions of Section 422 of the Code.
Such nonqualified options shall be evidenced by Agreements in such form as
the Board of Directors or the Committee shall approve from time to time,
which Agreements shall be consistent with the terms and conditions as set
forth in Section 8 hereof with respect to incentive stock options;
provided, however, that (1) the limitations set forth in Sections 8(a) and
8(c) with respect to Ten Percent Owners shall not be applicable to
nonqualified options granted to any Ten Percent Owner, (2) the annual
limitation set forth in Section 8(j) shall not be applicable to
nonqualified option grants, and (3) nonqualified options may be granted at
a purchase price equal to not less than the par value of the Shares subject
to the Option.
10. AMENDMENT OF THE PLAN
The Plan may at any time or from time to time be terminated, modified
or amended by the affirmative vote of shareholders with a majority of the
total combined voting power of all classes of the Company's outstanding
stock. The Board of Directors may at any time and from time to time modify
or amend the Plan in any respect, except that without shareholder approval
the Board of Directors may not (1) increase the maximum number of Shares
for which Options may be granted under the Plan (other than increases due
to changes in capitalization as referred to in Section 8(h) hereof), or (2)
reduce the option exercise price or waiting period (except as otherwise
expressly provided in Sections 8(h) and 8(i) hereof), or (3) extend the
maximum period during which Options may be granted or exercised, or (4)
change the class of persons eligible for Options under Section 6 hereof, or
(5) otherwise materially modify (within the meaning of Rule l6b-3 of the
Exchange Act) the requirements as to eligibility for participation in the
Plan, or (6) otherwise materially increase (within the meaning of Rule
16b-3 of the Exchange Act) the benefits accruing to participants under the
Plan. The termination or any modification or amendment of the Plan shall
not, without the written consent of an Optionee, affect his or her rights
under an Option or right previously granted to him or her. With the written
consent of the Optionee affected, the Board of Directors or the Committee
may amend outstanding Agreements in a manner not inconsistent with the
Plan. Without employee consent, the Board of Directors may at any time and
from time to time modify or amend outstanding Agreements in such respects
as it shall deem necessary in order that incentive stock options granted
hereunder shall comply with the appropriate provisions of the Code and
regulations thereunder which are in effect from time to time respecting
incentive stock options. The Company's Board of Directors may also suspend
the granting of Options pursuant to the Plan at any time and may terminate
the Plan at any time; provided, however, no such suspension or termination
shall modify or amend any Option granted before such suspension or
termination unless the affected participant consents in writing to such
modification or amendment or there is a dissolution or liquidation of the
Company.
11. BINDING EFFECT
All decisions of the Board of Directors or the Committee involving the
implementation, administration or operation of the Plan or any offering
under the Plan shall be binding on the Company and on all persons eligible
or who become eligible to participate in the Plan.
12. APPLICATION OF FUNDS
The proceeds received by the Company from the sale of Common Stock
pursuant to Options exercised hereunder will be used for general corporate
purposes.
EXHIBIT 4.7
THEGLOBE.COM, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
-----------------------------------
THIS AGREEMENT, made as of the 15th day of April, 1999 (the
"Grant Date"), by and between theglobe.com, inc. (the "Company"), and _____
_____ (the "Optionee").
WHEREAS, this Option is being granted pursuant to the Employment
Agreement, dated April 15th, 1999, between Attitude Network, Ltd.
("Attitude"), the Company and the Optionee (the "Employment Agreement") and
is not being granted pursuant to the theglobe.com, inc. 1998 Stock Option
Plan (the "Plan").
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
----------------
1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate of 25,000
whole Shares subject to, and in accordance with, the terms and conditions
set forth in this Agreement.
1.2 The Option is not intended to qualify as an Incentive Stock
Option within the meaning of Section 422 of the Code.
1.3 This Agreement is subject to the Employment Agreement (the
provisions of which are incorporated herein by reference) and, except as
otherwise expressly set forth herein, the capitalized terms used in this
Agreement shall have the same definitions as set forth in the Employment
Agreement.
2. Purchase Price.
---------------
The price at which the Optionee shall be entitled to purchase
Shares upon the exercise of the Option shall be $67.625 per Share (the
Fair Market Value of a Share on the Grant Date).
3. Duration of Option.
-------------------
The Option shall be exercisable to the extent and in the manner
provided herein for a period of ten (10) years from the Grant Date (the
"Exercise Term"); provided, however, that the Option may be earlier
terminated as provided in Section 6 hereof; provided, further, that the
Option may, upon the death of the Optionee, be later exercised for up to
one (1) year following the date of the Optionee's death if such death
occurs prior to the tenth anniversary of the Grant Date.
4. Exercisability of Option.
-------------------------
Unless otherwise provided in this Agreement, the Option shall
entitle the Optionee to purchase, in whole at any time or in part from time
to time, subject to the Optionee's continued employment with Attitude, the
Company or a Subsidiary, 100% of the total number of Shares covered by the
Option less the number of Shares previously acquired upon exercise of any
portion of the Option on and after the first anniversary of the Grant Date.
5. Manner of Exercise and Payment.
-------------------------------
5.1 Subject to the terms and conditions of this Agreement, the
Option may be exercised by written notice delivered in person or by mail to
the Controller of the Company, at its principal executive offices, 31 West
21st Street, New York, NY 10010. Such notice shall be substantially in the
form attached hereto as Exhibit A, shall state that the Optionee is
electing to exercise the Option and the number of Shares in respect of
which the Option is being exercised and shall be signed by the person or
persons exercising the Option. If requested by the Committee, such person
or persons shall (i) deliver this Agreement to the Secretary of the Company
who shall endorse thereon a notation of such exercise and (ii) provide
satisfactory proof as to the right of such person or persons to exercise
the Option.
5.2 The notice of exercise described in Section 5.1 hereof shall
be accompanied by the full purchase price for the Shares in respect of
which the Option is being exercised, in cash, or, if permitted by the
Committee, by transferring Shares, either actually or by attestation, to
the Company having a Fair Market Value on the day preceding the date of
exercise equal to the cash amount for which such Shares are substituted. In
addition, Options may be exercised through a registered broker-dealer
pursuant to such cashless exercise procedures which, from time to time, are
deemed acceptable by the Committee.
5.3 Upon receipt of notice of exercise and full payment for the
Shares in respect of which the Option is being exercised, the Company
shall, subject to Section 16 hereof, take such action as may be necessary
to effect the transfer to the Optionee of the number of Shares as to which
such exercise was effective. No fractional Shares (or cash in lieu thereof)
shall be issued upon exercise of an Option and the number of Shares that
may be purchased upon exercise shall be rounded to the nearest number of
whole Shares.
5.4 The Optionee shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any Shares subject to
the Option until (i) the Option shall have been exercised pursuant to the
terms of this Agreement and the Optionee shall have paid the full purchase
price for the number of Shares in respect of which the Option was
exercised, (ii) the Company shall have issued and delivered the Shares to
the Optionee, and (iii) the Optionee's name shall have been entered as a
stockholder of record on the books of the Company, whereupon the Optionee
shall have full voting and other ownership rights with respect to such
Shares, subject to the terms of this Agreement.
6. Termination of Option. Subject to Section 7 hereof, the Option
shall terminate on the date which is the tenth anniversary of the Grant
Date (or if later, the first anniversary of the date of the Optionee's
death if such death occurs prior to such tenth anniversary), unless
terminated earlier as follows:
6.1 If the employment of the Optionee by Attitude, the Company or
a Subsidiary is terminated by mutual agreement of the parties hereto, by
Attitude , the Company or a Subsidiary for any reason other than
Disability, death or Cause, by the Optionee for any reason, or if Attitude
or the Subsidiary then employing the Optionee ceases to be a Subsidiary,
the Optionee may for a period of three (3) months after such termination or
cessation exercise his Option to the extent, and only to the extent, that
such Option or portion thereof was exercisable as of the date of such
termination or cessation, after which time the Option shall automatically
terminate in full; provided, however, that if at the time the Optionee
terminates his employment, the Optionee had engaged in conduct constituting
Cause, the Option shall immediately terminate in full and no rights
hereunder may be exercised.
6.2 If the employment of the Optionee by Attitude, the Company or
a Subsidiary is terminated by reason of Disability, the Optionee may, for a
period of twelve (12) months after such termination, exercise the Option to
the extent, and only to the extent, that such Option or portion thereof was
exercisable, as of the date of such termination, after which time the
Option shall automatically terminate in full.
6.3 If the employment of the Optionee by Attitude, the Company or
a Subsidiary is terminated for Cause before the first anniversary of the
date of the Employment Agreement, the Option shall immediately terminate in
full and no rights hereunder may be exercised.
6.4 If the employment of the Optionee by Attitude, the Company or
a Subsidiary is terminated by reason of his death, the Option may be
exercised at any time within twelve (12) months after the Optionee's death
by the person or persons to whom such rights under the Option shall pass by
will, or by the laws of descent or distribution, after which time the
Option shall terminate in full; provided, however, that an Option may be
exercised to the extent, and only to the extent, that the Option or portion
thereof was exercisable on the date of death. If the Optionee dies within
three (3) months after termination as described in Section 6.1 hereof or
within twelve (12) months after termination as described in Section 6.2
hereof, the Option granted to the Optionee may be exercised at any time
within twelve (12) months after the Optionee's death by the person or
persons to whom such rights under the Option shall pass by will, or by the
laws of descent or distribution, after which time the Option shall
terminate in full; provided, however, that an Option may be exercised to
the extent, and only to the extent, that the Option or portion thereof was
exercisable on the date of termination.
6.5 The Option, to the extent not exercisable, shall terminate
immediately upon the Optionee's termination of employment with Attitude,
the Company or a Subsidiary for any reason.
6.6 For purposes of this Section 6, the Optionee shall not be
treated as terminated for so long as he is an employee of Attitude, the
Company or a Subsidiary.
7. Effect of Change in Control.
----------------------------
Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Change in Control, the Option shall become
immediately and fully exercisable. In the event an Optionee's employment
terminates following a Change in Control, the Option shall remain
exercisable until the earlier of the first anniversary of the termination
of the Optionee's employment or the expiration of the stated term of the
Option.
8. Non-Transferability.
--------------------
The Option shall not be transferable other than by will or by the
laws of descent and distribution or pursuant to a domestic relations order
(within the meaning of Rule 16a-12 promulgated under the Exchange Act), and
the Option shall be exercisable during the lifetime of the Optionee only by
the Optionee or his guardian or legal representative.
9. Limitation on Rights.
---------------------
Nothing in this Agreement shall be interpreted or construed to
confer upon the Optionee any right with respect to continuance of
employment by Attitude, the Company or any of its or their affiliates, nor
shall this Agreement interfere in any way with the right of Attitude, the
Company or any of its or their affiliates to terminate the Optionee's
employment at any time.
10. Adjustments.
------------
10.1 In the event of a Change in Capitalization, the Committee
shall make appropriate adjustments, if any, to the number and class of
Shares or other stock or securities subject to the Option and the purchase
price for such Shares or other stock or securities. The Committee's
adjustment shall be effective and final, binding and conclusive for all
purposes of this Agreement.
10.2 If, by reason of a Change in Capitalization, the Optionee
shall be entitled to exercise the Option with respect to new, additional or
different shares of stock or securities, such new, additional or different
shares shall thereupon be subject to all of the conditions and restrictions
which were applicable to the Shares subject to the Option prior to such
Change in Capitalization.
11. Effect of a Merger, Consolidation or Liquidation.
-------------------------------------------------
Subject to Section 7 hereof, upon the effective date of (i) the
liquidation or dissolution of the Company or (ii) a merger or consolidation
of the Company (a "Transaction"), the Option shall continue in effect in
accordance with its terms and the Optionee shall be entitled to receive in
respect of all Shares subject to the Option, upon exercise of the Option,
the same number and kind of stock, securities, cash, property or other
consideration that each holder of Shares was entitled to receive in the
Transaction in respect of a Share; provided, however, that such stock,
securities, cash, property, or other consideration shall remain subject to
all of the conditions and restrictions which were applicable to the Option
prior to such Transaction.
12. Withholding of Taxes.
---------------------
At such times as the Optionee recognizes taxable income in
connection with the receipt of Shares hereunder (a "Taxable Event"), the
Optionee shall pay to the Company an amount equal to the federal, state and
local income taxes and other amounts as may be required by law to be
withheld by the Company in connection with the Taxable Event (the
"Withholding Taxes") prior to the issuance of such Shares. The Company and
Attitude shall have the right to deduct from any distribution of cash to
the Optionee an amount equal to the Withholding Taxes with respect to the
Option.
13. Pooling Transactions.
---------------------
Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Change in Control which is also intended to
constitute a Pooling Transaction, the Committee shall take such actions, if
any, as are specifically recommended by an independent accounting firm
retained by the Company to the extent reasonably necessary in order to
assure that the Pooling Transaction will qualify as such, including but not
limited to (a) deferring the vesting, exercise, payment, settlement or
lapsing of restrictions with respect to the Option, (b) providing that the
payment or settlement in respect of the Option be made in the form of cash,
Shares or securities of a successor or acquirer of the Company, or a
combination of the foregoing, and (c) providing for the extension of the
term of any Option to the extent necessary to accommodate the foregoing,
but not beyond the maximum term permitted for any Option.
14. Modification of Agreement.
--------------------------
This Agreement may be modified, amended, suspended or terminated,
and any terms or conditions may be waived, but only by a written instrument
executed by the parties hereto.
15. Severability.
-------------
Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any reason, the
remaining provisions of this Agreement shall not be affected by such
holding and shall continue in full force in accordance with their terms.
16. Registration of Shares.
-----------------------
16.1 Prior to the time that the Option first becomes exercisable
in accordance with the terms of this Agreement, the Company shall cause the
Shares underlying the Option to be registered with the Securities and
Exchange Commission and listed on the National Association of Securities
Dealers Automated Quotation System if not already listed. The Option is
subject to the requirement that, if at any time the Committee determines,
in its discretion, that the listing, registration or qualification of
Shares issuable pursuant to this Agreement is required by any securities
exchange or under any state or federal law, or the consent or approval of
any governmental regulatory body is necessary or desirable as a condition
of, or in connection with, the issuance of Shares, no payment shall be made
or Shares issued, in whole or in part, unless listing, registration,
qualification, consent or approval has been effected or obtained free of
any conditions as acceptable to the Committee. The Board may make such
changes to the Option as may be necessary or appropriate to comply with the
rules and regulations of any governmental authority.
16.2 Notwithstanding anything contained in this Agreement to the
contrary, in the event that the disposition of Shares acquired pursuant
this Agreement is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is
not otherwise exempt from such registration, such Shares shall be
restricted against transfer to the extent required by the Securities Act
and Rule 144 or other regulations thereunder. The Committee may require the
Optionee, as a condition precedent to receipt of Shares hereunder, to
represent and warrant to the Company in writing that the Shares acquired by
him are acquired without a view to any distribution thereof and will not be
sold or transferred other than pursuant to an effective registration
thereof under said Act or pursuant to an exemption applicable under the
Securities Act or the rules and regulations promulgated thereunder. The
certificates evidencing any of such Shares shall be appropriately amended
to reflect their status as restricted securities as aforesaid.
17. Governing Law.
--------------
17.1 The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of Delaware
without giving effect to the conflicts of laws principles thereof.
17.2 The obligation of the Company to sell or deliver Shares
covered by the Option shall be subject to all applicable laws, rules and
regulations, including all applicable federal and state securities laws,
and the obtaining of all such approvals by governmental agencies as may be
deemed necessary or appropriate by the Committee.
18. Successors in Interest.
-----------------------
This Agreement shall inure to the benefit of and be binding upon
any successor to the Company. This Agreement shall inure to the benefit of
the Optionee's legal representatives. All obligations imposed upon the
Optionee and all rights granted to the Company under this Agreement shall
be final, binding and conclusive upon the Optionee's heirs, executors,
administrators and successors.
19. Resolution of Disputes.
-----------------------
Any dispute or disagreement which may arise under, or as a result
of, or in any way relate to, the interpretation, construction or
application of this Agreement shall be determined by the Committee. Any
determination made hereunder shall be final, binding and conclusive on the
Optionee and the Company for all purposes.
20. Interpretation.
---------------
20.1 The grant of the Option pursuant hereto is intended to
comply with Rule 16b-3 promulgated under the Exchange Act and the Committee
shall interpret and administer the provisions of this Agreement in a manner
consistent therewith. Any provisions inconsistent with such rule shall be
inoperative and shall not affect the validity of this Agreement.
20.2 The Option is intended to be Performance-Based Compensation.
The Committee shall not be entitled to exercise any discretion otherwise
authorized hereunder with respect to this Option if the ability to exercise
such discretion or the exercise of such discretion itself would cause the
compensation attributable to this Option to fail to qualify as
Performance-Based Compensation.
21. Administration.
---------------
21.1 This Agreement shall be administered by the Committee. The
Committee shall consist of at least two (2) Directors and may consist of
the entire Board; provided, however, that (A) if the Committee consists of
less than the entire Board, each member shall be a Nonemployee Director and
(B) to the extent necessary for any Option intended to qualify as
Performance-Based Compensation to so qualify, each member of the Committee,
whether or not it consists of the entire Board, shall be an Outside
Director. For purposes of the preceding sentence, if one or more members of
the Committee is not a Nonemployee Director and an Outside Director but
recuses himself or herself or abstains from voting with respect to a
particular action taken by the Committee, then the Committee, with respect
to that action, shall be deemed to consist only of the members of the
Committee who have not recused themselves or abstained from voting.
21.2 No member of the Committee shall be liable for any action,
failure to act, determination or interpretation made in good faith with
respect to this Agreement. The Company hereby agrees to indemnify each
member of the Committee for all costs and expenses and, to the extent
permitted by applicable law, any liability incurred in connection with
defending against, responding to, negotiating for the settlement of or
otherwise dealing with any claim, cause of action or dispute of any kind
arising in connection with any actions in administering this Agreement or
in authorizing or denying authorization to any transaction hereunder.
21.3 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time:
(a) to construe and interpret this Agreement and to
establish, amend and revoke rules and regulations for the administration of
this Agreement, including, but not limited to, correcting any defect or
supplying any omission, or reconciling any inconsistency in this Agreement,
in the manner and to the extent it shall deem necessary or advisable,
including so that this Agreement complies with Rule 16b-3 under the
Exchange Act, the Code to the extent applicable and other applicable law,
and otherwise to make this Agreement fully effective. All decisions and
determinations by the Committee in the exercise of this power shall be
final, binding and conclusive upon the Company, its Subsidiaries, the
Optionee, and all other persons having any interest herein;
(b) to determine the duration and purposes for leaves of
absence which may be granted to the Optionee on an individual basis without
constituting a termination of employment or service for purposes of this
Agreement;
(c) to exercise its discretion with respect to the powers
and rights granted to it as set forth in this Agreement; and
(d) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of
the Company with respect to this Agreement.
22. Definitions.
------------
For purposes of this Agreement:
22.1 "Board" means the Board of Directors of the Company.
22.2 "Cause" shall have the meaning ascribed to it in the
Employment Agreement.
22.3 "Change in Capitalization" means any increase or reduction
in the number of Shares, or any change (including, but not limited to, in
the case of a spin-off, dividend or other distribution in respect of
Shares, a change in value) in the Shares or exchange of Shares for a
different number or kind of shares or other securities of the Company or
another corporation, by reason of a reclassification, recapitalization,
merger, consolidation, reorganization, spin-off, split-up, issuance of
warrants or rights or debentures, stock dividend, stock split or reverse
stock split, cash dividend, property dividend, combination or exchange of
shares, repurchase of shares, change in corporate structure or otherwise.
22.4 A "Change in Control" shall mean the occurrence of any of
the following:
(a) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any
"Person" (as the term person is used for purposes of Section 13(d) or 14(d)
of the Exchange Act), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of thirty percent (30%) or more of the then outstanding Shares or the
combined voting power of the Company's then outstanding Voting Securities;
provided, however, in determining whether a Change in Control has occurred
pursuant to this Section 22.4(a), Shares or Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A
"Non-Control Acquisition" shall mean an acquisition by (i) an employee
benefit plan (or a trust forming a part thereof) maintained by (A) the
Company or (B) any corporation or other Person of which a majority of its
voting power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (for purposes of this definition, a
"Majority-Owned Subsidiary"), (ii) the Company or its Majority-Owned
Subsidiaries, or (iii) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(b) The individuals who, as of the date hereof are members
of the Board of Directors of the Company (the "Incumbent Board"), cease for
any reason to constitute at least two-thirds of the members of the Board;
provided, however, that if the election, or nomination for election by the
Company's common stockholders, of any new director was approved by a vote
of at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Agreement, be considered as a member of the Incumbent
Board; or
(c) The consummation of:
(i) A merger, consolidation or reorganization with or
into the Company or in which securities of the Company are issued, unless
such merger, consolidation or reorganization is a Non-Control Transaction.
A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization with or into the Company or in which
securities of the Company are issued where:
(A) the stockholders of the Company, immediately
before such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined voting power
of the outstanding voting securities of the corporation resulting from such
merger or consolidation or reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of the Voting
Securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at
least two-thirds of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially directly or indirectly owning a
majority of the Voting Securities of the Surviving Corporation, and
(C) no Person other than (1) the Company, (2) any
Majority-Owned Subsidiary, (3) any employee benefit plan (or any trust
forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company or any
Majority-Owned Subsidiary, or (4) any Person who, immediately prior to such
merger, consolidation or reorganization had Beneficial Ownership of thirty
percent (30%) or more of the then outstanding Voting Securities or Shares,
has Beneficial Ownership of thirty percent (30%) or more of the combined
voting power of the Surviving Corporation's then outstanding voting
securities or its common stock.
(ii) A complete liquidation or dissolution of the
Company; or
(iii) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Majority-Owned Subsidiary or the distribution to the
Company's stockholders of the stock of a Majority-Owned Subsidiary or any
other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Shares
or Voting Securities as a result of the acquisition of Shares or Voting
Securities by the Company which, by reducing the number of Shares or Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change in
Control would occur (but for the operation of this sentence) as a result of
the acquisition of Shares or Voting Securities by the Company, and after
such share acquisition by the Company, the Subject Person becomes the
Beneficial Owner of any additional Shares or Voting Securities which
increases the percentage of the then outstanding Shares or Voting
Securities Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
22.5 "Code" means the Internal Revenue Code of 1986, as amended.
22.7 "Committee" means the committee, appointed by the Board from
time to time to administer the Plan and to perform the functions set forth
therein.
22.8 "Director" means a director of the Company.
22.9 "Disability" shall have the meaning ascribed to it in the
Employment Agreement.
22.10 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
22.11 "Fair Market Value" on any date means the closing sales
prices of the Shares on such date on the principal national securities
exchange on which such Shares are listed or admitted to trading, or, if
such Shares are not so listed or admitted to trading, the average of the
per Share closing bid price and per Share closing asked price on such date
as quoted on the National Association of Securities Dealers Automated
Quotation System or such other market in which such prices are regularly
quoted, or, if there have been no published bid or asked quotations with
respect to Shares on such date, the value established by the Committee in
good faith.
22.12 "Nonemployee Director" means a director of the Company who
is a "nonemployee director" within the meaning of Rule 16b-3 promulgated
under the Exchange Act.
22.13 "Outside Director" means a director of the Company who is
an "outside director" within the meaning of Section 162(m) of the Code and
the regulations promulgated thereunder.
22.14 "Performance-Based Compensation" means any Option that is
intended to constitute "performance-based compensation" within the meaning
of Section 162(m)(4)(C) of the Code, and the regulations promulgated
thereunder.
22.15 "Pooling Transaction" means an acquisition of the Company
in a transaction which is intended to be treated as a "pooling of
interests" under generally accepted accounting principles.
22.16 "Shares" means the common stock, par value $0.001 per
share, of the Company.
22.17 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect
to the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
theglobe.com, inc.
By:
------------------------------------
Name:
Title:
Attest:
- ----------------------------------
Secretary
- ----------------------------------
[Optionee]
<PAGE>
Exhibit A
NOTICE OF EXERCISE
theglobe.com, inc.
31 W. 21st Street
New York, NY 10010 Date of Exercise:
------------
Ladies and Gentlemen:
This constitutes notice under my Nonqualified Stock Option Agreement
(the "Option Agreement") that I elect to purchase the number of shares for
the price set forth below.
Stock option dated: _____________________
Number of shares as to
which option is exercised: _____________________
Certificates to be issued
in name of: ______________________
Total exercise price: $ ____________________
Cash payment delivered
herewith: $ ____________________
By this exercise, I agree (i) to provide such additional documents as
you may require pursuant to the terms the Option Agreement, and (ii) to
provide for the payment by me to you (in the manner designated by you) of
your withholding obligation, if any, relating to the exercise of this
option.
Very truly yours,
[Name]
Address:
EXHIBIT 5.1
May 27, 1999
theglobe.com, inc.
31 West 21st Street
New York, New York 10010
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We are acting as special counsel to theglobe.com, inc., a Delaware
corporation (the "Company") in connection with the registration, pursuant
to a Registration Statement on Form S-8 (the "Registration Statement"), of
an aggregate of 204,760 shares (the "Shares") of Common Stock, par value
$.001 per share, of the Company, issuable pursuant to (i) options granted
under the Attitude Network Ltd. ("Attitude") 1996 Stock Option Plan (the
"Attitude Plan") which were converted from options to purchase shares of
common stock of Attitude into options to purchase Shares of the Company
pursuant to the Agreement and Plan of Merger, dated as of April 5, 1999, by
and among the Company, Attitude, certain shareholders of Attitude and Bucky
Acquisition Corp. (84,760 shares); and (ii) options granted pursuant to
Option Agreements (the "Option Agreements") to David C. Rae, Kim Brown and
David Stanworth on April 6, 1999 (120,000 shares).
We have examined the originals, or certified, conformed or
reproduction copies, of all records, agreements, instruments and documents
as we have deemed relevant or necessary as the basis for the opinion
hereinafter expressed. In all such examinations, we have assumed the
genuineness of all signatures and the conformity to original or certified
copies of all copies submitted to us as conformed or reproduction copies.
As to various questions of fact relevant to such opinion, we have relied
upon certificates and statements of public officials, officers or
representatives of the Company and others.
Based upon the foregoing, and subject to the limitations set forth
herein, we are of the opinion that the Shares, when issued and paid for
(with the consideration received by the Company being not less than the par
value thereof) in accordance with the Attitude Plan or the Option
Agreements, as applicable, will be validly issued, fully paid and
non-assessable.
The opinion expressed herein is limited to the federal laws of the
United States, and, to the extent required by the foregoing opinion, the
General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 relating to the registration of the
Shares. In giving this consent, we do not admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act
of 1933, as amended.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ Stuart H. Gelfond
--------------------------------
Stuart H. Gelfond
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
on Form S-8 of theglobe.com, inc. of our report dated February 20, 1999
relating to the balance sheets of theglobe.com, inc. as of December 31,
1998 and 1997, and the related statements of operations, stockholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 1998, and the related financial statement schedule, which
report appears in the December 31, 1998 annual report on Form 10-K of
theglobe.com, inc. dated March 30, 1999.
/s/ KPMG LLP
New York, New York
May 28, 1999
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
on Form S-8 of theglobe.com, inc. of our report dated March 5, 1999, with
respect to the financial statements of factorymall.com, inc. as of December
31, 1998 and 1997 and for the period from inception (April 15, 1996) to
December 31, 1996 and for each of the two years in the period ended
December 31, 1998, which report appears in the Current Report (Form-8K/A)
of theglobe.com, inc. dated April 1, 1999.
/s/ KPMG LLP
Seattle, Washington
May 28, 1999
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-8 of our report, dated March 19, 1999, except for Note 16, for
which the date is April 9, 1999, relating to the consolidated financial
statements of Attitude Network, Ltd. and its subsidiary, which appears in
theglobe.com, inc.'s Form 8-K filed April 23, 1999.
/s/ PricewaterhouseCoopers LLP
May 28, 1999
