<PAGE>
As filed with the Securities and Exchange Commission on May 10, 2000.
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
______________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
______________________________
XCEED INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3006788
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
488 Madison Avenue
3rd Floor
New York, New York 10022
(212) 419-1200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Xceed Inc. Millennium Stock Option Plan
(Full Title of Plan)
______________________________
Werner G. Haase, President and Chief Executive Officer
488 Madison Avenue
3rd Floor
New York, New York 10022
(212) 419-1200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
______________________________
Copies to:
Victoria A. Baylin, Esq.
Akin, Gump, Strauss, Hauer & Feld, LLP
1333 New Hampshire Avenue, NW
Suite 400
Washington, DC 20036
(202) 887-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Amount to Aggregate Price Per Aggregate Offering Registration
Title of Securities to be Registered be Registered (1) Share Price Fee
=============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 212,014 shares $ 0.310(2) $ 65,724.34 $ 17.35
17,010 shares $ 0.617(2) $ 10,495.17 $ 2.77
11,340 shares $ 0.926(2) $ 10,500.84 $ 2.77
38,880 shares $ 3.086(2) $ 119,983.68 $ 31.68
330,300 shares $ 40.25(2) $13,294,575.00 $3,509.77
132,500 shares $ 37.31(2) $ 4,943,575.00 $1,305.10
729,383 shares $ 7.50(2) $ 5,470,372.50 $1,444.18
1,528,573 shares $13.71875(3) $20,970,110.00 $5,536.11
---------------- -------------- ---------
3,000,000 shares $44,885,336.00 $11,849.73
==============================================================================================================================
</TABLE>
(1) This registration statement covers shares of common stock of Xceed Inc.
that may be offered or sold pursuant to the Xceed Inc. Millennium Stock
Option Plan described herein. This registration statement also relates to
an indeterminate number of shares of common stock that may be issued upon
stock splits, stock dividends or similar transactions in accordance with
Rule 416 under the Securities Act of 1933, as amended.
(2) Calculated pursuant to Rule 457(h) for the purpose of calculating the
registration fee, based upon the price at which the outstanding options may
be exercised.
(3) Calculated pursuant to Rules 457(c) and (h), based upon the average of the
reported high and low sales prices for the common stock on May 8, 2000.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
*Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this registration statement in accordance with Rule 428 under
the Securities Act of 1933, as amended and the Introductory Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, including any amendments thereto, which have been
or shall be filed by Xceed with the Securities and Exchange Commission are
incorporated herein by reference and shall be deemed to be a part hereof from
the date of filing such documents.
(a) Our Annual Report on Form 10-K for the year ended August 31, 1999,
filed with the Commission on November 29, 1999, as amended by our report on
Form 10-K/A, filed with the Commission on April 11, 2000;
(b) Our Quarterly Report on Form 10-Q for the quarter ended February 29,
2000, filed with the Commission on April 14, 2000;
(c) Our Current Report on Form 8-K, filed with the Commission on January
20, 2000;
(d) Our Current Report on Form 8-K, filed with the Commission on January
28, 2000;
(e) Our Current Report on Form 8-K filed with the Commission on February
16, 2000, as amended by our Current Report on Form 8-K/A, filed with the
Commission on April 11, 2000;
(f) Our Current Report on Form 8-K filed with the Commission on April 5,
2000; and
(g) A description of Xceed's common stock contained in the Registration
Statement on Form 8-A, filed December 14, 1984, as incorporated from
Registration Statement No. 2-90512-NY, filed on July 10, 1984 and as
updated by the Registration Statement on Form S-1 (Registration No. 33-
23910) declared effective on October 31, 1988, and by the definitive proxy
statement filed January 8, 1998 by predecessors of the company.
All documents subsequently filed by us with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, after the date of this registration statement, but prior to the filing
of a post-effective amendment to this registration statement that indicates that
all securities offered by this registration statement have been sold or that
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this registration statement. Each document
incorporated by reference into this registration statement shall be
I
<PAGE>
deemed to be a part of this registration statement from the date of the filing
of such document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document that is incorporated by
reference into this registration statement or by any document that constitutes
part of the prospectus relating to the Xceed Inc. Millennium Stock Option Plan
that meets the requirements of Section 10(a) of the Securities Act.
Item 4. Description of Securities.
Our common stock is registered pursuant to Section 12 of the Exchange Act.
Therefore, the description of securities is omitted.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Officers and Directors.
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware empowers a corporation 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 he 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 and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation 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, or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
made to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnify for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides (1) that to the extent a director or officer
of a corporation has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) of
Section 145 in the defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith; (2) that indemnification provided for
by Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; (3) that indemnification provided for by
Section 145 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of such person's
II-2
<PAGE>
heirs, executors and administrators; and (4) that the corporation is empowered
to purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such whether or not the
corporation would have the power to indemnify him against such liabilities under
Section 145.
As permitted by Section 102(b)(7) of the General Corporation Law of the State
of Delaware, article seventh of our certificate of incorporation, as amended,
provides that none of our directors shall be liable to us or our stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability: (1) for any breach of the director's duty of loyalty to Xceed or our
stockholders; (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law; (3) under Section 174;
or (4) for any transaction from which the director derived an improper personal
benefit. We shall, to the fullest extent permitted by Section 145, as amended
from time to time, indemnify all persons whom we may indemnify pursuant thereto.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number Description
------- -----------
4.1 Xceed Inc. Millennium Stock Option Plan;
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. as to the
legality of the securities being registered;
23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
Exhibit 5.1);
23.2 Consent of Deloitte & Touche LLP;
23.3 Consent of Holtz Rubenstein & Co., LLP; and
24.1 Power of Attorney (included on the signature page of this
registration statement).
II-3
<PAGE>
Item 9. Undertakings
(a) Xceed 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;
(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 volume of securities offered (if the
total dollar 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
a 20% 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by Xceed pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for purposes of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(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) Xceed hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of our annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Xceed
pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the
II-4
<PAGE>
event that a claim for indemnification against such liabilities (other than
the payment by us of expenses incurred or paid by a director, officer or
controlling person of Xceed 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, we will, unless in the
opinion of counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Xceed certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of New York, State of New York, on May 10, 2000.
Xceed Inc.
By: /s/ Werner G. Haase
----------------------------------------
Werner G. Haase, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Werner G. Haase and Scott Mednick, and each of
them, with full power to act without the other, such person's true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this registration statement, any and all amendments thereto
(including post-effective amendments), any subsequent registration statements
pursuant to Rule 462 of the Securities Act of 1933, and any amendments thereto
and to file the same, with exhibits and schedules thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing necessary or desirable
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
- ----------------------------------- ------------------------------------ ----------------
<S> <C> <C>
/s/ Werner G. Haase Co-Chairman of the Board, President May 10, 2000
- ----------------------------------- and Chief Executive Officer
(Werner G. Haase) (Principal Executive Officer)
/s/ Scott Mednick Chairman of the Board and Chief May 10, 2000
- ----------------------------------- Strategic Officer
(Scott Mednick)
/s/ John P. Gandolfo Vice President and Chief Financial May 10, 2000
- ----------------------------------- Officer (Principal Financial and
(John P. Gandolfo) Accounting Officer)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ William Zabit Director May 10, 2000
- -----------------------------------
(William Zabit)
/s/ Terry Anderson Director May 10, 2000
- -----------------------------------
(Terry Anderson)
/s/ John Bermingham Director May 10, 2000
- -----------------------------------
(John Bermingham)
/s/ Norman Docteroff Director May 10, 2000
- -----------------------------------
(Norman Docteroff)
/s/ Edward Bennett Director May 10, 2000
- -----------------------------------
(Edward Bennett)
</TABLE>
II-7
<PAGE>
EXHIBITS
Exhibit
Number Description
------- -----------
4.1 Xceed Inc. Millennium Stock Option Plan;
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. as to the
legality of the securities being registered;
23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
Exhibit 5.1);
23.2 Consent of Deloitte & Touche LLP;
23.3 Consent of Holtz Rubenstein & Co., LLP; and
24.1 Power of Attorney (included on the signature page of this
registration statement).
<PAGE>
EXHIBIT 4.1
XCEED INC.
MILLENNIUM STOCK OPTION PLAN
ARTICLE I
Establishment and Purpose
Section 1.1. Xceed Inc., a Delaware corporation (the "Company"), hereby
establishes a stock option plan to be named the Millennium Stock Option Plan
(the "Plan").
Section 1.2. The purpose of this Plan is to induce persons to whom the
Company determines to extend offers of employment to agree to become employees
of the Company (or any of its subsidiaries), to offer incentives to new and
existing employees, officers, directors and consultants to contribute to the
Company's progress, and to encourage said persons to promote the best interests
of the Company. This Plan provides for the grant to such persons options to
purchase shares of common stock of the Company, par value $.01 per share (the
"Common Stock") which qualify as incentive stock options ("Incentive Options")
under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"),
as well as options which may not be so qualified ("Non-Qualified Options").
Incentive Options and Non-Qualified Options may be collectively referred to
hereinafter as the "Options" as the context may require. Persons granted Options
hereunder may be referred to hereinafter as the "Optionees."
Section 1.3. All Options granted on or after the date that this Plan has
been approved and adopted by the Company's board of directors (the "Board of
Directors") shall be governed by the terms and conditions of this Plan unless
the terms of any such Option specifically indicate that it is not to be so
governed.
Section 1.4. Any Option granted hereunder which is intended to qualify as
an Incentive Option which, for any reason whatsoever, fails to so qualify, shall
be deemed to be a Non-Qualified Option granted hereunder.
Section 1.5. Prior to the approval and ratification of this Plan by the
stockholders of the Company, only new employees shall be granted Options under
this Plan.
ARTICLE II
Administration
Section 2.1. All determinations hereunder concerning the selection of
persons eligible to receive awards under this Plan and determinations with
respect to the timing, pricing and amount of an award hereunder (other than
pursuant to a non-discretionary formula hereinafter set forth, shall be made by
an administrator (the "Administrator"). The Administrator shall be either: (a)
the Board of Directors, or (b) in the discretion of the Board of Directors, a
committee of not less than two members of the Board of Directors (the
"Committee"), each of whom is both (i) a "Non-Employee" Director as such term is
defined in Rule 16b-3 (as such rule may be amended from time to time, "Rule 16b-
3") under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and (ii) an "Outside Director" as such term is defined in Section 162(m) of the
Code and the regulations thereunder. In the event this Plan is administered by
the Committee, the Committee shall select one of its members to serve as the
chairman thereof and shall hold its meetings at such times and places as it may
determine. In such case, a majority of the total number of members of the
Committee shall be necessary to constitute a quorum; and (i) the affirmative act
of a majority of the members present at any meeting at which a quorum is
present, or (ii) the approval in writing by a majority of the members of the
Committee, shall be
<PAGE>
necessary to constitute action by the Committee. Only the Committee may grant
Options to employees who are covered under Section 162(m) of the Code.
Section 2.2. The provisions hereof relating to Incentive Options are
intended to comply in every respect with Section 422 of the Code ("Section 422")
and the regulations promulgated thereunder. In the event that any future statute
or regulation shall modify Section 422, this Plan shall be deemed to incorporate
by reference such modification. Any agreement relating to the grant of any
Incentive Option hereunder, which Option is outstanding and unexercised at the
time that any modifying statute or regulation becomes effective, shall also be
deemed to incorporate by reference such modification and no notice of such
modification need be given to the Optionee. Any agreement relating to an
Incentive Option granted hereunder shall provide that the Optionee hold the
stock received upon exercise of such Incentive Option for a minimum of two years
from the date of grant of the Incentive Option and one year from the date of
exercise of such Incentive Option, absent the written approval, consent or
waiver of the Administrator.
Section 2.3. If any provision of this Plan is determined to disqualify the
shares of Common Stock purchasable upon exercise of an Incentive Option granted
hereunder from the special tax treatment provided by Section 422, such provision
shall be deemed to incorporate by reference the modification required to qualify
such shares of Common Stock for said tax treatment.
Section 2.4. The Company shall grant Options hereunder in accordance with
determinations made by the Administrator pursuant to the provisions hereof. All
Options granted pursuant hereto shall be clearly identified as Incentive Options
or Non-Qualified Options. The Administrator may from time to time adopt (and
thereafter amend or rescind) such rules and regulations for carrying out this
Plan and take such action in the administration of this Plan, not inconsistent
with the provisions hereof, as it shall deem proper. The Board of Directors or,
subject to the supervision of the Board of Directors, the Committee, as the
Administrator, shall have plenary discretion, subject to the express provisions
of this Plan, to determine which officers, directors, employees and consultants
shall be granted Options, the number of shares subject to each Option, the time
or times when an Option may be exercised (whether in whole or in installments),
the terms and provisions of the respective agreements relating to the grant of
Options (which need not be identical), including such terms and provisions which
may be amended from time to time as shall be required, in the judgment of the
Administrator, to conform to any change in any law or regulation applicable
hereto, and to make all other determinations deemed necessary or advisable for
the administration of this Plan. The interpretation and construction of any
provision of this Plan by the Administrator (unless otherwise determined by the
Board of Directors) shall be final, conclusive and binding upon all persons.
Section 2.5. No member of the Administrator shall be liable for any action
or determination made in good faith with respect to administration of this Plan
or the Options granted hereunder. Members of the Board of Directors and/or the
Committee, as the Administrator, shall be indemnified by the Company, pursuant
to the Company's bylaws, for any expenses, judgments or other costs incurred as
a result of a lawsuit filed against such member claiming any rights or remedies
arising out of such member's participation in the administration of this Plan.
ARTICLE III
Total Number of Shares to be Optioned
Section 3.1. There shall be reserved for issuance or transfer upon exercise
of the Options granted from time to time hereunder an aggregate of 3,000,000
shares of Common Stock (subject to adjustment as provided
2
<PAGE>
in Article VIII hereof). The shares of Common Stock issued upon exercise of any
Option granted hereunder may be shares of Common Stock previously issued and
reacquired by the Company at any time or authorized but unissued shares of
Common Stock, as the Board of Directors from time to time may determine. No
employee may be issued more than 1,000,000 shares pursuant to Options granted
hereunder during the term of the Plan.
Section 3.2. In the event that any Options outstanding under this Plan for
any reason expire or are terminated without having been exercised in full, the
unpurchased shares of Common Stock subject to such Option and any such
surrendered shares of Common Stock may again be available for transfer
hereunder.
Section 3.3. No Options shall be granted pursuant hereto to any Optionee
after the tenth anniversary of the earlier of: (a) the date that this Plan is
adopted by the Board of Directors, or (b) the date that this Plan is approved by
the stockholders of the Company.
ARTICLE IV
Eligibility
Section 4.1. Options may be granted hereunder to employees, officers,
directors and consultants of the Company (or any of its subsidiaries) selected
by the Administrator. For purposes of determining who is an employee with
respect to eligibility hereunder, the provisions of Section 422 of the Code
shall govern. The Administrator may determine (in its sole discretion) that any
person who would otherwise be eligible to be granted Options shall, nonetheless,
be ineligible to receive any award under this Plan.
Section 4.2. The Administrator shall (in its discretion) determine the
persons to be granted Options, the time or times at which Options shall be
granted, the number of shares of Common Stock subject to each Option, the terms
of a vesting or forfeiture schedule, if any, the type of Option issued, the
period during which such Options may be exercised, the manner in which Options
may be exercised and all other terms and conditions of the Options; provided,
however, no Option shall be granted which has terms or conditions inconsistent
with those stated in Articles V and VI hereof. Relevant factors in making such
determinations may include the value of the services rendered by the respective
Optionee, his or her present and potential contributions to the Company, and
such other factors which are deemed relevant by the Administrator in
accomplishing the purpose of this Plan.
ARTICLE V
Terms and Conditions of Options
Section 5.1. Each Option granted under this Plan shall be evidenced by a
stock option agreement (the "Option Agreement") in a form consistent with this
Plan, provided that the following terms and conditions shall apply:
(a) The price at which each share of Common Stock covered by an Option may
be purchased shall be set forth in the Option Agreement and shall be
determined by the Administrator, provided that the option price for any
Incentive Option shall not be less than the "fair market value" of the
shares of Common Stock at the time of grant determined. Notwithstanding the
foregoing, if an Incentive Option to purchase shares of Common Stock is
granted hereunder to an Optionee who, on the date of the grant, directly or
indirectly owns more than ten percent (10%) of the voting power of all
classes of capital
3
<PAGE>
stock of the Company (or its parent or subsidiary), not including the
shares of Common Stock obtainable upon exercise of the Option, the minimum
exercise price of such Option shall be not less than one hundred ten
percent (110%) of the "fair market value" of the shares of Common Stock on
the date of grant determined in accordance with Section 5.1(b) below.
(b) The "fair market value" shall be determined by the Administrator, which
determination shall be binding upon the Optionee, the Company and its
officers, directors, employees and consultants. The determination of the
"fair market value" shall be based upon the following: (i) if the Common
Stock is not listed and traded upon a recognized securities exchange and
there is no report of stock prices with respect to the Common Stock
published by a recognized stock quotation service, on the basis of the
recent purchases and sales of the Common Stock in arms-length transactions;
(ii) if the Common Stock is not then listed and traded upon a recognized
securities exchange or quoted on the NASDAQ National Market System, and
there are reports of stock prices by a recognized quotation service, upon
the basis of the last reported sale or transaction price of the Common
Stock on the date of grant as reported by a recognized quotation service,
or, if there is no last reported sale or transaction price on that day,
then upon the basis of the mean of the last reported closing bid and
closing asked prices for the Common Stock on that day or on the date
nearest preceding that day; or (iii) if the Common Stock shall then be
listed and traded upon a recognized securities exchange or quoted on the
NASDAQ National Market System, upon the basis of the last reported sale or
transaction price at which shares of Common Stock were traded on such
recognized securities exchange on the date of grant or, if the Common Stock
was not traded on such date, upon the basis of the last reported sale or
transaction price on the date nearest preceding that date. The
Administrator shall also consider such other factors relating to the "fair
market value" of the Common Stock as it shall deem appropriate.
(c) For the purpose of determining whether an Optionee owns more than ten
percent (10%) of the voting power of all classes of stock of the Company,
an Optionee shall be considered to own those shares of stock which are
owned directly or indirectly through brothers and sisters (including half-
blooded siblings), spouse, ancestors and lineal descendants; and
proportionately as a shareholder of a corporation, a partner of a
partnership, and/or a beneficiary of a trust or an estate that owns shares
of capital stock of the Company.
(d) Notwithstanding any other provision hereof, in accordance with the
provisions of Section 422(d) of the Code, to the extent that the aggregate
"fair market value" (determined at the time the Option is granted) of the
shares of Common Stock with respect to which Incentive Options (without
reference to this provision) are exercisable for the first time by any
individual in any calendar year under any and all stock option plans of the
Company (and its subsidiary corporations and its parent, if any) exceeds
$100,000, such Options shall be treated as Non-Qualified Options.
(e) An Optionee may, in the Administrator's discretion, be granted more
than one Option during the duration of this Plan and may be issued a
combination of Non-Qualified Options and Incentive Options.
(f) The duration of any Option shall be within the sole discretion of the
Administrator; provided, however, that any Incentive Option granted to a
ten percent (10%) or less stockholder or any Non-Qualified Option shall, by
its terms, be exercised within ten years after the date the Option is
granted and any Incentive Option granted to a greater than ten percent
(10%) stockholder shall, by its terms, be exercised within five years after
the date the Option is granted.
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(g) An Option shall not be transferable by the Optionee other than by will,
or by the laws of descent and distribution. An Option may be exercised
during the Optionee's lifetime only by the Optionee.
(h) At least six (6) months shall elapse from the date on which an Option
is granted to an officer, director, or beneficial owner of more than ten
percent (10%) of the outstanding shares of Common Stock of the Company
under this Plan by the Administrator to the date on which any share of
Common Stock underlying such Option is sold, unless the Administrator
otherwise consents in writing.
ARTICLE VI
Employment or Service of Optionee
Section 6.1. If the employment or service of an Optionee is terminated for
cause, the option rights of such Optionee, both accrued and future, under any
then outstanding Option shall terminate immediately, subject to the provisions
of any employment agreement between the Company (or any subsidiary) and an
Optionee which, by its terms, provides otherwise. In the event that an employee
who is an Optionee hereunder has entered into a written employment agreement
with the Company (or a subsidiary), "cause" shall have the meaning attributed
thereto in such employment agreement; otherwise, "cause" shall mean incompetence
in the performance of duties, disloyalty, dishonesty, theft, embezzlement,
unauthorized disclosure of patents, processes or trade secrets of the Company,
individually or as an employee, partner, associate, officer or director of any
organization. The determination of the existence and the proof of "cause" shall
be made by the Administrator and, subject to the review of any determination
made by the Administrator, such determination shall be binding on the Optionee
and the Company.
Section 6.2. Subject to the provisions of any employment agreement between
the Company (or a subsidiary) and an Optionee, if the employment or service of
an Optionee is terminated by either the Optionee or the Company for any reason
other than cause, death, or for disability (as defined in Section 22(e)(3) of
the Code or pursuant to the terms of such an employment agreement), the option
rights of such Optionee under any then outstanding Option shall, subject to the
provisions of Section 5.1(h) hereof, be exercisable by such Optionee at any time
prior to the expiration of the Option or within three months after the date of
such termination, whichever period of time is shorter, but only to the extent of
the accrued right to exercise an Option at the date of such termination.
Section 6.3. Subject to the provisions of any employment agreement between
the Company (or a subsidiary) and an Optionee, in the case of an Optionee who
becomes disabled (as defined by Section 22(e)(3) of the Code or pursuant to the
terms of such an employment agreement), the option rights of such Optionee under
any then outstanding Option shall, subject to the provisions of Section 5.1(h)
hereof, be exercisable by such Optionee at any time prior to the expiration of
the Option or within one year after the date of termination of employment or
service due to disability, whichever period of time is shorter, but only to the
extent of the accrued right to exercise an Option at the date of such
termination
Section 6.4. In the event of the death of an Optionee, the option rights of
such Optionee under any then outstanding Option shall be exercisable by the
person or persons to whom these rights pass by will or by the laws of descent
and distribution, at any time prior to the expiration of the Option or within
three years after the date of death, whichever period of time is shorter, but
only to the extent of the accrued right to exercise an Option at the date of
death. If a person or estate acquires the right to exercise an Option by bequest
or inheritance, the Administrator may require reasonable evidence as to the
ownership of such Option, and may require such consents and releases of taxing
authorities as the Administrator may deem advisable.
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Section 6.5. The Administrator may also provide that an employee must be
continuously employed by the Company for such period of time as the
Administrator, in its discretion, deems advisable before the right to exercise
any portion of an Option granted to such employee will accrue, and may also set
such other targets, restrictions or other terms relating to the employment of
the Optionee which targets, restrictions, or terms must be fulfilled or complied
with, as the case may be, prior to the exercise of any portion of an Option
granted to any employee.
Section 6.6. Options granted hereunder shall not be affected by any change
of duties or position, so long as the Optionee continues in the service of the
Company.
Section 6.7. Nothing contained in this Plan or in any Option granted
pursuant hereto shall confer upon any Optionee any right with respect to
continuance of employment or service by the Company nor interfere in any way
with the right of the Company to terminate the Optionee's employment or service
or change the Optionee's compensation at any time.
ARTICLE VII
Purchase of Shares
Section 7.1. Except as provided in this Article VII, an Option shall be
exercised by tender to the Company of the full exercise price of the shares of
Common Stock with respect to which an Option is exercised and written notice of
the exercise. The right to purchase shares of Common Stock shall be cumulative
so that, once the right to purchase any shares of Common Stock has accrued, such
shares or any part thereof may be purchased at any time thereafter until the
expiration or termination of the Option. A partial exercise of an Option shall
not affect the right of the Optionee to subsequently exercise his or her Option
from time to time, in accordance with this Plan, as to the remaining number of
shares of Common Stock subject to the Option. The purchase price payable upon
exercise of an Option shall be in United States dollars and shall be payable in
cash or by certified bank check. Notwithstanding the foregoing, in lieu of cash,
an Optionee may, with the approval of the Administrator, exercise his or her
Option by tendering to the Company shares of Common Stock owned by him or her
having an aggregate fair market value at least equal to the aggregate purchase
price. The "fair market value" of any shares of Common Stock so surrendered
shall be determined by the Administrator in accordance with Section 5.1(b)
hereof.
Section 7.2. Except as provided in Article VI above, an Option may not be
exercised unless the holder thereof is an employee of the Company at the time of
exercise.
Section 7.3. No Optionee or Optionee's executor, administrator, legatee, or
distributee or other permitted transferee, shall be deemed to be a holder of any
shares of Common Stock subject to an Option for any purpose whatsoever unless
and until such Option has been exercised and a stock certificate or certificates
for the shares of Common Stock purchased by the Optionee are issued to the
Optionee in accordance with the terms of this Plan. No adjustment shall be made
for dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date that any such stock certificate is issued, except as provided in
Article VIII hereof.
Section 7.4. If: (i) the listing, registration or qualification of the
Options issued hereunder or of any securities issuable upon exercise of such
Options (the "Subject Securities") upon any securities exchange or quotation
system or under federal or state law is necessary as a condition of or in
connection with the issuance
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or exercise of the Options; (ii) the consent or approval of any governmental
regulatory body is necessary as a condition of or in connection with the
issuance or exercise of the Options; or (iii) any other consent or approval
required by applicable law, rule or regulation is necessary as a condition of or
in connection with the issuance or exercise of the Options, the Company shall
not be obligated to deliver the certificates representing the Subject Securities
or to accept or to recognize an Option exercise unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained. The Company will take reasonable action to so list, register, or
qualify the Options and the Subject Securities, or effect or obtain such consent
or approval, so as to allow for issuance and/or exercise.
Section 7.5. An Optionee may be required to represent to the Company as a
condition of his or her exercise of Options issued under this Plan that: (i) the
Subject Securities acquired upon exercise of his or her Option are being
acquired by him or her for investment purposes only and not with a view to
distribution or resale, unless counsel for the Company is then of the view that
such a representation is not necessary and is not required under the Securities
Act of 1933, as amended (the "Securities Act"), or any other applicable statute,
law, regulation or rule; and (ii) that the Optionee shall make no exercise or
disposition of an Option or of the Subject Securities in contravention of the
Securities Act, the Exchange Act of 1934, or the rules and regulations
thereunder. Optionees may also be required to provide (as a condition precedent
to exercise of an Option) such documentation as may be reasonably requested by
the Company to assure compliance with applicable law and the terms and
conditions of this Plan and the subject Option.
Section 7.6. An Option may be exercised by tender to the Administrator of a
written notice of exercise together with advice of the delivery of an order to a
broker to sell part or all of the shares of Common Stock subject to such
exercise notice and an irrevocable order to such broker to deliver to the
Company (or its transfer agent) sufficient proceeds from the sale of such shares
to pay the exercise price and any withholding taxes. All documentation and
procedures to be followed in connection with such a "cashless exercise" shall be
approved in advance by the Administrator.
ARTICLE VIII
Change in Number of Outstanding Shares of Stock, Adjustments, Reorganizations,
Etc.
Section 8.1. In the event that the outstanding shares of Common Stock of
the Company are hereafter increased or decreased or changed into or exchanged
for a different number of shares or kind of shares or other securities of the
Company or of another corporation by reason of reorganization, merger,
consolidation, recapitalization, reclassification, stock split, combination of
shares, or a dividend payable in capital stock, appropriate adjustment shall be
made by the Administrator in the number and kind of shares for the purchase of
which Options may be granted under this Plan, including the maximum number that
may be granted to any one person. In addition, the Administrator shall make
appropriate adjustments in the number and kind of shares as to which outstanding
Options, or portions thereof then unexercised, shall be exercisable, to the end
that the Optionee's proportionate interest shall be maintained as before the
occurrence to the unexercised portion of the Option and with a corresponding
adjustment in the option price per share. Any such adjustment made by the
Administrator shall be conclusive.
Section 8.2. The grant of an Option hereunder shall not affect in any way
the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge or
to consolidate or to dissolve, liquidate or sell, or transfer all or any part of
its business or assets.
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Section 8.3. Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to Options hereunder are
changed into or exchanged for cash or property or securities not of the
Company's issue, or upon a sale of substantially all the property of the Company
to an association, person, party, corporation, partnership, or control group as
that term is construed for purposes of the Exchange Act, this Plan shall
terminate, and all Options theretofore granted hereunder shall terminate, unless
provision be made in writing in connection with such transaction for the
continuance of this Plan and/or for the assumption of Options theretofore
granted, or the substitution for such Options of options covering the stock of a
successor employer corporation, or a parent or a subsidiary thereof, with
appropriate adjustments as to the number and kind of shares and prices, in which
event this Plan and options theretofore granted shall continue in the manner and
under the terms so provided. If this Plan and unexercised Options shall
terminate pursuant to the foregoing sentence, all persons owning any unexercised
portions of Options then outstanding shall have the right, at such time prior to
the consummation of the transaction causing such termination as the Company
shall designate, to exercise the unexercised portions of their Options,
including the portions thereof which would, but for this Section 8.3 not yet be
exercisable.
ARTICLE IX
Duration, Amendment and Termination
Section 9.1. The Board of Directors may at any time terminate this Plan or
make such amendments hereto as it shall deem advisable and in the best interests
of the Company, without action on the part of the stockholders of the Company
unless such approval is required pursuant to Section 422 of the Code or the
regulations thereunder or other federal or state law, rule or regulation;
provided, however, that no such termination or amendment shall, without the
consent of the individual to whom any Option shall theretofore have been
granted, affect or impair the rights of such individual under such Option.
Pursuant to Section 422(b) of the Code, no Incentive Option may be granted
pursuant to this Plan after ten years from the date this Plan is adopted or the
date this Plan is approved by the stockholders of the Company, whichever is
earlier.
ARTICLE X
Restrictions
Section 10.1. Any Options and shares of Common Stock issued pursuant hereto
shall be subject to such restrictions on transfer and limitations as shall, in
the opinion of the Administrator, be necessary or advisable to assure compliance
with the laws, rules and regulations of the United States government or any
state or jurisdiction thereof. In addition, the Administrator may in any Option
Agreement impose such other restrictions upon the disposition or exercise of an
Option or upon the sale or other disposition of the shares of Common Stock
deliverable upon exercise thereof as the Administrator may, in its sole
discretion, determine. By accepting the grant of an Option pursuant hereto, each
Optionee shall agree to any such restrictions.
Section 10.2. Any certificate evidencing shares of Common Stock issued
pursuant to exercise of an Option shall bear such legends and statements as the
Administrator, the Board of Directors or counsel to the Company shall deem
advisable to assure compliance with the laws, rules and regulations of the
United States government or any state or jurisdiction thereof. No certificate
evidencing shares of Common Stock shall be delivered pursuant to exercise of the
Options granted under this Plan until the Company has obtained such consents or
approvals from such regulatory bodies of the United States government or any
state or jurisdiction thereof as the Administrator, the Board of Directors or
counsel to the Company deems necessary or advisable.
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ARTICLE XI
Financial Assistance
Section 11.1 The Company is vested with the authority hereunder to assist
any employee to whom an Option is granted hereunder (including any officer or
director of the Company or any of its subsidiaries who is also an employee) in
the payment of the purchase price payable upon exercise of such Option, by
lending the amount of such purchase price to such employee on such terms and at
such rates of interest and upon such security (or unsecured) as shall have been
authorized by or under authority of the Board of Directors. Any such assistance
shall comply with the requirements of Regulation G promulgated by the Board of
the Federal Reserve System, as amended from time to time, and any other
applicable law, rule or regulation.
ARTICLE XII
Application of Funds
Section 12.1. The proceeds received by the Company from the issuance and
sale of Common Stock upon exercise of Options granted pursuant to this Plan are
to be added to the general funds of the Company and used for its corporate
purposes as determined by the Board of Directors.
ARTICLE XIII
Effectiveness of Plan
Section 13.1 This Plan shall become effective upon adoption by the Board of
Directors, and Options may be issued hereunder from and after that date subject
to the provisions of Section 3.3 above. This Plan must be approved by the
Company's stockholders in accordance with the applicable provisions (relating to
the issuance of stock or options) of the Company's governing documents and state
law or, if no such approval is prescribed therein, by the affirmative vote of
the holders of a majority of the votes cast at a duly held stockholders meeting
at which a quorum representing a majority of all the Company's outstanding
voting stock is present and voting (in person or by proxy) or, without regard to
any required time period for approval, by any other method permitted by Section
422 of the Code and the regulations thereunder. If such stockholder approval is
not obtained within one year of the adoption of this Plan by the Board of
Directors or within such other time period required under Section 422 of the
Code and the regulations thereunder, this Plan shall remain in force; provided
however, that all Options issued and issuable hereunder shall automatically be
deemed to be Non-Qualified Options.
IN WITNESS WHEREOF, pursuant to the approval of this Plan by the Board of
Directors, this Plan is executed and adopted this 13th day of January, 2000.
XCEED INC.
By: /s/ Werner G. Haase
-------------------
Werner G. Haase, Chief Executive Officer
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EXHIBIT 5.1
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Avenue, N.W.
Suite 400
Washington, D.C. 20036
(202) 887-4000
Fax (202) 887-4288
Writer's Direct Dial Number (202) 887-4000
May 10, 2000
Xceed Inc.
488 Madison Avenue
3rd Floor
New York, New York 10022
Ladies and Gentlemen:
We have acted as counsel to Xceed Inc., a Delaware corporation (the
"Company"), in connection with the registration of 3,000,000 shares of common
stock, par value $.01 per share (the "Common Stock"), of the Company, pursuant
to the registration statement on Form S-8 (the "Registration Statement") filed
by the Company under the Securities Act of 1933, as amended. The Registration
Statement relates to the shares of Common Stock issuable to employees of the
Company pursuant to the Xceed Inc. Millennium Stock Option Plan (the "Plan").
In our opinion, the Common Stock to be registered under the Registration
Statement has been duly authorized for issuance by the Company, and upon
issuance and delivery in accordance with the Plan, the Common Stock will be
validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Xceed Inc. on Form S-8 of our report dated March 20, 2000 (which expresses an
unqualified opinion and includes an explanatory paragraph relating to the
restatement of the 1999 financial statements described in Note 2.s.), appearing
in the Annual Report on Form 10-K/A of Xceed Inc. for the year ended August 31,
1999.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
New York, New York
May 10, 2000
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our report dated November 19, 1999 (except for Note 4, as to which
the date is January 13, 2000) with respect to the consolidated financial
statements of Xceed, Inc. included in the Company's Annual Report on Form 10-K/A
for the year ended August 31, 1999, and to the reference to us under the
headings "Experts" in such Registration Statement.
/s/ Holtz Rubenstein & Co., LLP
HOLTZ RUBENSTEIN & CO., LLP
Melville, New York
May 10, 2000
