<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 2000
REGISTRATION NO. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
INCHORUS.COM
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C> <C>
NEVADA 7372 86-0891610
(State or Other Jurisdiction of (Primary Standard (I.R.S. Employer
Incorporation or Organization) Industrial Classification Identification Number)
Code)
</TABLE>
2401 MISSION COLLEGE BLVD., SUITE 259
SANTA CLARA, CA 95054
(408) 496-6668
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
1999 Stock Option Plan
1999 Holiday Bonus Plan
Settlement Agreement
MR. WILLIAM YUAN
PRESIDENT
INCHORUS.COM
2401 MISSION COLLEGE BLVD., SUITE 259
(408) 496-6668
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Co-Agents for Service)
-----------------------
COPY TO:
JAMES C. CHAPMAN, ESQ.
SILICON VALLEY LAW GROUP
152 NORTH THIRD STREET, SUITE 900
SAN JOSE, CALIFORNIA 95112
(408) 286-6100
1
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If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE FEE
- --------------------------------------------------------------------------------
Common Stock,
$.001 par value 2,450,250 shares $2.187 $5,358,696 $1,414.69
Total 2,450,250 shares $2.187 $5,358,696 $1,414.69
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(h).
--------------------
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I are being
separately provided to the Registrant's employees, officers, directors and
consultants as specified by Rule 428(b)(1) promulgated under the Securities Act
of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this registration
statement:
(a) The Registrant's prospectus dated February 11, 2000, filed with the
Securities and Exchange Commission, pursuant to Rule 424(b) of the
Securities Act of 1933, as amended.
(b) The description of Common Stock contained in the section of the above-
referenced prospectus entitled "Description of Capital Stock".
2
<PAGE>
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered herein have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation provide for indemnification of
the officers and directors of the Registrant to the full extent permitted by
law. The Nevada Private Corporation Law provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party,
by reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to:
- - any action or suit by or in the right of the corporation against expenses,
including amounts paid in settlement and attorneys' fees, actually and
reasonably incurred, in connection with the defense or settlement believed
to be in, or not opposed to, the best interests of the corporation, except
that indemnification may not be made for any claim, issue or matter as to
which such a person has been adjudged by a court of competent jurisdiction
to be liable to the corporation or for amounts paid in settlement to the
corporation; and
- - any other action or suit or proceeding against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement, actually
and reasonably incurred, if he or she acted in good faith and in a manner
which he or she reasonably believed to be in, or not opposed to, reasonable
cause to believe his or her conduct was unlawful.
To the extent that a director, officer, employee or agent has been "successful
on the merits or otherwise" the corporation must indemnify such person. The
articles of incorporation or bylaws may provide that the expenses of officers
and directors incurred in defending any such action must be paid as incurred and
in advance of the final disposition of such action. The Nevada Private
Corporation Law also permits the corporation to purchase and maintain insurance
on behalf of the corporation's directors and officers against any liability
arising out of their status as such, whether or not the corporation would have
the power to indemnify him against such
3
<PAGE>
liability. These provisions may be sufficiently broad to indemnify such persons
for liabilities arising under the Securities Act.
The Registrant intends to enter into indemnification agreements with its
directors and officers. These agreements provide, in general, that the
Registrant will indemnify such directors and officers for, and hold them
harmless from and against, any and all amounts paid in settlement or incurred
by, or assessed against, such directors and officers arising out of or in
connection with the service of such directors and officers as a director or
officer of the Registrant or its affiliates to the fullest extent permitted by
Nevada law.
The Registrant maintains liability insurance for its directors and officers
covering, subject to exceptions, any actual or alleged negligent act, error,
omission, misstatement, misleading statement, neglect or breach of duty by such
directors or officers, individually or collectively, in the discharge of their
duties in their capacity as directors or officers of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as a part of this registration statement:
Exhibit Number Description of Exhibit
- -------------- ----------------------
4.1 1999 Stock Option Plan of the Registrant.
4.2 Form of Stock Option Agreement under the 1999 Stock Option
Plan of the Registrant.
4.3 Board Consent Regarding Holiday Shares
5.1 Opinion of Silicon Valley Law Group.
10.1 Mayers Consulting Agreement
23.1 Consent of Silicon Valley Law Group (included in Exhibit
5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (see page II-5).
4
<PAGE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act Securities Act of 1933, each 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.
(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 (and, where applicable, 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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 6
above, 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.
5
<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 Santa Clara, State of California, on March 14, 2000.
INCHORUS.COM
By: /s/ WILLIAM YUAN
----------------
William Yuan
Chief Executive Officer
POWER OF ATTORNEY
Each director and/or officer of the Registrant whose signature appears
below hereby appoints William Yuan and Ralph G. Coan, Jr., and each of them
severally, as his attorney-in-fact, to sign in his name and behalf, in any and
all capacities stated below, and to file with the Commission any and all
amendments, including post-effective amendments, to this registration statement,
and the Registrant hereby also appoints each such person as its attorney-in-fact
with like authority to sign and file any such amendments in its name and behalf.
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.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ WILLIAM YUAN Chief Executive Officer March 14, 2000
- ------------------------
William Yuan President
Director
/s/ EDMUND T. LEUNG Chief Technical Officer March 14, 2000
- ------------------------
Edmund T. Leung Director
/s/ JOHNSON C. LEE Chairman March 14, 2000
- ------------------------
Johnson C. Lee
/s/ RALPH G. COAN, JR. Chief Financial Officer March 14, 2000
- ------------------------
Ralph G. Coan, Jr. Vice President of Operations
6
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Exhibit
- -------------- ----------------------
4.1 1999 Stock Option Plan of the Registrant.
4.2 Form of Stock Option Agreement under the 1999 Stock Option
Plan of the Registrant.
4.3 Board Consent Regarding Holiday Shares
5.1 Opinion of Silicon Valley Law Group
10.1 Mayers Consulting Agreement
23.1 Consent of Silicon Valley Law Group (included in Exhibit
5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (see page II-5).
7
<PAGE>
EXHIBIT 4.1
SOFTLINK, INC.
1999 STOCK OPTION PLAN
1. PURPOSES OF THE PLAN
--------------------
The purposes of this 1999 Stock Option Plan (the "Plan") of Softlink, Inc.,
a Nevada corporation (the "Company") are to:
(i) Encourage selected officers, directors, key employees and
consultants to improve operations and increase profits of the Company or its
Affiliates;
(ii) Encourage selected officers and key employees to accept or continue
employment with the Company or its Affiliates; and
(iii) Increase the interest of selected officers, directors, key
employees and consultants in the Company's welfare through participation in the
growth in value of the common stock of the Company ("Common Stock").
Options granted under this Plan ("Options") may be "incentive stock
options" ("ISOs") intended to satisfy the requirements of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), or "nonqualified
options" ("NQOs").
2. ELIGIBLE PERSONS
----------------
Every person who at the date of grant of an Option is a key employee of the
Company or of any Affiliate (as defined below) (including employees who are also
officers or directors of the Company or of any Affiliate) is eligible to receive
NQOs or ISOs under this Plan. The term "Affiliate" as used in the Plan means a
parent or subsidiary corporation as defined in the applicable provisions
(currently Sections 424(e) and (f), respectively) of the Code. Every person who
is a director of or consultant to the Company or any Affiliate at the date of
grant of an Option is eligible to receive NQOs under this Plan.
3. STOCK SUBJECT TO THIS PLAN
--------------------------
Subject to the provisions of Section 6.1.1 of the Plan, the maximum
aggregate number of shares of stock which may be granted pursuant to this Plan
is two million four hundred thousand (2,400,000) shares of Common Stock. The
shares unexercised shall become available again for grants under the Plan.
4. ADMINISTRATION
--------------
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4.1 Option Committee. This Plan shall be administered by the Board of
----------------
Directors of the Company (the "Board") or by a committee of at least two Board
members, one of which is the President, (hereinafter referred to as the
"Committee Chairman") to which administration of the Plan is delegated (in
either case, the "Option Committee"). No member of the Option Committee shall
be liable for any decision, action, or omission respecting the Plan, any
options, or any option shares.
4.2 Disinterested Administration. From and after such time as the Company
----------------------------
registers a class of equity securities under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), this Plan shall be
administered in accordance with the disinterested administrative requirements of
Rule 16b-3 promulgated by the Securities and Exchange Commission ("Rule 16b-3"),
or any successor rule thereto.
4.3 Authority of the Option Committee. Subject to the other provisions
---------------------------------
of this Plan, the Options Committee shall have the authority, in its discretion:
(i) to grant Options; (ii) to determine the fair market of the Common Stock
subject to Options; (iii) to determine the exercise price of Options granted;
(iv) to determine the persons to whom, and the time or times at which, Options
shall be granted, and the number of shares subject to each Option; (v) to
interpret this Plan; (vi) to prescribe, amend, and rescind rules and regulations
relating to this Plan; (vii) to determine the terms and provisions of each
Option granted (which need not be identical), including but not limited to, the
time or times at which Options shall be exercisable; (viii) with the consent of
the optionee, to modify or amend any Option; (ix) to defer (with the consent of
the optionee) or accelerate the exercise date or vesting of any Option; (x) to
authorize any person to execute on behalf of the Company any instrument
evidencing the grant of an Option; and (xi) to make all other determinations
deemed necessary or advisable for the administration of this Plan. The Option
Committee may delegate nondiscretionary administrative duties to such employees
of the Company as it deems proper.
4.4 Determinations Final. All questions of interpretation,
--------------------
implementation, and application of this Plan shall be determined by the Board or
the Option Committee. Such determinations shall be final and binding on all
persons.
5. GRANTING OF OPTIONS: OPTION AGREEMENT
-------------------------------------
5.1 Ten-Year Term. No Options shall be granted under this Plan after ten
-------------
years from the date of adoption of this Plan by the Board.
5.2 Option Agreement. Each Option shall be evidenced by a written stock
----------------
option agreement, in form satisfactory to the Company, executed by the Company
and the person to whom such Option is granted; provided, however, that the
failure by the Company, the optionee, or both to execute such an agreement shall
not invalidate the granting of any Option.
5.3 Designation as ISO or NQO. The agreement shall specify whether each
-------------------------
Option it evidences is a NQO or an ISO. Notwithstanding designation of any
Option as an ISO or a NQO, if the aggregate fair market value of the shares
under Options designated as ISOs which would become exercisable for the first
time by any Optionee at a rate in excess of $100,000 in any calendar year (under
all plans of the Company), then unless otherwise provided in the stock option
agreement
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or by the Option Committee, such Options shall be NQOs to the extent of the
excess above $100,000. For purposes of this Section 5.3, Options shall be taken
into account in the order in which they were granted, and the fair market value
of the shares shall be determined as of the time the Option, with respect to
such shares, is granted.
5.4 Grant to Prospective Employees. The Option Committee or the Committee
------------------------------
Chairman may approve the grant of Options under this Plan to persons who are
expected to become employees of the Company, but who are not employees at the
date of approval. In such cases, the Option shall be deemed granted, without
further approval, on the date the optionee is first treated as an employee for
payroll purposes.
6. TERMS AND CONDITIONS OF OPTIONS
-------------------------------
Each Option granted under this Plan shall be designated as a NQO or an ISO.
Each Option shall be subject to the terms and conditions set forth in Section
6.1. NQOs shall be also subject to the terms and conditions set forth in Section
6.2, but not those set forth in Section 6.3. ISOs shall also be subject to the
terms and conditions set forth in Section 6.3, but not those set forth in
Section 6.2.
6.1 Terms and Conditions to Which Options Are Subject. Options granted
-------------------------------------------------
under this Plan shall, as provided in Section 6, be subject to the following
terms and conditions:
6.1.1 Changes in Capital Structure. The existence of outstanding
----------------------------
Options shall not affect the Company's right to effect adjustments,
recapitalizations, reorganizations, or other changes in its or any other
corporation's capital structure or business, any merger or consolidation, any
issuance of bonds, debentures, preferred, or prior preference stock ahead of or
affecting Common Stock, the dissolution or liquidation of the Company's or any
other corporation's assets or business or any other corporate act whether
similar to the events described above or otherwise. Subject to Section 6.1.2, if
the stock of the Company is changed by reason of a stock split, reverse stock
split, stock dividend, recapitalization, or other event, or converted into or
exchanged for other securities as a result of a merger, consolidation,
reorganization, or other event, appropriate adjustments shall be made in (i) the
number and class of shares of stock subject to this Plan and each outstanding
Option; provided, however, that the Company shall not be required to issue
fractional shares as a result to any such adjustments. Each such adjustment
shall be subject to approval by the Option Committee in its sole discretion, and
may be made without regard to any resulting tax consequence to the optionee.
6.1.2 Corporate Transactions. In connection with (i) any merger,
----------------------
consolidation, acquisition, separation, or reorganization in which more than
fifty percent (50%) of the shares of the Company outstanding immediately before
such event are converted into cash or into another security, (ii) any
dissolution or liquidation of the Company or any partial liquidation involving
fifty percent (50%) or more of the assets of the Company, (iii) any sale of more
than fifty percent (50%) of the Company's assets, or (iv) any like occurrence in
which the Company is involved, the Option Committee may, in its absolute
discretion, do one or more of the following upon ten days' prior written notice
to all optionees; (a) accelerate any vesting schedule to which an Option is
subject; (b) cancel Options upon payment to each optionee in cash, with respect
to each Option to the extent
3
<PAGE>
then exercisable, of any amount which, in the absolute discretion of the Option
Committee, is determined to be equivalent to any excess of the market value (at
the effective time of such event) of the consideration that such optionee would
have received if the Option had been exercised before the effective time over
the exercise price of the Option; (c) shorten the period during which such
Options are exercisable (provided they remain exercisable, to the extent
otherwise exercisable, for at least ten days after the date the notice is
given); or (d) arrange that new option rights be substituted for the option
rights granted under this Plan, or that the Company's obligations as to Options
outstanding under this Plan be assumed, by an employer corporation other than
the Company or by a parent or subsidiary of such employer corporation. The
actions described in this Section 6.1.2 may be taken without regard to any
resulting tax consequence to the optionee.
6.1.3 Time of Option Exercise. Except as necessary to satisfy the
-----------------------
requirements of Section 422 of the Code and subject to Section 5, Options
granted under this Plan shall be exercisable at such times as are specified in
the written stock option agreement relating to such Option: provided, however,
that so long as the optionee is a director or officer, as those terms are used
in Section 16 of the Exchange Act, such Option may not be exercisable, in whole
or in part, at any time prior to the six-month anniversary of the date of the
Option grant, unless the Option Committee determines that the foregoing
provision is not necessary to comply with the provisions of Rule 16b-3 or that
Rule 16b-3 is not applicable to the Plan. No Option shall be exercisable,
however, until a written stock option agreement in form satisfactory to the
Company is executed by the Company and the optionee. The Option Committee, in
its absolute discretion, may later waive any limitations respecting the time at
which an Option or any portion of an Option first becomes exercisable.
6.1.4 Option Grant Date. Except as provided in Section 5.4 or as
-----------------
otherwise specified by the Option Committee, the date of grant of an Option
under this Plan shall be the date as of which the Option Committee approves the
grant.
6.1.5 Nonassignability of Option Rights. No Option granted under
---------------------------------
this Plan shall be assignable or otherwise transferable by the optionee except
by will, by the laws of descent and distribution, or pursuant to a qualified
domestic relations order (limited in the case of an ISO, to a qualified domestic
relations order that effects a transfer of an ISO that is community property as
part of a division of community property). During the life of the optionee, an
Option shall be exercisable only by the optionee.
6.1.6 Payment. Except as provided below, payment in full shall be
-------
made for all stock purchased at the time written notice of exercise of an Option
is given to the Company, and proceeds of any payment shall constitute general
funds of the Company. Payment may be made in cash, by promissory note, by
delivery to the Company of shares of Common Stock owned by the optionee (duly
endorsed in favor of the Company or accompanied by a duly endorsed stock power),
or by any other form of consideration and method of payment to the extent
permitted under applicable law. Any shares delivered shall be valued as of the
date of exercise of the Option in the manner set forth in Section 6.1.12.
Optionees may not exercise Options by delivery of shares more frequently than at
six-month intervals.
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<PAGE>
6.1.7 Termination of Employment. Unless determined otherwise by the
-------------------------
Option Committee in its absolute discretion to the extent not already expired or
exercised, every Option granted under this Plan shall terminate at the earlier
of (a) the Expiration Date (as defined in Section 6.1.12) or (b) three months
after termination of employment with the Company or any Affiliate; provided,
that an Option shall be exercisable after the date of termination of employment
only to the extent exercisable on the date of termination; and provided further,
that if termination of employment is due to the optionee's "disability" (as
determined in accordance with Section 22(e)(3) of the Code), the optionee, or
the optionee's personal representative, may at any time within one (1) year
after the termination of employment (or such lesser period as is specified in
the option agreement but in no event after the Expiration Date of the Option),
exercise the option to the extent it was exercisable at the date of termination;
and provided further that if termination of employment is due to the Optionee's
death, the Optionee's estate or a legal representative thereof, may at any time
within and including six (6) months after the date of death of Optionee (or such
lesser period as is specified in the option agreement but in no event after the
Expiration Date of the Option), exercise the option to the extent it was
exercisable at the date of termination. Transfer of an optionee from the Company
to an Affiliate or vice versa, or from one Affiliate to another, or a leave of
absence due to sickness, military service, or other cause duly approved by the
Company, shall not be deemed a termination of employment for purposes of this
Plan. For the purpose of this Section 6.1.7, "employment" means engagement with
the Company or any Affiliate of the Company either as an employee, as a
director, or as a consultant.
6.1.8 Repurchase of Stock. In addition to the right of first refusal
-------------------
set forth in Section 6.1.9, at the time it grants Options under this Plan, the
Company may retain, for itself or others, rights to purchase the shares acquired
under the Option or impose other restrictions on the transfer of such shares.
The terms and conditions of any such rights or other restrictions shall be set
forth in the option agreement evidencing the Option.
6.1.9 Company's Right of First Refusal.
--------------------------------
(i) Company's Right; Notice. Stock delivered pursuant to the
exercise of any option granted under this Plan shall be subject to a right of
first refusal by the Company in the event that the holder of such shares
proposes to sell, pledge, or otherwise transfer such shares or any interest in
such shares to any person or entity. Any holder of shares purchased under this
Plan desiring to transfer such shares or any interest in such shares shall give
a written notice (the "Offer Notice") to the Company describing the proposed
transfer, including the number of shares proposed to be transferred, the
proposed transfer price and terms, and the name and address of the proposed
transferee. The Company's rights under this Section 6.1.9 shall be freely
assignable.
(ii) Exercise. Except as provided under any repurchase right
imposed under Section 6.1.8, if the Company fails to exercise its right of first
refusal within 20 days from the date on which the Company receives the Offer
Notice, the shareholder may, within the next 90 days, conclude a transfer to the
proposed transferee of the exact number of shares covered by that notice on
terms not more favorable to the transferee than those described in the notice.
Any subsequent proposed transfer shall again be subject to the Company's right
of first refusal. If the Company exercises its right of first refusal, the
shareholder shall endorse and deliver to the Company the stock certificates
representing the shares being repurchased. The Company shall pay the shareholder
the
5
<PAGE>
total repurchase price for the shares no later than the later of (a) sixty (60)
days after receipt of the Offer Notice and (b) the end of such period for
payment offered by the bona fide third-party transferor. The holder of the
shares being repurchased shall cease to have any rights with respect to such
shares immediately upon receipt of the repurchase price.
(iii) Exceptions. Notwithstanding the foregoing provisions of
this Section 6.1.9, no notice of a proposed transfer shall be required and no
right of first refusal shall exist with respect to transfers, including sales,
to an optionee's children, grandchildren, or parents or to trusts, estates, or
custodianships of or for the account of an optionee or an optionee's children,
grandchildren, or parents; provided, however, that the transferee shall take
such shares subject to the provisions of Sections 6.1.8. and 6.1.9.
(iv) Termination of Company's Right. The right of first
refusal set forth in this Section 6.1.9 shall terminate upon the earlier of the
consummation of an underwritten public offering of the Company's Common Stock
registered under the Securities Act of 1933 or the date on which the Common
Stock is registered under Section 12 of the Exchange Act.
(v) No Limitation. Nothing in this Section 6.1.9 shall limit
the rights of the Company under any repurchase right imposed under Section
6.1.8.
(vi) Conflict. In the event that the terms of this paragraph
6.1.9 conflict or are inconsistent with any provision in the Bylaws of the
Company, the terms of the Bylaws shall control.
6.1.10 Withholding and Employment Taxes. At the time of exercise of
--------------------------------
an Option (or at such later time(s) as the Company may prescribe), the optionee
shall remit to the Company in cash all applicable (as determined by the Company
in its sole discretion) federal and state withholding taxes. The Option
Committee may, in the exercise of its sole discretion, permit an optionee to pay
some or all of such taxes by means of a promissory note on such terms as the
Option Committee deems appropriate. If authorized by the Option Committee in its
sole discretion, and if the Option has been held for six months or more, an
optionee may elect to have shares of Common Stock which are acquired upon
exercise of the Option withheld by the Company or to tender to the Company other
shares of Common Stock or other securities of the Company owned by the optionee
on the date of determination of the amount of tax to be withheld as a result of
the exercise of such Option (the "Tax Date") to pay the amount of tax that is
required by law to be withheld by the Company as a result of the exercise of
such Option, provided that the election satisfies the following requirements:
(i) the election shall be irrevocable, shall be made at least
six months before the Option exercise, and shall be subject to the disapproval
of the Option Committee at any time before consummation of the Option exercise;
or
(ii) the election shall be made in advance to take effect in a
subsequent "window period" (as defined below) in which the Option is exercised,
and the Option Committee shall approve the election when it is made or at any
time thereafter up to consummation of the Option exercise; or
6
<PAGE>
(iii) the election shall be made in a window period and the
approval of the Option Committee shall be given after the election is made and
within the same window period, and the Option exercise shall be consummated
within such window period; or
(iv) shares or other previously owned securities shall be
tendered (but stock shall not be withheld) at any time up to the consummation of
the Option exercise (in which event, neither a prior irrevocable election nor
window period timing shall be required).
Notwithstanding the foregoing, clauses (ii) and (iii) shall not be
available until the Company has been subject to the reporting requirements of
the Securities Exchange Act of 1934 for at least one year.
A "window period" is the period beginning on the third business day
following the date of release for publication of quarterly or annual summary
statements of sales and earnings and ending on the 12th business day following
such date. Any securities so withheld or tendered shall be valued by the
Company as of the Tax Date.
6.1.11 Other Provisions. Each Option granted under this Plan may
----------------
contain such other terms, provisions, and conditions not consistent with this
Plan as may be determined by the Option Committee, and each ISO granted under
this Plan shall include such provisions and conditions as are necessary to
qualify the Option as an "incentive stock option" within the meaning of Section
422 of the Code.
6.1.12 Determination of Value. For purposes of the Plan, the value
----------------------
of Common Stock or other securities of the Company shall be determined as
follows:
(i) If the stock of the Company is listed on any established
stock exchange or a national market system, including without limitation the
National Market System of the National Association of Securities Dealers
Automated Quotation System, its fair market value shall be the closing sales
price for such stock or the closing bid if no sale was reported, as quoted on
such system or exchange (or the largest such exchange) for the date the value is
to be determined (or if there is no sale for such date, then for the last
preceding business day on which there was at least one sale), as reported in the
Wall Street Journal.
- -------------------
(ii) If the stock of the Company is regularly quoted by a
recognized securities dealer but selling prices are not reported, its fair
market value shall be the mean between the high bid and low asked prices for the
stock on the date the value is to be determined (or if there is no quoted price
for the date of grant, then for the last preceding business day on which there
was a quoted price).
(iii) If the stock of the Company is as described in Section
6.1.12(i) or (ii), but is restricted by law, contract, market conditions, or
otherwise as to salability or transferability, its fair market value shall be as
set forth in Section 6.1.12(i) or (ii), as appropriate, less, as determined by
the Option Committee, an appropriate discount, based on the nature and terms of
the restrictions.
7
<PAGE>
(iv) In the absence of an established market for the stock,
the fair market value thereof shall be determined by the Option Committee, with
reference to the Company's net worth, prospective earning power, dividend-paying
capacity, and other relevant factors, including the goodwill of the Company, the
economic outlook in the Company's industry, the Company's position in the
industry and its management, and the values of stock of other corporations in
the same or a similar line of business.
6.1.13 Option Term. No Option shall be exercisable more than ten
-----------
years after the date of grant, or such lesser period of time as set forth in the
option agreement (the end of the maximum exercise period stated in the option
agreement is referred to in this Plan as the "Expiration Date"). No ISO granted
to any person who owns, directly or by attribution, stock possessing more than
ten percent of the total combined voting power of all classes of stock of the
Company of any Affiliate ( a "Ten Percent Stockholder") shall be exercisable
more than five years after the date of grant.
6.1.14 Exercise Price. The exercise price of any Option granted to
--------------
any Ten Percent Stockholder shall in no event be less than 110 percent of the
fair market value (determined in accordance with Section 6.1.12) of the stock
covered by the Option at the time the Option is granted.
6.1.15 Compliance with Securities Laws. The Company shall not be
-------------------------------
obligated to offer or sell any shares upon exercise of an Option unless the
shares are at that time effectively registered or exempt from registration under
the federal securities laws and the offer and sale of the shares are otherwise
in compliance with all applicable state and local securities laws. The Company
shall have no obligation to register the shares under the federal securities
laws or take whatever other steps may be necessary to enable the shares to be
offered and sold under federal or other securities laws. Upon exercising all or
any portion of an Option, an optionee may be required to furnish representations
or undertakings deemed appropriate by the Company to enable the offer and sale
of the Option shares or subsequent transfers of any interest in the shares to
comply with applicable securities laws. Stock certificates evidencing shares
acquired upon exercise of options shall bear any legend required by, or useful
for purposes of compliance with, applicable securities laws, this Plan, or the
option agreement evidencing the Option.
6.2 Terms and Conditions to Which Only NQOs Are Subject. Options
---------------------------------------------------
granted under this Plan which are designated as NQOs shall be subject to the
following additional terms and conditions:
6.2.1 Exercise Price. Except as set forth in Section 6.1.14,
--------------
the exercise price of a NQO shall not be less than 85 percent of the fair market
value (determined in accordance with Section 6.1.12) of the stock subject to the
Option on the date of grant.
6.3 Terms and Conditions to Which Only ISOs Are Subject. Options
---------------------------------------------------
granted under this Plan which are designated as ISOs shall be subject to the
following additional terms and conditions:
8
<PAGE>
6.3.1 Exercise Price. Except as set forth in Section 6.1.14,
--------------
the exercise price of an ISO shall be determined in accordance with the
applicable provisions of the Code and shall in no event be less than the fair
market value (determined in accordance with Section 6.1.12) of the stock covered
by the Option at the time the Option is granted.
6.3.2 Disqualifying Dispositions. If stock acquired upon
--------------------------
exercise of an ISO is disposed of in a "disqualifying disposition" within the
meaning of Section 422 of the Code, the holder of the stock immediately before
the disposition shall notify the Company in writing of the date and terms of the
disposition and comply with any other requirements imposed by the Company in
order to enable the Company to secure any related income tax deduction to which
it is entitled.
7. MANNER OF EXERCISE
------------------
7.1 Notice of Exercise. An optionee wishing to exercise an Option
------------------
shall give written notice to the Company at its principal executive office, to
the attention of the officer of the Company designated by the Option Committee,
accompanied by payment of the exercise price as provided in Section 6.1.6. The
date the Company receives written notice of an exercise hereunder accompanied by
payment of the exercise price and, if required, by payment of any federal or
state withholding or employment taxes required to be withheld by virtue of
exercise of the Option will be considered as the date such Option was exercised.
7.2 Issuance of Certificates. Promptly after receipt of written
------------------------
notice of exercise of an Option, the Company shall, without stock issue or
transfer taxes to the optionee or other person entitled to exercise the Option,
deliver to the optionee or such other person a certificate or certificates for
the requisite number of shares of stock. Unless the Company specifies
otherwise, an optionee or transferee of an optionee shall not have any
privileges as a shareholder with respect to any stock covered by the Option
until the date of issuance of a stock certificate. Subject to Section 6.1.1
hereof, no adjustment shall be made for dividends or other rights for which the
record date is prior to the date the certificates are delivered.
8. EMPLOYMENT RELATIONSHIP
-----------------------
Nothing in this Plan or any Option granted hereunder shall interfere with
or limit in any way the right of the Company or of any of its Affiliates to
terminate any optionee's employment at any time, nor confer upon any optionee
any right to continue in the employ of the Company or any of its Affiliates.
9. AMENDMENTS TO PLAN
------------------
The Board may amend this Plan at any time. Without the consent of an
optionee, no amendment may affect outstanding Options except to conform this
Plan and ISOs granted under this Plan to federal or other tax laws relating to
incentive stock options. No amendment shall require shareholder approval unless
shareholder approval is required to preserve incentive stock option treatment
for tax purposes or the Board otherwise concludes that shareholder approval is
advisable.
10. SHAREHOLDER APPROVAL; TERM
--------------------------
9
<PAGE>
The Board of Directors of the Company adopted this Plan as of September 3,
1999 and the Company's shareholders approved this Plan as of _________________.
This Plan shall terminate ten years after initial adoption by the Board unless
terminated earlier by the Board. The Board may terminate this Plan without
shareholder approval. No Options shall be granted after termination of this
Plan, but termination shall not affect rights and obligations under then-
outstanding Options.
10
<PAGE>
EXHBIT 4.2
SOFTLINK, INC.
STOCK OPTION AGREEMENT
[FORM]
This Softlink, Inc. Stock Option Agreement (the "Agreement"), by and
between Softlink, Inc., a Nevada corporation (the "Company"), and ____________
("Optionee"), is made effective as of this _____ day of __________, 1999 .
RECITALS
1. Pursuant to the Softlink, Inc. 1999 Stock Option Plan (the "Plan"),
the Board of Directors of the Company (the "Board") has authorized the grant of
an option to purchase common stock of the Company ("Common Stock") to Optionee,
effective on the date indicated above, thereby allowing Optionee to acquire a
proprietary interest in the Company in order that Optionee will have further
incentive for continuing his or her employment by, and increasing his or her
efforts on behalf of, the Company or an Affiliate of the Company.
2. The Company desires to issue a stock option to Optionee and Optionee
desires to accept such stock option on the terms and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Option Grant. The Company hereby grants to the Optionee, as a
------------
separate incentive and not in lieu of any fees or other compensation for his or
her services, an option to purchase, on the terms and conditions hereinafter set
forth, all or any part of an aggregate of _________________ (___________) shares
of authorized but unissued shares of Common Stock, at the Purchase Price set
forth in paragraph 2 of this Agreement.
2. Purchase Price. The Purchase Price per share (the "Option Price")
--------------
shall be $_________, which is not less than eighty five percent (85%) [or one
hundred ten percent (110%)] of the fair market value per share of Common Stock
on the date hereof. The Option Price shall be payable in the manner provided in
paragraph 9 below.
3. Adjustment. The number and class of shares specified in paragraph 1
----------
above, and the Option Price, are subject to appropriate adjustment in the event
of certain changes in the capital structure of the Company such as stock splits,
recapitalizations and other events which alter the per share value of Common
Stock or the rights of holders thereof. In connection with (i) any merger,
consolidation, acquisition, separation, or reorganization in which more than
fifty percent (50%) of
1
<PAGE>
the shares of the Company outstanding immediately before such event are
converted into cash or into another security, (ii) any dissolution or
liquidation of the Company or any partial liquidation involving fifty percent
(50%) or more of the assets of the Company, (iii) any sale of more than fifty
percent (50%) of the Company's assets, or (iv) any like occurrence in which the
Company is involved, the Company may, in its absolute discretion, do one or more
of the following upon ten days' prior written notice to the Optionee: (a)
accelerate any vesting schedule to which this option is subject; (b) cancel this
option upon payment to the Optionee in cash, to the extent this option is then
exercisable, of any amount which, in the absolute discretion of the Company, is
determined to be equivalent to any excess of the market value (at the effective
time of such event) of the consideration that the Optionee would have received
if this option had been exercised before the effective time over the Option
Price; (c) shorten the period during which this option is exercisable (provided
that this option shall remain exercisable, to the extent otherwise exercisable,
for at least ten days after the date the notice is given); or (d) arrange that
new option rights be substituted for the option rights granted under this
option, or that the Company's obligations under this option be assumed, by an
employer corporation other than the Company or by a parent or subsidiary of such
employer corporation. The actions described in this paragraph 3 may be taken
without regard to any resulting tax consequence to the Optionee.
[OPTIONAL FOUR YEAR VESTING]
4. Option Exercise. Commencing on the date one (1) year after the date
---------------
of this Agreement the right to exercise this option will accrue as to one-fourth
( 1/4) of the number of shares subject to this option. Thereafter, the right to
exercise the remainder of this option will accrue in twelve (12) equal quarterly
installments. Shares entitled to be, but not, purchased as of any accrual date
may be purchased at any subsequent time, subject to paragraphs 5 and 6 below.
The number of shares which may be purchased as of any such anniversary date will
be rounded up to the nearest whole number. No partial exercise of the option may
be for an aggregate exercise price of less than One Hundred Dollars ($100). In
order to exercise any part of this option, Optionee must agree to be bound by
the Company's Shareholder Buy-Sell Agreement, if any, existing at the time of
the exercise of this Option. Notwithstanding anything to the contrary in this
Agreement or the Plan, the right to exercise all of the shares subject to this
Option will immediately vest upon a "change in control" of the Company. For
purposes of this Agreement, "change in control" means (i) any change of equity
such that more than fifty percent (50%) of the issued and outstanding shares of
the Company are transferred to a third party; (ii) or debt ownership, including
but not limited to conversion rights of debt to equity of the Employer such that
more than fifty percent (50%) of the issued and outstanding shares are
transferred to a third party; or (iii) a sale of substantially all of Employer's
assets.
[OPTIONAL IMMEDIATE VESTING]
4. Option Exercise. Commencing on the date of this Agreement, the right
---------------
to exercise this option will accrue as to all of the shares subject to this
option. Shares entitled to be, but not, purchased as of the accrual date may be
purchased at any subsequent time, subject to paragraphs 5 and 6 below. No
partial exercise of the option may be for an aggregate exercise price of less
than One Hundred Dollars ($100). In order to exercise any part of this option,
Optionee must agree to be bound by the Company's Shareholder Buy-Sell Agreement,
if any, existing at the time of the exercise of this Option.
2
<PAGE>
5. Termination of Option. The right to exercise this option will lapse
---------------------
in four (4) equal installments of the number of shares subject to this option on
each of the sixth, seventh, eighth, and ninth anniversaries of the effective
date of this Agreement. Notwithstanding any other provision of this Agreement,
this option may not be exercised after, and will completely expire on, the close
of business on the date ten (10) years after the effective date of this
Agreement, unless terminated sooner pursuant to paragraph 6 below.
6. Termination of Employment. In the event of termination of Optionee's
-------------------------
employment with the Company for any reason, this option will terminate three (3)
months after the date of the termination of Optionee's employment, unless
terminated earlier pursuant to paragraph 5 above. However, (i) if termination
is due to the death of Optionee, the Optionee's estate or a legal representative
thereof, may at any time within and including six (6) months after the date of
death of Optionee, exercise the option to the extent it was exercisable at the
date of termination; or (ii) if termination is due to Optionee's "disability"
(as determined in accordance with Section 22(e)(3) of the Internal Revenue
Code), Optionee may, at any time, within one (1) year following the date of this
Agreement, exercise the option to the extent it was exercisable at the date of
termination. If the Optionee or his or her legal representative fails to
exercise the option within the time periods specified in this paragraph 6, the
option shall expire. The Optionee or his or her legal representative may, on or
before the close of business on the earlier of the date for exercise set forth
in paragraph 5 or the dates specified in paragraph 4 above, exercise the option
only to the extent Optionee could have exercised the option on the date of such
termination of employment pursuant to paragraphs 4 and 5 above.
7. Repurchase Option of Company. Pursuant to Section 6.1.8 of the Plan,
----------------------------
in the event of termination of Optionee's employment with the Company for any
reason, the Company shall have an option to repurchase ("Repurchase Option") any
Common Stock owned by the Optionee or his or her heirs, legal representatives,
successors or assigns at the time of termination, or acquired thereafter by any
of them at any time, by way of an option granted hereunder. The Repurchase
Option must be exercised, if at all, by the Company within ninety (90) days
after the date of termination upon notice ("Repurchase Notice") to the Optionee
or his or her heirs, legal representatives, successors or assigns, in
conformance with paragraph 13 below. The purchase price to be paid for the
shares subject to the Repurchase Option shall be One Hundred Fifteen Percent
(115%) of their book value. For the purposes of this paragraph, the Company's
book value shall be determined in accordance with generally accepted accounting
principles applied on a basis consistent with those previously applied by the
Company. The book value shall be fixed under this paragraph by the accountants
of the Company and shall be computed as of the last day of the Company's fiscal
quarter most recently preceding the Repurchase Notice. Any shares issued
pursuant to an exercise of an option hereunder shall contain the following
legend condition in addition to any other applicable legend condition:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO REPURCHASE
PROVISIONS IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY
AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF
THE COMPANY.
3
<PAGE>
8. Transferability. This option will be exercisable during Optionee's
---------------
lifetime only by Optionee. Except as otherwise set forth in the Plan, this
option will be non-transferable.
9. Method of Exercise. Subject to paragraph 10 below, this option may be
------------------
exercised by the person then entitled to do so as to any shares which may then
be purchased by delivering to the Company an exercise notice in the form
attached hereto as Exhibit A and:
---------
(a) full payment of the Option Price thereof (and the amount of any
tax the Company is required by law to withhold by reason of such exercise) in
the form of:
(i) cash or readily available funds; or
(ii) delivery of Optionee's promisory note (the "Note")
substantially in the form attached hereto as Exhibit B in the amount of the
---------
aggregate Option Price of the exercised shares together with the execution and
delivery by the Optionee of the Security Agreement attached hereto as Exhibit C;
---------
or
(iii) a written request to Net Exercise, as defined in this
paragraph 9(a)(iii). In lieu of exercising this Option via cash payment or
promissory note, Optionee may elect to receive shares equal to the value of this
Warrant (or portion thereof being canceled) by surrender of this Option at the
principal office of the Company together with notice of election to exercise by
means of a Net Exercise in which event the Company shall issue to Optionee a
number of shares of the Company computed using the following formula:
X = Y (A-B)
-------
A
where X is the number of shares of stock to be issued to Optionee; Y is the
number of shares purchasable under this Option; A is the fair market value of
the stock determined in accordance with Section 6.1.12 of the Plan; and B is
the Option Price as adjusted to the date of such calculation.
(b) payment of any withholding or employment taxes, if any;
(c) an executed Shareholders Buy-Sell Agreement, if any, binding the
Company's shareholders and restricting the transfer of their shares, executed
appropriately by the Optionee and his or her spouse, if any.
The Company will issue a certificate representing the shares so purchased within
a reasonable time after its receipt of such notice of exercise, payment of the
Option Price and withholding or employment taxes, and execution of any existing
Shareholders Buy-Sell Agreement, with appropriate certificate legends.
10. Securities Laws. The issuance of shares of Common Stock upon the
---------------
exercise of the option will be subject to compliance by the Company and the
person exercising the option with all applicable requirements of federal and
state securities and other laws relating thereto. No person may exercise the
option at any time when, in the opinion of counsel to the Company, such exercise
is permitted under applicable federal or state securities laws. Nothing herein
will be construed to
4
<PAGE>
require the Company to register or qualify any securities under applicable
federal or state securities laws, or take any action to secure an exemption from
such registration and qualification for the issuance of any securities upon the
exercise of this option.
11. No Rights as Shareholder. Neither Optionee nor any person claiming
------------------------
under or through Optionee will be, or have any of the rights or privileges of, a
shareholder of the Company in respect of any of the shares issuable upon the
exercise of the option, unless and until this option is properly and lawfully
exercised.
12. No Right to Continued Employment. Nothing in this Agreement will be
--------------------------------
construed as granting Optionee any right to continued employment. EXCEPT AS THE
COMPANY AND OPTIONEE WILL HAVE OTHERWISE AGREED IN WRITING, OPTIONEE'S
EMPLOYMENT WILL BE TERMINABLE BY THE COMPANY, AT WILL, WITH OR WITHOUT CAUSE FOR
ANY REASON OR NO REASON. Except as otherwise provided in the Plan, the Board in
its sole discretion will determine whether any leave of absence or interruption
in service (including an interruption during military service) will be deemed a
termination of employment for the purpose of this Agreement.
13. Notices. Any notice to be given to the Company under the terms of
-------
this Agreement will be addressed to the Company, in care of its Secretary, at
its executive offices, or at such other address as the Company may hereafter
designate in writing. Any notice to be given to Optionee will be in writing and
delivered or mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed to Optionee at the address set forth beneath
Optionee's signature in writing. Any such notice will be deemed to have been
duly given where deposited in a United States post office in compliance with the
foregoing.
14. Non-Transferrable. Except as otherwise provided in the Plan or in
-----------------
this Agreement, the option herein granted and the rights and privileges
conferred hereby will not be transferred, assigned, pledged or hypothecated in
any way (whether by operation of law or otherwise). Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this option, or of
any right or upon any attempted sale under any execution, attachment or similar
process upon the rights and privileges conferred hereby, this option will
immediately become null and void.
15. Successor. Subject to the limitation on the transferability of the
---------
option contained herein, this Agreement will be binding upon and inure to the
benefit of the heirs, legal representatives, successors and assigns of the
parties hereto.
16. California Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of California.
17. Type of Option. The option granted in this Agreement:
--------------
[_] Is intended to be an Incentive Stock Option ("ISO") within the meaning
of Section 422 of the Internal Revenue Code of 1986, as amended.
[_] Is a non-qualified Option and is not intended to be an ISO.
5
<PAGE>
18. Plan Provisions Incorporated by Reference. A copy of the Plan is
-----------------------------------------
attached hereto as Exhibit "A" and incorporated herein by this reference. In the
case of conflict between any provision in this Agreement and any provision in
the Plan or a Shareholder Buy-Sell Agreement, if any, the terms of this
Agreement shall prevail. In the case of conflict between any provision in the
Plan and a provision in a Shareholders Buy-Sell Agreement, if any, the terms of
the Plan shall prevail.
19. Term. Capitalized terms used herein, except as otherwise indicated,
----
shall have the same meaning as those terms have under the Plan.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year written below.
COMPANY: SOFTLINK, INC.
By:
Its:______________________________
OPTIONEE:
(Optionee)
Address:
6
<PAGE>
EXHIBIT 4.3
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
SOFTLINK, INC.
A NEVADA CORPORATION
Effective as of December 8, 1999
The undersigned, constituting the Board of Directors of Softlink.com a
Nevada corporation (the "Corporation"), acting pursuant to the authority vested
in them by the Nevada Revised Statutes, hereby consent to and adopt the
following resolutions:
1999 HOLIDAY BONUS PLAN
-----------------------
WHEREAS, it is in the best interests of the Corporation to reward employees
of the Corporation for their performance and to provide additional incentive to
employees by providing increased interest in the Corporation's welfare through
participation in the growth in value of the Corporation's common stock by
implementing a 1999 holiday bonus plan.
RESOLVED, that the issuance of an aggregate amount of 20,250 shares of
common stock of the Corporation to employees of the Corporation is hereby
authorized and approved.
RESOLVED FURTHER, that the officers of the Corporation are hereby
authorized and directed, in the name and on behalf of the Corporation, to take
such actions and execute such documents they deem necessary or appropriate for
compliance with the Securities Exchange Act of 1933 and the Securities Exchange
Act of 1934, as amended.
1
<PAGE>
IN WITNESS WHEREOF, the undersigned directors of the Corporation have
executed this consent as of the date first written above.
/s/ WILLIAM YUAN
-------------------------------
William Yuan, Director
/s/ EDMUND T. LEUNG
-------------------------------
Edmund T. Leung, Director
/s/ JOHNSON C. LEE
-------------------------------
Johnson C. Lee, Director
2
<PAGE>
EXHIBIT 5.1
[LETTERHEAD]
March 14, 2000
Inchorus.com
2401 Mission College Blvd., Suite 259
Santa Clara, California 95054
Re: Inchorus.com
Registration Statement on Form S-8
2,450,250 shares of Common Stock issuable upon
exercise of options granted under 1999 Stock Option Plan
1999; Stock Holiday Bonus Plan and a Settlement Agreement
---------------------------------------------------------
Gentlepersons:
We are counsel to Inchorus.com, a Nevada corporation (the "Company"). We
have assisted the Company in its preparation of a Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), registering 2,450,250 shares of common stock, $.001 par
value, of the Company (the "Common Stock") issuable upon exercise of options
granted and to be granted under the Company's 1999 Stock Option Plan (the
"Plan"), 1999 Holiday Bonus Plan (the "Bonus") and a Settlement Agreement (the
"Agreement").
In rendering this opinion, we have considered such questions of law and
examined such statutes and regulations, corporate records, certificates and
other documents and have made such other examinations, searches and
investigations as we have considered necessary. In such examinations we have
assumed the genuineness of all signatures and the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
documents submitted to us as certified or as photocopies or telecopies. We have
not made an independent examination of the laws of any jurisdiction other than
California and the federal laws of the United States, and we do not express or
imply any opinions in respect to the laws of any other jurisdiction. The
opinions expressed herein are based on legislation and regulations in effect on
the date hereof.
Based on and subject to the foregoing, we are of the opinion that the
Common Stock, when issued pursuant to the exercise of options under the Plan,
the Bonus and the Agreement and the purchase price therefor has been paid, will
be duly and validly issued, fully paid and nonassessable shares of Common Stock.
<PAGE>
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. This consent is not to be construed as an admission
that we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Securities Act.
Very truly yours,
/s/ SILICON VALLEY LAW GROUP
SILICON VALLEY LAW GROUP
<PAGE>
EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, (this "Consulting Agreement")
made this 13/th/ day of May, 1998 by and between:
Securities Advisory Group, Inc.
("SAGI")
and
Softlink, Inc.
("SFNK" or the "Company")
herein after referred as the parties.
WITNESSETH:
WHEREAS, SAGI is in the business of providing corporate relations services,
public relations services, publishing, advertising services, fulfillment
services, marketing of business formats and opportunities and other related
programs, services and products; and
WHEREAS, the Company, is publicly-held company with its common stock
quoted on the over-the-counter stock market; and
WHEREAS, SFNK requires, among other things, corporate and public relations
services and desires to employ SAGI to provide such services to the Company.
THEREFORE, in consideration of the mutual covenants contained herein, it
is agreed as follows:
1. Captions and Section Number
The headings and section references in this Consulting Agreement are
for convenience or reference only and are not intended to interpret,
define or limit the scope, extent or intent of this Consulting
Agreement or any provisions thereof.
2. Appointment
SFNK hereby appoints and retains SAGI to act as its corporate
relations representative upon the terms and conditions of this
Consulting Agreement. SAGI accepts such
<PAGE>
appointment and agrees to perform services on behalf of the Company as
more specifically described in paragraph 3 of this Consulting
Agreement.
3. Authority and Description of Services
During the term of this Consulting Agreement SAGI shall furnish
services and advice as specifically requested by Company which shall
include:
a. Acting as liaison between Company and its shareholders, and as an
advisor to Company with respect to relations with broker-dealers,
underwriters, investors and the Public.
b. Assisting in procuring and advising the Company with respect to
interviews of Company officers of the Company by the financial
media, analysts, broker-dealers, and other members of the
financial community.
c. Promoting the Company, its management, its products and services
and its financial situation and prospects, to the financial
media, financial publications, broker-dealers, mutual funds,
institutional investors, analysts, investment advisors, and other
members of the financial community as well as the public
generally.
d. Assisting in the preparation of a Marketing Program for the
Company which will include reviews and analyzes of the Company's
goals and recommendations with respect to achieving said goals,
public relations plans, including introductions to firms and
brokers interest in working with the Company and to disseminating
information about the Company and investor relations.
4. Terms of Agreement
This Consulting Agreement shall become effective as of the date hereof
and shall continue up to and including the 5/th/ day of May 1999,
unless otherwise extended by mutual written consent of the parties or
terminated in accordance with paragraph 16.
5. Where Services Shall Be Performed
All services shall be performed at the main offices location of SAGI,
44 Montgomery Street, San Francisco, CA, 94104 or other such
designated location(s) as SAGI and Company agree are the most
advantageous for the work to be performed.
6. Limitations On Services
SAGI agrees as follows:
a. SAGI shall not release any financial or other information or data
about Company not previously disclosed to the public without the
prior consent of the Company.
<PAGE>
b. SAGI shall not conduct any meetings with financial analysts
without the prior consent of the Company and Company may elect to
have a representative of Company attend any such meeting.
7. Duties Of Company
a. The Company shall supply SAGI on a regular and timely basis with
all approved data and information about Company, its management,
its products, and its operations and Company shall be responsible
for advising SAGI of any facts which would affect the accuracy of
any data and information previously supplied to SAGI.
b. The Company shall promptly supply SAGI with full and complete
copies of all filings made by the Company with all federal and
state securities agencies; all shareholders reports and
communications, whether or not prepared with the assistance of
SAGI, data and information supplied to any analyst, broker-
dealer, market maker, or other member of the financial community:
and all product/services brochures, sales materials, etc.
published or utilized by the Company.
c. The Company will notify SAGI, with 60 days prior notice, if it
intends to make any private or public offerings of securities.
Securities offered will not be offered at a price substantially
below the average price of traded securities in the four weeks of
trading that proceed the offering.
d. The Company will not use SAGI reports in connection with any
private or public offering of securities by the Company without
the prior written consent of SAGI.
e. In that SAGI relies on information provided by the Company for
the substantial part of its presentation and reports, Company
must represent that the said information provided to SAGI in
connection with services rendered hereunder is neither false nor
misleading, and agrees to hold harmless and indemnify SAGI for
any claims arising out of or in connection with SAGI's reliance
upon such information, including reasonable attorney's fees.
8. Representations and Indemnification's
a. The Company represents that any and all facts, materials, information,
and data supplied to SAGI in connection with services rendered
hereunder shall be accurate when given to SAGI and the Company
acknowledges that SAGI will rely on such information as being accurate
when performing its investor relations functions.
b. The execution and performance of this Consulting Agreement by the
Company and SAGI has been duly authorized by each of them in
accordance with applicable law.
c. The performance by the Company and SAGI of this Consulting Agreement
will not violate any applicable court decree or order, law or
regulation.
<PAGE>
9. Compensation
The Company shall grant to SAGI an option to purchase 30,000 shares of
common stock of the Company at an exercise price of $0.61 a share as
compensation for services rendered hereunder by SAGI. The number of shares
shall be adjusted proportionately in the event of share splits, share
reverses, reorganizations, recapitalization, merger of the Company or
acquisition of the Company, etc.. SAGI shall bear all other costs and
expenses incurred by SAGI in connection with providing services to the
Company.
10. As An Independent Contractor
The parties hereto acknowledge and agree that SAGI is providing services to
the Company as an independent contractor and shall not be deemed an
employee of Company. SAGI has no authority to bind the Company to any
contract, agreement, or other similar arrangement. SAGI shall be solely
responsible for any Federal, State, and local taxes, and should the Company
for any reason be required to pay taxes attributed to SAGI at a latter
date, SAGI shall reimburse the Company for any tax liability incurred by
the Company on SAGI's behalf.
11. Confidential information
SAGI shall treat as proprietary all information belonging to the Company
disclosed to SAGI in the course of the performance of SAGI's services
unless the Company expressly authorizing dissemination of such information
by SAGI or such information has already been disclosed to the Public prior
thereto.
12. Inside Information - Securities Violations
SAGI shall not divulge sensitive information to third parties concerning
operations of the Company which would be considered "insider information"
under Federal Securities Law or which would constitute a violations of any
applicable federal and state securities law.
13. Disclosures
SAGI shall disclose any outside interest or activities of SAGI which may
conflict with the best interests of the Company or which would impair
SAGI's ability to perform services under this Consulting Agreement.
14. Amendments
This agreement may be modified or amended, only in writing and signed by
both parties.
15. Severability
If any provision of this agreement shall be held to be contrary to law,
invalid or unenforceable for any reason, the remaining provisions shall
remain to be valid and enforceable.
16. Termination of Agreement
This Consulting Agreement may be terminated as follows:
<PAGE>
a. Upon the bankruptcy or the liquidation of a party, whether voluntary
or involuntary.
b. Upon the appointment of a receiver for either party.
c. Upon the occurrence of a material breach of the terms of this
Consulting Agreement.
17. Waiver of Breach
Waiver by either party of any provision of this agreement by the other
party shall not operate or be construed as a waiver of any subsequent
breach by the other party.
18. Notices
All notices thereunder shall be in writing and addressed to each party at
the address herein set forth, or at such other address which notice
pursuant to this section may be given in writing, and shall be given by
either personal delivery, certified mail, express mail, or other national
overnight courier services. Notices shall be deemed given upon the earlier
of receipt by a courier services or three (3) business days after being
mailed.
Securities Advisory Group, Inc.
44 Montgomery Street, Suite 3055
San Francisco, CA 94104
Telephone (415) 989-9600
Facsimile (415) 989-9610
Softlink, Inc.
1621 West El Carnino Real
Suite #22
Mountain View, CA 94040-2452
Phone: 650-965-1506
Telephone: 650-965-2506
19. Successors and Assignment
This Consulting Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns. This
Consulting Agreement shall not be assigned without prior written consent of
the parties.
20. Entire Agreement
This Consulting Agreement contains the entire agreement of the parties and
supersedes all previous agreements between SAGI and Company.
21. Applicable Law
This Consulting Agreement is executed pursuant to and shall be interpreted
and governed for all purposes by the laws of the State of California. If
any provision of this Consulting Agreement is declared void, such provision
shall be deemed severed from this agreement, which shall otherwise remain
in full force effect.
<PAGE>
22. Execution in Counterpart
This Consulting Agreement may be executed in counterpart, not withstanding
the date or dates this Consultant Agreement is executed and delivered by
any of the parties, and shall be deemed to be an original and all of which
will constitute one and the same agreement, effective as of the reference
date first written above.
IN WITNESS WHEREOF the parties hereto have set their hands in the execution
of this agreement this 13/th/ day of May 1998.
Securities Advisory Group, Inc. Softlink, Inc.
/s/ M. Scott Mayer /s/ Johnson C. Lee
--------------------------------- ----------------------------
M. Scott Mayer, President Johnson C. Lee, President
<PAGE>
EXHIBIT 23.2
CONSENT OF BDO SEIDMAN
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated July 15, 1999, relating to the
consolidated financial statements of InChorus.com (formerly Softlink, Inc.),
which is contained in the Prospectus on Form SB-2. Our report contains an
explanatory paragraph regarding Softlink's ability to continue as a going
concern.
/s/ BDO SEIDMAN
BDO SEIDMAN, LLP
San Jose, California
March 9, 2000
