<PAGE>
As filed with the Securities and Exchange Commission on March 17, 2000
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________________________________
pcOrder.com, Inc.
(Exact name of registrant as specified in its charter)
______________________________________________
Delaware 74-2720849
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
5001 Plaza on the Lake
Austin, Texas 78746
(Address of Principal Executive Offices)
Employee Stock Purchase Plan
Foreign Subsidiary Employee Stock Purchase Plan
______________________________________________
Christina C. Jones
President and Chief Operating Officer
pcOrder.com, Inc.
5001 Plaza on the Lake
Austin, Texas 78746
(Name and Address of Agent for Service)
(512) 684-1100
(Telephone Number, Including Area Code, of Agent For Service)
With copy to:
Richard Friedman
Vice President, General Counsel and Secretary
pcOrder.com, Inc.
5001 Plaza on the Lake
Austin, Texas 78746
__________________________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to to be Offering Price Aggregate Offering Registration
be Registered Registered Per Share(1) Price(1) Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 250,000 $25.56 $6,390,000 $1,686.96
$0.01 par value per
share
====================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and Rule 457(h) of the Securities Act of 1933, as
amended. Computation is based upon the average of the high and low prices
of the Registrant's Common Stock as reported on the Nasdaq National Market
on March 15, 2000.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by pcOrder.com, Inc. (the "Registrant") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference herein:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) of the
Securities Act, as amended, (the "Securities Act"), on December 8, 1999, which
includes audited financial statements for the Registrant's latest fiscal year.
(b) Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999.
(c) Registrant's Current Report on Form 8-K dated June 29, 1999.
(d) The description of the Class A Common Stock included in the
Registrant's registration statement on Form 8-A, filed on February 25, 1999
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
All documents subsequently filed by the Registrant with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Richard Friedman, the Registrant's General Counsel, holds options to
purchase shares of Class A Common Stock, none of which are exercisable within 60
days of the date hereof.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation provides that the Registrant
shall indemnify to the fullest extent permitted by Section 145 ("Section 145")
of the Delaware General Corporation Law ("DGCL"), as it now exists or as it may
be amended. Generally, Section 145 provides a detailed statutory framework
covering indemnification of officers and directors against liabilities
2
<PAGE>
and expenses arising out of legal proceedings brought or threatened to be
brought against them by reason of their being or having been directors or
officers. In particular, Section 145 provides that a corporation shall indemnify
its officers and directors for all reasonable expenses (including attorney's
fees) of such legal proceedings when any such officer or director is successful
on the merits. Further, Section 145 provides that a corporation may indemnify
its officers and directors, even if any such officer or director is not
successful on the merits:
(i) for expenses, judgments, fines and amounts paid in settlement of such
proceedings (other than a derivative suit), as long as such officer or
director acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful;
and
(ii) for the expenses of a derivative suit (a suit brought by the
corporation or in the name of the corporation by a stockholder
alleging breach by such officer or director of a duty owed to the
corporation), as long as such officer or director acted in good faith
and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the corporation. In the event such director
or officer is adjudged liable to the corporation, no indemnification
may be made by the corporation unless the Delaware Court of Chancery
determines that, despite such adjudication of liability, in view of
all the circumstances, such officer or director is fairly and
reasonably entitled to indemnification.
In either of the above cases, indemnification may be made only after a
determination that the applicable standard of conduct has been met. Such
determination may be made by either a majority of the directors who are not
party to such proceeding, a committee of such directors, independent legal
counsel or the stockholders.
Additionally, the Registrant's Certificate of Incorporation provides for
the elimination of personal liability of a director for breach of fiduciary
duty, as permitted by Section 102(b)(7) of the DGCL. Thus, a director of the
Registrant shall not be personally liable to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Registrant
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (unlawful payment of dividends), or (iv) for any
transaction from which the director derived an improper personal benefit.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and executive officers, and may indemnify its officers, employees and
other agents, to the full extent permitted by law. The Registrant believes that
indemnification under its Bylaws covers at least negligence and gross negligence
on the part of an indemnified party. The Registrant's Bylaws also permit the
Registrant to advance expenses incurred by an indemnified party in connection
with the defense of any action or proceeding arising out of such party's status
or service as a director, officer or employee or other agent of the Registrant.
Such indemnified party shall repay such advances if it is ultimately determined
that such party is not entitled to indemnification. The Registrant believes
that its Certificate of Incorporation and Bylaw provisions are necessary
3
<PAGE>
to attract and retain qualified persons as directors and officers. The
Registrant also maintains directors' and officer's liability insurance.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Employee Stock Purchase Plan
4.2 Foreign Subsidiary Employee Stock Purchase Plan
5.1 Opinion of Registrant's General Counsel
23.1 Consent of Registrant's General Counsel (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent auditors
24.1 Power of Attorney (see signature pages to the Registration Statement)
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
and 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;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned Registrant hereby further undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing
4
<PAGE>
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
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred by a director, officer or controlling person of
the Registrant in the successful defense 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 Securities Act and will be governed by
the final adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
pcOrder.com, Inc. certifies that it has reasonable grounds to believe that it
meets all 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 Austin, State of Texas, on March 16, 2000.
pcOrder.com, Inc.
By: /s/ Ross A. Cooley
------------------
Ross A. Cooley
Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, severally and not jointly, Ross A.
Cooley, Christina C. Jones and James J. Luttenbacher, with full power to act
alone, his or her true and lawful attorneys-in-fact, with the power of
substitution, for such person and in such person's name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
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 full
power and authority to do and perform each and every act and deed requisite and
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact 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 by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Ross A. Cooley Chairman of the Board and Chief March 16, 2000
- --------------------------------------------
Ross A. Cooley Executive Officer (Principal
Executive Officer)
/s/ Christina C. Jones President and Chief Operating Officer March 16, 2000
- --------------------------------------------
Christina C. Jones (Principal Executive Officer)
</TABLE>
6
<PAGE>
<TABLE>
<S> <C> <C>
/s/ James J. Luttenbacher Vice President and Chief Financial March 16, 2000
- --------------------------------------------
James J. Luttenbacher Officer (Principal Financial Officer
and Accounting Officer)
/s/ Joseph A. Liemandt Director March 16, 2000
- --------------------------------------------
Joseph A. Liemandt
/s/ Peter J. Barris Director March 16, 2000
- --------------------------------------------
Peter J. Barris
/s/ Linwood A. Lacy, Jr. Director March 16, 2000
- --------------------------------------------
Linwood A. Lacy, Jr.
/s/ Robert W. Stearns Director March 16, 2000
- --------------------------------------------
Robert W. Stearns
</TABLE>
7
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ ------------------------------------------------------------------
4.1 Employee Stock Purchase Plan
4.2 Foreign Subsidiary Employee Stock Purchase Plan
5.1 Opinion of Registrant's General Counsel
23.1 Consent of Registrant's General Counsel (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent auditors
24.1 Power of Attorney (see signature pages to the Registration
Statement).
8
<PAGE>
EXHIBIT 4.1
pcOrder.com, Inc.
Employee Stock Purchase Plan
1. Purpose.
-------
This pcOrder.com, Inc. Employee Stock Purchase Plan (the "Plan") is
designed to encourage and assist employees of pcOrder.com, Inc. (the "Company")
and any Participating Subsidiary, as defined in Section 4, to acquire an equity
interest in the Company through the purchase of shares of Company common stock
(the "Common Stock").
2. Administration.
--------------
The Plan shall be administered by the Board of Directors of the
Company (or a committee thereof designated by the Board of Directors, which in
either case is referred to as the "Board"). The Board may from time to time
select a committee or persons (the "Administrator") to be responsible for any
matters in implementing the Plan. If no such committee or persons are selected,
the Board shall be the Administrator. Subject to the express provisions of the
Plan, to the overall supervision of the Board, and to the limitations of Section
423 of the Internal Revenue Code of 1986, as amended (the "Code"), the
Administrator may administer and interpret the Plan in any manner it believes to
be desirable, and any such interpretation shall be conclusive and binding on the
Company and all persons, and the Administrator shall have all powers necessary
to accomplish the purposes of the Plan and discharge its duties hereunder.
3. Number of Shares.
----------------
(a) Share Limit. The total number of shares of Common Stock initially
-----------
reserved and available for issuance pursuant to this Plan shall be 250,000 (the
"Share Limit"). Notwithstanding the foregoing and subject to Section 3(b), the
Share Limit shall automatically increase on January 1, 2001 and January 1 each
year thereafter until and including January 1, 2009 (unless the Plan is
terminated earlier in accordance with the provisions hereof) by the "Annual
Increase" which shall consist of a number of shares equal to the least of (i)
150,000, (ii) three quarters of one percent (.75%) of the number of shares of
all classes of common stock of the Company outstanding on that date or (iii) a
lesser number determined by the Administrator prior to such date; provided that
the total number of shares available for issuance under the Plan shall not
exceed the initial Share Limit plus the maximum potential cumulative Annual
Increase. The Share Limit shall be reduced by the number of shares issued under
the pcOrder.com, Inc. Foreign Subsidiary Employee Stock Purchase Plan ("Foreign
Plan"). Shares issued under the Plan may consist, in whole or in part, of
authorized and unissued shares or treasury shares reacquired in private
transactions or open market purchases, but all shares issued under this Plan and
the Foreign Plan shall be counted against the Share Limit.
(b) Adjustments. In the event of any reorganization,
-----------
recapitalization, stock split, reverse stock split, stock dividend, combination
of shares, offering of rights, or other similar change in the capital structure
of the Company, the Board may make such adjustment, if any, as it deems
<PAGE>
appropriate in the number, kind, and purchase price of the shares available for
purchase under the Plan and in the maximum number of shares subject to any
option under the Plan.
4. Eligibility Requirements.
------------------------
(a) Eligible Employees. Each employee of the Company and each
------------------
Participating Subsidiary, except those described in the next paragraph, shall
become eligible to participate in the Plan in accordance with Section 5 on the
first Enrollment Date on or following commencement of his or her employment by
the Company or the Participating Subsidiary or following such period of
employment, not to exceed two years, as is designated by the Board from time to
time. Participation in the Plan is entirely voluntary.
(b) Non-Eligible Employees. The following employees are not eligible
----------------------
to participate in the Plan:
(i) employees who would, immediately upon enrollment in
the Plan, own directly or indirectly (including options or rights to
acquire stock possessing as provided in Section 423(b)(3) of the Code)
five percent or more of the total combined voting power or value of
all classes of stock of the Company or any subsidiary of the Company
or any parent of the Company (as defined in Section 424 of the Code);
and
(ii) employees who are customarily employed by the Company
less than 20 hours per week or less than five months in any calendar
year.
(c) Definition of Employee. "Employee" shall mean any individual who
----------------------
is an employee of the Company or a Participating Subsidiary. Whether an
individual qualifies as an Employee shall be determined by the Administrator, in
its sole discretion. The Administrator shall be guided by the provisions of
Treasury Regulation Section 1.421-7 and Section 3401(c) of the Code and the
Treasury Regulations thereunder, with the intent that the Plan cover all
"employees" within the meaning of those provisions other than those who are not
eligible to participate in the Plan; provided, however, that any determinations
regarding whether an individual is an "employee" shall be prospective only,
unless otherwise determined by the Administrator. Unless the Administrator makes
a contrary determination, the Employees of the Company shall, for all purposes
of this Plan, be those individuals who are carried as employees of the Company
or a Participating Subsidiary for regular payroll purposes or are on a leave of
absence for not more than 90 days. Any inquiries regarding eligibility to
participate in the Plan shall be directed to the Administrator, whose decision
will be final.
(d) Definition of Subsidiary. "Subsidiary" shall mean any corporation
------------------------
described in Section 424(e) or (f) of the Code. "Participating Subsidiary" shall
mean a subsidiary which has been designated by the Administrator as covered by
the Plan.
5. Enrollment.
----------
Any eligible employee may enroll or re-enroll in the Plan each year as
of the first trading day of (i) April 2000, (ii) November 2000, and (iii) each
May and November thereafter, or such other days as may be established by the
Board from time to time (the "Enrollment Dates"). In
2
<PAGE>
order to enroll, an eligible employee must complete and submit to the Company an
enrollment form. Any enrollment form received by the designee of the
Administrator by (a) the April 2000 Enrollment Date, (b) with respect to each
Enrollment Date thereafter, the 25th day of the month preceding such Enrollment
Date (or the Enrollment Date in the case of employees hired after such 25th
day), or (c) such other date established by the Administrator from time to time,
will be effective on that Enrollment Date. For purposes of the Plan, a "trading
day" is any day on which regular trading occurs on any established stock
exchange or market system on which the Common Stock is traded.
6. Grant of Option on Enrollment.
-----------------------------
(a) Grant of Option. Enrollment or re-enrollment by a participant in
---------------
the Plan on an Enrollment Date will constitute the grant by the Company to the
participant of an option to purchase shares of Common Stock from the Company
under the Plan. Any participant whose option expires and who has not withdrawn
from the Plan will automatically be re-enrolled in the Plan and granted a new
option on the Enrollment Date immediately following the date on which the option
expires. Furthermore, except as may otherwise be determined by the
Administrator, each participant who has not withdrawn from the Plan will
automatically be re-enrolled in the Plan and granted a new option on any
Enrollment Date on which the fair market value per share of the Company's Common
Stock is lower than the fair market value per share on the Enrollment Date for
such participant's existing option.
(b) Terms of Option. Each option granted under the Plan shall have
---------------
the following terms:
(i) each option granted under the Plan will have a term of
not more than 12 months or such shorter option period as may be
established by the Board from time to time, provided that the option
period commencing with the April 2000 Enrollment Date shall have a 13
month term; notwithstanding the foregoing, however, whether or not all
shares have been purchased thereunder, the option will expire on the
earlier to occur of (A) the completion of the purchase of shares on
the last Purchase Date occurring within 12 months after the Enrollment
Date for such option (or 13 months with respect to the April 2000
Enrollment Date), or such shorter option period as may be established
by the Board before an Enrollment Date for all options to be granted
on such date or (B) the date on which the employee's participation in
the Plan terminates for any reason;
(ii) payment for shares purchased under the option will be
made only through payroll withholding in accordance with Section 7;
(iii) purchase of shares upon exercise of the option will be
effected only on the Purchase Dates established in accordance with
Section 8;
(iv) the price per share under the option will be
determined as provided in Section 8;
(v) the number of shares available for purchase under an
option will, unless otherwise established by the Board before an
Enrollment Date for all options to be
3
<PAGE>
granted on such date, be determined by dividing $25,000 by the fair
market value of a share of Common Stock on the Enrollment Date and by
multiplying the result by the number of calendar years included in
whole or in part in the period from grant to expiration of the option;
(vi) the option (taken together with all other options
then outstanding under this and all other similar stock purchase plans
of the Company and any subsidiary of the Company, collectively
"Options") will in no event give the participant the right to purchase
shares at a rate per calendar year which accrues in excess of $25,000
of fair market value of such shares, determined at the applicable
Enrollment Date;
(vii) the option will in no event give the right to
purchase more than 500 shares on any Purchase Date; and
(viii) the option will in all respects be subject to the
terms and conditions of the Plan, as interpreted by the Administrator,
in its sole discretion, from time to time.
7. Payroll and Tax Withholding; Use by Company.
-------------------------------------------
(a) Payroll Deductions. Each participant shall elect to have amounts
------------------
withheld from his or her compensation paid by the Company during the option
period, at a rate equal to any whole percentage up to 15 percent, or such other
maximum percentage as the Board may establish from time to time before an
Enrollment Date. Compensation includes regular salary payments, bonuses,
overtime pay and any other compensation as may be determined from time to time
by the Administrator, but excludes all other payments including, without
limitation, long-term disability or workers compensation payments, car
allowances, employee referral bonuses, relocation payments, expense
reimbursements (including but not limited to travel, entertainment, and moving
expenses), salary gross-up payments, and non-cash recognition awards. The
participant shall designate a rate of withholding in his or her enrollment form
and may elect to increase or decrease the rate of contribution effective as of
any Enrollment Date, by delivery to the Company, not later than the 25th day of
the month preceding such Enrollment Date, of a written notice indicating the
revised withholding rate. The first payroll deduction will commence with the
first payment of compensation on or after the Enrollment Date.
(b) Use of Withholdings. Payroll withholdings shall be credited to an
-------------------
account maintained for purposes of the Plan on behalf of each participant, as
soon as administratively feasible after the withholding occurs. The Company
shall be entitled to use the withholdings for any corporate purpose, shall have
no obligation to pay interest on withholdings to any participant, and shall not
be obligated to segregate withholdings.
(c) Tax Withholdings. The participant shall pay, or make provision
----------------
adequate to the Company for payment of, all federal, state, and other tax (and
similar) withholdings that the Company determines, in its discretion, are
required due to the acquisition of shares under the Plan or the disposition of
such shares, including any such withholding that the Company determines in its
discretion is necessary to allow the Company to claim tax deductions or other
benefits in connection with the disposition.
4
<PAGE>
8. Purchase of Shares.
------------------
(a) Purchase Date. On the last trading day of each month immediately
-------------
preceding a month containing an Enrollment Date, or on such other days as may be
established by the Board from time to time prior to an Enrollment Date for all
options to be granted on an Enrollment Date (each a "Purchase Date"), the
Company shall apply the funds then credited to each participant's payroll
withholdings account to the purchase of whole shares of Common Stock.
(b) Purchase Price. The cost to the participant for the shares
--------------
purchased under any option shall be not less than 85 percent of the lower of:
(i) the fair market value of the Common Stock on the Enrollment
Date for such option; or
(ii) the fair market value of the Common Stock on that Purchase
Date.
The "fair market value" of the Common Stock on a date shall be the closing price
of the Common Stock on the Nasdaq National Market (or, if determined by the
Administrator to be the primary market on which the Common Stock is traded, a
stock exchange or other market system on which the Common Stock is traded), or
the fair market value on such date as determined by the Administrator if no such
price is reported.
(c) Funds Remaining After Purchase. Any funds in an amount less than
------------------------------
the cost of one share of Common Stock left in a participant's payroll
withholdings account on a Purchase Date shall be carried forward in such account
for application on the next Purchase Date.
(d) Insufficient Shares Available. If at any Purchase Date, the
-----------------------------
shares available under the Plan are less than the number all participants would
otherwise be entitled to purchase on such date, purchases shall be reduced
proportionately to eliminate the deficit. Any funds that cannot be applied to
the purchase of shares due to such a reduction shall be refunded to participants
as soon as administratively feasible, unless the Administrator, in its sole
discretion, determines that such excess funds shall be carried over to the next
Purchase Date under this Plan.
9. Withdrawal from the Plan.
------------------------
A participant may withdraw from the Plan in full (but not in part) at
any time, effective after written notice thereof is received by the Company. All
funds credited to a participant's payroll withholdings account shall be
distributed to him or her without interest within 60 days after notice of
withdrawal is received by the Company. Any eligible employee who has withdrawn
from the Plan may enroll in the Plan again on any subsequent Enrollment Date in
accordance with the provisions of Section 5.
10. Termination of Employment.
-------------------------
5
<PAGE>
Participation in the Plan terminates immediately when a participant
ceases to be employed by the Company for any reason whatsoever (including death
or disability) or otherwise becomes ineligible to participate in the Plan. As
soon as administratively feasible after termination, the Company shall pay to
the participant or his or her beneficiary or legal representative, all amounts
credited to the participant's payroll withholdings account; provided, however,
that if a participant ceases to be employed by the Company because of the
commencement of employment with a Subsidiary of the Company that is not a
Participating Subsidiary, funds then credited to such participant's payroll
withholdings account shall be applied to the purchase of whole shares of Common
Stock at the next Purchase Date, and any funds remaining after such purchase
shall be paid to the participant.
11. Beneficiaries.
-------------
(a) Designation of Beneficiary. Each participant may designate one or
--------------------------
more beneficiaries in the event of death and may, in his or her sole discretion,
change such designation at any time. Any such designation shall be effective
upon receipt in written form by the Company and shall control over any
disposition by will or otherwise.
(b) Payment to Beneficiary. As soon as administratively feasible
----------------------
after the death of a participant, amounts credited to his or her account shall
be paid in cash to the designated beneficiaries or, in the absence of a
designation, to the executor, administrator, or other legal representative of
the participant's estate. Such payment shall relieve the Company of further
liability with respect to the Plan on account of the deceased participant. If
more than one beneficiary is designated, each beneficiary shall receive an equal
portion of the account unless the participant has given express contrary written
instructions.
12. Assignment.
----------
(a) Assignment Prohibited. Except as provided in Section 11, the
---------------------
rights of a participant under the Plan shall not be assignable by such
participant, by operation of law or otherwise. No participant may create a lien
on any funds, securities, rights, or other property held by the Company for the
account of the participant under the Plan, except to the extent that there has
been a designation of beneficiaries in accordance with the Plan, and except to
the extent permitted by the laws of descent and distribution if beneficiaries
have not been designated.
(b) Rights Exercisable Only by Participant. A participant's right to
--------------------------------------
purchase shares under the Plan shall be exercisable only during the
participant's lifetime and only by him or her, except that a participant may
direct the Company in the enrollment form to issue share certificates to the
participant and his or her spouse in community property, to the participant
jointly with one or more other persons with right of survivorship, or to certain
forms of trusts approved by the Administrator; provided, that such direction may
not be terminated, except at the beginning of a new enrollment period or
pursuant to a "qualified domestic relations order" as defined under the Code.
13. Administrative Assistance.
-------------------------
6
<PAGE>
If the Administrator in its discretion so elects, it may engage a
brokerage firm, bank, or other financial institution to assist in the purchase
of shares, delivery of reports, or other administrative aspects of the Plan. If
the Administrator so elects, each participant shall be deemed upon enrollment in
the Plan to have authorized the establishment of an account on his or her behalf
at such institution. Shares purchased by a participant under the Plan shall be
held in the account in the name in which the share certificate would otherwise
be issued.
14. Costs.
------
All costs and expenses incurred in administering the Plan shall be
paid by the Company, except that any stamp duties or transfer taxes applicable
to participation in the Plan may be charged to the account of such participant
by the Company. Any brokerage fees for the purchase of shares by a participant
shall be paid by the Company, but brokerage fees for the resale of shares by a
participant shall be borne by the participant.
15. Equal Rights and Privileges.
---------------------------
All eligible employees shall have equal rights and privileges with
respect to the Plan so that the Plan qualifies as an "employee stock purchase
plan" within the meaning of Section 423 of the Code and the related Treasury
Regulations. Any provision of the Plan which is inconsistent with Section 423 of
the Code shall without further act or amendment by the Company or the Board be
reformed to comply with the requirements of Section 423. This Section 15 shall
take precedence over all other provisions of the Plan.
16. Applicable Law.
--------------
The Plan and options granted hereunder shall be governed by the substantive
laws (excluding the conflict of laws rules) of the State of Texas.
17. Modification and Termination.
----------------------------
(a) Modification and Termination of Plan. The Board may modify,
------------------------------------
amend, alter, or terminate the Plan at any time, including amendments to
outstanding options. No amendment to (i) increase the number of shares reserved
for purchase under the Plan or (ii) change the designation of the employees (or
class of employees) eligible for participation in the Plan, shall be effective
unless within 12 months after it is adopted by the Board, it is approved by the
stockholders of the Company.
(b) Termination of Options. In the event the Plan is terminated, the
----------------------
Board may elect to terminate all outstanding options either immediately or upon
completion of the purchase of shares on the next Purchase Date, or may elect to
permit options to expire in accordance with their terms (and participation to
continue through such expiration dates). If the options are terminated prior to
expiration, all funds contributed to the Plan that have not been used to
purchase shares shall be returned to the participants as soon as
administratively feasible.
(c) Asset Sale, Merger, etc. In the event of the sale of all or
-----------------------
substantially all of the assets of the Company, or the merger or consolidation
of the Company with or into another
7
<PAGE>
corporation, or the dissolution or liquidation of the Company, the Board shall
provide for the assumption or substitution of each option under the Plan by the
successor or surviving corporation, or a parent or subsidiary thereof, unless
the Board decides to take such other action as it deems appropriate, including,
without limitation, providing for the termination of the Plan and providing for
a Purchase Date to occur on the trading day immediately preceding the date of
such termination.
18. Rights as an Employee.
---------------------
Nothing in the Plan shall be construed to give any person the right to
remain in the employ of the Company or any Subsidiary or to affect the Company's
or any Subsidiary's right to terminate the employment of any person at any time
with or without cause.
19. Rights as a Shareholder; Delivery of Certificates.
-------------------------------------------------
Participants shall be treated as the owners of their shares effective
as of the Purchase Date. Certificates evidencing shares purchased on any
Purchase Date shall be delivered to participants as soon as administratively
feasible, unless the Administrator determines that the Company instead of
delivery of share certificates shall (i) deliver a certificate (or equivalent)
to a broker for crediting to the Participant's account, or (ii) make a notation
in the Participant's favor of non-certificated shares on the Company's stock
records.
8
<PAGE>
EXHIBIT 4.2
pcOrder.com, Inc.
Foreign Subsidiary Employee Stock Purchase Plan
1. Purpose.
-------
This pcOrder.com, Inc. Foreign Subsidiary Employee Stock Purchase
Plan (the "Plan") is designed to encourage and assist employees of any
Participating Subsidiary of pcOrder.com, Inc. ("pcOrder"), as defined in Section
4, to acquire an equity interest in pcOrder through the purchase of shares of
pcOrder common stock (the "Common Stock"). pcOrder and all of the Participating
Subsidiaries shall be collectively referred to herein as the "Company". The Plan
is not intended to qualify for treatment under Section 423 of the Internal
Revenue Code of 1986, as amended (the "Code").
2. Administration.
--------------
The Plan shall be administered by the Board of Directors of pcOrder
(or a committee thereof designated by the Board of Directors, which in either
case is referred to as the "Board"). The Board may from time to time select a
committee or persons (the "Administrator") to be responsible for any matters in
implementing the Plan. If no such committee or persons are selected, the Board
shall be the Administrator. Subject to the express provisions of the Plan and to
the overall supervision of the Board, the Administrator may administer and
interpret the Plan in any manner it believes to be desirable, and any such
interpretation shall be conclusive and binding on the Company and all persons,
and the Administrator shall have all powers necessary to accomplish the purposes
of the Plan and discharge its duties hereunder.
3. Number of Shares.
----------------
(a) Share Limit. The total number of shares of Common Stock initially
-----------
reserved and available for issuance pursuant to this Plan shall be 250,000 (the
"Share Limit"). Notwithstanding the foregoing and subject to Section 3(b), the
Share Limit shall automatically increase on January 1, 2001 and January 1 each
year thereafter until and including January 1, 2009 (unless the Plan is
terminated earlier in accordance with the provisions hereof) by the "Annual
Increase" which shall consist of a number of shares equal to the least of (i)
150,000, (ii) three quarters of one percent (.75%) of the number of shares of
all classes of common stock of the Company outstanding on that date or (iii) a
lesser number determined by the Administrator prior to such date; provided that
the total number of shares available for issuance under the Plan shall not
exceed the initial Share Limit plus the maximum potential cumulative Annual
Increase. The Share Limit shall be reduced by the number of shares issued under
the pcOrder.com, Inc. Employee Stock Purchase Plan ("Domestic Plan"). Shares
issed under the Plan may consist, in whole or in part, of authorized and
unissued shares or treasury shares reacquired in private transactions or open
market purchases, but all shares issued under this Plan and the Domestic Plan
shall be counted against the Share Limit.
(b) Adjustments. In the event of any reorganization,
-----------
recapitalization, stock split, reverse stock split, stock dividend, combination
of shares, offering of rights, or other similar change in the capital structure
of pcOrder, the Board may make such adjustment, if any, as it deems
<PAGE>
appropriate in the number, kind, and purchase price of the shares available for
purchase under the Plan and in the maximum number of shares subject to any
option under the Plan.
4. Eligibility Requirements.
------------------------
(a) Eligible Employees. Each employee of each Participating
------------------
Subsidiary, except those described in the next paragraph, shall become eligible
to participate in the Plan in accordance with Section 5 on the first Enrollment
Date on or following commencement of his or her employment by the Company or the
Participating Subsidiary or following such period of employment, not to exceed
two years, as is designated by the Board from time to time. Participation in the
Plan is entirely voluntary.
(b) Non-Eligible Employees. The following employees are not eligible
----------------------
to participate in the Plan:
(i) employees who would, immediately upon enrollment in
the Plan, own directly or indirectly (including options or rights to
acquire stock possessing as provided in Section 423(b) of the Code)
five percent or more of the total combined voting power or value of
all classes of stock of pcOrder or any subsidiary of pcOrder or any
parent of the Company (as defined in Section 424 of the Code); and
(ii) employees who are customarily employed by the Company
less than 20 hours per week or less than five months in any calendar
year.
(iii) employees who are prohibited by applicable law from
participating in the Plan.
(c) Definition of Employee. "Employee" shall mean any individual who
----------------------
is an employee of a Participating Subsidiary. Whether an individual qualifies as
an Employee shall be determined by the Administrator, in its sole discretion.
The Administrator shall be guided by the provisions of Treasury Regulation
Section 1.421-7 and Section 3401(c) of the Code and the Treasury Regulations
thereunder, with the intent that the Plan cover all "employees" within the
meaning of those provisions other than those who are not eligible to participate
in the Plan; provided, however, that any determinations regarding whether an
individual is an "employee" shall be prospective only, unless otherwise
determined by the Administrator. Unless the Administrator makes a contrary
determination, the Employees of the Company shall, for all purposes of this
Plan, be those individuals who are carried as employees of a Participating
Subsidiary for regular payroll purposes or are on a leave of absence for not
more than 90 days. Any inquiries regarding eligibility to participate in the
Plan shall be directed to the Administrator, whose decision will be final.
(d) Definition of Subsidiary. "Subsidiary" shall mean any corporation
------------------------
described in Section 424(e) or (f) of the Code. "Participating Subsidiary" shall
mean a subsidiary which has been designated by the Administrator as covered by
the Plan; provided, however, that no subsidiary participating in the Domestic
Plan may be designated for participation in the Plan.
5. Enrollment.
----------
2
<PAGE>
Any eligible employee may enroll or re-enroll in the Plan each year as
of the first trading day of (i) April 2000, (ii) November 2000, and (iii) each
May and November thereafter, or such other days as may be established by the
Board from time to time (the "Enrollment Dates"). In order to enroll, an
eligible employee must complete and submit to the designee of the Administrator
or the Employee's Participating Subsidiary an enrollment form. Any enrollment
form received by pcOrder or the Employee's Participating Subsidiary by (a) the
April 2000 Enrollment Date, (b) with respect to each Enrollment Date thereafter,
the 25th day of the month preceding such Enrollment Date (or the Enrollment Date
in the case of employees hired after such 25th day), or (c) such other date
established by the Administrator from time to time, will be effective on that
Enrollment Date. For purposes of the Plan, a "trading day" is any day on which
regular trading occurs on any established stock exchange or market system on
which the Common Stock is traded.
6. Grant of Option on Enrollment.
-----------------------------
(a) Grant of Option. Enrollment or re-enrollment by a participant in
---------------
the Plan on an Enrollment Date will constitute the grant by pcOrder to the
participant of an option to purchase shares of Common Stock from pcOrder under
the Plan. Any participant whose option expires and who has not withdrawn from
the Plan will automatically be re-enrolled in the Plan and granted a new option
on the Enrollment Date immediately following the date on which the option
expires. Furthermore, except as may otherwise be determined by the
Administrator, each participant who has not withdrawn from the Plan will
automatically be re-enrolled in the Plan and granted a new option on any
Enrollment Date on which the fair market value per share of the Common Stock is
lower than the fair market value per share on the Enrollment Date for such
participant's existing option.
(b) Terms of Option. Each option granted under the Plan shall have
---------------
the following terms:
(i) each option granted under the Plan will have a term of
not more than 12 months or such shorter option period as may be
established by the Board from time to time, provided that the option
period commencing with the April 2000 Enrollment Date shall have a 13
month term; notwithstanding the foregoing, however, whether or not all
shares have been purchased thereunder, the option will expire on the
earlier to occur of (A) the completion of the purchase of shares on
the last Purchase Date occurring within 12 months after the Enrollment
Date for such option (or 13 months with respect to the April 2000
Enrollment Date), or such shorter option period as may be established
by the Board before an Enrollment Date for all options to be granted
on such date or (B) the date on which the employee's participation in
the Plan terminates for any reason;
(ii) payment for shares purchased under the option will be
made only through payroll withholding in accordance with Section 7;
(iii) purchase of shares upon exercise of the option will be
effected only on the Purchase Dates established in accordance with
Section 8;
3
<PAGE>
(iv) the price per share under the option will be
determined as provided in Section 8;
(v) the number of shares available for purchase under an
option will, unless otherwise established by the Board before an
Enrollment Date for all options to be granted on such date, be
determined by dividing $25,000 by the fair market value of a share of
Common Stock on the Enrollment Date and by multiplying the result by
the number of calendar years included in whole or in part in the
period from grant to expiration of the option;
(vi) the option (taken together with all other options
then outstanding under this and all other similar stock purchase plans
of pcOrder and any subsidiary of pcOrder, collectively "Options") will
in no event give the participant the right to purchase shares at a
rate per calendar year which accrues in excess of $25,000 of fair
market value of such shares, determined at the applicable Enrollment
Date;
(vii) the option will in no event give the right to
purchase more than 500 shares on any Purchase Date; and
(viii) the option will in all respects be subject to the
terms and conditions of the Plan, as interpreted by the Administrator,
in its sole discretion, from time to time.
7. Payroll and Tax Withholding; Use by Company.
-------------------------------------------
(a) Payroll Deductions. Each participant shall elect to have amounts
------------------
withheld from his or her compensation paid by the Company during the option
period, at a rate equal to any whole percentage up to 15 percent, or such other
maximum percentage as the Board may establish from time to time before an
Enrollment Date. Compensation includes regular salary payments, bonuses,
overtime pay and any other compensation as may be determined from time to time
by the Administrator, but excludes all other payments including, without
limitation, long-term disability or workers compensation payments, car
allowances, employee referral bonuses, relocation payments, expense
reimbursements (including but not limited to travel, entertainment, and moving
expenses), salary gross-up payments, and non-cash recognition awards. The
participant shall designate a rate of withholding in his or her enrollment form
and may elect to increase or decrease the rate of contribution effective as of
any Enrollment Date, by delivery to pcOrder or the Employee's Participating
Subsidiary, not later than the 25th day of the month preceding such Enrollment
Date, of a written notice indicating the revised withholding rate. The first
payroll deduction will commence with the first payment of compensation on or
after the Enrollment Date.
(b) Use of Withholdings. Payroll withholdings shall be credited to an
-------------------
account maintained for purposes of the Plan in local currency on behalf of each
participant, as soon as administratively feasible after the withholding occurs.
The Company shall be entitled to use the withholdings for any corporate purpose,
shall have no obligation to pay interest on withholdings to any participant, and
shall not be obligated to segregate withholdings.
4
<PAGE>
(c) Tax Withholdings. Upon acquisition or disposition of shares
----------------
acquired by exercise of an option, the participant shall pay, or make provision
adequate to the Company for payment of, all federal, state, and other tax (and
similar) withholdings that the Company determines, in its discretion, are
required due to the disposition, including any such withholding that the Company
determines in its discretion is necessary to allow the Company to claim tax
deductions or other benefits in connection with the disposition. A participant
shall make such similar provisions for payment that the Company determines, in
its discretion, are required due to the exercise of an option, including such
provisions as are necessary to allow the Company to claim tax deductions or
other benefits in connection with the exercise of the option.
8. Purchase of Shares.
------------------
(a) Purchase Date. On the last trading day of each month immediately
-------------
preceding a month containing an Enrollment Date, or on such other days as may be
established by the Board from time to time prior to an Enrollment Date for all
options to be granted on an Enrollment Date (each a "Purchase Date"), the
Company shall convert each participant's account balance, including amounts
carried forward to U.S. Dollars, determined based on the spot rate applicable to
purchase of U.S. dollars for delivery on the Purchase Date, and shall apply the
funds then credited to each participant's payroll withholdings account to the
purchase of whole shares of Common Stock.
(b) Purchase Price. The cost to the participant for the shares
--------------
purchased under any option shall be not less than 85 percent of the lower of:
(i) the fair market value of the Common Stock on the Enrollment
Date for such option; or
(ii) the fair market value of the Common Stock on that Purchase
Date.
The "fair market value" of the Common Stock on a date shall be the closing price
of the Common Stock on the Nasdaq National Market (or, if determined by the
Administrator to be the primary market on which the Common Stock is traded, a
stock exchange or other market system on which the Common Stock is traded), or
the fair market value on such date as determined by the Administrator if no such
price is reported.
(c) Funds Remaining After Purchase. Any funds in an amount less than
------------------------------
the cost of one share of Common Stock left in a participant's payroll
withholdings account on a Purchase Date shall be carried forward in such account
for application on the next Purchase Date.
(d) Insufficient Shares Available. If at any Purchase Date, the
-----------------------------
shares available under the Plan are less than the number all participants would
otherwise be entitled to purchase on such date, purchases shall be reduced
proportionately to eliminate the deficit. Any funds that cannot be applied to
the purchase of shares due to such a reduction shall be refunded to participants
as soon as administratively feasible, unless the Administrator, in its sole
discretion, determines that such excess funds shall be carried over to the next
Purchase Date under this Plan.
9. Withdrawal from the Plan.
------------------------
5
<PAGE>
A participant may withdraw from the Plan in full (but not in part) at any
time, effective after written notice thereof is received by the Company. All
funds credited to a participant's payroll withholdings account shall be
distributed to him or her without interest within 60 days after notice of
withdrawal is received by the Company. Any eligible employee who has withdrawn
from the Plan may enroll in the Plan again on any subsequent Enrollment Date in
accordance with the provisions of Section 5.
10. Termination of Employment.
-------------------------
Participation in the Plan terminates immediately when a participant
ceases to be employed by the Company for any reason whatsoever (including death
or disability) or otherwise becomes ineligible to participate in the Plan. As
soon as administratively feasible after termination, the Company shall pay to
the participant or his or her beneficiary or legal representative, all amounts
credited to the participant's payroll withholdings account; provided, however,
that if a participant ceases to be employed by the Company because of the
commencement of employment with a Subsidiary of the Company that is not a
Participating Subsidiary, funds then credited to such participant's payroll
withholdings account shall be applied to the purchase of whole shares of Common
Stock at the next Purchase Date, and any funds remaining after such purchase
shall be paid to the participant.
11. Beneficiaries.
-------------
(a) Designation of Beneficiary. Each participant may designate one or
--------------------------
more beneficiaries in the event of death and may, in his or her sole discretion,
change such designation at any time. Any such designation shall be effective
upon receipt in written form by the Company and shall control over any
disposition by will or otherwise.
(b) Payment to Beneficiary. As soon as administratively feasible
----------------------
after the death of a participant, amounts credited to his or her account shall
be paid in cash to the designated beneficiaries or, in the absence of a
designation, to the executor, administrator, or other legal representative of
the participant's estate. Such payment shall relieve the Company of further
liability with respect to the Plan on account of the deceased participant. If
more than one beneficiary is designated, each beneficiary shall receive an equal
portion of the account unless the participant has given express contrary written
instructions.
12. Assignment.
----------
(a) Assignment Prohibited. Except as provided in Section 11, the
---------------------
rights of a participant under the Plan shall not be assignable by such
participant, by operation of law or otherwise. No participant may create a lien
on any funds, securities, rights, or other property held by the Company for the
account of the participant under the Plan, except to the extent that there has
been a designation of beneficiaries in accordance with the Plan, and except to
the extent permitted by the laws of descent and distribution if beneficiaries
have not been designated.
6
<PAGE>
(b) Rights Exercisable Only by Participant. A participant's right to
--------------------------------------
purchase shares under the Plan shall be exercisable only during the
participant's lifetime and only by him or her, except that a participant may
direct the Company in the enrollment form to issue share certificates to the
participant and his or her spouse in community property, to the participant
jointly with one or more other persons with right of survivorship, or to certain
forms of trusts approved by the Administrator; provided, that such direction may
not be terminated, except at the beginning of a new enrollment period or
pursuant to a "qualified domestic relations order" as defined under the Code.
13. Administrative Assistance.
-------------------------
If the Administrator in its discretion so elects, it may engage a
brokerage firm, bank, or other financial institution to assist in the purchase
of shares, delivery of reports, or other administrative aspects of the Plan. If
the Administrator so elects, each participant shall be deemed upon enrollment in
the Plan to have authorized the establishment of an account on his or her behalf
at such institution. Shares purchased by a participant under the Plan shall be
held in the account in the name in which the share certificate would otherwise
be issued.
14. Costs.
-----
All costs and expenses incurred in administering the Plan shall be
paid by the Company, except that any stamp duties or transfer taxes applicable
to participation in the Plan may be charged to the account of such participant
by the Company. Any brokerage fees for the purchase of shares by a participant
shall be paid by the Company, but brokerage fees for the resale of shares by a
participant shall be borne by the participant.
15. Equal Rights and Privileges.
---------------------------
All eligible employees shall have substantially equal rights and
privileges with respect to the Plan.
16. Applicable Law.
--------------
The Plan and options granted hereunder shall be governed by the
substantive laws (excluding the conflict of laws rules) of the State of Texas.
17. Modification and Termination.
----------------------------
(a) Modification and Termination of Plan. The Board may modify,
------------------------------------
amend, alter, or terminate the Plan at any time, including amendments to
outstanding options. No amendment to increase the number of shares reserved for
purchase under the Plan shall be effective unless within 12 months after it is
adopted by the Board, it is approved by the stockholders of pcOrder.
7
<PAGE>
(b) Termination of Options. In the event the Plan is terminated, the
----------------------
Board may elect to terminate all outstanding options either immediately or upon
completion of the purchase of shares on the next Purchase Date, or may elect to
permit options to expire in accordance with their terms (and participation to
continue through such expiration dates). If the options are terminated prior to
expiration, all funds contributed to the Plan that have not been used to
purchase shares shall be returned to the participants as soon as
administratively feasible.
(c) Asset Sale, Merger, etc. In the event of the sale of all or
-----------------------
substantially all of the assets of pcOrder, or the merger or consolidation of
pcOrder with or into another corporation, or the dissolution or liquidation of
pcOrder, the Board shall provide for the assumption or substitution of each
option under the Plan by the successor or surviving corporation, or a parent or
subsidiary thereof, unless the Board decides to take such other action as it
deems appropriate, including, without limitation, providing for the termination
of the Plan and providing for a Purchase Date to occur on the trading day
immediately preceding the date of such termination.
18. Rights as an Employee.
---------------------
Nothing in the Plan shall be construed to give any person the right to
remain in the employ of the Company or any Subsidiary or to affect the Company's
or any Subsidiary's right to terminate the employment of any person at any time
with or without cause.
19. Rights as a Shareholder; Delivery of Certificates.
-------------------------------------------------
Participants shall be treated as the owners of their shares effective
as of the Purchase Date. Certificates evidencing shares purchased on any
Purchase Date shall be delivered to participants as soon as administratively
feasible, unless the Administrator determines that pcOrder instead of delivery
of share certificates (i) deliver a certificate (or equivalent) to a broker for
crediting to the Participant's account, or (ii) make a notation in the
Participant's favor of non-certificated shares on the Company's stock records.
8
<PAGE>
Exhibit 5.1
-----------
March 16, 2000
pcOrder.com, Inc.
5001 Plaza on the Lake
Austin, Texas 78746
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am delivering this opinion in my capacity as Vice President, General Counsel
and Secretary of pcOrder.com, Inc, a Delaware corporation ("pcOrder"), in
connection with the Registration Statement on Form S-8 (the "Registration
Statement") which pcOrder proposes to file with the Securities and Exchange
Commission on or about March 16, 2000 for the purpose of registering under the
Securities Act of 1933, as amended, 250,000 shares of its Class A Common Stock,
par value $.01 (the "Shares") issuable under pcOrder's Employee Stock Purchase
Plan and the Foreign Subsidiary Employee Stock Purchase Plan (the "Plans").
In connection with this opinion, I have assumed the authenticity of all records,
documents and instruments submitted to me as originals, the genuineness of all
signatures, the legal capacity of natural persons and the conformity to the
originals of all records, documents and instruments submitted to me as copies.
I have based my opinion upon my review of such records, documents and
instruments as I have deemed appropriate to render this opinion.
This opinion is limited to the General Corporation Law of the State of Delaware.
I disclaim any opinion as to any other statute, rule, regulation, ordinance,
order or other promulgation of any other jurisdiction or any regional or local
governmental body.
Based upon the foregoing and my examination of such questions of law as I have
deemed necessary or appropriate for the purpose of this opinion, and assuming
that (i) the Registration Statement becomes and remains effective during the
period when the Shares are offered and sold, (ii) appropriate certificates
evidencing the Shares will be executed and delivered upon the issuance of the
Shares, (iii) the full consideration stated in the Plans is paid for each Share,
and (iv) all applicable securities laws are complied with, it is my opinion
that, when issued by the Company, after payment therefor in the manner provided
in the Plans, the Shares covered by the Registration Statement will be legally
issued, fully paid and nonassessable.
<PAGE>
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Richard Friedman
Richard Friedman
Vice President, General Counsel and Secretary
2
<PAGE>
Exhibit 23.2
------------
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Employee Stock Purchase Plan and the Foreign
Subsidiary Employee Stock Purchase Plan of pcOrder.com, Inc. of our report dated
February 5, 1999, except for Note 10, as to which the date is February 25, 1999,
with respect to the financial statements of pcOrder.com, Inc. included in
Amendment No. 2 to the Registration Statement on Form S-1 (No. 333-90713), filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Austin, Texas
March 13, 2000
