As Filed with the Securities and Exchange Commission on March 31, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
----------------------
HOMESERVICES.COM INC.
(Exact name of registrant as specified in its charter)
Delaware 41-1945806
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
6800 FRANCE AVENUE SOUTH, SUITE 600
EDINA, MINNESOTA 55435
(Address of Principal Executive Offices and Zip Code)
HOMESERVICES.COM INC. EMPLOYEE STOCK PURCHASE PLAN
HOMESERVICES.COM INC. SALES ASSOCIATE STOCK PURCHASE PLAN
(Full title of the Plans)
STEVEN A. MCARTHUR, Esq.
Senior Vice President, General Counsel and Secretary
HOMESERVICES.COM INC.
6800 France Avenue South, Suite 600
Edina, Minnesota 55435
(612) 928-5900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
<C> <C> <C> <C> <C>
=============================== ============= ================= ================= =================
Proposed Proposed
Maximum Maximum
Title of Each Class of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered(1) Per Unit(2) Offering Registration Fee
Price(2)
- ------------------------------- ------------- ----------------- ----------------- -----------------
- ------------------------------- ------------- ----------------- ----------------- -----------------
Common Stock, $0.01 par value 500,000 $9.50 $4,750,000 $ 1,254
=============================== ============= ================= ================= =================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plans described herein.
(2) Estimated pursuant to Rule 457(h) of the Securities Act of 1933
solely for the purpose of computing the amount of the registration
fee based upon the average of the high and low prices for the
Common Stock as reported on the Nasdaq National Market on March
30, 2000.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note. The document(s) containing the information
specified in Part I of Form S-8 will be sent or given to participating
employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). Such documents are not being filed with or
included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"). These documents and the documents
incorporated by reference into this Registration Statement pursuant to Item
3 of Part 11 of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, previously filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended,
("Exchange Act"), are hereby incorporated by reference herein and shall be
deemed a part hereof:
1. HomeServices' Annual Report on Form 10-K for its fiscal year
ended December 31, 1999.
2. HomeServices' Current Report on Form 8-K dated March 17, 2000.
3. HomeServices' Current Report on Form 8-K dated January 13, 2000.
4. The description of HomeServices' Common Stock contained in
the HomeServices' registration statement on Form 8-A filed
under the Exchange Act and any amendments or reports filed
for the purpose of updating such description.
5. HomeServices' final prospectus filed on October 8, 1999
pursuant to Rule 424(b)(4) of the Securities Act.
All documents, filed by or on behalf of HomeServices with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, and all documents filed by the HomeServices.Com Inc. Employee
Stock Purchase Plan and the HomeServices.Com Inc. Sales Associate Stock
Purchase Plan (the "Plans") pursuant to Section 15(d) of the Exchange Act,
after the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates
that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and made a part hereof from their
respective dates of filing (such documents and the documents enumerated
above being hereinafter referred to as "Incorporated Documents"); provided,
however, that the documents enumerated above or subsequently filed by or on
behalf of HomeServices pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act in each year during which the offering made by this
Registration Statement is in effect prior to the filing with the Commission
of HomeServices' Annual Report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference in this Registration
Statement or be a part hereof from and after the filing of such Annual
Report on Form 10-K.
Any statement contained in an Incorporated Document shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed Incorporated Document modifies or supersedes such
statement. Any such 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 Common Stock offered hereby
will be passed upon for HomeServices by Steven A. McArthur, Senior Vice
President, General Counsel and Secretary of HomeServices. As of the date of
this registration statement, Mr. McArthur beneficially owned 51,000 shares
of Common Stock.
Item 6. Indemnification of Directors and Officers
As permitted by Section 102(b)(7) of the General
Corporation Law of the State of Delaware, the restated certificate of
incorporation of HomeServices provides that no director shall be liable to
HomeServices or its stockholders for monetary damages for breach of
fiduciary duty as a director other than for (i) breaches of the directors'
duty of loyalty to HomeServices and its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) the unlawful payment of dividends or
unlawful stock purchases or redemptions under Section 174 of the Delaware
General Corporation Law and (iv) any transaction from which the director
derived an improper personal benefit.
Section 145 of the Delaware General Corporation Law
provides that a corporation has the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
or amounts paid in settlement actually and reasonably incurred by them in
connection with the defense of any action by reason of being or having been
directors or officers, if such person shall have acted in good faith in a
manner 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 the person's conduct was unlawful,
except that if such action shall be in the right of the corporation, no
such indemnification shall be provided as to any claim, issue or matter as
to which such person shall have been adjudged to have been liable to the
corporation unless and only to the extent that the Delaware Court of
Chancery or the court in which the action was brought shall determine upon
application that, in view of all of the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or other court shall deem proper.
The restated certificate of incorporation and the amended
and restated bylaws of HomeServices provide for indemnification of officers
and directors of HomeServices, both past and present, to the fullest extent
permitted by the Delaware General Corporation law, and allow HomeServices
to advance or reimburse litigation expenses upon submission by the director
or officer of an undertaking to repay such advances or reimbursements if it
is ultimately determined that indemnification is not available to such
director or officer pursuant to the amended and restated bylaws. The
amended and restated bylaws also authorize HomeServices to purchase and
maintain insurance on behalf of an officer or director, past or present,
against any liability asserted against him in any such capacity whether or
not HomeServices would have the power to indemnify him against such
liability under the provisions of its certificate of incorporation or
Section 145 of the Delaware General Corporation Law.
HomeServices intends to provide liability insurance for
each of its directors and officers against certain losses arising from
claims made against them while acting in their capacities as directors or
officers of HomeServices, whether or not HomeServices would have the power
to indemnify such person against such losses, as permitted by law.
The indemnification provisions contained in HomeServices'
restated certificate of incorporation and amended and restated bylaws are
not exclusive of any other rights to which a person may be entitled by law,
agreement, vote of stockholders or disinterested directors or otherwise.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
5 Opinion of Steven A. McArthur, Esq.
23(1) Consent of PricewaterhouseCoopers LLP
23(3) Consent of Steven A. McArthur
(included in Exhibit 5)
24 Power of Attorney
99(1) HomeServices.Com Inc. Employee
Stock Purchase Plan
99(2) HomeServices.Com Inc. Sales Associate
Stock Purchase Plan
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933. (ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any increase
or decrease in the volume of securities (if the total value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
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 the registrant need not
file a post-effective amendment to include the information required to be
included by subsection (i) or (ii) if such information is contained in
periodic reports filed by HomeServices pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, which are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of HomeServices' annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 and each filing of the Plans' respective annual reports pursuant to
Section 15(d) of the Securities Exchange Act of 1934, and each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934, that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) That, insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of HomeServices by HomeServices pursuant
to the restated certificate of incorporation, the amended and restated
bylaws, the Delaware General Corporation Law or otherwise, HomeServices has
been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by
HomeServices of expenses incurred or paid by a director, officer or
controlling person of HomeServices 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, HomeServices
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
adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
HomeServices 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 Edina, Minnesota on March 31, 2000.
HOMESERVICES.COM INC.
By /s/ Ronald J. Peltier
-----------------------------------------
Name: Ronald J. Peltier
Title: President and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATE INDICATED.
Signature Title Date Signed
- --------- ----- -----------
/s/David L. Sokol * Chairman and Director March 31, 2000
- ---------------------------
David L. Sokol
/s/Ronald J. Peltier * President, Chief Executive March 31, 2000
- --------------------------- Officer and Director
Ronald J. Peltier (principal executive officer)
/s/Dwayne J. Coben * Senior Vice President and March 31, 2000
- --------------------------- Chief Financial Officer
Dwayne J. Coben (principal financial
and accounting officer)
/s/Jack W. Frost * Director March 31, 2000
- ---------------------------
Jack W. Frost
/s/R. Michael Knapp * Director March 31, 2000
- ---------------------------
R. Michael Knapp
/s/Steven A. McArthur * Director March 31, 2000
- ---------------------------
Steven A. McArthur
/s/Gregory E. Abel * Director March 31, 2000
- ---------------------------
Gregory E. Abel
/s/Richard A. Jaros * Director March 31, 2000
- ---------------------------
Richard A. Jaros
/s/W. David Scott * Director March 31, 2000
- ---------------------------
W. David Scott
*By /s/Steven A. McArthur
-----------------------
Steven A. McArthur
Attorney-in-fact
The Plans. Pursuant to the requirements of the Securities Act of
1933, each of the HomeServices.Com Inc. Employee Stock Purchase Plan and
the HomeServices.Com Inc. Sales Associate Stock Purchase Plan has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Edina, Minnesota, on March 31,
2000.
HOMESERVICES.COM INC EMPLOYEE STOCK PURCHASE PLAN
HOMESERVICES.COM INC. SALES ASSOCIATE STOCK PURCHASE PLAN
By: /s/Ronald J. Peltier
--------------------------------------
Name: Ronald J. Peltier
Title: President and Chief Executive Officer
EXHIBIT LIST
Exhibit
No Description
- ------- -----------
5 Opinion of Steven A. McArthur, Esq.
23(1) Consent of PricewaterhouseCoopers LLP
23(2) Consent of Steven A. McArthur (included in Exhibit 5)
24 Power of Attorney
99(1) HomeServices.Com Inc. Employee Stock Purchase Plan
99(2) HomeServices.Com Inc. Sales Associate Stock Purchase Plan
EXHIBIT 5
March 31, 2000
HomeServices.Com Inc.
6800 France Avenue South, Suite 600
Edina, Minnesota 55435
Re: HomeServices.Com Inc.
Registration Statement on Form S-8
Employee and Sales Associates Stock Purchase Plans
Ladies and Gentlemen:
I am the Senior Vice President, General Counsel and
Secretary of HomeServices.Com Inc., a Delaware corporation (the "Company").
I have served in such capacity in connection with the proposed issuance and
sale by the Company of up to 500,000 shares of authorized but unissued
shares (the "Shares") of the Company's common stock, $0.01 par value
("Common Stock"), pursuant to the HomeServices.Com Inc. Employee Stock
Purchase Plan and the HomeServices.Com Inc. Sales Associate Stock Purchase
Plan (together, the "Plans").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the "Act").
In connection with this opinion, I have examined
originals or copies, certified or otherwise identified to my satisfaction,
of (i) the Registration Statement on Form S-8 (the "Registration
Statement") in the form to be filed with the Securities and Exchange
Commission (the "Commission"), (ii) each of the Plans, (iii) the Amended
and Restated Certificate of Incorporation of the Company, as currently in
effect, (iv) the Amended and Restated By-Laws of the Company, as currently
in effect and (v) certain resolutions of the Board of Directors of the
Company relating to the adoption of the Plans and the issuance and sale of
the Shares. I have also examined originals or copies, certified or
otherwise identified to my satisfaction, of such records of the Company and
such agreements, certificates of public officials, certificates of officers
or other representatives of the Company and others, and such other
documents, certificates and records as I have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In my examination, I have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making my examination of documents executed by parties other
than the Company, I have assumed that such other parties had the power,
corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such other parties of
such documents and the validity and binding effect thereof on such other
parties. As to any facts material to the opinions expressed herein which I
have not independently established or verified, I have relied upon the oral
and written statements and representations and the responses to inquiries
of officers and other representatives of the Company and others.
The opinions expressed herein are limited to the General
Corporation Law of the State of Delaware, and I express no opinion with
respect to the laws of any other state or jurisdiction.
Based upon and subject to the foregoing, it is my opinion
that:
The Shares have been duly authorized and when (i) the
Registration Statement becomes effective upon filing with the Commission
and (ii) the Shares shall have been issued and sold and the Registration
Statement with the terms of the Plans and the authorizations of the Board
of Directors of the Company and the applicable provisions of the General
Corporation Law of the State of Delaware, the Shares will be validly issued,
fully paid and nonassessable.
This letter is being delivered to you in my capacity as
the Senior Vice President and General Counsel of the Company and, except as
expressly set forth herein, may not be relied upon by any third party
without my prior written consent. Moreover, this letter speaks only as of
its date and I disclaim any undertaking to advise you of any changes after
the date hereof.
I hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. I also consent to
the reference to me under the caption "Interests of Named Experts and
Counsel" in the Registration Statement. In giving this consent, I do not
thereby admit that I am included in the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the
Commission.
Sincerely,
/s/ Steven A. McArthur
Steven A. McArthur, Esq.
Senior Vice President and General Counsel
Exhibit 23(1)
CONSENT OF INDEPENDENT ACCOUNTANTS
Board of Directors
HomeServices.Com Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of HomeServices.Com Inc (the Company) of our report,
which includes an explanatory paragraph relating to the predecessor's
financial statements, dated January 25, 2000 relating to the financial
statements and financial statement schedule, which appears in the Company's
Annual Report on Form 10-K for the year ended December 31, 1999.
Minneapolis, Minnesota
/s/PricewaterhouseCoopers LLP
- -----------------------------
PricewaterhouseCoopers LLP
March 31, 2000
Exhibit 24
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Steven A. McArthur and Dwayne J. Coben, and each of them, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place, and stead, in any and all
amendments to this Registration Statement and any additional Registration
that is filed pursuant to Rule 462(b) under the Securities Act of 1933, as
in connection therewith, with the Securities and Exchange Commission, and
hereby grants to such attorney-in-fact and agent full power and authority
to do fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in-fact and agent or
his substitute or substitutes may lawfully do or cause to be done by virtue
hereof
IN WITNESS WHEREOF, the undersigned have duly executed this
instrument as of March 31, 2000.
/s/David L. Sokol /s/Steven A. McArthur
- ----------------------------------- -------------------------------
David L. Sokol Steven A. McArthur
/s/Ronald J. Peltier /s/Gregory E. Abel
- ----------------------------------- -------------------------------
Ronald J. Peltier Gregory E. Abel
/s/Jack W. Frost /s/Richard R. Jaros
- ----------------------------------- -------------------------------
Jack W. Frost Richard R. Jaros
/s/R. Michael Knapp /s/W. David Scott
- ----------------------------------- -------------------------------
R. Michael Knapp W. David Scott
/s/Dwayne J. Coben
- -----------------------------------
Dwayne J. Coben
Exhibit 99(1)
HOMESERVICES.COM INC.
Employee Stock Purchase Plan
(As Adopted Effective April 1, 2000)
SECTION 1. ESTABLISHMENT OF THE PLAN.
HomeServices.Com Inc. establishes the Employee Stock Purchase Plan,
effective April 1, 2000, to provide Eligible Employees with an opportunity
to purchase the Company's common stock so that they may increase their
proprietary interest in the success of the Company. The Plan, which
provides for the purchase of stock through payroll withholding, is intended
to qualify under Section 423 of the Code.
SECTION 2. DEFINITIONS.
(a) "Board of Directors" or "Board" means the Board of Directors
of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Company" means HomeServices.Com Inc., a Delaware corporation.
(d) "Compensation" means the base compensation paid to a
Participant during a Participation Period in cash or in kind
including overtime and shift differential. Incentive
compensation, commissions and other bonuses and other forms of
compensation for work outside the regular work schedule are
excluded.
(e) "Compensation Committee" means the Compensation Committee of
the Board of Directors of the Company.
(f) "Date of Participation" means the first day of a Participation
Period.
(g) "Eligible Employee" means any Employee of a Participating
Company who meets the applicable participation requirements as
established by each Participating Company from time to time.
In the event an Eligible Employee fails to meet the applicable
participation requirements as established by each Participating
Company, he or she will be deemed to have elected to withdraw
from the Plan and the payroll deductions credited to his or her
account will be returned to him or her, without interest;
provided that a Participant who goes on an unpaid leave of
absence shall be permitted to remain in the Plan with respect
to a Participation Period which commenced prior to such leave
of absence. If such Participant is not guaranteed reemployment
by contract or statute and the leave of absence extends beyond
ninety (90) days, such Participant shall be deemed to have
terminated employment on the ninety-first (91st) day of such
leave of absence. Payroll deductions for a Participant who has
been on an unpaid leave of absence will resume at the same rate
as in effect prior to such leave upon return to work unless
changed by such Participant or unless the Participant has been
on an unpaid leave of absence either throughout an entire
Participation Period or for more than 90 days, in which case
the Participant shall not be permitted to re-enter the Plan
until a participation agreement is filed with respect to a
subsequent Participation Period which commences after such
Participant has returned to work from the unpaid leave of
absence.
(h) "Employee" means any employee of a Participating Company for
purposes of tax withholding under Section 3401 et seq. of the
Code.
(i) "Fair Market Value" shall mean (i) the closing price of a share
of Stock on the principal exchange which the shares are
trading, or (ii) if the shares are not traded on an exchange
but are quoted on NASDAQ or such successor quotation system, or
(iii) if the shares are not traded on an exchange or quoted on
the NASDAQ or a successor quotation system, the fair market
value of a share as determined by the Plan Administrator in
good faith. Such determination shall be conclusive and binding
on all persons.
(j) "Participant" means an Eligible Employee who elects to
participate in the Plan, as provided in Section 5 hereof.
(k) "Participating Company" means the Company and such present or
future Subsidiaries of the Company as the Company shall from
time to time designate. The initial designated Subsidiaries are
set forth on Exhibit A hereto.
(l) "Participation Period" means a period during which
contributions may be made toward the purchase of Stock under
the Plan, as determined pursuant to Section 6.
(m) "Plan" has the meaning set forth in Section 1.
(n) "Plan Account" means the account established for each
Participant pursuant to Section 9(a).
(o) "Purchase Price" means the price at which Participants may
purchase Stock under Section 5, as determined pursuant to
Section 7.
(p) "Stock" means the common stock of the Company, no par value.
(q) "Subsidiary" means a subsidiary corporation as defined in
Section 424(f) of the Code.
SECTION 3. SHARES AUTHORIZED.
The maximum aggregate number of shares which may be offered under the
Plan shall be 250,000 shares of Stock, subject to adjustment as
provided in Section 13 hereof.
SECTION 4. ADMINISTRATION.
(a) The Plan shall be administered by a Plan Administrator
appointed by the Company. Until and unless another person or
entity shall be so appointed and serving, the Plan
Administrator shall be the Compensation Committee. The
interpretation and construction by the Plan Administrator of
any provision of the Plan or of any right to purchase stock
under the Plan shall be conclusive and binding on all persons.
(b) No member of the Compensation Committee or, if the Plan
Administrator is not the Compensation Committee, any member of
the Board of Directors or employee of the Plan Administrator
shall be liable for any action or determination made in good
faith with respect to the Plan or the right to purchase Stock.
The Plan Administrator shall be indemnified by the Company
against the reasonable expenses, including attorney's fees
actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection
with any appeal therein, to which it may be a party by reason
of any action taken or failure to act under or in connection
with the Plan or any Stock purchased under the Plan, and
against all amounts paid by it in settlement (provided such
settlement is approved by independent legal counsel selected by
the Company) or paid by it in satisfaction of a judgment in any
such action, suit or proceeding, except in relation to matters
as to which it shall be adjudged in such action, suit or
proceeding that the Plan Administrator is liable for negligence
or misconduct in the performance of its duties; provided that
within sixty (60) days after institution of any such action,
suit or proceeding, the Plan Administrator shall in writing
offer the Company the opportunity, at its own expense, to
handle and defend the same.
(c) All costs and expenses incurred in administering the Plan shall
be paid by the Company. The Plan Administrator may request
advice for assistance or employ such other persons as are
necessary for proper administration of the Plan.
(d) Notwithstanding the preceding provisions of this Section 4, in
the event that Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended, or any successor provision
("Rule 16b-3") provides specific requirements for the
administrators of plans of this type, the Plan shall be only
administered by such a body and in such a manner as shall
comply with the applicable requirements of Rule 16b-3. Unless
permitted by Rule 16b-3, no discretion concerning decisions
regarding the Plan shall be afforded to any committee or person
that is not "disinterested" as that term is used in Rule 16b-3.
The Company shall appoint a "disinterested" committee or person
to carry out any discretionary determination that would
otherwise be in contravention of the foregoing provision.
SECTION 5. ELIGIBILITY AND PARTICIPATION.
(a) Any person who qualifies or will qualify as an Eligible
Employee on the Date of Participation with respect to a
Participation Period may elect to participate in the Plan for
such Participation Period. An Eligible Employee may elect to
participate by executing the participation agreement prescribed
for such purpose by the Plan Administrator. The participation
agreement shall be filed with the Plan Administrator no later
than the deadline stated on the participation agreement, and if
none is stated, then no later than the first day of the
Participation Period. The Eligible Employee shall designate on
the participation agreement either (i) the whole percentage of
his or her Compensation which he or she elects to have withheld
for the purchase of Stock or (ii) the whole dollar amount of
his or her Compensation which he or she elects to have withheld
for the purchase of Stock.
(b) By enrolling in the Plan, a Participant shall be deemed to have
elected to purchase the maximum number of whole shares of Stock
which can be purchased with the amount of the Participant's
Compensation which is withheld during the Participation Period.
However, with respect to any Participation Period, no
Participant shall be eligible to purchase shares of Stock in
excess of any maximum number which may be set by the Plan
Administrator from time to time, which maximum number shall
initially be the number of shares whose aggregate Fair Market
Value does not exceed (when added to the Fair Market Value of
any other shares purchased under the Plan by such Participant
during the same calendar year) $25,000.
(c) Once enrolled, a Participant will continue to participate in
the Plan for each succeeding Participation Period until he or
she terminates participation by withdrawing in accordance with
Section 10 or ceases to qualify as an Eligible Employee. A
Participant who withdraws from the Plan in accordance with
Section 10 may again become a Participant, if he or she then is
an Eligible Employee, by following the procedure described in
Section 5(a).
SECTION 6. PARTICIPATION PERIODS.
The Plan shall be implemented by one or more Participation Periods of six
months' duration each. The first Participation Period will commence on July
1, 2000 and end on December 31, 2000, and thereafter a new Participation
Period shall commence on each January 1 and July 1. The Company may alter
the duration of each Participation Period and the commencement dates,
provided that any such alteration shall be effective for the next
Participation Period, and provided further that no Participation Period
shall exceed twenty-seven (27) months or extend beyond the termination of
the Plan.
SECTION 7. PURCHASE PRICE.
The Purchase Price for each share of Stock shall be the lesser of (i)
eighty-five percent (85%) of the Fair Market Value of such share on the
last trading day before the Date of Participation or (ii) eighty-five
percent (85%) of the Fair Market Value of such share on the last trading
day during the Participation Period.
SECTION 8. EMPLOYEE CONTRIBUTIONS.
A Participant may purchase shares of Stock pursuant to the Plan solely by
means of payroll deductions. Payroll deductions, as designated by the
Participant pursuant to Section 5(a), shall commence with the first
paycheck issued during the Participation Period and shall be deducted from
each subsequent paycheck throughout the Participation Period. If a
Participant desires to decrease the rate of payroll withholding during the
Participation Period, he or she may do so, if permitted by the Plan
Administrator, one time during a Participation Period by filing a new
participation agreement with the Plan Administrator. Such decrease will be
effective as of the first day of the payroll period which begins following
the receipt of the new participation agreement. A Participant may terminate
participation in the plan as provided in Section 10 notwithstanding any
prior decrease in the Participant's rate of payroll withholding during a
Participation Period. A Participant may not increase his or her rate of
payroll withholding during a Participation Period. If a Participant desires
to increase or decrease the rate of payroll withholding effective for the
next Participant Period, he or she may do so by filing a new participation
agreement with the Plan Administrator on or before the date specified by
the Plan Administrator, and if none is stated, then no later than the first
day of the Participation Period for which such change is to be effective.
Notwithstanding the provisions of this Section 8, any Participant who has
executed an irrevocable election to participate in and not withdraw from
the Plan during a Participation Period shall not increase or decrease his
or her rate of payroll withholding for the period covered by such
irrevocable election.
SECTION 9. PLAN ACCOUNTS; PURCHASE OF SHARES.
(a) The Company will maintain a Plan Account on its books in the
name of each Participant. At the close of each pay period, the
amount deducted from the Participant's Compensation will be
credited to the Participant's Plan Account. No interest shall
be credited to amounts in a Participant's Plan Account.
(b) As of the last day of each Participation Period, the amount
then in the Participant's Plan Account will be divided by the
Purchase Price, and the number of whole shares which results
(subject to the limitations described in Sections 5(b), 9(c)
and 14) shall be purchased from the Company with the funds in
the Participant's Plan Account. Share certificates representing
the number of shares of Stock so purchased shall be delivered
either directly to each Participant or to a brokerage account
designated by the Plan Administrator to be kept in such account
pursuant to a participation agreement (which shall be uniform)
between each Participant and the Company and subject to the
conditions described therein which may include a requirement
that shares of Stock be held and not sold for certain time
periods. To the extent that any amount remains in the
Participant's Plan Account after effecting the purchase of
whole shares, the amount shall remain in the Participant's Plan
Account for application to the purchase of Shares in the
subsequent Participation Period.
(c) In the event that the aggregate number of shares which all
Participants elect to purchase during a Participation Period
shall exceed the number of shares remaining available for
issuance under the Plan, then the number of shares to which
each Participant shall become entitled shall be determined by
multiplying the number of shares available for issuance by a
fraction, the numerator of which is the sum of the number of
shares the Participant has elected to purchase pursuant to
Section 5, and the denominator of which is the sum of the
number of shares which all Participants have elected to
purchase for such Participation Period pursuant to Section 5.
Any cash amount remaining in the Participant's Plan Account
under these circumstances shall be refunded to the Participant.
(d) Any amount remaining in the Participant's Plan Account caused
by a surplus due to fractional shares after deducting the
amount of the Purchase Price for the number of whole shares
issued to the Participant shall be carried over in the
Participant's Plan Account for the succeeding Participation
Period, without interest. Any amount remaining in the
Participant's Plan Account at the end of the Participation
Period caused by anything other than a surplus due to
fractional shares shall be refunded to the Participant in cash,
without interest.
(e) As soon as practicable following the end of each Participation
Period, the Company shall deliver to each Participant a Plan
Account statement setting forth the amount of payroll
deductions, the purchase price, the number of shares purchased
and the remaining cash balance, if any.
SECTION 10. WITHDRAWAL FROM THE PLAN.
A Participant may elect to withdraw from participation under the Plan at
any time up to the last day of a Participation Period by filing the
prescribed form with the Plan Administrator. As soon as practicable after a
withdrawal, payroll deductions shall cease and all amounts credited to the
Participant's Plan Account will be refunded in cash, without interest. A
Participant who has withdrawn from the Plan shall not be a Participant in
future Participation Periods, unless he or she again enrolls in accordance
with the provisions of Section 5. Notwithstanding the provisions of this
Section 5, any Participant who has executed an irrevocable election to
participate in and not withdraw from the Plan during a Participation Period
shall not withdraw from the Plan for the period covered by such irrevocable
election.
SECTION 11. EFFECT OF TERMINATION OF EMPLOYMENT OR DEATH.
(a) Termination of employment as an Eligible Employee for any
reason, including death, shall be treated as an automatic
withdrawal from the Plan under Section 10. A transfer from one
Participating Company to another shall not be treated as a
termination of employment.
(b) A Participant may file a written designation of a beneficiary
who is to receive any shares and cash, if any, from the
Participant's Plan Account under the Plan in the event of such
Participant's death subsequent to the purchase of shares but
prior to delivery to him or her of such shares and cash. In
addition, a Participant may file a written designation of a
beneficiary who is to receive any cash from the Participant's
Plan Account under the Plan in the event of such Participant's
death prior to the last day of a Participation Period.
(c) Such designation of beneficiary may be changed by the
Participant at any time by written notice. In the event of the
death of a Participant in the absence of a valid designation of
a beneficiary who is living at the time of such Participant's
death, the Company shall deliver such shares and/or cash in
accordance with the Participant's designation of beneficiaries
under the Company's 401(k) Plan; or, in the absence of such
designation, to the executor or administrator of the estate of
the Participant; or if no such executor or administrator has
been appointed (to the knowledge of the Company), the Company,
in its discretion, may deliver such shares and/or cash to the
spouse or to any one or more dependents or relatives of the
Participant; or if no spouse, dependent or relative is known to
the Company, then to such other person as the Company may
designate.
SECTION 12. RIGHTS NOT TRANSFERABLE.
The rights or interests of any Participant in the Plan, or in any Stock or
moneys to which he or she may be entitled under the Plan, shall not be
transferable by voluntary or involuntary assignment or by operation of law,
or by any other manner other than as permitted by Section 423 of the Code
or by will or the laws of descent and distribution. If a Participant in any
manner attempts to transfer, assign or otherwise encumber his or her rights
or interest under the Plan, other than as permitted by Section 423 of the
Code or by will or the laws of descent and distribution, such act shall be
treated as an automatic withdrawal under Section 10.
SECTION 13. RECAPITALIZATION, ETC.
(a) The aggregate number of shares of Stock offered under the Plan,
the number and price of shares which any Participant has
elected to purchase pursuant to Section 5 and the maximum
number of shares which a Participant may elect to purchase
under the Plan in any Participation Period shall be
proportionately adjusted for any increase or decrease in the
number of issued shares of Stock resulting from a subdivision
or consolidation of shares or any other capital adjustment, the
payment of a stock dividend, or other increase or decrease in
such shares effected without receipt of consideration by the
Company.
(b) In the event of a dissolution or liquidation of the Company,
or a merger or consolidation to which the Company is a
constituent corporation, this Plan shall terminate, unless the
plan of merger, consolidation or reorganization provides
otherwise, and all amounts which each Participant has paid
towards the Purchase Price of Stock hereunder for the
Participation Period during which the dissolution,
liquidation, merger or consolidation is effective shall be
used to purchase shares of Stock at the applicable Purchase
Price, provided that the last day of such Participation Period
shall be set at the latest practicable trading day prior to
the occurrence of such transaction, in order that Participants
may tender their shares on a timely basis or otherwise take
action necessary to permit them to benefit from the
consideration offered for such shares in such transaction.
(c) The Plan shall in no event be construed to restrict in any way
the Company's right to undertake a dissolution, liquidation,
merger, consolidation or other reorganization.
SECTION 14. LIMITATION ON STOCK OWNERSHIP.
Notwithstanding any provision herein to the contrary, no Participant shall
be permitted to elect to participate in the Plan to the extent that (i)
such Participant, immediately after his or her election to participate,
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 any parent
corporation (as defined by Section 424 of the Code) or Subsidiary of the
Company, or (ii) under the terms of the Plan the rights of the Participant
to purchase Stock under this Plan and all other qualified employee stock
purchase plans of the Company or any parent corporation (as defined by
Section 424 of the Code) or its Subsidiaries would accrue at a rate which
exceeds twenty-five thousand dollars ($25,000) of the Fair Market Value of
such Stock (determined at the time such right is granted) for each calendar
year for which such right is outstanding at any time. To the extent
necessary to comply with clause (ii), a Participant's payroll deductions
may be decreased by the Company to zero percent (0%) at such time during
the current calendar year that the sum of all payroll deductions which were
previously used to purchase Stock under the Plan during such calendar year,
all payroll deductions under other plans of the Company which qualify as
employee stock purchase plans under Section 423 of the Code which have been
used or can be used to purchase Stock during such calendar year, and all
payroll deductions accumulated but not yet used to purchase shares of
Common Stock, equals $21,250 (i.e., 85% of the maximum amount set forth in
such clause (ii)). Payroll deductions shall recommence at the rate provided
in such Participant's participation agreement at the beginning of the
following calendar year. For purposes of this Section 14, ownership of
stock shall be determined by the taking into account the attribution rules
of Section 424(d) of the Code, and Participants shall be considered to own
any stock which they have a right to purchase under this or any other stock
option plan.
SECTION 15. NO RIGHTS AS AN EMPLOYEE.
Nothing in the Plan shall be construed to give any person the right to
remain in the employ of a Participating Company. Each Participating Company
reserves the right to terminate the employment of any person at any time
and for any reason or for no reason, it being understood that employees of
the Participating Companies are employed on an "at will" basis, except to
the extent provided in a written employment contract between an employee
and the Participating Company.
SECTION 16. RIGHTS AS A SHAREHOLDER.
A Participant shall have no rights as a shareholder with respect to any
shares he or she may have a right to purchase under the Plan until the date
of issuance of a stock certificate to the brokerage account designated by
the Plan Administrator for shares of Stock issued pursuant to the Plan.
SECTION 17. USE OF FUNDS.
All payroll deductions received or held by the Company under the Plan may
be used by the Company for any corporate purpose, and the Company shall not
be obligated to segregate such payroll deductions in separate accounts.
SECTION 18. AMENDMENT OR TERMINATION OF THE PLAN.
The Board of Directors shall have the right to amend, modify or terminate
the Plan at any time without notice. An amendment of the Plan shall be
subject to shareholder approval only to the extent required by applicable
laws, regulations or rules.
SECTION 19. GOVERNING LAW.
The Plan shall be governed by, and construed and interpreted in accordance
with, the laws of the State of Delaware.
SECTION 20. SHAREHOLDER APPROVAL.
The Plan became effective as of April 1, 2000 following its adoption by the
Board, provided that no Stock shall be purchased under the Plan unless and
until shareholder approval of the Plan is obtained. In the case of the
initial approval of the Plan or if shareholder approval is required under
the Code for an amendment to the Plan adopted or proposed to be adopted by
the Board, such shareholder approval shall be obtained in any manner and
within the time periods required by Section 423 of the Code and the
Treasury Regulations thereunder (or any successor provisions). The Board,
in its discretion, also may obtain shareholder approval for any amendment
to the Plan adopted by or proposed to be adopted by the Board to the extent
desirable to maintain compliance with Rule 16b-3.
SECTION 21. WITHHOLDING.
The Company may withhold from a Participant's Compensation any amount
necessary for the Company to meet applicable income and employment tax
withholding obligations with respect to such Participant.
To record the adoption of the Plan, effective as of April 1, 2000, the
Company has caused its authorized officer to execute the same this 31st day
of March, 2000.
HomeServices.Com Inc.
By______________________________________
Ronald J. Peltier
President and Chief Executive Officer
Exhibit A
Participating Companies
(as of April 1, 2000)
HomeServices.Com Inc.
Edina Financial Services, Inc.
Iowa Realty Co., Inc.
J. C. Nichols Residential, Inc.
CBS/HOME Real Estate Company
Paul Semonin Company
Roy H. Long Realty Co., Inc.
Champion Realty, Inc.
EXHIBIT 99(2)
HOMESERVICES.COM INC.
Sales Associate Stock Purchase Plan
(As Adopted Effective April 1, 2000)
SECTION 1. PURPOSE.
The purpose of this HomeServices.Com Inc. Sales Associate Stock Purchase
Plan ("Plan") is to advance the interests of HomeServices.Com Inc.
("Company") and its shareholders by providing real estate sales associates
of the Company and each entity which is a subsidiary thereof ("Subsidiary
Company") with added incentive to continue in the service of such companies
and to encourage increased efforts to promote the best interests of such
companies by permitting eligible sales associates to purchase shares of the
common stock of the Company ("Common Stock") at prices less than the then
current market prices through deductions from commission payments. The
Company and its Subsidiary Companies are sometimes hereinafter called
collectively the "Participating Companies" and the initial Participating
Companies are set forth on Exhibit A hereto. The Plan will not qualify as
an employee stock purchase plan under Section 423 of the Internal Revenue
Code of 1986, as amended ("Code").
SECTION 2. ELIGIBILITY.
Participation in the Plan shall be open to all active sales associates of
the Participating Companies whether a natural person or a legal entity that
meet applicable participation requirements as established by each
Participating Company from time to time. No right to purchase Common Stock
shall accrue under the Plan in favor of any person or entity that is not an
eligible sales associate, and no eligible sales associate shall acquire
such right to purchase Common Stock (i) if, immediately after receiving
such right, such sales associate would own 5% or more of the total combined
voting power or value of all classes of stock of the Company or of any
Subsidiary Company, taking into account in determining stock ownership, any
stock attributable to such sales associate under Section 424(d) of the Code
and any stock the sales associate may purchase under outstanding options,
(ii) which would permit such sales associate's rights to purchase stock
under all stock purchase plans from time to time in effect of any
Participating Company (or any predecessor thereto) to accrue at a rate
which exceeds $25,000 of fair market value of such stock for any calendar
year, (iii) if such sales associate is eligible to participate in an
employee stock purchase plan, as defined in Section 423 of the Code,
maintained by the Company, or (iv) in the event such sales associate owes
advance money to a Participating Company.
SECTION 3. EFFECTIVE DATE OF PLAN; PARTICIPATION PERIODS.
The Plan shall become effective on such date as may be specified by the
Board of Directors ("Board") of the Company.
The Plan shall be implemented by one or more Participation Periods of six
months' duration each ("Participation Period"). The first Participation
Period will commence on July 1, 2000 and end on December 31, 2000, and
thereafter a new Participation Period shall commence on each January 1 and
July 1. The Company may alter the duration of each Participation Period and
the commencement dates, provided that any such alteration shall be
effective for the next Participation Period, and provided further that no
Participation Period shall exceed twenty-seven (27) months or extend beyond
the termination of the Plan.
SECTION 4. BASIS OF PARTICIPATION.
(a) Each eligible sales associate shall be entitled to enroll in the Plan
as of the first day of any Participation Period. To enroll in the Plan, an
eligible sales associate shall execute and deliver to the sales associate's
Participating Company, on such date (as determined from time to time by the
Company) prior to the first day of the first Participation Period for such
sales associate, a deduction from commission payment authorization/change
form ("Authorization") which shall become effective on the first day of
such first Participation Period. Each Authorization shall direct deductions
of a percentage of total commissions from commission payments to be made by
the Participating Company with which such sales associate is affiliated for
each such payment beginning while such sales associate is a participant in
the Plan. The percentage of each deduction from a commission payment
specified in the Authorization of a participant for each such payment shall
be no more than 15% of any commission payment, and the aggregate annual
amount of such deductions (together with any such deductions under any
other stock purchase plan maintained by any Participating Company or any
predecessor thereto) shall not exceed $21,250. Deductions shall be made for
each participant until such participant terminates participation in the
Plan, such Authorization is revised or the Plan terminates, all as
hereinafter provided.
(b) A participant may decrease the amount of deductions at any time, but
not more often than once during any Participation Period, provided,
however, that a participant who has made such a change during a
Participation Period may nevertheless reduce such deductions to zero. Any
such change shall become effective no later than 30 days after such
participant delivers a revised Authorization to the Participating Company
with which such participant is affiliated. A participant may not increase
the amount of deductions during a Participation Period. If a participant
desires to increase the amount of deductions effective for the next
Participation Period, the participant may do so by delivering a revised
Authorization to the Participating Company with which such participant is
affiliated. A participant may elect to terminate participation in the Plan
as provided in Section 7 below. No other changes shall be permitted. All
permitted changes must be effected by a participant's filing a new
Authorization with the Participating Company with which such participant is
affiliated at such time before the desired effective date of the change as
the Company shall, from time to time, determine.
(c) Deductions from commission payments shall be credited to a purchase
account established on behalf of each participant. No interest shall be
credited to amounts in a participant's account. As of the last day of each
Participation Period, the amount in each participant's account will be
applied to the purchase of the number of whole shares of Common Stock
determined by dividing such amount by the Purchase Price (as defined in
Section 5) for such period.
(d) To the extent that any amount remains in the participant's account
after effecting the purchase of whole shares, the amount shall remain in
the participant's account for application to the purchase of Common Stock
in the subsequent Participation Period.
(e) In the event that the aggregate number of shares which all participants
elect to purchase during an Participation Period shall exceed the number of
shares remaining available for issuance under the Plan, then the number of
shares to which each participant shall become entitled shall be determined
by multiplying the number of shares available for issuance by a fraction,
the numerator of which is the sum of the number of shares the participant
has elected to purchase, and the denominator of which is the sum of the
number of shares which all participants have elected to purchase for such
Participation Period. Any cash amount remaining in the participant's
account under these circumstances shall be refunded to the participant.
(f) Any amount remaining in the participant's account caused by a surplus
due to fractional shares after deducting the amount of the Purchase Price
for the number of whole shares issued to the participant shall be carried
over in the participant's account for the succeeding Participation Period,
without interest. Any amount remaining in the participant's account at the
end of the Participation Period caused by anything other than a surplus due
to fractional shares shall be refunded to the participant in cash, without
interest.
(g) As soon as practicable following the end of each Participation Period,
the Company shall deliver to each participant an account statement setting
forth the amount of deductions, the purchase price, the number of shares
purchased and the remaining cash balance, if any.
SECTION 5. PURCHASE PRICE.
The purchase price ("Purchase Price") per share of Common Stock hereunder
for any Participation Period shall be the lesser of (i) eighty-five percent
(85%) of the Fair Market Value of such share on the last trading day before
the first day of an Participation Period or (ii) eighty-five percent (85%)
of the Fair Market Value of such share on the last trading day during the
Participation Period. "Fair Market Value" shall mean (i) the closing price
of a share of Common Stock on the principal exchange which the shares are
trading, or (ii) if the shares are not traded on an exchange but are quoted
on NASDAQ or such successor quotation system, or (iii) if the shares are
not traded on an exchange or quoted on the NASDAQ or a successor quotation
system, the fair market value of a share as determined by the Company in
good faith. Such determination shall be conclusive and binding on all
persons. In no event, however, shall the Purchase Price be less than the
par value, if any, of the Common Stock.
SECTION 6. ISSUANCE OF STOCK.
The shares of Common Stock purchased by each participant shall be
considered to be issued and outstanding and credited to such participant as
of the close of business on the first business day subsequent to the
Participation Period during which such shares were purchased. Share
certificates representing the number of shares of Common Stock so purchased
shall be delivered either directly to each participant or to a brokerage
account designated by the Company to be kept in such account pursuant to
the Authorization and subject to the conditions described therein which may
include a requirement that shares of Common Stock be held and not sold for
certain time periods.
SECTION 7. TERMINATION OF PARTICIPATION.
(a) A participant may elect to terminate participation in the Plan at any
time up to the last day of an Participation Period by delivering the
prescribed withdrawal form to the Participating Company with which such
participant is affiliated. As soon as practicable after a withdrawal,
deductions shall cease and all amounts credited to the participant's
account will be refunded in cash, without interest. Termination of
participation in the Plan pursuant to this paragraph shall be treated as a
change in the participant's Authorization for purposes of the second
paragraph of Section 4 hereof, and the rules of such paragraph shall be
applicable for purposes of determining when the participant becomes
eligible to again participate in the Plan.
(b) If any natural person who is a participant shall die, terminate
affiliation with the Participating Companies for any reason or otherwise
cease to be eligible to participate in the Plan, participation of such
person in the Plan shall be treated as a withdrawal as provided in Section
7(a). A participant may file a written designation of a beneficiary who is
to receive any shares and cash, if any, from the participant's account
under the Plan in the event of such participant's death subsequent to the
purchase of shares of Common Stock but prior to delivery to the participant
of such shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the
participant's account under the Plan in the event of such participant's
death prior to the last day of a Participation Period.
(c) Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a participant in
the absence of a valid designation of a beneficiary who is living at the
time of such participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the
participant; or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver
such shares and/or cash to the spouse or to any one or more dependents or
relatives of the Participant; or if no spouse, dependent or relative is
known to the Company, then to such other person as the Company may
designate.
SECTION 8. TERMINATION OR AMENDMENT OF THE PLAN.
The Company, by action of the Board, may terminate the Plan effective as of
the beginning of any Participation Period. Notice of such termination shall
be given to all participants, but any failure to give such notice shall not
impair the effectiveness of such termination.
Without any action being required, the Plan will terminate in any event
when the maximum number of shares of Common Stock to be sold under the Plan
(as provided in Section 12) have been purchased, but such termination shall
not impair any rights which under the Plan shall have vested on or prior to
the date of such termination.
The Board may amend the Plan from time to time in any respect in order to
meet changes in legal requirements or for any other reason; provided,
however, that no such amendment shall (a) materially adversely affect any
purchase rights outstanding under the Plan during an Participation Period
in which such amendment is to be effected, (b) increase the maximum number
of shares of Common Stock which may be purchased under the Plan, or (c)
decrease the Purchase Price of the Common Stock for any Participation
Period below 85% of the Fair Market Value thereof.
SECTION 9. NON-TRANSFERABILITY.
Rights acquired under the Plan are not transferable and may be exercised
only by a participant.
SECTION 10. SHAREHOLDERS' RIGHTS.
No eligible sales associate or participant shall by reason of the Plan have
any rights of a shareholder of the Company until and to the extent Common
Stock shall have been purchased for such sales associate or participant as
herein provided.
SECTION 11. ADMINISTRATION OF THE PLAN.
The Compensation Committee of the Board, from time to time, may approve the
forms of any documents or writings provided for in the Plan, may adopt,
amend and rescind rules and regulations not inconsistent with the Plan for
carrying out the Plan, and may construe and interpret the Plan. The
Compensation Committee may delegate the responsibility for maintaining all
or a portion of the records pertaining to participants' accounts to persons
not affiliated with the Participating Companies. All expenses of
administering the Plan shall be paid by the Participating Companies.
SECTION 12. MAXIMUM NUMBER OF SHARES OF STOCK.
The maximum number of shares of Common Stock which may be purchased under
the Plan is 250,000, subject, however, to adjustment as hereinafter set
forth. Common Stock purchased hereunder may be shares owned by
Participating Companies, or, subject to obtaining any necessary regulatory
approval, authorized and unissued shares, or a combination thereof, and by
adopting the Plan, the Participating Companies are authorized to purchase
shares of Common Stock on the open market to provide shares necessary to
satisfy the obligation to deliver shares of Common stock pursuant to the
Plan. If the Company at any time after the effective date of the Plan
changes its issued Common Stock into (a) an increased number of shares,
with or without par value, through a stock dividend or a split-up of
shares, or (b) a decreased number of shares, with or without par value,
through a combination of shares, then, effective with the record date for
such change, the maximum number of shares of Common Stock which thereafter
may be purchased under the Plan shall be the maximum number of shares
which, immediately prior to such record date, remained available for
purchase under the Plan proportionately increased, in case of such stock
dividend or split-up, or proportionately decreased, in case of such
combination of shares.
SECTION 13. MISCELLANEOUS.
Except as otherwise expressly provided herein, any Authorization, election,
notice or document under the Plan from an eligible sales associate or
participant shall be delivered to the Participating Company with which such
sales associate or participant is affiliated and, subject to any
limitations specified in the Plan, shall be effective when so delivered.
The term "Business Day" shall mean any day other than Saturday, Sunday or
legal holiday.
The Plan, and the Company's obligation to sell and deliver shares of Common
Stock hereunder, shall be subject to all applicable federal, state and
foreign laws, rules and regulations, and to such approval by any regulatory
or governmental agency as may, in the opinion of counsel for the Company,
be required. All rights granted pursuant to the Plan shall be construed and
shall take effect in accordance with the laws of the State of Delaware.
If the Company is merged into or consolidated with one or more corporations
during the term of the Plan, appropriate adjustments will be made to give
effect thereunto on an equitable basis in terms of issuance of shares of
the corporation surviving the merger or of the consolidated corporation, as
the case may be.
To record the adoption of the Plan by the Board of Directors, effective as
of April 1, 2000, the Company has caused its authorized officer to execute
the same this 31st day of March, 2000.
HomeServices.Com Inc.
By______________________________________
Ronald J. Peltier
President and Chief Executive Officer
Exhibit A
Participating Companies
(as of April 1, 2000)
HomeServices.Com Inc.
Edina Financial Services, Inc.
Iowa Realty Co., Inc.
J. C. Nichols Residential, Inc.
CBS/HOME Real Estate Company
Paul Semonin Company
Roy H. Long Realty Co., Inc.
Champion Realty, Inc.
