AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 6, 2000
REGISTRATION NO. 33-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMARKETPLACE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 33-0008870
-------- ----------
(STATE OR OTHER JURIS- (I.R.S. EMPLOYER
DICTION OF ORGANIZATION) IDENTIFICATION NO.)
255 WEST JULIAN STREET, SUITE 100, SAN JOSE, CA 95110
-------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
1999 STOCK PLAN
AND
STOCK OPTIONS EXERCISABLE FOR
1,042,833 SHARES OF COMMON STOCK
(FULL TITLE OF THE PLAN)
L. WAYNE KILEY
CHIEF EXECUTIVE OFFICER
255 WEST JULIAN STREET
SUITE 100
SAN JOSE, CA 95110
---------------------------------------------
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(408) 275-1229
----------------------------------------------
(TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------
PROPOSED
PROPOSED MAXIMUM
TITLE OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE PRICE FEE
- ---------------- ------------- -------------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock,
par value $.0001 per share 42,833(2) $1.68 (3) $ 71,959.44 $ 20.00
Common Stock,
par value $.0001 per share 1,000,000(4) $1.00(3) $ 1,000,000 $ 278.00
Common Stock,
par value $.0001 per share 1,700,000(5) $6.50(6) $11,050,000 $ 3,071.90
- -----------------------------------------------------------------------------------------------
Total 2,742,833 --- --- $ 3,369.90
- -----
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended ("Securities Act"), this Registration Statement also covers an
indeterminate number of shares as may be required by reason of any
stock dividend, recapitalization, stock split, reorganization, merger,
consolidation, combination or exchange of shares or other similar
change affecting the stock.
(2) Includes 42,833 shares of common stock which are issuable upon the
exercise of stock option agreements dated January 3, 1996.
(3) The proposed maximum offering price per share is based upon the
designated exercise prices as stated in the appropriate Stock Option
Agreement under which the options were granted.
(4) Includes 815,000 shares of common stock which are issuable under stock
option agreements dated as of December 31, 1996, and 185,000 shares of
common stock which are issuable under stock option agreements dated as
of September 17, 1998.
(5) Includes 1,700,000 shares of Common Stock reserved under the Company's
1999 Stock Plan.
(6) Estimated solely for the purpose of calculating the registration fee
based upon the closing price of the shares of Common Stock on December
31, 1999 of $6.50 on the OTC Bulletin Board.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information
ITEM 2. Registrant Information and Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents By Reference
The following documents, as filed with the Securities and Exchange
Commission by eMarketplace, Inc., a Delaware corporation (the "Corporation" or
"Registrant"), are incorporated herein by reference:
(1) Current Report on Form 8-K/A filed on December 27, 1999
(2) Current Report on Form 8-K filed on December 8, 1999
(3) Quarterly Report on Form 10-QSB/A for the quarter ended
September 30, 1999.
(4) Annual Report on Form 10-KSB for the year ended June 30, 1999.
(5) Current Report on Form 8-K/A filed on July 9, 1999.
(6) Current Report on Form 8-K filed on May 10, 1999.
(7) The description of the Common Stock, par value $.0001 per
share ("Common Stock"), of the Corporation contained in the Corporation's
registration statement filed under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), subsequent to the effective date of this Registration Statement and prior
to the filing of a post-effective amendment which indicate that all securities
offered have been sold or which registers all securities then remaining unsold,
shall be deemed to be incorporated by reference in the Registration Statement
and to be part thereof from the date of filing such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
-1-
<PAGE>
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. Description of Securities.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel
Not Applicable.
ITEM 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify its directors and officers, as well as
other employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation -- a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification in which the person seeking
indemnification has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be granted by a
corporation's charter, bylaws, disinterested director vote, stockholder vote,
agreement or otherwise.
Article Tenth of the Registrant's Certificate of Incorporation
states as follows:
The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of their heirs,
executors, and administrators of such a person.
ITEM 7. Exemption from Registration Claimed
Not Applicable.
-2-
<PAGE>
ITEM 8. Exhibits
The following is a complete list of exhibits filed as a part of this
Registration Statement:
EXHIBIT NO. DOCUMENT
- ----------- --------
5.1 Opinion of Berlack, Israels & Liberman LLP.
10.1 Form of Stock Option Agreement issued on January 3, 1996.
10.2 Form of Stock Option Agreement issued on December 31, 1996.
10.3 Form of Stock Option Agreement issued on September 17, 1998.
10.4 1999 Stock Plan
23.1 Consent of Berlack, Israels & Liberman LLP (included in Exhibit 5.1).
23.2 Consent of Moore Stephens, P.C.
ITEM 9. Undertakings
- -------
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; PROVIDED,
HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the information is
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
-3-
<PAGE>
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time be deemed to be the initial BONA FIDE
offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors,
officers and controlling persons of the registrant pursuant to the provisions
described in item 6, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable, In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding, is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, as amended,
the Registrant, certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in San Jose, California, on the 3rd day of January, 2000.
EMARKETPLACE, INC.
BY: /s/ L. WAYNE KILEY
---------------------------------------
L. Wayne Kiley
Chief Executive Officer,
(Chief Accounting Officer)
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendments thereto has been signed below by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ ROBERT M. WALLACE Chairman of the Board January 3, 2000
- ------------------------ of Directors
Robert M. Wallace
/s/ WAYNE KILEY Chief Executive Officer January 3, 2000
- ------------------------ (Chief Accounting Officer)
L. Wayne Kiley and Director
/s/ THOMAS E. EVANS, JR.
- ------------------------ Director January 3, 2000
Thomas E. Evans, Jr.
-5-
<PAGE>
EMARKETPLACE, INC.
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DOCUMENT
- ----------- --------
5.1 Opinion of Berlack, Israels & Liberman LLP.
10.1 Form of Stock Option Agreement issued on January 3, 1996.
10.2 Form of Stock Option Agreement issued on December 31, 1996.
10.3 Form of Stock Option Agreement issued on September 17, 1998.
10.4 1999 Stock Plan
23.1 Consent of Berlack, Israels & Liberman LLP (included in Exhibit 5.1).
23.2 Consent of Moore Stephens, P.C.
<PAGE>
EXHIBIT 5.1
OPINION OF BERLACK, ISRAELS & LIBERMAN, LLP
<PAGE>
[LETTERHEAD OF BERLACK, ISRAELS & LIBERMAN LLP]
January 4, 2000
eMarketplace, Inc.
255 West Julian Street
Suite 100
San Jose, CA 95110
Ladies and Gentlemen:
We have acted as counsel for eMarketplace, Inc., a Delaware corporation
(the "Company"), in connection with a Registration Statement on Form S-8
("Registration Statement") being filed contemporaneously herewith by the Company
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), covering an aggregate of 2,742,833 shares (the
"Shares") of the Company's Common Stock, $.0001 par value ("Common Stock"),
1,700,000 Shares of which are issuable under the Company's 1999 Stock Plan (the
"Stock Plan"), 42,833 Shares of which are issuable upon the exercise of stock
option agreements dated January 3, 1996, 815,000 Shares of which are issuable
under stock option agreements dated as of December 31, 1996, and 185,000 Shares
of which are issuable under stock option agreements dated as of September 17,
1998 (collectively, the "Stock Option Agreements").
In that connection, we have examined the Certificate of Incorporation,
as amended, and the By-Laws of the Company, the Registration Statement, the
Stock Plan, the Stock Option Agreements, and such other instruments and
documents as we have deemed relevant under the circumstances.
In making the aforesaid examinations, we have assumed the genuineness
of all signatures and the conformity to original documents of all copies
furnished to us as original or photostatic copies. We have also assumed that the
corporate records of the Company include all corporate proceedings taken by the
Company to date.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized and, when issued and paid for as
described in the Stock Plan (or the Stock Option Agreement issued pursuant
thereto) or Stock Option Agreements, as the case may be, will be duly and
validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as herein set forth as an
exhibit to the Registration Statement.
Very truly yours,
/s/ BERLACK, ISRAELS & LIBERMAN LLP
--------------------------------
Berlack, Israels & Liberman LLP
EXHIBIT 10.1
FORM OF STOCK OPTION AGREEMENT ISSUED ON JANUARY 3, 1996
<PAGE>
FORM OF OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") dated as of the 3rd day of
January, 1996 by and between Computer Marketplace, Inc., a Delaware corporation
(hereinafter the "Company"), and ____________________________,(the
"Optionholder").
W I T N E S S E T H:
WHEREAS, the Optionholder is an employee of the Company; and
WHEREAS, the Company desires to compensate the Optionholder for
exemplary services rendered to the Company and to provide the Optionholder with
an incentive to assist in the Company's continued prosperity; and
WHEREAS, the Company would like to grant to the Optionholder an option
(the "Option") to acquire ______________________ shares of common stock of the
Company (the "Option Shares"), pursuant to the terms herein.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and premises contained herein, the parties hereto agree, subject to the terms
and conditions herein, as follows:
1. THE OPTION GRANT.
(a) The Company hereby grants, subject to vesting described in
Section 1(b) below, to the Optionholder the right and option to purchase
__________________ (_________) Option Shares (adjusted to reflect any stock
splits, reverse splits recapitalization or other business combinations),at an
exercise price of $0.28125 per Option Share (the "Exercise Price").
<PAGE>
(b) The Option shall vest over a three (3) year period from the
date hereof. One-third of the total amount of Option Shares shall vest on the
first anniversary of this Option Agreement; One-third of the total amount of
Option Shares shall vest on the second anniversary of this Option Agreement; and
one-third of the total amount of Option Shares shall vest on the third
anniversary of this Option Agreement. There shall be no proration for any
portion of any year.
(c) The Option shall be exercisable for a period of ten (10) years
from the date hereof; provided however, that in the event that the Optionholder
ceases to be employed by the Company, for any reason whatsoever, then vesting
shall cease on date of termination or resignation and this Option Agreement
shall terminate 90 days following the date of such termination, or resignation,
as the case may be, and the Optionholder shall have no further rights under this
Option Agreement.
2. METHOD OF EXERCISE. The Option may be exercised in whole or in part
in accordance with the provisions of this Agreement by the Optionholder's
tendering the Exercise Price (or a proportionate part thereof if the Option is
partially exercised) in immediately available funds. The Company shall cooperate
to the extent reasonably possible with the Optionholder in an exercise pursuant
to which all or part of the Option Shares will be sold simultaneously with the
exercise of this with the broker-dealer participating in such sale being
irrevocably instructed to remit the proceeds from the exercise of the Option to
the Company upon settlement of the sale of the underlying Option Shares.
The Optionee may exercise part or all of the Option by tender to the
Company of a written notice of exercise together with advice of the delivery of
an order to a broker to sell part or all of the Option Shares, subject to such
-2-
<PAGE>
exercise notice and an irrevocable order to such broker to deliver to the
Company (or its transfer agent) sufficient proceeds from the sale of such Option
Shares to pay the Exercise Price and any withholding taxes. All documentation
and procedures to be followed in connection with such a "cashless exercise"
shall be approved in advance by the Company.
3. STOCKHOLDER RIGHTS. Neither the Optionholder nor any other person
legally entitled to exercise the Option shall be entitled to any of the rights
or privileges of a stockbroker of the Company with respect to any Option Shares
issuable upon any exercise of the Option unless and until the Option is
exercised.
4. NO WAIVER. The failure of any of the parties hereto to enforce any
provisions hereof on any occasion shall not be deemed to be a waiver of any
privilege given by any provision of this Agreement.
5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement on
the understanding of the parties hereto, and no amendment, modification or
waiver of any provision herein shall be effective, unless in writing, executed
by the party charged therewith.
6. GOVERNING LAW. This Agreement shall be construed and interpreted and
enforced in accordance with and shall be governed by the internal laws of the
State of Delaware.
7. Binding Effect; Assignment. This Agreement shall be binding upon,
and inure to the benefit of the parties and their successors and assigns. This
Agreement may not be assigned without the prior written consent of the Company.
8. PARAGRAPH HEADINGS. The paragraph headings herein have been inserted
for convenience of reference only and shall no way modify or restrict any of the
terms of the provisions hereof.
-3-
<PAGE>
9. NOTICES. Any notice required or permitted to be delivered hereunder
shall be deemed effective five (5) days after mailing when sent by United States
mail, postage prepaid, certified mail, return receipt requested, addressed to
Optionholder or the Company, as the case may be, at the addresses set forth
below:
If to Optionholder:
Name
Address
With a copy to:
If to the Company:
Computer Marketplace, Inc.
1490 Railroad Street
Corona, CA 91720
Attention: L. Wayne Kiley
With a copy to:
Bernstein & Wasserman, LLP
950 Third Avenue
New York, NY 10022
10. UNENFORCEABILITY AND SEVERABILITY. If any provision of this
Agreement is found to be void or unenforceable by a court of competent
jurisdiction, then the remaining provisions of this Agreement shall nevertheless
be binding upon the parties with the same force and effect as though the
unenforceable part has been severed and deleted.
11. COUNTERPARTS. This Agreement may be executed in counterparts, all
of which shall be deemed to be duplicate originals.
-4-
<PAGE>
12. FURTHER ASSURANCES. The Company and Optionholder agrees to execute
and deliver to each other such documents as the other party shall reasonably
request to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
COMPUTER MARKETPLACE, INC.
By: /s/ L. WAYNE KILEY
------------------------------------
L. Wayne Kiley
President and
Chief Executive Officer
---------------------------------------
-5-
EXHIBIT 10.2
FORM OF STOCK OPTION AGREEMENT ISSUED ON DECEMBER 31, 1996
<PAGE>
FORM OF OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") dated as of the 31st day of
December, 1996 by and between Computer Marketplace, Inc., a Delaware corporation
(hereinafter the "Company"), and the "Optionholder").
W I T N E S S E T H:
WHEREAS, the Optionholder is an employee or director of, or consultant
to, the Company; and
WHEREAS, the Company desires to compensate the Optionholder for
exemplary services rendered and to provide the Optionholder with an incentive to
assist in the Company's continued prosperity; and
WHEREAS, the Company would like to grant to the Optionholder an option
(the "Option") to acquire shares of common stock of the Company (the "Option
Shares"), pursuant to the terms herein.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and premises contained herein, the parties hereto agree, subject to the terms
and conditions herein, as follows:
1. THE OPTION GRANT.
(a) Upon the execution hereof, the Company grants to the
Optionholder the right and option to purchase Option Shares (or ________ option
shares following the contemplated one for six reverse stock split), at a price
(the "Exercise Price") of $.1667 per share (or $1.00 per share following the
contemplated 1-for-6 reverse stock split).
<PAGE>
(b) The Option shall be exercisable for a period of four (4)
years from the date hereof; provided however, that in the event that the
Optionholder ceases to be employed by, or retained as a consultant to, the
Company, for any reason whatsoever, then this Option Agreement shall terminate
90 days following the date of such termination, or resignation, as the case may
be, and the Optionholder shall have no further rights under this Option
Agreement.
2. METHOD OF EXERCISE. The exercise by an Optionholder of the rights
granted hereunder shall be by means of a notice of exercise (the "Notice of
Exercise") delivered to the Company specifying the number of Option Shares to be
purchased. Within five (5) days of receiving the Notice of Exercise, the Company
shall schedule a closing, which shall be no more than five (5) days later. At
the closing, the Company shall deliver the Option Shares to the Optionholder
with the appropriate transfer documents and the Optionholder shall pay to the
Company the full purchase price of such exercised Option Shares either in cash
or by check payable to the order of "Computer Marketplace, Inc." All Option
Shares issued pursuant to such option shall be fully paid and nonassessable and
shall not be subject to any liens. In lieu of the foregoing, so long as the
Optionholder sells Option Shares to the public (either pursuant to Rule 144 or a
registered public offering) through a broker-dealer registered with the National
Association of Securities Dealers and such a broker-dealer is given irrevocable
instructions to transfer the aggregate Exercise Price to the Company upon sales
of the Option Shares, this Option may be exercised by the Optionholder.
3. STOCKHOLDER RIGHTS. Neither the Optionholder nor any other person
legally entitled to exercise the Option shall be entitled to any of the rights
or privileges of a stockholder of the Company with respect to any Option Shares
issuable upon any exercise of the Option unless and until the Option is
exercised.
-2-
<PAGE>
4. NO WAIVER. The failure of any of the parties hereto to enforce any
provisions hereof on any occasion shall not be deemed to be a waiver of any
privilege given by any provision of this Agreement.
5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
on the understanding of the parties hereto, and no amendment, modification or
waiver of any provision herein shall be effective, unless in writing, executed
by the party charged therewith.
6. GOVERNING LAW. This Agreement shall be construed and interpreted
and enforced in accordance with and shall be governed by the internal laws of
the State of Delaware.
7. BINDING EFFECT. This Agreement shall be binding upon, and inure to
the benefit of the parties and their successors and assigns.
8. PARAGRAPH HEADINGS. The paragraph headings herein have been
inserted for convenience of reference only and shall no way modify or restrict
any of the terms of the provisions hereof.
9. NOTICES. Any notice required or permitted to be delivered
hereunder shall be deemed effective five (5) days after mailing when sent by
United States mail, postage prepaid, certified mail, return receipt requested,
addressed to Optionholder or the Company, as the case may be, at the addresses
set forth below:
If to Optionholder:
[Name]
[Address]
With a copy to:
If to the Company:
Computer Marketplace, Inc.
1490 Railroad Street
Corona, CA 91720
Attention: L. Wayne Kiley
-3-
<PAGE>
With a copy to:
Bernstein & Wasserman, LLP
950 Third Avenue
New York, NY 10022
10. UNENFORCEABILITY AND SEVERABILITY. If any provision of this
Agreement is found to be void or unenforceable by a court of competent
jurisdiction, then the remaining provisions of this Agreement shall nevertheless
be binding upon the parties with the same force and effect as though the
unenforceable part has been severed and deleted.
11. COUNTERPARTS. This Agreement may be executed in counterparts, all
of which shall be deemed to be duplicate originals.
12. FURTHER ASSURANCES. The Company and Optionholder agrees to execute
and deliver to each other such documents as the other party shall reasonably
request to effectuate the purposes of this Agreement.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 31st day of December, 1996.
COMPUTER MARKETPLACE, INC.
By: /s/ L. WAYNE KILEY
-----------------------
L. Wayne Kiley
President
By:
----------------------
[Name of Optionholder]
-5-
EXHIBIT 10.3
FORM OF STOCK OPTION AGREEMENT ISSUED ON SEPTEMBER 17, 1998
<PAGE>
FORM OF STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 17th day of September, 1998 (the "Grant
Date") is made and entered into by and between Computer Marketplace, Inc., a
Delaware corporation with its principal offices located at 1171 Railroad Street,
Corona, CA (the "Company") and ____________________________________________
whose address is:_____________________________________________ (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the
granting to the Optionee of stock options to purchase certain shares of the
Company's common stock, par value $.0001 per share ("Common Stock"), as
compensation for services rendered to the Company; and
WHEREAS, the Optionee desires to accept the grant of such options,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
1. GRANT OF OPTION. Subject to the provisions of this Agreement, the
Company hereby grants to the Optionee an option (the "Option") to purchase from
the Company __________________________ shares of Common Stock (the "Option
Shares") at an exercise price of $1.00 per share (the "Exercise Price").
2. TERM. This Option is exercisable for the period commencing on the
Grant Date and terminates on December 31, 2001 (the "Termination Date"), subject
to the provisions for termination and acceleration herein.
3. TERMINATION PROVISIONS. The right to exercise this Option is subject
to the following additional restrictions and limitations:
(a) TERMINATION OF EMPLOYMENT. If the Optionee is an employee of
the Company and employment by the Company or any of its subsidiaries of the
Optionee is terminated for any reason other than death, the Option may be
exercised for a period of one year after the later of (i) the date of such
termination or (ii) the effective date of a registration statement covering the
issuance and resale of the Option Shares; provided however, in no event shall
this option terminate after the Termination Date.
(b) DEATH OF OPTIONEE. If the Optionee shall die while this Option
remains exercisable, the Optionee's legal representative or representatives or
the persons entitled to do so under the Optionee's last will and testament or
under applicable intestate laws shall have the right to exercise this Option,
and such right shall expire and this Option shall terminate one year after the
date of the Optionee's death or on the expiration date of this Option, whichever
date is earlier. In all other respects, this Option shall terminate upon such
death.
<PAGE>
4. ADJUSTMENTS AND CORPORATE REORGANIZATIONS. If the outstanding shares
of stock of the class then subject to this Option are changed into or exchanged
for a different number or kind of shares or securities or other forms of
property (including cash) or rights, as a result of one or more reorganizations,
recapitalizations, spin-offs, stock splits, reverse stock splits, stock
dividends or the like, appropriate adjustments shall be made in the number
and/or kind of shares or securities or other forms of property (including cash)
or rights for which this Option may thereafter be exercised, all without any
change in the aggregate exercise price applicable to the unexercised portions of
this Option, but with a corresponding adjustment in the exercise price per share
or other unit. No fractional share of stock shall be issued under this Option or
in connection with any such adjustment. Such adjustments shall be made by or
under authority of the Company's board of directors whose determinations as to
what adjustments shall be made, and the extent thereof, shall be final, binding
and conclusive.
Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to this Option are changed into
or exchanged for property (including cash), rights or securities not of the
Company's issue, or any combination thereof, or upon a sale of substantially all
the property of the Company to, this Option shall terminate, unless provisions
be made in writing in connection with such transaction for the assumption of
this Option, or the substitution for this Option of an option covering the stock
of a successor employer corporation, or a parent or a subsidiary thereof, with
appropriate adjustments in accordance with the provisions hereinabove in this
Section 4 as to the number and kind of shares optioned and their exercise
prices, in which event this Option shall continue in the manner and under the
terms so provided.
If this Option shall terminate pursuant to the next preceding
paragraph, the Optionee or other person then entitled to exercise this Option
shall have the right, at such time prior to the consummation of the transaction
causing such termination as the Company shall designate, to exercise the
unexercised portions of this Option, including the portions thereof which would,
but for this Section 4 not yet be exercisable.
5. EXERCISE, PAYMENT FOR AND DELIVERY OF STOCK. This Option may be
exercised by the Optionee or other person then entitled to exercise it by giving
four business days' written notice of exercise to the Company specifying the
number of shares to be purchased and the total purchase price, accompanied by a
check to the order of the Company in payment of such price. If the Company is
required to withhold on account of any federal, state or local tax imposed as a
result of such exercise, the notice of exercise shall also be accompanied by a
check to the order of the Company in payment of the amount thus required to be
withheld.
6. CASHLESS EXERCISE. The Optionee may exercise part or all of the
Option by tender to the Company of a written notice of exercise together with
advice of the delivery of an order to a broker to sell part or all of the Option
Shares, subject to such exercise notice and an irrevocable order to such broker
to deliver to the Company (or its transfer agent) sufficient proceeds from the
sale of such Option Shares to pay the exercise price and any withholding taxes.
All documentation and procedures to be followed in connection with such a
"cashless exercise", including the delivery of Option Shares having a fair
market value (after deduction of the applicable exercise price) equal to the
2
<PAGE>
exercise price,shall be approved in advance by the Company, which approval shall
be expeditiously provided and not unreasonably withheld.
7. RIGHTS IN STOCK BEFORE ISSUANCE AND DELIVERY. No person shall be
entitled to the privileges of stock ownership in respect of any shares issuable
upon exercise of this Option, unless and until such shares have been issued to
such person as fully paid shares.
8. REGISTRATION OF OPTION SHARES. The Company shall use reasonable
efforts to register the Option Shares for sale to the public and to maintain the
effectiveness of such registration.
9. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, which shall be addressed to each
party's respective address, as set forth in the first paragraph of this
Agreement, or to such other address as such party shall give to the other party
hereto by a notice given in accordance with this Section and, except as
otherwise provided in this Agreement, shall be effective when deposited in the
United States mail properly addressed and postage prepaid. If such notice is
sent other than by the United States mail, such notice shall be effective when
actually received by the party being noticed.
(b) ASSIGNMENT. This Agreement and the rights granted
hereunder may not be assigned in whole or in part by Optionee except by will or
the laws of descent and distribution, and the Option is exercisable during
Optionee's lifetime only by the Optionee.
(c) FURTHER ASSURANCES. Both parties hereto shall execute and
deliver such other instruments and do such other acts as may be reasonably
necessary to carry out the intent and purposes of this Agreement.
(d) GENDER. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms
and the singular form of nouns and pronouns shall include the plural and vice
versa.
(e) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(f) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminate,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
3
<PAGE>
(g) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
of the same or any other term or condition.
(h) SEVERABILITY. The invalidity or enforceability, in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase, or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(i) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
(j) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and upon the successors and assigns of the
Company.
(k) LITIGATION-ATTORNEYS' FEES. In connection with any
litigation arising out of the enforcement of this Agreement or for its
interpretation, the prevailing party shall be entitled to recover its costs,
including reasonable attorneys' fees, at the trial and all appellate levels from
the other party hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the Company has granted this Option on the date of
grant specified above.
COMPUTER MARKETPLACE, INC.
By: /s/L.WAYNE KIlEY
-------------------------
L. Wayne Kiley
President
By:
-------------------------
Optionee
4
EXHIBIT 10.7
1999 STOCK PLAN
<PAGE>
COMPUTER MARKETPLACE, INC.
1999 STOCK PLAN
EFFECTIVE DATE: APRIL 13, 1999
<PAGE>
COMPUTER MARKETPLACE, INC.
1999 STOCK PLAN
EFFECTIVE: APRIL 13, 1999
TABLE OF CONTENTS
SECTION PAGE
1. Purpose and Amendment.............................................3
2. Definitions.......................................................3
3. Shares Subject to the Plan........................................6
4. Grant of Awards and Award Agreements..............................7
5. Stock Options.....................................................8
6. Performance Units................................................11
7. Restricted Stock.................................................13
8. Deferred Stock...................................................15
9. Certificates for Awards of Stock.................................15
10. Beneficiary......................................................18
11. Administration of the Plan.......................................19
12. Amendment or Discontinuance......................................20
13. Adjustments in Event of Change in
Common Stock...................................................20
14. Change in Control................................................21
15. Miscellaneous....................................................23
-i-
<PAGE>
COMPUTER MARKETPLACE, INC.
1999 STOCK PLAN
EFFECTIVE DATE: APRIL 13, 1999
1. PURPOSE AND AMENDMENT
The Computer Marketplace, Inc. 1999 Stock Plan has been adopted for the
purpose of attracting and retaining persons of ability as directors, employees
or consultants or advisors of Computer Marketplace, Inc., a Delaware
corporation, and its subsidiaries (the "Company"), motivate and reward good
performance, encourage such employees to continue to exert their best efforts on
behalf of the Company and its subsidiaries and provide opportunities for stock
ownership by such employees in order to increase their proprietary interest in
the Company by providing incentive awards to Key Employees (as hereinafter
defined), whose responsibilities and decisions directly affect the performance
of the Company and its subsidiaries. Such incentive awards may, in the
discretion of the Board or Committee, consist of common stock of the Company
(subject to such restrictions as the Board or Committee may determine or as
provided herein), performance units payable in such stock or cash, or incentive
or nonqualified stock options to purchase such stock, or any combination of the
foregoing, all as the Board or Committee may determine.
2. DEFINITIONS
When used herein, the following terms shall have the following
meanings:
"Award" means an award granted to any Eligible Participant or Key
Employee in accordance with the provisions of the Plan in the form of Options,
Restricted Stock, Deferred Stock or Performance Units, or any combination of the
foregoing.
"Beneficiary" means the beneficiary or beneficiaries designated pursuant
to Section 11 to receive the amount, if any, payable under the Plan upon the
death of an Eligible Participant or Key Employee.
"Board" means the Board of Directors of the Company.
"Change in Control" means the happening of any of the following:
(A) the purchase by any person, group, corporation or other
entity (other than the Company, a wholly-owned subsidiary of the
Company), directly or indirectly, of 20 percent or more of the
outstanding voting stock of the Company without the prior written
consent of the Board of Directors of the Company;
(B) the purchase, after the date hereof, by any person (as
defined in Section 13(d) of the 1934 Act), corporation or other entity
other than the Company or a wholly-owned subsidiary of the Company, of
<PAGE>
shares pursuant to a tender or exchange offer to acquire any stock of
the Company (or securities convertible into stock) for cash, securities
or any other consideration, provided that, after consummation of the
offer, such person, group, corporation or other entity is the
beneficial owner (as defined in Rule 13d-3 under the 1934 Act),
directly or indirectly, of 20 percent or more of the outstanding stock
of the Company (calculated as provided in paragraph (d) of Rule 13d-3
under the 1934 Act in the case of rights to acquire stock);
(C) approval by the stockholders of the Company of any (i)
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of
stock of the Company would be converted into cash, securities or other
property, other than a consolidation or merger of the Company in which
holders of its common stock immediately prior to the consolidation or
merger have substantially the same proportionate ownership of common
stock of the surviving corporation immediately after the consolidation
or merger as immediately before, or (ii) sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of
all or substantially all the assets of the Company; or
(D) a change in the majority of the members of the Board of
Directors (which shall include at least three (3) directors) within a
12-month period unless the election or nomination for election by the
Company's stockholders of each new director was approved by the vote of
two-thirds of the directors then still in office who were in office at
the beginning of the 12-month period.
"Code" means the Internal Revenue Code of 1986, as now in effect or as
hereafter amended. (All citations to sections of the Code are to such sections
as they may from time to time be amended or renumbered.)
"Committee" means a committee selected by a majority of the members of
the Board consisting of not less than three (3) members. If such committee fails
to be properly constituted, the Board shall function as and in place of the
Committee.
"Company" means Computer Marketplace, Inc. and its successors and
assigns.
"Deferred Stock" means Stock credited to an Eligible Participant or Key
Employee under the Plan subject to the requirements of Section 8 and such other
restrictions as the Committee deems appropriate or desirable.
"Eligible Participant(s)" shall mean directors, officers, Key Employees
of the Company and its subsidiaries, consultants, advisors and other persons who
may not otherwise be eligible to receive qualified incentive stock options under
Section 422 of the Code.
"Fair Market Value" means, as of any date, the closing price of the
Common Stock as reported by the OTC Bulletin Board, the Nasdaq National Market,
the Nasdaq Small Cap Market, the American Stock Exchange or any national stock
exchange on which the Stock is listed, if applicable, or, if no sales of Stock
2
<PAGE>
have taken place on such date, the closing price on the most recent preceding
date on which selling prices were quoted; PROVIDED, HOWEVER, that at the time of
grant of any Award other than an incentive stock option, the Committee, in its
sole discretion, may elect to determine Fair Market Value for all purposes under
the Plan with respect to such Award, based on the average of the closing prices,
as of the date of determination and a period of up to twenty (20) trading days
immediately preceding such date.
"Key Employee" means an officer or other key employee of any
Participating Company who, in the judgment of the Committee, is responsible for
or contributes to the management, growth or profitability of the business of any
Participating Company.
"Option" means an option to purchase Stock, including Restricted Stock
or Deferred Stock, if the Committee so determines, subject to the applicable
provisions of Section 5 and awarded in accordance with the terms of the Plan and
which may be an incentive stock option qualified under Section 422 of the Code
or a nonqualified stock option.
"Participating Company" means the Company or any subsidiary or other
affiliate of the Company; PROVIDED, HOWEVER, for incentive stock options only,
"Participating Company" means the Company or any corporation which at the time
such option is granted under the Plan qualifies as a subsidiary of the Company
under the definition of "subsidiary corporation" contained in Section 425(f) of
the Code.
"Non-Employee Director" shall mean each such person who is a member of
the Board of Directors of the Company but who is not a full-time employee of the
Company.
"Performance Unit" means a performance unit subject to the requirements
of Section 6 and awarded in accordance with the terms of the Plan.
"Plan" means the Computer Marketplace, Inc. 1999 Stock Plan, as the
same may be amended, administered or interpreted from time to time.
"Restricted Stock" means Stock delivered under the Plan subject to the
requirements of Section 7 and such other restrictions as the Committee deems
appropriate or desirable.
"Stock" means the $.0001 par value common stock of the Company.
"Total Disability" means the complete and permanent inability of an
Eligible Participant or Key Employee to perform all of his or her duties under
the terms of his or her employment, service or contractual arrangement, with any
Participating Company, as determined by the Committee upon the basis of such
evidence, including independent medical reports and data, as the Committee deems
appropriate or necessary.
3
<PAGE>
3. SHARES SUBJECT TO THE PLAN
The aggregate number of shares of Stock which may be awarded under the
Plan or subject to purchase by exercising an Option shall not exceed one million
seven hundred thousand (1,700,000) shares. Such shares shall be made available
from authorized and unissued shares of the Company's Stock. The Committee may,
in its discretion, decide to award other securities issued by the Company that
are convertible into Stock or make such other securities subject to purchase by
an Option, in which event the maximum number of shares of Stock into which such
other securities may be converted shall be used in applying the aggregate share
limit under this Section 3 and all provisions of the Plan relating to Stock
shall apply with full force and effect with respect to such convertible
securities. If, for any reason, any shares of Stock awarded or subject to
purchase by exercising an Option under the Plan are not delivered or are
reacquired by the Company, for reasons including, but not limited to, a
forfeiture of Restricted Stock or Deferred Stock or termination, expiration or a
cancellation with the consent of a participant of an Option, or a Performance
Unit, such shares of Stock shall again become available for award under the
Plan.
4. GRANT OF AWARDS AND AWARD AGREEMENTS
(a) Subject to the provisions of the Plan, the Committee shall, (i)
determine and designate from time to time those Eligible Participants and Key
Employees or groups of Eligible Participants and Key Employees to whom Awards
are to be granted; (ii) determine the form or forms of Award to be granted to
any Eligible Participant or Key Employee; (iii) determine the amount or number
of shares of Stock, including Restricted Stock or Deferred Stock if the
Committee so determines, subject to each Award; (iv) determine the terms and
conditions of each Award; (v) determine whether and to what extent Eligible
Participants and Key Employees shall be allowed or required to defer receipt of
any Awards or other amounts payable under the Plan to the occurrence of a
specified date or event; PROVIDED, HOWEVER, that no Award shall be granted after
the expiration of ten years from the effective date of the Plan.
(b) Each Award granted under the Plan shall be evidenced by a written
Award Agreement, in a form approved by the Committee. Such agreement shall be
subject to and incorporate the express terms and conditions, if any, required
under the Plan or as required by the Committee for the form of Award granted and
such other terms and conditions as the Committee may specify.
5. STOCK OPTIONS
(a) With respect to Options, the Committee shall (i) authorize the
grant of incentive stock options, nonqualified stock options, or a combination
of incentive stock options and nonqualified stock options; (ii) determine the
number of shares of Stock subject to each Option; (iii) determine whether such
Stock shall be Restricted Stock or Deferred Stock, in the Committee's
discretion, and (iv) determine the time or times when and the manner in which
each Option shall be exercisable and the duration of the exercise period;
PROVIDED, HOWEVER, that (A) no Option shall be granted after the expiration of
ten years from the effective date of the Plan and (B) the aggregate Fair Market
4
<PAGE>
Value (determined as of the date an Option is granted) of the Stock
(disregarding any restrictions in the case of Restricted Stock) for which
incentive stock options granted to any Key Employee under this Plan may first
become exercisable in any calendar year shall not exceed $100,000.
(b) The exercise period for a nonqualified stock option shall not
exceed ten years and one day from the date of grant, including any extension
which the Committee may from time to time decide to grant, shall not exceed ten
years from the date of grant; PROVIDED, HOWEVER, that, in the case of an
incentive stock option granted to a Key Employee who, at the time of grant, owns
stock possessing more than ten percent of the total combined voting power of all
classes of stock of the Company (a "Ten Percent Stockholder"), such period,
including extensions, shall not exceed five years from the date of grant.
(c) The Option price per share shall be determined by the Committee
at the time any Option is granted and shall be not less than (i) in the case of
incentive stock options 100% of the Fair Market Value, or (ii) in the case of an
Option granted to a Ten Percent Stockholder, 110% of the Fair Market Value.
(d) No part of any Option may be exercised until (i) the Eligible
Participant or Key Employee who has been granted the Award shall have remained
in the employ or service of a Participating Company for such period, if any,
after the date on which the Option is granted, as the Committee may specify, or
(ii) achievement of such performance or other criteria, if any, by the Eligible
Participant or Key Employee, the Company or any subsidiary, affiliate or
division of the Company, as the Committee may specify, and the Committee may
further require exercisability in installments.
(e) Except as otherwise provided in the Plan, the purchase price of
the shares as to which an Option shall be exercised shall be paid to the Company
at the time of exercise either in cash or in such other consideration as the
Committee deems appropriate, including Stock or the cancellation of Options then
exercisable (i.e., a "cashless exercise"), having a total fair market value, as
determined by the Committee, equal to the purchase price, or a combination of
cash and such other consideration having a total fair market value, as so
determined, equal to the purchase price.
(f) (i) If a Key Employee who has been granted an Option dies (A)
while an employee of any Participating Company, or (B) within three months after
termination of his or her employment because of his or her Total Disability, his
or her Options may be exercised, to the extent that the Key Employee shall have
been entitled to do so on the date of his or her death or such termination of
employment, by the person or persons to whom the rights under the option pass by
will, or if no such person has such right, by his or her executors or
administrators, at any time, or from time to time, within 12 months after the
date of death or within such other period, and subject to such terms and
conditions as the Committee may specify, but not later than the expiration date
specified in Section 5(b) above.
5
<PAGE>
(ii) If the Key Employee's employment by any Participating
Company terminates because of his or her Total Disability and such participant
has not died within the following three months, he or she may exercise his or
her Options, to the extent that he or she shall have been entitled to do so at
the date of the termination of his or her employment, at any time, or from time
to time, within 12 months after the date of the termination of his or her
employment within such other period, and subject to such terms and conditions as
the Committee may specify, but not later than the expiration date specified in
Section 5(b) above.
(iii) If the Key Employee's employment terminates for any other
reason, other than for "cause" pursuant to any employment or compensation
agreement, he or she may exercise his or her Options to the extent that he or
she shall have been entitled to do so at the date of the termination of his or
her employment, at any time, or from time to time, within sixty (60) days after
the date of the termination of his or her employment or within such other
period, and subject to such terms and conditions as the Committee may specify,
but not later than the expiration date specified in Section 5(b) above. If the
Key Employee's employment terminates for "cause" pursuant to any employment or
compensation agreement, the Options granted to such individual shall cease to be
exercisable by him or her on the day immediately preceding the date of
termination.
(g) No Option granted under the Plan shall be transferable other than
by will or by the laws of descent and distribution. During the lifetime of the
optionee, an Option shall be exercisable only by him or her.
(h) With respect to an incentive stock option, the Committee shall
specify such terms and provisions as the Committee may determine to be necessary
or desirable in order to qualify such Option as an incentive stock option within
the meaning of Section 422 of the Code.
6. PERFORMANCE UNITS
(a) The Committee shall determine a performance period (the
"Performance Period") of one or more years and shall determine the performance
objectives for grants of Performance Units. Performance objectives may vary from
participant to participant and shall be based upon such performance criteria or
combination of factors as the Committee may deem appropriate, including, but not
limited to, minimum earnings per share, return on equity or performance by a
subsidiary or division of the Company. Performance Periods may overlap and
participants may participate simultaneously with respect to Performance Units
for which different Performance Periods are prescribed.
(b) At the beginning of a Performance Period, the Committee shall
determine for each participant or group of participants eligible for Performance
Units with respect to that Performance Period the range of dollar values, if
any, which may be fixed or may vary in accordance with such performance or other
criteria specified by the Committee, which shall be paid to a participant as an
Award if the relevant measure of Company performance for the Performance Period
is met.
6
<PAGE>
(c) If during the course of a Performance Period there shall occur a
significant event or events (a "Significant Event") as determined by the
Committee, including, but not limited to, a reorganization of the Company, which
the Committee expects to have a substantial effect on a performance objective
during such period, the Committee may revise such objective.
(d) If an Eligible Participant or Key Employee terminates service
with all Participating Companies during a Performance Period because of death,
Total Disability, retirement on or after age 65, or at an earlier age with the
consent of the Company, or a Significant Event, as determined by the Committee,
that Eligible Participant or Key Employee shall be entitled to payment in
settlement of each Performance Unit for which the Performance Period was
prescribed (i) based upon the performance objectives satisfied at the end of
such period and (ii) prorated for the portion of the Performance Period during
which the Eligible Participant or Key Employee was employed or retained by any
Participating Company; PROVIDED, HOWEVER, the Committee may provide for an
earlier payment in settlement of such Performance Unit in such amount or amounts
and under such terms and conditions as the Committee deems appropriate or
desirable with the consent of the Eligible Participant or Key Employee. If an
Eligible Participant or Key Employee terminates service with all Participating
Companies during a Performance Period for any other reason, such Eligible
Participant or Key Employee shall not be entitled to any payment with respect to
that Performance Period unless the Committee shall otherwise determine.
(e) Each Performance Unit may be paid in whole shares of Stock,
including Restricted Stock or Deferred Stock (together with any cash
representing fractional shares of Stock), or cash, or a combination of Stock and
cash either as a lump sum payment or in annual installments, all as the
Committee shall determine, at the time of grant of the Performance Unit or
otherwise, commencing as soon as practicable after the end of the relevant
Performance Period. If and to the extent the full value of a Performance Unit is
not paid in Stock, then the shares of Stock representing the portion of the
value of the Performance Unit not paid in Stock shall again become available for
award under the Plan.
7. RESTRICTED STOCK
(a) Restricted Stock may be received by an Eligible Participant or
Key Employee either as an Award or as the result of an exercise of an Option or
as payment for a Performance Unit. Restricted Stock shall be subject to a
restriction period (after which restrictions shall lapse) which shall mean a
period commencing on the date the Award is granted and ending on such date or
upon the achievement of such performance or other criteria as the Committee
shall determine (the "Restriction Period"). The Committee may provide for the
lapse of restrictions in installments where deemed appropriate.
(b) Except as otherwise provided in this Section 7, no shares of
Restricted Stock received by an Eligible Participant or Key Employee shall be
sold, exchanged, transferred, pledged, hypothecated or otherwise disposed of
during the Restriction Period; PROVIDED, HOWEVER, the Restriction Period for any
recipient of Restricted Stock shall expire and all restrictions on shares of
Restricted Stock shall lapse upon the recipient's death, Total Disability,
retirement on or after age 65 or an earlier age with the consent of the Company,
or upon a Significant Event, as determined by the Committee.
7
<PAGE>
(c) Except as otherwise provided in Section 7(b) above, if an
Eligible Participant or Key Employee terminates employment or service with all
Participating Companies for any reason before the expiration of the Restriction
Period, all shares of Restricted Stock still subject to restriction shall,
unless the Committee otherwise determines, be forfeited by the recipient and
shall be reacquired by the Company, and, in the case of Restricted Stock
purchased through the exercise of an Option, the Company shall refund the
purchase price paid on the exercise of the Option. Upon such forfeiture, such
forfeited shares of Restricted Stock shall again become available for award
under the Plan.
(d) The Committee may require, under such terms and conditions as it
deems appropriate or desirable, that the certificates for Restricted Stock
delivered under the Plan be held in custody by a bank or other institution, or
that the Company may itself hold such shares in custody until the Restriction
Period expires or until restrictions thereon otherwise lapse, and may require,
as a condition of any receipt of Restricted Stock, that the recipient shall have
delivered a stock power endorsed in blank relating to the Restricted Stock.
(e) Nothing in this Section 7 shall preclude a recipient of
Restricted Stock from exchanging any shares of Restricted Stock subject to the
restrictions contained herein for any other shares of Stock that are similarly
restricted.
8. DEFERRED STOCK
(a) Deferred Stock may be credited to an Eligible Participant or Key
Employee either as an Award or as the result of an exercise of an Option or as
payment for a Performance Unit. Deferred Stock shall be subject to a deferral
period which shall mean a period commencing on the date the Award is granted and
ending on such date or upon the achievement of such performance or other
criteria as the Committee shall determine (the "Deferral Period"). The Committee
may provide for the expiration of the Deferral Period in installments where
deemed appropriate.
(b) Except as otherwise provided in this Section 8, no Deferred Stock
awarded hereunder shall be sold, exchanged, transferred, pledged, hypothecated
or otherwise disposed of during the Deferral Period; provided, HOWEVER, the
Deferral Period shall expire upon the recipient's death, Total Disability,
retirement on or after age 65 or an earlier age with the consent of the Company,
or upon a Significant Event, as determined by the Committee.
(c) At the expiration of the Deferral Period, the recipient of
Deferred Stock shall be entitled to receive a certificate pursuant to Section 9
for the number of shares of Stock equal to the number of shares of Deferred
Stock credited on his or her behalf.
(d) Except as otherwise provided in Section 8(b), if an Eligible
Participant or Key Employee terminates employment or service with all
8
<PAGE>
Participating Companies for any reason before the expiration of the Deferral
Period, all shares of Deferred Stock shall, unless the Committee otherwise
determines, be forfeited by the Key Employee or Eligible Participant, and, in
the case of Deferred Stock purchased through the exercise of an Option, the
Company shall refund the purchase price paid on the exercise of the Option. Upon
such forfeiture, such forfeited shares of Deferred Stock shall again become
available for award under the Plan.
9. CERTIFICATES FOR AWARDS OF STOCK
(a) Subject to Section 7(d), each Eligible Participant or Key
Employee entitled to receive shares of Stock under the Plan shall be issued a
certificate for such shares. Such certificate shall be registered in the name of
the Eligible Participant or Key Employee and shall bear an appropriate legend
reciting the terms, conditions and restrictions, if any, applicable to such
shares and shall be subject to appropriate stop-transfer orders.
(b) The Company shall not be required to issue or deliver any
certificates for shares of Stock prior to (i) the listing of such shares on any
stock exchange or quotation system on which the Stock may then be listed and
(ii) the completion of any registration or qualification of such shares under
any Federal or state law, or any ruling or regulation of any government body
which the Company shall, in its sole discretion, determine to be necessary or
advisable.
(c) All certificates for shares of Stock delivered under the Plan
shall also be subject to such stop-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations and other requirements
of the Securities and Exchange Commission, any stock exchange or quotation
system upon which the Stock is then listed and any applicable Federal or state
securities laws; and the Committee may cause a legend or legends to be placed on
any such certificates to make appropriate reference to such restrictions. The
foregoing provisions of this Section 9(c) shall not be effective if and to the
extent that the shares of Stock delivered under the Plan are covered by an
effective and current registration statement under the Securities Act of 1933,
or if and so long as the Committee determines that application of such
provisions is no longer required or desirable. In making such determination, the
Committee may rely upon an opinion of counsel for the Company.
(d) Except for the restrictions on Restricted Stock or Deferred Stock
under Sections 7 and 8, each Eligible Participant or Key Employee who receives
an award of Stock shall have all of the rights of a stockholder with respect to
such shares, including the right to vote the shares and receive dividends and
other distributions. No Eligible Participant or Key Employee awarded an Option,
Performance Unit or Deferred Stock shall have any right as a stockholder with
respect to any shares subject to such Award prior to the date of issuance to him
or her of a certificate or certificates for such shares, except as otherwise
provided under Section 8 with respect to Deferred Stock.
10. BENEFICIARY
(a) Each Eligible Participant or Key Employee, as the case may be,
shall file with the Committee a written designation, signed by the Eligible
9
<PAGE>
Participant or Key Employee, of one or more persons as the Beneficiary who shall
be entitled to receive the Award, if any, payable under the Plan upon his or her
death, and the designation may name one or more persons as contingent
Beneficiaries. An Eligible Participant or Key Employee may from time to time
revoke or change his or her Beneficiary designation without the consent of any
prior Beneficiary by filing a new designation with the Committee. The last such
designation received by the Committee shall be controlling; PROVIDED, HOWEVER,
that no designation, or change or revocation thereof, shall be effective unless
received by the Committee prior to the Eligible Participant's or Key Employee's
death, and in no event shall it be effective as of a date prior to such receipt.
Any such designation, or revocation or change of such designation, shall be in
such form and manner as the Committee shall determine.
(b) If no such Beneficiary designation is in effect at the time of an
Eligible Participant's or Key Employee's death, or if no designated Beneficiary
survives the Eligible Participant or Key Employee or if such Beneficiary is not
located by the Committee within one year of the death of the Eligible
Participant or Key Employee or if such designation conflicts with law, such
person's estate shall be entitled to receive the Award, if any, payable under
the Plan upon his or her death. If the Committee is in doubt as to the right of
any person to receive such Award, the Company may retain such Award, without
liability for any interest thereon, until the Committee determines the rights
thereto, or the Company may pay such Award into any court of appropriate
jurisdiction and such payment shall be a complete discharge of the liability of
the Company therefor.
11. ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by a Committee composed of two or
more persons, as appointed by the Board and serving at the Board's pleasure, but
unless and until the Committee is actually appointed by the Board, the Board
shall function as and in place of the Committee
(b) All decisions, determinations or actions of the Committee made or
taken pursuant to grants of authority under the Plan shall be made or taken in
the sole discretion of the Committee and shall be final, conclusive and binding
on all persons for all purposes.
(c) The Committee shall have full power, discretion and authority to
interpret, construe, act and administer the Plan and any part thereof, and its
interpretations and constructions thereof and actions taken thereunder shall be
final, conclusive and binding on all persons for all purposes.
(d) The Committee's decisions and determinations under the Plan need
not be uniform and may be made selectively among participants in the Plan,
whether or not such participants are similarly situated.
(e) The Committee shall keep minutes of its actions under the Plan.
The act of a majority of the members present at a meeting duly called and held
shall be the act of the Committee. Any decision or determination reduced to
writing and signed by all members of the Committee shall be fully as effective
as if made by unanimous vote at a meeting duly called and held.
10
<PAGE>
(f) The Committee may employ such legal counsel, including, without
limitation, independent legal counsel and counsel regularly employed by the
Company, consultants and agents as the Committee may deem appropriate for the
administration of the Plan and may rely upon any opinion received from any such
counsel or consultant and any computations received from any such consultant or
agent. All expenses incurred by the Committee in interpreting and administering
the Plan, including, expenses and professional fees, shall be paid by the
Company.
(g) No member or former member of the Committee or the Board shall be
liable for any action or determination made in good faith with respect to the
Plan or any Award granted under it. Each member or former member of the
Committee or the Board shall be indemnified and held harmless by the Company
against all costs or expenses (including counsel fees) or liabilities (including
any sum paid in settlement of a claim with the approval of the Board) arising
out of any act or omission to act in connection with the Plan unless arising out
of such member's own fraud or bad faith. Such indemnification shall be in
addition to any rights of indemnification the members or former members may have
as Directors or under the Bylaws of the Company.
12. AMENDMENT OR DISCONTINUANCE
The Board may at any time amend or terminate the Plan. The Plan may
also be amended by the Committee, provided that all such amendments shall be
reported to the Board. No amendment shall, without approval by a majority of the
Company's stockholders, (i) alter the group of persons eligible for qualified
incentive stock options under the Plan, or (ii) increase the maximum number of
shares of Stock which are available for Awards under the Plan. No amendment or
termination shall retroactively impair the rights of any person with respect to
an Award. On or after the occurrence of a Change in Control, the Plan may not be
amended or terminated until all payments required by Section 15 are made.
13. ADJUSTMENTS IN EVENT OF CHANGE IN COMMON STOCK
In the event of any recapitalization, reclassification, split-up or
consolidation of shares of Stock, merger or consolidation of the Company or sale
by the Company of all or a substantial portion of its assets, or other event
which could distort the implementation of the Plan or the realization of its
objectives, the Committee may make such appropriate adjustments in the Stock
subject to Awards, including Stock subject to purchase by an Option, or the
terms, conditions or restrictions on Stock or Awards as the Committee deems
equitable; PROVIDED, HOWEVER, that no such adjustments shall be made on or after
the occurrence of a Change in Control without the affected participant's
consent.
11
<PAGE>
14. CHANGE IN CONTROL
Notwithstanding anything else herein to the contrary, as soon as
practicable after the occurrence of a Change in Control, if any, the following
shall occur:
(a) All participants in the Plan may, regardless of whether still an
employee of any Participating Company or a director of the Company, elect to
cancel all or any portion of any Option no later than 90 days after the Change
in Control, in which event the Company shall pay to such electing participant,
an amount in cash equal to the excess, if any, of the Current Market Value (as
defined below) of the shares of Stock, including Restricted Stock or Deferred
Stock, subject to the Option or the portion thereof so canceled over the option
or purchase price for such shares; PROVIDED, HOWEVER, that, if the participant
is no longer an employee or in the service of any Participating Company, the
Option is exercisable at the time of the Change in Control.
(b) All Performance Periods shall end and the Company shall pay each
participant an amount in cash equal to the value of such participant's
Performance Units, if any, based upon the Stock's Current Market Value, in full
settlement of such Performance Units.
(c) All Restriction Periods shall end and the Company shall pay each
participant an amount in cash equal to the Current Market Value of the
Restricted Stock held by, or on behalf of, each participant in exchange for such
Restricted Stock.
(d) All Deferral Periods shall end and the Company shall pay to each
participant an amount in cash equal to the Current Market Value of the number of
shares of Deferred Stock credited to such participant in full settlement of such
Deferred Stock.
(e) The Company shall pay to each participant the full amount, if
any, deferred by such participant under the Plan which is not Performance Units,
Restricted Stock or Deferred Stock.
(f) For purposes of this Section 15, "Current Market Value" means the
highest Closing Price (defined below) during the period (the "Reference Period')
commencing 30 days prior to the Change in Control and ending 30 days after the
Change in Control; provided, that if the Change in Control occurs as a result of
a tender offer or exchange offer, or a merger, purchase of assets or stock or
other transaction approved by stockholders of the Company, Current Market Value
shall mean the higher of (i) the highest Closing Price during the Reference
Period or (ii) the highest price paid per share pursuant to such tender offer,
exchange offer or transaction. The "Closing Price" on any day during the
Reference Price means the closing price per share of Stock based upon sales
transactions on the national stock exchange or other recognized quotation
service (including the OTC Bulletin Board) that day.
12
<PAGE>
15. MISCELLANEOUS
(a) Nothing in this Plan or any Award granted hereunder shall confer
upon any employee any right to continue in the employ of any Participating
Company or interfere in any way with the right of any Participating Company to
terminate his or her employment at any time.
(b) No Award payable under the Plan shall be deemed salary or
compensation for the purpose of computing benefits under any employee benefit
plan or other arrangement of any Participating Company for the benefit of its
employees unless the Company shall determine otherwise.
(c) No participant shall have any claim to an Award until it is
actually granted under the Plan. To the extent that any person acquires a right
to receive payments from the Company under this Plan, such right shall be no
greater than the right of an unsecured general creditor of the Company. All
payments of awards provided for under the Plan shall be paid in cash from the
general funds of the Company; PROVIDED, HOWEVER, that such payments shall be
reduced by the amount of any payments made to the participant or his or her
dependents, beneficiaries or estate from any trust or special or separate fund
established by the Company to assure such payments. The Company shall not be
required to establish a special or separate fund or other segregation of assets
to assure such payments, and, if the Company shall make any investments to aid
it in meeting its obligations hereunder, the participant shall have no right,
title or interest whatever in or to any such investments except as may otherwise
be expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Plan, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any kind between
the Company and any participant. To the extent that any participant acquires a
right to receive payments from the Company hereunder, such right shall be no
greater than the right of an unsecured creditor of the Company.
(d) Absence on leave approved by a duly constituted officer of the
Company shall not be considered interruption or termination of employment for
any purposes of the Plan; PROVIDED, HOWEVER, that no Award may be granted to an
employee while he or she is absent on leave.
(e) If the Committee shall find that any person to whom any Award, or
portion thereof, is payable under the Plan is unable to care for his or her
affairs because of illness or accident, or is a minor, then any payment due him
or her (unless a prior claim therefor has been made by a duly appointed legal
representative) may, if the Committee so directs the Company, be paid to his or
her spouse, a child, a relative, an institution maintaining or having custody of
such person, or any other person deemed by the Committee to be a proper
recipient on behalf of such person otherwise entitled to payment. Any such
payment shall be a complete discharge of the liability of the Company therefor.
(f) The right of any person to any Award payable under the Plan may
not be assigned, transferred, pledged or encumbered, either voluntarily or by
operation of law, except as provided in Section 11 with respect to the
designation of a Beneficiary or as may otherwise be required by law
13
<PAGE>
(g) Copies of the Plan and all amendments, administrative rules and
procedures and interpretations shall be made available to all participants at
all reasonable times at the Company's headquarters.
(h) The Committee may cause to be made, as a condition precedent to
the payment of any Award, or otherwise, appropriate arrangements with the
participant or his or her Beneficiary, for the withholding of any federal,
state, local or foreign taxes.
(i) The Plan and the grant of Awards shall be subject to all
applicable federal and state laws, rules and regulations and to such approvals
by any government or regulatory agency as may be required.
(j) All elections, designations, requests, notices, instructions and
other communications from an Eligible Participant or Key Employee, Beneficiary
or other person to the Committee, required or permitted under the Plan, shall be
in such form as is prescribed from time to time by the Committee and shall be
mailed by first class mail or delivered to such location as shall be specified
by the Committee.
(k) The terms of the Plan shall be binding upon the Company and its
successors and assigns.
(l) Captions preceding the sections hereof are inserted solely as a
matter of convenience and in no way define or limit the scope or intent of any
provision hereof.
14
Exhibit 23.2
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the
Registration Statement of eMarketplace, Inc. on Form S-8 of our report dated
September 16, 1999 [except for Notes 17A, B and E as to which the dates are
October 12, 12 and 11, 1999, respectively], on our audit of the financial
statements of eMarketplace, Inc. We also consent to the reference of our firm
under the caption "Experts" in the Prospectus forming part of such Registration
Statement.
/s/ MOORE STEPHENS, P.C.
---------------------------------
MOORE STEPHENS, P.C.
Certified Public Accountants.
Cranford, New Jersey
January 4, 2000
