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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the fiscal year ended March 28, 1998
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the transition period from ________ to________
Commission file number 0-16930
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EGGHEAD.COM, INC.
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(Exact name of registrant as specified in its charter)
WASHINGTON 91-1296187
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
EAST 22705 MISSION
LIBERTY LAKE, WASHINGTON 99019
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (509) 922-7031
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Securities registered pursuant to Section 12(b) of the Act: NONE
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Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.01 PAR VALUE
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(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES [X] NO [_]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K _______
To the best of Egghead.com, Inc.'s knowledge, the aggregate market value of
the voting stock held by non-affiliates of the registrant at May 23, 1998 was
$199,100,000.
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
OUTSTANDING AT
CLASS MAY 23, 1998
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Common Stock, $.01 par value 23,591,788 shares
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's definitive Proxy Statement relating to the
Company's 1998 Annual Meeting of Shareholders are incorporated by reference into
Part III of this Form 10-K.
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EGGHEAD.COM, INC.
TABLE OF CONTENTS
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Page
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PART I
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Item 1. Business.................................................. 3
Item 2. Properties................................................ 19
Item 3. Legal Proceedings......................................... 19
Item 4. Submission of Matters to a Vote of Security Holders....... 19
PART II
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Item 5. Market for the Registrant's Common Equity and Related
Shareholder Matters....................................... 20
Item 6. Selected Financial Data................................... 21
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations....................... 22
Item 8. Financial Statements and Supplementary Data............... 30
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure....................... 49
PART III
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Item 10. Directors and Executive Officers of the Registrant........ 49
Item 11. Executive Compensation.................................... 49
Item 12. Security Ownership of Certain Beneficial Owners and
Management................................................ 49
Item 13. Certain Relationships and Related Transactions............ 49
PART IV
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Item 14. Exhibits, Financial Statement Schedules and Reports on
Form 8-K.................................................. 49
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PART 1
ITEM 1. BUSINESS OF EGGHEAD
This Annual Report on Form 10-K and the documents incorporated herein by
reference contain forward-looking statements based on current expectations,
estimates and projections about the Company's industry, management's beliefs and
certain assumptions made by management. When used in this report and elsewhere
by management, from time to time, the words "believes," "plans," estimates,"
"intends," "anticipates," "seeks," and "expects" and similar expressions are
intended to identify forward-looking statements. These forward-looking
statements are not guarantees of future performance and are subject to certain
risks and uncertainties that are difficult to predict. Accordingly, actual
results may differ materially from those anticipated or expressed in such
statements. Potential risks and uncertainties include, among others, those set
forth herein under "Additional Factors That May Affect Future Results."
Particular attention should be paid to the cautionary statements involving the
Company's limited Internet operating history, the rapid evolution of Internet
commerce and related technology, management of potential growth, the intensely
competitive nature of the business of selling PC software, hardware and related
products and of the electronic commerce business, Egghead's dependence on
vendors, distributors and certain supply sources and risks associated with the
closing of the Company's retail store network and the combination of the
management and operations of the Company with those of Surplus Direct. Readers
are cautioned not to place undue reliance on the forward-looking statements,
which speak only as of the date made. Except as required by law, the Company
undertakes no obligation to update any forward-looking statement, whether as a
result of new information, future events or otherwise. Readers, however, should
carefully review the factors set forth in other reports or documents that the
Company files from time to time with the Securities and Exchange Commission
("SEC").
GENERAL
Egghead.com, Inc. ("Egghead" or the "Company") is one of the leading on-
line resellers of personal computer ("PC") hardware, software, peripherals and
accessories to consumers and businesses. The Company sells a broad selection of
PC hardware and software products, as well as other consumer merchandise,
through three Internet websites, the Egghead.com site, the Surplusdirect.com
site and the Surplusauction.com site, and a direct response division. These
products consist of current and off-price merchandise including excess,
closeout, refurbished, and reconditioned goods. In order to enhance its Internet
presence and expand its product offering, Egghead acquired an Oregon-based
company, Surplus Software, Inc. d/b/a Surplus Direct ("Surplus Direct"), on
August 14, 1997. On January 28, 1998, Egghead announced that it would change its
name to Egghead.com, Inc.; shift its business emphasis to Internet commerce;
close its remaining retail network of 80 stores; close its distribution center
in Sacramento, California; and combine its management and operations with those
of Surplus Direct.
Egghead began operation in 1984 primarily as a software reseller. Egghead,
a Washington corporation, was incorporated in 1988 and is the successor to a
corporation that was incorporated in Washington in 1984. Unless the context
indicates otherwise, references to Egghead or the Company include Egghead and
its wholly owned subsidiaries.
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THE WEB SITES
Egghead operates three electronic commerce sites, Egghead.com,
Surplusdirect.com and Surplusauction.com, which in the aggregate were ranked by
PC Meter as the sixth most visited at-home Internet commerce shopping sites on
the Internet during May 1998. PC Meter is a New York research firm, which ranks
Internet site usage by 10,000 U.S. households. These interlinked web sites
represent Egghead's Internet "superstore," where customers can choose from a
large assortment of products, sourced, priced and configured to meet a wide
variety of needs.
The Egghead web site offers over 40,000 products, which are primarily
current version PC hardware, software, peripherals and accessories. In November
1996, Egghead began offering electronic delivery of selected software products,
which permits a customer to place an order and have the software product
transmitted directly electronically onto his or her PC. Egghead customers can
use the Internet commerce site to search for software titles, browse merchandise
categories and products and view demonstrations of selected software programs
before placing an order. The majority of the products offered on the Egghead
web site are available for shipment within 24 hours through third-party
distribution facilities.
The Surplusdirect web site is a leading reseller of primarily name brand,
off-price PC hardware, software and peripherals. These products are primarily
special purchases of excess, closeout, refurbished and reconditioned
merchandise. Through its merchandising organization, Egghead is able to provide
consumers and businesses the unique values created through the opportunistic
acquisition of goods. Customers may place orders directly on the Surplus Direct
home page, and products are generally shipped to customers the same day orders
are placed. A survey conducted by PC Meter during May 1998 found that
Surplusdirect was the 12th most visited Internet commerce shopping site among at
home users and the fifth most visited Internet commerce site among at work
Internet shoppers.
The Surplusauction web site sells all of the aforementioned categories of
goods through interactive online auctions. The auction format allows customers
to bid competitively against each other. The web site currently offers up to 15
auctions per week, selling quantities of one to more than 1,500 of each item
where customers can bid online 24 hours a day, seven days a week. By comparison
to the traditional fixed price formats of online catalogs, the auction format
enables the customers to impact the price through auction-style bidding. At the
designated closing time, the Company selects the winning bidders and sends an e-
mail message to them confirming their purchases. In addition to offering an
exciting forum for Internet purchases, the auction site allows vendors to
dispose of excess merchandise efficiently and effectively. The site was
launched in July 1997 and has over 150,000 registered bidders as of June 17,
1998. A survey by PC Meter found Surplusauction was the 18th most visited
Internet commerce site in May 1998 among at home Internet shoppers and the 14th
most visited Internet commerce site among similar at work Internet shoppers.
INBOUND, RESELLER AND VOLUME SALES DIVISION
Egghead operates a 1-800 customer service center which responds to inbound
telephone calls and inquiries from consumers as well as corporate, government,
reseller and educational institution customers , and takes orders for the same
hardware and software products that are offered on the Company's web sites.
These inquiries are mainly generated by the Company's promotional efforts which
include both online and traditional advertising, principally through the limited
circulation of its catalogs. The center operates toll-free order numbers, 1-
800EGGHEAD and 1-800SURPLUS, 15 hours a day Monday through Friday, nine hours on
Saturday and six hours on Sunday. Customer service and technical support
personnel assist the direct response department. This service-based approach
includes providing account managers with authority to vary prices to meet
competitors' prices. Egghead ships merchandise purchased through the 1-800
service directly to the customer from Egghead's distribution center in
Vancouver, Washington or from third-party distributors.
The Company currently distributes a limited number of internally produced
newspaper-style catalogs on a monthly basis to existing customers. These
catalogs are distributed to customers in the United States and to a limited
number of foreign customers. The in-house catalog is created with Egghead's own
design team and production department using computer-based desktop publishing
systems. Circulation of the catalog will be substantially reduced in favor of
promotions and marketing over the Internet.
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INDUSTRY BACKGROUND
Electronic Commerce on the Internet. The Internet has evolved into a
unique marketing channel. Egghead believes Internet-based retailers have
certain advantages over traditional store-based retail channels. Egghead can
adapt quickly to consumer and product changes as it is not limited by shelf
space and is flexible in rapidly adjusting product mix, pricing, offers and
visual presentations in response to market changes. In addition, the global
nature of the Internet allows retailers to build a large, geographically
dispersed customer base more quickly than traditional retailers and catalog
marketers. Internet-based stores can more easily operate 24-hours a day, seven
days a week, and are less limited by geographic boundaries. The Company
believes that Internet retailing is better suited to tracking individual
customer purchases and demographic data for use in direct marketing programs and
in developing one-to-one relationships with consumers. Unlike other retail
formats, Internet retailers do not have the overhead, fixed costs and capital
expense associated with a retail store infrastructure or the printing and
mailing costs of a large distribution catalog-based marketer.
Because the number of Internet retailers has expanded, however, the
importance of creating and maintaining brand awareness is critical to the
success of these companies. To enhance brand recognition, many Internet
retailers have begun to establish marketing arrangements with commerce, content
and service providers. These partnerships and alliances are intended to build
brand recognition, increase traffic and visits, take advantage of cross-
marketing opportunities and build barriers to entry. Egghead believes its
investments in marketing through the Company's former retail store network have
given the Company an initial brand name and consumer recognition on the
Internet. The Company desires to build on its brand name and consumer
recognition through continued investments in marketing and advertising.
Egghead has established marketing agreements with CNET, USA.net, Geocities,
Yahoo and others.
According to The Yankee Group, a Boston based Internet consultant, computer
hardware and software is the leading merchandise category on the Internet in
both business-to-business and business-to-consumer markets. By the year 2000,
The Yankee Group expects the PC hardware and software category to account for
$11 billion of sales on the Internet.
MARKET FOR PC PRODUCTS
Current Merchandise. Egghead believes the market for PC products has and
will continue to expand principally due to the following: (i) decreases in
prices of computers, microprocessors, and computer hardware and software
resulting primarily from intense competition among manufacturers, retailers and
resellers; (ii) rapid technological advances and resulting shorter product life
cycles; (iii) improvements in computer hardware performance; and (iv) increased
use of, acceptance of and familiarity with computers by consumers, businesses,
and governments. Sales of PC hardware, software and related products depend on
the continued purchase and expanded use of PCs in households and businesses, the
continued development of PC software and other evolving changes in the PC
industry.
Rapid technological change and improvements in computer hardware
performance represents both opportunity and risk for PC product resellers. For
example, prices of microprocessor chips are decreasing due to increased
competition among computer chip manufacturers and the introduction of newer,
faster microprocessor chips. The decrease in microprocessor chip prices has
contributed to reductions in PC prices, resulting in increased sales of PCs to
businesses and individual consumers. However, the rapid improvements in
processing capability made possible by improvements in microprocessor chips,
improved operating systems and other technological advances contribute to
shorter product life cycles that may result in reduced margins due to rapid
product obsolescence.
The increased acceptance of and familiarity with computers, primarily due
to the availability of more sophisticated and user-friendly software at
reasonable prices, has also increased demand for PC products. For example,
improvements in graphical user interfaces, the increased usage of the Internet
as an entertainment and shopping medium, the development of integrated software
packages, such as office suite products, and new interactive educational and
entertainment products encourage purchases of PC hardware, as well as software
and other PC products. Technologies such as CD-ROM, which provide a multimedia
experience involving full-motion video and stereo sound, enable home users to
more effectively use PCs for educational and entertainment purposes. Sales of
PC hardware accessories, such as
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hard drives and modems, also have increased as consumers enhance their PCs.
Egghead believes that new technologies such as these result in enhanced product
offerings, generating demand for software and hardware products as these
technologies are developed and brought to the marketplace.
Off-Price Merchandise. Significant volumes of "off-price" merchandise,
including refurbished, closeout, reconditioned and liquidation merchandise, are
disposed of each year by manufacturers. Refurbished products are usually new
products that have been returned to the manufacturer or to a factory authorized
service center for inspection and, if necessary, repair. These products
typically carry full applicable warranties. Closeout merchandise includes
products that have or will shortly become obsolete typically due to the
introduction of newer models or versions. Reconditioned merchandise is
previously owned or operated products that have been restored and thoroughly
tested to be in complete working order.
Although the market for off-price merchandise is difficult to measure
precisely, the PC market has been supplied by significant quantities of such
products due to the short product life cycles and the prevalence of returned
items through the consumer-retailing channel.
BUSINESS STRATEGY
Egghead's objective is to become one of the leading retailers on the
Internet of PC products and certain other consumer products and services. The
key elements of the Company's strategy are as follows:
Create a Web Superstore. Egghead believes its large assortment of current
version and off-price PC and other consumer merchandise offerings on its three
websites, which offer electronically downloadable software and an interactive
auction format, constitute a comprehensive web-based computer superstore.
Egghead intends to position the Company to take advantage of the projected
growth in Internet commerce through marketing agreements, increased brand
recognition and unique and compelling merchandise offers.
Increase Market Awareness, Customer Loyalty and Brand Recognition. By
focusing on customer service and striving to deliver the highest quality on-line
experience to its customers, the Company seeks to expand its customer base and
build strong customer loyalty. The Company believes that Egghead's brand name
recognition in the categories associated with PC products will help the Company
build customer traffic. To increase the market awareness of and traffic to the
Egghead web sites, the Company intends to continue to enter into new marketing
relationships and leverage existing relationships with leading online content
providers, search engines and other commerce companies. These alliances and
relationships include, but are not limited to, online promotions, interactive
advertising and targeted e-mail.
Broaden Existing Offerings. Egghead offers the convenience of one-stop
shopping by providing its customers a broad selection of PC products including
both current version and off-price merchandise. The Company believes that it
can add to its existing categories of computer-related merchandise. In
addition, Egghead has developed "direct-ship" programs with some of its
suppliers through the use of electronic data interchange links allowing it to
expand further its product offerings without increasing its inventory and
handling costs or exposure to inventory risk. The Company is also continuing to
increase the number of titles available for electronic software distribution
Pursue Incremental Revenue Opportunities. Egghead believes there is
significant opportunity to develop incremental revenue opportunities, including
the expansion of the types of products offered, changing the product mix and
adding additional services and products such as warranties and leasing
arrangements. The Company has recently expanded its product offering to include
a limited assortment of consumer electronics and other consumer products and
will continue to evaluate other product categories and merchandise as potential
additional offerings. The Company believes the Internet's electronic format is
well suited to offering additional consumer products. The Company's auction
format lends itself particularly well to the marketing of time-sensitive goods
and services. Based on PC Meter survey's, Egghead believes its auction site is
among the most frequently visited Internet auction sites.
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In addition, the Company intends to expand its sales to customers outside
its current markets of the United States and Canada. The Company intends to
explore the global nature of the Internet to build an international customer
base, expand its recognition of its brand name and build strategic relationships
globally.
Utilize Emerging Technologies. Egghead intends to continue to invest
substantial resources in developing, acquiring and implementing technology-
driven enhancements to its online services and sites, including continuing to
make its user interface faster, more user-friendly and intuitive while at the
same time incorporating additional content and user options.
Deliver Compelling Value to Customers. The Company seeks to deliver useful
and easily accessible product information, customer service tools and
competitive prices to enable customers to make informed purchases. In addition,
the auction web site offers the customer compelling potential bargains and the
ability to participate in the interactive nature and excitement of competitive
bidding and "winning" an auction competition for desired merchandise. Egghead
intends to continue improving the high-quality on-line experience of its web
sites by expanding its product mix; adding relevant, and informative product
information; maintaining simple, efficient search and navigation capabilities;
offering a broad assortment of electronically transmittable software; and
building its community of customers through better service, communication and
technology. Egghead believes that in the aggregate its three web sites
constitute an Internet-based "superstore" with a compelling value-oriented offer
for computer products.
MARKETING AND SALES.
The Company sells to consumers, businesses and resellers through its three
web sites and the direct response division. Egghead seeks to raise consumer
awareness of its online commercial activities through a combination of public
relations, Internet-based advertising and marketing, aggressive pricing and
unique merchandise assortments. The Company intends to continue to build its
customer database and product offerings to encourage frequent repeat visits and
purchases by consumers. The Company employs other media and promotional tools
including:
Customer Electronic Mail Broadcasts. Egghead actively markets to its own
base of customers through e-mail broadcasts. Visitors to any of the Egghead
sites may sign up for promotional and informational e-mail broadcasts, which
include weekly announcements of sales and special promotions. As of June 18,
1998, the Company had over 1.5 million e-mail addresses which receive these
weekly announcements.
Internet Advertising. Egghead places advertisements on various high
profile and high-traffic web sites. These advertisements take the form of
banners and other graphical representations that encourage readers to click
through directly to the Company's web sites.
Catalogs. The Company distributes an internally produced newspaper-style
catalog on a monthly basis to select current customers. These catalogs are
distributed to customers in the United States and in a limited number of foreign
customers. The in-house catalog is created with Egghead's own design team and
production department using computer-based desktop publishing systems.
Marketing Agreements. Egghead enters into marketing agreements to increase
its access to online customers, to build brand recognition and to expand the
Company's online presence. Egghead has entered into agreements with Yahoo!,
USA.net, Geocities and Cnet, among others, to promote the Egghead web sites
through their current search engines, community, information, and/or e-mail
sites. The Company is aggressively pursuing other marketing and content
arrangements.
Egghead believes that its brand name recognition, competitive prices, range
of products, user-friendly Internet sites, interactive auction format and well-
trained direct response staff have enabled it to successfully develop its online
presence.
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MERCHANDISE AND PURCHASING.
The Company currently offers a broad selection of current version and off-
price PC hardware and software products. The Egghead site offers approximately
40,000 products, primarily current version PC hardware, software and related
merchandise. The Surplusdirect site offers off-price PC products and consumer
electronics merchandise. The Surplusauction site offers products in up to 15
weekly auctions. Egghead believes that its three web sites and direct response
division offer the consumer great value at every point in a product's life
cycle. In moving products through their life cycle to the different web sites,
and especially when utilizing the auction format, the Company is rotating the
merchandise offering on its web sites, keeping the sites fresh and appealing and
encouraging customers to revisit the sites frequently.
Egghead purchases a significant amount of its current version PC products
from distributors. Products from these distributors are primarily purchased on
an order-fulfilled basis and the distributor ships the product directly to the
customer, allowing Egghead to expand its product offering without increasing its
inventory and handling costs or exposure to inventory obsolescence. Purchases
from Ingram Micro, Inc., a distributor of computers and related products,
accounted for approximately 11% of the Company's aggregate merchandise purchases
for fiscal 1998. No other supplier accounted for more than 7.5% of purchases in
fiscal 1998. Egghead has no long-term contracts or arrangements with its
vendors that guarantee availability of merchandise for its web sites. There can
be no assurance that the Company's current vendors will continue to sell
merchandise to Egghead or otherwise to provide merchandise for resale by the
Company or that Egghead will be able to establish new vendor relationships that
ensure merchandise will be available for resale by the Company.
Significant volumes of excess merchandise, including refurbished, closeout,
reconditioned and liquidation merchandise are disposed of each year by
manufacturers. Manufacturers are receptive to new sales channels to liquidate
these types of goods, typically at discounted prices. Through the Company's web
sites, Egghead can provide manufacturers and publishers with an alternative
means of generating incremental sales without creating channel conflict or
undermining product image, while providing cost-conscious customers with
recognizable values in discounted computer products. Egghead believes a well-
coordinated merchandise assortment is key to its success. The Company employs a
staff of buyers with extensive experience in purchasing computer, consumer and
surplus products to maintain a satisfactory mix and quantity of inventory and
acceptable product availability. The end-of-life and excess merchandise market
is characterized by the inconsistency of product supply from any one source and
the inability to predict availability of products with any degree of certainty.
Egghead has no long-term contracts or arrangements with its vendors that ensure
the availability of excess merchandise.
The Company offers approximately 40,000 skus in the following categories:
PC Hardware. Egghead offers PCs, including IBM- and Macintosh-compatible
desktops and notebooks. In addition the Company sells laser, laser jet and
color jet printers, color and black and white monitors, and flatbed scanners.
PC Software. Egghead offers a wide variety of computer software packages in
the business and personal productivity, utility, language, educational and
entertainment categories, including word processing, spreadsheet, and database
software. Egghead also offers as many as 1,500 titles of software through
electronic distribution. This service allows the consumer to place on order for
selected software products online and to have the products downloaded directly
onto his or her PC through purely electronic means.
PC Accessories and Supplies. Egghead sells memory chips, disc drives, CD-
ROMs, multimedia accessories, modems, video and sound cards, cables and various
other computer accessories and supplies.
Consumer Electronics. Egghead sells televisions, audio and car stereo
equipment, facsimile machines, answering machines, telephones, video cameras and
photography equipment. The Company is continuing to expand its offerings of
consumer electronics.
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Consumer Warranties on Egghead Purchases. Egghead offers competitively
priced extended warranties for the majority of the PC hardware and consumer
electronics products sold through the Company's three web sites and direct
response division.
TECHNOLOGY
Egghead has implemented an array of site management, search, customer
interaction, transaction-processing and fulfillment services and systems using a
combination of its own proprietary technologies and third-party systems. The
Company's current strategy is to focus its resources on creating and enhancing
the current systems and to license commercially developed technology where
available and appropriate. The Company uses a set of applications for accepting
and validating customer orders, organizing placing and managing orders with
suppliers, managing inventory, assigning inventory to customer orders, creating
distribution processing instructions, managing shipment of product to customers
based on various order criteria and managing and tracking customer orders and
balances. These applications also manage the process of accepting, authorizing
and charging customer credit card orders with an address verification and
approval system provided by a third party.
Egghead uses a set of continuously running application programs that manage
the auctions and sales, update merchandise web pages to show the currently
winning bidders and list currently active and recent winning and losing bids.
Egghead has developed a set of e-mail applications for sending broadcast e-mails
to customers on a frequent basis. This software extracts e-mail addresses from
the Company's mailing list, sends e-mails to the designated recipients and
automatically services request from customers requesting to be added to or
removed from the mailing list.
A group of systems administrators and network managers monitor and operate
Egghead's three web sites, transaction processing systems and network
operations. The continued uninterrupted operation of the Egghead web sites and
transaction-processing systems is essential to its business and it is the job of
the site operations staff to ensure, to the greatest extent possible, their
reliability. Egghead uses the service of two Internet service providers to
obtain connectivity to the Internet over multiple dedicated lines.
For a description of certain management information system issues facing
the Company related to the Year 2000, see "Additional Factors that May Affect
Future Results Risks Relating to Year 2000 Compliance" and " Management's
Discussion and Analysis of Financial Condition and Results of Operations Year
2000 Compliance Information."
COMPETITION
The retailing of computers and related products is highly competitive.
Egghead expects competition to increase as retailers, vendors, manufacturers and
direct marketers who have not traditionally sold computer and related products
directly to the consumer through the Internet enter this market segment. The
electronic commerce market is new, rapidly evolving and intensely competitive,
and Egghead expects this to continue in the future. Egghead currently competes
with a variety of other companies which sell PC products and other consumer
goods through different sales formats to customers. These competitors include
(i) companies offering Internet auctions or sales, such as ONSALE, and
Microwarehouse, (ii) catalog companies such as CDW Computers Centers, Inc.,
Insight Enterprises, Inc., Multiple Zones, Inc. , and Creative Computers, Inc. ,
which also operate Internet commerce sites, (iii) traditional PC products
retailers including CompUSA and Computer City, (iv) manufacturers such as Dell
or Gateway Computers who sell directly to the consumer, and (v) other Internet
commerce reseller sites such as Software.net and Cyberian Outpost. There can be
no assurance that the Company will be able to compete successfully against
current and future competitors.
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Egghead believes that the principal competitive factors affecting its
market include its ability to secure merchandise for sale, attract new customers
to its site at favorable customer acquisition costs, operate its three web sites
in an uninterrupted manner, and develop and enhance its three web sites, and the
quality of customer service. Although the Company believes that it currently
competes with respect to such factors, there can be no assurance that Egghead
can maintain its competitive position against current or potential competitors,
especially those with greater financial, marketing, service, support, technical
and other resources than the Company's.
DISTRIBUTION
Distribution Center. Activities performed in Egghead's approximately
46,000 square feet of distribution space in Vancouver, Washington, include
receipt and shipping of product, packaging of computer systems, and processing
of returned products. As part of its previously announced retail store closure,
the Company closed its Sacramento, California warehouse facility on May 23,
1998.
Direct-Ship. Egghead has established relationships with some distributors
to direct ship products directly to the customer, which reduces physical
handling by the Company. Such direct shipments are not apparent to the
customer. This inventory management technique has allowed Egghead to offer a
greater range of products without increased inventory requirements or risk of
obsolescence.
CLOSURE OF RETAIL NETWORK AND DOWNSIZING
On January 28, 1998, Egghead announced a change of its name to Egghead.com,
Inc. and shifting of its business emphasis to Internet commerce. As part of this
transition, Egghead closed its remaining stores in its retail network on
February 28, 1998 and its distribution center in Sacramento, California on May
23, 1998. In addition, the Company combined its management and operations with
those of Surplus Direct, a subsidiary of the Company acquired on August 14,
1997. Related to this restructuring, the Company recorded, in the fourth
quarter of fiscal 1998, a one-time charge against earnings of $37.6 million.
The expense includes approximately $17.1 million for retail lease terminations
and related fixed asset disposals, $10.0 million for store closing costs, $6.2
million for the liquidation of inventory, $2.1 million for closure of the
Sacramento, California distribution center, and $2.2 million for severance,
fixed asset disposals and other miscellaneous expenses related to the reduction
of the Company's headquarters operation.
The closing of the Company's retail store network and the loss of ongoing
revenue from its retail stores, the combination of the management and operations
of the Company with those of Surplus Direct and the shift of the Company's
business emphasis to Internet commerce involve substantial risks. These
activities may cause management distraction and operational disruption. The
retail division of the Company contributed $216.3 million and $ 340.5 million in
net sales for fiscal years 1998 and 1997, respectively. Although the Company's
retail store division contributed a majority of the net revenues of the Company
during fiscal 1998 and 1997, the closure of the Company's retail store network
has eliminated the possibility of ongoing revenues and related operating
expenses associated with the Company's retail store channel. During fiscal 1998
and 1997, the retail store operating expenses, not including overhead of the
headquarters and distribution facilities, was approximately $29.0 million and
$50.0 million, respectively. There can be no assurance that the elimination of
the Company's retail store network as a source of revenue will not have a
material adverse effect on the Company's business, prospects, financial
condition and results of operations. Although the Company's Internet commerce
site sales have grown significantly in recent periods, these sales represent a
relatively small percentage of the Company's historical total sales and there
can be no assurance that similar growth, if any, will be obtained in the future.
In connection with the closure of the retail store division, the Company
also combined management and operations with the objective of reducing its
headquarters personnel and distribution costs. These actions are anticipated to
reduce headquarters and distribution expense by approximately $38.0 million on
an annualized basis as compared to fiscal 1998. There can be no assurance,
however, that such expense reductions will be achieved or that expenses will not
increase as a percentage of revenue. Actual results may differ materially from
those anticipated as a result of several factors, including, among others, risks
associated with the closing of the Company's retail network, risks associated
with
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the Company's limited Internet operating history and other factors set forth in
"Additional Factors that May Affect Future Results."
SALES TAX.
Egghead currently collects sales tax on sales of products delivered to
residents in the state of Washington. Various states have tried to impose, on
direct marketers, the burden of collecting sales taxes on the sale of products
shipped to state residents. The United States Supreme Court affirmed its
position that it is unlawful for a state to impose sales tax collection
obligations on an out-of-state mail order company whose only contacts with the
state are the distribution of catalogs and other advertising materials through
the mail and subsequent delivery of purchased goods from out of state locations
by parcel post and interstate common carriers. It is possible that legislation
may be passed to overturn the United State Supreme Court's decision or the Court
may change its position. Additionally, it is currently uncertain as to whether
electronic commerce, which will likely include the Company's Internet web sites'
sales activities, will be subject to state sales tax. The imposition of new
sales tax collection obligations on the Company in states to which it ships
products would result in additional administrative expenses to the Company and
could result in price increases to the customer and in a competitive
disadvantage.
TRADEMARKS AND TRADE NAMES
EGGHEAD(R)," "EGGSPERT(R)," "SURPLUS SOFTWARE(R)," "SURPLUS DIRECT(R)"
"All You Need to Know(R)," the "PROFESSOR EGGHEAD(R)," and the GRANNY
PINCHEPENNY designs and "EGGCESSORIES(R)" are registered in the United States
Patent and Trademark Office as service marks or trademarks of Egghead. Egghead
also does business under the trade names "Surplus Direct," "Surplus Auction,"
"Egghead Computer," "Egghead Software," "Egghead Discount Software," and "Mac's
Place at Egghead." In addition, Egghead is the owner of a number of common law
trademarks and service marks, including "SOFTWARE ASSET MANAGEMENT/SM/,"
"SAM/SM/," "CUE/SM/," "EGGHEAD(R) EXPRESS/TM)/," "EGG CARTON/TM/," and certain
"EGG" combination words. Egghead believes the strength of its trademarks and
service marks benefits its business and intends to continue to protect and
promote its registered and common law trademarks and service marks.
EMPLOYEES
As of March 28, 1998, the Company had approximately 337 employees,
including 102 employees who subsequently were terminated or left the Company in
connection with the restructuring. Egghead's employees are not represented by a
collective bargaining unit. Egghead believes that its employee relations are
generally good. Competition for qualified personnel in the Company's industry
is intense, particularly for software development and other technical staff.
The Company believes that its future success will depend in part on its
continued ability to attract, hire and retain qualified personnel. See
"Additional Factors that May Affect Future Results Management of Growth" and "-
Dependence on Key Personnel."
ADDITIONAL FACTORS THAT MAY AFFECT FUTURE RESULTS
In addition to other information contained in this filing on Form 10-K, the
following factors could affect the Company's actual results and could cause such
results to differ materially from those achieved in the past or expressed in the
Company's forward-looking statements.
Company's Limited Internet Operating History; Anticipated Losses
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Egghead recently shifted its business emphasis to the Internet and closed
its remaining retail store network. Egghead has a limited operating history on
which to base an evaluation of its business and prospects as an Internet
commerce-based company. Egghead's prospects must be considered in light of the
risks, expenses and difficulties frequently encountered by companies in their
early stage of development and growth, particularly companies in new and rapidly
evolving markets such as online commerce. Such risks for Egghead include, but
are not limited to, an evolving and unpredictable business model and the
management of growth. To address these risks, Egghead must, among other things,
maintain and increase its customer base, implement and successfully execute its
business and marketing strategy, continue to develop and upgrade its technology
and transaction-processing systems, improve its web sites, provide superior
customer service and order fulfillment, respond to competitive developments and
attract, retain and motivate qualified personnel. There can be no assurance
that Egghead will be successful in addressing such risks.
Egghead's revenue depends substantially upon the level of visits to the web
sites and the level of sales and bidding activity on its auction site, which is
in turn related to the expansion of the Company's customer base and the
availability of merchandise from the Company's vendors. This availability is
difficult to forecast with any degree of certainty. Accordingly, a substantial
reduction in merchandise availability would have a material adverse effect on
the Company's business, prospects, financial condition and results of
operations. In addition, the Company has plans to expand marketing efforts to
enhance its brand name, increase its visibility on other companies' web sites,
purchase larger volumes of merchandise to be sold on the sites, improve and
enhance its technology and transaction-processing systems and support its
infrastructure which may result in operating expenses that are higher than its
current levels. As a result, Egghead expects to experience substantial
quarterly net losses through at least the year 2000. There can be no assurance
that increases in such operating expenses will be offset by increased revenues;
accordingly, Egghead's business, prospects, financial condition and results of
operations could be materially adversely effected. Further, in view of the
rapidly evolving nature of Egghead's business and its limited Internet operating
history, the Company believes that period-to-period comparisons of its operating
results, including the Company's gross profit and operating expenses as a
percentage of net sales, are not necessarily meaningful and should not be relied
upon as an indication of future performance.
Rapid Evolution of Internet Commerce and Related Technology.
The Internet and electronic commerce industries are characterized by rapid
technological change, changes in user and customer requirements, frequent new
service or product introductions embodying new technologies, and the emergence
of new industry standards and practices that could render Egghead's web sites
and the technology they utilize obsolete. To remain competitive, the Company
must continue to enhance and improve the responsiveness, functionality and
features of the Egghead web sites. The Company's success will depend, in part,
on its ability to license leading technologies useful in its business, enhance
its existing services, develop new services and technology that address the
increasingly sophisticated and varied needs of its prospective customers and
respond to technological advances and emerging industry standards and practices
on a cost-effective and timely basis. The development of web site and other
proprietary technology entails significant technical, financial and business
risks. There can be no assurance that Egghead will successfully implement new
technologies or adapt its web sites, proprietary technology and transaction-
processing systems to customer requirements or emerging industry standards. If
Egghead is unable, for technical, legal, financial or other reasons, to adapt in
a timely manner in response to changing market conditions or customer
requirements, such inability could have a material adverse effect on the
Company's business, prospects, financial condition and results of operations.
The success of Egghead's services will depend in large part upon the
continued development of an infrastructure for providing Internet access and
services. The Internet could lose its viability due to delays in the
development or adoption of new standards and protocols intended to handle
increased levels of Internet activity or due to governmental regulation. There
can be no assurance that the infrastructure or complementary services necessary
to make the Internet a viable commercial marketplace will be developed or that,
if they are developed, the Internet will become a viable marketing and sales
channel for the types of products and services that Egghead offers on its web
sites. If the infrastructure or complementary services necessary to make the
Internet a viable commercial marketplace are not
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developed or if the Internet does not become a viable commercial marketplace,
the Company's business, prospects, financial condition and results of operations
may be materially adversely effected.
Management of Potential Growth.
Egghead is operating in the rapidly evolving and changing industry of
online commerce and, therefore, anticipates that further expansion may be
required to address potential growth in its customer base, to expand its product
and service offerings and to pursue other market opportunities. In order to
manage the expected growth of its operations, the Company may be required to
expand existing operations, particularly with respect to customer service and
merchandising, to improve existing and implement new operational, financial and
inventory systems, procedures and controls on a timely basis and to train,
manage and expand its employee base. Further, Egghead's management will be
required to maintain relationships with various merchandise vendors, freight
companies, warehouse operators, other web sites and services, Internet service
providers, and other third parties to maintain control over the strategic
direction of the Company in a rapidly changing environment. The Company has
recently reduced its work force in connection with its restructuring and closure
of its remaining retail stores and the Sacramento distribution center. There
can be no assurance that Egghead's current personnel, systems, procedures and
controls will be adequate to support the Company's future operations, that
management will be able to identify, hire, train, retain, motivate and manage
required personnel or that management will be able to manage and exploit
existing and potential market opportunities successfully. If Egghead is unable
to manage growth effectively, the Company's business, prospects, financial
condition and results of operations may be materially adversely effected.
Competition.
The retailing of computers and related products is highly competitive.
Egghead expects competition to increase as retailers, vendors, manufacturers and
direct marketers who have not traditionally sold computer and related products
directly to the consumer through the Internet enter this market segment. The
electronic commerce market is new, rapidly evolving and intensely competitive,
and Egghead expects this to continue in the future. Egghead currently competes
with a variety of other companies which sell PC products and other consumer
goods through different sales formats to customers. These competitors include
(i) companies offering Internet auctions or sales, such as ONSALE, and
Microwarehouse, (ii) catalog companies such as CDW Computers Centers, Inc.,
Insight Enterprises, Inc., Multiple Zones, Inc. , and Creative Computers, Inc.,
which also operate Internet commerce sites, (iii) traditional PC products
retailers including CompUSA and Computer City, (iv) manufacturers such as Dell
or Gateway Computers who sell directly to the consumer, and (v) other Internet
commerce reseller sites such as Software.net and Cyberian Outpost. There can be
no assurance that the Company will be able to compete successfully against
current and future competitors.
Egghead believes that the principal competitive factors affecting its
market include its ability to secure merchandise for sale, attract new customers
to its site at favorable customer acquisition costs, operate its three web sites
in an uninterrupted manner, and develop and enhance its three web sites, and the
quality of customer service. Although the Company believes that it currently
competes adequately with respect to such factors, there can be no assurance that
Egghead can maintain its competitive position against current or potential
competitors, especially those with greater financial, marketing, service,
support, technical and other resources than the Company's.
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Current and potential competitors have established or may establish
cooperative relationships among themselves or directly with vendors to obtain
exclusive or semi-exclusive sources of merchandise. Accordingly, it is possible
that new competitors or alliances among competitors and vendors may emerge and
rapidly acquire market share. In addition, manufacturers might elect to sell or
liquidate their products directly over the Internet. Increased competition is
likely to result in reduced operating margins, loss of market share and a
diminished brand franchise, any one of which could materially adversely affect
the Company's business, prospects, financial condition and results of
operations. Many of the Company's current and potential competitors have
significantly greater financial, technical, marketing and other resources than
Egghead. As a result, they may be able to secure merchandise from vendors on
more favorable terms than the Company, and they may be able to respond more
quickly to changes in customer preference or to devote greater resources to the
development, promotion and sales of their merchandise than can the Company.
There can be no assurance that the Company will be able to compete successfully
against current and future competitors.
Business Interruption; Reliance on Management Information Systems.
The Company's success is largely dependent upon its communications
equipment and computer hardware, substantially all of which is located at a
leased facility in Hood River, Oregon. The Company's systems are vulnerable to
damage from fire, floods, power loss, telecommunications failures, break-ins and
similar events. Egghead's coverage limits on its property and business
interruption insurance may not be adequate to compensate the Company for losses
that may occur. Despite the implementation of network security measures by the
Company, its servers are vulnerable to computer viruses, physical or electrical
break-ins, attempts by third parties deliberately to exceed the capacity of the
Company's systems and similar disruptive problems. Computer viruses, break-ins
or other problems could lead to interruption, delays, loss of data or the
inability to accept and confirm customer orders. Although Egghead has full data
backup , a substantial interruption in these systems or in the Company's
telephone communication systems would have a material adverse effect on the
Company's business, prospects, financial condition and results of operations.
Market Acceptance of Internet Commerce.
The market for Internet products and services has only recently begun to
develop and is rapidly changing. As is typical for a new and rapidly evolving
industry, demand and market acceptance for recently introduced services and
products over the Internet are subject to a high level of uncertainty and there
exist few proven services and products. The success of Egghead's web sites will
depend upon the adoption of the Internet as a medium for commerce by a broad
base of consumers and vendors. There can be no assurance that widespread
acceptance of Internet commerce in general, or of Egghead's web sites in
particular, will occur. Egghead has historically relied on consumers and
vendors who have historically used traditional means of commerce to purchase
merchandise. For the Company to be successful, these consumers and vendors must
accept and utilize new ways of conducting business and exchanging information.
In addition, vendors must be persuaded to adopt new selling models. Moreover,
critical issues concerning the commercial use of the Internet, such as ease of
access, security, reliability, cost and quality of service, remain unresolved
and may effect the growth of Internet use or the attractiveness of conducting
commerce online. There can be no assurance that there will be broad acceptance
of the Internet as an effective medium for commerce by consumers and vendors or
that the markets for Egghead's web sites will develop successfully or achieve
widespread acceptance. If the market for Internet-based online commerce fails
to develop, develops more slowly than expected or becomes saturated with
competitors, or if the Company's web sites do not achieve market acceptance,
Egghead's business, prospects, financial condition and results of operations may
be materially adversely effected.
Internet Commerce Security Risk.
A significant barrier to electronic commerce and communications is the
secure transmission of confidential information over public networks. Egghead
relies on encryption and authentication technology licensed from third parties
to provide the security and authentication necessary to effect secure
transmission of confidential information. There can be no assurance that
advances in computer capabilities, new discoveries in the field of cryptography
or other events or developments will not result in a compromise or breach of the
algorithms used by the Company to protect customer transaction data. If any
such compromise of the Company's security were to occur, it would have a
material adverse
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effect on the Company's business, prospects, financial condition and results of
operations. A party who is able to circumvent the Company's security measures
could misappropriate proprietary information or cause interruption in the
Company's operations. Egghead may be required to expend significant capital and
other resources to protect against the threat of such security breaches or to
alleviate problems caused by such breaches. Concerns over security of Internet
transactions and the privacy of users may also inhibit the growth of the
Internet generally, and the web in particular, especially as a means of
conducting commercial transactions. To the extent that activities of the Company
or third party contractors involve the storage and transmission of proprietary
information such as credit card numbers, security breaches could expose the
Company to a risk of loss or litigation and possible liability. There can be no
assurance that the Company's security measures will prevent security breaches or
that failure to prevent such security breaches will not have a material adverse
effect on the Company's business, prospects, financial condition or results of
operations.
Dependence on Vendors, Distributors and Certain Supply Sources.
Egghead is currently entirely dependent upon vendors to supply it with
merchandise for sale through the Company's three web sites. The Company
acquires products for resale both directly from manufacturers and indirectly
through distributors. Purchases from Ingram Micro, Inc., a distributor of
computers and related products, accounted for approximately 11% of the Company's
aggregate merchandise purchases for fiscal 1998. No other supplier accounted
for more than 7.5% of purchases in fiscal 1998. Egghead has no long-term
contracts or arrangements with its vendors that guarantee availability of
merchandise for its web sites. There can be no assurance that the Company's
current vendors will continue to sell merchandise to Egghead or otherwise to
provide merchandise for resale by the Company or that Egghead will be able to
establish new vendor relationships that ensure merchandise will be available for
resale by the Company. Egghead also relies on many of its vendors to ship
merchandise to customers. The Company has limited control over the shipping
procedures of its vendors, and shipments by these vendors have often been
subject to delays. Although most merchandise sold by Egghead carries a warranty
supplied either by the manufacturer or the vendor and the Company is not
obligated to accept merchandise returns, Egghead in fact has accepted returns
from customers for which the Company did not receive reimbursements from its
vendors or manufacturers. If the Company is unable to develop and maintain
satisfactory relationships with vendors on acceptable commercial terms, if the
Company is unable to obtain sufficient quantities of merchandise, if the quality
of service provided by such vendors falls below a satisfactory standard or if
the Company's level of returns exceeds its expectations, the Company's business,
prospects, financial condition, and results of operations will be materially
adversely effected.
Reliance on Third Parties.
In addition to its merchandise vendors, Egghead's operation depends on a
number of third parties. Egghead has limited control over these third parties.
The Company does not own a gateway onto the Internet, but instead relies on an
Internet service provider to connect Egghead's web sites to the Internet. From
time to time, Egghead has experienced temporary interruptions in its web site
connection and also its telecommunications access. Continuous or prolonged
interruptions in the Company's web site connections or in its telecommunications
access would have a material adverse effect on the Company's business,
prospects, financial condition and results of operations. Egghead's web site
software depends on operating systems, data base and server software that was
developed and produced by and licensed from third parties. The Company has from
time to time discovered errors and defects in the software from third parties
and, in part, relies on these third parties to correct these errors and defects
in a timely manner. A significant portion of the sales for which Egghead is
responsible is fulfilled by third party distribution centers. Accordingly, any
service interruptions experienced by these warehouses as a result of labor
problems or otherwise could have a material adverse effect on the Company's
business, prospects, financial condition and results of operations. Egghead
uses United Parcel Service as its primary delivery service for its products.
Should United Parcel Service or any other material carrier be unable to deliver
the Company's products for a sustained time period as a result of a strike or
other reasons, Egghead's business, prospects, financial condition or results of
operations may be adversely effected. First USA Bank, through its relationship
with Paymentech, is the Company's sole processor of credit card transactions.
If the Company is unable to develop and maintain satisfactory relationships with
such third parties on acceptable commercial terms, or the quality of products
and services provided by such third parties falls below a satisfactory standard,
the Company's business, prospects, financial condition and results of operations
may be materially adversely effected.
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Dependence on Key Personnel.
The Company's performance is substantially dependent on the continued
services and on the performance of its senior management and other key
personnel, particularly George P. Orban, its Chief Executive Officer and
Chairman of the Board. The Company's employment contract with Mr. Orban will
expire on August 31, 1998. Mr. Orban has an option to continue with the Company
for an additional five months as an independent contractor. The loss of
services of any of its executive officers or other key employees could have a
material adverse effect on the Company's business, prospects, financial
condition or results of operations.
Risks Associated with the Closing of the Retail Network and Subsequent Loss of
Ongoing Retail Revenue.
On January 28, 1998, Egghead announced a change of its name to Egghead.com,
Inc. and shifting of its business emphasis to Internet commerce. In this
transition, Egghead closed its remaining retail store network and its
distribution center in Sacramento, California. In addition, the Company
combined its management and operations with those of Surplus Direct, a
subsidiary of the Company acquired on August 14, 1997. The Company recorded a
one-time charge against earnings of $37.6 million in the fourth quarter ending
March 28, 1998, related to this restructuring. The expense includes
approximately $17.1 million for retail lease terminations and related fixed
asset disposals, $10.0 million for store closing costs, $6.2 million for the
liquidation of inventory, $2.1 million for closure of the Sacramento, California
warehouse, and $2.2 million severance, fixed asset disposals and other
miscellaneous expenses related to the reduction of the Company's headquarters
operation. The closing of the Company's retail store network and the loss of
ongoing revenue from its retail stores, the combination of the management and
operations of the Company with those of Surplus Direct and the shift of the
Company's business emphasis to Internet commerce involve substantial risks.
These activities may cause management distraction and operational disruption.
The retail division of the Company contributed $216.3 million and $340.5 million
in net sales for fiscal years 1998 and 1997, respectively. Although the
Company's retail store division contributed a majority of the net revenues of
the Company during fiscal 1998 and 1997, the closure of the Company's retail
store network has eliminated the possibility of ongoing revenues and related
operating expenses associated with the Company's retail store channel. There
can be no assurance that the elimination of the Company's retail store network
as a source of revenue will not have a material adverse effect on the Company's
business, prospects, financial condition and results of operations. Although
the Company's Internet commerce site sales have grown significantly in recent
periods, these sales represent a relatively small percentage of the Company's
historical total sales and there can be no assurance that similar growth, if
any, will be obtained in the future.
Risks Relating to Year 2000 Compliance.
Several currently installed computer systems and software products,
including several used by Egghead, are coded to accept only two digit entries in
the date code field. Beginning in the year 2000, these date code fields will
need to accept four digit entries to distinguish 21st century dates from 20th
century dates. Therefore, the Company's date critical functions related to the
year 2000 and beyond, such as sales, distribution, purchasing, inventory
control, marketing, product management and financial systems may be adversely
affected unless these computer systems are or become year 2000 compliant.
Egghead is in the process of preparing its computer-based systems for the year
2000 and is developing a plan to utilize both internal and external resources,
to identify, correct, replace or reprogram, and test its systems for year 2000
compliance in advance of the year 2000. In addition, the Company has begun
upgrading certain critical data processing systems and, to the extent necessary,
is evaluating a possible replacement of various existing software applications
over the next two years with software that would be year 2000 compliant.
Egghead continues to evaluate the estimated costs associated with these efforts
based on the costs of past programming changes and does not expect the future
costs of resolving its internal year 2000 problems to be material. The Company
currently expects the project to be complete in 1999. However, no assurance can
be given that the Company's computer systems will be year 2000 compliant in a
timely manner or that the Company will not incur significant additional expenses
pursuing year 2000 compliance. Furthermore, even if the Company's systems are
year 2000 compliant, there can be no assurance that the Company will
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not be adversely affected by the failure of other companies and third party
service providers to become year 2000 compliant or by the failure of the
Company's vendors to provide year 2000 compliant products for resale by Egghead.
There can be no guarantee that the systems of other companies, on which the
Company relies, will be converted timely and will not have an adverse effect on
the Company's systems. Despite the Company's efforts to date, there can be no
assurance that the year 2000 problem will not have a material adverse effect on
Egghead in the future.
Risks Associated With Domain Names.
The Company currently holds various web domain names relating to its brand,
including the Egghead.com, Suplusdirect.com and Surplusauction.com domain names.
The acquisition and maintenance of domain names generally is regulated by
governmental agencies and their designees. For example, in the United States,
the National Science Foundation has appointed Network Solutions, Inc. as the
exclusive registrar for the ".com," ".net," and ".org" generic top-level
domains. The regulation of domain names in the United States and in foreign
countries is subject to change. Governing bodies may establish additional top-
level domains, appoint additional domain name registrars or modify the
requirements for holding domain names. As a result, there can be no assurance
that the Company will be able to acquire or maintain relevant domain names in
all countries in which it conducts business. Furthermore, the relationship
between regulations governing domain names and laws protecting trademarks and
similar proprietary rights is unclear. The Company, therefore, may be unable to
prevent third parties from acquiring domain names that are similar to, infringe
upon or otherwise decrease the value of its trademarks and other proprietary
rights. Any such inability could have a material adverse effect on the
Company's business, prospects, financial condition or results of operations.
Government Regulation and Legal Uncertainties.
Egghead is not currently subject to direct regulation by any domestic or
foreign governmental agency, other than regulations applicable to businesses
generally and laws or regulations directly applicable to access to online
commerce. However, due to the increasing popularity and use of the Internet and
other online services, it is possible that a number of laws and regulations may
be adopted with respect to the Internet or other online services covering issues
such as user privacy, pricing, content, copyrights, distribution and
characteristics and quality of products and services. Furthermore, the growth
and development of the market for online commerce may prompt calls for more
stringent consumer protection laws that may impose additional burdens on those
companies conducting business online. The adoption of any additional laws or
regulations may decrease the growth of the Internet or other online services,
which could, in turn, decrease the demand for the Company's products and
services, which could increase Egghead's cost of doing business, or otherwise
have an adverse effect on the Company's business, prospects, financial condition
and results of operations. Moreover, the applicability to the Internet and
other online services of existing laws in various jurisdictions governing issues
such as property ownership, sales and other taxes, libel and personal privacy is
uncertain and may take years to resolve. In addition, as Egghead's service is
available over the Internet in multiple states and can be accessed in foreign
countries, and as Egghead sells to numerous consumers resident in such states
and if in the future it sells into foreign countries, such jurisdictions may
claim that the Company is required to qualify to do business as a foreign
corporation in each such state and foreign country. The web sites are currently
qualified to do business in two states and failure by the Company to qualify as
a foreign corporation in a jurisdiction which subsequently claims it is required
to do so could subject the Company to taxes and penalties. Any such new
legislation or regulation, the application of laws and regulations from
jurisdictions whose laws do not currently apply to the Company's business, or
the application of existing laws and regulations to the Internet and other
online services could have a material adverse effect on the Company's business,
prospects, financial condition and results of operations.
Risks of International Expansion.
Egghead, over time, intends to expand its presence in foreign markets. To
date, the Company has only limited experience in sourcing, marketing and
distributing products on an international basis and in developing localized
versions of its web sites and other systems. Egghead is currently exploring
options for expanding internationally, including, but
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not limited to establishing international facilities and operations, promoting
its brand internationally, developing localized versions of its three web sites,
sourcing product distribution and cash settlements to third party providers and
determining other needs for sourcing, marketing and distributing products in
foreign markets. The Company may incur substantial costs in implementing its
final plans for international expansion. There can be no assurance that the
Company's international efforts will be successful. If the revenues resulting
from international activities are inadequate to offset the expense of
establishing and maintaining foreign operations, such inadequacy could have a
material adverse effect on the Company's business, prospects, financial
condition and results of operations. In addition, there are certain risks
inherent in doing business on an international level, such as unexpected changes
in regulatory requirements, export and import restrictions, tariffs and other
trade barriers, difficulties in staffing and managing foreign operations, longer
payment cycles, political instability, fluctuations in currency exchange rates,
seasonal reductions in business activity in other parts of the world and
potentially adverse tax consequences, any of which could adversely impact the
success of the Company's international operations and, consequently, the
Company's business, prospects, financial condition and results of operations.
ITEM 2. PROPERTIES
Egghead's principal, merchandising and marketing facilities are located in
Portland, Oregon under leases that expire February 2001. The Portland leases
can be terminated upon 90 days notice. The Company's engineering and customer
service facilities are located in Hood River, Oregon under leases that expire
February 1999. The accounting, legal and human resource facilities of Egghead
are located in Liberty Lake, Washington under a lease that expires October 1998
with automatic renewals through April 1999. The Company's primary warehousing
operations are housed in an approximately 46,000 square-foot facility in
Vancouver, Washington under a lease that expires in July 1999. The Company
closed its distribution facility in Sacramento, California on May 23, 1998 in
connection with the closure of the retail store network and related corporate
restructuring. The Company anticipates that it will require additional
administrative, customer service, engineering and merchandising space within the
next 18 months, but that suitable additional space will be available on
commercially reasonable terms, although there can be no assurance in this
regard. The Company also owns a commercial building in Kalispell, Montana,
which is currently being marketed for sale. Egghead sold its commercial
building in Liberty Lake Washington, previously the Company's administrative
headquarters, on May 1, 1998 for approximately $7.5 million. Compliance with
federal, state and local laws enacted for protection of the environment has had
no material effect on Egghead's capital expenditures, earnings or competitive
position. Egghead does not anticipate any material adverse effects in the
future based on the nature of its operations and the current focus of such laws.
ITEM 3. LEGAL PROCEEDINGS
On May 4, 1998, a complaint was filed naming the Company's wholly owned
subsidiary, Surplus Direct, as a defendant. The complaint alleges breach of
contract, promissory, estoppel, a claim for lost wages, misrepresentation, and
unlawful employment practices. The plaintiffs in this lawsuit are five of
Surplus Direct's former employees. A former manager of Surplus Direct is also
named individually in the complaint. The suit alleges that Surplus Direct
failed to act in good faith and fair dealing, and used unlawful employment
practices that included national origin and age discrimination, and wrongful
termination. The plaintiffs collectively seek damages in an amount exceeding
$1.1 million, plus attorneys' fees. The suit was filed in the Multnomah County
Circuit Court of the State of Oregon. The Company intends to defend itself
against the lawsuit vigorously.
Various claims and lawsuits arising in the normal course of business are
pending against the Company. The subject matter of these proceedings primarily
includes commercial disputes and employment issues. The results of these
proceedings described above are not expected to have a material adverse effect
on the Company's consolidated financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders in the fourth
quarter of fiscal year 1998.
18
<PAGE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER
MATTERS
MARKET AND MARKET PRICE FOR COMMON STOCK
Egghead's common stock, $0.01 par value, is traded over the counter under
the symbol EGGS and is quoted as part of the NASDAQ National Market System.
The Egghead common shares are quoted on the NASDAQ National Market. The
table below sets forth for the periods indicated the high and low sale prices
per Egghead common share on the NASDAQ National Market as reported in published
financial sources. For current price information, the Egghead shareholders are
urged to consult publicly available sources.
<TABLE>
<CAPTION>
HIGH LOW
---- ---
<S> <C> <C>
FISCAL 1998 (ENDED MARCH 28, 1998):
Fourth Quarter.................................... $12.19 $5.88
Third Quarter..................................... 11.00 5.94
Second Quarter.................................... 9.75 3.81
First Quarter..................................... 5.13 3.75
FISCAL 1997 (ENDED MARCH 29, 1997):
Fourth Quarter.................................... 6.00 4.38
Third Quarter..................................... 6.63 5.00
Second Quarter.................................... 10.88 5.88
First Quarter..................................... 13.63 9.50
</TABLE>
HOLDERS
The approximate number of holders of record of Egghead's common stock as
recorded on the books of Egghead's Registrar and Transfer Agent as of May 23,
1998 was 1,050.
DIVIDENDS
No cash dividends were declared or paid by Egghead during any of the
periods presented above. Egghead presently does not intend to pay any cash
dividends in the foreseeable future, but intends to retain all earnings for use
in its business operations.
19
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The following selected historical financial data of Egghead have been
derived from Egghead's historical consolidated financial statements. Egghead
uses a 52/53-week fiscal year ending on the Saturday nearest March 31. All
Statement of Operations amounts reflect the Corporate, Government and Education
division activities as discontinued operations as this division was sold on May
13, 1996. The selected financial data presented below should be read in
conjunction with such consolidated financial statements and the notes thereto.
See also " Management's Discussion and Analysis of Financial Condition and
Results of Operations General" and "--Closure of Retail Network and
Downsizing."
<TABLE>
<CAPTION>
STATEMENT OF OPERATIONS DATA:
FISCAL YEAR
-----------------------------------------------------------
1994 1995 1996 1997 1998
<S> <C> <C> <C> <C> <C>
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
CONSOLIDATED STATEMENT OF
OPERATIONS DATA:
Net sales...................................................... $373,510 $434,021 $403,841 $360,715 $293,079
Cost of sales................................................. 303,039 361,567 334,579 304,251 257,175
-------- -------- -------- -------- --------
Gross margin................................................... 70,471 72,454 69,262 56,464 35,904
Selling and marketing expense.................................. 56,627 54,256 60,363 57,352 48,571
General and administrative expense............................. 19,464 19,594 22,133 24,065 19,495
Depreciation and amortization expenses......................... 7,603 7,363 7,569 7,352 5,809
Provision for restructuring and impairment costs............... -- -- -- 15,597 19,500
Provision for shareholder litigation........................... 1,200 -- -- -- --
-------- -------- -------- -------- --------
Operating loss................................................. (14,423) (8,759) (20,803) (47,902) (57,471)
Theft insurance recovery....................................... -- 1,650 -- -- --
Other (expense) income......................................... 723 1,712 2,652 3,729 2,940
-------- -------- -------- -------- --------
Loss from continuing operations before income taxes............ (13,700) (5,397) (18,151) (44,173) (54,531)
Income tax benefit (provision)................................. 5,343 2,106 7,030 (4,788) -
-------- -------- -------- -------- --------
Loss from continuing operations................................ (8,357) (3,291) (11,121) (48,961) (54,531)
Income (loss) from discontinued operations, net of tax......... 7,843 5,959 376 (12,254) 4,300
Gain on disposal of discontinued operations, net of tax........ -- -- -- 22,286
-------- -------- -------- --------
Income (loss) from discontinued operations..................... 7,843 5,959 376 10,032 4,300
-------- -------- -------- -------- --------
Net income (loss) before cumulative effect of change in
accounting principles......................................... (514) 2,668 (10,745) (38,929) (50,231)
Cumulative effect of change in accounting principles, net of
tax........................................................... -- -- -- (711)
-------- -------- -------- -------- --------
Net income (loss).............................................. $ (514) $ 2,668 $(10,745) $(39,640) $(50,231)
======== ======== ======== ======== ========
Basic earnings (loss) per share:
Continuing operations........................................ $ (0.49) $ (0.19) $ (0.64) $ (2.78) $ $(2.60)
Discontinued operations, net................................. $ 0.46 $ 0.34 $ 0.02 $ .57 $ 0.20
Cumulative effect of change in accounting principle, net..... -- -- -- (.04) --
-------- -------- -------- -------- --------
Net income (loss) per share.................................... $ (0.03) $ 0.15 $ (0.62) $ (2.25) $ (2.40)
======== ======== ======== ======== ========
<CAPTION>
OPERATING DATA:
Number of retail stores:
<S> <C> <C> <C> <C> <C>
Open at end of period.......................................... 189 169 164 87 0
Opened during period........................................... 3 -- 10 7 2
Closed during period........................................... 19 20 15 84 89
Weighted average number open during period(1).................. 197 178 166 145 78
BALANCE SHEET DATA:
Total assets................................................. $256,010 $270,141 $281,555 $175,520 $131,387
Shareholders' equity......................................... 143,416 146,416 139,269 100,047 86,087
</TABLE>
_______________
(1) Calculated by dividing the total number of store months open during the
period by 12.
20
<PAGE>
See Notes to Consolidated Financial Statements.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
This Annual Report on Form 10-K and the documents incorporated herein by
reference contain forward-looking statements based on current expectations,
estimates and projections about the Company's industry, management's beliefs and
certain assumptions made by management. When used in this report and elsewhere
by management, from time to time, the words "believes," "plans," estimates,"
"intends," "anticipates," "seeks," and "expects" and similar expressions are
intended to identify forward-looking statements. These forward-looking
statements are not guarantees of future performance and are subject to certain
risks and uncertainties that are difficult to predict. Accordingly, actual
results may differ materially from those anticipated or expressed in such
statements. Potential risks and uncertainties include, among others, those set
forth herein under "Additional Factors That May Affect Future Results."
Particular attention should be paid to the cautionary statements involving the
Company's limited Internet operating history, the rapid evolution of Internet
commerce and related technology, management of potential growth, the intensely
competitive nature of the business of selling PC software, hardware and related
products, and of the electronic commerce business, Egghead's dependence on
vendors, distributors and certain supply sources and risks associated with the
closing of the Company's retail store network and the combination of the
management and operations of the Company with those of Surplus Direct. Readers
are cautioned not to place undue reliance on the forward-looking statements,
which speak only as of the date made. Except as required by law, the Company
undertakes no obligation to update any forward-looking statement, whether as a
result of new information, future events or otherwise. Readers, however, should
carefully review the factors set forth in other reports or documents that the
Company files from time to time with the SEC.
GENERAL
Egghead is one of the leading on-line resellers of PC hardware, software,
peripherals and accessories to consumers and businesses. The Company sells a
broad selection of PC hardware and software products, as well as other consumer
merchandise, through three Internet websites, the Egghead.com site, the
Surplusdirect.com site and the Surplusauction.com site, and a direct response
division. These products consist of current and off-price merchandise including
excess, closeout, refurbished, and reconditioned goods. In order to enhance its
Internet presence and expand its product offering, Egghead acquired Surplus
Direct on August 14, 1997. On January 28, 1998, Egghead announced that it would
change its name to Egghead.com, Inc.; shift its business emphasis to Internet
commerce; close its remaining retail network of 80 stores; close its
distribution center in Sacramento, California; and combine its management and
operations with those of Surplus Direct.
Egghead, a Washington corporation, was incorporated in 1988 and is the
successor to a corporation that was incorporated in Washington in 1984. Unless
the context indicates otherwise, references to Egghead or the Company include
Egghead and its wholly owned subsidiaries.
Egghead operates three electronic commerce sites, Egghead.com,
Surplusdirect.com and Surplusauction.com, which in the aggregate were ranked by
PC Meter as the sixth most visited at-home shopping sites on the Internet during
May 1998. These interlinked web sites represent Egghead's Internet
"superstore," where customers can choose from a large assortment of products,
sourced, priced and configured to meet a wide variety of needs.
Egghead also operates a 1-800 customer service center which responds to
inbound telephone calls and inquiries from consumers as well as corporate,
government, reseller and educational institution customers and takes orders for
the same hardware and software products that are offered on the Company's web
sites. These inquiries are mainly generated by the Company's promotional
efforts which include both online and traditional advertising, principally
through the
21
<PAGE>
limited circulation of its catalogs. Egghead ships merchandise purchased through
the 1-800 service directly to the customer from Egghead's distribution center in
Vancouver, Washington or from third-party distributors.
The Company's web sites and 1-800 customer service center are referenced as
"ongoing" operations in the following discussion of financial condition and
results of operations. "Continuing" operations includes the retail store network
during its existence and the ongoing operations, but excludes the corporate,
government and educational (`CGE") division which the Company sold in FY 97 and
the CGE division is referred to as "discontinued" operations
CLOSURE OF RETAIL NETWORK AND DOWNSIZING
The Company recorded a loss from continuing operations of $11.1 million in
fiscal 1996. During fiscal 1997, the Company sold the CGE division for $45.0
million, not including proceeds from collection of related accounts receivable
and liquidation of related inventory. In response to retail store network
losses, in February 1998, Egghead closed 70 retail stores and recorded a related
$24.0 million restructuring and asset impairment charge in fiscal 1997.
Including these charges, the Company's fiscal 1997 loss from continuing
operations was $49.0 million. During fiscal 1998, the Company operated up to 89
retail stores, a direct response and catalog/mail-order center and a limited
Internet commerce department. On January 28, 1998, Egghead announced a change
of its name to Egghead.com, Inc. and shifting of its business emphasis to
Internet commerce. As part of this transition, Egghead closed the remaining
stores in its retail network on February 28, 1998 and its distribution center in
Sacramento, California on May 23, 1998. In addition, the Company combined its
management and operations with those of Surplus Direct, a subsidiary of the
Company acquired on August 14, 1997. Related to this restructuring, the Company
recorded, in the fourth quarter of fiscal 1998, a one-time charge against
earnings of $37.6 million. The expense includes approximately $17.1 million
for retail lease terminations and related fixed asset disposals, $10.0 million
for store closing costs, $6.2 million for the liquidation of inventory, $2.1
million for closure of the Sacramento, California distribution center, and $2.2
million for severance, fixed asset disposals and other miscellaneous expenses
related to the reduction of the Company's headquarters operation.
The closing of the Company's retail store network and the loss of ongoing
revenue from its retail stores, the combination of the management and operations
of the Company with those of Surplus Direct and the shift of the Company's
business emphasis to Internet commerce involve substantial risks. These
activities may cause management distraction and operational disruption. The
retail division of the Company contributed $216.3 million and $340.5 million in
net sales and $25.6 million and $52.8 million of gross margin for fiscal years
1998 and 1997, respectively. Although the Company's retail store division
contributed a majority of the net revenues of the Company during fiscal 1998 and
1997, the closure of the Company's retail store network has eliminated the
possibility of ongoing revenues and related operating expenses associated with
the Company's retail store channel. During fiscal 1998 and 1997, the retail
store operating expenses, not including overhead of the headquarters and
distribution facilities, were approximately $29.0 million and $50.0 million,
respectively. There can be no assurance that the elimination of the Company's
retail store network as a source of revenue will not have a material adverse
effect on the Company's business, prospects, financial condition and results of
operations. Although the Company's Internet commerce site sales have grown
significantly in recent periods, these sales represent a relatively small
percentage of the Company's historical total sales and there can be no assurance
that similar growth, if any, will be obtained in the future.
In connection with the closure of the retail store division, the Company
also combined management and operations with the objective of reducing its
headquarters personnel and distribution costs. These actions are anticipated to
reduce headquarters and distribution expense by approximately $38.0 million on
an annualized basis as compared to fiscal 1998. There can be no assurance,
however, that such expense reductions will be achieved or that expenses will not
increase as a percentage of revenue. Actual results may differ materially from
those anticipated as a result of several factors, including, among others, risks
associated with the closing of the Company's retail network, risks associated
with the Company's limited Internet operating history and other factors set
forth in "Additional Factors that May Affect Future Results."
22
<PAGE>
RESULTS OF OPERATIONS
Overview
Egghead reported a total net loss for fiscal 1998 of $50.2 million compared
to total net losses of $39.6 million and $10.7 million for fiscal 1997 and
fiscal 1996, respectively. On a pre-tax basis, the loss from continuing
operations for fiscal 1998 was $54.5 million ($21.9 million excluding
restructuring charges) compared to a net loss for fiscal 1997 of $44.2 million
($20.2 million excluding restructuring and impairment charges) and a net loss of
$18.2 million for fiscal 1996. The fiscal 1998 restructuring charge of $37.6
million was partially offset by $5.0 million of reductions in costs related to
the 1997 retail restructure and final adjustments totaling $4.3 million related
to the prior year disposal of the CGE division. In addition to the
restructuring and impairment charges, the total net loss for fiscal 1997
included a net noncash charge of $10.7 million for the establishment of a
deferred tax valuation allowance and a $36.5 million gain on the sale of the CGE
division, partially offset by the related loss from discontinued operations of
$20.1 million.
The Company's 1998 fiscal fourth quarter and fiscal year results were
significantly affected by the reorganization involving closure of the retail
store network, a significant reduction in headquarters staff and closure of the
Sacramento distribution center. The $37.6 million charge recorded in the fourth
quarter of fiscal 1998 includes $17.1 million for retail lease terminations and
related fixed asset disposals, $10.0 million for store closing costs, $6.2
million for the liquidation of inventory, $2.1 million for closure of the
Sacramento distribution facility and $2.2 million for severance, fixed asset
disposals and other miscellaneous expenses related to the reduction of the
Company's headquarters operations.
The fiscal 1997 restructuring and impairment charges totaled $24.0 million
before income taxes. The charges included $6.5 million in gross margin
expenses, $5.8 million for settlement of store and warehouse leases, $4.3
million for fixed asset dispositions, professional fees and miscellaneous
expenses, $3.3 million in store closing costs and related fixed asset
dispositions, $1.3 million for the impairment and disposition of real estate and
$2.8 million for severance and related benefits.
The pretax loss during fiscal 1996 was due primarily to a decrease in sales
compared to fiscal 1995 resulting from a reduction in the average number of
stores in full operation during the year, as well as one-time costs of
approximately $4.6 million associated with the relocation of Egghead's corporate
headquarters, costs of rolling out its larger format retail stores, and its
investment of approximately $1.1 million in ELEKOM. On November 11, 1997
Egghead.com recapitalized its wholly owned subsidiary ELEKOM. As part of the
recapitalization, various venture capitalists invested capital in ELEKOM,
reducing the Company's ownership percentage to approximately 26% as of March 28,
1998. Prior to recapitalization, income and expenses of ELKOM were recorded in
the Company's operating results. After recapitalization, the Company's share of
the results of operations of ELEKOM were included on the equity basis of
accounting and are reflected in the other income (expense) in the Company's
consolidated statements of operations.
Given its recent losses, Egghead has determined that its deferred tax
assets do not meet the realization criteria of SFAS No. 109 ("SFAS 109"). Under
SFAS 109, the realization of the deferred tax assets depends on generating
future taxable income. Egghead management has determined that it is more likely
than not that the deferred tax assets could not currently be realized. Until
Egghead has determined that all of its existing net operating losses are
realizable, it will not record a tax charge or benefit for future operating
results. For comparative purposes Egghead's results of operations are discussed
below on a pretax basis. Egghead's net operating losses can be recovered over a
15-year period for tax purposes if Egghead achieves profitability. Accordingly,
Egghead recorded a net noncash charge in fiscal 1997 of $10.7 million for the
establishment of a deferred tax valuation allowance in accordance with SFAS 109.
Continuing Operations
Pretax Loss. Loss before income taxes includes the results of the Internet
commerce operations, including Surplusdirect and Surplusauction sites from
acquisition on August 14, 1997, the direct response unit, and the retail store
network through its closure on February 28, 1998, as well as the selling,
general and administrative expenses related to these operations. Net sales,
costs of sales and gross margin for the ongoing operations of the three web
sites and the
23
<PAGE>
inbound call center are detailed separately in the discussions below from the
similar information for the closed retail store network. The following table
shows the relationship of certain items relating to continuing operations
included in Egghead's Consolidated Statements of Operations, including
restructuring and impairment charges, expressed as a percentage of net sales:
<TABLE>
<CAPTION>
FISCAL YEAR
------------------------------------------------
1996 1997 1998
------------------------------------------------
<S> <C> <C> <C>
Net sales................................................ 100.0% 100.0% 100.0%
Cost of sales............................................ 82.8 84.3 87.7
----- ------ ------
Gross margin............................................. 17.2 15.7 12.3
Selling and marketing expense............................ 14.9 15.9 16.6
General and administrative expense....................... 5.5 6.7 6.6
Depreciation and amortization expense.................... 1.9 2.0 2.0
Restructuring and impairment cost........................ -- 4.3 6.7
----- ------ ------
Operating loss........................................... (5.1) (13.2) (19.6)
Other income, net........................................ 0.6 1.0 1.0
----- ------ ------
Loss before income taxes................................. (4.5)% (12.2)% (18.6)%
===== ====== ======
</TABLE>
Net Sales. Sales through Egghead's retail stores, prior to their closure,
constituted the principal component of Egghead's net sales. The Company's
consolidated net sales from operations of $293.1 million for fiscal 1998
represents a decrease of 18.8% and 27.4% from fiscal 1997 and fiscal 1996,
respectively. The net sales from Surplusdirect and Surplusauction sites, as
well as Surplus Direct's direct response division are reflected from the
acquisition date of August 14, 1997. Egghead shifted its business emphasis to
the Internet with the closure of its remaining 80 retail stores on February 28,
1998. During the fourth quarter of fiscal 1998, the ongoing operations achieved
net revenues of $30.5 million. The fiscal 1998 revenues of $76.8 million for
ongoing operations reflects direct response and Internet commerce sales. The
direct response sales reflect orders generated from catalog distributions to
existing and purchased customer lists.
In focusing on Internet commerce, the Company intends to reduce the number
of catalog mailings significantly in fiscal 1999. In view of Egghead's limited
Internet operating history, the Company believes that period-to-period
comparisons of its operating results, including the Company's gross profit and
operating expense as a percentage of net sales, are not necessarily meaningful
and should not be relied upon as an indication of future performance. The
Company's retail store division contributed a majority of the net revenues of
the Company during fiscal 1998 and 1997 and there can be no assurance that the
elimination of the Company's retail store network as a source of revenue will
not have a material adverse effect on the Company's business, prospects,
financial condition and results of operations. Although the Company's Internet
commerce site sales have grown significantly in recent periods, these sales
represent a relatively small percentage of the Company's historical total sales
and there can be no assurance that similar growth, if any, will be obtained in
the future. See "BUSINESS OF EGGHEAD - Certain Risk Factors--Company's Limited
Internet Operating History" --"Competition" and "Business of Egghead--Closure of
Retail Network and Downsizing."
Net sales for fiscal 1997 were $360.7 million, a decrease of 11% from the
$403.8 million in the prior year. The decrease in sales is attributable
primarily to the closure of 84 stores during fiscal 1997 and a decrease in
overall sales volume. Egghead closed 70 stores during the fourth quarter of
fiscal year 1997. Net sales in fiscal 1996 were $403.8 million, a decrease of
$30.2 million or 7% from net sales of $434.0 million in fiscal 1995. Fiscal
1996 sales decreases resulted primarily from the reduction in the average number
of stores in full operation during the year.
Gross Margin. Gross margin consists of net sales minus cost of sales.
Gross margin is primarily affected by sales volume and the mix of PC products
sold, as well as vendor rebates and freight and obsolescence charges. Gross
margin as
24
<PAGE>
a percentage of net sales may also be significantly affected by industry-wide
pricing pressure related to both competitors' pricing and vendors' pricing.
The fiscal 1998 gross margin for ongoing operations was 13.4%. The ongoing
operations margin reflects a higher level of direct response sales than the
Company expects to achieve in fiscal 1999. In focusing on Internet commerce,
the Company intends to decrease the number of catalog mailings in fiscal 1999.
The catalog sales, although requiring significant production, mailing and other
selling, general and administrative costs, have historically generated higher
gross margin rates than the Internet commerce sales. In view of Egghead's
limited Internet operating history, the Company believes that period-to-period
comparisons of its operating results, including the Company's gross profit and
operating expense as a percentage of net sales, are not necessarily meaningful
and should not be relied upon as an indication of future performance. Fiscal
1998 consolidated gross margin of 12.3% was impacted by the liquidation of
retail inventory in connection with the closure of the remaining retail stores.
Excluding the $6.2 million restructuring charge reflected in gross margin and
the related sales, for fiscal 1998 gross margin would have been 15.7%.
Consolidated gross margin for fiscal 1997 was $56.5 million, or 15.7% of
net sales, compared to $69.3 million, or 17.2% of net sales for fiscal 1996.
The decrease in 1997 gross margin was primarily attributable to the inventory
liquidation associated with the closure of 70 stores in connection with the
reorganization and restructuring. Excluding the $6.5 million gross margin
restructuring charge, gross margin in fiscal 1997 would have been $63.0 million.
Gross margin as a percentage of net sales was also reduced by increased sales of
hardware and other non-software related products.
Selling, and Marketing Expense. Selling and marketing expense consists
primarily of operating expenses, including direct response, Internet commerce,
merchandising, purchasing, distribution, and advertising expense. Such
operating expenses include payroll and benefits, telecommunications, credit card
processing costs and supplies in addition to the occupancy costs, before
closure, of the retail stores. The Company expects selling and marketing
expenses to increase significantly as a percentage of net sales as it endeavors
to enhance its brand name recognition through marketing alliances. The selling
and marketing expenses for fiscal 1998 were $48.6 million, a reduction from
fiscal 1997 and 1996 expenses which were $57.4 million and $60.4 million,
respectively. The decline in selling and marketing expense reflects the closure
of retail stores during fiscal 1998 and 1997.
General and Administrative Expense. General and administrative expense
consists primarily of headquarters support functions. Such operating expenses
include payroll and benefits, professional services, facilities rent and
maintenance and related supplies. The Company anticipates the general and
administrative costs to decline from prior year levels as Egghead adjusts its
overhead functions as a result of the recent closure of the retail store
network.
Depreciation and Amortization. Depreciation and amortization expense
primarily includes depreciation of Egghead.com's former headquarters facility
and capital equipment and amortization of the goodwill recorded with the
acquisition of Surplus Direct during fiscal 1998. The depreciation expense of
$4.8 million for fiscal 1998 declined compared to $7.4 million for the prior
year, primarily due to the closure of 70 retail stores in February 1997. The
depreciation expense for fiscal 1997 increased over fiscal 1996 due to the
opening of additional retail stores during the year. Amortization expense of
$1.0 million in fiscal 1998 reflects the amortization of the goodwill of $34.2
million recorded in August 1997. The fiscal 1996 amortization expense of $0.4
million reflects the final amortization of goodwill from a prior acquisition.
Other Income, Net. Interest income in fiscal 1998, 1997 and 1996 was
$3.2million, $3.4 million and $2.2 million, respectively. Changes in interest
income are primarily due to the decrease and increases in cash balances
discussed under "--Liquidity and Capital Resources."
DISCONTINUED OPERATIONS
All results for the operations of the CGE division are reported as a
discontinued operation. Certain general, administrative and distribution areas
have traditionally supported all of Egghead's business lines. The expenses
included in the results of the discontinued operations reflect only those
activities directly related to the CGE division.
25
<PAGE>
Income from operations of CGE for fiscal 1998 reflects final adjustments on
the settlement and disposition of CGE related liabilities and assets of $4.3
million.
Gain on the disposition of the discontinued operation during fiscal 1997
was $36.5 million ($22.3 million after tax). The sales price for the CGE
division was $45.0 million in cash, which did not include the accounts
receivable, which were collected during fiscal 1997. The reported gain is net
of fixed assets and lease write-offs of $1.2 million, transaction, legal and
accounting fees of $2.0 million, transition period employment costs of $1.8
million and costs of $3.4 million related to the fulfillment of post-sale
obligations.
Loss from the discontinued operation was $20.1 million ($12.3 million net
of tax) for the 1997 fiscal year. The major components of the loss were
inventory write-offs of $6.9 million, accounts receivable write-offs of $5.1
million, fixed asset dispositions and equipment lease buyouts of $3.2 million,
warehouse closing costs of $1.9 million and operating losses, severance and
other costs of $3.0 million.
Net sales for the discontinued operations of CGE declined $65.2 million, or
15.2% from $428.5 million in fiscal 1995 to $363.3 million in fiscal 1996, due
primarily to disruptions in sales efforts related to the consolidation of its
regional sales offices and Egghead's headquarters relocation to Liberty Lake,
Washington. Gross margin for CGE as a percentage of net sales was 10.1% in
fiscal 1996, compared to 11.3% in 1995.
LIQUIDITY AND CAPITAL RESOURCES
In recent fiscal years, Egghead has funded its operations through cash
provided by operations, bank lines of credit and the proceeds of the sale of the
CGE division. Egghead elected not to renew its bank line of credit after the
line expired in April 1996 because it had sufficient cash to fund operations.
Egghead had no outstanding borrowings under the line at the expiration date.
Cash and cash equivalents decreased $16.1 million from $83.5 million at the
end of fiscal 1997 to $67.4 million at March 28, 1998. The decrease in the cash
balance was primarily due to a reduction in accounts payable and liabilities
related to the CGE division, partially offset by a reduction in accounts
receivable and merchandise inventories. Egghead expects these cash balances
will be adequate to meet future cash requirements for operations for the
foreseeable future.
Cash flows used by operating activities of $10.9 million for the year ended
March 28, 1998 was primarily attributable to the net loss of $50.2 million and
reductions in accounts payable of $25.8 million, partially offset by a reduction
in accounts receivable of $12.2 million and a reduction in merchandise
inventories of $29.9 million. For fiscal 1997, operating activities used $7.8
million in cash related to a reduction in accounts payable partially offset by a
decrease in accounts receivable and merchandise inventories.
Net cash used in investing activities was $2.7 million for fiscal 1998 and
primarily consisted of purchases of assets of $2.8 million, primarily for retail
store leasehold improvements and computer hardware. For fiscal 1997, investing
activities provided net cash of $41.7 million primarily related to the $45.0
million proceeds from the sale of CGE, partially offset by capital expenditures
of $5.1 million.
Cash flows used in financing activities of $2.5 million for fiscal 1998,
consisted primarily of payment of notes payable relating to the Surplus Direct
acquisition of $6.0 million, partially offset by $3.6 million received from the
exercises of stock options. For fiscal 1997, financing activities provided
$47,000 primarily due to exercises of stock options, partially offset by payment
on capital leases obligations.
As of March 28, 1998, the Company's principal source of liquidity was $67.4
million of cash. As of that date, Egghead principal commitments consisted of
obligations in connection with operating leases and commitments for advertising
and promotional arrangements. Subsequent to year-end, the Company committed to
a contract of approximately $800,000 related to computer hardware and software
to be used in upgrading the Company's operating systems for the web sites.
Although the Company has no other material commitments for capital expenditures,
it
26
<PAGE>
anticipates future purchases related to the web sites and infrastructure could
be substantial in the event of a growth in operations.
The Company believes that current cash and cash equivalent balances will be
sufficient to meet its anticipated cash needs for the foreseeable future.
However, any projections of future cash needs and cash flows are subject to
substantial uncertainty. If cash generated from operations is insufficient to
satisfy the Company's liquidity requirements, the Company may seek to sell
additional equity or debt securities or to obtain a line of credit. The sale of
additional equity or debt securities could result in additional dilution to the
Company's stockholders. There can be no assurance that financing will be
available in amounts or on terms acceptable to the Company, if at all. In
addition, the Company will, from time to time, consider the acquisition of or
investment in complementary businesses, products and technologies, which might
increase the Company's liquidity requirements or cause the Company to issue
additional equity or debt securities. The Company does not currently use
derivative financial instruments.
The Company is also developing a plan to modify its information technology
to recognize the Year 2000 and has, to the extent necessary, begun upgrading
certain critical data processing systems. Since the Company's systems and
software are relatively new and the majority are covered by maintenance
agreements with the vendors, management does not expect Year 2000 issues related
to its own internal systems to be significant. There can be no guarantee that
the systems of other companies, on which the Company relies, will be converted
timely and will not have an adverse effect on the Company's systems. Egghead
continues to evaluate the estimated costs associated with these efforts based on
the costs of past programming changes and does not expect the future costs of
resolving its internal Year 2000 problems to be material. The Company currently
expects the project to be complete in 1999. However, no assurance can be given
that the Company's computer systems will be Year 2000 compliant in a timely
manner, that the Company will not incur significant additional expenses pursuing
Year 2000 compliance or that the Year 2000 problem will not have a material
adverse effect on the Company in the future.
27
<PAGE>
NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 130, "Reporting
Comprehensive Income," and SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information." SFAS No. 130 establishes standards for
reporting and display of comprehensive income. SFAS No. 131 establishes
standards for disclosing information about operating segments for public
business enterprises and supersedes SFAS No. 14. Both SFAS No. 130 and SFAS No.
131 are required to be adopted by the Company for fiscal 1999. Egghead does not
expect the impact of these statements to be material to its financial position
or results of operations.
In March 1995, the FASB issued SFAS No. 121, "Accounting for the Impairment
of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of." This
standard requires that long-lived assets and certain identifiable intangible
assets be evaluated to determine whether the carrying amount is recoverable
based on estimated future cash flows expected from the use of the assets and
cash to be received upon disposal of the assets. Egghead adopted this standard
in the first quarter of fiscal 1997. The cumulative effect of the change in
accounting principle was a charge of $0.7 million, after tax, for fiscal 1997.
This charge represents the write-down of Egghead's property held for sale in
Kalispell, Montana and the related goodwill. The impact on continuing
operations during fiscal 1997 was $1.1 million, primarily related to Egghead's
fourth quarter restructuring and reorganization and the corresponding impairment
of certain real estate assets that are held for sale.
28
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Egghead.com, Inc.:
We have audited the accompanying consolidated balance sheets of
Egghead.com, Inc. (a Washington corporation) and subsidiaries as of March 28,
1998 and March 29, 1997, and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the three fiscal years in the
period ended March 28, 1998. These financial statements are the responsibility
of Egghead.com's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Egghead.com, Inc. and
subsidiaries as of March 28, 1998 and March 29, 1997, and the results of their
operations and their cash flows for each of the three fiscal years in the period
ended March 28, 1998, in conformity with generally accepted accounting
principles.
Seattle, Washington
May 4, 1998
29
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
Consolidated Balance Sheets
(Dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
ASSETS March 29, March 28,
1997 1998
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 83,473 $ 67,381
Accounts receivable, net of allowance for
doubtful accounts of $5,319 and $2,611,
respectively 17,917 5,670
Merchandise inventories, net 49,087 12,923
Prepaid expenses and other current assets 4,116 999
Property held for sale 7,692 8,047
-------- --------
Total current assets 162,285 95,020
-------- --------
Property and equipment, net 12,018 2,806
Goodwill, net - 33,225
Other assets 1,217 336
-------- --------
$175,520 $131,387
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 43,027 $ 15,834
Accrued liabilities 12,996 12,002
Liabilities related to disposition of CGE
division 7,754 -
Reserves and liabilities related to restructuring 11,258 17,461
-------- --------
Total current liabilities 75,035 45,297
-------- --------
Other long-term liabilities 438 3
-------- --------
Total liabilities 75,473 45,300
-------- --------
Commitments and contingencies
Shareholders' equity:
Preferred stock, $.01 par value: 10,000,000
authorized no shares issued and outstanding - -
Common stock, $.01 par value: - -
50,000,000 shares authorized; 17,591,087 and
23,492,502 shares issued and outstanding,
respectively 176 235
Additional paid-in capital 124,457 160,669
Retained earnings (deficit) (24,586) (74,817)
-------- --------
Total shareholders' equity 100,047 86,087
-------- --------
$175,520 $131,387
======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
30
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
Consolidated Statements of Operations
(Amounts in thousands, except per share data)
<TABLE>
<CAPTION>
1996 1997 1998
-------- -------- --------
<S> <C> <C> <C>
Net sales:
Retail $382,087 $340,533 $216,281
Ongoing 21,754 20,182 76,798
-------- -------- --------
403,841 360,715 293,079
Cost of sales:
Retail 320,562 287,708 190,703
Ongoing 14,017 16,543 66,472
-------- -------- --------
334,579 304,251 257,175
-------- -------- --------
Gross margin:
Retail 61,525 52,825 25,578
Ongoing 7,737 3,639 0,326
-------- -------- --------
69,262 56,464 35,904
Selling and marketing expense 60,363 57,352 48,571
General and administrative expense 22,133 24,065 19,495
Restructuring and impairment charges - 15,597 19,500
Amortization of goodwill 424 - 1,009
Depreciation 7,145 7,352 4,800
-------- -------- --------
Operating loss (20,803) (47,902) (57,471)
-------- -------- --------
Other income, net 2,652 3,729 2,940
-------- -------- --------
Loss from continuing operations
before income taxes (18,151) (44,173) (54,531)
Income tax (expense) benefit 7,030 (4,788) -
-------- -------- --------
Net loss from continuing operations
before discontinued operations and
change in accounting principle (11,121) (48,961) (54,531)
-------- -------- --------
Discontinued operations:
Gain on disposal of discontinued operations,
net of tax expense of $14,249 - 22,286 -
Income (loss) from discontinued
operations, net of tax (benefit)
expense of $241, $(7,833) and $0,
respectively 376 (12,254) 4,300
-------- -------- --------
Net income (loss) before cumulative
effect of change in accounting principle (10,745) (38,929) (50,231)
Cumulative effect of change in
accounting principle, net of tax of $451 - (711) -
-------- -------- --------
Net income (loss) $(10,745) $(39,640) $(50,231)
======== ======== ========
Earnings (loss) per share:
Continuing operations $(0.64) $ (2.78) $(2.60)
Discontinued operations:
Gain on disposal of
discontinued operations - 1.27 -
Income (loss) from
discontinued operations 0.02 (0.70) 0.20
Change in accounting principle - (0.04) -
-------- -------- --------
Earnings (loss) per share $ (0.62) $ (2.25) $ (2.40)
======== ======== ========
Weighted average common
shares outstanding 17,437 17,581 20,967
======== ======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
31
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(Dollars in thousands)
<TABLE>
<CAPTION>
1996 1997 1998
--------- --------- ---------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss from operations $ (10,745) $ (39,640) $ (50,231)
--------- --------- ---------
Adjustments to reconcile net income (loss) to
net cash provided by operating activities:
Depreciation and amortization 10,721 7,099 5,809
Deferred rent (411) (465) (435)
Deferred income taxes (729) 10,750 -
(Gain) loss on disposition of assets (55) 2,490 216
Gain on sale of CGE division, before taxes - (36,535) -
Restructuring charges - 23,000 32,591
Provisions for asset impairment - 2,343 -
Changes in assets and liabilities:
Accounts receivable, net (3,585) 6,162 12,247
Merchandise inventories 13,831 30,495 29,947
Prepaid expenses & other current assets (5,410) 3,669 2,306
Other assets 128 (658) (218)
Discontinued operations, net 3,005 67,101 (7,648)
Accounts payable 14,916 (76,373) (25,848)
Restructuring reserves - - (11,157)
Accrued liabilities (903) (7,268) 1,556
--------- --------- ---------
Total adjustments 31,508 31,810 39,366
--------- --------- ---------
Net cash provided by (used in)
operating activities 20,763 (7,830) (10,865)
--------- --------- ---------
Cash flows from investing activities:
Additions to property and equipment (16,174) (5,091) (2,824)
Proceeds from sale of property and equipment 86 1,757 87
Proceeds from sale of CGE division - 45,000 -
Discontinued operations, net (788) - -
--------- --------- ---------
Net cash provided by (used in)
investing activities (16,876) 41,666 (2,737)
--------- --------- ---------
Cash flows from financing activities:
Payments on notes payable of acquired subsidiary - - (6,000)
Proceeds from stock issuances 3,536 353 3,635
Payments made on capital lease obligations (487) (306) (125)
--------- --------- ---------
Net cash provided by (used in)
financing activities 3,049 47 (2,490)
--------- --------- ---------
Effect of exchange rates on cash 62 - -
--------- --------- ---------
Net increase in cash asnd cash equivalents 6,998 33,883 (16,092)
Cash and cash equivalents at beginning of period 42,592 49,590 83,473
--------- --------- ---------
Cash and cash equivalents at end of period $ 49,590 $ 83,473 $ 67,381
========= ========= =========
</TABLE>
See Notes to Consolidated Financial Statements.
32
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows (continued)
(Dollars in thousands)
1996 1997 1998
Supplemental disclosures of cash paid (received)
during the year :
Interest $ 77 $30 $ 32
Income taxes $334 $ - $(732)
Supplemental disclosure of non-cash
investing and financing activities:
During fiscal 1998, the Company acquired Surplus Software, Inc. for the issuance
of 5.3 million shares of common stock. See Note 7.
Capital lease obligations totaling $0.7 million were recorded in fiscal 1996
when Egghead.com acquired new equipment.
See Notes to Consolidated Financial Statements.
33
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
Consolidated Statements of Shareholders' Equity
(Amounts in thousands)
<TABLE>
<CAPTION>
Common Stock Additional Retained
------------------ Paid-in Earnings
Shares Amount Capital (Deficit) Total
-----------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance, April 1, 1995 17,166 $172 $120,572 $25,672 $146,416
Stock issued for cash, pursuant to employee stock
purchase plan 46 1 286 - 287
Stock issued for cash, pursuant to stock option plan 335 3 3,246 - 3,249
Translation adjustment - - - 62 62
-----------------------------------------------------
Net loss - - - (10,745) (10,745)
-----------------------------------------------------
Balance, March 30, 1996 17,547 176 124,104 14,989 139,269
Stock issued for cash, pursuant to employee stock
purchase plan 17 - 161 - 161
Stock issued for cash, pursuant to stock option plan 27 - 192 - 192
Translation adjustment - - - 65 65
-----------------------------------------------------
Net loss - - - (39,640) (39,640)
-----------------------------------------------------
Balance, March 29, 1997 17,591 $176 $124,457 $(24,586) $100,047
Stock issued for acquisition of subsidiary 5,311 53 32,522 - 32,575
Stock issued for cash, pursuant to employee stock
purchase plan 23 - 78 - 78
Stock issued for cash, pursuant to stock option plan 568 6 3,612 - 3,618
Net loss - - - (50,231) (50,231)
-----------------------------------------------------
Balance, March 28, 1998 23,493 $235 $160,669 $(74,817) $ 86,087
=====================================================
</TABLE>
See Notes to Consolidated Financial Statements.
34
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
All references herein to fiscal 1996, 1997 and 1998 relate to the fiscal years
ended March 30, 1996, March 29, 1997 and March 28, 1998, respectively.
NOTE 1 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business
Egghead.com, Inc. is a reseller of personal computer software, hardware and
related products through its wholly owned subsidiaries, Surplus Software, Inc.
(Surplus Direct, d/b/a Surplus Direct and d/b/a Egghead.com), DJ&J Software
Corporation (DJ&J, d/b/a Egghead Computer) and EH Direct, Inc. (EH Direct).
References to "Egghead.com" include Egghead.com, Inc., its predecessors, and its
subsidiaries. Surplus Direct was acquired as a wholly owned subsidiary on
August 14, 1997. The Company recapitalized a previously wholly owned
subsidiary, ELEKOM Corporation (Elekom), on November 11, 1997, retaining a 25
percent interest.
Consolidation
The consolidated financial statements include the accounts of Egghead.com, Inc.
and its wholly owned subsidiaries, Surplus Direct, DJ&J, and EH Direct, and
include all such adjustments and reclassifications necessary to eliminate the
effect of significant intercompany accounts and transactions.
Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates. The most significant
estimates with regard to these financial statements are the restructure and
reorganization reserves and liabilities and the discontinued operations reserves
and liabilities.
Cash and Cash Equivalents
Egghead.com considers all highly liquid investments with a maturity of three
months or less at the time of purchase to be cash equivalents. The carrying
amount of cash equivalents approximates fair value because of the short-term
maturity of those instruments.
Accounts Receivable and Revenue Recognition
Certain advertising and promotional expenditures are reimbursable from suppliers
under cooperative advertising and other promotional and market development fund
arrangements. Amounts qualifying for reimbursement are recorded as receivables
from the suppliers and as a corresponding reduction of net advertising expense
in the period the promotion occurs. Also included in accounts receivable are
credit card receivables and amounts due from vendors for returned inventory and
other programs. Egghead.com records a provision for uncollectible vendor
receivables based upon historical experience.
Egghead.com sales made on credit generally have terms of net 30 days. The sales
and corresponding trade receivables for inventoried product are recorded upon
merchandise shipment. Egghead.com records provisions for doubtful accounts and
sales returns and allowances based upon historical experience.
35
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 1 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Merchandise Inventories
Merchandise inventories are accounted for using the first-in, first-out cost
method and are stated at the lower of cost or market. Egghead.com maintains
reserves for the obsolescence of merchandise inventory. These reserves totaled
approximately $3.7 million and $3.1 million at March 29, 1997 and March 28,
1998, respectively. Management has developed a plan to dispose of this obsolete
inventory and believes the reserve is adequate to cover any losses on
disposition. Inventories on the balance sheet are shown net of reserves.
Property and Equipment
Property and equipment are stated at cost, net of accumulated depreciation.
Depreciation of equipment, furniture and fixtures is provided using the
straight-line method over their estimated useful lives ranging from two to seven
years. Depreciation of buildings is provided using the straight-line method
over their estimated useful lives of up to 30 years. Amortization of leasehold
improvements is provided using the straight-line method over the lesser of the
lease term or the assets' estimated useful lives. The Company periodically
reviews its long-lived assets for impairment.
Property Held for Sale
Property held for sale is stated at the lower of carrying value or estimated net
realizable value.
Goodwill
Net assets of organizations acquired in purchase transactions are recorded at
fair value at date of acquisition. Unidentified intangibles are amortized on a
straight-line basis over the estimated lives of the remaining long-term assets
acquired. Unidentified intangibles at March 29, 1997 were fully amortized.
Unidentified intangibles at March 28, 1998 were $33.2 million, net of
accumulated amortization of $1.0 million.
Accounts Payable
Outstanding checks included in accounts payable were $7.0 million and $2.7
million at March 29, 1997 and March 28, 1998, respectively.
Income Taxes
Egghead.com determines its income tax accounts in accordance with Statement of
Financial Accounting Standards No. 109. Deferred income taxes result primarily
from temporary differences in the recognition of certain items for income tax
and financial reporting purposes.
Earnings (Loss) Per Share
Basic earnings (loss) per share amounts are computed by dividing the net income
(loss) by the weighted average number of shares of common stock outstanding
during the year. Diluted earnings per common share are not disclosed as
potentially dilutive securities would have been anti-dilutive to the loss per
share calculation in fiscal 1996, 1997, and 1998. Effective December 27, 1997,
the Company adopted Statement of Financial Accounting Standards ("SFAS") No.
128, "Earnings per Share." Prior earnings per common share amounts were not
affected by the adoption of SFAS No. 128.
Stock-based Compensation
The Company accounts for its stock-based awards using the intrinsic value method
in accordance with Accounting Principles Board ("APB") Opinion No. 25,
"Accounting for Stock Issued to Employees," and its related interpretations and
complies with the disclosure provisions of SFAS No. 123, "Accounting for Stock-
based Compensation."
36
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 1 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Advertising Costs
The cost of advertising is expensed as incurred. For the fiscal years 1996,
1997 and 1998, the Company incurred, gross advertising expense of $40.3 million,
$35.8 million and $17.5 million, respectively. These amounts do not include
reimbursements received from vendors for advertisement of their products.
Reclassifications
Certain prior year balances have been reclassified to conform with the fiscal
1998 presentation. These reclassifications had no effect on retained earnings
or net income as previously reported.
Income Statement Captions
During fiscal 1998, Egghead closed its remaining retail stores as a part of a
strategic restructuring. The retail store operations do not meet the
requirements of a "discontinued operation" under APB Opinion No. 30. However,
the Company has split its sales, cost of sales and gross margin amounts between
retail store operations and the ongoing business, consisting of Internet, direct
response and catalog sales.
Recent Accounting Pronouncements
In March 1995, the Financial Accounting Standards Board (FASB) issued Statement
of Financial Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of." This standard
requires that long-lived assets and certain identifiable intangible assets be
evaluated to determine whether the carrying amount is recoverable based on
estimated future cash flows expected from the use of the assets and cash to be
received upon disposal of the assets. Egghead.com adopted this standard at the
beginning of the first quarter of fiscal 1997. The cumulative effect of the
change in accounting principle, which was recognized in the first quarter of
fiscal 1997, was a charge of $0.7 million, after tax, or $0.04 per share,. This
charge represents the writedown of Egghead.com's property held for sale in
Kalispell, Montana and the related goodwill. In connection with its adoption of
SFAS No. 121, Egghead.com also recorded a pretax charge of approximately $0.1
million related to retail assets, the carrying amount of which were not likely
to be recovered through future cash flows. In connection with Egghead.com's
fourth quarter restructuring and reorganization and the corresponding impairment
of certain other real estate assets that became properly classified as held for
sale, Egghead.com recorded an additional $1.0 million charge in the fourth
quarter of fiscal 1997.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive Income,"
and SFAS No. 131, " Disclosure about Segments of an Enterprise and Related
Information." SFAS No. 130 establishes standards for reporting and display of
comprehensive income. SFAS No. 131 establishes standards for disclosing
information about operating segments for public business enterprises and
supersedes SFAS No. 14. Both SFAS No. 130 and No. 131 are required to be
adopted by the Company for fiscal 1999. Egghead.com does not expect the impact
of these statements to be material.
Fiscal Years
Egghead.com uses a 52/53-week fiscal year, ending on the Saturday nearest March
31. Fiscal quarters are such that the first three quarters consist of 13 weeks
and the fourth quarter consists of the remaining 13/14 weeks. Fiscal 1996, 1997
and 1998 each had 52 weeks.
37
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 2 PROPERTY AND EQUIPMENT
The components of property and equipment at March 29, 1997 and March 28, 1998
were as follows (in thousands):
March 29, March 28,
1997 1998
Equipment $ 16,937 $ 4,857
Leasehold improvements 6,078 654
Furniture and fixtures 8,399 165
31,414 5,676
-------- -------
Less accumulated depreciation and
amortization (19,396) (2,870)
-------- -------
Property and equipment, net $ 12,018 $ 2,806
======== =======
Property held for sale at March 29, 1997 and March 28, 1998 includes
Egghead.com's headquarters building in Liberty Lake, Washington and property in
Kalispell, Montana. See Note 11.
38
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 3 INCOME TAXES
The provision (benefit) for income taxes from continuing operations is comprised
of the following (in thousands):
Fiscal year
1996 1997 1998
Current:
Federal $(4,383) $ - $ -
State (1,917) - -
------- ------ -----
(6300) - -
------- ------ -----
Deferred:
Federal (404) 4,170 -
State (326) 618 -
------- ------ -----
(730) 4,788 -
------- ------ -----
Total $(7,030) $4,788 $ -
------- ------ -----
During fiscal 1996, tax expense of $241 was recorded against income from
discontinued operations. During fiscal 1997, Egghead.com also recorded income
tax expense on the sale of the discontinued CGE operations of $14,249 and income
tax benefits against the loss from discontinued operations and cumulative effect
of change in accounting principle of $7,833 and $451, respectively.
Deferred income taxes result primarily from temporary differences in certain
items for income tax and financial reporting purposes. The tax effects of
temporary differences giving rise to the deferred tax assets are as follows:
March 29, March 28,
1997 1998
Accounts receivable $ 2,695 $ 898
Merchandise inventories 1,595 2,060
Property and equipment 3,008 2,007
Net operating loss carryforwards 5,000 22,993
Reserves and liabilities related to restructure 4,391 5,937
Accrued liabilities and other 4,623 2,232
-------- --------
Total deferred tax assets 21,312 36,127
Less valuation allowance (21,312) (36,127)
-------- --------
Net deferred tax assets $ - $ -
======== ========
Given its recent losses, Egghead.com determined that its deferred tax assets no
longer meet the realization criteria of Statement of Financial Accounting
Standards No. 109 (SFAS 109). Under SFAS 109, the realization of the deferred
tax assets depends on generating future taxable income. Egghead.com management
has determined that it is more likely than not that the deferred tax assets
could not be currently realized. Accordingly, Egghead.com recorded a net
noncash charge in fiscal 1997 of $10.7 million for the establishment of a
deferred tax valuation allowance in accordance with SFAS 109. The charge is
included in continuing operations as a component of income tax expense.
Egghead.com's net operating loss carryforwards can be recovered over a 15-year
period and begin to expire in 2011.
39
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 3 INCOME TAXES (CONTINUED)
Egghead.com's income tax provision (benefit) differs from the amount computed by
applying the statutory federal tax rate to loss from continuing operations
before taxes as follows:
Fiscal year
1996 1997 1998
Statutory Federal tax rate (34.0)% (34.0)% (34.0)%
State taxes, net of Federal benefit (4.6) (4.0) -
Tax exempt interest income (1.8) (1.4) -
Other, net 1.7 2.0 0.1
Change in valuation allowance - 48.2 33.9
------ ------ ------
(38.7)% 10.8% -%
====== ====== ======
NOTE 4 STOCK OPTION AND STOCK PURCHASE PLANS
Employee Stock Purchase Plan
The Egghead.com, Inc. 1989 Employee Stock Purchase Plan (the 1989 Plan)
currently provides options to acquire the Common Stock of Egghead.com to
substantially all full-time and certain other employees at the lesser of 85% of
the fair market value of the Common Stock on July 1, or 85% of the fair market
value on the following June 30 of each plan year. Under the 1989 Plan, a
maximum of 650,000 shares were reserved for issuance. As of March 28, 1998,
there were 300,589 shares available for future issuance.
The 1997 Nonofficer Employee Stock Option Plan
In October 1997, the Board of Directors approved the 1997 Nonofficer Employee
Stock Option Plan (the NOE Plan), under which 500,000 shares of Egghead.com's
Common Stock were reserved for issuance. Options granted under the NOE Plan
vest over four years and terminate after 10 years, unless otherwise noted. As
of March 28, 1998, 200,900 shares were available for grant and 299,100 shares
were subject to outstanding options, which have been granted at prices ranging
from $5.88 to $9.50 per share. As of March 28, 1998, no options for shares were
vested. In April 1998, the NOE plan was amended to increase the number of
shares reserved to 1,000,000.
The Surplus Software, Inc. 1996 Stock Option Plan
In August 1997 as part of the acquisition of Surplus, Egghead.com assumed all of
the outstanding options to purchase common stock of Surplus Direct under the
Surplus Software, Inc. 1996 Stock Option Plan. Appropriate adjustments were
made to the number of shares and exercise price of each Surplus option to
reflect the same ratio at which the Surplus common stock was converted into
Egghead.com common stock under the acquisition. The options have retained their
original option dates, option term and vesting schedules. The options vest over
four years and terminate after 10 years, unless otherwise noted. No additional
stock options will be granted under the assumed Surplus Software, Inc. 1996
Stock Option Plan. As of March 28, 1998, 125,194 shares were subject to
outstanding options, which have exercise prices ranging from $0.97 to $2.26 per
share. As of March 28, 1998, 27,319 options were vested.
40
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Note 4 Stock Option and Stock Purchase Plans (continued)
The 1993 Stock Option Plan
In September 1993, Egghead.com's shareholders approved the 1993 Stock Option
Plan (the 1993 Plan and together with the 1989 Plan, the Plans), under which
2,000,000 shares of Egghead.com's Common Stock were reserved for issuance. The
1993 Plan replaced the 1986 Combined Incentive and Non-Qualified Stock Option
Plan (the 1986 Combined Plan) under which 2,000,000 shares were originally
reserved for issuance. The number of shares reserved for issuance under the
1993 Plan was increased by the shares reserved for issuance under the 1986
Combined Plan that were not subject to outstanding stock options. Shares
presently subject to outstanding stock options under the 1986 Combined Plan,
which subsequently are canceled or will expire, will increase the number of
shares reserved for issuance under the 1993 Plan. No additional stock options
will be granted under the 1986 Combined Plan. In October 1997, the 1993 Plan was
amended by the Board of Directors to provide that options granted on or after
October 29, 1997 vest over four years and terminate after 10 years, unless
otherwise noted. Any option granted prior to October 29, 1997 under the 1993
Plan vests annually over three years and terminates after 10 years, unless
otherwise noted.
Options granted, exercised, and canceled under the Plans are summarized as
follows:
<TABLE>
<CAPTION>
Fiscal year
1996 1997 1998
----------------------- ----------------------- ---------------------
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
--------- -------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding, beginning
of year 1,513,089 $8.63 1,372,887 $9.33 2,183,528 $7.75
Options granted(1) 621,100 10.67 1,444,200 6.80 769,682 4.64
Options exercised (55,395) 6.47 (27,891) 7.01 (323,248) 7.49
Options canceled (705,907) 8.94 (605,668) 9.50 (881,643) 10.06
--------- ------ --------- ----- --------- -----
Outstanding, end of year 1,372,887 9.33 2,183,528 7.75 1,748,319 5.27
========= ====== ========= ===== ========= =====
Exercisable, end of year 359,277 $10.85 837,156 $8.19 973,499 $5.37
========= ====== ========= ===== ========= =====
Available for grant in
future years 1,860,873 1,022,341 1,134,302
========= ========= =========
</TABLE>
(1) One million options granted during fiscal 1997 vest over a period of 18
months, with 294,400 and 823,600 vested as of March 29, 1997 and March 28, 1998,
respectively. The remaining 176,400 options vest monthly at a rate of 44,100
until all options are vested.
The following table summarizes information regarding all stock options
outstanding at March 28, 1998:
Options Outstanding Options Exercisable
------------------------------ -------------------
Remaining
Range Of Contractual Exercise Exercise
Exercise Prices Number Life Price Number Price
- ------------------- --------- ---------- -------- ------- --------
$ 0.967 - $ 4.8125 780,187 8.40 years $ 4.03 150,026 $ 3.77
$ 5.375 - $ 7.25 1,222,166 8.85 years 5.51 870,766 5.42
$ 8.06 - $10.75 599,233 5.80 years 9.37 338,983 10.21
$10.9375 - $16.00 518,604 1.05 years 13.82 513,620 13.85
$17.00 - $20.00 268,747 0.92 years 18.28 268,747 18.28
--------- ---------
$ 0.967 - $20.00 3,388,937 6.39 years $ 8.14 2,142,142 $9.70
========= =========
41
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 4 STOCK OPTION AND STOCK PURCHASE PLANS (CONTINUED)
Egghead.com accounts for these plans under the intrinsic value-based method of
accounting, under which no compensation cost has been recognized. Had
compensation cost for these plans been determined consistent with Statement of
Financial Accounting Standards No. 123 (SFAS 123), Egghead.com's net income and
earnings per share would have been reduced to the following pro forma amounts:
Fiscal Year
1996 1997 1998
-------- --------- ---------
Net Loss As Reported $(10,745) $(39,640) $(50,231)
Pro Forma (11,846) (40,800) (54,697)
Loss per share As Reported $ (0.62) $ (2.25) $ (2.40)
Pro Forma (0.68) (2.32) (2.61)
The effects of applying SFAS 123 in this pro forma disclosure are not indicative
of future amounts. SFAS 123 does not apply to options granted prior to April 1,
1995, and additional grants in future years are anticipated.
The fair value of each option grant is estimated on the date of grant using the
Black-Scholes option-pricing model, with the following assumptions used for
grants in fiscal 1996, 1997 and 1998:
Fiscal Year
1996 1997 1998
---- ---- ----
Dividend yield 0% 0% 0%
Volatility 67% 67% 70%
Risk-free interest rate 5.91% 5.61% 6.27%
Expected stock option life 4.4 yrs. 4.4 yrs. 3.5 yrs.
Using these assumptions, the weighted average fair value of options granted was
$6.17, $3.67 and $3.06 in fiscal 1996, 1997 and 1998, respectively.
Option Repricing
On April 23, 1997, the Compensation Committee of the Egghead.com Board of
Directors approved a plan pursuant to which certain executive officers were
offered an opportunity to exchange options having exercise prices in excess of
the then current fair market value of new options having an exercise price of
$4.375 per Egghead.com Common Share. Recipients of the repriced replacement
options received credit for vesting under the original options, but could not
exercise the new options for a one-year period following the date of grant of
the new options. The Compensation Committee approved a similar option repricing
for employees other than executive officers on April 4, 1997.
42
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 4 STOCK OPTION AND STOCK PURCHASE PLANS (CONTINUED)
The Non-employee Director Stock Option Plan
In September 1993, Egghead.com's shareholders approved the Non-employee Director
Stock Option Plan, and in August 1995, Egghead.com's shareholders approved
amendments thereto (as amended, the Director Plan) under which 450,000 shares of
Egghead.com's Common Stock were reserved for issuance. Options granted under
the Director Plan vest annually over three years and terminate after 10 years.
As of March 28, 1998, 222,500 shares were available for grant and 220,000 shares
were subject to outstanding options, which have been granted at prices ranging
from $5.88 to $10.75 per share. As of March 28, 1998, options for 145,000
shares were vested.
The Executive Plan
In February 1989, the Board of Directors approved four-year employment
agreements and stock option agreements for three executive officers who are no
longer with Egghead.com, whereby the officers' compensation was based on equity
incentives. Each drew an annual salary of $1 per year during his term of
employment. Options to acquire up to 1,700,000 shares of Common Stock are
authorized under the Executive Plan. As of March 28, 1998, 325,000 options
approved under the Executive Plan were never granted and 996,324 were subject to
outstanding options, which have been granted to such executive officers of
Egghead.com at prices ranging from $10.38 to $20.00 per share. All outstanding
options are vested and expire in February 1999. As of March 28, 1998, 378,676
of the options had been exercised at $10.38 per share. The Executive Plan is no
longer active and no further options will be granted under the Executive Plan,
which will terminate on February 22, 1999.
NOTE 5 401(k) PLAN
Egghead.com has two 401(k) retirement plans for the benefit of its employees, a
DJ&J plan and a Surplus Direct plan (assumed in the acquisition). After six
months of full-time employment (more than 1,000 hours), an employee is eligible
to participate in the DJ&J plan. Prior to March 29, 1997, employee
contributions were matched by Egghead.com at 50% of the employee's contribution
up to 4% of their compensation. Egghead.com contributions were fully vested
upon the completion of two years of service. Egghead.com contributions were
approximately $228,000 and $466,000 in fiscal years 1996 and 1997, respectively.
Subsequent to March 29, 1997, Egghead.com discontinued the guaranteed matching
of employee contributions. Egghead.com may, however, make voluntary
contributions in the future.
In the Surplus Direct plan, an employee is eligible to participate in the plan
after six months of full-time employment (more than 1,000 hours). Employee
contributions are matched by Egghead.com at 25% of the employee's contribution
up to 5% of their compensation. Egghead.com contributions are fully vested upon
the completion of five years of service. Egghead.com contributions were
approximately $17,000 in fiscal year 1998.
43
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 6 COMMITMENTS AND CONTINGENCIES
Significant Suppliers
In fiscal 1996 and 1997, two primary manufacturing suppliers in the aggregate
accounted for approximately 24% and 25%, respectively, of Egghead.com's
purchases. In fiscal 1997 and 1998, one primary distributor accounted for
approximately 13% and 11%, respectively, of Egghead.com's purchases. The loss
of these suppliers could have a material adverse effect on the Egghead.com's
operating results and financial condition.
Leases
Egghead.com leases corporate offices and a distribution facility under operating
leases with remaining lives on most leases ranging from one to three years. The
leases generally require Egghead.com to pay taxes, insurance and certain common
area maintenance costs.
Aggregate rental expense Including common area maintenance charges, for all
operating leases for fiscal 1996, 1997 and 1998 was approximately $16.0 million,
$15.4 million and $7.8 million, respectively. As of March 28, 1998, future
minimum rental payments under noncancelable operating leases for headquarters
and distribution facilities, and equipment consisted of the following (in
thousands):
Operating
Fiscal Year Leases
1999 $ 702
2000 393
2001 131
2002 4
Thereafter 1
------
Total minimum payments $1,231
======
The Company has recorded a liability for retail stores and distribution facility
lease terminations in connection with its retail restructure. See Note 8.
44
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 7 ACQUISITION
On August 14, 1997, the Company acquired Surplus Software, Inc. of Hood River,
Oregon, by issuing 5,310,888 shares of common stock and 289,112 options to
purchase common stock of Egghead.com, Inc. The transaction included payment of
$6.0 million of Surplus Direct debt. At the time, Surplus Direct was engaged in
direct marketing of off-price computer hardware and software through catalogs
and two Internet commerce sites. This acquisition was recorded using the
purchase method of accounting. Operating results of Surplus Direct are included
in the statement of operations from the date of acquisition. An excess purchase
price of approximately $34.2 million, over identifiable assets, was determined
based on the fair values of assets acquired and liabilities assumed.
Amortization of goodwill will be over a period of 20 years.
NOTE 8 RESTRUCTURING AND REORGANIZATION
In the fourth quarter of fiscal 1997, Egghead.com recorded a $24.0 million
restructuring and impairment charge to reorganize its operations. This plan
involves among other things, closing 70 of the 156 Egghead.com stores, which
reduced the number of geographic locations in which Egghead.com operated stores
from 54 to 26, a significant reduction in its headquarters staff and the closure
of its Lancaster, Pennsylvania distribution center. This charge included $6.5
million of gross margin expense, $5.8 million in settlement of store and
warehouse leases, $3.3 million of store closing costs and related fixed asset
dispositions, $1.3 million in disposition and impairment of real estate, and
$7.1 million of severance payments, other fixed asset dispositions, professional
fees and other expenses associated with the restructuring plan. The Company
anticipates that the remaining payables related to the restructure, consisting
primarily of $2.3 million in lease obligations and $0.7 million in severance
will be substantially settled by the third quarter of fiscal 1999.
In the fourth quarter of fiscal 1998, Egghead.com recorded a $37.6 million
restructuring charge to reorganize its operations for a plan involving, among
other things, closing the remaining Egghead.com stores, a significant reduction
in its headquarters staff and the closure of its Sacramento, California
distribution center. This charge includes approximately $17.1 million for
retail lease terminations and related fixed asset disposals, $10.0 million for
store closing costs, $6.2 million for the liquidation of inventory, $2.1 million
for the closure of the Sacramento distribution center and $2.2 million in
severance, fixed asset disposal and other miscellaneous expenses related to the
reduction of the Company's headquarters operation. Egghead.com anticipates that
the closure of all activities and stores and the settlement of all leases and
claims related to the restructuring will be substantially completed by the end
of fiscal 1999.
45
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 9 DISCONTINUED OPERATIONS
Effective May 13, 1996, Egghead.com sold its CGE division to Software Spectrum,
Inc. (SSI), a Texas corporation, for $45.0 million in cash pursuant to the terms
of an asset purchase agreement entered into on March 23, 1996. The asset
purchase agreement required Egghead.com to provide SSI with certain support
services for a period not to exceed 120 days on Egghead.com's behalf, SSI's
collection of Egghead.com's CGE-related accounts receivable for a period not to
exceed 150 days and a lease to SSI for a period of three years of a portion of
Egghead.com's Spokane facility.
Gain on the disposition of the discontinued operation was $36.5 million ($22.3
million after tax). The sales price for the CGE division was $45.0 million,
which did not include the accounts receivable, which were collected during the
fiscal year. The reported gain is net of fixed assets and lease write-offs of
$1.2 million, transaction, legal and accounting fees of $2.0 million, transition
period employment costs of $1.8 million and costs of $3.4 million related to the
fulfillment of post-sale obligations as noted above.
The net assets and liabilities relating to discontinued operations have been
segregated on the consolidated balance sheet from their historic classifications
to separately identify them as being related to the discontinued operations.
Liabilities related to the disposition of the CGE division at March 29, 1997
consisted of liabilities relating to CGE activities and additional reserves
deemed necessary to complete the disposition of remaining CGE assets, including
the settlement of any remaining claims. The balance at March 30, 1996 consisted
of liabilities to be assumed by SSI upon the completion of the sale. In fiscal
1998, the remaining liabilities and reserves relating to CGE activities and
claims were settled. As of March 28, 1998, there are no remaining net assets
and liabilities relating to discontinued operations.
The income from discontinued operations for fiscal 1996, 1997, and 1998 is
comprised of the following (in millions):
Fiscal year
1996 1997 1998
------ ------ -----
Net sales $363.3 $ 39.3 $ -
Costs and expenses 362.7 59.4 (4.3)
------ ------ -----
Income (loss) before provision
for income taxes 0.6 (20.1) 4.3
Income tax expense (benefit) 0.2 (7.8)
------ ------ -----
Income (loss) from
discontinued operations $ 0.4 $(12.3) $ 4.3
====== ====== =====
NOTE 10 RECAPITALIZATION OF SUBSIDIARY
On November 11, 1997 Egghead.com recapitalized its wholly owned subsidiary
ELEKOM. As part of the recapitalization, certain venture capitalists invested
capital in ELEKOM, reducing the Company's ownership percentage to approximately
26% as of March 28, 1998. Prior to recapitalization, income and expenses of
ELEKOM were recorded in the Company's operating results. After
recapitalization, the Company's share of the results of operations of ELEKOM
were included using the equity method of accounting and are reflected in the
other income (expense) in the Company's consolidated statements of operations.
46
<PAGE>
EGGHEAD.COM, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements (continued)
Note 11 Subsequent Events
On May 1, 1998, the Company sold its previous headquarters building located in
Liberty Lake, Washington, for approximately $7.5 million. The building was
recorded in the Property Held for Sale on the Company's Balance Sheet. The
Company will lease approximately 6,500 square feet of the building over a lease
term of one year, including extensions.
47
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The information required by Part III, Item 10, is incorporated by reference
from Egghead.com, Inc.'s definitive Proxy Statement relating to Egghead.com,
Inc.'s 1998 Annual Meeting of Shareholders, which will be filed pursuant to
Regulation 14A within 120 days of March 28, 1998.
ITEM 11. EXECUTIVE COMPENSATION
The information required by Part III, Item 11, is incorporated by reference
from Egghead.com, Inc.'s definitive Proxy Statement relating to Egghead.com,
Inc.'s 1998 Annual Meeting of Shareholders, which will be filed pursuant to
Regulation 14A within 120 days of March 28, 1998.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by Part III, Item 12, is incorporated by reference
from Egghead.com, Inc.'s definitive Proxy Statement relating to Egghead.com,
Inc.'s 1998 Annual Meeting of Shareholders, which will be filed pursuant to
Regulation 14A within 120 days of March 28, 1998.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by Part III, Item 13, is incorporated by reference
from Egghead.com, Inc.'s definitive Proxy Statement relating to Egghead.com,
Inc.'s 1998 Annual Meeting of Shareholders, which will be filed pursuant to
Regulation 14A within 120 days of March 28, 1998.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) Documents filed as a part of this report:
- ---- -----------------------------------------
1. Financial Statements The Consolidated Financial
Statements, Notes thereto, Financial Statement Schedules
(none), and Accountants' Report thereon are included in
Part II, Item 8 of this report.
2(a) Exhibits
3.1+ Restated Articles of Incorporation of Egghead.com, Inc.
(vii) 3.2 Restated Bylaws of Egghead.com, Inc.
3.3+ Articles of Amendment to Articles of Incorporation of
Egghead, Inc. changing its name to Egghead.com, Inc.
48
<PAGE>
(x) 10.1* Microsoft 1995/1996 Channel Agreement dated July 1, 1995,
as amended through January 1, 1996.
(xi) 10.2* Amendment No. 1 to the Microsoft 1995/1996 Channel
Agreement, with attached addendums and amendments to the
addendums of such Agreement, through June 30, 1997.
10.3** Intentionally left blank
(xi) 10.4** Executive Deferred Compensation Plan and related documents
effective July 1, 1996
(xi) 10.5** Executive Employment Agreement between Egghead, Inc. and
DJ&J Software Corporation and George P. Orban dated as of
January 31, 1997. (Previously filed with registrant's Form
10-Q for the fiscal quarter ended June 28, 1997.)
10.5a**+ Pledge Agreement between Egghead.com, Inc. and George P.
Orban dated as of February 25, 1998.
(xi) 10.6** Nonqualified Stock Option Letter Agreement and Plan
Summary between Egghead Inc. and George P. Orban dated
January 31, 1997.
10.7** Egghead.com, Inc. 1997 Nonofficer Employee Stock Option
Plan (Previously filed with registrants' Form S-8 dated
June 5, 1998 as Exhibit 99.1.)
10.8** Employee Stock Issuance Program (Previously filed with
registrant's Form S-8 dated June 5, 1998 as Exhibit 99.2.)
10.9 Agreement and Plan of Merger, dated April 30, 1997, among
Egghead, Inc. ("Egghead"), North Face Merger Sub, Inc.
("North Face") and Surplus Software, Inc. ("Surplus
Direct") and certain shareholders of Surplus Direct, and
amendment thereto dated May 23, 1997 (Previously filed
with registrant's Registration Statement on Form S-4
(Registration No. 333-31251 as Exhibit 2.1, filed with the
SEC on July 14, 1997.)
10.10** Employment Agreement between Surplus Software, Inc. and
Gregory Boudreau, dated May 15, 1996 (Previously filed
with registrant's Form 10-Q for the quarter ended
September 27, 1997.)
10.11** Employment Agreement Amendment, effective April 30, 1997,
between Surplus Software, Inc. and Gregory Boudreau
(Previously filed with as part of registrant's
Registration Statement on Form S-4 (Registration No. 333-
31251) as Annex III to the Proxy Statement/Prospectus
contained in the Registration Statement filed with the SEC
on July 14, 1997.)
10.12** Employment Agreement between Surplus Software, Inc. and
Jonathan Brodeur, dated May 15, 1996 (Previously filed
with registrant's Form 10-Q for the quarter ended
September 27, 1997.)
10.13 Employment Agreement Amendment, effective April 30, 1997,
between Surplus Software, Inc. and Jonathan Brodeur
(Incorporated by reference to, and previously filed with
as part of registrant's Registration Statement on Form S-4
(Registration No. 333-31251) as Annex III to the Proxy
Statement/Prospectus contained in the Registration
Statement filed with the SEC on July 14, 1997.)
10.14 Intentionally left blank.
49
<PAGE>
10.15 Lease, as amended, dated June 9, 1988, between Sammamish
Park Place I Limited Partnership as Landlord and DJ&J
Software Corporation as Tenant regarding registrant's
administrative headquarters. (Previously filed with
registrant's Form 10-K for the fiscal year ended April 1,
1989, as Exhibit 10.46.)
10.16 First Amendment to June 9, 1988 Lease between Sammamish
Park Place I Limited Partnership and DJ&J Software
Corporation dated October 4, 1989. (Previously filed with
registrant's Form 10-K for the fiscal year ended March 31,
1990, as Exhibit 10.46a.)
10.17 Lease dated March 23, 1992 between Sammamish Park Place II
Limited Partnership as Landlord and DJ&J Software
Corporation as Tenant regarding registrant's
administrative headquarters. (Previously filed with
registrant's Form 10-K for the fiscal year ended March 28,
1992, as Exhibit 10.47.)
10.18 Lease Termination and Rent Payment Agreement between
Sammamish Park Place II Limited Partnership as Landlord
and DJ&J Software Corporation as Tenant regarding
registrant's administrative headquarters. (Previously
filed with registrant's Form 10-Q for the quarter ended
July 2, 1994.)
(vi) 10.18a First Amendment to Lease Termination and Rent Payment
Agreement between Sammamish Park Place II Limited
Partnership as Landlord and DJ&J Software Corporation as
Tenant.
(vi) 10.18b Second Amendment to Lease Termination and Rent Payment
Agreement between Sammamish Park Place II Limited
Partnership as Landlord and DJ&J Software Corporation as
Tenant.
(iii) 10.19 Lease dated March 23, 1989, between The CHY Company as
Landlord and DJ&J Software Corporation as Tenant regarding
registrant's Sacramento distribution facility.
(iii) 10.20 First amendment to lease between The CHY Company as
Landlord and DJ&J Software as Tenant regarding
registrant's Sacramento distribution facility.
(xi) 10.21 Lease dated May 15, 1995 between Central Valley Limited
Liability Company as Lessor and DJ&J Software Corporation
d/b/a Egghead Software as Lessee, regarding Registrant's
Sacramento distribution facility, with attached Exercise
of Option extending lease term date to September 30, 1998.
(i) 10.22 Lease Agreement dated January 7, 1988 with Granite
Properties, a limited partnership, as Landlord and DJ&J
Software Corporation, as Tenant, regarding registrant's
Lancaster distribution facility.
10.23 Intentionally left blank
10.24 Intentionally left blank
(viii) 10.25 Asset Purchase Agreement by and among Software Spectrum,
Inc., Egghead, Inc. and DJ&J Software Corporation dated as
of March 23, 1996 with Exhibits 4.11 and 4.12 thereto.
10.26 Intentionally left blank.
10.27 Intentionally left blank
50
<PAGE>
10.28 Intentionally left blank
10.29 Intentionally left blank
10.30 Intentionally left blank
10.31 Intentionally left blank.
10.32 Intentionally left blank.
10.33 Intentionally left blank
(ii) 10.34** Egghead, Inc. 1989 Executive Retention Incentive Stock
Option Plan.
(ii) 10.35** Egghead, Inc. 1989 Executive Retention Incentive Stock
Option Agreement between Egghead, Inc. and Stuart M. Sloan
dated February 23, 1989.
(ii) 10.36** Egghead, Inc. 1989 Executive Retention Non-Qualified Stock
Option Agreement between Egghead, Inc. and Stuart M. Sloan
dated February 23, 1989.
(iii) 10.36a** Amendment No. 1 to Egghead, Inc. 1989 Executive Retention
Non-Qualified Stock Option Agreement between Egghead, Inc.
and Stuart M. Sloan dated April 17, 1991.
10.37 Intentionally left blank.
10.38 Intentionally left blank.
(ii) 10.39** Egghead, Inc. 1989 Executive Retention Incentive Stock
Option Agreement between Egghead, Inc. and Ronald A.
Weinstein dated February 23, 1989.
(iii) 10.39a** Amendment No. 1 to Egghead, Inc. 1989 Executive Retention
Incentive Stock Option Agreement between Egghead, Inc. and
Ronald A. Weinstein dated April 17, 1991.
(ii) 10.40** Egghead, Inc. 1989 Executive Retention Non-Qualified Stock
Option Agreement between Egghead, Inc. and Ronald A.
Weinstein dated February 23, 1989.
(iii) 10.40a** Amendment No. 1 to Egghead, Inc. 1989 Executive Retention
Non-Qualified Stock Option Agreement between Egghead, Inc.
and Ronald A. Weinstein dated April 17, 1991.
10.41 Intentionally left blank.
10.42 Intentionally left blank.
(ii) 10.43** Egghead, Inc. 1989 Executive Retention Incentive Stock
Option Agreement between Egghead, Inc. and Matthew J.
Griffin dated February 23, 1989.
(ii) 10.44** Egghead, Inc. 1989 Executive Retention Non-Qualified Stock
Option Agreement between Egghead, Inc. and Matthew J.
Griffin dated February 23, 1989.
(iii) 10.44a** Egghead, Inc. 1989 Executive Retention Non-Qualified Stock
Option Agreement between Egghead, Inc. and Matthew J.
Griffin dated April 17, 1991.
10.45 Intentionally left blank.
10.46 Intentionally left blank.
51
<PAGE>
10.47 Intentionally left blank.
10.48** Egghead, Inc. 1989 Employee Stock Purchase Plan.
(Previously filed with registrant's Form S-8 dated June
23, 1990, as Exhibit 10.)
10.49** Egghead, Inc. 1993 Stock Option Plan. (Previously filed
with registrant's Form 10-Q dated for the quarter ended
October 16, 1993, as Exhibit 10.31.)
10.49(a)** Amended Egghead, Inc. 1993 Stock Option Plan (Previously
filed with registrant's Form 10-Q for fiscal quarter ended
September 27, 1997.)
10.49(b)+** Second Amended Egghead, Inc. 1993 Stock Option Plan.
(x) 10.50** Egghead.com, Inc. Restated Nonemployee Director Stock
Option Plan.
10.51** Executive Employment Agreements with each of Tommy
Collins, Brian W. Bender, Norma Hullinger and James
Kalasky (Previously filed with registrant's Form 10-Q for
the fiscal quarter ended December 27, 1997.)
21.1+ List of subsidiaries of Egghead.com, Inc.
23.1+ Consent of Arthur Andersen LLP.
24.1+ Power of Attorney (contained on signature page).
27.1+ Financial Data Schedule
(xi) 99.1** Resignation & Release Agreement between Peter F. Grossman
and Egghead Inc. and DJ&J Software Corporation effective
April 25, 1997.
(xi) 99.2** Resignation & Release Agreement between Ronald J. Smith
and Egghead Inc. and DJ&J Software Corporation effective
February 15, 1997.
(xi) 99.3** Resignation & Release Agreement between Terrence M. Strom
and Egghead Inc. and DJ&J Software Corporation effective
February 15, 1997.
_____________
+ Filed herewith.
(i) Previously filed with registrant's Registration Statement on Form S-1,
Registration No. 33-21472, as same exhibit number.
(ii) Previously filed with registrant's Form 8-K dated February 23, 1989, as
Exhibits 10.1 to 10.13.
(iii) Previously filed with registrant's Form 10-K for the fiscal year ended
March 29, 1992, as same exhibit number.
(iv) Previously filed with registrant's Form 10-K for the fiscal year ended
April 3, 1993, as same exhibit number.
(v) Previously filed with registrant's Form 10-K for the fiscal year ended
April 2, 1994, as same exhibit number.
(vi) Previously filed with registrant's Form 10-Q for the quarter ended
October 1, 1994.
(vii) Previously filed with registrant's Form 10-K for the fiscal year ended
April 1, 1995, as same exhibit number.
(viii) Previously filed with registrant's Form 8-K dated March 23, 1996,
as Exhibit 2.1.
(x) Previously filed with registrant's Form 10-K for the fiscal year ended
March 30, 1996, as same exhibit number.
52
<PAGE>
(xi) Previously filed with registrant's Form 10-K for the fiscal year ended
March 29, 1997, as same exhibit number.
* Confidential portions of this exhibit have been omitted and filed
separately with the Securities and Exchange Commission pursuant to an
Application for Confidential Treatment under Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Each exhibit has been
marked to identify the confidential portions that are omitted.
** Designates management contract or compensatory plan or arrangement.
2b. Form 8-K
Egghead.com, Inc. filed two reports on Form 8-K, dated, during the
fourth quarter of its fiscal year ended March 28, 1998: a report on Form
8-K, filed January 28, 1998, which reported on Item 5 of Form 8-K; and a
report on Form 8-K, filed June 5, 1998, which reported on Item 1 of Form
8-K and contained certain pro-forma financial information.
53
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities and
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Liberty
Lake, State of Washington, on June 24, 1998.
EGGHEAD.COM, INC.
By /s/ George P. Orban
____________________________________
George P. Orban
Chief Executive Officer, Chairman
of the Board
EGGHEAD.COM, INC.
By /s/ Brian W. Bender
____________________________________
Brian W. Bender
Chief Accounting Officer, Chief
Financial Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
George P. Orban and Brian W. Bender, or either of them, as attorneys-in-fact
with full power of substitution, to execute in the name and on behalf of each
person, individually and in each capacity stated below, and to file, any and all
amendments to this report, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-fact, of their
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
following persons have signed this report on June 24, 1998, on behalf of the
Registrant and in capacities indicated.
Signature Title
- --------- -----
/s/ George P. Orban Chairman of the Board
- --------------------------------------------------
George P. Orban
/s/ Richard P. Cooley Director
- --------------------------------------------------
Richard P. Cooley
/s/ Greg Boudreau Director
- --------------------------------------------------
Greg Boudreau
/s/ Eric P. Robison Director
- --------------------------------------------------
Eric P. Robison
/s/ Jonathan W. Brodeur Director
- --------------------------------------------------
Jonathan W. Brodeur
54
<PAGE>
Signature Title
- --------- -----
/s/ Samuel N. Stroum Director
- --------------------------------------------------
Samuel N. Stroum
/s/ Melvin A. Wilmore Director
- --------------------------------------------------
Melvin A. Wilmore
55
<PAGE>
EXHIBIT 3.1
ARTICLES OF CORRECTION
FOR
RESTATED ARTICLES OF INCORPORATION
OF
EGGHEAD, INC.
The Restated Articles of Incorporation for Egghead, Inc. filed on April
21, 1988 are to be corrected as follows:
Two typographical errors appearing on page 4 are to be corrected as
follows: (i) the number "66-2/3" appearing on the second line of
paragraph (b) is hereby corrected to read "55" and (ii) in subsentence
(B) of paragraph (b) the phrase "create or increase" is hereby
corrected to read "create, designate or increase."
These corrections will not amend or change the original statements made
except to correct typographical errors appearing on page 4.
DATED: April 22, 1988.
/s/ Stephen J. Schweickert
--------------------------
Stephen J. Schweickert
<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
EGGHEAD, INC.
These Restated Articles of Incorporation of Egghead, Inc. correctly set
forth without change the corresponding provisions of the Articles of
Incorporation, as amended, and these Restated Articles of Incorporation
supersede the original Articles of Incorporation and all amendments thereto.
ARTICLE I - NAME
The name of this corporation is EGGHEAD, INC.
ARTICLE II - DURATION
This corporation has perpetual existence.
ARTICLE III - PURPOSE
This corporation is organized for the purposes of transacting any and all
lawful business for which corporations may be incorporated under Title 23A of
the Revised Code of Washington, as amended.
ARTICLE IV - REGISTERED OFFICE
The address of the registered office of the corporation is 1900 Bank of
California Center, Seattle, Washington 98164 and the name of the registered
agent at such address is Bogle & Co.
ARTICLE V - AUTHORIZED SHARES
The corporation shall be authorized to issue Fifty Million (50,000,000)
shares of common stock, par value $0.01 per share.
The corporation shall be authorized to issue Sixteen Million Five Hundred
Sixty-Nine Thousand Eight Hundred Forty-Eight (16,569,848) shares of preferred
stock, par value $0.01. Three Million Four Hundred Thirteen Thousand Four
Hundred Sixty (3,413,460) shares of preferred stock shall be designated Series A
Preferred Stock; One Million Six Hundred Fifty-Six Thousand Three Hundred
Eighty-Eight (1,656,388) shares of preferred stock shall be designated Series B
Preferred Stock; and One Million Five Hundred Thousand (1,500,000) shares of
preferred stock shall be designated as Series C Preferred Stock. Holders of
Series A Preferred Stock, Series B Preferred Stock and Series C Stock shall have
the rights and preferences as follows:
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TERMS AND PROVISIONS
OF
SERIES A PREFERRED STOCK
Series A Preferred Stock, $.01 par value
1. DIVIDENDS
The holders of shares of Series A Preferred Stock shall be entitled to
receive regular cash dividends, if, when and as declared by the Board of
Directors, at the annual rate per share of 8% of the initial Series A Conversion
Price as set forth in subparagraph 4(c) hereof, exclusive of any adjustment
pursuant to subparagraph 4(f). Dividends shall be non-cumulative. The holders
of shares of Series A Preferred Stock shall be entitled to no dividends with
respect to such Series A Preferred Stock other than as aforesaid. Declared but
unpaid dividends shall be accrued but shall not bear interest. No dividend or
distribution in cash or other property (other than a stock dividend payable
solely in shares of Common Stock) on any class of Common Stock of the Company
shall be declared or paid or set apart for payment in any fiscal year unless a
dividend in the amount set forth above per share on the Series A Preferred Stock
shall have been paid in full in such fiscal year.
2. PREFERENCE ON LIQUIDATION, ETC.
In the event of any voluntary or involuntary liquidation, distribution of
assets (other than the payment of dividends), dissolution or winding-up of the
Company, before any payment or distribution of the assets of the Company
(whether capital or surplus) shall be made to or set apart for the holders of
shares of Common Stock, the holders of shares of Series A Preferred Stock shall
be entitled to receive payment of $4.16 per share held by them plus an amount
equal to any declared but unpaid dividends thereon to the date of final
distribution to such holders.
If, upon any liquidation, distribution of assets, dissolution or winding-up
of the Company, the assets of the Company, or proceeds thereof, distributable
among the holders of shares of Series A Preferred Stock shall be insufficient to
pay in full the respective preferential amounts on the shares of Series A
Preferred Stock, then such assets, or the proceeds thereof, shall be distributed
among such holders ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were paid in full. For
the purposes of this paragraph 2, the voluntary sale, lease or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all of the assets of the Company to, or a consolidation or merger
of the Company with, one or more Persons shall not be deemed to be a
liquidation, distribution of assets, dissolution or winding-up, voluntary or
involuntary; provided that any holder of shares of Series A Preferred Stock
shall have the
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right to treat any sale, lease or transfer of 50% or more of the assets of the
Company or any consolidation or merger as a liquidation under this paragraph 2
and be entitled to a preference to the extent set forth herein with respect to
the shares of Series A Preferred Stock held by such holder.
After the payment or setting apart of payment to the holders of the Series
A Preferred Stock of the preferential amounts so payable to them, the holders of
Common Stock as of October 9, 1985 shall be entitled to receive an aggregate
amount equal to $1,300,000 (to be distributed as such holders of Common Stock
may agree) plus any declared but unpaid dividends thereon to the date of final
distribution to such holders.
After the payment or setting apart of payment to holders of Series A
Preferred Stock and holders of Common Stock as of October 9, 1985 of the
preferential amounts so payable to them, the Series A Preferred Stock shall be
deemed to have been converted into Common Stock and the holders of each share of
Common Stock shall receive pro rata the remaining assets of the Company.
3. VOTING
A. GENERAL
In addition to the special voting rights provided below and by
applicable law, the holders of shares of Series A Preferred Stock shall be
entitled to vote upon all matters upon which holders of the Common Stock have
the right to vote, and each share of Series A Preferred Stock shall be entitled
to the number of votes equal to the largest number of full shares of Common
Stock into which such shares of Series A Preferred Stock could be converted
pursuant to the applicable provisions of paragraph 4 hereof, at the record date
for the determination of the stockholders entitled to vote on such matters, or,
if no such record date is established, at the date such vote is taken or any
written consent of stockholders is solicited, such votes to be counted together
with all other shares of capital stock having general voting powers and not
separately as a class. In all cases where the holders of shares of Series A
Preferred Stock have the right to vote separately as a class, such holders shall
be entitled to one vote for each such share held by them respectively.
B. SPECIAL CLASS VOTE
Without the consent of the holders of at least 66 2/3% of the
aggregate number of shares of Series A Preferred Stock then outstanding, given
in writing or by vote at a meeting of stockholders called for such purpose, the
Company will not (A) increase the authorized amount of Series A Preferred Stock;
(B) create or increase the authorized amount of any other class of stock nor
reclassify the rights of any class of capital stock or issue any debt
convertible into any class of stock; (C) amend, alter or repeal the Certificate
of Incorporation or by-laws of the Company so as to adversely
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<PAGE>
affect, either directly or indirectly, the preferences, rights or powers of the
Series A Preferred Stock; (D) merge or consolidate with or into any other
Person, or sell, lease or transfer 50% or more of its assets or business to
another Person; (E) purchase, lease or otherwise acquire all or substantially
all of the assets of any other Person in any transaction in which the fair
market value of such assets exceeds an amount equal to 10 percent of the
Company's total assets; (F) voluntarily dissolve, liquidate or wind up the
affairs of the Company or any Subsidiary or carry out any partial liquidation or
distribution of the assets of the Company or any such Subsidiary or any
transaction in the nature of a partial liquidation or distribution; (G)
authorize or adopt any stock option plan for the Company's directors or
employees other than the incentive Stock Option Plan in effect on October 9,
l985 (the "ISO Plan") or amend the ISO Plan; or (H) grant any additional
registration rights with respect to its capital stock.
4. CONVERSION RIGHTS
The Series A Preferred Stock shall be convertible into Common Stock as
follows:
a. OPTIONAL CONVERSION
Subject to and upon compliance with the provisions of this paragraph
4, the holder of any shares of Series A Preferred Stock shall have the right at
such holder's option, at any time or from time to time, to convert any of such
shares of Series A Preferred Stock into fully paid and nonassessable shares of
Common Stock at the Series A Conversion Price (as hereinafter defined) in effect
on the Series A Conversion Date (as hereinafter defined) upon the terms
hereinafter set forth.
b. AUTOMATIC CONVERSION
Each outstanding share of Series A Preferred Stock shall automatically
be converted, without any further act of the Company or its stockholders, into
fully paid and nonassessable shares of Common Stock pursuant to the formula as
set forth in subparagraph 4(c) upon the closing of an underwritten public
offering underwritten by an investment banking firm of nationally recognized
standing pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offering and sale of the Company's Common
Stock in which the aggregate gross offering proceeds equal or exceed $7,500,000,
the price per share of which equals or exceeds $7.50 (as appropriately adjusted
for any stock dividend, stock split, recapitalization or combination of shares)
and there are at least 350 record or beneficial holders of Common Stock of the
Company immediately subsequent to the closing of the sale of such shares.
c. SERIES A CONVERSION PRICE
Each share of Series A Preferred Stock shall be converted into the
number of shares of Common Stock as is determined by dividing (x) $4.16 by (y)
the Series A
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<PAGE>
Conversion Price in effect on the Series A Conversion Date. The Series A
Conversion Price at which shares of Common Stock shall initially be issuable
upon conversion of the shares of Series A Preferred Stock shall be $4.16. The
Series A Conversion Price shall be subject to adjustment as set forth in
subparagraph 4(f). No payment or adjustment shall be made for any dividends on
the Common Stock issuable upon such conversion.
d. MECHANICS OF CONVERSION
Upon the occurrence of the events specified in subparagraph 4(b), the
outstanding shares of Series A Preferred Stock shall be converted automatically
without any further action by the holders of such shares and whether or not the
certificates representing such shares are surrendered to the Company or its
transfer agent; provided that the Company shall not be obligated to issue to any
such holder certificates evidencing the shares of Common Stock issuable upon
such conversion unless certificates evidencing the shares of Series A Preferred
Stock are delivered to the Company or any transfer agent of the Company. The
holder of any shares of Series A Preferred Stock may exercise the conversion
right specified in subparagraph 4(a) as to any part thereof by surrendering to
the Company or any transfer agent of the Company the certificate or certificates
for the shares to be converted, accompanied by written notice stating that the
holder elects to convert all or a specified portion of the shares represented
thereby. Conversion of the Series A Preferred Stock shall be deemed to have
been affected on the date on which the event specified with respect to such
Series A Preferred Stock in subparagraph 4(b) shall have occurred or on the date
when delivery of notice of an election to convert and certificates for shares is
made, as the case may be, and such date is referred to herein with respect to
the Series A Preferred Stock as the "Series A Conversion Date." Subject to the
provisions of subparagraph 4(f)(vii), as promptly as practicable thereafter (and
after surrender of the certificate or certificates representing shares of Series
A Preferred Stock to the Company or any transfer agent of the Company in the
case of conversions pursuant to subparagraph 4(b)) the Company shall issue and
deliver to such holder a certificate or certificates for the number of full
shares of Common Stock to which such holder is entitled and a check or cash with
respect to any fractional interest in a share of Common Stock as provided in
subparagraph 4(e) and any dividends on the Series A Preferred Stock which such
holder is entitled to receive, but has not yet received. Subject to the
provisions of subparagraph 4(f)(vii), the Person in whose name the certificate
or certificates for Common Stock are to be issued shall be deemed to have become
a holder of record of such Common Stock on the applicable Series A Conversion
Date. Upon conversion of only a portion of the number of shares covered by a
certificate representing shares of Series A Preferred Stock surrendered for
conversion (in the case of conversion pursuant to subparagraph 4(a)), the
Company shall issue and deliver to the holder of the certificate so surrendered
for conversion, at the expense of the Company, a new certificate covering the
number of shares of Series A Preferred Stock representing the unconverted
portion of the certificate so surrendered.
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<PAGE>
e. FRACTIONAL SHARES
No fractional shares of Common Stock or scrip shall be issued upon
conversion of shares of Series A Preferred Stock. If more than one share of
Series A Preferred Stock shall be surrendered for conversion at any one time by
the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
shares of Series A Preferred Stock so surrendered. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion of any
shares of Series A Preferred Stock, the Company shall pay a cash adjustment in
respect of such fractional interest in an amount equal to that fractional
interest of the then Current Market Price.
f. CONVERSION PRICE ADJUSTMENTS FOR THE SERIES A PREFERRED STOCK
The Conversion Price for the Series A Preferred Stock shall be subject
to adjustment from time to time as follows:
(i) (A) Common Stock Issued at a Price Less than the Series A
Conversion Price and Equal to or Greater than 84% of the Series A Conversion
Price. If the Company shall issue Common Stock other than Excluded Stock for a
consideration per share less than the initial Series A Conversion Price as set
forth in subparagraph 4(c) above (as adjusted pursuant to subparagraphs
4(f)(iii) through 4(f)(v)) (for example, $4.16 on October 9, 1985) and equal to
or greater than 84% of the initial Series A Conversion Price as set forth in
subparagraph 4(c) above (as adjusted pursuant to subparagraphs 4(f)(iii) through
4(f)(v) (for example, $3.50 on October 9, 1985), the Series A Conversion Price
in effect immediately prior to each such issuance shall immediately (except as
provided below) be reduced to the price determined by dividing (1) an amount
equal to the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issuance plus the number of shares of Common Stock
then issuable upon conversion of shares of Series A Preferred Stock, multiplied
by the Series A Conversion Price in effect immediately prior to such issuance
and (B) the consideration, if any, received by the Company upon such issuance,
by (2) the total number of shares of Common Stock outstanding immediately after
such issuance plus the number of shares of Common Stock then issuable upon
conversion of shares of Series A Preferred Stock.
(B) Common Stock Issued at a Price Less than 84% of the Series A
Conversion Price. If the Company shall issue any Common Stock other than
Excluded Stock without consideration or for a consideration less than 84% of the
initial Series A Conversion Price as set forth in subparagraph 4(c) above (as
adjusted pursuant to subparagraphs 4(f)(iii) through 4(f)(v)) (for example,
$3.50 on October 9, 1985), then the Series A Conversion Price in effect
immediately prior to such issuance shall be
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<PAGE>
immediately reduced to a price per share equal to the consideration per share
received by the Company.
For the purposes of any adjustment of the Series A Conversion Price
pursuant to clause (i) the following provisions shall be applicable:
(A) Cash. In the case of the issuance of Common Stock for cash,
the amount of the consideration received by the Company shall be deemed to be
the amount of the cash proceeds received by the Company for such Common Stock
before deducting therefrom any reasonable discounts, commissions, taxes or other
expenses allowed, paid or incurred by the Company for any underwriting or
otherwise in connection with the issuance and sale thereof.
(B) Consideration Other Than Cash. In the case of the issuance
of Common Stock (otherwise than upon the conversion of shares of capital stock
or other securities of the Company) for a consideration in whole or in part
other than cash, including securities acquired in exchange therefor (other than
securities by their terms so exchangeable), the consideration other than cash
shall be deemed to be the fair value thereof as determined by the Board of
Directors; irrespective of any accounting treatment; provided that such fair
value as determined by the Board of Directors shall not exceed the aggregate
Current Market Price of the shares of Common Stock being issued as of the date
the Board of Directors authorizes the issuance of such shares.
(C) Options and Convertible Securities. In the case of the
issuance of (i) options, warrants or other rights to purchase or acquire Common
Stock (whether or not at the time exercisable), (ii) securities by their terms
convertible into or exchangeable for Common Stock (whether or not at the time so
convertible or exercisable) or (iii) options, warrants or rights to purchase
such convertible or exchangeable securities (whether or not at the time
exercisable) (other than the Series A Preferred Stock):
(1) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options, warrants or other rights to purchase
or acquire Common Stock shall be deemed to have been issued at the time such
options, warrants or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in subclauses (A) and (B)
above), if any, received by the Company upon the issuance of such options,
warrants or rights plus the minimum purchase price provided in such options,
warrants or rights for the Common Stock covered thereby;
(2) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities, or upon the exercise of options, warrants or other
rights to purchase or acquire such convertible or exchangeable securities and
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<PAGE>
the subsequent conversion or exchange thereof, shall be deemed to have been
issued at the time such securities were issued or such options, warrants or
rights were issued and for a consideration equal to the consideration, if any,
received by the Company for any such securities and related options, warrants or
rights (excluding any cash received on account of accrued interest or accrued
dividends), plus the minimum additional consideration, if any, to be received by
the Company upon the conversion or exchange of such securities and the exercise
of any related options, warrants or rights (the consideration in each case to be
determined in the manner provided in subclauses (A) and (B) above);
(3) on any change in the number of shares of Common Stock
deliverable upon exercise of any such options, warrants or rights or conversion
of or exchange for such convertible or exchangeable securities or any change in
the consideration to be received by the Company upon such exercise, conversion
or exchange, including, but not limited to, a change resulting from the
antidilution provisions thereof, the Series A Conversion Price as then in effect
shall forthwith be readjusted to such Series A Conversion Price as would have
been obtained had an adjustment been made upon the issuance of such options,
warrants or rights not exercised prior to such change, or securities not
converted or exchanged prior to such change, upon the basis of such change;
(4) on the expiration or cancellation of any such options,
warrants or rights, or the termination of the right to convert or exchange such
convertible or exchangeable securities, if the Series A Conversion Price shall
have been adjusted upon the issuance thereof, such Series A Conversion Price
shall forthwith be readjusted to such Series A Conversion Price as would have
been obtained had an adjustment been made upon the issuance of such options,
warrants, rights or securities on the basis of the issuance of only the number
of shares of Common Stock actually issued upon the exercise of such options,
warrants or rights, or upon the conversion or exchange of such securities; and
(5) if the Series A Conversion Price shall have been
adjusted upon the issuance of any such options, warrants, rights or convertible
or exchangeable securities, no further adjustment of the Series A Conversion
Price shall be made for the actual issuance of Common Stock upon the exercise
thereof;
provided, however, that no increase in the Series A Conversion Price shall be
made pursuant to subclauses (1), (2) or (3) of this subclause (C).
(ii) Excluded Stock. "Excluded Stock" shall mean shares of Common
Stock issued or reserved for issuance by the Company (A) as a stock dividend
payable in shares of Common Stock, (B) upon any subdivision or split-up of the
outstanding shares of Common Stock, (C) upon conversion of shares of Series A
Preferred Stock or
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(D) pursuant to sales of Common Stock or stock options permitted under the
Company's Incentive Stock Option Plan.
(iii) Stock Dividends. If the number of shares of Common Stock
outstanding at any time after the date of issuance of the Series A Preferred
Stock is increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then immediately after the
record date fixed for the determination of holders of Common Stock entitled to
receive such stock dividend or the effective date of such subdivision or split-
up, as the case may be, the Series A Conversion Price shall be appropriately
reduced so that the holder of any shares of Series A Preferred Stock thereafter
converted shall be entitled to receive the number of shares of Common Stock of
the Company which he would have owned immediately following such action had such
shares of Series A Preferred Stock been converted immediately prior thereto.
(iv) Combination of Stock. If the number of shares of Common Stock
outstanding at any time after the date of issuance of the Series A Preferred
Stock is decreased by a combination of the outstanding shares of Common Stock,
then, immediately after the effective date of such combination, the Series A
Conversion Price shall be appropriately increased so that the holder of any
shares of Series A Preferred Stock thereafter converted shall be entitled to
receive the number of shares of Common Stock of the Company which he would have
owned immediately following such action had such shares of Series A Preferred
Stock been converted immediately prior thereto.
(v) Reorganizations, etc. In case of any capital reorganization of
the Company, or of any reclassification of the Common Stock, or in case of the
consolidation of the Company with or the merger of the Company with or into any
other Person or of the sale, lease or other transfer of all or substantially all
of the assets of the Company to any other Person, each share of Series A
Preferred Stock shall after such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer be convertible into the
number of shares of stock or other securities or property to which the Common
Stock issuable (at the time of such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer) upon conversion of such
share of Series A Preferred Stock would have been entitled upon such capital
reorganization, reclassification, consolidation, merger, sale, lease or other
transfer; and in any such case, if necessary, the provisions set forth herein
with respect to the rights and interests thereafter of the holders of the shares
of Series A Preferred Stock shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the conversion of the shares of
Series A Preferred Stock. The subdivision or combination of shares of Common
Stock issuable upon conversion of shares of Series A Preferred Stock at any time
outstanding into a greater or lesser number of shares of Common Stock (whether
with or without par value) shall not be deemed to be a reclassification of the
Common Stock of the Company for the purposes of this clause (v).
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(vi) Rounding of Calculations; Minimum Adjustment. All calculations
under this subparagraph (f) shall be made to the nearest cent or to the nearest
one hundredth (1/100th) of a share, as the case may be. Any provision of this
paragraph 4 to the contrary notwithstanding, no adjustment in the Series A
Conversion Price shall be made if the amount of such adjustment would be less
than 1% of the Series A Conversion Price then in effect, but any such amount
shall be carried forward and an adjustment with respect thereto shall be made at
the time of and together with any subsequent adjustment which, together with
such amount and any other amount or amounts so carried forward, shall aggregate
1% or more of the Series A Conversion Price then in effect.
(vii) Timing of Issuance of Additional Common Stock Upon Certain
Adjustments. In any case in which the provisions of this subparagraph (f) shall
require that an adjustment shall become effective immediately after a record
date for an event, the Company may defer until the occurrence of such event (A)
issuing to the holder of any share of Series A Preferred Stock converted after
such record date and before the occurrence of such event the additional shares
of Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the shares of Common Stock issuable upon
such conversion before giving effect to such adjustment and (B) paying to such
holder any amount of cash in lieu of a fractional share of Common Stock pursuant
to subparagraph (e) of this paragraph 4; provided that the Company upon request
shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares, and such cash,
upon the occurrence of the event requiring such adjustment.
g. CURRENT MARKET PRICE
The Current Market Price at any date shall mean the price per share of
Common Stock on such date determined by the Board of Directors as provided
below. The Current Market Price shall be the average of the daily closing
prices per share of Common Stock for 30 consecutive business days ending no more
than 15 business days before the day in question (as adjusted for any stock
dividend, split, combination or reclassification that took effect during such 30
business day period). The closing price for each day shall be the last reported
sales price regular way or, in case no such reported sales take place on such
day, the average of the last reported bid and asked prices regular way, in
either case on the principal national securities exchange on which the Common
Stock is listed or admitted to trading, or if not listed or admitted to trading
on any national securities exchange, the average of the highest bid and the
lowest asked prices quoted on the National Association of Securities Dealers
Automated Quotation System; provided that if the Common Stock is not traded in
such manner that the quotations referred to above are available for the period
required hereunder, Current Market Price per share of Common Stock shall be
deemed to be the higher of (i) book value or (ii) fair value as determined by an
investment banking firm of nationally recognized standing selected by the
unanimous vote of the Board of Directors, irrespective of any accounting
treatment.
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h. STATEMENT REGARDING ADJUSTMENTS
Whenever the Series A Conversion Price shall be adjusted as provided
in subparagraph 4(f), the Company shall forthwith file, at the office of any
transfer agent for the Series A Preferred Stock and at the principal office of
the Company, a statement showing in detail the facts requiring such adjustment
and the Series A Conversion Price that shall be in effect after such adjustment,
and the Company shall also cause a copy of such statement to be sent by mail,
first class postage prepaid, to each holder of shares of Series A Preferred
Stock at its address appearing on the Company's records. Each such statement
shall be signed by the Company's independent public accountants. Where
appropriate, such copy may be given in advance and may be included as part of a
notice required to be mailed under the provisions of subparagraph 4(i).
i. NOTICE TO HOLDERS
In the event the Company shall propose to take any action of the type
described in clause (i) (but only if the action of the type described in clause
(i) would result in an adjustment in the Series A Conversion Price), (iii), (iv)
or (v) of subparagraph 4(f), the Company shall give notice to each holder of
shares of Series A Preferred Stock in the manner set forth in subparagraph 4(h),
which notice shall specify the record date, if any, with respect to any such
action and the approximate date on which such action is to take place. Such
notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the Series A Conversion Price
and the number, kind or class of shares or other securities or property which
shall be deliverable or purchasable upon the occurrence of such action or
deliverable upon conversion of shares of Series A Preferred Stock. In the case
of any action which would require the fixing of a record date, such notice shall
be given at least 15 days prior to the date so fixed, and in case of all other
action, such notice shall be given at least 20 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action, or the rights of holders of
Series A Preferred Stock with respect to such action.
j. TREASURY STOCK
For the purposes of this paragraph 4, the sale or other disposition of
any Common Stock of the Company theretofore held in its treasury shall be deemed
to be an issuance thereof.
k. COSTS
The Company shall pay all documentary, stamp, transfer or other
transactional taxes attributable to the issuance or delivery of shares of Common
Stock of the Company upon conversion of any shares of Series A Preferred Stock
provided that the
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Company shall not be required to pay any taxes which may be payable in respect
of any transfer involved in the issuance or delivery of any certificate for such
shares in a name other than that of the holder of the share of Series A
Preferred Stock in respect of which such shares are being issued.
l. RESERVATION OF SHARES
The Company shall reserve at all times so long as any shares of Series
A Preferred Stock remain outstanding, free from preemptive rights, out of its
treasury stock or its authorized but unissued shares of Common Stock, or both,
solely for the purpose of effecting the conversion of the shares of Series A
Preferred Stock, sufficient shares of Common Stock to provide for the conversion
of all outstanding shares of Series A Preferred Stock.
m. APPROVALS
If any shares of Common Stock to be reserved for the purpose of
conversion of shares of Series A Preferred Stock require registration with or
approval of any governmental authority under any Federal or state law before
such shares may be validly issued or delivered upon conversion, then the Company
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be. If, and so long as, any Common
Stock into which the shares of Series A Preferred Stock are then convertible is
listed on any national securities exchange, the Company will, if permitted by
the rules of such exchange, list and keep listed on such exchange, upon official
notice of issuance, all shares of such Common Stock issuable upon conversion.
n. VALID ISSUANCE
All shares of Common Stock which may be issued upon conversion of the
shares of Series A Preferred Stock will upon issuance by the Company be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof and the Company shall take no
action which will cause a contrary result (including without limitation, any
action which would cause the Series A Conversion Price to be less than the par
value, if any, of the Common Stock).
o. CERTAIN DIVIDENDS AND DISTRIBUTIONS
In the event the Company shall declare a cash dividend or other
distribution upon its Common Stock payable otherwise than out of retained
earnings or net profits or shall distribute to holders of its Common Stock
shares of its capital stock (other than Common Stock), stock or other securities
of other Persons, evidences of indebtedness issued by the Company or others,
other assets (other than cash) or any options, warrants or other rights to
purchase any of the foregoing, then each holder of the Series A
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Preferred Stock then outstanding shall, upon the exercise of his right to
convert after the record date fixed for the determination of the holders of
Common Stock of the Company entitled to receive such dividend or distribution
(or if none is fixed, after the date such dividend or distribution is made),
receive (in addition to the shares of Common Stock deliverable upon such
conversion), the dividend or distribution (or, at the option of the Company,
cash in an amount equal to the fair value thereof at the time of such dividend
or distribution as determined by the Board of Directors) which would have been
paid or distributed to such holder if he had converted immediately prior to such
record date (or if none, the date of such dividend or distribution).
5. REDEMPTION
Except as the holders of Series A Preferred Stock are entitled to have
their shares redeemed pursuant to Paragraph 2 hereof, the Company shall not
redeem the Series A Preferred Stock, in whole or in part.
6. RETIREMENT OF SHARES
Shares of Series A Preferred Stock which have been issued and have been
redeemed, repurchased or reacquired in any manner by the Company shall be
retired and shall not be reissued.
7. GENERAL PROVISIONS
(a) The term "Person" as used herein means any corporation, partnership,
trust, organization, association, other entity or individual.
(b) The term "outstanding," when used with reference to shares of stock,
shall mean issued shares, excluding shares held by the Company or a subsidiary.
(c) All accounting terms used herein and not expressly defined herein shall
have the meanings given to them in accordance with generally accepted accounting
principles.
(d) The headings of the paragraphs, subparagraphs, clauses and subclauses
of this Article are for convenience of reference only and shall not define,
limit or affect any of the provisions hereof.
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TERMS AND PROVISIONS
OF
SERIES B PREFERRED STOCK
SERIES B PREFERRED STOCK, $.01 PAR VALUE
1. DIVIDENDS
The holders of shares of Series B Preferred Stock shall be entitled to
receive regular cash dividends, if, when and as declared by the Board of
Directors, at the annual rate of $.3328 per share exclusive of any adjustment
pursuant to subparagraph 4(f). Dividends shall be non-cumulative. The holders
of shares of Series B Preferred Stock shall be entitled to no dividends with
respect to such Series B Preferred Stock other than as aforesaid. Declared but
unpaid dividends shall be accrued but shall not bear interest. No dividend or
distribution in cash or other property (other than a stock dividend payable
solely in shares of Common Stock) on any class of Common Stock of the Company
shall be declared or paid or set apart for payment in any fiscal year unless a
dividend in the amount set forth above per share on the Series B Preferred Stock
shall have been paid in full in such fiscal year.
2. PREFERENCE ON LIQUIDATION, ETC.
In the event of any voluntary involuntary liquidation, distribution of
assets (other than the payment of dividends), dissolution or winding-up of the
Company, before any payment or distribution of the assets of the Company
(whether capital or surplus) shall be made to or set apart for the holders of
shares of Common Stock or the holders of shares of Series A Preferred Stock, the
holders of shares of Series B Preferred Stock shall be entitled to receive
payment of $12.50 per share held by them plus an amount equal to any declared
but unpaid dividends thereon to the date of final distribution to such holders.
If, upon any liquidation, distribution of assets, dissolution or winding-up
of the Company, the assets of the Company, or proceeds thereof, distributable
among the holders of shares of Series B Preferred Stock shall be insufficient to
pay in full the respective preferential amounts on the shares of Series B
Preferred Stock, then such assets, or the proceeds thereof, shall be distributed
among such holders ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were paid in full. For
the purposes of this paragraph 2, the voluntary sale, lease or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all of the assets of the Company to, or a consolidation or merger
of the Company with, one or more Persons shall not be deemed to be a
liquidation, distribution of assets, dissolution or winding-up, voluntary or
involuntary; provided that any holder of shares of Series B Preferred Stock
shall have the
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right to treat any sale, lease or transfer of 50% or more of the assets of the
Company or any consolidation or merger as a liquidation under this paragraph 2
and be entitled to a preference to the extent set forth herein with respect to
the shares of Series B Preferred Stock held by such holder.
After the payment or setting apart of payment to holders of Series B
Preferred Stock, holders of Series A Preferred Stock and holders of Common Stock
as of October 9, 1985 of the respective preferential amounts so payable to them,
the Series B Preferred Stock and the Series A Preferred Stock shall be deemed to
have been converted into Common Stock and the holders of each share of Common
Stock shall receive pro rata the remaining assets of the Company.
3. VOTING
a. GENERAL
In addition to the special voting rights provided below and by
applicable law, the holders of shares of Series B Preferred Stock shall be
entitled to vote upon all matters upon which holders of the Common Stock have
the right to vote, and each share of Series B Preferred Stock shall be entitled
to the number of votes equal to the largest number of full shares of Common
Stock into which such shares of Series B Preferred Stock could be converted
pursuant to the applicable provisions of paragraph 4 hereof, at the record date
for the determination of the stockholders entitled to vote on such matters, or,
if no such record date is established, at the date such vote is taken or any
written consent of stockholders is solicited, such votes to be counted together
with all other shares of capital stock having general voting powers and not
separately as a class. In all cases where the holders of shares of Series B
Preferred Stock have the right to vote separately as a class, such holders shall
be entitled to one vote for each such share held by them respectively.
b. SPECIAL CLASS VOTE
Without the consent of the holders of at least 55% of the aggregate
number of shares of Series B Preferred Stock then outstanding, given in writing
or by vote at a meeting of stockholders called for such purpose, the Company
will not (A) increase the authorized amount of Series B Preferred Stock; (B)
create, designate or increase the authorized amount of any other class of stock
nor reclassify the rights of any class of capital stock or issue any debt
convertible into any class of stock; (C) amend, alter or repeal the Certificate
of Incorporation or by-laws of the Company so as to adversely affect, either
directly or indirectly, the preferences, rights or powers of the Series B
Preferred Stock; (D) merge or consolidate with or into any other Person, or
sell, lease or transfer 50% or more of its assets or business to another Person;
(E) purchase, lease or otherwise acquire all or substantially all of the assets
of any other Person in any transaction in which the fair market value of such
assets exceeds an amount equal to
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10 percent of the Company's total assets; (F) voluntarily dissolve, liquidate or
wind up the affairs of the Company or any Subsidiary or carry out any partial
liquidation or distribution of the assets of the Company or any such Subsidiary
or any transaction in the nature of a partial liquidation or distribution; (G)
authorize or adopt any stock option plan for the Company's directors or
employees other than the 1986 Combined Incentive and Non-Qualified Stock Option
Plan in effect on February 26, 1987, including its predecessor plan (the "ISO
Plan") or amend the ISO Plan; or (H) grant any additional registration rights
with respect to its capital stock.
4. CONVERSION RIGHTS
The Series B Preferred Stock shall be convertible into Common Stock as
follows:
a. OPTIONAL CONVERSION
Subject to and upon compliance with the provisions of this paragraph
4, the holder of any shares of Series B Preferred Stock shall have the right at
such holder's option, at any time or from time to time, to convert any of such
shares of Series B Preferred Stock into fully paid and nonassessable shares of
Common Stock at the Series B Conversion Price (as hereinafter defined) in effect
on the Series B Conversion Date (as hereinafter defined) upon the terms
hereinafter set forth.
b. AUTOMATIC CONVERSION
Each outstanding share of Series B Preferred Stock shall automatically
be converted, without any further act of the Company or its stockholders, into
fully paid and nonassessable shares of Common Stock pursuant to the formula as
set forth in subparagraph 4(c) upon the closing of an underwritten public
offering underwritten by an investment banking firm of nationally recognized
standing pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offering and sale of the Company's Common
Stock in which the aggregate gross offering proceeds equal or exceed
$10,000,000, the price per share of which equals or exceeds $14.00 (as
appropriately adjusted for any stock dividend, stock split, recapitalization or
combination of shares) and there are at least 350 record or beneficial holders
of Common Stock of the Company immediately subsequent to the closing of the sale
of such shares.
c. SERIES B CONVERSION PRICE
Each share of Series B Preferred Stock shall be converted into the
number of shares of Common Stock as is determined by dividing (x) $12.50 by (y)
the Series B Conversion Price in effect on the Series B Conversion Date. The
Series B Conversion Price at which shares of Common Stock shall initially be
issuable upon conversion of the shares of Series B Preferred Stock shall be
$12.50. The Series B Conversion Price shall
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be subject to adjustment as set forth in subparagraph 4(f). No payment or
adjustment shall be made for any dividends on the Common Stock issuable upon
such conversion.
d. MECHANICS OF CONVERSION
Upon the occurrence of the events specified in subparagraph 4(b), the
outstanding shares of Series B Preferred Stock shall be converted automatically
without any further action by the holders of such shares and whether or not the
certificates representing such shares are surrendered to the Company or its
transfer agent; provided that the Company shall not be obligated to issue to any
such holder certificates evidencing the shares of Common Stock issuable upon
such conversion unless certificates evidencing the shares of Series B Preferred
Stock are delivered to the Company or any transfer agent of the Company. The
holder of any shares of Series B Preferred Stock may exercise the conversion
right specified in subparagraph 4(a) as to any part thereof by surrendering to
the Company or any transfer agent of the Company the certificate or certificates
for the shares to be converted, accompanied by written notice stating that the
holder elects to convert all or a specified portion of the shares represented
thereby. Conversion of the Series B Preferred Stock shall be deemed to have
been effected on the date on which the event specified with respect to such
Series B Preferred Stock in subparagraph 4(b) shall have occurred or on the date
when delivery of notice of an election to convert and certificates for shares is
made, as the case may be, and such date is referred to herein with respect to
the Series B Preferred Stock as the "Series B Conversion Date." Subject to the
provisions of subparagraph 4(f)(vii), as promptly as practicable thereafter (and
after surrender of the certificate or certificates representing shares of Series
B Preferred Stock to the Company or any transfer agent of the Company in the
case of conversions pursuant to subparagraph 4(b)) the Company shall issue and
deliver to such holder a certificate or certificates for the number of full
shares of Common Stock to which such holder is entitled and a check or cash with
respect to any fractional interest in a share of Common Stock as provided in
subparagraph 4(e) and any dividends on the Series B Preferred Stock which such
holder is entitled to receive, but has not yet received. Subject to the
provisions of subparagraph 4(f)(vii), the Person in whose name the certificate
or certificates for Common Stock are to be issued shall be deemed to have become
a holder of record of such Common Stock on the applicable Series B Conversion
Date. Upon conversion of only a portion of the number of shares covered by a
certificate representing shares of Series B Preferred Stock surrendered for
conversion (in the case of conversion pursuant to subparagraph 4(a)), the
Company shall issue and deliver to the holder of the certificate so surrendered
for conversion, at the expense of the Company, a new certificate covering the
number of shares of Series B Preferred Stock representing the unconverted
portion of the certificate so surrendered.
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e. FRACTIONAL SHARES.
No fractional shares of Common Stock or scrip shall be issued upon
conversion of shares of Series B Preferred Stock. If more than one share of
Series B Preferred Stock shall be surrendered for conversion at any one time by
the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
shares of Series B Preferred Stock so surrendered. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion of any
shares of Series B Preferred Stock, the Company shall pay a cash adjustment in
respect of such fractional interest in an amount equal to that fractional
interest of the then Current Market Price.
f. CONVERSION PRICE ADJUSTMENTS FOR THE SERIES B PREFERRED STOCK.
The Conversion Price for the Series B Preferred Stock shall be subject
to adjustment from time to time as follows:
(i) (A) Common Stock Issued at a Price Less than the Series B
Conversion Price and Equal to or Greater than 84% of the Series B Conversion
Price. If the Company shall issue Common Stock other than Excluded Stock for a
consideration per share less than the initial Series B Conversion Price as set
forth in subparagraph 4(c) above (as adjusted pursuant to subparagraphs
4(f)(iii) through 4(f)(v)) (for example, $12.50 on February 26, 1987) and equal
to or greater than 84% or the initial Series B Conversion Price as set forth in
subparagraph 4(c) above (as adjusted pursuant to subparagraphs 4(f)(iii) through
4(f)(v)) (for example, $10.50 on February 26, 1987), the Series B Conversion
Price in effect immediately prior to each such issuance shall immediately
(except as provided below) be reduced to the price determined by dividing (1) an
amount equal to the sum of (A) the number of shares of Common Stock outstanding
immediately prior to such issuance plus the number of shares of Common Stock
then issuable upon conversion of shares of Series B Preferred Stock, multiplied
by the Series B Conversion Price in effect immediately prior to such issuance
and (B) the consideration, if any, received by the Company upon such issuance,
by (2) the total number of shares of Common Stock outstanding immediately after
such issuance plus the number of shares of Common Stock then issuable upon
conversion of shares of Series B Preferred Stock.
(B) Common Stock Issued at a Price Less than 84% of the Series B
Conversion Price. If the Company shall issue any Common Stock other than
Excluded Stock without consideration or for a consideration less than 84% of the
initial Series B Conversion Price as set forth in subparagraph 4(c) above (as
adjusted pursuant to subparagraphs 4(f)(iii) through 4(f)(v)) (for example,
$10.50 on February 26, 1987), then the Series B Conversion Price in effect
immediately prior to such issuance shall be
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immediately reduced to a price per share equal to the consideration per share
received by the Company.
For the purposes of any adjustment of the Series B Conversion Price
pursuant to clause (i) the following provisions shall be applicable:
(A) Cash. In the case of the issuance of Common Stock for cash
the amount of the consideration received by the Company shall be deemed to be
the amount of the cash proceeds received by the Company for such Common Stock
before deducting therefrom any reasonable discounts, commissions, taxes or other
expenses allowed, paid or incurred by the Company for any underwriting or
otherwise in connection with the issuance and sale thereof.
(B) Consideration Other Than Cash. In the case of the issuance of
Common Stock (otherwise than upon the conversion of shares of capital stock or
other securities of the Company) for a consideration in whole or in part other
than cash, including securities acquired in exchange therefor (other than
securities by their terms so exchangeable), the consideration other than cash
shall be deemed to be the fair value thereof as determined by the Board of
Directors, irrespective of any accounting treatment; provided that such fair
value as determined by the Board of Directors shall not exceed the aggregate
Current Market Price of the shares of Common Stock being issued as of the date
the Board of Directors authorizes the issuance of such shares.
(C) Options and Convertible Securities. In the case of the
issuance of (i) options, warrants or other rights to purchase or acquire Common
Stock (whether or not at the time exercisable), (ii) securities by their terms
convertible into or exchangeable for Common Stock (whether or not at the time so
convertible or exercisable), or (iii) options, warrants or rights to purchase
such convertible or exchangeable securities (whether or not at the time
exercisable) (other than the Series B Preferred Stock):
(1) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options, warrants or other rights to purchase
or acquire Common Stock shall be deemed to have been issued at the time such
options, warrants or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in subclauses (A) and (B)
above) if any, received by the Company upon the issuance of such options,
warrants or rights plus the minimum purchase price provided in such options,
warrants or rights for the common Stock covered thereby;
(2) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities, or upon the exercise of options, warrants or other
rights to purchase or acquire such convertible or exchangeable securities and
the subsequent
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conversion or exchange thereof, shall be deemed to have been issued at the time
such securities were issued or such options, warrants or rights were issued and
for a consideration equal to the consideration, if any, received by the Company
for any such securities and related options, warrants or rights (excluding any
cash received on account of accrued interest or accrued dividends), plus the
minimum additional consideration, if any, to be received by the Company upon the
conversion or exchange of such securities and the exercise of any related
options warrants or rights (the consideration in each case to be determined in
the manner provided in subclauses (A) and (B) above);
(3) on any change in the number of shares of Common Stock
deliverable upon exercise of any such options, warrants or rights or conversion
of or exchange for such convertible or exchangeable securities or any change in
the consideration to be received by the Company upon such exercise, conversion
or exchange, including, but not limited to, a change resulting from the
antidilution provisions thereof, the Series B Conversion Price as then in effect
shall forthwith be readjusted to such Series B Conversion Price as would have
been obtained had an adjustment been made upon the issuance of such options,
warrants or rights not exercised prior to such change, or securities not
converted or exchanged prior to such change, upon the basis of such change;
(4) on the expiration or cancellation of any such options,
warrants or rights, or the termination of the right to convert or exchange such
convertible or exchangeable securities, if the Series B Conversion Price shall
have been adjusted upon the issuance thereof, such Series B Conversion Price
shall forthwith be readjusted to such Series B Conversion Price as would have
been obtained had an adjustment been made upon the issuance of such options,
warrants, rights or securities on the basis of the issuance of only the number
of shares of Common Stock actually issued upon the exercise of such options,
warrants or rights, or upon the conversion or exchange of such securities; and
(5) if the Series B Conversion Price shall have been
adjusted upon the issuance of any such options, warrants, rights or convertible
or exchangeable securities, no further adjustment of the Series B Conversion
Price shall be made for the actual issuance of Common Stock upon the exercise
thereof; provided, however, that no increase in the Series B Conversion Price
shall be made pursuant to subclauses (1), (2) or (3) of this subclause (C).
(ii) Excluded Stock. "Excluded Stock" shall mean shares of Common
Stock issued or reserved for issuance by the Company (A) as a stock dividend
payable in shares of Common Stock, (B) upon any subdivision or split-up of the
outstanding shares of Common Stock, (C) upon conversion of shares of Series A
Preferred Stock or shares of Series B Preferred Stock, or (D) pursuant to sales
of common stock or stock options permitted under the ISO Plan.
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(iii) Stock Dividends. If the number of shares of Common Stock
outstanding at any time after the date of issuance of the Series B Preferred
Stock is increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then immediately after the
record date fixed for the determination of holders of Common Stock entitled to
receive such stock dividend or the effective date of such subdivision or split-
up, as the case may be, the Series B Conversion Price shall be appropriately
reduced so that the holder of any shares of Series B Preferred Stock thereafter
converted shall be entitled to receive the number of shares of Common Stock of
the Company which he would have owned immediately following such action had such
shares of Series B Preferred Stock been converted immediately prior thereto.
(iv) Combination of Stock. If the number of shares of Common Stock
outstanding at any time after the date of issuance of the Series B Preferred
Stock is decreased by a combination of the outstanding shares of Common Stock,
then, immediately after the effective date of such combination, the Series B
Conversion Price shall be appropriately increased so that the holder of any
shares of Series B Preferred Stock thereafter converted shall be entitled to
receive the number of shares of Common Stock of the Company which he would have
owned immediately following such action had such shares of Series B Preferred
Stock been converted immediately prior thereto.
(v) Reorganizations, etc. In case of any capital reorganization of
the Company, or of any reclassification of the Common Stock, or in case of the
consolidation of the Company with or the merger of the Company with or into any
other Person or of the sale, lease or other transfer of all or substantially all
of the assets of the Company to any other Person, each share of Series B
Preferred Stock shall after such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer be convertible into the
number of shares of stock or other securities or property to which the Common
Stock issuable (at the time of such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer) upon conversion of such
share of Series B Preferred Stock would have been entitled upon such capital
reorganization, reclassification, consolidation, merger, sale, lease or other
transfer; and in any such case, if necessary, the provisions set forth herein
with respect to the rights and interests thereafter of the holders of the shares
of Series B Preferred Stock shall be appropriately adjusted so as to be
applicable, as nearly as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the conversion of the shares of
Series B Preferred Stock. The subdivision or combination of shares of Common
Stock issuable upon conversion of shares of Series B Preferred Stock at any time
outstanding into a greater or lesser number of shares of Common Stock (whether
with or without par value) shall not be deemed to be a reclassification of the
Common Stock of the Company for the purposes of this clause (v).
(vi) Rounding of Calculations: Minimum Adjustment. All calculations
under this subparagraph (f) shall be made to the nearest cent or to the nearest
one
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hundredth (1/100th) of a share, as the case may be. Any provision of this
paragraph 4 to the contrary notwithstanding, no adjustment in the Series B
Conversion Price shall be made if the amount of such adjustment would be less
than 1% of the Series B Conversion Price then in effect, but any such amount
shall be carried forward and an adjustment with respect thereto shall be made at
the time of and together with any subsequent adjustment which, together with
such amount and any other amount or amounts so carried forward, shall aggregate
1% or more of the Series B Conversion Price then in effect.
(vii) Timing of Issuance of Additional Common Stock Upon Certain
Adjustments. In any case in which the provisions of this paragraph (f) shall
require that an adjustment shall become effective immediately after a record
date for an event, the Company may defer until the occurrence of such event (A)
issuing to the holder of any share of Series B Preferred Stock converted after
such record date and before the occurrence of such event the additional shares
of Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the shares of Common Stock issuable upon
such conversion before giving effect to such adjustment and (B) paying to such
holder any amount of cash in lieu of a fractional share of Common Stock pursuant
to subparagraph (e) of this paragraph 4; provided that the Company upon request
shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares, and such cash,
upon the occurrence of the event requiring such adjustment.
g. CURRENT MARKET PRICE
The Current Market Price at any date shall mean the price per share of
Common Stock on such date determined by the Board of Directors as provided
below. The Current Market Price shall be the average of the daily closing
prices per share of Common Stock for 30 consecutive business days ending no more
than 15 business days before the day in question (as adjusted for any stock
dividend, split, combination or reclassification that took effect during such 30
business day period). The closing price for each day shall be the last reported
sales price regular way or, in case no such reported sales take place on such
day, the average of the last reported bid and asked prices regular way, in
either case on the principal national securities exchange on which the Common
Stock is listed or admitted to trading, or if not listed or admitted to trading
on any national securities exchange, the average of the highest bid and the
lowest asked prices quoted on the National Association of Securities Dealers
Automated Quotation System; provided that if the Common Stock is not traded in
such manner that the quotations referred to above are available for the period
required hereunder, Current Market Price per share of Common Stock shall be
deemed to be the higher of (i) book value or (ii) fair value as determined by an
investment banking firm of nationally recognized standing selected by the
unanimous vote of the Board of Directors, irrespective of any accounting
treatment.
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h. STATEMENT REGARDING ADJUSTMENTS
Whenever the Series B Conversion Price shall be adjusted as provided
in subparagraph 4(f), the Company shall forthwith file, at the office of any
transfer agent for the Series B Preferred Stock and at the principal office of
the Company, a statement showing in detail the facts requiring such adjustment
and the Series B Conversion Price that shall be in effect after such adjustment,
and the Company shall also cause a copy of such statement to be sent by mail,
first class postage prepaid, to each holder of shares of Series B Preferred
Stock at its address appearing on the Company's records. Each such statement
shall be signed by the Company's independent public accountants. Where
appropriate, such copy may be given in advance and may be included as part of a
notice required to be mailed under the provisions of subparagraph 4(i).
i. NOTICE TO HOLDERS
In the event the Company shall propose to take any action of the type
described in clause (i) (but only if the action of the type described in clause
(i) would result in an adjustment in the Series B Conversion Price), (iii), (iv)
or (v) of subparagraph 4(f), the Company shall give notice to each holder of
shares of Series B Preferred Stock in the manner set forth in subparagraph 4(h),
which notice shall specify the record date, if any, with respect to any such
action and the approximate date on which such action is to take place. Such
notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the Series B Conversion Price
and the number, kind or class of shares or other securities or property which
shall be deliverable or purchasable upon the occurrence of such action or
deliverable upon conversion of shares of Series B Preferred Stock. In the case
of any action which would require the fixing of a record date, such notice shall
be given at least 15 days prior to the date so fixed, and in case of all other
action, such notice shall be given at least 20 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of any such action, or the rights of holders of
Series B Preferred Stock with respect to such action.
j. TREASURY STOCK
For the purposes of this paragraph 4, the sale or other disposition of
any Common Stock of the Company theretofore held in its treasury shall be deemed
to be an issuance thereof.
k. COSTS
The Company shall pay all documentary, stamp, transfer or other
transactional taxes attributable to the issuance or delivery of shares of Common
Stock of the Company upon conversion of any shares of Series B Preferred Stock
provided that the
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Company shall not be required to pay any taxes which may be payable in respect
of any transfer involved in the issuance or delivery of any certificate for such
shares in a name other than that of the holder of the share of Series B
Preferred Stock in respect of which such shares are being issued.
l. RESERVATION OF SHARES
The Company shall reserve at all times so long as any shares of Series
B Preferred Stock remain outstanding, free from preemptive rights, out of its
treasury stock or its authorized but unissued shares of Common Stock, or both,
solely for the purpose of effecting the conversion of the shares of Series B
Preferred Stock, sufficient shares of Common Stock to provide for the conversion
of all outstanding shares of Series B Preferred Stock.
m. APPROVALS
If any shares of Common Stock to be reserved for the purpose of
conversion of shares of Series B Preferred Stock require registration with or
approval of any governmental authority under any Federal or state law before
such shares may be validly issued or delivered upon conversion, then the Company
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be. If, and so long as, any Common
Stock into which the shares of Series B Preferred Stock are then convertible is
listed on any national securities exchange, the Company will, if permitted by
the rules of such exchange, list and keep listed on such exchange, upon official
notice of issuance, all shares of such Common Stock issuable upon conversion.
n. VALID ISSUANCE
All shares of Common Stock which may be issued upon conversion of the
shares of Series B Preferred Stock will upon issuance by the Company be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof and the Company shall take no
action which will cause a contrary result (including without limitation, any
action which would cause the Series B Conversion Price to be less than the par
value, if any, of the Common Stock).
o. CERTAIN DIVIDENDS AND DISTRIBUTIONS
In the event the Company shall declare a cash dividend or other
distribution upon its Common Stock payable otherwise than out of retained
earnings or net profits or shall distribute to holders of its Common Stock
shares of its capital stock (other than Common Stock), stock or other securities
of other Persons, evidences of indebtedness issued by the Company or others,
other assets (other than cash) or any options, warrants or other rights to
purchase any of the foregoing, then each holder of the Series B
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Preferred Stock then outstanding shall, upon the exercise of his right to
convert after the record date fixed for the determination of the holders of
Common Stock of the Company entitled to receive such dividend or distribution
(or if none is fixed, after the date such dividend or distribution is made),
receive (in addition to the shares of Common Stock deliverable upon such
conversion), the dividend or distribution (or, at the option of the Company,
cash in an amount equal to the fair value thereof at the time of such dividend
or distribution as determined by the Board of Directors) which would have been
paid or distributed to such holder if he had converted immediately prior to such
record date (or if none, the date of such dividend or distribution).
5. REDEMPTION
Except as the holders of Series B Preferred Stock are entitled to have
their shares redeemed pursuant to Paragraph 2 hereof, the Company shall not
redeem the Series B Preferred Stock, in whole or in part.
6. RETIREMENT OF SHARES
Shares of Series B Preferred Stock which have been issued and have been
redeemed, repurchased or reacquired in any manner by the Company shall be
retired and shall not be reissued.
7. GENERAL PROVISIONS
(a) The term "Person" as used herein means any corporation, partnership,
trust, organization, association, other entity or individual.
(b) The term "outstanding," when used with reference to shares of stock,
shall mean issued shares, excluding shares held by the Company or a subsidiary.
(c) All accounting terms used herein and not expressly defined herein shall
have the meanings given to them in accordance with generally accepted accounting
principles.
(d) The headings of the paragraphs, subparagraphs, clauses and subclauses
of this Article are for convenience of reference only and shall not define,
limit or affect any of the provisions hereof.
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TERMS AND PROVISIONS
OF
SERIES C PREFERRED STOCK
SERIES C PREFERRED STOCK, $.01 PAR VALUE
1. DIVIDENDS
The holders of shares of Series C Preferred Stock shall entitled to receive
regular cash dividends, if, when and as declared by the Board of Directors, at
the annual rate of $.3328 per share, exclusive of any adjustment pursuant to
subparagraph 4(f) hereof. Dividends shall be noncumulative. The holders of
shares of Series C Preferred Stock shall be entitled to no dividends with
respect to such Series C Preferred Stock other than as stated in this paragraph
1. Declared but unpaid dividends shall be accrued but shall not bear interest.
No dividend or distribution in cash or other property (other than a stock
dividend payable solely in shares of Common Stock) on any class of common stock
of the Company shall be declared or paid or set apart for payment in any fiscal
year unless a dividend in the amount per share set forth above on the Series C
Preferred Stock shall have been paid in full in such fiscal year.
2. PREFERENCE ON LIQUIDATION, ETC.
In the event of any voluntary or involuntary liquidation, distribution of
assets (other than the payment of dividends), dissolution or winding up of the
Company, before any payment or distribution of the assets of the Company
(whether capital or surplus) shall be made to or set apart for the holders of
shares of Common Stock or the holders of shares of Series A Preferred Stock or
Series B Preferred Stock, the holders of shares of Series C Preferred Stock
shall be entitled to receive payment of $20.00 per share held by them plus an
amount equal to any declared but unpaid dividends thereon to the date of final
distribution to such holders.
If, upon any liquidation, distribution of assets, dissolution or winding up
of the Company, the assets of the Company, or proceeds thereof, distributable
among the holders of shares of Series C Preferred Stock shall be insufficient to
pay in full the respective preferential amounts on the shares of Series C
Preferred Stock, then such assets, or the proceeds thereof, shall be distributed
among such holders ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were paid in full. For
the purposes of this paragraph 2, the voluntary sale, lease or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all of the assets of the Company to, or a consolidation or merger
of the Company with, one or more Persons shall not be deemed to be a
liquidation, distribution of assets, dissolution or winding up, voluntary or
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involuntary provided, that any holder of shares of Series C Preferred Stock
shall have the right to treat (i) any sale, lease or transfer of 50% or more of
the outstanding capital stock or assets of the Company or (ii) any consolidation
or merger in which the stockholders of the Company receive distributions of
cash, property or securities of an entity other than the Company as a result of
such consolidation or merger (other than a merger or consolidation effected
solely for the purpose of changing the state of incorporation of the Company) as
a liquidation of the Company, under this paragraph 2 and, upon receipt of such
holder's Series C stock certificates for cancellation, be entitled to a
preference to the extent set forth above with respect to the shares of Series C
Preferred Stock held by such holder.
After the payment or setting apart of payment to holders of Series C
Preferred Stock, holders of Series A Preferred Stock and Series B Preferred
Stock and holders of Common Stock outstanding as of October 9, 1985, of the
respective preferential amounts so payable to them, the Series C Preferred
Stock, the Series B Preferred Stock and the Series A Preferred Stock shall be
deemed to have been converted into Common Stock and the holders of each share of
Common Stock shall receive pro rata the remaining assets of the Company.
3. VOTING
a. GENERAL
In addition to the special voting rights provided below and by
applicable law, the holders of shares of Series C Preferred Stock shall be
entitled to vote upon all matters upon which holders of the Common Stock have
the right to vote, and each share of Series C Preferred Stock shall be entitled
to the number of votes equal to the largest number of full shares of Common
Stock into which such shares of Series C Preferred Stock could be converted
pursuant to the applicable provisions of paragraph 4 hereof, at the record date
for the determination of the stockholders entitled to vote on such matters, or,
if no such record date is established, at the date such vote is taken or any
written consent of stockholders is solicited, such votes to be counted together
with all other shares of capital stock having general voting powers and not
separately as a class. In all cases where the holders of shares of Series C
Preferred Stock have the right to vote separately as a class, such holders shall
be entitled to one vote for each such share held by them.
b. SPECIAL CLASS VOTE
Without the consent of the holders of at least 55% of the aggregate
number of shares of Series C Preferred Stack then outstanding, given in writing
or by vote at a meeting of stockholders called for such purpose, the company
will not (A) increase the authorized amount of Series C Preferred Stock; (B)
create, designate or increase the authorized amount of any other class or series
of stock nor reclassify the rights of any
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class of capital stock or issue any debt convertible into any class of capital
stock; (C) amend, alter or repeal the Certificate of Incorporation or Bylaws of
the Company so as to adversely affect, either directly or indirectly, the
preferences, rights or powers of the Series C Preferred Stock; (D) merge or
consolidate with or into any other Person, or sell, lease or transfer 50% or
more of its assets or business to another Person; (E) purchase, lease or
otherwise acquire all or substantially all of the assets of any other Person in
any transaction in which the fair market value of such assets exceeds an amount
equal to ten percent of the Company's total assets; (F) voluntarily dissolve,
liquidate or wind up the affairs of the Company or any Subsidiary or carry out
any partial liquidation or distribution of the assets of the Company or any such
Subsidiary or any transaction in the nature of a partial liquidation or
distribution; (G) authorize or adopt any stock option plan for the Company's
directors or employees other than the 1986 Combined Incentive and Non-Qualified
Stock Option Plan in effect on December 22, 1987, including its predecessor plan
(the "1986 Plan") or the Directors' Nonqualified Stock Option Plan in effect on
December 22, 1987 (the "Directors' Plan") or amend the 1986 Plan or the
Directors' Plan (except for amendments made pursuant to the requests of state
securities, or "blue sky," authorities in connection with the qualification or
registration of such plans); or (H) grant any additional registration rights
with respect to its capital stock.
4. CONVERSION RIGHTS
The Series C Preferred Stock shall be convertible into Common Stock as
follows.
a. OPTIONAL CONVERSION
Subject to and upon compliance with the provisions of this paragraph
4, the holder of any shares of Series C Preferred Stock shall have the right at
such holder's option, at any time or from time to time, to convert any of such
shares of Series C Preferred Stock into fully paid and nonassessable shares of
Common Stock at the Series C Conversion Price (as hereinafter defined) in effect
on the Series C Conversion Date (as hereinafter defined) upon the terms
hereinafter set forth.
b. AUTOMATIC CONVERSION
Each outstanding share of Series C Preferred Stock shall automatically
be converted, without any further act of the Company or its stockholders, into
fully paid and nonassessable shares of Common Stock pursuant to the formula as
set forth in subparagraph 4(c) hereof upon the closing of a public offering
underwritten by an investment banking firm of nationally recognized standing
pursuant to an effective registration statement under the Securities Act of
1933, as amended, covering the offering and sale of the Common Stock in which
the aggregate gross offering proceeds equal or exceed $15,000,000, the price per
share of which equals or exceeds $23.00 (as appropriately adjusted for any stock
dividend, stock split, recapitalization or combination
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of shares) and there are at least 350 record or beneficial holders of Common
Stock immediately subsequent to the closing of the sale of such shares.
c. SERIES C CONVERSION PRICE
Each share of Series C Preferred Stock shall be converted into the number
of shares of Common Stock as is determined by dividing (x) $20.00 by (y) the
Series C Conversion Price in effect on the Series C Conversion Date. The Series
C Conversion Price at which shares of Common Stock shall initially be issuable
upon conversion of the shares of Series C Preferred Stock shall be $20.00. The
Series C Conversion Price shall be subject to adjustment as set forth in
subparagraph 4(f) hereof. No payment or adjustment shall be made for any
dividends on the Common Stock issuable upon such conversion.
d. MECHANICS OF CONVERSION
Upon the occurrence of the events specified in subparagraph 4(b)
hereof, the outstanding shares of Series C Preferred Stock shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Company or its transfer agent; provided, that the Company shall not be obligated
to issue to any such holder certificates evidencing the shares of Common Stock
issuable upon such conversion unless certificates evidencing the shares of
Series C Preferred Stock are delivered to the Company or any transfer agent of
the Company. The holder of any shares of Series C Preferred Stock may exercise
the conversion right specified in subparagraph 4(a) hereof as to any part
thereof by surrendering to the Company or any transfer agent of the Company the
certificate or certificates for the shares to be converted, accompanied by
written notice stating that the holder elects to convert all or a specified
portion of the shares represented thereby. Conversion of the Series C Preferred
Stock shall be deemed to have been effected on the date on which the event
specified with respect to such Series C Preferred Stock in subparagraph 4(b)
hereof shall have occurred or on the date when delivery of notice of an election
to convert and certificates for shares is made, as the case may be, and such
date is referred to herein with respect to the Series C Preferred Stock as the
"Series C Conversion Date." Subject to the provisions of subparagraph 4(f)(vii)
hereof, as promptly as practicable thereafter (and after surrender of the
certificate or certificates representing shares of Series C Preferred Stock to
the Company or any transfer agent of the Company in the case of conversions
pursuant to subparagraph 4(b) hereof), the Company shall issue and deliver to
such holder a certificate or certificates for the number of full shares of
Common Stock to which such holder is entitled and a check or cash with respect
to any fractional interest in a share of Common Stock as provided in
subparagraph 4(e) hereof and any dividends on the Series C Preferred Stock which
such holder is entitled to receive, but has not yet received. Subject to the
provisions of subparagraph 4(f)(vii) hereof, the Person in whose name the
certificate or certificates for Common Stock are to
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be issued shall be deemed to have become a holder of record of such Common Stock
on the applicable Series C Conversion Date. Upon conversion of only a portion of
the number of shares covered by a certificate representing shares of Series C
Preferred Stock surrendered for conversion (in the case of conversion pursuant
to subparagraph 4(a) hereof), the Company shall issue and deliver to the holder
of the certificate so surrendered for conversion, at the expense of the Company,
a new certificate covering the number of shares of Series C Preferred Stock
representing the unconverted portion of the certificate so surrendered.
e. FRACTIONAL SHARES
No fractional shares of Common Stock or scrip shall be issued upon
conversion of shares of Series C Preferred Stock. If more than one share of
Series C Preferred Stock shall be surrendered for conversion at any one time by
the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
shares of Series C Preferred Stock so surrendered. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion of any
shares of Series C Preferred Stock, the Company shall pay a cash adjustment in
respect of such fractional interest in an amount equal to that fractional
interest of the then Current Market Price, as defined in subparagraph 4(g)
hereof.
f. CONVERSION PRICE ADJUSTMENTS FOR THE SERIES C PREFERRED STOCK
The Conversion Price for the Series C Preferred Stock shall be subject
to adjustment from time to time as follows:
(i) (A) Common Stock Issued at a Price Less than the Series C
Conversion Price and Equal to or Greater than 84% of the Series C Conversion
Price. If the Company shall issue Common Stock other than Excluded Stock, as
defined in subparagraph 4(f)(ii) hereof, for a consideration per share less than
the initial Series C Conversion Price as set forth in subparagraph 4(c) hereof
(as adjusted pursuant to subparagraphs 4(f)(iii) through 4(f)(v) hereof) and
equal to or greater than 84% of the initial Series C Conversion Price as set
forth in subparagraph 4(c) above (as adjusted pursuant to subparagraphs
4(f)(iii) through 4(f)(v), the Series C Conversion Price in effect immediately
prior to each such issuance shall immediately (except as provided below) be
reduced to the price determined by dividing (1) an amount equal to the sum of
(A) the number of shares of Common Stock outstanding immediately prior to such
issuance plus the number of shares of Common Stock then issuable upon conversion
of shares of Series C Preferred Stock, multiplied by the Series C Conversion
Price in effect immediately prior to such issuance and (B) the consideration, if
any, received by the Company upon such issuance, by (2) the total number of
shares of Common Stock
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outstanding immediately after such issuance plus the number of shares of Common
Stock then issuable upon conversion of shares of Series C Preferred Stock.
(B) Common Stock Issued at a Price Less than 84% of the Series C
Conversion Price. If the Company shall issue any Common Stock other than
Excluded Stock, as defined in subparagraph 4(f)(ii) hereof, without
consideration or for a consideration less than 84% of the initial Series C
Conversion Price as set forth in subparagraph 4(c) hereof (as adjusted pursuant
to subparagraphs 4(f)(iii) through 4(f)(v) hereof) (for example, $16.80 on
December 22, 1987), then the Series C Conversion Price in effect immediately
prior to such issuance shall be immediately reduced to a price per share equal
to the consideration per share received by the Company.
For the purposes of any adjustment of the Series C Conversion Price
pursuant to clause (i) above, the following provisions shall be applicable:
(A) Cash. In the case of the issuance of Common Stock for cash,
the amount of the consideration received by the Company shall be deemed to be
the amount of the cash proceeds received by the Company for such Common Stock
before deducting therefrom any reasonable discounts, commissions, taxes or other
expenses allowed, paid or incurred by the Company for any underwriting or
otherwise in connection with the issuance and sale thereof.
(B) Consideration Other than Cash. In the case of the issuance of
Common Stock (otherwise than upon the conversion of shares of capital stock or
other securities of the Company pursuant to their original terms) for a
consideration in whole or in part other than cash, including securities acquired
in exchange therefor (other than securities by their terms so exchangeable), the
consideration other than cash shall be deemed to be the fair value thereof as
determined by the Board of Directors, irrespective of any accounting treatment;
provided, that such fair value as determined by the Board of Directors shall not
exceed the aggregate Current Market Price of the shares of Common Stock being
issued as of the date the Board of Directors authorizes the issuance of such
shares.
(C) Options and Convertible Securities. In the case of the
issuance of (i) options, warrants or other rights to purchase or acquire Common
Stock (whether or not at the time exercisable), (ii) securities by their terms
convertible into or exchangeable for Common Stock (whether or not at the time so
convertible or exercisable), or (iii) options, warrants or rights to purchase
such convertible or exchangeable securities (whether or not at the time
exercisable) (other than the Series C Preferred Stock):
(1) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options, warrants or other rights to purchase
or acquire Common Stock shall be deemed to have been issued at the time such
options,
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warrants or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in subclauses (A) and (B)
above), if any, received by the Company upon the issuance of such options,
warrants or rights plus the minimum purchase price provided in such options,
warrants or rights for the Common Stock covered thereby;
(2) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities, or upon the exercise of options, warrants or other
rights to purchase or acquire such convertible or exchangeable securities and
the subsequent conversion or exchange thereof, shall be deemed to have been
issued at the time such securities were issued or such options, warrants or
rights were issued and for a consideration equal to the consideration, if any,
received by the Company for any such securities and related options, warrants or
rights (excluding any cash received on account of accrued interest or accrued
dividends), plus the minimum additional consideration, if any, to be received by
the Company upon the conversion or exchange of such securities and the exercise
of any related options, warrants or rights (the consideration in each case to be
determined in the manner provided in subclauses (A) and (B) above);
(3) on any change in the number of shares of Common Stock
deliverable upon exercise of any such options, warrants or rights or conversion
of or exchange for such convertible or exchangeable securities or any change in
the consideration to be received by the Company upon such exercise, conversion
or exchange, including, but not limited to, a change resulting from the
antidilution provisions thereof, the Series C Conversion Price as then in effect
shall automatically be readjusted to such Series C Conversion Price as would
have been obtained had an adjustment been made upon the issuance of such
options, warrants or rights not exercised prior to such change, or securities
not converted or exchanged prior to such change, upon the basis of such change;
(4) on the expiration or cancellation of any such options,
warrants or rights, or the termination of the right to convert or exchange such
convertible or exchangeable securities, if the Series C Conversion Price shall
have been adjusted upon the issuance thereof, such Series C Conversion Price
shall automatically be readjusted to such Series C Conversion Price as would
have been obtained had an adjustment been made upon the issuance of such
options, warrants, rights or securities on the basis of the issuance of only the
number of shares of Common Stock actually issued upon the exercise of such
options, warrants or rights, or upon the conversion or exchange of such
securities; and
(5) if the Series C Conversion Price shall have been
adjusted upon the issuance of any such options, warrants, rights or convertible
or exchangeable securities, no further adjustment of the Series C Conversion
Price shall be made for the actual issuance of
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Common Stock upon the exercise thereof; provided, that no increase in the Series
C Conversion Price shall be made pursuant to subclauses (1), (2) or (3) of this
subclause (C).
(ii) Excluded Stock. "Excluded Stock" shall mean shares of Common
Stock issued or reserved for issuance by the Company (A) as a stock dividend
payable in shares of Common Stock, (B) upon any subdivision or split-up of the
outstanding shares of Common Stock, (C) upon conversion of shares of Series A
Preferred Stock or shares of Series B Preferred Stock, or (D) pursuant to sales
of Common Stock or stock options permitted under the 1985 Incentive Stock Option
Plan, the 1986 Combined Incentive and Nonqualified Stock Option Plan, as
amended, or the Egghead, Inc. Nonqualified Directors' Plan, each substantially
as in effect an December 22, 1987.
(iii) Stock Dividends. If the number of shares of Common Stock
outstanding at any time after the date of issuance of the Series C Preferred
Stock is increased by a stock dividend payable in shares of Common Stock or by a
subdivision or split-up of shares of Common Stock, then immediately after the
record date fixed for the determination of holders of Common Stock entitled to
receive such stock dividend or the effective date of such subdivision or split-
up, as the case may be, the Series C Conversion Price shall be automatically
reduced so that the holder of any shares of Series C Preferred Stock thereafter
converted shall be entitled to receive the number of shares of Common Stock of
the Company which he would have owned immediately following such action had such
shares of Series C Preferred Stock been converted immediately prior thereto.
(iv) Combination of Stock. If the number of shares of Common Stock
outstanding at any time after the date of issuance of the Series C Preferred
Stock is decreased by a combination of the outstanding shares of Common Stock,
then, immediately after the effective date of such combination, the Series C
Conversion Price shall be automatically increased so that the holder of any
shares of Series C Preferred Stock thereafter converted shall be entitled to
receive the number of shares of Common Stock of the Company which he would have
owned immediately following such action had such shares of Series C Preferred
Stock been converted immediately prior thereto.
(v) Reorganizations, etc. In case of any capital reorganization of
the Company, or of any reclassification of the Common Stock, or in case of the
consolidation of the Company with or the merger of the Company with or into any
other Person or of the sale, lease or other transfer of all or substantially all
of the assets of the Company to any other Person, each share of Series C
Preferred Stock shall after such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer be convertible into the
number of shares of stock or other securities or property to which the Common
Stock issuable (at the time of such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer) upon conversion of such
share of Series C Preferred Stock would have been entitled upon such capital
reorganization,
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reclassification, consolidation, merger, sale, lease or other transfer; and in
any such case, if necessary, the provisions set forth herein with respect to the
rights and interests thereafter of the holders of the shares of Series C
Preferred Stock shall be automatically adjusted so as to be applicable, as
nearly as may reasonably be possible, to any shares of stock or other securities
or property thereafter deliverable on the conversion of the shares of Series C
Preferred Stock. The subdivision or combination of shares of Common Stock
issuable upon conversion of shares of Series C Preferred Stock at any time
outstanding into a greater or lesser number of shares of Common Stock (whether
with or without par value) shall not be deemed to be a reclassification of the
Common Stock of the Company for the purposes of this clause (v).
(vi) Rounding of Calculations; Minimum Adjustment. All calculations
under this subparagraph (f) shall be made to the nearest cent or to the nearest
one hundredth (1/100th) of a share, as the case may be. Any provision of this
paragraph 4 to the contrary notwithstanding, no adjustment in the Series C
Conversion Price shall be made if the amount of such adjustment would be less
than 1% of the Series C Conversion Price then in effect, but any such amount
shall be carried forward and an adjustment with respect thereto shall be made at
the time of and together with any subsequent adjustment which, together with
such amount and any other amount or amounts so carried forward, shall aggregate
1% or more of the Series C Conversion Price then in effect.
(vii) Timing of Issuance of Additional Common Stock Upon Certain
Adjustments. In any case in which the provisions of this subparagraph (f) shall
require that an adjustment shall become effective immediately after a record
date for an event, the Company may defer until the occurrence of such event (A)
issuing to the holder of any share of Series C Preferred Stock converted after
such record date and before the occurrence of such event the additional shares
of Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the shares of Common Stock issuable upon
such conversion before giving effect to such adjustment and (B) paying to such
holder any amount of cash in lieu of a fractional share of Common Stock pursuant
to subparagraph (e) of this paragraph 4; provided, that the Company upon request
shall deliver to such holder an appropriate instrument evidencing such holder's
right to receive such additional shares, and such cash, upon the occurrence of
the event requiring such adjustment.
g. CURRENT MARKET PRICE
The Current Market Price at any date shall mean the price per share of
Common Stock on such date determined by the Board of Directors as provided in
this subparagraph (g). The Current Market Price shall be the average of the
daily closing sale prices per share of Common Stock for 30 consecutive business
days ending no more than 15 business days before the day in question (as
adjusted for any stock dividend, split, combination or reclassification that
took effect during such 30 business day period). The
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closing sale price for each day shall be the last reported sales price or, in
case no such reported sales take place on such day, the average of the last
reported bid and asked prices, in either case on the principal, national
securities exchange on which the Common Stock is listed or admitted to trading,
or if not listed or admitted to trading on any national securities exchange, on
the National Association of Securities Dealers Automated Quotation System;
provided, that if the Common Stock is not traded in such manner that the
quotations referred to above are available for the period required hereunder,
Current Market Price per share of Common Stock shall be deemed to be the higher
of (i) book value or (ii) fair value as determined by an investment banking firm
of nationally recognized standing selected by the Board of Directors.
h. STATEMENT REGARDING ADJUSTMENTS
Whenever the Series C Conversion Price shall be adjusted as provided
in subparagraph 4(f) hereof, the Company shall as soon as practicable file, at
the office of any transfer agent for the Series C Preferred Stock and at the
principal office of the Company, a statement showing in detail the facts
requiring such adjustment and the Series C Conversion Price that shall be in
effect after such adjustment, and the Company shall also cause a copy of such
statement to be sent by mail, first class postage prepaid, to each holder of
shares of Series C Preferred Stock at its address appearing on the Company's
records. Each such statement shall be signed by the Company's independent
public accountants. Where appropriate, such copy may be given in advance and
may be included as part of a notice required to be mailed under the provisions
of subparagraph 4(i) hereof.
i. NOTICE TO HOLDERS
In the event the Company shall propose to take any action of the type
described in clause (i) (but only if the action of the type described in clause
(i) would result in an adjustment in the Series C Conversion Price), (iii), (iv)
or (v) of subparagraph 4(f) hereof, the Company shall give notice to each holder
of shares of Series C Preferred Stock in the manner set forth in subparagraph
4(h) hereof, which notice shall specify the record date, if any, with respect to
any such action and the approximate date on which such action is to take place.
Such notice shall also set forth such facts with respect thereto as shall be
reasonably necessary to indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the Series C Conversion Price
and the number, kind or class of shares or other securities or property which
shall be deliverable or purchasable upon the occurrence of such action or
deliverable upon conversion of shares of Series C Preferred Stock. In the case
of any action which would require the fixing of a record date, such notice shall
be given at least 15 days prior to the date so fixed, and in case of all other
action, such notice shall be given at least 20 days prior to the taking of such
proposed action. Failure to give such
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<PAGE>
notice, or any defect therein, shall not affect the legality or validity of any
such action, or the rights of holders of Series C Preferred Stock with respect
to such action.
j. TREASURY STOCK
For the purposes of this paragraph 4, the sale or other disposition of
any Common Stock of the Company theretofore held in its treasury shall be deemed
to be an issuance thereof.
k. COSTS
The Company shall pay all documentary, stamp, transfer or other
transactional taxes attributable to the issuance or delivery of shares of Common
Stock of the Company upon conversion of any shares of Series C Preferred Stock
provided, that the Company shall not be required to pay any taxes which may be
payable in respect of any transfer involved in the issuance or delivery of any
certificate for such shares in a name other than that of the holder of the
shares of Series C Preferred Stock in respect of which such shares are being
issued.
l. RESERVATION OF SHARES
The Company shall reserve at all times, so long as any shares of
Series C Preferred Stock remain outstanding, free from preemptive rights, out of
its treasury stock or its authorized but unissued shares of Common Stock, or
both, solely for the purpose of effecting the conversion of the shares of Series
C Preferred Stock, sufficient shares of Common Stock to provide for the
conversion of all outstanding shares of Series C Preferred Stock.
m. APPROVALS
If any shares of Common Stock to be reserved for the purpose of
conversion of shares of Series C Preferred Stock require registration with or
approval of any governmental authority under any Federal or state law before
such shares may be validly issued or delivered upon conversion, then the Company
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be. If, and so long as, any Common
Stock into which the shares of Series C Preferred Stock are then convertible is
listed on any national securities exchange, the Company will, if permitted by
the rules of such exchange, list and keep listed on such exchange, upon official
notice of issuance, all shares of such Common Stock issuable upon conversion.
-37-
<PAGE>
n. VALID ISSUANCE
All shares of Common Stock which may be issued upon conversion of the
shares of Series C Preferred Stock will, upon issuance by the Company, be duly
and. validly issued, fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issuance thereof and the Company shall
take no action which will cause a contrary result (including without limitation,
any action which would cause the Series C Conversion Price to be less than the
par value, if any, of the Common Stock).
o. CERTAIN DIVIDENDS AND DISTRIBUTIONS
In the event the Company shall declare a cash dividend or other
distribution upon its Common Stock payable otherwise than out of retained
earnings or net profits or shall distribute to holders of its Common Stock
shares of its capital stock (other than Common Stock), stock or other securities
of other Persons, evidences of indebtedness issued by the Company or others,
other assets (other than cash) or any options, warrants or other rights to
purchase any of the foregoing, then each holder of the Series C Preferred Stock
then outstanding shall, upon the exercise of his right to convert after the
record date fixed for the determination of the holders of Common Stock of the
Company entitled to receive such dividend or distribution (or if none is fixed,
after the date such dividend or distribution is made), receive (in addition to
the shares of Common Stock deliverable upon such conversion), the dividend or
distribution (or, at the option of the Company, cash in an amount equal to the
fair value thereof at the time of such dividend or distribution as determined by
the Board of Directors) which would have been paid or distributed to such holder
if he had converted immediately prior to such record date (or if none, the date
of such dividend or distribution).
5. REDEMPTION
Except as the holders of Series C Preferred Stock are entitled to have
their shares redeemed pursuant to paragraph 2 hereof, the Company shall not
redeem the Series C Preferred Stock, in whole or in part.
6. RETIREMENT OF SHARES
Shares of Series C Preferred Stock which have been issued and have been
redeemed, repurchased or reacquired in any manner by the Company shall be
retired and shall not be reissued.
7. GENERAL PROVISIONS
(a) All capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned thereto in the Convertible Subordinated Note
and
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<PAGE>
Preferred Stock Purchase Agreement among the Company and certain Purchasers,
dated as of December 22, 1987.
(b) The term "outstanding," when used with reference to shares of
stock, shall mean issued shares, excluding shares held by the Company or a
subsidiary.
(c) All accounting terms used herein and not expressly defined herein
shall have the meanings given to them in accordance with generally accepted
accounting principles.
(d) The headings of the paragraphs, subparagraphs, clauses and
subclauses hereof are for convenience of reference only and shall not define,
limit or affect any of the provisions hereof.
Within the limitations established by law, the Board of Directors is
authorized to issue additional shares of preferred stock in one or more
additional series and to fix the terms and provisions of each such series,
including the dividend rights and preferences over dividends on the common
stock, dividend rates, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, liquidation preferences (including
preferences over common stock), conversion rights and voting rights, and the
number of shares constituting any such series and the designation thereof, or
any of the foregoing. The transfer of any share of this corporation shall be
subject to restrictions, if any, contained in the corporation's bylaws or in
agreements among the shareholders.
ARTICLE VI - SHAREHOLDERS' RIGHTS
Shareholders of this corporation have no preemptive rights to acquire
additional shares issued by the corporation, except as may be provided to
preferred shareholders.
ARTICLE VII - DIRECTORS
The first directors of the corporation are eleven (11) in number and their
names and addresses are:
<TABLE>
<CAPTION>
Name Address
- ---- -------
<S> <C>
Victor D. Alhadeff Egghead Discount Software
22027 - 17th Avenue S.E.
Bothell, WA 98021
Paul G. Allen Asymetrix
110 - 110th Avenue N.E.
Bellevue, WA 98004
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Name Address
- ---- -------
<S> <C>
Bert R. Cohen Capital Insight
190 N. Canon Drive
Beverly Hills, CA 90210
Ronald P. Erickson Kargianis, Austin & Erickson
47th Floor
Prudential Venture Capital
717 5th Avenue, Suite 1600
William S. Field Columbia Center
Seattle, WA 98104
New York, NY 10022
Steven E. Lebow Donaldson, Lufkin & Jenrette
Securities Corporation
2121 Avenue of the Stars
Suite 3000
Los Angeles, CA 90067
George P. Orban Office Mart Holdings Corp.
501 First Avenue N., Suite 1000
St. Petersburg, FL 33701
Herman Sarkowsky 3330 Rainier Bank Tower
Seattle, WA 98101
Stuart M. Sloan Sloan Capital Companies
120 Lakeside Avenue, Suite 300
Seattle, WA 98122
Samuel N. Stroum Stroum Enterprises
1001 4th Avenue, Suite 3714
Seattle, WA 98154
Ronald A. Weinstein Sloan Capital Companies
120 Lakeside Avenue, Suite 300
Seattle, WA 98122
</TABLE>
Directors Alhadeff, Allen, Erickson and Orban shall serve until the first
annual meeting of shareholders; Directors Field, Stroum and Weinstein shall
serve until the second annual meeting of shareholders; and Directors Cohen,
Lebow, Sarkowsky and
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<PAGE>
Sloan shall serve until the third annual meeting of shareholders; and each
director shall serve until his successor is elected and qualified.
ARTICLE VIII - INCORPORATOR
The name and address of the incorporator are:
<TABLE>
<CAPTION>
Name Address
- ---- -------
<S> <C>
Michael J. Erickson Bogle & Gates
The Bank of California Center
Seattle, Washington 98164
</TABLE>
ARTICLE IX - VOTING RIGHTS
At each election for directors, every shareholder entitled to vote at such
election has the right to vote in person or by proxy the number of shares of
stock held by him for as many persons as there are directors to be elected. No
cumulative voting for directors shall be permitted.
ARTICLE X - LIMITATION ON LIABILITY OF DIRECTORS
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for his or her conduct as a
director, except for (i) acts or omissions that involve intentional misconduct
or a knowing violation of law by the director, (ii) approval of distributions or
loans in violation of RCW 23A.08.400, or (iii) any transaction from which the
director will personally receive a benefit in money, property or services to
which the director is not legally entitled. If the Washington Business
Corporation Act is hereafter amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Washington Business Corporation Act, as so amended. Any
amendment to or repeal of this Article shall not adversely affect any right or
protection of a director of the corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
ARTICLE XI - AMENDMENT OF ARTICLES
The corporation reserves the right to amend, alter, change or repeal any
provision contained in these Articles of Incorporation, in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein on
shareholders and directors are subject to this reserved power.
-41-
<PAGE>
Adopted by resolution of the corporation's Board of Directors on April 18,
1988.
/s/ Stephen J. Schweickert
--------------------------
Stephen J. Schweickert
Secretary
-42-
<PAGE>
EXHIBIT 3.3
ARTICLES OF AMENDMENT
OF
EGGHEAD, INC.
The following Articles of Amendment are executed by the undersigned, a
Washington corporation:
1. The name of the corporation is Egghead, Inc.
2. Effective upon filing these Articles of Amendment with the Secretary of
State of the state of Washington, Article I of the Restated Articles of
Incorporation of the corporation is amended to read as follows:
"ARTICLE I - NAME
The name of this corporation is Egghead.com, Inc."
3. The amendment was duly adopted by the Board of Directors of the
corporation on January 27, 1998, pursuant to RCW 23B.10.020.
4. The amendment was duly approved adopted by the Board of Directors of
the corporation and shareholder action was not required.
These Articles of Amendment are executed by said corporation by its duly
authorized officer.
DATED: February 9, 1998.
EGGHEAD, INC.
By /s/ George P. Orban
--------------------------------------
George P. Orban, Chairman of the Board
<PAGE>
EXHIBIT 10.5a
PLEDGE AGREEMENT
THIS AGREEMENT is made and entered into as of February 25, 1998, by
EGGHEAD.COM, INC., formerly known as Egghead, Inc. ("the Company") for the
benefit of GEORGE P. ORBAN ("Mr. Orban").
RECITALS:
The Company and Mr. Orban have entered into that certain Executive
Employment Agreement dated as of January 31, 1997 (the "Employment Agreement"),
pursuant to which the Company has agreed to pledge to Mr. Orban collateral for
certain obligations of the Company under the Employment Agreement.
The purpose of this Agreement is to set forth the terms and conditions upon
which the Company pledges to Mr. Orban the collateral described in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Company agrees as follows:
1. DEFINITIONS, ETC.
1.1 TERMS DEFINED
For the purposes of this Agreement, the following terms shall have the
following meanings:
"Account" means that certain account established at Broker in the name of
the Company, currently designated as account no. 04104013137-1001, together with
all replacements and substitutions for such account.
"Broker" means American Express Financial Advisors, Inc. and any successors
in interest to American Express Financial Advisors, Inc.
"Event of Default" means the failure, within ten days of demand by Mr.
Orban, to pay Mr. Orban any amount due pursuant to Section 7.1, 7.5 or 8.1 of
the Employment Agreement.
"Pledged Assets" means the Account, together with (a) all assets now or
hereafter in the Account, including, without limitation, all securities
accounts, securities entitlements, investment property, financial assets,
certificated securities, and uncertificated securities (as those terms are
defined in the Uniform Commercial
1
<PAGE>
Code adopted in the state of Washington, as amended from time to time), and (b)
all income, products, proceeds, dividends and distributions from any of the
foregoing, including, without limitation, proceeds in the nature of accounts,
general intangibles, and insurance proceeds.
"Required Pledge Amount" means either $1,600,000 or $550,000 as determined
by the provisions of Section 8.2 of the Employment Agreement.
"Secured Obligations" means the obligation of the Company to pay Mr. Orban
all amounts due pursuant to Section 7.1, 7.5 or 8.1 of the Employment Agreement.
1.2 INCORPORATION OF RECITALS AND EXHIBITS
The foregoing recitals are incorporated into this Agreement by reference.
All references to "Exhibits" contained herein are references to exhibits
attached hereto, the terms of which are made a part hereof for all purposes.
2. PLEDGE AND CREATION OF SECURITY INTEREST
2.1 PLEDGE AND GRANT OF SECURITY INTEREST
As security for the full, prompt and complete payment by the Company of
each of the Secured Obligations, the Company hereby pledges, assigns,
hypothecates, and transfers to Mr. Orban the Pledged Assets and grants to Mr.
Orban a security interest under the Uniform Commercial Code of the state of
Washington, as amended, in and to the Pledged Assets. The Company and Mr. Orban
agree that upon completion of the pledge of the Pledged Assets to Mr. Orban as
contemplated by this Agreement, the Company shall be deemed to have satisfied
the obligation to grant collateral to Mr. Orban for the Company's obligations to
him under the terms of the Employment Agreement, notwithstanding the provision
in the Employment agreement that required the Company to complete the pledge of
collateral prior to the date of this Agreement.
2.2 VOTING RIGHTS
Unless and until an Event of Default shall have occurred, the Company shall
be permitted to exercise all voting, corporate, consensual and other rights with
respect to the Pledged Assets, provided, however, that no vote shall be cast or
corporate right exercised or other action taken which, in Mr. Orban's reasonable
judgment, would impair the Pledged Assets or which would be inconsistent with or
result in any violation of any provision of this Agreement.
2
<PAGE>
2.3 VALUE OF COLLATERAL
(a) Within ten days of the execution of this Agreement, the Company shall
cause to be deposited into the Account cash in the amount of $1,600,000.
(b) In the event that the market value of the Pledged Assets ever exceeds
110% of the Required Pledge Amount (whether or not an Event of Default exists)
during the term of this Agreement, the Company shall be entitled to a release
and distribution from the Account of assets selected by the Company in excess of
the Required Pledge Amount. Mr. Orban agrees to fully cooperate with the
Company in obtaining such a distribution from the Account.
(c) In the event that the market value of the Pledged Assets is ever less
than 90% of the Required Pledge Amount during the term of this Agreement, the
Company shall, within ten days of demand by Mr. Orban, deposit cash into the
Account in an amount necessary to bring the market value of the Pledged Assets
to the Required Pledge Amount.
(d) During the term of this Agreement the Company shall be permitted to
invest funds in the Account in accordance with the investment guidelines
attached to this Agreement as Exhibit A.
3. REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants that:
3.1 NO APPROVALS
No consent, license, permit, approval or authorization of, or filing with,
or notice or report to, or registration, filing or declaration with, any Person
(including, without limitation, any governmental authority or creditors of the
Company), is required in connection with the execution, delivery, performance,
validity or enforceability by or against the Company of this Agreement.
3.2 ENFORCEABILITY
This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
3
<PAGE>
3.3 OTHER AGREEMENTS
The execution, delivery and performance of this Agreement do not and will
not violate any requirement of law or any contractual obligation applicable to
or binding upon the Company.
3.4 OWNERSHIP
The Company is the owner of and has good and marketable title to the
Pledged Assets and will, at its own expense, defend Mr. Orban's right, title and
security interest in and to the Pledged Assets against the claims of any Person.
3.5 NO ENCUMBRANCES
The Company represents that all of the Pledged Assets are owned by the
Company free of any pledge, mortgage, hypothecation, lien, charge, encumbrance
or security interest in such shares or the proceeds thereof, except for that
granted hereunder.
3.6 FIRST PRIORITY LIEN
The lien against the Pledged Assets granted pursuant to this Agreement
constitutes a valid, perfected first priority lien on the Pledged Assets,
enforceable as such against all creditors of the Company and any Persons
purporting to purchase any of the Pledged Assets from the Company.
4. COVENANTS
The Company covenants and agrees with Mr. Orban that, from and after the
date of this Agreement until the Secured Obligations are paid in full:
4.1 NO OTHER LIENS
The Company will not create or permit the existence of any lien on or
security interest in the Pledged Assets (other than that hereby created) without
the written consent of Mr. Orban.
4.2 SALE OR ENCUMBRANCE
Without the prior written consent of Mr. Orban and except as otherwise
provided in Section 2.3(d), the Company will not (a) sell, assign, transfer,
exchange or otherwise dispose of, or grant any option with respect to, the
Pledged Assets, (b) create, incur or permit to exist any lien or option in favor
of, or any claim of any Person with respect to, any of the Pledged Assets, or
any interest therein, except for
4
<PAGE>
the lien provided for by this Agreement. The Company will defend the right,
title and interest of Mr. Orban in and to the Pledged Assets against the claims
and demands of all Persons whomsoever. Notwithstanding the foregoing, the
Company may sell one or more of the Pledged Assets so long as the proceeds from
such sale remain in the Account subject to the security interest granted by the
Company to Mr. Orban pursuant to this Agreement.
4.3 FURTHER ASSURANCES
At any time and from time to time, upon the written request of Mr. Orban,
and at the sole expense of the Company, the Company will promptly and duly
execute and deliver such further instruments and documents and take such further
actions as Mr. Orban may reasonably request for the purposes of obtaining or
preserving the full benefits of this Agreement and of the rights and powers
herein granted.
4.4 INDEMNIFICATION
The Company agrees to pay, and to save Mr. Orban harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes (except for the tax imposed on the overall
net income of Mr. Orban) which may be payable or determined to be payable with
respect to any of the Pledged Assets or in connection with any of the
transactions contemplated by this Agreement.
5. RIGHTS AND REMEDIES
5.1 REMEDIES
Mr. Orban may exercise, in addition to all other rights and remedies
granted in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Secured Obligations, all rights and remedies of a
secured party under the Uniform Commercial Code of the state of Washington.
Without limiting the generality of the foregoing, Mr. Orban, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law or referred to in this Agreement) to
or upon the Company or any other Person (all and each of which demands,
defenses, advertisements and notices are hereby waived to the extent not
prohibited by law), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Pledged Assets, or any part thereof, and/or may
forthwith withdraw from the Account, sell, assign, give option or options to
purchase or otherwise dispose of and deliver the Pledged Assets or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any exchange
broker's board or at Mr. Orban's offices or elsewhere upon such terms and
conditions as he may deem
5
<PAGE>
advisable, for cash or on credit or for future delivery without assumption of
any credit risk. Mr. Orban shall have the right upon any such public sale or
sales and, to the extent permitted by law, upon any such private sale or sales
to purchase the whole or any part of the Pledged Assets so sold, free and clear
of any right or equity of redemption in the Company, which right or equity is
hereby waived or released to the extent not prohibited by law. Mr. Orban shall
apply the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care or safekeeping of any of the
Pledged Assets or in any way relating to the Pledged Assets or the rights of Mr.
Orban hereunder, including, without limitation, reasonable attorneys' fees and
disbursements to the payment in whole or in part of the Secured Obligations in
such order as Mr. Orban may elect, and only after such application and after the
payment by Mr. Orban of any other amount required by any provision of law,
including, without limitation, RCW 62A.9-504(1)(c), need Mr. Orban account for
the surplus, if any, to the Company.
5.2 RIGHTS RE PLEDGE ASSETS
If an Event of Default shall occur: (a) Mr. Orban shall have the right to
receive any and all cash dividends paid in respect of the Pledged Assets and
make application thereof to the Secured Obligations in such order as he may
determine and (b) the Pledged Assets shall be registered in the name of Mr.
Orban or his nominee, and Mr. Orban or his nominee may thereafter exercise (i)
all voting, corporate, consensual and other rights pertaining to such shares of
the Pledged Assets and (ii) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining to such
shares of the Pledged Assets as if he were the absolute owner thereof
(including, without limitation, the right to exchange at his discretion any and
all of the Pledged Assets upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of the
issuer of the Pledged Assets, or upon the exercise by the Company or Mr. Orban
of any right, privilege or option pertaining to such Pledged Assets, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Assets with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as he may determine), all
without liability except to account for property actually received by him, but
Mr. Orban shall have no duty to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
5.3 RIGHT TO PROCEED AGAINST PLEDGED ASSETS
The rights of Mr. Orban hereunder shall not be conditioned or contingent
upon the pursuit by Mr. Orban of any right or remedy against the Company or
against any
6
<PAGE>
other Person which may be or become liable in respect of all or any part of the
Secured Obligations or against any other collateral therefor, guarantee thereof
or right of offset with respect thereto. Mr. Orban shall not be liable for any
failure to demand, collect or realize upon all or any part of the Pledged Assets
or for any delay in doing so, nor shall he be under any obligation to sell or
otherwise dispose of any Pledged Assets upon the request of the Company or any
other Person or to take any other action whatsoever with regard to the Pledged
Assets or any part thereof except that Mr. Orban shall be required to exercise
reasonable care with respect to the safe keeping of collateral in his
possession.
5.4 NOTICE OF SALE, ETC.
To the extent permitted by applicable law, the Company waives all claims,
damages and demands it may acquire against Mr. Orban arising out of the exercise
by Mr. Orban of any of his rights hereunder. If any notice of a proposed sale
or other disposition of Pledged Assets shall be required by law, such notice
shall be deemed reasonable and proper if given at least ten days before such
sale or other disposition. To the extent not prohibited by applicable law, the
Company further waives and agrees not to assert any rights or privileges which
it may acquire under RCW 62A.9-112.
6. GENERAL PROVISIONS
6.1 LIMITATION ON DUTIES REGARDING PLEDGED ASSETS
Mr. Orban shall not be liable for failure to demand, collect or realize
upon any of the Pledged Assets or for any delay in doing so or shall be under
any obligation to sell or otherwise dispose of any Pledged Assets upon the
request of the Company or otherwise.
6.2 EXPENSES INCURRED BY MR. ORBAN
Mr. Orban is not required to, but may at his option, pay any tax or other
charge or expense payable by the Company and any filing or recording fees, and
any amounts so paid shall be repayable by the Company upon demand. The Company
will also repay upon demand all of Mr. Orban's reasonable expenses incurred in
collecting, conserving or protecting the Pledged Assets. All such sums shall
bear interest at 8% per annum from the date of Mr. Orban's payment until the
Company's repayment. All such sums and interest thereon shall be secured by the
security interest granted herein. The rights granted by this Section 6.2 are
not a waiver of any other rights of Mr. Orban arising from breach of any of the
Company's covenants.
7
<PAGE>
6.3 NONWAIVERS
This Agreement shall not be qualified or supplemented by course of dealing.
No waiver or modification by Mr. Orban of any of the terms or conditions hereof
shall be effective unless in writing signed by Mr. Orban. No waiver or
indulgence by Mr. Orban as to any required performance by the Company shall
constitute a waiver as to any subsequent required performance or other
obligations of the Company hereunder.
6.4 ATTORNEYS' FEES, COSTS
In the event of an arbitration of litigation between the parties to enforce
a right or rights under this Agreement, the prevailing party shall be entitled
to recover from the nonprevailing party all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party in protecting or
enforcing rights under the terms of this Agreement. Attorneys' fees shall
include services rendered at arbitration, trial and any appeal therefrom, in
bankruptcy, as well as services rendered subsequent to judgment and obtaining
execution thereon.
6.5 TERM OF AGREEMENT
This Agreement shall be a continuing agreement until such time as the
Company has paid the Secured Obligations as described in Section 8.2 of the
Employment Agreement. Upon payment of the Secured Obligations, the Company
shall be entitled to a distribution of all of the Pledged Assets and a written
acknowledgment executed by Mr. Orban that this Agreement is terminated in a form
reasonably designated by the Company. Mr. Orban agrees to cooperate with the
Company in obtaining such a distribution of all of the Pledged Assets and a
written acknowledgment of termination.
6.6 SUCCESSORS
All obligations, rights, powers and privileges herein provided shall inure
to the benefit of and shall bind the heirs, executors, administrators and
successors of the parties hereto.
6.7 GOVERNING LAW
This Agreement and the Secured Obligations are subject to the laws of the
state of Washington and are to be construed in accordance therewith.
8
<PAGE>
6.8 CONSENT TO JURISDICTION, SERVICE AND VENUE
For the purpose of performance of the obligations under or otherwise in
connection herewith, the parties hereby consent to the jurisdiction and venue of
the courts of the state of Washington or of any federal court located in such
state, including, but not limited to, the Superior Court of Washington for
Spokane County and the United States District Court for the Eastern District of
Washington. The parties hereby waive the right to contest the jurisdiction and
venue of courts located in Spokane County, Washington on the ground of
inconvenience or otherwise.
6.9 SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
6.10 SATISFACTION OF OBLIGATION
The parties agree that notwithstanding the requirement in Section 8.2 of
the Employment Agreement that the parties enter into a pledge and escrow
agreement with respect to the Secured Obligations prior to August 31, 1997, the
execution of this Agreement and consummation of the pledge of the Pledge Assets
in accordance with the provisions of this Agreement shall satisfy the
requirement set forth in Section 8.2 of the Employment Agreement.
6.11 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall constitute an original Agreement, but all of which together shall
constitute one and the same instrument.
EGGHEAD.COM, INC.
By: /s/ Brian W. Bender
_____________________________________
Title: Vice President and CFO
__________________________________
Accepted By:
/s/ George P. Orban
________________________________________
George P. Orban
9
<PAGE>
EXHIBIT A
to Pledge Agreement
EGGHEAD, INC.
EXHIBIT TO SMITH BARNEY, INC.
CERTIFICATE AS TO TRADING AUTHORIZATION
EGGHEAD, INC. INVESTMENT POLICY
April 25, 1991
Revised: May 2, 1996
OBJECTIVES
1. Principal preservation: Minimize principal risk.
2. Liquidity: Meet liquidity requirements.
3. Yield: Deliver after-tax yields consistent with market conditions and
primary objectives of principal preservation and liquidity.
4. Diversification: Investment in one issuer shall not exceed $5 million:
diversified money market funds naming the criteria described below shall be
exempt from this requirement.
5. Control: Provide appropriate fiduciary control of all investments.
INVESTMENT GUIDELINES
1. Maturity: No investment will have a maturity in excess of one year.
Repurchase Agreements will have maturities no greater than 14 days.
2. Liquidity: The portfolio will be constructed so that it can provide a
minimum:
a. $2 million within one day.
b. An additional $3 million within one week.
c. An additional $10 million within thirty days.
3. Eligible Investments: The instruments listed below meet the requirements of
the company's revolving loan agreement with Seattle-First National Bank
(Agent) and U.S. Bank of Washington, N.A.
APPROVED INVESTMENTS
1. Taxable Instruments
a. Obligations issued by the U.S. Treasury.
b. Money Market Funds composed of instruments rated no lower than: AA,
A2, F2 or MIG2, at the time of purchase by the fund. Unrated issues
are acceptable if the quality, as judged by the fund's advisers are of
quality consistent with the fund's requirements.
c. Commercial Paper issued by domestic or foreign institutions rated at
least A1 (Standard & Poor's) or P1 (Moody's). In the case of split
issues, the minimum acceptable rating would be either A2 or P2.
d. Banker's Acceptance. Euro Dollar and Certificates of Deposit with the
issuer possessing a long term debt rating of AA or a Commercial Paper
rating of A1 or P1.
e. Repurchase Agreements which are fully collateralized by U.S. Treasury
or agencies (e.g., FNMA, SLMA, Farm Credits, FHLB) but excluding
mortgage backed securities. All Repurchase Agreements will have
maturity no greater than 14 days.
2. Tax-Exempt/Tax Preferred Instruments
a. Tax Exempt Money Market Funds composed of instruments rated no lower
than: AA, A2, P2 or MIG2 at the time of purchase by the fund. Unrated
issues are acceptable if the quality, as judged by the fund's
advisers, are of quality consistent with the fund's requirements.
b. Municipal Notes/Bonds with a MIG1, VMIG1 or an underlying AA rating of
the state or municipality.
c. Commercial Paper issued by domestic or foreign institutions rated at
least A1 (Standard & Poor's) or P1 (Moody's). In the case of split
issues, the minimum rating would be either A2 or P2.
CONCENTRATION LIMITS
Investments with one issuer (except U.S. Treasury) shall not exceed $5.0
million. Money Market Funds with a well diversified portfolio of instruments and
issuers are exempt from this limit.
<PAGE>
EGGHEAD, INC.
Investment Policy
Pg. 2
RESPONSIBILITIES AND REPORTING
The Controller is responsible for prudent investment of Egghead's cash balances
consistent with the guidelines set forth in this policy. The Controller is
authorized to make investments subject to the above guidelines and additional
direction from the President, Chief Financial Officer or Board of Directors.
Reports outlining current investments activity are provided daily to the
Controller and to the Chief Financial Officer, with reporting to the Board of
Directors each period.
- - Chief Financial Officer Brian W. Bender
- - Controller David H. Johns
<PAGE>
EXHIBIT 10.49b
EGGHEAD, INC.
SECOND AMENDED 1993 STOCK OPTION PLAN
SECTION 1. PURPOSE
The purpose of the 1993 Stock Option Plan (this "Plan") is to provide a
means whereby selected employees, directors, officers, agents, consultants,
advisors and independent contractors of Egghead, Inc. (the "Company"), or of any
parent or subsidiary (as defined in subsection 5.8 and referred to hereinafter
as "related corporations") thereof, may be granted incentive stock options
and/or nonqualified stock options to purchase the Common Stock (as defined in
Section 3) of the Company, in order to attract and retain the services or advice
of such employees, directors, officers, agents, consultants, advisors and
independent contractors and to provide added incentive to such persons by
encouraging stock ownership in the Company.
SECTION 2. ADMINISTRATION
This Plan shall be administered by the Board of Directors of the Company
(the "Board") or a committee or committees (which term includes subcommittees)
appointed by, and consisting of two or more members of, the Board. The
administrator of this Plan shall hereinafter be referred to as the "Plan
Administrator." So long as the Common Stock is registered under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Board shall consider, in selecting the Plan Administrator and the
membership of any committee acting as the Plan Administrator of this Plan with
respect to any persons subject or likely to become subject to Section 16 under
the Exchange Act, the provisions regarding (a) "outside directors," as
contemplated by Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"), and (b) "nonemployee directors," as contemplated by Rule 16b-3
under the Exchange Act. The Board may delegate the responsibility for
administering this Plan with respect to designated classes of eligible
participants to different committees, subject to such limitations as the Board
deems appropriate. Committee members shall serve for such term as the Board may
determine, subject to removal by the Board at any time.
2.1 RESPONSIBILITIES
Except for the terms and conditions explicitly set forth in this Plan, the
Plan Administrator shall have the authority, in its discretion, to determine all
matters relating to the options to be granted under this Plan, including
selection of the
________________________________________________________________________________
Page 1
<PAGE>
individuals to be granted options, the number of shares to be subject to each
option, the exercise price, and all other terms and conditions of the options.
Grants under this Plan need not be identical in any respect, even when made
simultaneously. The interpretation and construction by the Plan Administrator of
any terms or provisions of this Plan or any option issued hereunder, or of any
rule or regulation promulgated in connection herewith, shall be conclusive and
binding on all interested parties, so long as such interpretation and
construction with respect to incentive stock options correspond to the
requirements of Section 422 of the Code, the regulations thereunder and any
amendments thereto.
2.2 SECTION 16
Notwithstanding anything in this Plan to the contrary, the Board, in its
absolute discretion, may bifurcate this Plan so as to restrict, limit or
condition the use of any provision of this Plan to participants who are officers
and directors subject to Section 16 of the Exchange Act without so restricting,
limiting or conditioning this Plan with respect to other participants.
SECTION 3. STOCK SUBJECT TO THIS PLAN
The stock subject to this Plan shall be the Company's Common Stock (the
"Common Stock"), presently authorized but unissued or subsequently acquired by
the Company. Subject to adjustment as provided in Section 7, the aggregate
amount of Common Stock to be delivered upon the exercise of all options granted
under this Plan shall not exceed (a) 2,000,000 shares as such Common Stock was
constituted on or about June 16, 1993, plus (b) to the extent that additional
options are not granted under the Company's 1986 Combined Incentive and Non-
Qualified Stock Option Plan, as amended (the "1986 Plan"), an additional number
of shares of Common Stock equal to the number of shares which are currently
reserved for issuance under the 1986 Plan and which (i) are available for
options not yet granted under the 1986 Plan as of June 16, 1993, or (ii) would
become available for issuance thereafter under the 1986 Plan as a result of the
cancellation, expiration or other termination of outstanding options. If any
option granted under this Plan shall expire or be surrendered, exchanged for
another option, canceled or terminated for any reason without having been
exercised in full, the unpurchased shares subject thereto shall thereupon again
be available for purposes of this Plan.
SECTION 4. ELIGIBILITY
An incentive stock option may be granted only to any individual who, at the
time the option is granted, is an employee of the Company or any related
corporation. A nonqualified stock option may be granted to any employee,
director, officer, agent,
________________________________________________________________________________
Page 2
<PAGE>
consultant, advisor or independent contractor of the Company or any related
corporation, whether an individual or an entity.
SECTION 5. TERMS AND CONDITIONS OF OPTIONS
Options granted under this Plan shall be evidenced by written agreements
which shall contain such terms, conditions, limitations and restrictions as the
Plan Administrator shall deem advisable and which are not inconsistent with this
Plan. Notwithstanding the foregoing, options shall include or incorporate by
reference the following terms and conditions:
5.1 NUMBER OF SHARES AND PRICE
The maximum number of shares that may be purchased pursuant to the exercise
of each option and the price per share at which such option is exercisable (the
"Exercise Price") shall be as established by the Plan Administrator; provided
that the maximum number of shares with respect to which an option or options may
be granted to any Optionee in any one fiscal year of the Company shall not
exceed 300,000 shares, except that the Company may make one-time grants of
options for up to 750,000 shares per individual to newly hired individuals (the
"Maximum Annual Optionee Grants"); and provided, further, that the Plan
Administrator shall act in good faith to establish the Exercise Price which
shall be not less than the fair market value per share of the Common Stock at
the time the option is granted with respect to incentive stock options; and
provided, further, that, with respect to incentive stock options granted to
greater than 10% shareholders, the exercise price shall be as required by
subsection 6.1.
5.2 TERM AND MATURITY
The term of each option shall be as established by the Plan Administrator
and, if not so established, shall be 10 years. To ensure that the Company or
related corporation will achieve the purpose and receive the benefits
contemplated in this Plan, any option granted to any eligible person hereunder
("Optionee") on or after October 29, 1997 shall, unless the condition of this
sentence is waived or modified in the agreement evidencing the option or by
resolution adopted at any time by the Plan Administrator, be exercisable
according to the following schedule:
________________________________________________________________________________
Page 3
<PAGE>
<TABLE>
<CAPTION>
Period of Optionee's Continuous
Relationship With the Company
or Related Corporation From Portion of Total Option That Is
the Date the Option Is Granted Exercisable
------------------------------- -------------------------------
<S> <C>
After one year 25%
Each month thereafter an additional 1/48 (2.08%)
After four years 100%
</TABLE>
and any option granted to any Optionee prior to October 29, 1997 shall, unless
the condition of this sentence is waived or modified in the agreement evidencing
the option or by resolution adopted at any time by the Plan Administrator, be
exercisable according to the following schedule:
<TABLE>
<CAPTION>
Period of Optionee's Continuous
Relationship With the Company
or Related Corporation From Portion of Total Option That Is
the Date the Option Is Granted Exercisable
------------------------------- -------------------------------
<S> <C>
After one year 16-2/3%
After two years 50%
After three years 100%"
</TABLE>
5.3 EXERCISE
Subject to the vesting schedule described in subsection 5.2, each option
may be exercised in whole or in part at any time and from time to time;
provided, however, that no fewer than 100 shares (or the remaining shares then
purchasable under the option, if less than 100 shares) may be purchased upon any
exercise of option rights hereunder and that only whole shares will be issued
pursuant to the exercise of any option. Options shall be exercised by delivery
to the Company of notice of the number of shares with respect to which the
option is exercised, together with payment of the Exercise Price.
________________________________________________________________________________
Page 4
<PAGE>
5.4 PAYMENT OF EXERCISE PRICE
Payment of the option Exercise Price shall be made in full at the time the
notice of exercise of the option is delivered to the Company and shall be in
cash, bank certified or cashier's check or personal check (unless at the time of
exercise the Plan Administrator in a particular case determines not to accept a
personal check) for the Common Stock being purchased.
The Plan Administrator can determine at any time before exercise that
additional forms of payment will be permitted. Unless the Plan Administrator in
its sole discretion determines otherwise, either at the time the option is
granted or at any time before it is exercised, and to the extent permitted by
applicable laws and regulations (including, but not limited to, federal tax and
securities laws and regulations and state corporate law), an option may be
exercised by a combination of cash and/or check (if any) and one or more of the
following alternative forms:
(a) tendering (either actually or by attestation) shares of stock of
the Company held by an Optionee having a fair market value equal to the Exercise
Price, such fair market value to be determined in good faith by the Plan
Administrator; provided, however, that, with respect to options granted after
July 11, 1997, payment in stock held by an Optionee shall not be made unless the
stock shall have been owned by the Optionee for a period of at least six months
(or any shorter period necessary to avoid a charge to the Company's earnings for
financial accounting purposes);
(b) delivery of a full-recourse promissory note executed by the
Optionee; provided that (i) such note delivered in connection with an incentive
stock option shall, and such note delivered in connection with a nonqualified
stock option may, in the sole discretion of the Plan Administrator, bear
interest at a rate specified by the Plan Administrator but in no case less than
the rate required to avoid imputation of interest (taking into account any
exceptions to the imputed interest rules) for federal income tax purposes, and
(ii) the Plan Administrator in its sole discretion shall specify the term and
other provisions of such note at the time an incentive stock option is granted
or at any time prior to exercise of a nonqualified stock option, and (iii) the
Plan Administrator may require that the Optionee pledge the Optionee's shares to
the Company for the purpose of securing the payment of such note and may require
that the certificate representing such shares be held in escrow in order to
perfect the Company's security interest, and (iv) the Plan Administrator in its
sole discretion may at any time restrict or rescind this right upon notification
to the Optionee; or
(c) delivery of a properly executed exercise notice, together with
irrevocable instructions to a broker, all in accordance with the regulations of
the
________________________________________________________________________________
Page 5
<PAGE>
Federal Reserve Board, to promptly deliver to the Company the amount of sale or
loan proceeds to pay the Exercise Price and any federal, state or local
withholding tax obligations that may arise in connection with the exercise.
5.5 WITHHOLDING TAX REQUIREMENT
The Company or any related corporation shall have the right to retain and
withhold from any payment of cash or Common Stock under this Plan the amount of
taxes required by any government to be withheld or otherwise deducted and paid
with respect to such payment. At its discretion, the Company may require an
Optionee receiving shares of Common Stock to reimburse the Company for any such
taxes required to be withheld by the Company and withhold any distribution in
whole or in part until the Company is so reimbursed. In lieu thereof, the
Company shall have the right to withhold from any other cash amounts due or to
become due from the Company to the Optionee an amount equal to such taxes. The
Company may also retain and withhold or the Optionee may elect, subject to
approval by the Company at its sole discretion, to have the Company retain and
withhold a number of shares having a market value not less than the amount of
such taxes required to be withheld by the Company to reimburse the Company for
any such taxes and cancel (in whole or in part) any such shares so withheld.
5.6 HOLDING PERIODS
If an individual subject to Section 16 of the Exchange Act sells shares of
Common Stock obtained upon the exercise of a stock option within six months
after the date the option was granted, such sale may result in short-swing
profit liability under Section 16(b) of the Exchange Act.
5.7 NONTRANSFERABILITY OF OPTIONS
Options granted under this Plan and the rights and privileges conferred
hereby may not be transferred, assigned, pledged or hypothecated in any manner
(whether by operation of law or otherwise) other than by will or by the
applicable laws of descent and distribution, and shall not be subject to
execution, attachment or similar process. During an Optionee's lifetime, any
options granted under this Plan are personal to him or her and are exercisable
solely by such Optionee or a permitted assignee or transferee of such Optionee
(as provided below). Any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of any option under this Plan or of any right or privilege
conferred hereby, contrary to the Code or to the provisions of this Plan, or the
sale or levy or any attachment or similar process upon the rights and privileges
conferred hereby shall be null and void. Notwithstanding the foregoing, to the
extent permitted by Section 422 of the Code, the Plan Administrator may permit
an Optionee
________________________________________________________________________________
Page 6
<PAGE>
to (i) during the Optionee's lifetime, designate a person who may exercise the
option after the Optionee's death by giving written notice of such designation
to the Plan Administrator (such designation may be changed from time to time by
the Optionee by giving written notice to the Plan Administrator revoking any
earlier designation and making a new designation) or (ii) transfer the option
and the rights and privileges conferred hereby; provided, however, that any
option so assigned or transferred shall be subject to all the same terms and
conditions contained in the instrument evidencing the option.
5.8 TERMINATION OF RELATIONSHIP
The Plan Administrator shall determine the terms and conditions under which
an option may be exercised following termination of an Optionee's relationship
with the Company or any related corporation.
As used herein, the term "related corporation," when referring to a
subsidiary corporation, shall mean any corporation (other than the Company) in,
at the time of the granting of the option, an unbroken chain of corporations
ending with the Company, if stock possessing 50% or more of the total combined
voting power of all classes of stock of each of the corporations other than the
Company is owned by one of the other corporations in such chain. When referring
to a parent corporation, the term "related corporation" shall mean any
corporation in an unbroken chain of corporations ending with the Company if, at
the time of the granting of the option, each of the corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain.
5.9 NO STATUS AS SHAREHOLDER
Neither the Optionee nor any party to which the Optionee's rights and
privileges under the option may pass shall be, or have any of the rights or
privileges of, a shareholder of the Company with respect to any of the shares
issuable upon the exercise of any option granted under this Plan unless and
until such option has been exercised.
5.10 CONTINUATION OF RELATIONSHIP
Nothing in this Plan or in any option granted pursuant to this Plan shall
confer upon any Optionee any right to continue in the employ or other
relationship of the Company or of a related corporation, or to interfere in any
way with the right of the Company or of any such related corporation to
terminate his or her employment or other relationship with the Company at any
time.
________________________________________________________________________________
Page 7
<PAGE>
5.11 LIMITATION ON VALUE FOR INCENTIVE STOCK OPTIONS
As to all incentive stock options granted under the terms of this Plan, to
the extent that the aggregate fair market value of the stock (determined at the
time the incentive stock option is granted) with respect to which incentive
stock options are exercisable for the first time by the Optionee during any
calendar year (under this Plan and all other incentive stock option plans of the
Company, a related corporation or a predecessor corporation) exceeds $100,000,
such options shall be treated as nonqualified stock options. The previous
sentence shall not apply if the Internal Revenue Service issues a public rule,
issues a private ruling to the Company, any Optionee or any legatee, personal
representative or distributee of an Optionee or issues regulations changing or
eliminating such annual limit.
SECTION 6. GREATER THAN 10% SHAREHOLDERS
6.1 EXERCISE PRICE AND TERM OF INCENTIVE STOCK OPTIONS
If incentive stock options are granted under this Plan to employees who own
more than 10% of the total combined voting power of all classes of stock of the
Company or any related corporation, the term of such incentive stock options
shall not exceed five years and the exercise price shall be not less than 110%
of the fair market value of the Common Stock at the time the incentive stock
option is granted. This provision shall control notwithstanding any contrary
terms contained in an option agreement or any other document.
6.2 ATTRIBUTION RULE
For purposes of subsection 6.1, in determining stock ownership, an employee
shall be deemed to own the stock owned, directly or indirectly, by or for his or
her brothers, sisters, spouse, ancestors and lineal descendants. Stock owned,
directly or indirectly, by or for a corporation, partnership, estate or trust
shall be deemed to be owned proportionately by or for its shareholders, partners
or beneficiaries. If an employee or a person related to the employee owns an
unexercised option or warrant to purchase stock of the Company, the stock
subject to that portion of the option or warrant which is unexercised shall not
be counted in determining stock ownership. For purposes of this Section 6,
stock owned by an employee shall include all stock actually issued and
outstanding immediately before the grant of the incentive stock option to the
employee.
________________________________________________________________________________
Page 8
<PAGE>
SECTION 7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
The aggregate number and class of shares for which options may be granted
under this Plan, the Maximum Annual Optionee Grants set forth in subsection 5.1,
the number and class of shares covered by each outstanding option and the
exercise price per share thereof (but not the total price)shall all be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock of the Company resulting from a split-up or consolidation
of shares or any like capital adjustment, or the payment of any stock dividend.
7.1 EFFECT OF LIQUIDATION OR REORGANIZATION
7.1.1 CASH, STOCK OR OTHER PROPERTY FOR STOCK
Except as provided in subsection 7.1.2, upon a merger (other than a merger
of the Company in which the holders of Common Stock immediately prior to the
merger have the same proportionate ownership of Common Stock in the surviving
corporation immediately after the merger), consolidation, acquisition of
property or stock, separation, reorganization (other than a mere reincorporation
or the creation of a holding company) or liquidation of the Company, as a result
of which the shareholders of the Company receive cash, stock or other property
in exchange for or in connection with their shares of Common Stock, any option
granted hereunder shall terminate, but the Optionee shall have the right
immediately prior to any such merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation to exercise such Optionee's
option in whole or in part whether or not the vesting requirements set forth in
the option agreement have been satisfied.
7.1.2 CONVERSION OF OPTIONS ON STOCK FOR STOCK EXCHANGE
If the shareholders of the Company receive capital stock of another
corporation ("Exchange Stock") in exchange for their shares of Common Stock in
any transaction involving a merger, consolidation, acquisition of property or
stock, separation or reorganization, all options granted hereunder shall be
converted into options to purchase shares of Exchange Stock unless the Company
and the corporation issuing the Exchange Stock, in their sole discretion,
determine that any or all such options granted hereunder shall not be converted
into options to purchase shares of Exchange Stock but instead shall terminate in
accordance with the provisions of subsection 7.1.1; provided, however, that all
options granted hereunder shall be converted automatically into Exchange Stock
in (i) a merger of the Company in which the holders of Common Stock immediately
prior to the merger have the same proportionate ownership of Common Stock in the
surviving corporation immediately after the merger, (ii) a mere reincorporation,
or (iii) the creation of a holding
________________________________________________________________________________
Page 9
<PAGE>
company. The amount and price of converted options shall be determined by
adjusting the amount and price of the options granted hereunder in the same
proportion as used for determining the number of shares of Exchange Stock the
holders of the Common Stock receive in such merger, consolidation, acquisition
of property or stock, separation or reorganization. The converted options shall
retain the vesting requirements applicable to the options granted hereunder,
unless the Company and the corporation issuing the Exchange Stock, in their sole
discretion, determine otherwise.
7.2 FRACTIONAL SHARES
In the event of any adjustment in the number of shares covered by any
option, any fractional shares resulting from such adjustment shall be
disregarded and each such option shall cover only the number of full shares
resulting from such adjustment.
7.3 DETERMINATION OF BOARD TO BE FINAL
All Section 7 adjustments shall be made by the Board, and its determination
as to what adjustments shall be made, and the extent thereof, shall be final,
binding and conclusive. Unless an Optionee agrees otherwise, any change or
adjustment to an incentive stock option shall be made in such a manner so as not
to constitute a "modification" as defined in Code Section 425(h) and so as not
to cause his or her incentive stock option issued hereunder to fail to continue
to qualify as an incentive stock option as defined in Code Section 422(b).
SECTION 8. SECURITIES REGULATION
Shares shall not be issued with respect to an option granted under this
Plan unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, any applicable state securities laws, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance, including the
availability, if applicable, of an exemption from registration for the issuance
and sale of any shares hereunder.
SECTION 9. AMENDMENT AND TERMINATION
9.1 BOARD ACTION
The Board may amend, suspend or terminate this Plan at any time, provided
that no such amendment shall be made without the approval of the Company's
________________________________________________________________________________
Page 10
<PAGE>
shareholders if such approval is required to comply (a) with respect to
incentive stock options, Section 422 of the Code or any successor provision or
(b) any other law or regulation.
9.2 TERM OF THIS PLAN
Unless sooner terminated by the Board, this Plan shall terminate ten years
from the earlier of (a) the date on which this Plan is adopted by the Board or
(b) the date on which this Plan is approved by the shareholders of the Company.
No option may be granted after such termination or during any suspension of this
Plan. The amendment or termination of this Plan shall not, without the consent
of the option holder, alter or impair any rights or obligations under any option
theretofore granted under this Plan.
SECTION 10. EFFECTIVENESS OF THIS PLAN
This Plan shall become effective upon adoption by the Board so long as it
is approved by a majority of stock represented by shareholders voting either in
person or by proxy at a duly held shareholders' meeting any time within 12
months before or after the adoption of this Plan.
Plan adopted by the Board of Directors on June 16, 1993 and approved by the
shareholders on September 15, 1993. Amended and restated by the Board on
July 11, 1997 and approved by the shareholders on September 4, 1997. Amended
again by the Board on October 29, 1997.
________________________________________________________________________________
Page 11
<PAGE>
EXHIBIT 21.1
SCHEDULE OF EGGHEAD SUBSIDIARIES
FORM 10K FOR FISCAL YEAR ENDED 3/28/98
PARENT COMPANY: EGGHEAD.COM, INC.
- --------------
SUBSIDIARIES, WHOLLY OWNED BY EGGHEAD.COM, INC.:
- ------------------------------------------------
D J & J SOFTWARE CORPORATION (WA)
EH DIRECT, INC. (WA) Inactive corporation
MPI CORPORATION (WA) (WHOLLY OWNED SUBSIDIARY OF EH DIRECT, INC.) Inactive
corporation
SURPLUS SOFTWARE, INC.. (OR)
<PAGE>
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
of our reports included in this form 10-K, into the Company's previously filed
Registrations Statements No. 33-29453 (Egghead.com, Inc. 1989 Employee Stock
Purchase Plan); No. 33-59779 (Egghead.com, Inc. 1993 Stock Option Plan); No. 33-
64033 (Egghead.com, Inc. Restated Nonemployee Director Stock Option), No. 333-
56211 (1997 Nonofficer Egghead.com, Inc. Employee Stock Option Plan and Employee
Stock Issuance Plan) and No. 333-33611 (Surplus Software, Inc. 1996 Stock Option
Plan).
/s/ Arthur Andersen LLP
Seattle, Washington
June 24, 1998
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> MAR-28-1998
<PERIOD-END> MAR-28-1998
<CASH> 67,381
<SECURITIES> 0
<RECEIVABLES> 8,281
<ALLOWANCES> 2,611
<INVENTORY> 12,923
<CURRENT-ASSETS> 95,020
<PP&E> 5,676
<DEPRECIATION> 2,870
<TOTAL-ASSETS> 131,387
<CURRENT-LIABILITIES> 45,297
<BONDS> 0
0
0
<COMMON> 235
<OTHER-SE> 85,852
<TOTAL-LIABILITY-AND-EQUITY> 131,387
<SALES> 293,079
<TOTAL-REVENUES> 293,079
<CGS> 257,175
<TOTAL-COSTS> 257,175
<OTHER-EXPENSES> 22,337
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 32
<INCOME-PRETAX> (54,531)
<INCOME-TAX> 0
<INCOME-CONTINUING> (54,531)
<DISCONTINUED> 4,300
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (50,232)
<EPS-PRIMARY> (2.40)
<EPS-DILUTED> (2.40)
</TABLE>
