As filed with the Securities and Exchange Commission on January 26, 2000
Registration No.333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
GENESISINTERMEDIA.COM, INC.
(Exact name of issuer as specified in its charter)
Delaware 95-4710370
(State or Other (I.R.S. Employer
Jurisdiction of Incorporation Identification No.)
or Organization)
5805 Sepulveda Boulevard, 4th Floor
Van Nuys, CA 91411
(818) 902-4300
(Address of Principal Executive Offices)
GENESISINTERMEDIA.COM, INC.
1998 AMENDED AND RESTATED STOCK INCENTIVE PROGRAM
(Full Title of the Plan)
Ramy El-Batrawi
GenesisIntermedia.com, Inc.
5805 Sepulveda Blvd., 4th Floor
Van Nuys, CA 91411
(Name and address of Agent for Service)
(818) 902-4300
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Theodore R. Maloney
Nida & Maloney, LLP
800 Anacapa St.
Santa Barbara, CA 93101
<TABLE>
<CAPTION> CALCULATION OF REGISTRATION FEE
============================ =================== ======================= ====================== ======================
<S> <C> <C> <C> <C>
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered (1) offering price per aggregate offering registration fee
share (2) price (2)
- ---------------------------- ------------------- ----------------------- ---------------------- ----------------------
Common Stock, par value
$.001 per share 600,000 $5.75 $3,450,000 $911
- ---------------------------- ------------------- ----------------------- ---------------------- ----------------------
</TABLE>
(1) This Registration Statement covers 600,000 shares of common stock of
GenesisIntermedia.com, Inc. which may be offered or sold pursuant to the
plan named above. This Registration Statement also relates to an
indeterminate number of shares of common stock that may be issued upon
stock splits, stock dividends or similar transactions in accordance with
Rule 416.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee, based upon the last sale price for a share of common
stock of GenesisIntermedia.com, Inc. on January 20, 2000, as reported by
the Nasdaq Stock Market, Inc.
================================================================================
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Items 1 and 2 of
Part I of Form S-8 will be sent or given to plan participants as specified in
Rule 428(b)(1) and, in accordance with the instructions to Part I, are not filed
with the Securities and Exchange Commission (the "Commission") as part of this
Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as filed by GenesisIntermedia.com, Inc. (the
"Registrant") with the Commission, are incorporated by reference in this
Registration Statement and made a part hereof:
(a) The description of common stock of the Registrant contained in the
Registration Statement on Form 8-A filed with the Commission on
December 9, 1998 (Commission File No. 000-25155).
(b) The Registrant's prospectus filed with the Commission under Rule
424(b) on June 15, 1999 with the Commission (Commission File No.
333-66281).
(c) The Quarterly Report on Form 10-QSB for the quarter ended September
30, 1999 filed with the Commission on November 15, 1999 (Commission
File No. 001-15029).
(d) The Quarterly Report on Form 10-QSB for the quarter ended June 30,
1999 filed with the Commission on August 16, 1999 (Commission File No.
001-15029).
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of filing of such documents. Any statement
contained in any document, all or a portion of which is 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 or
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.
The validity of the shares of the Registrant's common stock registered
hereunder will be passed upon for the Registrant by Nida & Maloney, LLP, with
its principal offices in Santa Barbara, California.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the
"Delaware Law") permits a corporation to provide in its certificate of
incorporation that directors of the corporation 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 (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for payments of unlawful dividends or unlawful
stock purchases or redemptions, or (iv) for any transaction from which the
director derived an improper personal benefit. The Registrant's Certificate of
Incorporation contains such a provision.
Section 145 of the Delaware Law provides that a corporation may
indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
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<PAGE>
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation -- a "derivative action"), 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, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with defense or settlement of such action, and the
statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation.
Under Section 145, a corporation shall indemnify an agent of the corporation for
expenses actually and reasonably incurred if and to the extent such person was
successful on the merits in a proceeding or in defense of any claim, issue or
matter therein.
The Registrant's is presently subject to Section 2115 of the California
Corporations Code (the "California Code"), according to which Section 317 of the
California Code applies to the indemnification of officers and directors of the
Registrant. Under Section 317 of the California Code, permissible
indemnification by a corporation of its officers and directors is substantially
the same as permissible indemnification under Section 145 of the Delaware Law,
except that (i) permissible indemnification does not cover actions the person
reasonably believed were not opposed to the best interests of the corporation,
as opposed to those the person believed were in fact in the best interests of
the corporation, (ii) the Delaware Law permits advancement of expenses to agents
other than officers and directors only upon approval of the board of directors,
(iii) in a case of stockholder approval of indemnification, the California Code
requires certain minimum votes in favor of such indemnification and excludes the
vote of the potentially indemnified person, and (iv) the California Code only
permits independent counsel to approve indemnification if an independent quorum
of directors is not obtainable, while the Delaware Law permits the directors in
any circumstances to appoint counsel to undertake such determination.
Section 145 of the Delaware Law and Section 317 of the California Code
provide that they are not exclusive of other indemnification that may be granted
by a corporation's charter, bylaws, disinterested director vote, stockholder
vote, agreement or otherwise. The limitation of liability contained in the
Registrant's Certificate of Incorporation and the indemnification provision
included in the Registrant's bylaws are consistent with Delaware Law Sections
102(b)(7) and 145 and California Code Section 317. The Registrant has purchased
directors and officers liability insurance.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to such provisions, the Registrant has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in such Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits at page 6.
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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
3
<PAGE>
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement;
(iii)To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Van Nuys, State of California on this 26th day of
January 2000.
GENESISINTERMEDIA.COM, INC.
By:/s/ Ramy El-Batrawi
--------------------------------
Ramy El-Batrawi
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ramy El-Batrawi and Douglas E. Jacobson,
or either of them, as his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same with all exhibits thereto or other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto each of said attorneys-in-fact and agents full power and authority
to do so and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that either of said
attorneys-in-fact and agents, or his substitute or substitutes, 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>
<S> <C> <C>
Signature Title Date
/s/ Ramy El-Batrawi
- ------------------------ Chief Executive Officer, Chairman January 26, 2000
Ramy El-Batrawi (Principal Executive Officer) and Director
/s/ Douglas E. Jacobson
- ------------------------ Chief Financial Officer (Principal Financial January 26, 2000
Douglas E. Jacobson and Accounting Officer) and Director
/s/ Craig A. Dinkel Chief Operating Officer January 26, 2000
- ------------------------
Craig A. Dinkel
/s/ George W. Heyworth Director January 26, 2000
- ------------------------
George W. Heyworth
</TABLE>
5
<PAGE>
GENESISINTERMEDIA.COM, INC.
INDEX TO EXHIBITS
<TABLE>
Exhibit
Number Exhibit
<S> <C>
4.1 GenesisIntermedia.com, Inc. Amended and Restated 1998 Stock
Incentive Program
4.2 Specimen Stock Certificate[1]
5.1 Opinion of Nida & Maloney, LLP
23.1 Consent of Singer Lewak Greenbaum & Goldstein, LLP
23.2 Consent of Nida & Maloney, LLP (included within Exhibit 5.1)
24.1 Power of Attorney (see page 6 of this Registration Statement)
- -----------------------------
</TABLE>
[1] Incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form SB-2 (Registration No. 333-66281) filed with the
Securities and Exchange Commission on December 4, 1998.
6
<PAGE>
GENESISINTERMEDIA.COM, INC.
AMENDED AND RESTATED 1998 STOCK INCENTIVE PROGRAM
1. Purpose. This Amended and Restated 1998 Stock Incentive
Program (the "Program") is intended to secure for GenesisIntermedia.com, Inc.
(the "Company"), its subsidiaries, and its stockholders the benefits arising
from ownership of the Company's common stock (the "Common Stock") by those
selected individuals of the Company and its subsidiaries, who will be
responsible for the future growth of such corporations. The Program is designed
to help attract and retain superior personnel for positions of substantial
responsibility with the Company and its subsidiaries, and to provide individuals
with an additional incentive to contribute to the success of the corporations.
Nothing contained herein shall be construed to amend or terminate any existing
options, whether pursuant to any existing plans or otherwise granted by the
Company.
2. Elements of the Program. In order to maintain flexibility
in the award of stock benefits, the Program is composed of seven parts. The
first part is the Incentive Stock Option Plan (the "Incentive Plan") under which
are granted incentive stock options (the "Incentive Options"). The second part
is the Non-Qualified Stock Option Plan (the "Nonqualified Plan") under which are
granted nonqualified stock options (the "Nonqualified Options"). The third part
is the Restricted Share Plan (the "Restricted Plan") under which are granted
restricted shares of Common Stock. The fourth part is the Employee Stock
Purchase Plan (the "Stock Purchase Plan"). The fifth part is the Non-Employee
Director Stock Option Plan (the "Directors Plan") under which grants of options
to purchase shares of Common Stock may be made to non-employee directors of the
Company. The sixth part is the Stock Appreciation Rights Plan (the "SAR Plan")
under which SARs (as defined therein) are granted. The seventh part is the Other
Stock Rights Plan (the "Stock Rights Plan") under which (i) units representing
the equivalent of shares of Common Stock (the "Performance Shares") are granted;
(ii) payments of compensation in the form of shares of Common Stock (the "Stock
Payments") are granted; and (iii) rights to receive cash or shares of Common
Stock based on the value of dividends paid with respect to a share of Common
Stock (the "Dividend Equivalent Rights") are granted. The Incentive Plan, the
Nonqualified Plan, the Restricted Plan, the Stock Purchase Plan, the Directors
Plan, the SAR Plan and the Stock Rights Plan are included herein as Part I, Part
II, Part III, Part IV, Part V, Part VI and Part VII, respectively, and are
collectively referred to herein as the "Plans." The grant of an option, SAR or
restricted share or rights to purchase shares under one of the Plans shall not
be construed to prohibit the grant of an option, SAR or restricted share or
rights to purchase shares under any of the other Plans.
3. Applicability of General Provisions. Unless any Plan
specifically indicates to the contrary, all Plans shall be subject to the
General Provisions of the Program set forth below.
4. Administration of the Plans. The Plans shall be
administered, construed, governed, and amended in accordance with their
respective terms.
<PAGE>
GENERAL PROVISIONS OF STOCK INCENTIVE PROGRAM
Article 1. Administration. The Program shall be administered by the
Company's Board of Directors (the "Board"). If an award is to be made to an
"Executive Officer" as defined in the Exchange Act (as hereinafter defined), it
must be approved if the Company has a class of equity securities registered
under Section 12 or 15(d) of the Exchange Act, by the Board or by a committee of
the Board, that is composed solely of two or more directors who are
"Non-Employee Directors" within the meaning of Rule 16b-3 promulgated pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
members of the Board, such committee of the Board or such other persons
appointed to administer the Program, when acting to administer the Program, are
herein collectively referred to as the "Program Administrators." To the extent
permitted under the Exchange Act, the Internal Revenue Code of 1986, as amended
(the "Code") or any other applicable law, the Program Administrators, shall have
the authority to delegate any and all power and authority to administer and
operate the Program hereunder to such person or persons as the Program
Administrators deems appropriate which if formed may be referred to by such
title specified by the Board. Subject to the foregoing limitations, as
applicable, the Board may from time to time remove members from the committee,
fill all vacancies on the committee, however caused, and may select one of the
members of the committee as its Chairman.
The Program Administrators shall hold meetings at such times and places as
they may determine and as necessary to approve all grants and other transactions
under the Program as required under Rule 16b-3(d) of the Exchange Act, shall
keep minutes of their meetings, and shall adopt, amend, and revoke such rules
and procedures as they may deem proper with respect to the Program. Any action
of the Program Administrators shall be taken by majority vote or the unanimous
written consent of the Program Administrators.
Article 2. Authority of Program Administrators. Subject to the other
provisions of this Program, and with a view to effecting its purpose, the
Program Administrators shall have sole authority, in their absolute discretion,
(a) to construe and interpret the Program; (b) to define the terms used herein;
(c) to determine the individuals to whom options and restricted shares and
rights to purchase shares shall be granted under the Program; (d) to determine
the time or times at which options and restricted shares or rights to purchase
shares shall be granted under the Program; (e) to determine the number of shares
subject to each option, restricted share and purchase right, the duration of
each option granted under the Program, and the price of any share purchase; (f)
to determine all of the other terms and conditions of options and restricted
shares and purchase rights granted under the Program; and (g) to make all other
determinations necessary or advisable for the administration of the Program and
to do everything necessary or appropriate to administer the Program; provided,
however, that the Board shall establish the price for all shares issued
hereunder. All decisions, determinations, and interpretations made by the
Program Administrators shall be binding and conclusive on all participants in
the Program (the "Plan Participants") and on their legal representatives, heirs
and beneficiaries.
Article 3. Maximum Number of Shares Subject to the Program. The maximum
aggregate number of shares of Common Stock subject to the Plans shall be 600,000
shares. Subject to the limitation contained in Section 2 of Part 1, the maximum
number of shares of Common Stock issuable pursuant to the Plans to any single
Plan Participant in any given fiscal year shall be three percent (3%) of the
total number of issued and outstanding shares of Common Stock of the Company.
The board of directors of the Company shall make recommendations to the Program
Administrators from time to time with respect to the allocation of the shares
reserved under the Plans for the directors, officers, employees and agents of
the Company and its wholly owned subsidiary, GenesisIntermedia, Inc. The shares
of Common Stock issued under the Plans may be authorized but unissued shares,
shares issued and reacquired by the Company or shares purchased by the Company
on the open market. If any of the options granted under the Program expire or
2
<PAGE>
terminate for any reason before they have been exercised in full, the
unpurchased shares subject to those expired or terminated options shall cease to
reduce the number of shares available for purposes of the Program. If the
conditions associated with the grant of restricted shares are not achieved
within the period specified for satisfaction of the applicable conditions, or if
the restricted share grant terminates for any reason before the date on which
the conditions must be satisfied, the shares of Common Stock associated with
such restricted shares shall cease to reduce the number of shares available for
purposes of the Program.
The proceeds received by the Company from the sale of its Common Stock
pursuant to the exercise of options, transfer of restricted shares or issuance
of stock purchased under the Program, if in the form of cash, shall be added to
the Company's general funds and used for general corporate purposes.
Article 4. Eligibility and Participation. Officers, employees, directors
(whether employee directors or non-employee directors), and independent
contractors or agents of the Company or its subsidiaries who are responsible for
or contribute to the management, growth or profitability of the business of the
Company or its subsidiaries shall be eligible for selection by the Program
Administrators to participate in the Program. However, Incentive Options may be
granted under the Incentive Plan only to a person who is an employee of the
Company or its subsidiaries. An employee may be granted Nonqualified Options
under the Program; provided, however, that the grant of Nonqualified Options and
Incentive Options to an employee shall be the grant of separate options and each
Nonqualified Option and each Incentive Option shall be specifically designated
as such in accordance with applicable provisions of the Treasury Regulations.
The term "subsidiary" as used herein means any company, other than the
Company, in an unbroken chain of companies, beginning with the Company if, at
the time of any grant hereunder, each of the companies, other than the last
company in the unbroken chain, owns stock possessing more than 50% of the total
combined voting power of all classes of stock in one of the other companies in
such chain.
Article 5. Effective Date and Term of Program. The Program shall become
effective upon its adoption by the Board of Directors of the Company subject to
approval of the Program by a majority of the voting shares of the Company voting
in person or by proxy at a meeting of stockholders, in either case following
adoption of the Program by the Board of Directors, which vote shall be taken or
consent granted within 12 months of adoption of the Program by the Company's
Board of Directors. The Program shall continue in effect for a term of 10 years
unless sooner terminated under Article 7 of these General Provisions.
Article 6. Adjustments. If the outstanding shares of Common Stock are
increased, decreased, changed into, or exchanged for a different number or kind
of shares or securities through merger, consolidation, combination, exchange of
shares, other reorganization, recapitalization, reclassification, stock
dividend, stock split or reverse stock split, an appropriate and proportionate
adjustment shall be made in the maximum number and kind of shares as to which
options and restricted shares may be granted under this Program. A corresponding
adjustment changing the number and kind of shares allocated to unexercised
options, restricted shares, or portions thereof, which shall have been granted
prior to any such change, shall likewise be made. Any such adjustment in
outstanding options shall be made without change in the aggregate purchase price
applicable to the unexercised portion of the option, but with a corresponding
adjustment in the price for each share or other unit of any security covered by
the option.
Article 7. Termination and Amendment of Program. The Program shall
terminate 10 years from the date the Program is adopted by the Board of
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Directors, or, if applicable, the date a particular Plan is approved by the
stockholders, whichever is earlier, or shall terminate at such earlier time as
the Board of Directors may so determine. No options or restricted shares shall
be granted and no stock shall be sold and purchased under the Program after that
date. Subject to the limitation contained in Article 8 of these General
Provisions, the Program Administrators may at any time amend or revise the terms
of the Program, including the form and substance of the option, restricted share
and stock purchase agreements to be used hereunder; provided, however, that
without approval by the stockholders of the Company representing a majority of
the voting power (as contained in Article 5 of these General Provisions) no
amendment or revision shall (a) increase the maximum aggregate number of shares
that may be sold or distributed pursuant to options granted or stock sold and
purchased under Part 1 or Part IV, except as permitted under Article 6 of these
General Provisions; (b) change the minimum purchase price for shares under
Section 4 of Part I or the Purchase Price for shares under Part IV; (c) increase
the maximum term established under Parts I or IV for any option or restricted
share; (d) permit the granting of an option, or right to purchase shares under
Parts I or IV to anyone other than as provided in Article 4 of the General
Provisions; (e) change the term of Parts I or IV described in Article 5 of these
General Provisions; or (f) materially increase the benefits accruing to Plan
Participants under Parts I or IV of the Program.
Article 8. Prior Rights and Obligations. No amendment, suspension, or
termination of the Program shall, without the consent of the individual who has
received an option or restricted share or who has purchased a specified share or
shares under Part IV, alter or impair any of that person's rights or obligations
under any option or restricted share granted or shares sold and purchased under
the Program prior to that amendment, suspension, or termination.
Article 9. Privileges of Stock Ownership. Notwithstanding the exercise of
any option granted pursuant to the terms of this Program, the achievement of any
conditions specified in any restricted share granted pursuant to the terms of
this Program or the election to purchase any shares pursuant to the terms of
this Program, no individual shall have any of the rights or privileges of a
stockholder of the Company in respect of any shares of stock issuable upon the
exercise of his or her option, the satisfaction of his or her restricted share
conditions or the sale, purchase and issuance of such purchased shares until
certificates representing the shares have been issued and delivered. No shares
shall be required to be issued and delivered upon exercise of any option,
satisfaction of any conditions with respect to a restricted share or a purchaser
under Part IV unless and until all of the requirements of law and of all
regulatory agencies having jurisdiction over the issuance and delivery of the
securities shall have been fully complied with.
Article 10. Reservation of Shares of Common Stock. The Company, during the
term of this Program, will at all times reserve and keep available such number
of shares of its Common Stock as shall be sufficient to satisfy the requirements
of the Program. In addition, the Company will from time to time, as is necessary
to accomplish the purposes of this Program, seek or obtain from any regulatory
agency having jurisdiction any requisite authority in order to issue and sell
shares of Common Stock hereunder. The inability of the Company to obtain from
any regulatory agency having jurisdiction the authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any shares of its
stock hereunder shall relieve the Company of any liability in respect of the
nonissuance or sale of the stock as to which the requisite authority shall not
have been obtained.
Article 11. Tax Withholding. The exercise of any option or restricted share
granted or the sale and issuance of any shares to be purchased under this
Program are subject to the condition that if at any time the Company shall
determine, in its discretion, that the satisfaction of withholding tax or other
4
<PAGE>
withholding liabilities under any state or federal law is necessary or desirable
as a condition of, or in connection with, such exercise or the delivery or
purchase of shares pursuant thereto, then in such event, the exercise of the
option or restricted share or the sale and issuance of any shares to be
purchased shall not be effective unless such withholding shall have been
effected or obtained in a manner acceptable to the Company. At the Company's
sole and complete discretion, the Company may, from time to time, accept shares
of the Company's stock subject to one of the Plans as the source of payment for
such liabilities.
Article 12. Compliance with Law. It is the express intent of the Company
that this Program complies in all respect with all applicable provisions of
state and federal law, including without limitation Section 25102(o) of the
California Corporations Code to the extent such Section is applicable to the
Company. It is the express intent of the Company that when the Company becomes
publicly-traded that this Program shall comply in all respects with applicable
provisions of the Rule 16b-3 or Rule 16a-1(c)(3) under the Exchange Act in
connection with any grant of awards to, or other transaction by, a Plan
Participant who is subject to Section 16 of the Exchange Act (except for
transactions exempted under alternative Exchange Act Rules). Accordingly, if any
provision of the Program or any agreement relating to any award thereunder does
not comply with Rule 16b-3 or Rule 16a-1(c)(3) as then applicable to any such
transaction, such provision will be construed or deemed amended to the extent
necessary to conform to the applicable requirements of Rule 16b-3 or Rule
16a-1(c)(3) so that such Plan Participant shall avoid liability under Section
16(b). Unless otherwise provided in any grant or award to any person who is or
may thereafter be subject to Section 16 of the Exchange Act the approval of
shall include the approval of the disposition of the Company of Company equity
securities for the purposes of satisfying the payment of the exercise or
purchase price or tax withholding obligations related to such grant or award
within the meaning of Section 16b-3(e).
Article 13. Indemnification. No Program Administrator, as that term is
defined in the Program, or any officer or employee of the Company or an
affiliate acting at the direction or on behalf of the Program Administrator
shall be personally liable for any action or determination taken or made in good
faith with respect to the Program, and shall, to the extent permitted by law, be
fully indemnified and protected by the Company with respect to any such action
or determination.
Article 14. Performance-Based Awards.
(a) Each agreement for the grant of Performance Shares shall
specify the number of Performance Shares subject to such agreement,
the Performance Period and the Performance Objective (each as defined
below), and each agreement for the grant of any other award that the
Program Administrators determine to make subject to a Performance
Objective similarly shall specify the applicable number of shares of
Common Stock, the period for measuring performance and the Performance
Objective. As used herein, "Performance Objective" means a performance
objective specified in the agreement for a Performance Share, or for
any other award which the Program Administrators determine to make
subject to a Performance Objective, upon which the vesting or
settlement of such award is conditioned and "Performance Period" means
the period of time specified in an agreement over which Performance
Shares, or another award which the Program Administrators determine to
make subject to a Performance Objective, are to be earned. Each
agreement for a performance-based grant shall specify in respect of a
Performance Objective the minimum level of performance below which no
payment will be made, shall describe the method for determining the
amount of any payment to be made if performance is at or above the
minimum acceptable level, but falls short of full achievement of the
Performance Objective, and shall specify the maximum percentage payout
under the agreement. Such maximum percentage in no event shall exceed
one hundred percent (100%) in the case of performance-based restricted
shares and two hundred percent (200%) in the case of Performance
Shares or performance-based Dividend Equivalent Rights.
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(b) The Program Administrators shall determine and specify, in
their discretion, the Performance Objective in the agreement for a
Performance Share or for any other performance-based award, which
Performance Objective shall consist of: (i) one or more business
criteria, including (except as limited under subparagraph (c) below
for awards to Covered Employees (as defined below)) financial, service
level and individual performance criteria; and (ii) a targeted level
or levels of performance with respect to such criteria. Performance
Objectives may differ between Plan Participants and between types of
awards from year to year.
(c) The Performance Objective for Performance Shares and any
other performance-based award granted to a Covered Employee, if deemed
appropriate by the Program Administrators, shall be objective and
shall otherwise meet the requirements of Section 162(m)(4)(C) of the
Code, and shall be based upon one or more of the following
performance-based business criteria, either on a business unit or
Company-specific basis or in comparison with peer group performance:
net sales; gross sales; return on net assets; return on assets; return
on equity; return on capital; return on revenues; cash flow; book
value; share price performance (including Options and SARs tied solely
to appreciation in the Fair Market Value of the shares); earnings per
share; stock price earnings ratio; earnings before interest, taxes,
depreciation and amortization expenses ("EBITDA"); earnings before
interest and taxes ("EBIT"); or EBITDA, EBIT or earnings before taxes
and unusual or nonrecurring items as measured either against the
annual budget or as a ratio to revenue. Achievement of any such
Performance Objective shall be measured over a period of years not to
exceed ten (10) as specified by the Program Administrators in the
agreement for the performance-based award. No business criterion other
than those named above in this Article 14(c) may be used in
establishing the Performance Objective for an award to a Covered
Employee under this Article 14. For each such award relating to a
Covered Employee, the Program Administrators shall establish the
targeted level or levels of performance for each such business
criterion. The Program Administrators may, in their discretion, reduce
the amount of a payout otherwise to be made in connection with an
award under this Article 14(c), but may not exercise discretion to
increase such amount, and the Program Administrators may consider
other performance criteria in exercising such discretion. All
determinations by the Program Administrators as to the achievement of
Performance Objectives under this Article 14(c) shall be made in
writing. The Program Administrators may not delegate any
responsibility under this Article 14(c). As used herein, "Covered
Employee" shall mean, with respect to any grant of an award, an
executive of the Company or any subsidiary who is a member of the
executive compensation group under the Company's compensation
practices (not necessarily an executive officer) whom the Program
Administrators deem may be or become a covered employee as defined in
Section 162(m)(3) of the Code for any year that such award may result
in remuneration over $1 million which would not be deductible under
Section 162(m) of the Code but for the provisions of the Program and
any other "qualified performance-based compensation" plan (as defined
under Section 162(m) of the Code) of the Company; provided, however,
that the Program Administrators may determine that a Plan Participant
has ceased to be a Covered Employee prior to the settlement of any
award.
(d) The Program Administrators, in their sole discretion, may
require that one or more award agreements contain provisions which
provide that, in the event Section 162(m) of the Code, or any
successor provision relating to excessive employee remuneration, would
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operate to disallow a deduction by the Company with respect to all or
part of any award under the Program, a Plan Participant's receipt of
the benefit relating to such award that would not be deductible by the
Company shall be deferred until the next succeeding year or years in
which the Plan Participant's remuneration does not exceed the limit
set forth in such provisions of the Code.
Article 15. Death Beneficiaries. In the event of a Plan Participant's
death, all of such person's outstanding awards, including his or her rights to
receive any accrued but unpaid Stock Payments, will transfer to the maximum
extent permitted by law to such person's beneficiary (except to the extent a
permitted transfer of a Nonqualified Option or SAR was previously made pursuant
hereto). Each Plan Participant may name, from time to time, any beneficiary or
beneficiaries (which may be named contingently or successively) as his or her
beneficiary for purposes of this Program. Each designation shall be on a form
prescribed by the Program Administrators, will be effective only when delivered
to the Company, and when effective will revoke all prior designations by the
Plan Participant. If a Plan Participant dies with no such beneficiary
designation in effect, such person's beneficiary shall be his or her estate and
such person's awards will be transferable by will or pursuant to laws of descent
and distribution applicable to such person.
Article 16. Unfunded Program. The Program shall be unfunded and the Company
shall not be required to segregate any assets that may at any time be
represented by awards under the Program. Neither the Company, its affiliates,
the Program Administrators, nor the Board shall be deemed to be a trustee of any
amounts to be paid under the Program nor shall anything contained in the Program
or any action taken pursuant to its provisions create or be construed to create
a fiduciary relationship between any such party and a Plan Participant or anyone
claiming on his or her behalf. To the extent a Plan Participant or any other
person acquires a right to receive payment pursuant to an award under the
Program, such right shall be no greater than the right of an unsecured general
creditor of the Company.
Article 17. Choice of Law and Venue. The Program and all related documents
shall be governed by, and construed in accordance with, the laws of the State of
California. Acceptance of an award shall be deemed to constitute consent to the
jurisdiction and venue of the state and federal courts located in Los Angeles,
State of California for all purposes in connection with any suit, action or
other proceeding relating to such award, including the enforcement of any rights
under the Program or any agreement or other document, and shall be deemed to
constitute consent to any process or notice of motion in connection with such
proceeding being served by certified or registered mail or personal service
within or without the State of California, provided a reasonable time for
appearance is allowed.
Article 18. Arbitration. Any disputes involving the Program will be
resolved by arbitration in Los Angeles, California before one (1) arbitrator in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association.
Article 19. Program Administrators' Right. Except as may be provided in an
award agreement, the Program Administrators may, in their discretion, waive any
restrictions or conditions applicable to, or accelerate the vesting of, any
award (other than the right to purchase shares pursuant to the Stock Purchase
Plan).
Article 20. Termination of Benefits Under Certain Conditions. The Program
Administrators, in their sole discretion, may cancel any unexpired, unpaid or
deferred award (other than a right to purchase shares pursuant to the Stock
Purchase Plan) at any time if the Plan Participant is not in compliance with all
applicable provisions of the Program or any award agreement or if the Plan
Participant, whether or not he or she is currently employed by the Company or
one of its subsidiaries, acts in a manner contrary to the best interests of the
Company and its subsidiaries.
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Article 21. Conflicts in Program. In case of any conflict in the terms of
the Program, or between the Program and an award agreement, the provisions in
the Program which specifically grant such award shall control, and the
provisions in the Program shall control over the provisions in any award
agreement.
Article 22. Optional Deferral. The right to receive any award under the
Program (other than the right to purchase shares pursuant to the Stock Purchase
Plan) may, at the request of the Plan Participant, be deferred to such period
and upon such terms and conditions as the Program Administrators shall, in their
discretion, determine, which may include crediting of interest on deferrals of
cash and crediting of dividends on deferrals denominated in shares of Common
Stock.
Article 23. Information to Plan Participants. To the extent required by
applicable law, the Company shall provide Plan Participants with the Company's
financial statements at least annually.
Article 24. Company's Right of First Refusal. Right of First
Refusal. Any attempt by any Plan Participant to sell, transfer or otherwise
dispose of any securities issued to such Plan Participant hereunder or upon
exercise of any other security or other right issued hereunder, that is
transferable in accordance with the terms of this Program and applicable law,
must also comply with the following provisions:
(a) The Plan Participant must have received a bona fide offer to purchase
the securities (the "Offer") and the Plan Participant must then give
written notice to the Company outlining the terms of the Offer
(including the identity of the maker of the Offer (the "Offeror")).
The Company shall then have the right, for a period of sixty (60)
days, to repurchase all, but not less than all, of the securities
offered by the Plan Participant upon the terms contained in the Offer.
If the Offer includes the payment of non-cash consideration for the
securities, the Company shall pay an amount equal to the fair market
value of such non-cash consideration;
(b) If the Company does not exercise its rights hereunder, the Plan
Participant may, within sixty (60) days thereafter, sell the offered
securities to the Offeror upon terms not more favorable to the Offeror
than those contained in the Offer. Any sale of securities by the Plan
Participant after the expiration of the sixty (60) day period referred
to in the preceding sentence shall be deemed a new transaction subject
to the Company's right of first refusal here; and
(c) The Company's right of first refusal shall terminate when the
Company's securities become publicly traded.
Article 25. Lock-Up. To the extent requested by any managing underwriter to
the Company, the Plan Participants shall enter into such market lock-up, escrow
or other agreements as may be requested by such underwriter in connection with
any public offering of the Company's securities.
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PART I
GENESISINTERMEDIA.COM, INC.
INCENTIVE STOCK OPTION PLAN
Section 1. Purpose. The purpose of this GenesisIntermedia.com, Inc.
Incentive Stock Option Plan (the "Incentive Plan") is to promote the growth and
general prosperity of the Company by permitting the Company to grant options to
purchase shares of its Common Stock. The Incentive Plan is designed to help
attract and retain superior personnel for positions of substantial
responsibility with the Company and its subsidiaries, and to provide individuals
with an additional incentive to contribute to the success of the Company. The
Company intends that options granted pursuant to the provisions of the Incentive
Plan will qualify as "incentive stock options" within the meaning of Section 422
of the Code. This Incentive Plan is Part I of the Program. Unless any provision
herein indicates to the contrary, this Incentive Plan shall be subject to the
General Provisions of the Program.
Section 2. Maximum Number of Shares; Option Terms and
Conditions. The maximum aggregate number of shares of Common Stock subject to
the Incentive Plan shall be 200,000. The terms and conditions of options granted
under the Incentive Plan may differ from one another as the Program
Administrators shall, in its discretion, determine as long as all options
granted under the Incentive Plan satisfy the requirements of the Incentive Plan.
Section 3. Duration of Options. Each option and all rights thereunder
granted pursuant to the terms of the Incentive Plan shall expire on the date
determined by the Program Administrators, but in no event shall any option
granted under the Incentive Plan expire later than ten (10) years from the date
on which the option is granted. However, notwithstanding the above portion of
this Section 3, if at the time the option is granted the grantee (the
"Optionee") owns or would be considered to own by reason of Code Section 424(d)
more than 10% of the total combined voting power of all classes of stock of the
Company or its subsidiaries, such option shall expire not more than 5 years from
the date the option is granted. In addition, each option shall be subject to
early termination as provided in the Incentive Plan.
Section 4. Purchase Price. The purchase price for shares acquired pursuant
to the exercise, in whole or in part, of any option shall not be less than the
fair market value of the shares at the time of the grant of the option. Fair
market value (the "Fair Market Value") shall be determined by the Program
Administrators on the basis of such factors as they deem appropriate; provided,
however, that Fair Market Value on any day shall be deemed to be, if the Common
Stock is traded on a national securities exchange, the closing price (or, if no
reported sale takes place on such day, the mean of the reported bid and asked
prices) of the Common Stock on such day on the principal such exchange, or, if
the stock is included on the composite tape, the composite tape. In each case,
the Program Administrators' determination of Fair Market Value shall be
conclusive.
Notwithstanding the above portion of this Section 4, if at the time an
option is granted the Optionee owns or would be considered to own by reason of
Code Section 424(d) more than 10% of the total combined voting power of all
classes of stock of the Company or its subsidiaries, the purchase price of the
shares covered by such option shall not be less than 110% of the Fair Market
Value of a share of Common Stock on the date the option is granted.
Section 5. Maximum Amount of Options Exercisable in Any Calendar Year.
Notwithstanding any other provision of this Incentive Plan, the aggregate Fair
Market Value (determined at the time any Incentive Stock Option is granted) of
the Common Stock with respect to which Incentive Stock Options become
exercisable for the first time by any employee during any calendar year under
all stock option plans of the Company and its subsidiaries shall not exceed
$100,000.
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Section 6. Exercise of Options. Each option shall be exercisable in one or
more installments during its term as determined by the Program Administrators,
and the right to exercise may be cumulative as determined by the Program
Administrators. Each option shall be exercisable at a rate of at least twenty
percent (20%) per year over five (5) years from the date the option is granted,
subject to such reasonable conditions as determined by the Program
Administrators. No option may be exercised for a fraction of a share of Common
Stock. The purchase price of any shares purchased shall be paid in full in cash
or by certified or cashier's check payable to the order of the Company or by
shares of Common Stock, if permitted by the Program Administrators, or by a
combination of cash, check, or shares of Common Stock, at the time of exercise
of the option. If any portion of the purchase price is paid in shares of Common
Stock, those shares shall be tendered at their then Fair Market Value as
determined by the Program Administrators in accordance with Section 4 of this
Incentive Plan. Payment in shares of Common Stock includes the automatic
application of shares of Common Stock received upon exercise of an option to
satisfy the exercise price for additional options.
Section 7. Reorganization. In the event of the dissolution or liquidation
of the Company, any option granted under the Incentive Plan shall terminate as
of a date to be fixed by the Program Administrators; provided that not less than
30 days' written notice of the date so fixed shall be given to each Optionee and
each such Optionee shall have the right during such period (unless such option
shall have previously expired) to exercise any option, including any option that
would not otherwise be exercisable by reason of an insufficient lapse of time.
In the event of a Reorganization (as defined below) in which the Company is
not the surviving or acquiring company, or in which the Company is or becomes a
subsidiary of another company after the effective date of the Reorganization,
then:
(a) if there is no plan or agreement respecting the Reorganization (the
"Reorganization Agreement") or if the Reorganization Agreement does
not specifically provide for the change, conversion or exchange of the
outstanding options for options of another corporation, then exercise
and termination provisions equivalent to those described in this
Section 7 shall apply; or
(b) if there is a Reorganization Agreement and if the Reorganization
Agreement specifically provides for the change, conversion, or
exchange of the outstanding options for options of another
corporation, then the Program Administrators shall adjust the
outstanding unexercised options (and shall adjust the options
remaining under the Incentive Plan which have not yet been granted if
the Reorganization Agreement makes specific provision for such an
adjustment) in a manner consistent with the applicable provisions of
the Reorganization Agreement.
The term "Reorganization" as used in this Section 7 shall mean any statutory
merger, statutory consolidation, sale of all or substantially all of the assets
of the Company or a sale of the Common Stock pursuant to which the Company is or
becomes a subsidiary of another company after the effective date of the
Reorganization.
Adjustments and determinations under this Section 7 shall be made by the
Program Administrators, whose decisions as to such adjustments or determinations
shall be final, binding, and conclusive.
Section 8. Written Notice Required. Any option granted pursuant to the
terms of the Incentive Plan shall be exercised when written notice of that
exercise has been given to the Company at its principal office by the person
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entitled to exercise the option and full payment for the shares with respect to
which the option is exercised, together with payment of applicable income taxes,
has been received by the Company.
Section 9. Compliance with Securities Laws. Shares shall not be issued with
respect to any option granted under the Incentive Plan, unless the exercise of
that option and the issuance and delivery of the shares pursuant to that
exercise shall comply with all applicable provisions of foreign, state and
federal law including, without limitation, the Securities Act of 1933, as
amended, and the Exchange Act, and the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance. The Program Administrators may also
require an Optionee to furnish evidence satisfactory to the Company, including a
written and signed representation letter and consent to be bound by any transfer
restriction imposed by law, legend, condition, or otherwise, that the shares are
being purchased only for investment and without any present intention to sell or
distribute the shares in violation of any state or federal law, rule, or
regulation. Further, each Optionee shall consent to the imposition of a legend
on the shares of Common Stock subject to his or her Option and the imposition of
stop-transfer instructions restricting their transferability as required by law
or by this Section 9.
Section 10. Employment of Optionee. Each Optionee, if requested by the
Program Administrators, must agree in writing as a condition of receiving his or
her option, that he or she will remain in the employment of the Company or its
subsidiary corporations following the date of the granting of that option for a
period specified by the Program Administrators. Nothing in the Incentive Plan or
in any option granted hereunder shall confer upon any Optionee any right to
continued employment by the Company or its subsidiary corporations or limit in
any way the right of the Company or its subsidiary corporations at any time to
terminate or alter the terms of that employment.
Section 11. Option Rights Upon Termination of Employment. If an Optionee
ceases to be employed by the Company or any subsidiary corporation for any
reason other than death or disability, his or her option shall terminate within
thirty (30) days after the date of termination of employment; provided, however,
that in the event employment is terminated for cause as defined by applicable
law, his or her option shall terminate immediately, provided, further, however,
that the Program Administrators may, in their sole and absolute discretion,
allow the option to be exercised (to the extent exercisable on the date of
termination of employment) at any time within sixty (60) days after the date of
termination of employment, unless either the option or the Incentive Plan
otherwise provides for earlier termination.
Section 12. Option Rights Upon Disability. If an Optionee becomes disabled
within the meaning of Code Section 422(e)(3) while employed by the Company or
any subsidiary corporation, the Program Administrators, in their discretion, may
allow the option to be exercised, to the extent exercisable on the date of
termination of employment, at any time within one year after the date of
termination of employment due to disability, unless either the option or the
Incentive Plan otherwise provides for earlier termination.
Section 13. Option Rights Upon Death of Optionee. Except as otherwise
limited by the Program Administrators at the time of the grant of an option, if
an Optionee dies while employed by the Company or any subsidiary corporation,
his or her Option shall expire one year after the date of death unless by its
terms it expires sooner. During this one year or shorter period, the option may
be exercised, to the extent that it remains unexercised on the date of death, by
the person or persons to whom the Optionee's rights under the option shall pass
by will or by the laws of descent and distribution, but only to the extent that
the Optionee is entitled to exercise the option at the date of death.
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Section 14. Options Not Transferable. Options granted pursuant to the terms
of the Incentive Plan may not be sold, pledged, assigned, or transferred in any
manner otherwise than by will or the laws of descent or distribution and may be
exercised during the lifetime of an Optionee only by that Optionee. No such
options shall be pledged or hypothecated in any way nor shall they be subject to
execution, attachment, or similar process.
Section 15. Adjustments to Number and Purchase Price of Optioned Shares.
All options granted pursuant to the terms of this Incentive Plan shall be
adjusted in the manner prescribed by Article 6 of the General Provisions of this
Program.
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GENESISINTERMEDIA.COM, INC. INCENTIVE STOCK OPTION PLAN
GRANT OF OPTION
Date of Grant: ____________________, ____
THIS GRANT, dated as of the date of grant first stated above (the "Date of
Grant") , is delivered by, GenesisIntermedia.com, Inc., a Delaware corporation
(the "Company") to ____________________ (the "Grantee"), who is an employee of
the Company or one of its subsidiaries (the Grantee's employer is sometimes
referred to herein as the "Employer").
WHEREAS, the Board of Directors of the Company (the "Board") on October 1,
1998 adopted, with subsequent stockholder approval, the GenesisIntermedia.com,
Inc. Incentive Stock Option Plan which the Board thereafter amended and restated
(as amended and restated, the "Plan");
WHEREAS, the Plan provides for the granting of incentive stock options by
the Board or Program Administrators to employees of the Company or any
subsidiary of the Company to purchase, or to exercise certain rights with
respect to, shares of the Common Stock of the Company, no par value (the
"Stock"), in accordance with the terms and provisions thereof; and
WHEREAS, the Program Administrators consider the Grantee to be
a person who is eligible for a grant of incentive stock options under the Plan,
and has determined that it would be in the best interest of the Company to grant
the incentive stock options documented herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Grant of Option.
Subject to the terms and conditions hereinafter set forth, the Company,
with the approval and at the direction of the Program Administrators, hereby
grants to the Grantee, as of the Date of Grant, an option to purchase up to
_____ shares of Stock at a price of $_____ per share, the fair market value (or,
with respect to 10% stockholders, 110% of fair market value). Such option is
hereinafter referred to as the "Option" and the shares of stock purchasable upon
exercise of the Option are hereinafter sometimes referred to as the "Option
Shares." The Option is intended by the parties hereto to be, and shall be
treated as, an incentive stock option (as such term is defined under Section 422
of the Internal Revenue Code of 1986).
2. Installment Exercise.
Subject to such further limitations as are provided herein, the Option
shall become exercisable in __________ installments, the Grantee having the
right hereunder to purchase from the Company the following number of Option
Shares upon exercise of the Option, on and after the following dates, in
cumulative fashion as determined by the Program Administrators:
- ----------------------------
3. Termination of Option.
(a) The Option and all rights hereunder with respect thereto, to the extent
such rights shall not have been exercised, shall terminate and become null and
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void after the expiration of _____ years from the Date of Grant (the "Option
Term" [no more than 10 years from Date of Grant or, in the case of a 10% owner,
no more than five years from Date of Grant]).
(b) Upon the occurrence of the Grantee's ceasing for any reason to be
employed by the Employer (such occurrence being a "termination of the Grantee's
employment"), the Option, to the extent not previously exercised, shall
terminate and become null and void within thirty (30) days after the date of
such termination of the Grantee's employment, except (1) in the event employment
is terminated for cause as defined by applicable law, in which case Grantee's
shall terminate and become null and void immediately or (2) in a case where the
Program Administrators may otherwise determine in its sole and absolute
discretion for up to sixty (60) days following the termination of employment. As
determined by the Program Administrators, upon a termination of the Grantee's
employment by reason of disability or death, the Option may be exercised, but
only to the extent that the Option was outstanding and exercisable on such date
of disability or death, up to a one-year period following the date of such
termination of the Grantee's employment.
(c) In the event of the death of the Grantee, the Option may be exercised
by the Grantee's legal representative, but only to the extent that the option
would otherwise have been exercisable by the Grantee.
(d) A transfer of the Grantee's employment between the Company and any
subsidiary of the Company, or between any subsidiaries of the Company, shall not
be deemed to be a termination of the Grantee's employment.
4. Exercise of Options.
(a) The Grantee may exercise the option with respect to all or any part of
the number of option Shares then exercisable hereunder by giving the Secretary
of the Company written notice of intent to exercise. The notice of exercise
shall specify the number of Option Shares as to which the Option is to be
exercised and the date of exercise thereof.
(b) Full payment (in U.S. dollars) by the Grantee of the option price for
the Option Shares purchased shall be made on or before the exercise date
specified in the notice of exercise in cash, or, with the prior written consent
of the Program Administrators, in whole or in part through the surrender of
shares of Stock at their fair market value on the exercise date. The Grantee
shall also pay any required income tax withholding taxes which may be payable in
U.S. dollars or Option shares if acceptable to the Company.
(c) On the exercise date specified in the Grantee's notice or as soon
thereafter as is practicable, the Company shall cause to be delivered to the
Grantee, a certificate or certificates for the option Shares then being
purchased (out of theretofore unissued stock or reacquired Stock, as the Company
may elect) upon full payment for such option Shares. However, if (i) the Grantee
is subject to Section 16 of the Securities Exchange Act of 1934 and (ii) the
Grantee exercises the Option before six months have passed from the Date of
Grant, the Company shall be permitted to hold in its custody any stock
certificate arising from such exercise until six months has passed from the Date
of Grant. The obligation of the Company to deliver Stock shall, however, be
subject to the condition that if at any time the Program Administrators shall
determine in its discretion that the listing, registration or qualification of
the Option or the Option Shares upon 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 Option
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or the issuance or purchase of Stock thereunder, the 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 Program Administrators.
(d) If the Grantee fails to pay for any of the Option Shares specified in
such notice or fails to accept delivery thereof, the Grantee's right to purchase
such Option Shares may be terminated by the Company. The date specified in the
Grantee's notice as the date of exercise shall be deemed the date of exercise of
the Option, provided that payment in full for the Option Shares to be purchased
upon such exercise shall have been received by such date.
5. Adjustment of and Changes in Stock of the Company.
In the event of a reorganization, recapitalization, change of shares, stock
split, spin-off, stock dividend, reclassification, subdivision or combination of
shares, merger, consolidation, rights offering, or any other change in the
corporate structure or shares of capital stock of the Company, the Program
Administrators shall make such adjustment as may be required under the
applicable reorganization agreement in the number and kind of shares of Stock
subject to the Option or in the option price; provided, however, that no such
adjustment shall give the Grantee any additional benefits under the Option. If
there is no provision for the treatment of the Option under an applicable
reorganization agreement, the Option may terminate on a date determined by the
Program Administrators following at least 30 days written notice to the Grantee.
6. Fair Market Value.
As used herein, the "fair market value" of a share of Stock shall be
determined by the Board. However, if the Stock is publicly-traded, fair market
value of a share of Stock shall be based upon the closing or other appropriate
trading price per share of Stock on a national securities exchange.
7. No Rights of Stockholders.
Neither the Grantee nor any personal representative shall be, or shall have
any of the rights and privileges of, a stockholder of the Company with respect
to any shares of Stock purchasable or issuable upon the exercise of the Option,
in whole or in part, prior to the date of exercise of the Option.
8. Non-Transferability of Option.
During the Grantee's lifetime, the Option hereunder shall be exercisable
only by the Grantee or any guardian or legal representative of the Grantee, and
the option shall not be transferable except, in case of the death of the
Grantee, by will or the laws of descent and distribution, nor shall the Option
be subject to attachment, execution or other similar process. In the event of
(a) any attempt by the Grantee to alienate, assign, pledge, hypothecate or
otherwise dispose of the option, except as provided for herein, or (b) the levy
of any attachment, execution or similar process upon the rights or interest
hereby conferred, the Company may terminate the Option by notice to the Grantee
and it shall thereupon become null and void.
9. Restriction on Exercise.
The Option may not be exercised if the issuance of the Option Shares upon
such exercise would constitute a violation of any applicable federal or State
securities or other law or valid regulation. As a condition to the exercise of
the Option, the Company may require the Grantee exercising the Option to make
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any representation or warranty to the Company as may be required by any
applicable law or regulation and, specifically, may require the Grantee to
provide evidence satisfactory to the Company that the Option Shares are being
acquired only for investment purposes and without any present intention to sell
or distribute the shares in violation of any federal or State securities or
other law or valid regulation.
10. Employment Not Affected.
The granting of the option or its exercise shall not be construed as
granting to the Grantee any right with respect to continuance of employment of
the Employer. Except as may otherwise be limited by a written agreement between
the Employer and the Grantee, the right of the Employer to terminate at will the
Grantee's employment with it at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by the Company, as the
Employer or on behalf of the Employer (whichever the case may be), and
acknowledged by the Grantee.
11. Amendment of Option.
The Option may be amended by the Program Administrators at any time (i) if
the Program Administrators determine, in their sole discretion, that amendment
is necessary or advisable in the light of any addition to or change in the
Internal Revenue Code of 1986 or in the regulations issued thereunder, or any
federal or state securities law or other law or regulation, which change occurs
after the Date of Grant and by its terms applies to the Option; or (ii) other
than in the circumstances described in clause (i), with the consent of the
Grantee.
12. Notice.
All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally or by certified mail, return receipt requested, as follows:
To Employer: GenesisIntermedia.com, Inc.
13063 Ventura Boulevard
Studio City, California 91604
Attn: Secretary
To Grantee: ______________________________
______________________________
______________________________
13. Incorporation of Plan by Reference.
The Option is granted pursuant to the terms of the Plan, the terms of which
are incorporated herein by reference, and the option shall in all respects be
interpreted in accordance with the Plan. The Program Administrators shall
interpret and construe the Plan and this instrument, and its interpretations and
determinations shall be conclusive and binding on the parties hereto and any
other person claiming an interest hereunder, with respect to any issue arising
hereunder or thereunder.
14. Governing Law.
The validity, construction, interpretation and effect of this instrument
shall exclusively be governed by and determined in accordance with the law of
the State of California, except to the extent preempted by federal law, which
shall to the extent govern.
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IN WITNESS WHEREOF, the Company has caused its duly authorized officers to
execute this Grant of Option, and to apply the corporate seal hereto, and the
Grantee has placed his or her signature hereon, effective as of the Date of
Grant.
GENESISINTERMEDIA.COM, INC.
By: __________________________________
Name:
Title:
ACCEPTED AND AGREED TO:
[Grantee]
By: __________________________________
Name:
Title:
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PART II
GENESISINTERMEDIA.COM, INC.
NON-QUALIFIED STOCK OPTION PLAN
Section 1. Purpose. The purpose of this GenesisIntermedia.com, Inc.,
Non-Qualified Stock Option Plan (the "Nonqualified Plan") is to permit the
Company to grant options to purchase shares of its Common Stock. The
Nonqualified Plan is designed to help attract and retain superior personnel for
positions of substantial responsibility with the Company and its subsidiaries,
and to provide individuals with an additional incentive to contribute to the
success of the Company. Any option granted pursuant to the Nonqualified Plan
shall be clearly and specifically designated as not being an incentive stock
option, as defined in Section 422 of the Code. This Nonqualified Plan is Part II
of the Program. Unless any provision herein indicates to the contrary, the
Nonqualified Plan shall be subject to the General Provisions of the Program.
Section 2. Option Terms and Conditions. The terms and conditions of options
granted under the Nonqualified Plan may differ from one another as the Program
Administrators shall in their discretion determine as long as all options
granted under the Nonqualified Plan satisfy the requirements of the Nonqualified
Plan.
Section 3. Duration of Options. Each option and all rights thereunder
granted pursuant to the terms of the Nonqualified Plan shall expire on the date
determined by the Program Administrators, but in no event shall any option
granted under the Nonqualified Plan expire later than ten (10) years from the
date on which the option is granted. In addition, each option shall be subject
to early termination as provided in the Nonqualified Plan.
Section 4. Purchase Price. The purchase price for shares acquired pursuant
to the exercise, in whole or in part, of any option shall not be less than the
fair market value of the shares at the time of the grant of the option. Fair
market value (the "Fair Market Value") shall be determined by the Program
Administrators on the basis of such factors as they deem appropriate; provided,
however, that Fair Market Value on any day shall be deemed to be, if the Common
Stock is traded on a national securities exchange, the closing price (or, if no
reported sale takes place on such day, the mean of the reported bid and asked
prices) of the Common Stock on such day on the principal such exchange, or, if
the stock is included on the composite tape, the composite tape. In each case,
the Program Administrators' determination of Fair Market Value shall be
conclusive.
Notwithstanding the above portion of this Section 4, if at the time an
option is granted the Optionee owns or would be considered to own by reason of
Code Section 424(d) more than 10% of the total combined voting power of all
classes of stock of the Company or its subsidiaries, the purchase price of the
shares covered by such option shall not be less than 110% of the Fair Market
Value of a share of Common Stock on the date the option is granted.
Section 5. Exercise of Options. Each option shall be exercisable in one or
more installments during its term and the right to exercise may be cumulative as
determined by the Program Administrators. Each option shall be exercisable a
rate of at least twenty percent (20%) per year over five (5) years from the date
the option is granted, subject to such reasonable conditions as determined by
the Program Administrators. No option may be exercised for a fraction of a share
of Common Stock. The purchase price of any shares purchased shall be paid in
full in cash or by certified or cashier's check payable to the order of the
Company or by shares of Common Stock, if permitted by the Program
Administrators, or by a combination of cash, check, or shares of Common Stock,
at the time of exercise of the option. If any portion of the purchase price is
paid in shares of Common Stock, those shares shall be tendered at their then
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Fair Market Value as determined by the Program Administrators in accordance with
Section 4 of the Nonqualified Plan. Payment in shares of Common Stock includes
the automatic application of shares of Common Stock received upon exercise of an
option to satisfy the exercise price for additional options.
Section 6. Reorganization. In the event of the dissolution or liquidation
of the Company, any option granted under the Nonqualified Plan shall terminate
as of a date to be fixed by the Program Administrators; provided that not less
than 30 days' written notice of the date so fixed shall be given to each
Optionee and each such Optionee shall have the right during such period (unless
such option shall have previously expired) to exercise any option, including any
option that would not otherwise be exercisable by reason of an insufficient
lapse of time.
In the event of a Reorganization (as defined below) in which
the Company is not the surviving or acquiring company, or in which the Company
is or becomes a subsidiary of another company after the effective date of the
Reorganization, then:
(a) if there is no plan or agreement respecting the Reorganization
("Reorganization Agreement") or if the Reorganization Agreement does
not specifically provide for the change, conversion or exchange of the
outstanding options for options of another corporation, then exercise
and termination provisions equivalent to those described in this
Section 6 shall apply; or
(b) if there is a Reorganization Agreement and if the Reorganization
Agreement specifically provides for the change, conversion, or
exchange of the outstanding options for options of another
corporation, then the Program Administrators shall adjust the
outstanding unexercised options (and shall adjust the options
remaining under the Nonqualified Plan which have not yet been granted
if the Reorganization Agreement makes specific provision for such an
adjustment) in a manner consistent with the applicable provisions of
the Reorganization Agreement.
The term "Reorganization" as used in this Section 6 shall mean any statutory
merger, statutory consolidation, sale of all or substantially all of the assets
of the Company or a sale of the Common Stock pursuant to which the Company is or
becomes a subsidiary of another company after the effective date of the
Reorganization.
Adjustments and determinations under this Section 6 shall be made by the
Program Administrators, whose decisions as to such adjustments or determinations
shall be final, binding, and conclusive.
Section 7. Written Notice Required. Any option granted pursuant to the
terms of this Nonqualified Plan shall be exercised when written notice of that
exercise has been given to the Company at its principal office by the person
entitled to exercise the option and full payment for the shares with respect to
which the option is exercised has been received by the Company.
Section 8. Compliance with Securities Laws. Shares shall not be issued with
respect to any option granted under the Nonqualified Plan, unless the exercise
of that option and the issuance and delivery of the shares pursuant thereto
shall comply with all applicable provisions of foreign, state and federal law,
including, without limitation, the Securities Act of 1933, as amended, and the
Exchange Act, and the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance. The Program Administrators may also require an Optionee to
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furnish evidence satisfactory to the Company, including a written and signed
representation letter and consent to be bound by any transfer restrictions
imposed by law, legend, condition, or otherwise, that the shares are being
purchased only for investment purposes and without any present intention to sell
or distribute the shares in violation of any state or federal law, rule, or
regulation. Further, each Optionee shall consent to the imposition of a legend
on the shares of Common Stock subject to his or her option and the imposition of
stop-transfer instructions restricting their transferability as required by law
or by this Section 8.
Section 9. Continued Employment or Service. Each Optionee, if requested by
the Program Administrators, must agree in writing as a condition of receiving
his or her Option, to remain in the employment of, or service to, the Company or
any of its subsidiaries following the date of the granting of that option for a
period specified by the Program Administrators. Nothing in this Nonqualified
Plan or in any option granted hereunder shall confer upon any Optionee any right
to continued employment by, or service to, the Company or any of its
subsidiaries, or limit in any way the right of the Company or any subsidiary at
any time to terminate or alter the terms of that employment or service
arrangement.
Section 10. Option Rights Upon Termination of Employment or Service. If an
Optionee ceases to be employed by the Company or any subsidiary corporation for
any reason other than death or disability, his or her option shall terminate
within thirty (30) days after the date of termination of employment; provided,
however, that in the event employment is terminated for cause as defined buy
applicable law, his or her option shall terminate immediately, provided,
further, however, that the Program Administrators may, in their sole and
absolute discretion, allow the option to be exercised (to the extent exercisable
on the date of termination of employment) at any time within sixty (60) days
after the date of termination of employment, unless either the option or the
Nonqualified Plan otherwise provides for earlier termination.
Section 11. Option Rights Upon Disability. If an Optionee becomes disabled
within the meaning of Code Section 422 (e) (3) while employed by the Company or
any subsidiary corporation, the Program Administrators, in their discretion, may
allow the option to be exercised, to the extent exercisable on the date of
termination of employment, at any time within one year after the date of
termination of employment due to disability, unless either the option or the
Nonqualified Plan otherwise provides for earlier termination.
Section 12. Option Rights Upon Death of Optionee. Except as otherwise
limited by the Program Administrators at the time of the grant of an option, if
an Optionee dies while employed by, or providing services to, the Company or any
of its subsidiaries, his or her option shall expire one year after the date of
death unless by its terms it expires sooner. During this one year or shorter
period, the option may be exercised, to the extent that it remains unexercised
on the date of death, by the person or persons to whom the Optionee's rights
under the option shall pass by will or by the laws of descent and distribution,
but only to the extent that the Optionee is entitled to exercise the option at
the date of death.
Section 13. Options Not Transferable. Options granted pursuant to the terms
of this Nonqualified Plan may not be sold, pledged, assigned, or transferred in
any manner otherwise than by will or the laws of descent or distribution and may
be exercised during the lifetime of an Optionee only by that Optionee. No such
options shall be pledged or hypothecated in any way nor shall they be subject to
execution, attachment, or similar process.
Section 14. Adjustments to Number and Purchase Price of Optioned Shares.
All options granted pursuant to the terms of this Nonqualified Plan shall be
adjusted in a manner prescribed by Article 6 of the General Provisions of the
Program.
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GENESISINTERMEDIA.COM, INC.
NON-QUALIFIED STOCK OPTION PLAN
Date of Grant: __________, ____
THIS GRANT, dated as of the date of grant first stated above (the "Date of
Grant"), is delivered by GenesisIntermedia.com, Inc., a Delaware corporation
(the "Company"), to __________________ (the "Grantee"), who is a employee or
non-employee of the Company or one of its subsidiaries (the Grantee's employer
is sometimes referred to herein as the ("Employer").
WHEREAS, the Board of Directors of the Company (the "Board") on October 1,
1998 adopted the GenesisIntermedia.com, Inc., Non-Qualified Stock Option Plan
(the "Plan");
WHEREAS, the Plan provides for the granting of stock options
by the Board or the Program Administrators to employees or non-employees of the
Company or any subsidiary of the Company to purchase, or to exercise certain
rights with respect to, shares of the Common Stock of the Company, no par value
(the "Stock"), in accordance with the terms and provisions thereof; and
WHEREAS, the Program Administrators consider the Grantee to be a person who
is eligible for a grant of non-qualified stock options under the Plan, and has
determined that it would be in the best interest of the Company to grant the
non-qualified stock options documented herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Grant of Option.
Subject to the terms and conditions hereinafter set forth, the Company,
with the approval and at the direction of the Program Administrators, hereby
grants to the Grantee, as of the Date of Grant, an option to purchase up to
__________ shares of Stock at a price of $__________ per share, the fair market
value. Such option is hereinafter referred to as the "Option" and the shares of
stock purchasable upon exercise of the Option are hereinafter sometimes referred
to as the "Option Shares." The Option is intended by the parties hereto to be,
and shall be treated as, an option not qualified as an incentive stock option
(as such term is defined under Section 422 of the Internal Revenue Code of
1986).
2. Installment Exercise.
Subject to such further limitations as are provided herein, the Option
shall become exercisable in __________ installments, the Grantee having the
right hereunder to purchase from the Company the following number of Option
Shares upon exercise of the Option, on and after the following dates, in
cumulative fashion as determined by the Program Administrators:
- ----------------------
3. Termination of Option.
(a) The Option and all rights hereunder with respect thereto, to the extent
such rights shall not have been exercised, shall terminate and become null and
void after the expiration of _________ years from the Date of Grant (the "Option
Term") [no more than 10 years from Date of Grant].
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(b) Upon the occurrence of the Grantee's ceasing for any reason to be
employed by the Employer (such occurrence being a "termination of the Grantee's
employment"), the Option, to the extent not previously exercised, shall
terminate and become null and void within thirty (30) days after the date of
such termination of the Grantee's employment, except (1) in the event employment
is terminated for cause as defined buy applicable law, in which case Grantee's
shall terminate and become null and void immediately or (2) in a case where the
Program Administrators may otherwise determine in its sole and absolute
discretion for up to sixty (60) days following the termination of employment. As
determined by the Program Administrators, upon a termination of the Grantee's
employment by reason of disability or death, the Option may be exercised, but
only to the extent that the Option was outstanding and exercisable on such date
of disability or death, up to a one-year period following the date of such
termination of the Grantee's employment.
(c) In the event of the death of the Grantee, the Option may
be exercised by the Grantee's legal representative, but only to the extent that
the Option would otherwise have been exercisable by the Grantee.
(d) A transfer of the Grantee's employment between the Company and any
subsidiary of the Company, or between any subsidiaries of the Company, shall not
be deemed to be a termination of the Grantee's employment.
4. Exercise of Options.
(a) The Grantee may exercise the Option with respect to all or any part of
the number of Option Shares then exercisable hereunder by giving the Secretary
of the Company written notice of intent to exercise. The notice of exercise
shall specify the number of Option Shares as to which the Option is to be
exercised and the date of exercise thereof.
(b) Full payment (in U.S. dollars) by the Grantee of the option price for
the Option Shares purchased shall be made on or before the exercise date
specified in the notice of exercise in cash, or, with the prior written consent
of the Program Administrators, in whole or in part through the surrender of
shares of Stock at their fair market value on the exercise date. The Grantee
shall also pay any required income tax withholding taxes which may be payable in
U.S. dollars or Option Shares if acceptable to the Company.
(c) On the exercise date specified in the Grantee's notice or as soon
thereafter as is practicable, the Company shall cause to be delivered to the
Grantee, a certificate or certificates for the Option Shares then being
purchased (out of theretofore unissued Stock or reacquired Stock, as the Company
may elect) upon full payment for such Option Shares. However, if (i) the Grantee
is subject to Section 16 of the Securities Exchange Act of 1934 and (ii) the
Grantee exercises the Option before six months have passed from the Date of
Grant, the Company shall be permitted to hold in its custody any stock
certificate arising from such exercise until six months has passed from the Date
of Grant. The obligation of the Company to deliver Stock shall, however, be
subject to the condition that if at any time the Program Administrators shall
determine in its discretion that the listing, registration or qualification of
the Option or the Option Shares upon 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 Option
or the issuance or purchase of Stock thereunder, the 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 Program Administrators.
(d) If the Grantee fails to pay for any of the Option Shares specified in
such notice or fails to accept delivery thereof, the Grantee's right to purchase
such Option Shares may be terminated by the Company. The date specified in the
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Grantee's notice as the date of exercise shall be deemed the date of exercise of
the Option, provided that payment in full for the Option shares to be purchased
upon such exercise shall have been received by such date.
5. Adjustment of and Changes in Stock of the Company.
In the event of a reorganization, recapitalization, change of
shares, stock split, spin-off, stock dividend, reclassification, subdivision or
combination of shares, merger, consolidation, rights offering, or any other
change in the corporate structure or shares of capital stock of the Company, the
Program Administrators shall make such adjustment as may be required under the
applicable reorganization agreement in the number and kind of shares of Stock
subject to the Option or in the option price; provided, however, that no such
adjustment shall give the Grantee any additional benefits under the Option. If
there is no provision for the treatment of the Option under an applicable
reorganization agreement, the Option may terminate on a date determined by the
Program Administrators following at least 30 days written notice to the Grantee.
6. Fair Market Value.
As used herein, the "fair market value" of a share of Stock shall be
determined by the Board. However, if the Stock is publicly-traded, fair market
value of a share of Stock shall be based upon the closing or other appropriate
trading price per share of Stock on a national securities exchange.
7. No Rights of Stockholders.
Neither the Grantee nor any personal representative shall be, or shall have
any of the rights and privileges of, a stockholder of the Company with respect
to any shares of Stock purchasable or issuable upon the exercise of the Option,
in whole or in part, prior to the date of exercise of the Option.
8. Non-Transferability of Option.
During the Grantee's lifetime, the option hereunder shall be exercisable
only by the Grantee or any guardian or legal representative of the Grantee, and
the Option shall not be transferable except, in case of the death of the
Grantee, by will or the laws of descent and distribution, nor shall the Option
be subject to attachment, execution or other similar process. In the event of
(a) any attempt by the Grantee to alienate, assign, pledge, hypothecate or
otherwise dispose of the Option, except as provided for herein, or (b) the levy
of any attachment, execution or similar process upon the rights or interest
hereby conferred, the Company may terminate the option by notice to the Grantee
and it shall thereupon become null and void.
9. Restriction on Exercise.
The Option may not be exercised if the issuance of the Option Shares upon
such exercise would constitute a violation of any applicable federal or state
securities or other law or valid regulation. As a condition to the exercise of
the Option, the Company may require the Grantee exercising the Option to make
any representation or warranty to the Company as may be required by any
applicable law or regulation and, specifically, may require the Grantee to
provide evidence satisfactory to the Company that the Option Shares are being
acquired only for investment purposes and without any present intention to sell
or distribute the shares in violation of any federal or state securities or
other law or valid regulation.
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10. Employment of Service Not Affected.
The granting of the option or its exercise shall not be construed as
granting to the Grantee any right with respect to continuance of employment or
service relationship with the Employer. Except as may otherwise be limited by a
written agreement between the Employer and the Grantee, the right of the
Employer to terminate at will the Grantee's employment or service relationship
with it at any time (whether by dismissal, discharge, retirement or otherwise)
is specifically reserved by the Company, as the Employer or on behalf of the
Employer (whichever the case may be), and acknowledged by the Grantee.
11. Amendment of Option.
The Option may be amended by the Program Administrators at any time (i) if
the Program Administrators determine, in their sole discretion, that amendment
is necessary or advisable in the light of any addition to or change in the
Internal Revenue Code of 1986 or in the regulations issued thereunder, or any
federal or state securities law or other law or regulation, which change occurs
after the Date of Grant and by its terms applies to the option; or (ii) other
than in the circumstances described in clause (i), with the consent of the
Grantee.
12. Notice.
All notices, requests, demands, and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally
or by certified mail, return receipt requested, as follows:
To Employer: GenesisIntermedia.com, Inc.
13063 Ventura Boulevard
Studio City, California 91604
Attn: Secretary
To Grantee: ____________________
____________________
____________________
13. Incorporation of Plan by Reference.
The Option is granted pursuant to the terms of the Plan, the terms of which
are incorporated herein by reference, and the Option shall in all respects be
interpreted in accordance with the Plan. The Program Administrators shall
interpret and construe the Plan and this instrument, and its interpretations and
determinations shall be conclusive and binding on the parties hereto and any
other person claiming an interest hereunder, with respect to any issue arising
hereunder or thereunder.
14. Governing Law.
The validity, construction, interpretation and effect of this instrument
shall exclusively be governed by and determined in accordance with the law of
the State of California, except to the extent preempted by federal law, which
shall to the extent govern.
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IN WITNESS WHEREOF, the Company has caused its duly authorized officers to
execute this Grant of Option, and to apply the corporate seal hereto, and the
Grantee has placed his or her signature hereon, effective as of the Date of
Grant.
GENESISINTERMEDIA.COM, INC.
By: _______________________________
Name:
Title:
ACCEPTED AND AGREED TO:
- -------------------------------------
[Grantee]
By: ______________________________
Name:
Title:
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PART III
GENESISINTERMEDIA.COM, INC.
RESTRICTED SHARE PLAN
Section 1. Purpose. The purpose of this Restricted Share Plan (the
"Restricted Plan") is to promote the growth and general prosperity of the
Company by permitting the Company to grant restricted shares to help attract and
retain superior personnel for positions of substantial responsibility with the
Company and its subsidiaries and to provide individuals with an additional
incentive to contribute to the success of the Company. The Restricted Plan is
Part III of the Program. Unless any provision herein indicates to the contrary,
the Restricted Plan shall be subject to the General Provisions of the Program.
Section 2. Terms and Conditions. The terms and conditions of restricted
shares granted under the Restricted Plan may differ from one another as the
Program Administrators shall, in their discretion, determine as long as all
restricted shares granted under the Restricted Plan satisfy the requirements of
the Restricted Plan.
Each restricted share grant shall provide to the recipient (the "Holder")
the transfer of a specified number of shares of Common Stock of the Company that
shall become nonforfeitable upon the achievement of specified service or
performance conditions within a specified period or periods (the "Restriction
Period") as determined by the Program Administrators. At the time that the
restricted share is granted, the Program Administrators shall specify the
service or performance conditions and the period of duration over which the
conditions apply.
The Holder of restricted shares shall not have any rights with respect to
such award, unless and until such Holder has executed an agreement evidencing
the terms and conditions of the award (the "Restricted Share Award Agreement").
Each individual who is awarded restricted shares shall be issued a stock
certificate in respect of such shares. Such certificate shall be registered in
the name of the Holder and shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such award, substantially in
the following form:
The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) of the GenesisIntermedia.com, Inc., Restricted Share Plan
and Restricted Share Award Agreement entered into between the
registered owner and GenesisIntermedia.com, Inc. Copies of such Plan
and Agreement are on file in the offices of GenesisIntermedia.com, Inc.
The Program Administrators shall require that the stock certificates
evidencing such shares be held in the custody of the Company until the
restrictions thereon shall have lapsed, and that, as a condition of any
restricted share award, the Holder shall have delivered a stock power, endorsed
in blank, relating to the stock covered by such award. At the expiration of each
Restriction Period, the Company shall redeliver to the Holder certificates held
by the Company representing the shares with respect to which the applicable
conditions have been satisfied.
Section 3. Nontransferable. Subject to the provisions of the Restricted
Plan and the Restricted Share Award Agreements, during the Restriction Period as
may be set by the Program Administrators commencing on the grant date, the
Holder shall not be permitted to sell, transfer, pledge, or assign shares of
restricted shares awarded under the Restricted Plan.
Section 4. Restricted Share Rights Upon Employment or Service. If a Holder
terminates employment or service with the company prior to the expiration of the
Restriction Period, any restricted shares granted to him subject to such
Restriction Period shall be forfeited by the Holder and shall be transferred to
the Company. The Program Administrators may, in their sole discretion,
accelerate the lapsing of or waive such restrictions in whole or in part based
upon such factors and such circumstances as the Program Administrators may
determine, in its sole discretion, including, but not limited to, the Plan
Participant's retirement, death, or disability.
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Section 5. Stockholder Rights. The Holder shall have, with respect to the
restricted shares granted, all of the rights of a stockholder of the Company,
including the right to vote the shares, and the right to receive any dividends
thereon. Certificates for shares of unrestricted stock shall be delivered to the
grantee promptly after, and only after, the Restriction Period shall expire
without forfeiture in respect of such restricted shares.
Section 6. Compliance with Securities Laws. Shares shall not be issued
under the Restricted Plan unless the issuance and delivery of the shares
pursuant thereto shall comply with all relevant provisions of foreign, state and
federal law, including, without limitation, the Securities Act of 1933, as
amended, and the Exchange Act, and the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance. The Program Administrators may also
require a Holder to furnish evidence satisfactory to the Company, including a
written and signed representation letter and consent to be bound by any transfer
restrictions imposed by law, legend, condition, or otherwise, that the shares
are being purchased only for investment purposes and without any present
intention to sell or distribute the shares in violation of any state or federal
law, rule, or regulation. Further, each Holder shall consent to the imposition
of a legend on the shares of Common Stock issued pursuant to the Restricted
Share Plan and the imposition of stop-transfer instructions restricting their
transferability as required by law or by this Section 6.
Section 7. Continued Employment or Service. Each Holder, if requested by
the Program Administrators, must agree in writing as a condition of the granting
of his or her restricted shares, to remain in the employment of, or service to,
the Company or any of its subsidiaries following the date of the granting of
that restricted share for a period specified by the Program Administrators.
Nothing in the Restricted Plan or in any restricted share granted hereunder
shall confer upon any Holder any right to continued employment by, or service
to, the Company or any of its subsidiaries, or limit in any way the right of the
Company or any subsidiary at any time to terminate or alter the terms of that
employment or service arrangement.
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GENESISINTERMEDIA.COM, INC.
RESTRICTED SHARE PLAN
RESTRICTED SHARE AWARD AGREEMENT
THIS AGREEMENT is made as of __________, _____, by and between
GenesisIntermedia.com, Inc. (the "Company"), and
_______________________ ("Grantee"):
WHEREAS, the Company maintains the GenesisIntermedia.com, Inc., Restricted
Shares Plan ("Restricted Shares Plan") under which the Program Administrators
may award shares of the Company's common stock, no par value ("Common Stock") to
employees and non-employees as the Program Administrators may determine, subject
to terms, conditions, or restrictions as it may deem appropriate; and
WHEREAS, pursuant to the Restricted Shares Plan, the Program
Administrators has awarded to Grantee a restricted stock award conditioned upon
the execution by the Company and Grantee of a Restricted Share Award Agreement
setting forth all the terms and conditions applicable to such award;
NOW, THEREFORE, in consideration of the mutual promise and covenant
contained herein, it is hereby agreed as follows:
1. Award of Shares.
Under the terms of the Restricted Shares Plan, the Program Administrators
hereby awards and transfers to Grantee a restricted stock award on
__________________ ("Grant Date"), covering shares of Common Stock ("Shares")
subject to the terms, conditions, and restrictions set forth in this Agreement.
This transfer of Shares shall constitute a transfer of such property in
connection with Grantee's performance of service to the Company (which transfer
is intended to constitute a "transfer" for purposes of Section 83 of the
Internal Revenue Code).
2. Share Restrictions.
During the period beginning on the Grant Date and ending on the date(s)
specified by the Program Administrators (the "Restriction Period"), Grantee's
ownership of the Shares shall be subject to a risk of forfeiture (which risk is
intended to constitute a "substantial risk of forfeiture" for purposes of
Section 83 of the Internal Revenue Code). Specifically, if Grantee's employment
or service with the Company is terminated for any reason, including Grantee's
death, disability, or retirement at any time before the Restriction Period ends,
Grantee shall forfeit his or her ownership in the Shares. However, in the event
of Grantee's termination of employment or service, the Program Administrators
may, in its sole discretion, based upon relevant circumstances such as the
Grantee's death, disability, or retirement, waive the minimum employment or
service requirement and provide Grantee with a nonforfeitable right to the
Shares as of the date of such termination of employment or service.
3. Stock Certificates.
A stock certificate evidencing the Shares shall be issued in the name of
Grantee as of the Grant Date. Grantee shall thereupon be the shareholder of all
the Shares represented by the stock certificate. As such, Grantee shall be
entitled to all rights of a stockholder of the Company, including the right to
vote the Shares and receive dividends and/or other distributions declared on
such Shares.
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Physical possession or custody of the stock certificate shall be retained
by the Company until such time as the Restriction Period lapses without the
occurrence of any forfeiture of the Shares in a manner described in the above
Paragraph 2. Upon the expiration of the Restriction Period without the
occurrence of such a forfeiture, the Company shall cause the stock certificate
covering the Shares to be delivered to Grantee. In the event that Grantee's
employment or service with the Company is terminated prior to the lapse of the
Restriction Period and there occurs a forfeiture of the Shares, the stock
certificate representing such Shares shall be then canceled and revert to the
Company.
4. Nontransferable.
During the Restriction Period, the Shares covered by the restricted stock
award shall not be transferable by Grantee by means of sale, assignment, sale,
pledge, encumbrance, or otherwise. During the Restriction Period, the Company
shall place a legend on the stock certificate restricting the transferability of
such certificate and referring to the terms and conditions applicable to the
Shares pursuant to the Restricted Shares Plan and this Agreement.
Upon the lapse of the Restriction Period, the Shares shall not be delivered
to Grantee if such delivery would constitute a violation of any applicable
federal or state securities or other law or valid regulation. As a condition to
the delivery of the Shares to Grantee, the Company may require Grantee to make
any representation or warranty as may be required by any applicable law or
regulation and, specifically, may require Grantee to provide evidence
satisfactory to the Company that the Shares are being acquired only for
investment purposes and without any present intention to sell or distribute the
shares in violation of any federal or state securities or other law or valid
regulation.
5. Administration.
The Program Administrators shall have full authority and discretion
(subject only to the express provisions of the Restricted Shares Plan) to decide
all matters relating to the administration and interpretation of the Restricted
Shares Plan and this Agreement. All such Program Administrators determinations
shall be final, conclusive, and binding upon the Company, Grantee, and any and
all interested parties.
6. Right to Continued Employment or Service.
Nothing in the Restricted Shares Plan or this Agreement shall confer on a
Grantee any right to continue in the employ of or service to the Company or,
except as may otherwise be limited by a written agreement between the Company
and the Grantee, in any way affect the Company's right to terminate Grantee's
employment or service, at will, at any time without prior notice at any time for
any or no reason (whether by dismissal, discharge, retirement or otherwise).
7. Amendment.
This Agreement shall be subject to the terms of the Restricted Shares Plan
as amended, the terms of which are incorporated herein by reference. However,
the restricted stock award that is the subject of this Agreement may not in any
way be restricted or limited by any Restricted Shares Plan amendment or
termination approved after the date of the award without Grantee's written
consent.
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8. Force and Effect.
The various provisions of this Agreement are severable in their entirety.
Any determination of invalidity or unenforceability of any one provision shall
have no effect on the continuing force and effect of the remaining provisions.
9. Governing Law.
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of California.
10. Successors.
This Agreement shall be binding upon and inure to the benefit of the
successors, assigns, and heirs of the respective parties.
11. Notice.
All notices, requests, demands, and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally
or by certified mail, return receipt requested, as follows:
To Employer: GenesisIntermedia.com, Inc.
13063 Ventura Boulevard
Studio City, California 91604
Attn: Secretary
To Grantee: ______________________________
______________________________
______________________________
12. Incorporation of Plan by Reference.
The Option is granted pursuant to the terms of the Plan, the terms of which
are incorporated herein by reference, and the Option shall in all respects be
interpreted in accordance with the Plan. The Program Administrators shall
interpret and construe the Plan and this instrument, and its interpretations and
determinations shall be conclusive and binding on the parties hereto and any
other person claiming an interest hereunder, with respect to any issue arising
hereunder or thereunder.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
date hereof.
GENESISINTERMEDIA.COM, INC.
[Grantee]
By:______________________________ ______________________________
Name: Name:
Title: Title:
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PART IV
GENESISINTERMEDIA.COM, INC.
EMPLOYEE STOCK PURCHASE PLAN
Section 1. Purpose. The purpose of the GenesisIntermedia.com, Inc. Employee
Stock Purchase Plan (the "Stock Purchase Plan") is to promote the growth and
general prosperity of the Company by permitting the Company to sell to employees
of the Company and its subsidiaries shares of the Company's stock in accordance
with Section 423 of the Code ("Section 423"), and it is the intention of the
Company to have the Stock Purchase Plan qualify as an Employee Stock Purchase
Plan in accordance with Section 423, and the Stock Purchase Plan shall be
construed to administer stock purchases and to extend and limit participation
consistent with the requirements of Section 423. The Stock Purchase Plan will be
administered by the Program Administrators.
Section 2. Maximum Number of Shares; Terms and Conditions. The maximum
aggregate number of shares of Common Stock subject to the Stock Purchase Plan
shall be 100,000. The terms and conditions of shares to be offered to be sold to
employees of the Company and its subsidiaries under the Stock Purchase Plan
shall comply with Section 423.
Section 3. Offering Periods and Participation. The Stock Purchase Plan
shall be implemented through a series of consecutive fiscal quarters of the
Company (the "Offering Periods"). A full-time employee may participate in the
Stock Purchase Plan and may enroll in an Offering Period by delivering to the
Company's payroll office an agreement evidencing the terms and conditions of the
stock subscription in a form prescribed by the Program Administrators (the
"Purchase Agreement") at least thirty (30) business days prior to the Enrollment
Date for that Offering Period (or such lesser number of business days as the
Program Administrators, in their sole discretion, may permit). Eligible
Employees who participate in the Stock Purchase Plan may do so in the Offering
Period. Purchases will be made through payroll deductions, unless direct
purchases have been approved by the Program Administrators. The first day of
each Offering Period will be the "Enrollment Date" and the last day of each
period will be the "Exercise Date."
Section 4. Purchase Price. The "Purchase Price" means an amount as
determined by the Program Administrators that is the lesser of: (a) the Purchase
Price Discount from the Fair Market Value of a share of Common Stock on the
Enrollment Date, or (b) the Purchase Price Discount from the Fair Market Value
of a share of Common Stock on the Exercise Date. The "Purchase Price Discount"
shall mean the amount of the discount from the Fair Market Value granted to Plan
Participants not to exceed fifteen percent (15%) of the Fair Market Value as
established by the Board from time to time. "Fair Market Value" of a share of
stock shall be determined by the Board. However, if the Stock is
publicly-traded, fair market value of a share of Stock shall be based upon the
closing or other appropriate trading price per share of Stock on a national
securities exchange.
Section 5. Grants.
(a) Grants. On the Enrollment Date for each Offering Period, each Eligible
Employee participating in such Offering Period shall be granted the
right to purchase on each Exercise Date during such Offering Period
(at the Purchase Price) shares of Common Stock in an amount from time
to time specified by the Program Administrators as set forth in
Section 5(b) below. The Program Administrators will also establish the
Purchase Price Discount and the Periodic Exercise Limit. The right to
purchase shall expire immediately after the last Exercise Date of the
Offering Period.
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(b) Grant Limitations. Any provisions of the Stock Purchase Plan to the
contrary notwithstanding, no Plan Participant shall be granted a right
to purchase under the Stock Purchase Plan:
(i) if, immediately after the grant, such Plan Participant would
own stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of
the Company or of any subsidiary (applying the constructive
ownership rules of Section 424(d) of the Code and treating
stock that a Plan Participant may acquire under outstanding
options as stock owned by the Plan Participant);
(ii) that permits such Plan Participant's rights to purchase
stock under all employee stock purchase plans of the Company
and its subsidiaries to accrue at a rate that exceeds
Twenty-Five Thousand Dollars ($25,000) worth of stock
(determined at the Fair Market Value of the shares at the
time such purchase) in any calendar year (computed utilizing
the rules of Section 423(b)(8) of the Code); or
(iii)that permits a Plan Participant to purchase Stock in excess
of twenty percent (20%) of his or her Compensation, which
shall include the gross base salary or hourly compensation
paid to a Plan Participant and the gross amount of any
targeted bonus, without reduction for contributions to any
401(k) plan sponsored by the Company.
(c) No Rights in Respect of Underlying Stock. The Plan Participant will
have no interest or voting right in shares covered by a right to
purchase until such purchase has been completed.
(d) Plan Account. The Company shall maintain a plan account for the Plan
Participants in the Stock Purchase Plan, to which are credited the
payroll deductions made for such Plan Participant pursuant to Section
6 and from which are debited amounts paid for the purchase of shares.
(e) Common Stock Account. As a condition of participation in the Stock
Purchase Plan, each Plan Participant shall be required to receive
shares purchased under the Stock Purchase Plan in a common stock
account (the "Common Stock Account") maintained by the Company to hold
the Common Stock purchased under the Stock Purchase Plan.
(f) Dividends on Shares. Subject to the limitations of Section 5(a) hereof
and Section 423(b)(8) of the Code, all cash dividends, if any, paid
with respect to shares of Common Stock purchased under the Stock
Purchase Plan and held in a Plan Participant's Common Stock Account
shall be automatically invested in shares of Common Stock purchased at
100% of Fair Market Value on the next Exercise Date. All non-cash
distributions on Common Stock purchased under the Stock Purchase Plan
and held in a Plan Participant's Common Stock Account shall be paid to
the Plan Participant as soon as practicable.
Section 6. Payroll Deductions/Direct Purchases.
(a) Plan Participant Designations. The Purchase Agreement applicable to an
Offering Period shall designate payroll deductions to be made on each
payday during the Offering Period as a whole number percentage
specified by the Program Administrators of such Eligible Employee's
Compensation for the pay period preceding such payday. Direct
purchases may be permitted on such terms specified by the Program
Administrators.
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(b) Plan Account Balances. The Company shall make payroll deductions as
specified in each Plan Participant's Subscription Agreement on each
payday during the Offering Period and credit such payroll deductions
to such Plan Participant's Plan Account. A Plan Participant may not
make any additional payments into such Plan Account. No interest will
accrue on any payroll deductions. All payroll deductions received or
held by the Company under the Stock Purchase Plan may be used by the
Company for any corporate purpose, and the Company shall not be
obligated to segregate such payroll deductions.
(c) Plan Participant Changes. A Plan Participant may discontinue his or
her participation in the Stock Purchase Plan as provided in Section 8,
or may increase or decrease (subject to such limits as the Program
Administrator may impose) the rate of his or her payroll deductions
during any Offering Period by filing with the Company a new
Subscription Agreement authorizing such a change in the payroll
deduction rate. The change in rate shall be effective with the first
full payroll period following fifteen (15) business days after the
Company's receipt of the new Subscription Agreement, unless the
Company elects to process a given change in participation more
quickly.
(d) Decreases. Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 4(b) herein, a
Plan Participant's payroll deductions shall be decreased to zero
percent at such time during any Purchase Period that is scheduled to
end during a calendar year (the "Current Purchase Period") when the
aggregate of all payroll deductions previously used to purchase stock
under the Stock Purchase Plan in a prior Purchase Period which ended
during that calendar year plus all payroll deductions accumulated with
respect to the Current Purchase Period equal to the maximum permitted
by Section 423(b)(8) of the Code. Payroll deductions shall recommence
at the rate provided in such Plan Participant's Subscription Agreement
at the beginning of the first Purchase Period that is scheduled to end
in the following calendar year, unless terminated by the Plan
Participant as provided in Section 8.
(e) Tax Obligations. At the time of the purchase of shares, and at the
time any Common Stock issued under the Stock Purchase Plan to a Plan
Participant is disposed of, the Plan Participant must adequately
provide for the Company's federal, state or other tax withholding
obligations, if any, that arise upon the purchase of shares or the
disposition of the Common Stock. At any time, the Company may, but
will not be obligated to, withhold from the Plan Participant's
Compensation the amount necessary for the Company to meet applicable
withholding obligations, including, but not limited to, any
withholding required to make available to the Company any tax
deductions or benefit attributable to sale or early disposition of
Common Stock by the eligible employee.
(f) Statements of Account. The Company shall maintain each Plan
Participant's Plan Account and shall give each Plan Participant a
statement of account at least annually. Such statements will set forth
the amounts of payroll deductions, the Purchase Price applicable to
the Common Stock purchased, the number of shares purchased, the
remaining cash balance and the dividends received, if any, for the
period covered.
Section 7. Purchase of Shares.
(a) Automatic Exercise on Exercise Dates. Unless a Plan Participant
withdraws as provided in Section 8 below, his or her Option for the
purchase of shares will be exercised automatically on each Exercise
Date within the Offering Period in which such Plan Participant is
enrolled for the maximum whole number of shares of Common Stock as can
then be purchased at the applicable Purchase Price with the payroll
deductions accumulated in such Plan Participant's Plan Account and not
yet applied to the purchase of shares under the Stock Purchase Plan,
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subject to the Periodic Exercise Limit. All such shares purchased
under the Stock Purchase Plan shall be credited to the Plan
Participant's Common Stock Account. During a Plan Participant's
lifetime, a Plan Participant's options to purchase shares under the
Stock Purchase Plan shall be exercisable only by the Plan Participant.
(b) Compliance With Securities Law. Shares of Common Stock shall not be
issued with respect to any purchase of shares granted under the Stock
Purchase Plan, unless the purchase of shares and the issuance and
delivery of those shares pursuant to that exercise comply with all
applicable provisions of foreign, state and federal law including,
without limitation, the Securities Act of 1933, as amended and the
Exchange Act, and the rules and regulations promulgated thereunder,
and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. The Program
Administrators may also require a Plan Participant to furnish evidence
satisfactory to the Company, including a written and signed
representation letter and consent to be bound by any transfer
restrictions imposed by law, legend, condition, or otherwise, that the
shares are being purchased only for investment purposes and without
any present intention to sell or distribute the shares in violation of
any state or federal law, rule, or regulation. Further, each Plan
Participant shall consent to the imposition of a legend on the shares
of Common Stock purchased and the imposition of stop-transfer
instructions restricting their transferability as required by law or
by this Section 7.
(c) Excess Plan Account Balances. If, due to application of the Periodic
Exercise Limit or otherwise, there remains in a Plan Participant's
Plan Account immediately following exercise of such Plan Participant's
option to purchase shares on an Exercise Date any cash accumulated
immediately preceding such Exercise Date and not applied to the
purchase of shares under the Stock Purchase Plan, such cash shall
promptly be returned to the Plan Participant; provided, however, that
if the Plan Participant shall be enrolled in the Offering Period
(including, without limitation, by not withdrawing pursuant to Section
8), such cash shall be contributed to the Plan Participant's Plan
Account for such next Purchase Period.
Section 8. Holding Period. The Program Administrators may establish, as a
condition to participation, a
holding period of up to one (1) year.
Section 9. Withdrawal; Termination of Employment.
(a) Voluntary Withdrawal. A Plan Participant may withdraw from an Offering
Period by giving written notice to the Company's payroll office at
least thirty (30) business days prior to the next Exercise Date. Such
withdrawal shall be effective beginning thirty (30) business days
after receipt by the Company's payroll office of notice thereof. On or
promptly following the effective date of any withdrawal, all (but not
less than all) of the withdrawing Plan Participant's payroll
deductions credited to his or her Plan Account and not yet applied to
the purchase of shares under the Stock Purchase Plan will be paid to
such Plan Participant, and on the effective date of such withdrawal
such Plan Participant's option to purchase shares for the Offering
Period will be automatically terminated and no further payroll
deductions for the purchase of shares will be made during the Offering
Period. If a Plan Participant withdraws from an Offering Period,
payroll deductions will not resume at the beginning of any succeeding
Offering Period, unless the Plan Participant delivers to the Company a
new Subscription Agreement with respect thereto.
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(b) Termination of Employment. Promptly after a Plan Participant's ceasing
to be an employee for any reason all shares of Common Stock held in a
Plan Participant's Common Stock Account and the payroll deductions
credited to such Plan Participant's Plan Account and not yet applied
to the purchase of shares under the Stock Purchase Plan will be
returned to such Plan Participant or, in the case of his or her death,
to the person or persons entitled thereto, and such Plan Participant's
option to purchase shares will be automatically terminated, provided
that, if the Company does not learn of such death more than five (5)
business days prior to an Exercise Date, payroll deductions credited
to such Plan Participant's Plan Account may be applied to the purchase
of shares under the Stock Purchase Plan on such Exercise Date.
Section 10. Non-transferability. Neither payroll deductions credited to a
Plan Participant's Plan Account nor any rights with regard to the exercise of a
purchase of shares or to receive shares under the Stock Purchase Plan may be
assigned, transferred, pledged or otherwise disposed of by the Plan Participant
in any way other than by will or the laws of descent and distribution, and any
purchase of shares by a Plan Participant shall, during such Plan Participant's
lifetime, be exercisable only by such Plan Participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Program Administrator may treat such act as an election to
withdraw from an offering period in accordance with Section 8.
Section 11. Compliance with Securities Laws. Shares shall not be issued
with respect to the Stock Purchase Plan, unless the issuance and delivery of the
shares pursuant thereto shall comply with all applicable provisions of foreign,
state and federal law, including, without limitation, the Securities Act of
1933, as amended, and the Exchange Act, and the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. The Program
Administrators may also require a Plan Participant to furnish evidence
satisfactory to the Company, including a written and signed representation
letter and consent to be bound by any transfer restrictions imposed by law,
legend, condition, or otherwise, that the shares are being purchased only for
investment purposes and without any present intention to sell or distribute the
shares in violation of any state or federal law, rule, or regulation. Further,
each Plan Participant shall consent to the imposition of a legend on the shares
of Common Stock subject to his or her Option and the imposition of stop-transfer
instructions restricting their transferability as required by law or by this
Section 11.
Section 12. Continued Employment or Service. Each Plan Participant, if
requested by the Program Administrators, must agree in writing, to remain in the
employment of, or service to, the Company or any of its subsidiaries following
the date of the granting of that option to purchase shares for a period
specified by the Program Administrators. Nothing in this Stock Purchase Plan
shall confer upon any Plan Participant any right to continued employment by, or
service to, the Company or any of its subsidiaries, or limit in any way the
right of the Company or any subsidiary at any time to terminate or alter the
terms of that employment or service arrangement.
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PART V
GENESISINTERMEDIA.COM, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
Section 1. Purpose; Plan. The purpose of this GenesisIntermedia.com, Inc.,
Non-Employee Director Stock Option Plan (the "Directors Plan") is to permit the
Company to grant options to purchase shares of its Common Stock to non-employee
directors of the Company. Any option granted pursuant to the Directors Plan
shall be clearly and specifically designated as not being an incentive stock
option, as defined in Section 422 of the Code. This Directors Plan is Part V of
the Program. Unless any provision herein indicates to the contrary, the
Directors Plan shall be subject to the General Provisions of the Program. On the
next to last business day of each fiscal year of the Company, the Company shall
grant to each non-employee director of the Company options to purchase that
number of shares of Common Stock as determined annually by the Program
Administrators. The terms and conditions of options granted under the Directors
Plan shall be in duration, form and substance as the Program Administrators
shall in their discretion determine, but in no event shall any option granted
under the Directors Plan expire later than ten (10) years from the date on which
the option is granted.
Section 2. Compliance with Securities Laws. Shares of Common Stock shall
not be issued with respect to any option granted under the Directors Plan,
unless the exercise of that option and the issuance and delivery of the shares
pursuant thereto shall comply with all applicable provisions of foreign, state
and federal law, including, without limitation, the Securities Act of 1933, as
amended, and the Exchange Act, and the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance. The Program Administrators may also
require an Optionee to furnish evidence satisfactory to the Company, including a
written and signed representation letter and consent to be bound by any transfer
restrictions imposed by law, legend, condition, or otherwise, that the shares
are being purchased only for investment purposes and without any present
intention to sell or distribute the shares in violation of any state or federal
law, rule, or regulation. Further, each Optionee shall consent to the imposition
of a legend on the shares of Common Stock subject to his or her option and the
imposition of stop-transfer instructions restricting their transferability as
required by law or by this Section 2.
Section 3. Adjustments to Number and Purchase Price of Optioned Shares. All
options granted pursuant to the terms of this Directors Plan shall be adjusted
in a manner prescribed by Article 6 of the General Provisions of the Program.
Section 4. Purchase Price. The purchase price for shares acquired pursuant
to the exercise, in whole or in part, of any option shall not be less than the
fair market value of the shares at the time of the grant of the option. Fair
market value (the "Fair Market Value") shall be determined by the Program
Administrators on the basis of such factors as they deem appropriate; provided,
however, that Fair Market Value on any day shall be deemed to be, if the Common
Stock is traded on a national securities exchange, the closing price (or, if no
reported sale takes place on such day, the mean of the reported bid and asked
prices) of the Common Stock on such day on the principal such exchange, or, if
the stock is included on the composite tape, the composite tape. In each case,
the Program Administrators' determination of Fair Market Value shall be
conclusive.
Notwithstanding the above portion of this Section 4, if at the time an
option is granted the Optionee owns or would be considered to own by reason of
Code Section 424(d) more than 10% of the total combined voting power of all
classes of stock of the Company or its subsidiaries, the purchase price of the
shares covered by such option shall not be less than 110% of the Fair Market
Value of a share of Common Stock on the date the option is granted.
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PART VI
STOCK APPRECIATION RIGHTS PLAN
Section 1. SAR Terms and Conditions. The purpose of this Stock Appreciation
Rights Plan (the "SAR Plan") is to promote the growth and general prosperity of
the Company by permitting the Company to grant restricted shares to help attract
and retain superior personnel for positions of substantial responsibility with
the Company and its subsidiaries and to provide individuals with an additional
incentive to contribute to the success of the Company. The terms and conditions
of SARs granted under the SAR Plan may differ from one another as the Program
Administrators shall, in their discretion, determine in each SAR agreement (the
"SAR Agreement"). Unless any provision herein indicates to the contrary, this
SAR Plan shall be subject to the General Provisions of the Program.
Section 2. Duration of SARs. Each SAR and all rights thereunder granted
pursuant to the terms of the SAR Plan shall expire on the date determined by the
Program Administrators as evidenced by the SAR Agreement, but in no event shall
any SAR expire later than ten (10) years from the date on which the SAR is
granted. In addition, each SAR shall be subject to early termination as provided
in the SAR Plan.
Section 3. Grant. Subject to the terms and conditions of the SAR Agreement,
the Program Administrators may grant the right to receive a payment upon the
exercise of a SAR which reflects the appreciation in the Fair Market Value of
the number of shares of Common Stock for which such SAR was granted to any
person who is eligible to receive Awards either: (i) in tandem with the grant of
an Incentive Option; (ii) in tandem with the grant of a Nonqualified Option; or
(iii) independent of the grant of an Incentive Option or Nonqualified Option.
Each grant of a SAR which is in tandem with the grant of an Incentive Option or
Nonqualified Option shall be evidenced by the same agreement as the Incentive
Option or Nonqualified Option which is granted in tandem with such SAR and such
SAR shall relate to the same number of shares of Common Stock to which such
Option shall relate and such other terms and conditions as the Program
Administrators, in their sole discretion, deem are not inconsistent with the
terms of the SAR Plan, including conditions on the exercise of such SAR which
relate to the employment of the Plan Participant or any requirement that the
Plan Participant exchange a prior outstanding option and/or SAR.
Section 4. Payment at Exercise. Upon the settlement of a SAR in accordance
with the terms of the SAR Agreement, the Plan Participant shall (subject to the
terms and conditions of the SAR Plan and SAR Agreement) receive a payment equal
to the excess, if any, of the SAR Exercise Price (as defined below) for the
number of shares of the SAR being exercised at that time over the SAR Grant
Price (as defined below) for such shares. Such payment may be paid in cash or in
shares of the Company's Common Stock or by a combination of the foregoing, at
the time of exercise of the SAR, specified by the Program Administrators in the
SAR Agreement. If any portion of the payment is paid shares of the Company's
Common Stock, such shares shall be valued for this purpose at the SAR Exercise
Price on the date the SAR is exercised and any payment in shares which calls for
a payment in fractional share shall automatically be paid in cash based on such
valuation. As used herein, "SAR Exercise Date" shall mean the date on which the
exercise of a SAR occurs under the SAR Agreement, "SAR Exercise Price" shall
mean the Fair Market Value of a shares of Common Stock on a SAR Exercise Date
and "SAR Grant Price" shall mean the price which would have been the option
exercise price for one share of Common Stock if the SAR had been granted as an
option, or if the SAR granted in tandem with an option, the option exercise
price per share for the related option.
Section 5. Special Terms and Conditions. Each SAR Agreement which evidences
the grant of a SAR shall incorporate such terms and conditions as the Program
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Administrators in their absolute discretion deem are not inconsistent with the
terms of the SAR Plan and the agreement for Incentive Option or Nonqualified
Option, if any, granted in tandem with such SAR except that: (i) if a SAR is
granted in tandem with an Incentive Option or Nonqualified Option, the SAR shall
be exercisable only when the related Incentive Option or Nonqualified Option is
exercisable; and (ii) the Plan Participant's right to exercise a SAR granted in
tandem with an Incentive Option or Nonqualified Option shall be forfeited to the
extent that the Plan Participant exercises the related Incentive Option or
Nonqualified Option and the Plan Participant's right to exercise the Incentive
Option or Nonqualified Option shall be forfeited to the extent the Plan
Participant exercises the related SAR, but any such forfeiture shall not count
as a forfeiture for purposes of making the shares subject to such option or SAR
again available for use under the General Provisions of the Plan.
Section 6. Compliance with Securities Laws. Shares shall not be issued with
respect to any option granted under the SAR Plan, unless the exercise of that
option and the issuance and delivery of the shares pursuant thereto shall comply
with all applicable provisions of foreign, state and federal law, including,
without limitation, the Securities Act of 1933, as amended, and the Exchange
Act, and the rules and regulations promulgated thereunder, and the requirements
of any stock exchange upon which the shares may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to such
compliance. The Program Administrators may also require an Optionee to furnish
evidence satisfactory to the Company, including a written and signed
representation letter and consent to be bound by any transfer restrictions
imposed by law, legend, condition, or otherwise, that the shares are being
purchased only for investment purposes and without any present intention to sell
or distribute the shares in violation of any state or federal law, rule, or
regulation. Further, each Optionee shall consent to the imposition of a legend
on the shares of Common Stock subject to his or her option and the imposition of
stop-transfer instructions restricting their transferability as required by law
or by this Section 6.
Section 7. Continued Employment or Service. Each Optionee, if requested by
the Program Administrators, must agree in writing as a condition of receiving
his or her option, to remain in the employment of, or service to, the Company or
any of its subsidiaries following the date of the granting of that option for a
period specified by the Program Administrators. Nothing in this SAR Plan or in
any option granted hereunder shall confer upon any Optionee any right to
continued employment by, or service to, the Company or any of its subsidiaries,
or limit in any way the right of the Company or any subsidiary at any time to
terminate or alter the terms of that employment or service arrangement.
Section 8. Option Rights Upon Termination of Employment or Service. If an
Optionee under this SAR Plan ceases to be employed by, or provide services to,
the Company or any of its subsidiaries for any reason other than death or
disability, his or her option shall immediately terminate; provided, however,
that the Program Administrators may, in their sole and absolute discretion,
allow the option to be exercised, to the extent exercisable on the date of
termination of employment or service, at any time within sixty (60) days after
the date of termination of employment or service, unless either the option or
this Nonqualified Plan otherwise provides for earlier termination.
Section 9. Option Rights Upon Disability. If an Optionee becomes disabled
within the meaning of Code Section 422 (e) (3) while employed by the Company or
any subsidiary corporation, the Program Administrators, in their discretion, may
allow the option to be exercised, to the extent exercisable on the date of
termination of employment, at any time within one year after the date of
termination of employment due to disability, unless either the option or the SAR
Plan otherwise provides for earlier termination.
3
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PART VII
OTHER STOCK RIGHTS PLAN
Section 1. Terms and Conditions. The purpose of the Other Stock Rights Plan
(the "Stock Rights Plan") is to promote the growth and general prosperity of the
Company by permitting the Company to grant restricted shares to help attract and
retain superior personnel for positions of substantial responsibility with the
Company and its subsidiaries to provide individuals with an additional incentive
to the success of the Company. The terms and conditions of Performance Shares,
Stock Payments or Dividend Equivalent Rights granted under the Stock Rights Plan
may differ from one another as the Program Administrators shall, in their
discretion, determine in each stock rights agreement (the "Stock Rights
Agreement"). Unless any provision herein indicates to the contrary, this Stock
Rights Plan shall be subject to the General Provisions of the Program.
Section 2. Duration. Each Performance Share or Dividend Equivalent Right
and all rights thereunder granted pursuant to the terms of the Stock Rights Plan
shall expire on the date determined by the Program Administrators as evidenced
by the Stock Rights Agreement, but in no event shall any Performance Shares or
Dividend Equivalent Rights expire later than ten (10) years from the date on
which the Performance Shares or Dividend Equivalent Rights are granted. In
addition, each Performance Share, Stock Payment or Dividend Equivalent Right
shall be subject to early termination as provided in the Stock Rights Plan.
Section 3. Grant. Subject to the terms and conditions of the Stock Rights
Agreement, the Program Administrators may grant Performance Shares, Stock
Payments or Dividend Equivalent Rights as provided under the Stock Rights Plant.
Each grant of Performance Shares, Dividend Equivalent Rights and Stock Payments
shall be evidenced by a Stock Rights Agreement, which shall state the terms and
conditions of each as the Program Administrators, in their sole discretion, deem
are not inconsistent with the terms of the Stock Rights Plan.
Section 4. Performance Shares. Performance Shares shall become payable to a
Plan Participant based upon the achievement of specified Performance Objectives
and upon such other terms and conditions as the Program Administrators may
determine and specify in the Stock Rights Agreement evidencing such Performance
Shares. Each grant shall satisfy the conditions for performance-based awards
hereunder and under the General Provisions. A grant may provide for the
forfeiture of Performance Shares in the event of termination of employment or
other events, subject to exceptions for death, disability, retirement or other
events, all as the Program Administrators may determine and specify in the Stock
Rights Agreement for such grant. Payment may be made for the Performance Shares
at such time and in such form as the Program Administrators shall determine and
specify in the Stock Rights Agreement and payment for any Performance Shares may
be made in full in cash or by certified cashier's check payable to the order of
the Company or, if permitted by the Program Administrators, by shares of the
Company's Common Stock or by the surrender of all or part of an Award, or in
other property, rights or credits deemed acceptable by the Program
Administrators or, if permitted by the Program Administrators, by a combination
of the foregoing. If any portion of the purchase price is paid in shares of the
Company's Common Stock, those shares shall be tendered at their then Fair Market
Value as determined by the Program Administrators in accordance herewith.
Payment in shares of Common Stock includes the automatic application of shares
of Common Stock received upon the exercise or settlement of Performance Shares
or other option or Award to satisfy the exercise or settlement price.
Section 5. Stock Payments. The Program Administrators may grant Stock
Payments to a person eligible to receive the same as a bonus or additional
compensation or in lieu of the obligation of the Company or a subsidiary to pay
cash compensation under other compensatory arrangements, with or without the
2
<PAGE>
election of the eligible person, provided that the Plan Participant will be
required to pay an amount equal to the aggregate par value of any newly issued
Stock Payments. A Plan Participant shall have all the voting, dividend,
liquidation and other rights with respect to shares of Common Stock issued to
the Plan Participant as a Stock Payment upon the Plan Participant becoming
holder of record of such shares of Common Stock; provided, however, the Program
Administrators may impose such restrictions on the assignment or transfer of
such shares of Common Stock as they deem appropriate and as are evidenced in the
Stock Rights Agreement for such Stock Payment.
Section 6. Dividend Equivalent Rights. The Program Administrators may grant
Dividend Equivalent Rights in tandem with the grant of Incentive Option or
Nonqualified Option, SARs, Restricted Shares or Performance Shares that
otherwise do not provide for the payment of dividends on the shares of Common
Stock subject to such awards for the period of time to which such Dividend
Equivalent Rights apply, or may grant Dividend Equivalent Rights that are
independent of any other such award. A Dividend Equivalent Right granted in
tandem with another award may be evidenced by the agreement for such other
award; otherwise, a Dividend Equivalent Right shall be evidenced by a separate
Stock Rights Agreement. Payment may be made by the Company in cash or by shares
of the Company's Common Stock or by a combination of the foregoing, may be
immediate or deferred and may be subject to such employment, performance
objectives or other conditions as the Program Administrators may determine and
specify in the Stock Rights Agreement for such Dividend Equivalent Rights. The
total payment attributable to a share of Common Stock subject to a Dividend
Equivalent Right shall not exceed one hundred percent (100%) of the equivalent
dividends payable with respect to an outstanding share of Common Stock during
the term of such Dividend Equivalent Right, taking into account any assumed
investment (including assumed reinvestment in shares of Common Stock) or
interest earnings on the equivalent dividends as determined under the Stock
Rights Agreement in the case of a deferred payment, provided that such
percentage may increase to a maximum of two hundred percent (200%) if a Dividend
Equivalent Right is subject to a Performance Objective.
Section 7. Compliance with Securities Laws. Shares shall not be issued with
respect to any option granted under the Stock Rights Plan, unless the exercise
of that option and the issuance and delivery of the shares pursuant thereto
shall comply with all applicable provisions of foreign, state and federal law,
including, without limitation, the Securities Act of 1933, as amended, and the
Exchange Act, and the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance. The Program Administrators may also require an Optionee to
furnish evidence satisfactory to the Company, including a written and signed
representation letter and consent to be bound by any transfer restrictions
imposed by law, legend, condition, or otherwise, that the shares are being
purchased only for investment purposes and without any present intention to sell
or distribute the shares in violation of any state or federal law, rule, or
regulation. Further, each Optionee shall consent to the imposition of a legend
on the shares of Common Stock subject to his or her option and the imposition of
stop-transfer instructions restricting their transferability as required by law
or by this Section 7.
Section 8. Continued Employment or Service. Each Optionee, if requested by
the Program Administrators, must agree in writing as a condition of receiving
his or her option, to remain in the employment of, or service to, the Company or
any of its subsidiaries following the date of the granting of that option for a
period specified by the Program Administrators. Nothing in this Stock Rights
Plan in any option granted hereunder shall confer upon any Optionee any right to
continued employment by, or service to, the Company or any of its subsidiaries,
or limit in any way the right of the Company or any subsidiary at any time to
terminate or alter the terms of that employment or service arrangement.
3
<PAGE>
Section 9. Option Rights Upon Termination of Employment or Service. If an
Optionee under this Stock Rights Plan an ceases to be employed by, or provide
services to, the Company or any of its subsidiaries for any reason other than
death or disability, his or her option shall immediately terminate; provided,
however, that the Program Administrators may, in their sole and absolute
discretion, allow the option to be exercised, to the extent exercisable on the
date of termination of employment or service, at any time within sixty (60) days
after the date of termination of employment or service, unless either the option
or this Stock Rights Plan otherwise provides for earlier termination.
Section 10. Option Rights Upon Disability. If an Optionee becomes disabled
within the meaning of Code Section 422 (e) (3) while employed by the Company or
any subsidiary corporation, the Program Administrators, in their discretion, may
allow the option to be exercised, to the extent exercisable on the date of
termination of employment, at any time within one year after the date of
termination of employment due to disability, unless either the option or the
Stock Rights Plan otherwise provides for earlier termination.
4
NIDA & MALONEY
A Limited Liability Partnership
800 Anacapa Street
Santa Barbara, California 93101
(805) 568-1151
Facsimile (805) 568-1955
January 26, 2000
GenesisIntermedia.com, Inc.
5805 Sepulveda Blvd. 4th Floor
Van Nuys, CA 91411
Re: GenesisIntermedia.com, Inc. - Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for GenesisIntermedia.com, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, to be filed with the Securities and Exchange
Commission (the "Commission") on January 25, 2000, in connection with the
registration of an aggregate of 600,000 shares of the Company's Common Stock,
par value $.001 per share (collectively, the "Shares"), issued or issuable under
the Company's 1998 Amended & Restated Stock Incentive Program (the "Plan").
In connection with the preparation of the Registration Statement and the
proposed issuance and sale of the Shares in accordance with the Plan and the
Form S-8 prospectus to be delivered to participants in the Plan, we have made
certain legal and factual examinations and inquiries and examined, among other
things, such documents, records, instruments, agreements, certificates and
matters as we have considered appropriate and necessary for the rendering of
this opinion. We have assumed for the purpose of this opinion the authenticity
of all documents submitted to us as originals and the conformity with the
originals of all documents submitted to us as copies, and the genuineness of the
signatures thereon. As to various questions of fact material to this opinion, we
have, when relevant facts were not independently established, relied, to the
extent deemed proper by us, upon certificates and statements of officers and
representatives of the Company.
Based on the foregoing and in reliance thereon, it is our opinion that the
Shares have been duly authorized, and, to the extent and when issued and sold in
accordance with the Plan and the prospectus delivered or to be delivered to
participants in the Plan, the Shares are or will be validly issued, fully paid
and nonassessable.
We hereby consent to the inclusion of our opinion as Exhibit 5.1 to the
Registration Statement and further consent to the reference to this firm in the
Registration Statement. 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, or the rules and regulations of the
Commission thereunder.
<PAGE>
GenesisIntermedia.com, Inc.
January 26, 2000
Page 2
This opinion is rendered solely for your benefit in accordance with the
subject transaction and is not to be otherwise used, circulated, quoted or
referred to without our prior written consent. We are opining herein only as to
the internal (and not the conflict of law) laws of the States of California and
the Delaware General Corporation Law, and we assume no responsibility as to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction.
Very truly yours,
/S/ NIDA & MALONEY, LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report, dated April 8, 1999, which
appears on Page F-2 of the Registration Statement on Form SB-2 of
GenesisIntermedia.com, Inc. and subsidiary for the year ended December 31, 1998.
/s/ Singer Lewak Greenbaum & Goldstein, LLP
Los Angeles, California
January 25, 2000
