EXHIBIT 1.2
ESCROW AGREEMENT
with
mrcdrom.com, inc.
THE UNDERSIGNED, in order to designate THE OAKS BANK & TRUST COMPANY of
4849 Greenville Ave., Dallas, Texas 75206, ("Escrow Agent"), as the Escrow
Agent of the undersigned for the purposes and upon the terms and conditions
herein set forth ("Escrow Agreement"), does hereby enter into this Escrow
Agreement with THE OAKS BANK & TRUST COMPANY on the __ day of _____, 1997.
1. THE OAKS BANK & TRUST COMPANY hereby is appointed depository for
the undersigned with respect to the subject matter of this agreement. Escrow
Agent is not required to post bond for any activity of Escrow Agent described
in this Escrow Agreement.
2. This Escrow Agreement is being executed in connection with that certain
offer for sale to subscribers ("Subscribers") of mrcdrom.com, inc. common
stock pursuant to a prospectus dated _______. Pursuant to the offer, and
concurrently with the execution and delivery hereof, undersigned have agreed
to deposit with Escrow Agent, as custodian and depository all moneys until
the minimum offering amount is satisfied collected pursuant to this offer from
Investors, and direct that same be held and disposed of by Escrow Agent as
herein provided.
3. Escrow Agent is directed and authorized to hold the deposited funds in
its safekeeping and as a permanent investment pursuant to Texas Property Code,
Sec.113.057 (a) without security therefore, in a special checking account in
The Oaks Bank & Trust Company, designated mrcdrom.com, inc. Escrow Account.
The undersigned hereby directs the Escrow Agent to immediately distribute
the deposited funds thereon to mrcdrom.com pursuant to the following escrow
requirements:
a) All funds received from Investors will be deposited into
Escrow Account at The Oaks Bank & Trust Company.
b) Escrow Agent will promptly return to each investor their
portion of the escrowed funds, without interest, if:
A) The Investor is subsequently rejected by mrcdrom.com, in
whole or in part, as set forth in the mrcdrom.com Prospectus,
mrcdrom.com will immediately notify Escrow Agent in writing of
any rejected Investor. Escrow Agent will then, upon collection
of Investor's moneys, refund the rejected amount to Investor.
B) In the event the Escrow Agent fails to receive aggregate
escrowed funds in the amount of Two-Hundred Fifty Thousand
Dollars ($250,000) on or before _______________ ("Termination
Date"), unless the offering is extended by mrcdrom.com, inc. at
its sole option, until ________________, and mrcdrom.com, inc.
will promptly notify Escrow Agent in writing of any extension of
the offering.
c) Escrow Agent will promptly deliver the escrowed funds to
mrcdrom.com without interest if:
A) The escrowed funds are in the aggregate amount of not less
than Two-Hundred Fifty Thousand Dollars ($250,000) ("Minimum
Subscription") on or before Termination Date or any extension
thereof.
B) In the case of a distribution under the proceeding
subparagraph c)A) above, mrcdrom.com may continue to deposit
checks made payable to mrcdrom.com Escrow Account into Escrow
Account and Escrow Agent will cause the Escrow Account to remain
open for a period not to exceed twenty-one days after escrow is
broken, for such purpose. During said twenty-one day period all
such deposits shall be considered funds of mrcdrom.com received
by Escrow Agent for collection and upon receipt of collected
funds on each such deposit mrcdrom.com may withdraw such
collected funds at will.
ESCROW AGENT SHALL BE PROTECTED IN RELYING ON THE SOLE WRITTEN ASSERTIONS OF
mrcdrom.com, inc. FOR EACH OF THE ITEMS IN THIS PARAGRAPH 3.
4. Escrow Agent is not a party to, nor is it bound by nor need it give
consideration to the terms or provisions of any other agreement or undertaking
between the undersigned or between any of the undersigned and other persons,
or any agreement or undertaking which may be evidenced by or disclosed by any
items included among the deposited funds, and Escrow Agent assents to and is
to give consideration only to the terms and provisions of this Escrow Agreement.
Unless it is specifically provided otherwise herein, Escrow Agent has no duty
to determine or inquire into the happening or occurrence of any event or
contingency or the performance or failure of performance of any of the
undersigned with respect to arrangements or contracts with each other or with
others, and the Escrow Agent's sole duty hereunder is to hold the deposited
funds and to dispose of and deliver the same in accordance with instructions
given to it in the form and tenor provided in this Escrow Agreement.
mrcdrom.com represents and warrants that each Investor has been advised of
this Escrow Agreement and its availability.
5. Escrow Agent shall not be responsible or liable to any person in any
manner whatever for the sufficiency, correctness, genuiness, effectiveness or
validity of any of the deposited funds or for the form or execution thereof, or
for the identity or authority of any person executing or depositing it. If any
of the undersigned are acting as agent for others, all of the undersigned
represent and warrant that such agent is authorized to make and enter into
this Escrow Agreement. This Escrow Agreement is a personal one between the
undersigned and the Escrow Agent only, and in connection therewith Escrow
Agent is authorized by each of the undersigned to rely upon the representa
tions, both actual and implied, of the undersigned and all other persons
connected with this Escrow Agreement and the deposited funds, as to marital
status, authority to execute and deliver this Escrow Agreement,
notifications, receipts, or instructions hereunder, and relationships among
persons,including persons authorized to receive delivery hereunder, and Escrow
Agent shall not be liable to any person in any manner for such reliance. The
duty of Escrow Agent hereunder shall only be to the undersigned, their
successors, and assigns and to no other person or persons whomsoever.
6. Escrow Agent may act upon any written notice, request, waiver,
consent, certificate, receipt, authorization, power of attorney or other
instrument or document, from mrcdrom.com and Escrow Agent may consider such to
be genuine and to be what it purports to be. Escrow Agent shall be liable
as a depository only and shall not be responsible for the sufficiency or
accuracy of the form, execution or validity of documents deposited hereunder, or
any description of funds or other thing therein, nor shall it be liable
in any respect on account of the identity, authority, or rights of the persons
executing or delivering or purporting to execute or deliver any such document
or paper. The undersigned parties, jointly and severally, agree to indemnify
and hold harmless Escrow Agent from and against any and all liabilities,
including attorney's fees, incurred in connection with this Escrow Agreement.
7. Whenever under the terms of this Escrow Agreement the performance date of
any provision hereof shall fall on a holiday of the Escrow Agent, the
performance thereof on the next succeeding business day of Escrow Agent shall be
deemed to be in full compliance. Whenever Escrow Agent is required by the terms
hereof to take action upon the occurrence of any event or contingency, the time
prescribed for such actions shall in all cases be a reasonable time after
ritten notice to the Escrow Agent of the happenings of such event or contingency
provided, however, that this provision shall not be deemed to limit or reduce
the time allowed Escrow Agent for action as provided in Paragraph 12 of this
Agreement.
8. Anything in this Escrow Agreement to the contrary notwithstanding, Escrow
Agent shall not be liable to any person for anything which it may do or refrain
from doing in connection with this Escrow Agreement, unless Escrow Agent is
guilty of gross negligence or willful misconduct.
9. In case of any notice of dispute or disagreement between the parties, or
among them or any other person resulting in adverse claims and demands being
made in connection with, or for, any Escrow Account funds or other funds held
pursuant to the terms of this Escrow Agreement:
a) The Escrow Agent may refuse to comply with the claims or
demands as long as such disagreement continues and in so refusing
the Escrow Agent will make no delivery or disposition of the
Escrow Account funds and the Escrow Agent shall not be liable or
become liable in any way to any person for its failure or refusal
to comply with such conflicting or adverse demands; and it shall
be entitled to continue to refrain from acting and refuse to act
until it receives authorization executed by all parties to the
disagreement; or a certified or file-stamped copy of a court
order resolving the disagreement; or a certified or file-stamped
copy of a court order resolving the disagreement or directing a
distribution of all or any portion of the Escrow Account funds.
Upon receipt of any such document the Escrow Agent shall promptly
act according to the terms thereby being relieved of any duty,
responsibility or liability arising from the adverse claims and
demands or from the terms of this Escrow Agreement.
b) The Escrow Agent shall have at its option, at any time, the
rights to file an action or bill in interpleader, or similar
action for such purpose, in a court of competent jurisdiction and
pay the Escrow Account funds and any income earned or accrued
thereon into said court. In such event, the Escrow Agent's
duties, responsibilities and liabilities with respect to the
Escrow Account fund, proceeds therefrom and this Escrow Agreement
shall terminate, provided however, that all costs and expenses,
including attorney's fees, which the Escrow Agent incurs in any
such action shall be the responsibility of and paid by
mrcdrom.com.
10. The death, disability, bankruptcy, insolvency or absence of any of the
undersigned shall not affect or prevent performance or exercise by Escrow Agent
of its obligations and rights hereunder.
11. Escrow Agent may from time to time advise with legal counsel of its own
choosing in the event of any disagreement, controversy, question or doubt as to
the construction of any of the provisions hereof or its duties and Escrow Agent
will be protected in acting in good faith in accordance with the opinion of such
counsel.
12.Escrow Agent will receive from mrcdrom.com prior to distribution of the
deposited funds and prior to termination of this Escrow Agreement, fees and
charges for services of Escrow Agent hereunder which are agreed to be $1,250
and additional amounts sufficient to reasonably compensate Escrow Agent
for any additional services, fees or charges imposed upon Escrow Agent as
a result of additional responsibilities in connection with or arising on
account of the deposits into the Escrow Account, the holding and
disposition thereof pursuant to this Escrow Agreement, or as a result of
litigation or threat of litigation. mrcdrom.com agrees to reimburse Escrow
Agent for reasonable attorney's fees, disbursement expenses,costs, charges and
damages, if any, suffered or incurred by Escrow Agent in the performance
of the duties and responsibilities of Escrow Agent pursuant to this
Escrow Agreement.
13.The full amount of the deposited funds, less any fees and costs as herein
described, shall be paid to mrcdrom.com by the Escrow Agent pursuant to this
Escrow Agreement. If additional moneys are added to the Escrow Account after
the escrow is broken, Escrow Agent shall not be required to disburse such funds
except pursuant to the provisions of this Escrow Agreement. Notwithstanding
anything to the contrary contained herein, Escrow Agent is under no duty
or responsibility to enforce collection of any checks delivered to Escrow Agent
hereunder.
14. During the term of the escrow, the deposited Escrow Account funds hereunder
shall, by order of mrcdrom.com, be deposited in a non-interest bearing account
with the Oaks Bank and Trust Company pursuant to paragraph 3 above.
15. Escrow Agent reserves the right to resign hereunder, upon ten (10) days
prior written notice to mrcdrom.com. On and after the date of the written
notice of resignation, Escrow Agent is not required to accept any additional
deposits from Investors or anyone else for the Escrow Account. In the event
of said resignation, and prior to the effective date thereof, mrcdrom.com, by
written notice to Escrow Agent, shall designate a successor escrow agent. If
mrcdrom.com fails to designate such a successor escrow agent within such time
period, the Escrow Agent may deliver any undisbursed funds into the registry
of any court having jurisdiction at the expense of mrcdrom.com.
16. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Texas and the laws of the United States applicable to
transactions in Texas.
17. THE OAKS BANK & TRUST COMPANY HAS NOT PARTICIPATED IN THE PLANNING
OR STRUCTURING OF THIS TRANSACTION AND ASSUMES NO RESPONSBILITY FOR ADVERSE
TAX OR OTHER LEGAL CONSEQUENCES AFFECTING THE UNDERSIGNED, AN INVESTOR OR ANY
OTHER PERSON WHATSOEVER, EACH OR WHOM IS URGED TO DIRECT ALL SUCH QUESTIONS TO
COMPETENT LEGAL COUNSEL OF ANY SUCH PERSON'S CHOICE.
18. This Agreement may be executed in several counterparts, each of which shall
be deemed an original, and such counterparts shall constitute and be one and the
same instrument.
mrcdrom.com, inc.
By:_________________________________
Its:_________________________________
THE OAKS BANK & TRUST COMPANY of Dallas, Texas agrees to accept funds as
Escrow Agent subject to the terms and conditions of this Escrow Agreement, this
_____ day of ____________________, 1997.
THE OAKS BANK & TRUST COMPANY
By:_________________________________
Its:_________________________________
EXHIBIT 3.0
ARTICLES OF AMENDMENT for mrcdrom.com, inc.
The Undersigned, a duly elected officer of mrcdrom.com, inc.
(the "Company") hereby affirms the following are true and the
requirements of the laws of the State of Delaware have been
satisfied as follows:
1. The sole shareholder, owning 100% of the outstanding
shares
has approved the below listed amendment as of April 15,
1997.
2. The board of directors of the Company has approved the
below
listed amendment as of April 5, 1997.
3. An Article Twelfth shall be added as follows:
TWELFTH: The Corporation specifically opts
out of
Section 203
of the Delaware Corporations Code.
This amendment shall be immediately effective upon
the filing with the Delaware Secretary of State.
Signed August 14, 1997
________________________
Robert Gregory,
President
BYLAWS
OF
MRCDROM.COM, INC..
(a Delaware corporation) ____________________
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK.
Certificates
representing stock in the corporation shall be signed by, or
in the name of, the corporation by the Chairman or ViceChairman
of the Board of Directors, if any, or by the
President or a VicePresident and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant
Secretary of the corporation. Any or all the signatures on
any such certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate
shall have ceased to be such officer,
transfer agent, or registrar before such certificate is
issued, it may be issued by the corporation with the same
effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Whenever the corporation shall be authorized to issue more
than one class of stock or more than one series of any class
of stock, and whenever the corporation shall issue
any shares of its stock as partly paid stock, the
certificates representing shares of any such class or
series or of any such partly paid stock shall set forth
thereon the statements prescribed by the General Corporation Law.
Any restrictions on the transfer or
registration or transfer of any shares of stock of any
class or series shall be noted conspicuously on
the certificate representing such shares.
The corporation may issue a new certificate of
stock uncertificated shares in place of any certificate
theretofore issued by it, alleged to have been lost,
stolen, or destroyed, and the Board of Directors may
require the owner of the lost, stolen, or destroyed
certificate, or his legal representative, to give
the corporation a
bond sufficient to indemnify the
corporation against any claim that may be made against
it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new
certificate or uncertificated shares.
2. UNCERTIFICATED SHARES. Subject to any
conditions imposed by the General Corporation Law, the Board of
Directors of the corporation may provide by resolution or
resolutions that some or all of any or all classes or series
of the stock of the corporation shall be
uncertificated shares. Within a reasonable time after the
issuance or transfer of any uncertificated shares, the
corporation shall send to the registered owner thereof any
written notice prescribed by the General Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation
may, but shall not be required to, issue fractions of a
share. If the corporation does not issue fractions of a
share, it shall (1)
arrange for the disposition of fractional interests by
those entitled thereto, (2) pay in cash the fair value of
fractions of a share as of the time when those entitled to
receive such fractions are determined, or (3) issue
scrip or warrants in registered form (either
represented by a certificate or
uncertificated) or bearer form (represented by a
certificate) which shall entitle the holder to receive a
full share upon the surrender of such scrip or warrants
aggregating a full share. A certificate for a
fractional share or an uncertificated
fractional share shall, but scrip or warrants shall not
unless otherwise provided therein, entitle the holder to
exercise voting rights, to receive dividends thereon, and to
participate in any of the assets of the corporation in the
event of liquidation. The Board of Directors may cause
scrip or warrants to be issued subject to the conditions that
they shall become void if not exchanged for
certificates representing the full shares or
uncertificated full shares before a specified date, or
subject to the conditions that the shares for which scrip
or warrants are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the
holders of scrip or warrants, or subject to any other
conditions which the Board of Directors may impose.
4. STOCK TRANSFERS. Upon compliance with
provisions restricting the transfer or registration of
transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the
corporation shall be made only on the stock ledger of the
corporation by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the corporation or with
a transfer agent or a registrar, if any, and, in the case of
shares represented
by certificates, on surrender of the
certificate or certificates for such shares of stock
properly endorsed and the payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. In order that the
corporation may determine the stockholders entitled to notice
of or vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be
more than sixty nor less than ten days before the date of such
meeting. If no record date is fixed by the Board of
Directors, the record date for determining
a stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business
on the day next preceding then which notice is given, or, if
notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A
determination of record entitled to notice of or to vote at a
meeting stockholders shall apply to any adjournment of the
meeting, provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting. In order
that the corporation may determine the
stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may
fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which date shall not be more
than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors.
If no record date has been fixed by the Board of Directors, the
record date for determining the stockholders entitled to
consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
required by the General Corporation Law, shall be
the first date on which a signed written consent setting
forth the action taken or proposed to be
taken is delivered to the corporation by delivery to its
registered office in the State of Delaware, its
principal place of business, or an officer or agent of the
corporation having custody of the book in which
proceedings of meetings of
stockholders are recorded. Delivery made to the
corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If
no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by
the General Corporation Law, the record date
for determining
stockholders entitled to consent to
corporate action in writing without a meeting shall be at the
close of business on the day on which the Board of
Directors adopts the resolution taking such prior action. In
order that the corporation may determine the
stockholders entitled to receive payment of any
dividend or other distribution or
allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion,
or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record
date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and
which record date shall be not more than sixty days prior
to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose shall be
at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. 6.
MEANING OF CERTAIN TERMS. As used herein in
respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote
there at or to consent or dissent in writing in lieu of a
meeting, as the case may be, the term "share" or "shares"
or "share of stock" or "shares of stock" or "stockholder"
or "stockholders" refers to an outstanding share or shares
of stock and to a holder or holders of
record of outstanding shares of stock when the corporation is
authorized to issue only one class of shares of stock, and
said reference is also intended to include any
outstanding share or shares of stock and any holder or
holders of record of outstanding shares of stock of any
class upon which or upon whom the certificate of
incorporation confers such rights where there are two or
more classes or series of shares of stock or upon which or upon
whom the General Corporation Law confers such rights
notwithstanding that the
certificate of
incorporation may provide for more than
one class or series of shares of stock, one or more of
which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event
of an increase or a decrease in the authorized number of
shares of stock of any class or series which is otherwise
denied voting rights under the provisions of the certificate
of incorporation, except as any provision of law may otherwise
require.
7. STOCKHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date
and at the time fixed, from time to time, by the
directors, provided, that the
first annual
meeting shall be held on a date within
thirteen months after the organization of the corporation,
and each successive annual meeting shall be held on a date
within
thirteen months after the date of the preceding annual meeting.
A special meeting shall be held on the date and at the time fixed
by the directors.
- PLACE. Annual meetings and special meetings
shall be held at
such place,
within or without the State of Delaware, as
the directors may, from time to time, fix. Whenever
the directors shall fail to fix such place, the meeting
shall be held at the registered office of the corporation in
the State of Delaware.
- CALL. Annual meetings and special meetings may be called
by the directors or by any officer instructed by the directors to
call the meeting.
- NOTICE OR WAIVER OF NOTICE. Written notice of all
meetings shall be given, stating the place, date, and hour of the
meeting and stating the place within the city or other
municipality or community at which the list of stockholders of
the corporation may be examined. The notice of an annual meeting
shall state that the meeting is called for the election of
directors and
for the transaction of other business which may properly come
before the meeting, and shall (if any other action could be
taken at a special meeting is to be taken at such annual
meeting) state the purposes or purposes. The notice of a
special meeting shall in all instances state the purpose or
purposes for which the meeting is called. The notice of any
meeting shall also include, or be accompanied by, any additional
statements, information, or documents prescribed by the General
Corporation Law. Except as otherwise provided by the General
Corporation Law, a copy of the notice of any meeting shall be
given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse
of the prescribed period of time shall have been waived, and
directed to each stockholder at his record address or at such
other address which he may have furnished by request in writing
to the Secretary of the corporation. Notice by mail shall be
deemed to be given when deposited, with postage thereon prepaid,
in the United States Mail. If a meeting is adjourned to another
time,
not more than thirty days hence, and/or place is made at the
meeting, it shall not be necessary to give notice of the
adjourned meeting unless the directors, after adjournment, fix a
new record date of the adjourned meeting. Notice need not be
given to any stockholder who submits a written waiver of notice
signed by
him before or after the time stated therein. Attendance
of a stockholder at a meeting of stockholders shall constitute
a waiver of notice of such meeting, except when the stockholder
attends the meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
Neither
the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified
in any written waiver of notice.
- STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten
days before every meeting of stockholders, a complete list of the
stockholders, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting either at a place within the city
or other municipality or community where the meeting is
to be held, which place shall be specified in the notice
of the meeting, or if not so specified, at the place where the
meeting is to be held. The list shall be produced and kept at
the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is
present. The stock ledger shall
be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or
the books of the corporation, or to vote at any meeting of
stockholders.
- CONDUCT OF MEETING. Meeting of the stockholders
shall be
presided over by one of the following officers in the
order of seniority and if present and acting - the Chairman of
the Board, if any, the Vice-Chairman of the Board, if any, the
President, a Vice President, or, if none of the
foregoing is in office and present and acting, by a
chairman to be chosen by the stockholders. The Secretary
of the corporation, or in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but if
neither the Secretary nor an Assistant Secretary is present the
Chairman of the meeting shall appoint a secretary of the meeting.
- PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for him by proxy in all matters
in which a stockholder is entitle to participate, whether by
waiving notice of any meeting, voting or participating at a
meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the stockholder or by his
attorneyin-fact. No proxy shall be voted or acted upon after
three years from its date unless such proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and, if, and only as long as, it is
coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable power.
A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock
itself or an interest in the corporation generally.
- INSPECTORS. The directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of
election to act at the meeting or any adjournment thereof. If
an inspector or inspectors are not appointed, the person
presiding at the meeting may, but need not,
appoint one or more inspectors. In
case any person who may be appointed as an inspector
fails to appear or act, the vacancy may be filled by
appointment made by the directors in advance of the meeting or
at the meeting by the person plurality of the votes of the shares
present in person or represented by proxy at the meeting and
entitled to vote
on the election of directors. Any other action shall be
authorized by a majority of the votes cast except where the
General Corporation Law prescribes a different percentage of
votes and/or a different exercise
of voting power, and except as may be otherwise prescribed by
the provisions of the certificate of incorporation and these
Bylaws. In the election of directors, and for any other action,
voting need not be by ballot.
8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any
action required by the General Corporation Law to be taken at any
annual or special meeting of stockholders, or any action which
may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action
without a meeting by
less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
Action taken pursuant to this paragraph shall be subject to the
provisions of Section 228 of the General Corporation Law.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and affairs of
the corporation shall be managed by or under the directions of
the Board of Directors of the corporation. The
Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase
"whole board" herein refers to the total number of directors
which the corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, a citizen of the United States, or a resident of the
State of Delaware. The initial Board of Directors shall consists
of one person. Thereafter, the number of directors constituting
the whole board shall be at least one. Subject to the foregoing
limitation and except for the first Board of Directors, such
number may be fixed from time to time by action of the
stockholders or of the directors, or, if the number is not fixed,
the number shall be one. The number of directors may be
increased or decreased by action of the stockholders or of the
directors.
3. ELECTION AND TERM. The first Board of Directors,
unless the members thereof shall have been named in
the
certificate of incorporation, shall be elected by the
incorporator or incorporators and shall hold office until
the first annual meeting of stockholders and until their
successors are elected and qualified or until their earlier
resignation or removal. Any director may resign at any time
upon written notice to the corporation. Thereafter, directors
who are elected at an annual meeting of stockholders, and
directors who are elected. Except as
the General Corporation Law may otherwise require, in the
interim to fill vacancies and newly
created
directorships,shall hold office until the next annual
meeting of stockholders and until their successors are elected
and qualified or until their earlier resignation or removal.
In the interim between annual meetings of stockholders or of
special meetings of stockholders called for the election of
directors and/or for the removal of one or more directors and
for the filling of any vacancy in that connection, newly
created directorships and any vacancies in the Board of
Directors, including unfilled vacancies resulting from the
removal of directors for cause or without cause, may
be filled by the vote of a
majority of the remaining directors then in office, although
less than a quorum, or by the sole remaining director.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board
shall fix, except that the first meeting of a newly elected Board
shall be held as soon after its election as the directors may
conveniently assemble.
- PLACE. Meetings shall be held at such place
within or without the State of Delaware as shall be fixed by the
Board.
- CALL. No call shall be required for regular
meetings for which the time and place have been fixed. Special
meetings may be called by or at the direction of the Chairman of
the Board, if any, the Vice-Chairman of the Board, if any, of the
President, or of a majority of the
directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall
be required for regular meetings for which the time and place
have been fixed. Written, oral, or any other mode of notice of
the time and place shall be given for special meetings in
sufficient time for the convenient assembly of the directors
thereat. Notice need not be given to any director or to any
member of a committee of directors who submits a written waiver
of notice signed by him before or after the time stated therein.
Attendance of any such person at a meeting shall constitute a
waiver of notice of such meeting, except when he attends a
meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of, any regular or special
meeting of the directors need be specified in any written waiver
of notice.
- QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents
such majority, whereupon a majority of the directors in office
shall constitute a quorum,
provided, that such majority shall constitute at least onethird
of the whole Board. A majority of the directors present,
whether or not a quorum is present, may adjourn
a meeting to another time and place. Except as herein
otherwise provided, and except as otherwise provided by the
General Corporation Law, the vote of the majority of the
directors present at a meeting at which a quorum is present shall
be the act of the Board. The quorum and voting provisions herein
stated shall not be construed as conflicting with any provisions
of the General Corporation Law and these Bylaws which govern a
meeting of directors held to fill vacancies and newly created
directorships in the Board or action of disinterested directors.
Any member or members of the Board of Director or of any
committee designated by the Board, may participate in a meeting
of the Board, or any such committee, as the case may be, by means
of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear
each other.
- CHAIRMAN OF THE MEETING. The Chairman of the Board,
if any and if present and acting, shall preside at all meetings.
Otherwise, the Vice-Chairman of the Board, if any and if present
and acting, or the President, if present and acting, or any other
director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Except as may
otherwise be
provided by the General Corporation Law, any director or the
entire Board of Directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote
at an election of directors.
6. COMMITTEES. The Board of Directors may, by
resolution
passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or
more of the directors of the corporation. The Board may
designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or
disqualification of any member of any such committee or
committees, the member of members thereof present at any meeting
and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any
such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board shall have and
may exercise the powers and authority of the Board of Directors
in the management of the business and affairs of the corporation
with the exception of any authority the delegation of which is
prohibited by Section 141 of the General Corporation Law, and
may authorize the seal of the corporation to be affixed to all
papers which may require it.
7. WRITTEN ACTION. Any action required or permitted
to be
taken at any meeting of the Board of Directors or any committee
thereof may be taken without a meeting if all members of
the Board or committee, as
the case may be, consent thereto in
writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer, and, if deemed necessary,
expedient, or desirable by the Board of Directors, a Chairman of
the Board, a Vice-Chairman of
the Board, an Executive VicePresident, one or more
other VicePresidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and
such other officers with such titles as the resolution of
the Board of Directors choosing them
shall designate. Except as may
otherwise be provided in the resolution of the Board of
Directors choosing him, no officer other than the Chairman or
Vice-Chairman of the Board, if any, need be a director. Any
number of offices may be held by the same person, as the
directors may determine.
Unless otherwise provided in the resolution choosing him,
each officer shall be chosen for a term which shall continue
until the meeting of the Board of
Directors following the next
annual meeting of stockholders and until his successor shall have
been chosen and qualified.
All officers of the corporation shall have such
authority and perform such duties in the management and
operation of the corporation as shall be prescribed in
the resolutions of the Board
of Directors designating and choosing such officers and
prescribing their authority and duties, and shall have
such additional authority and duties as are incident to their
office except to the extent that such resolutions may be
inconsistent therewith. The Secretary of an Assistant
Secretary of the corporation shall record all of the
proceedings of all meetings and actions in writing of
stockholders, directors, and committees of directors, and shall
exercise such additional authority and perform such additional
duties as the Board shall assign to him. Any officer may be
removed, with or without cause, by the
Board of Directors. Any vacancy in any office may be filled
by the Board of Directors.
ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the
Board of Directors shall prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of
incorporation and the provisions of the General Corporation Law,
the power to amend, alter, or repeal these Bylaws and to adopt
new Bylaws may be exercised by the Board of Directors or by
the stockholders.
I HEREBY CERTIFY that the foregoing is a full, true and
correct copy of the Bylaws of MRCDROM.COM, INC.., a Delaware
corporation, as in effect on the date hereof.
WITNESS my hand and the seal of the corporation.
Dated:
_____________________________________ Secretary of
mrcdrom.com,inc.
(SEAL)
City of Dover, County of Kent March ___, 1997
EXHIBIT 5.0
August 25, 1997
mrcdrom.com, inc.
2415 Midway, Suite 115
Carrollton, Texas 75006
Dear Sir/Madam:
At your request, I have examined the Registration Statement S-1
that you have filed with the Securities and Exchange Commission
in connection with the registration under the Securities Act of
1933, as amended, of up to 3,000,000 shares of the Common Stock,
$0.01 par value, of mrcdrom.com, inc. (the "Shares"). I am
familiar with the proceedings taken and to be taken by you in
connection with the authorization, issuance and sale of the
Shares.
Based upon the foregoing, it is my opinion that the Shares, upon
the issuance or transfer and sale thereof in the manner referred
to in said Registration Statement, will constitute legally and
validly issued and outstanding shares of Common Stock of
mrcdrom.com, inc., fully paid and nonassessable.
I consent to the use of this opinion as an exhibit to said
Registration Statement and to the use of my name in said
Registration Statement and to references to my name in the
prospectus incorporated therein.
Sincerely,
Jeanette P. Fitzgerald, Esq.
Attorney-At-Law
EXHIBIT 10.0
MRCDROM.COM, inc.
1997 Stock Option Incentive Plan
1. PURPOSES. The principal purposes of
the 1997 Stock Option
Incentive Plan (the "Plan") are to provide long-term incentives
in the form of stock options to those persons with significant
responsibility for the success and growth of mrcdrom.com, inc.
and its subsidiaries, affiliates, divisions and other
businesses in which it has a substantial financial interest,
to assist the Company in attracting and retaining key employees
on a competitive basis, and to associate the interests of such
employees with those of mrcdrom.com, inc. `s shareholders.
2. DEFINITIONS. Unless the context clearly
indicates otherwise, the
following terms, when used in this Plan, shall have the meanings
set forth below:
(a) "Common Stock" or "Stock" means mrcdrom.com
Common Stock, par value $.001 per share.
(b) "Committee" means the Compensation Committee of
the Board of Directors of mrcdrom.com, as appointed from
time to time by the Board, consisting of two or more
outside, disinterested members of the Board.
(c) "Company" means mrcdrom.com, its
divisions, direct and
indirect subsidiaries, affiliates and other businesses with
which it has a substantial financial interest.
(d) "Fair Market Value" means an amount equal to the
mean of the high and low sales prices for Common Stock
as reported on the composite tape for securities listed
on the NASDAQ Exchange, on the date in question
or if not quoted on NASDAQ or other exchange
as determined by the Committee(or, if no sales of Stock were
made on said Exchange on such date, on the next preceding
day on which sales were made on such Exchange), carried out
to four decimal places.
(e) "Grant Date" means the date an Option
is granted under the Plan.
The date of grant of an Option shall be the date as of which
the Committee determines that such Option shall become
effective.
(f) "Option" or "Stock Option" means a right granted
under the Plan to purchase a share of mrcdrom.com Common
Stock at a fixed price for a specified period of time.
(g) "Option Exercise Price" means the price at which
a share of Common Stock covered by an Option granted
hereunder may be purchased.
(h) "Optionee" means an eligible employee of the
Company who has
received a Stock Option granted under the Plan. (i)
"mrcdrom.com" means mrcdrom.com,
inc., a Delaware corporation.
(j) "Retirement" means termination
from employment by the Company for reasons other than
death after the employee has fulfilled the requirements for
either a normal, early or disability retirement pension, as
defined under the Company's retirement program applicable to
such employee at the date of termination of employment.
(k) "Totally Disabled" shall have the meaning set
forth in the Company's long-term disability program
applicable to U.S.
salaried employees.
3. ADMINISTRATION OF THE PLAN. The Plan
shall be administered by
the Committee, which shall have all the powers vested in it by
the terms of the Plan, including, but not limited to, authority
to determine the persons to be granted Options under the Plan,
to determine the size and applicable terms and conditions of
grants to be
made to such persons, to determine the time when
Options will be granted and any conditions which must be
satisfied by employees before an award is made, to amend the
exercise price of previously granted options under the plan, to
determine when Options may be exercised and whether they may
be deferred, to determine whether an award should be reduced
or eliminated, and to authorize grants to eligible persons.
The Committee shall have full power and
authority to administer and
interpret the Plan and to adopt such rules, regulations,
agreements, guidelines and
instruments for the administration of the Plan as the
Committee deems necessary or advisable. The Committee's
interpretations of the Plan, and all actions taken and
determinations made by the Committee concerning any matter
arising under or with respect to the Plan or any Options
granted hereunder shall be final, binding and conclusive on all
parties concerned, including, without limitation, Optionees, the
Company, its employees, mrcdrom.com and its shareholders.
4. ELIGIBILITY. All Company employees on a
Grant Date are eligible
to be granted Options under the Plan. Notwithstanding the
foregoing, no employee may be granted Options which, if
exercised in the aggregate, would result in that employee
receiving more than 10% of the maximum number of shares
available for issuance under the Plan unless their exercise price
is equivalent to 110% of the Fair Market Value of the Common
Stock on the date of Grant or as later amended by the Committee.
5. AWARDS. Stock Options will be granted in amounts
determined from time to time by the Committee. All Options
granted under the Plan shall be evidenced by agreements
containing such
terms and conditions (not inconsistent with the
Plan) as the Committee may determine, subject to the following:
(a) Option Exercise Price. The Option Exercise Price
shall be equal to the Fair Market Value of a share of
Common Stock on the Grant Date unless the Optionee shall be
granted more than 10% of the maximum number of shares
available for issuance under the Plan in which case the
exercise price shall be equivalent to 110% of the Fair
Market Value of the Common Stock on the date of Grant or as
later amended by the Committee..
(b) Term. Unless terminated earlier in accordance
with their
terms, Options will expire on the 10th year
after the date of their grant.
(c) Exercisability. Options shall vest and become
exercisable
on terms as set out in the option grant. Once
exercisable, Options may be exercised until the
expiration of their term. Fractional Options may not
be exercised and no fractional shares shall be
purchasable or deliverable under the Plan.
(d) Termination of Employment, Death, Total
Disability or
Retirement. All options shall automatically
expire upon, and no Option may be
exercised after, the termination of the Optionee's
employment with the Company,
provided, however, that if
such termination occurs by reason of the Optionee's
death, Total Disability or Retirement, then
the Optionee's designated beneficiary (or, if none, his or
her legal representative), in the event of death, or the
Optionee, in the event of Retirement or Total Disability,
shall be vested with and have the right to exercise that
portion of the Options which is in proportion
to the Optionee's active service during the vesting
period. Such Options may be exercised during the
remaining term of the Options.
(e) Buy-out of Option Gains. The
Committee shall have the
right, at any time, in its sole discretion and without the
consent of the holder thereof, to cancel a Stock Option and
pay to the holder the excess of the Fair Market Valued
of the shares
covered by such Option over the Option Exercise Price for
such Option as of the date the Committee provides written
notice of its intention to exercise this right. Payments
of buy-out amounts may be made in cash, in shares of Common
Stock, or partly in cash and partly in Common Stock, as
the Committee deems advisable. Payments of any such buy-out
amounts shall be made net of any applicable foreign, federal
(including FICA), state and local withholding taxes.
(f) Misconduct. In the event that an Optionee has
(i) used for profit or disclosed to unauthorized persons,
confidential information or trade secrets of the Company,
(ii) breached any contract with or violated any fiduciary
obligation to the Company, (iii) engaged in unlawful
trading in the securities of mrcdrom.com or of another
company based on information gained as a result of that
Optionee's
employment with the Company, or (iv) committed a felony
or other serious crime, then that Optionee may, at the
option of the Company, forfeit all rights to any
unexercised Options granted under the Plan and in such
event all of that Optionee's outstanding Options shall
automatically terminate and lapse.
(g) Assignment or Transfer. Unless the
Committee shall specifically determine otherwise, during
an Optionee's lifetime, his or her Options shall not be
transferable and shall only be exercisable by the Optionee
and any purported transfer shall be null and void. No
Option, nor any rights or interests therein, shall be
assignable or transferable except by will or the laws of
descent and distribution.
6. FOREIGN EMPLOYEES. Without amending the
Plan, the Committee may grant Options to eligible employees who
are foreign nationals on such terms and conditions different from
those specified in this Plan as may in the judgment of
the Committee be
necessary or desirable to foster and promote achievement
of the purposes of the Plan, and, in
furtherance, of such purposes the Committee may make such
modifications, amendments, procedures, subplans and the like
as may be necessary or advisable to comply with provisions of
laws in other countries in which the Company operates or has
employees.
7. EXERCISING OPTIONS. To exercise an
Option, the holder thereof
shall give notice of his or her exercise to
mrcdrom.com or its agent, specifying the number
of shares of Common Stock to be purchased and identifying
the specific Options that are being
exercised. From time to time the Committee may establish
procedures relating to effecting such exercises. An Option is
exercisable during an Optionee's lifetime only by the Optionee,
provided, however, that in the event the Optionee is
incapacitated and unable to exercise Options, such Options may be
exercised by such Optionee's legal guardian, legal
representative, fiduciary or other representative whom the
Committee deems appropriate based on applicable facts and
circumstances.
8. PAYMENT OF OPTION EXERCISE PRICE. The
Option Exercise Price for the Options being exercised must be
paid in full at time of issuance of the Common Stock. Payment may
be by means of cash, or at the sole discretion of the Company,
marketable securities or a note. In addition, in order to
enable the Company to meet any applicable foreign, federal
(including FICA), state and local withholding tax requirements,
an Optionee shall also be required to pay the amount of tax
to be
withheld at the time of exercise.
No share of Stock will be delivered to any Optionee until all
such amounts have been paid. The obligation of mrcdrom.com to
deliver cash or Common Stock shall be subject to currency or
other restrictions imposed by any government.
9. SHARES OF STOCK SUBJECT TO THE PLAN.
The shares that may be
delivered or purchased under the Plan shall not exceed an
aggregate of 500,000 shares of Common Stock, subject to any
adjustments which may be made pursuant to Section 10 hereof.
Shares of Stock used for purposes of the Plan may be either
shares of authorized but unissued Common Stock or treasury
shares or both. Stock covered by Options which have terminated
or expired prior to exercise or have been surrendered or
canceled shall be available for further option hereunder.
10. DILUTION AND OTHER ADJUSTMENTS. In the event of any
change in the outstanding shares of Common Stock by reason of
any stock split, stock dividend, recapitalization, merger,
consolidation, combination or exchange of shares or other
similar corporate change, such equitable adjustments may be made
in the Plan and the Options granted hereunder as the Committee
determines are necessary or appropriate, including, if
necessary, an adjustment in the number of shares and Option
Exercise Prices per share applicable to Options then
outstanding and in the number of shares which are reserved
for issuance under the Plan. Any such adjustment shall be
conclusive and binding for all purposes of the Plan.
11. REGISTRATION, LISTING AND QUALIFICATION
OF SHARES. Each Option
shall be subject to the requirement that if at any time the
registration, listing or qualification of the shares covered
thereby upon any securities exchange or under any foreign,
federal, state or local law, or the consent or approval of
any governmental regulatory body, is determined to be
necessary or desirable as a condition of, or in connection
with, the granting of such Option or the purchase of shares
thereunder, no such Option may be delivered or exercised, as
the case may be, unless and until such registration, listing,
qualification, consent or approval shall have been effected or
obtained free of any condition not acceptable to the Committee.
Any person exercising an Option shall make such representations
and agreements and furnish such information as the Committee may
request to assure compliance with
the foregoing or any other applicable legal requirements.
12. NO RIGHTS TO OPTIONS OR EMPLOYMENT. No employee or
other person
shall have any claim or right to be granted an Option under
the Plan. Having received an Option under the Plan shall not
give an employee any right to receive any other grant under the
Plan. An Optionee shall have no rights to or interest in any
Option except as set forth herein or in the terms and
conditions of the Options. Neither the Plan nor any action take
hereunder shall be construed as giving any employee any
right to be retained in the employ of the Company.
13. RIGHTS AS SHAREHOLDER. An Optionee under the Plan
shall have no
rights as a holder of Common Stock with respect to Options
granted hereunder, unless and until certificates for shares of
Common Stock are issued to such Optionee.
14. COSTS AND EXPENSES. Except as provided
in Sections 5 and 8
hereof with respect to taxes, the costs and expenses of
administering the Plan shall be borne by mrcdrom.com and shall
not be charged to any grant nor to any employee receiving a
grant.
15. PLAN UNFUNDED. The Plan shall be unfunded. Except for
reserving a sufficient number of authorized shares to the extent
required by law to meet the requirements of the Plan,
mrcdrom.com shall not be required to establish any special or
separate fund or to make any other segregation of assets to
assure the delivery of mrcdrom.com Common Stock upon exercise of
any Option granted under the Plan.
16. AMENDMENTS. The Committee may at any time terminate or
from time to time amend the Plan in whole or in part, but no
such action shall adversely affect any rights or obligations
with respect to any awards theretofore made under the Plan.
With the consent of affected Optionees, the Committee may amend
outstanding agreements evidencing awards under the Plan in a
manner not inconsistent with the terms of the Plan.
17. OTHER ACTIONS. This Plan shall not
restrict the authority of the Committee or of mrcdrom.com, for
proper corporate purposes, to
grant or assume stock options, other than under the Plan, to or
with respect to any employee or other
person.
18. GOVERNING LAW. This Plan shall be
governed by and construed in
accordance with the laws of the State of Texas.
19. EFFECTIVENESS OF THE PLAN. This Plan
shall become effective on
March 28, 1997 subject to approval by shareholders at the
next annual meeting.
EXHIBIT 10.1
MRCDROM.COM, inc.
1997 Directors' Stock Option Plan
1. PURPOSES. The principal purposes of
the 1997 Stock Option
Incentive Plan (the "Plan") are to provide long-term incentives
in the form of stock options to those persons with significant
responsibility for the success and growth of mrcdrom.com, inc.
and its subsidiaries, affiliates, divisions and other
businesses in which it has a substantial financial interest,
to assist the Company in attracting and retaining key employees
on a competitive basis, and to associate the interests of such
employees with those of mrcdrom.com, inc. `s shareholders.
2. DEFINITIONS. Unless the context clearly
indicates otherwise, the
following terms, when used in this Plan, shall have the meanings
set forth below:
(a) "Common Stock" or "Stock" means mrcdrom.com
Common Stock, par value $.001 per share.
(b) "Committee" means the Compensation Committee of
the Board of Directors of mrcdrom.com, as appointed from
time to time by the Board, consisting of two or more members
of the Board who are also employees of the Company.
(c) "Company" means mrcdrom.com, its divisions,
direct and indirect subsidiaries, affiliates and other
businesses with which it has a substantial financial
interest.
(d) "Fair Market Value" means an amount equal to the
mean of the high and low sales prices for Common Stock
as reported on the composite tape for securities listed
on the NASDAQ Exchange, on the date in question
or if not quoted on NASDAQ or other exchange
as determined by the Committee(or, if no sales of Stock were
made on said Exchange on such date, on the next preceding
day on which sales were made on such Exchange), carried out
to four decimal places.
(e) "Grant Date" means the date an Option
is granted under the Plan.
The date of grant of an Option shall be the date as of which
the Committee determines that such Option shall become
effective.
(f) "Option" or "Stock Option" means a right granted
under the Plan to purchase a share of mrcdrom.com Common
Stock at a fixed
price for a specified period of time.
(g) "Option Exercise Price" means the price at which
a share of Common Stock covered by an Option granted
hereunder may be purchased.
(h) "Optionee" means an eligible employee of the
Company who has
received a Stock Option granted under the Plan. (i)
"mrcdrom.com" means mrcdrom.com,
inc., a Delaware corporation.
(j) "Retirement" means termination
from employment by the Company for reasons other than
death after the employee has fulfilled the requirements for
either a normal, early or disability retirement pension, as
defined under the Company's retirement program applicable to
such employee at the date of termination of employment.
(k) "Totally Disabled" shall have the meaning set
forth in the Company's long-term disability program
applicable to U.S.
salaried employees.
3. ADMINISTRATION OF THE PLAN. The Plan
shall be administered by
the Committee, which shall have all the powers vested in it by
the terms of the Plan, including, but not limited to, authority
to determine the persons to be granted Options under the Plan,
to determine the size and applicable terms and conditions of
grants to be
made to such persons, to determine the time when
Options will be granted and any conditions which must be
satisfied by employees before an award is made, to amend the
exercise price of previously granted options under the plan, to
determine when Options may be exercised and whether they may
be deferred, to determine whether an award should be reduced
or eliminated, and to authorize grants to eligible persons.
The Committee shall have full power and authority to
administer and interpret the Plan
and to adopt such rules, regulations, agreements, guidelines
and instruments for the administration
of the Plan as the Committee deems necessary or advisable.
The Committee's interpretations of the
Plan, and all actions taken and determinations made by the
Committee concerning any matter arising under or with respect
to the Plan or any Options granted hereunder shall be final,
binding and conclusive on all parties concerned,
including,
without limitation, Optionees, the Company, its employees,
mrcdrom.com and its shareholders.
4. ELIGIBILITY. All Company non-employee
directors for the initial
grant and who have served at least six-months for anny additional
grants on a Grant Date are eligible to be granted Options
under the Plan. Notwithstanding the foregoing, no employee may
be granted Options which, if exercised in the aggregate, would
result in that employee receiving more than 10% of the maximum
number of shares available for issuance under the Plan unless
their exercise price is equivalent to 110% of the Fair Market
Value of the Common Stock on the date of Grant or as later
amended by the Committee.
5. AWARDS. Stock Options will be granted
annually in March of each
year in amounts of 1,000 after the initial 5,000 grant or as
determined from time to time by the Committee. All Options
granted under the Plan shall be evidenced by agreements
containing such terms and conditions (not inconsistent with the
Plan) as the Committee may determine, subject to the following:
(a) Option Exercise Price. The Option Exercise Price
shall be equal to the Fair Market Value of a share of
Common Stock on the Grant Date unless the Optionee shall be
granted more than 10% of the maximum number of shares
available for issuance under the Plan in which case the
exercise price shall be equivalent to 110% of the Fair
Market Value of the Common Stock on the date of Grant or as
later amended by the Committee..
(b) Term. Unless terminated earlier in
accordance with their
terms, Options will expire on the 10th year
after the date of their grant.
(c) Exercisability. Options shall vest
and become exercisable
on terms as set out in the option grant. Once
exercisable, Options may be exercised until the
expiration of their term. Fractional Options may not
be exercised and no fractional shares shall be
purchasable or deliverable under the Plan.
(d) Termination of Employment, Death,
Total Disability or
Retirement. All options shall automatically expire upon,
and no Option may be
exercised after, the termination of the Optionee's
employment with the Company,
provided, however, that if
such termination occurs by reason of the Optionee's
death, Total Disability or Retirement, then
the Optionee's designated beneficiary (or, if none, his or
her legal representative), in the event of death, or the
Optionee, in the event of Retirement or Total Disability,
shall be vested with and have the right to exercise that
portion of the Options which is in proportion to the
Optionee's active service during the vesting period.
Such Options may be exercised during the remaining term of
the Options.
(e) Buy-out of Option Gains. The
Committee shall have the
right, at any time, in its sole discretion and without the
consent of the holder thereof, to cancel a Stock Option and
pay to the holder the excess of the Fair Market Valued of
the shares covered by such Option over the Option Exercise
Price for such Option as of the date the Committee
provides written notice of its intention to exercise this
right. Payments of buy-out amounts may be made in cash, in
shares of Common Stock, or partly in cash and partly in
Common Stock, as the Committee deems advisable. Payments
of any such buy-out amounts shall be made net of any
applicable foreign, federal (including FICA), state and
local withholding taxes.
(f) Misconduct. In the event that an Optionee has
(i) used for profit or disclosed to unauthorized persons,
confidential information
or trade secrets of the Company, (ii) breached any contract
with or violated any fiduciary obligation to the Company,
(iii) engaged in unlawful trading in the securities of
mrcdrom.com or of another company based on information
gained as a result of that Optionee's employment with the
Company, or (iv) committed a felony or other serious
crime, then that Optionee may, at the option of the
Company, forfeit all rights to any unexercised Options
granted under the Plan and in such event all of that
Optionee's outstanding Options shall automatically
terminate and lapse.
(g) Assignment or Transfer. Unless the
Committee shall specifically determine otherwise, during
an Optionee's lifetime, his or her Options shall not be
transferable and shall only be exercisable by the Optionee
and any purported transfer shall be null and void. No
Option, nor any rights or interests therein, shall be
assignable or transferable except by will or the laws of
descent and distribution.
6. FOREIGN EMPLOYEES. Without amending the
Plan, the Committee may grant Options to eligible employees who
are foreign nationals on such terms and conditions different from
those specified in this Plan as may in the judgment of the
Committee be necessary or desirable to foster and promote
achievement of the purposes of the Plan, and, in furtherance,
of such purposes the Committee may make such modifications,
amendments, procedures, subplans and the like as may be
necessary or advisable to comply with provisions of laws in
other countries in which the Company operates or has employees.
7. EXERCISING OPTIONS. To exercise an
Option, the holder thereof
shall give notice of his or her exercise to mrcdrom.com or
its agent, specifying the number of shares of Common Stock
to be purchased and identifying the specific Options that are
being exercised. From time to time the Committee may
establish procedures relating to effecting such exercises. An
Option is exercisable during an Optionee's lifetime only by the
Optionee,
provided, however, that in the event the Optionee is
incapacitated and unable to exercise Options, such Options may be
exercised by such Optionee's legal guardian, legal
representative, fiduciary or other representative whom the
Committee deems appropriate based on applicable facts and
circumstances.
8. PAYMENT OF OPTION EXERCISE PRICE. The
Option Exercise Price for the Options being exercised must be
paid in full at time of issuance of the Common Stock. Payment may
be by means of cash, or at the sole discretion of the Company,
marketable securities or a note. In addition, in order to
enable the Company to meet any applicable
foreign, federal (including FICA), state and local withholding
tax requirements, an Optionee shall also be required to pay
the amount of tax to be
withheld at the time of exercise.
No share of Stock will be delivered to any Optionee until all
such amounts have been paid. The obligation of mrcdrom.com to
deliver cash or Common Stock shall be subject to currency or
other restrictions imposed by any government.
9. SHARES OF STOCK SUBJECT TO THE PLAN.
The shares that may be
delivered or purchased under the Plan shall not exceed an
aggregate of 500,000 shares of Common Stock, subject to any
adjustments which may be made pursuant to Section 10 hereof.
Shares of Stock used for purposes of the Plan may be either
shares of authorized but unissued Common Stock or treasury
shares or both. Stock covered by Options which have terminated
or expired prior to exercise or have been surrendered or
canceled shall be available for further option hereunder.
10. DILUTION AND OTHER ADJUSTMENTS. In the event of any
change in the outstanding shares of Common Stock by reason of
any stock split, stock dividend, recapitalization, merger,
consolidation, combination or exchange of shares or other
similar corporate change, such equitable adjustments may be made
in the Plan and the Options granted hereunder as the Committee
determines are necessary or appropriate, including, if
necessary, an adjustment in the number of shares and Option
Exercise Prices per share
applicable to Options then outstanding and in the number of
shares which are reserved for issuance under the Plan. Any
such adjustment shall be conclusive and binding for all
purposes of the Plan.
11. REGISTRATION, LISTING AND QUALIFICATION
OF SHARES. Each Option
shall be subject to the requirement that if at any time the
registration, listing or qualification of the shares covered
thereby upon any securities exchange or under any foreign,
federal, state or local law, or the consent or approval of
any governmental regulatory body, is determined to be
necessary or desirable as a condition of, or in connection
with, the granting of such Option or the purchase of shares
thereunder, no such Option may be delivered or exercised, as
the case may be, unless and until such registration, listing,
qualification, consent or approval shall have been effected or
obtained free of any condition not acceptable to the Committee.
Any person exercising an Option shall make such representations
and agreements and furnish such information as the Committee may
request to assure compliance with
the foregoing or any other applicable legal requirements.
12. NO RIGHTS TO OPTIONS OR EMPLOYMENT. No employee or
other person
shall have any claim or right to be granted an Option under
the Plan. Having received an Option under the Plan shall not
give an employee any right to receive any other grant under the
Plan. An
Optionee shall have no rights to or interest in any Option
except as set forth herein or in the terms and conditions of
the Options. Neither the Plan nor any action take hereunder
shall be construed as giving any employee any right to be
retained in the employ of the Company.
13. RIGHTS AS SHAREHOLDER. An Optionee under the Plan
shall have no
rights as a holder of Common Stock with respect to Options
granted hereunder, unless and until certificates for shares of
Common Stock are issued to such Optionee.
14. COSTS AND EXPENSES. Except as provided in Sections
5 and 8
hereof with respect to taxes, the costs and expenses of
administering the Plan shall be borne by mrcdrom.com and shall
not be charged to any grant nor to any employee receiving a
grant.
15. PLAN UNFUNDED. The Plan shall be unfunded.
Except for reserving a sufficient number of authorized shares to
the extent required by law to meet the requirements of the
Plan, mrcdrom.com shall not be required to establish any
special or separate fund or to make any other segregation of
assets to assure the delivery of mrcdrom.com Common Stock upon
exercise of any Option granted under the Plan.
16. AMENDMENTS. The Committee may at any time
terminate or from time to time amend the Plan in whole or in
part, but no such action shall adversely affect any rights
or obligations with respect to any awards theretofore made
under the Plan. With the consent of affected Optionees, the
Committee may amend outstanding agreements evidencing awards
under the Plan in a manner not inconsistent with the terms of the
Plan.
17. OTHER ACTIONS. This Plan shall not
restrict the authority of the Committee or of mrcdrom.com, for
proper corporate purposes, to
grant or assume stock options, other than under the Plan, to or
with respect to any employee or other person.
18. GOVERNING LAW. This Plan shall be
governed by and construed in
accordance with the laws of the State of Texas.
19. EFFECTIVENESS OF THE PLAN. This Plan
shall become effective on
March 28, 1997 subject to approval by shareholders at the
next annual meeting.
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This is an EMPLOYMENT AGREEMENT (the "Agreement") dated as of
June 1, 1997 but effective as of April 1, 1997 by and between
mrcdrom.com, inc., a
Delaware corporation (the "Corporation"), and Daniel Wettreich
(the "Executive").
Recitals
The Executive currently serves as Chairman and CEO of the
company. The Company desires the Executive to continue to serve
as the Company's Chairman and CEO, and the executive desires to
continue to serve the Company as its Chairman and CEO, on the
terms and conditions set forth in this Agreement.
NOW THEREFORE, the parties agree as follows:
1. Employment
The Company hereby employs the Executive as Chairman
and CEO of the Company, and the Executive hereby
accepts
such employment, upon the terms and
conditions set forth herein.
2. Duties and Powers
2.1 Duties The Executive shall serve as Chairman and CEO
of the
Company and perform the duties of Chairman as defined
in the Bylaws of the Company in effect on the date of
this Agreement. The Chairman shall receive the
compensation provided herein notwithstanding any
future amendment to the Bylaws of the Company which
diminishes or alters the duties of the Chairman of
the Company. The Executive shall not be required to
devote his entire working time to the business of the
Company, and may devote time to other business
interests.
2.2 Chief Officer The Executive shall report only to
the
Board of Directors of the Company (or, in the event
the Company becomes a direct or indirect subsidiary
of any other corporation, to the Board of Directors
of the ultimate parent of the Company), and his
powers and authority shall be superior to those of
any other officer or employee of the Company or of
any subsidiary of the company. Subject to the
authority of the Board of Directors of the Company,
the Executive shall have final responsibility for the
conduct of the business and affairs of the Company by
and of its subsidiaries, and the presidents and chief
executive officers of all subsidiaries of the company
shall report to the Executive.
2.3 Service as Director If elected, the Executive shall
serve
as a director of the Company without additional
compensation, and shall have the right at any time to
serve as a director of any subsidiary of the Company.
3. Term of AgreementThe initial term of employment under
this
Agreement shall be 5 years commencing effective as of
April 1,
1997 (the "Effective Date") unless sooner terminated
pursuant to Section 6 below.
4. CompensationFor all services rendered by the Executive
under this Agreement, the Company shall pay the Executive
an annual salary of $50,000 (the "Base Salary") payable in
equal monthly installments. Executive shall also receive a
cash bonus equal to 5% of the Company's Annual Profits
before Taxation
payable within 30 days after the Company's financial year
end. The Board of Directors of the Company shall from time to
time review the compensation to be paid to the executive under
this Agreement and shall increase (but not decrease) the
compensation in such amounts, if any, as the Board of Directors
determines.
5. Benefits, Expenses, Reimbursement: etc.
5.1 Benefit Plans The Company shall provide the Executive
with such medical and disability insurance, hospital
insurance and group life insurance and other benefits made
available to executive level employees of the Company,
subject to the terms and conditions of such benefit plans
and arrangements. The Company shall pay for the existing
Prudential Health Policy covering the Executive.
5.2 Expenses The Company shall pay all expenses incurred by
the Executive in furtherance or in connection with the
business of the Company and its subsidiaries and
affiliates including, without limitation, all (i) travel
and living expenses while away from home on business or at
the request and in the service of the Company or its
subsidiary or affiliate, and (ii) entertainment expenses,
upon submission of appropriate receipts or vouchers and in
accordance with the standard expense reimbursement
policies of the Company as in effect from time to time.
If any such expenses are paid by the Executive, the
Company shall reimburse him promptly for those expenses.
5.3 Vacation The Executive shall be entitled each year to a
vacation of four weeks (twenty working days), during which
time his compensation shall be paid in full and such
holidays and other non-working days as are consistent with
the policies of the Company for executive generally. All
vacations shall be scheduled so as to cause minimal
interference with the operation of the Company. If any
untaken vacation days are outstanding at the end of a
calendar year, then the Company will pay Executive for
such days. If the Executive's employment under this
Agreement is terminated pursuant to Section 6, the
Executive shall be entitled to payment for all untaken
vacation days.
5.4 Death Benefits Subject to the provisions of Section
5.5(B) of this Agreement, in the event of the Executive
death during the term of this Agreement, the Company shall
pay to such beneficiaries as the Executive shall designate
in writing prior to the Executive's death, or if he fails
to designate a beneficiary, to the executive's spouse or,
if none, to the Executive's estate, and annual benefit
equal to $50,000 (the "Death Benefit"). The Death Benefit
shall be payable in equal monthly installments for a
period of 4 years, commencing on the first day of the next
month following the month in which the Executive's death
occurs. Payments made pursuant to this Section 4 of this
Agreement.
5.5 Disability
A. The Executive shall be paid such benefits to which he
is
entitled under the terms of such long-term disability
insurance as the Company has provided under Section
5.1 of this Agreement. If at any time during the term
of this Agreement (i) the Company is not providing
the Executive with long-term disability insurance
coverage, or (ii) the amount of coverage provided
pays benefits less than an annual benefit to age 70
or 80% or more of the
Executive's Base Salary plus cash bonuses which the
Executive is being paid prior to the commencement of
disability benefits, then the Executive Shall be paid
the amount specified in Section 5.5(B) of this
Agreement.
B. Subject to the provisions of Section 5.5(A) of this
Agreement, if during the term of this Agreement (i)
the Executive suffers any illness, disability or
incapacity which renders him unable to perform his
duties hereunder and such illness, disability or
incapacity is deemed by a duly licensed physician
(who may be the Executive's person physician) to be
permanent, or (ii) the Executive is unable to render
services to the Company of the nature required by
this Agreement because of illness, disability or
incapacity for a period of 90 days, whether or not
such days are consecutive, during any year of the
term hereof, then the Executive shall continue to
render advisory and consulting services as he is able
and as may be reasonable required y the Company. The
Company shall pay to the Executive compensation (Base
Salary plus cash bonuses( in effect at the time the
event or condition desired in Section 5.5(B) (i) or
(ii) (the "Condition") above occur. The Disability
Payment shall be paid to the Executive in equal
monthly installments until the Executive attains age
70. Disability Payments shall commence on the first
day of the month following the month in which the
Condition occurs and shall be made even if the
Executive is unable to render any services to the
Company.
C. In the event the Executive's death during the period
in
which Disability Payments are to be paid, the Company
shall pay any remaining Disability Payments due
pursuant to Section 5.5(B) to such beneficiaries as
the Executive designates in writing before his death,
or upon his failure to designate a beneficiary, to
his surviving spouse or, if none, then to the
Executive's estate. Such payment shall be paid in
lieu of any and all payments provided for in Section
4 and 5.4 of this Agreement.
6. Termination The Executive's employment hereunder may be
terminated only under the following circumstances:
6.1 Cause The Company may terminate the Executive's
employment
hereunder for cause upon not less than five days' prior
written notice of such termination. For purposes of this
Agreement, the Company shall have "cause": to terminate
the Executive's employment hereunder upon (A) the
continued failure by the executive to substantially
perform his duties hereunder (other than any such failure
resulting from the Executive's incapacity due to physical
or mental illness or the removal of Executive's office to
a location more than 5 miles from its current location),
which failure has not been cured (i) within three days
after a written demand for substantial performance is
delivered to the Executive by the Company that
specifically identities the manner in which the Company
believes the Executive has not substantially performed his
duties (the "Three Day Period"), or (ii) in the event such
failure cannot be reasonably cured within the Three Day
Period, within 20 days thereafter, provided that the
Executive promptly commences and thereafter diligently
prosecutes the cure thereof, or (B) the Executive's
conviction of any criminal act or fraud with respect to
the Company. Notwithstanding the foregoing, the
Executives employment may not be terminated for cause
unless and until the Company has delivered to the
Executive a copy of a resolution duly adopted by the
affirmative vote or not less than 80 percent of the entire
Board of Directors at a meeting of the Board (of which
the Executive was given at least 20 days prior written
notice and an opportunity, together with his counsel, to
be heard before the Board), finding that in the good faith
opinion
of the Board, the Executive has not substantially
performed his duties (which failure shall be described in
detail) and such failure has not been cured within the
period described in (ii) above. In addition, the Company
shall not have cause to terminate the
Executive's employment hereunder as a result of any event
occurring prior to the date hereof and previously disclosed
to the Company. The burden of establishing cause shall be
upon the Company.
6.2 Termination by the Executive The Executive may terminate
his employment hereunder for "good reason" upon not less
than five days' prior written notice to the Company. For
purposes of this Agreement, "good reason" shall mean the
continued failure by the Company to perform its obligations
under this Agreement (including any material change by the
Company in the duties, responsibilities and powers of the
Executive as set forth herein or the removal of the
Executive's office to a location more than 5 miles from its
current location) which failure has not been cured (i)
within three days after a written demand for performance is
delivered to the Company by the Executive that specifically
identifies the manner in which the Executive believes the
Company has not performed its obligation (the "Three Day
Period"), or (ii) in the event such failure cannot be
reasonable cured within the Three Day Period, within twenty
(20) days thereafter provided that the Company promptly
commences and thereafter diligently prosecutes the cure
thereof. If the Executive terminates his employment under
Clause 6.2 then he shall be paid a cash sum in accordance
with Clause 6.3.C.
6.3 Change in Control
A. The Executive may terminate his employment under
this
Agreement at any time for "good reason" (as defined
below) after the date of a Change in Control (as
defined below) of the Company, Company to include
Change of Control of the parent of the Company.
B. A "Change in Control" of the Company shall be deemed
to have
occurred if:
(1) any "person" (as such term is used in Sections
13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
as in effect on the date hereof) other than the Executive or his
family interests becomes the beneficial owner, directly or
indirectly, of common stock of the Company representing 30% or
more of the Company's then issued and outstanding common stock;
or
(2) individuals who constitute the Company's Board
of Directors
on the Date hereof (the "Incumbent Board") cease
for any reason to constitute at least a majority
thereof, provided that any person becoming a
Director subsequent to the date hereof whose
election, or nomination for election by the
Company's stockholders, was approved by a vote of
at least a majority of the Directors comprising
the Incumbent Board (either by a specific vote or
by approval of the proxy statement of the Company
in which such person is named as a nominee for
Director, without objecting to such nomination)
shall be, for purposes of this clause, considered
as though such person were a member of the
Incumbent Board. For purposes of this Section
6.2(a), "good reason" shall mean a determination
solely be the Employee, in good faith, that as a
result of the change of control of the company he
may be adversely affected (i) in carrying out his
duties and powers in the fashion he previously
enjoyed or (ii) in his future prospects with the
Company.
C. If the Executive terminates his employment after a
Change of
Control of the Company, he shall notify the Company in
writing of
the effective date of the termination (the "Termination
Date") and
he shall be paid (i) the Base salary and any bonuses
payable
to the Executive under this Agreement through the
termination Date, or (ii) an amount equal to the
product of (a) the annual Base Salary and bonus paid
to the Executive during the year preceding the
Termination Date, multiplied by (b) five whichever of
(i) or (ii) is more. The amount payable under this
Section 6.3(C) shall be paid in a lump sum on or
before the fifth day following the Termination Date.
7. Interest and Counsel Fees
7.1 Interest All amounts payable to the Executive under
this
Agreement shall be due and payable at the time specified
herein and any payment which is not made within five days
of the date of written demand shall be made with interest
on the amount due from the due date until paid in full at
an annual rate equal to 2% over the prime or base rate of
interest generally offered or charged by Citibank, N.A. to
its commercial customers for shortterm unsecured loans, as
in effect from time to time during the period from such
due date until the date such payment is made.
7.2 Counsel Fees The Company irrevocably authorizes the
Executive from time to time to retain counsel of his
choice at the expense of the Company to represent the
Executive in connection with the Executive's initiation or
defense of any litigation, arbitration or other legal
action relating to this Agreement or any provision hereof
(whether such action is by or against the Company or any
director, officer, stockholder or other person affiliated
with the Company, or in any jurisdiction).
Notwithstanding any existing or prior attorneyclient
relationship between the Company and such counsel, the
Company irrevocably consents to the executive entering
into any attorney-client relationship with such counsel,
and in that connection the Company and the Executive agree
that a confidential relationship shall exist between the
Executive and such counsel. The reasonable fees and
expenses of counsel selected by the Executive shall be
paid or reimbursed to the Executive by the Company on a
regular, periodic basis upon presentation by the Executive
of a statement or statements prepared by such counsel in
accordance with its customary practices. Notwithstanding
the preceding, if it should be finally determined by
judgment or order of a court of competent jurisdiction
(the time for the appeal of which judgment or order shall
have expired), that the Executive has not prevailed in any
such litigation, arbitration or other legal action, the
Executive shall promptly return to the Company, upon its
demand, any amounts so advanced in connection with such
action together with interest thereof at the rate provided
in Section 7.1 above.
8. No Conflicting Commitments
8.1 Representation and WarrantyThe Executive represents and
warrants that he has no commitments or obligations of any
kind whatsoever inconsistent with this Agreement and is
under no disability of any kind whatsoever which would
impair, infringe upon or limit Executive's ability to
enter this Agreement or to perform the services required
hereunder.
8.2 Indemnification The Executive agrees to indemnify and hold
the Company harmless against any claim or other actions
asserted against the Company based upon circumstances in
which it is alluded that the Executive has breached the
warranty set forth in Section 8.1.
9. Governing Law This Agreement has been executed and
delivered in the State of Texas, and shall in all respects be
interpreted, construed, and governed by and in accordance with
the law of the State of Texas. Except as otherwise herein
provided, all actions or proceedings arising directly,
indirectly or otherwise in connection with, out of,
related to, or from this Agreement shall be litigated
exclusively and only in courts having situs within the
State of Texas, and the parties hereby consent and submit
to the jurisdiction of any state or federal court located
in the State of Texas. Notwithstanding the preceding,
the Executive, at his sole and exclusive option,
exercisable by written notice given to the company at any
time, may elect to submit any dispute arising under this
Agreement to resolution by arbitration held in Dallas
County, Texas in accordance with the rules of the
American Arbitration Association.
10. NoticesAll notices hereunder shall be in writing and
personally delivered or mailed by registered or certified
mail, return receipt requested, to the following address:
If to the Company:
2415 Midway Rd.
Suite 121
Carrollton, Texas 75006
If to the Executive:
Danny Wettreich
17770 Preston Road
Dallas, Texas 75252
The Company or the Executive may hereafter designate another
address to the other in writing for purposes or notices under
this Agreement.
11. WaiversAny waiver by any party of any violation of,
breach
of or default under any provision of this Agreement
by the other party shall not be construed as, or
constitute a continuing waiver of such provision, or
waiver of any other violation of , breach of or default
under any other provision of this Agreement.
12. Assignability This Agreement shall not be
assignable by
the Company without the written consent of Executive,
except that if the Company shall merge or consolidate with
or into, transfer substantially all of its assets to,
another corporation or other form of business
organization, this Agreement shall be binding on the
Executive and be for the benefit of and binding upon the
successor of the Company resulting from such merger
consolidation or transfer without Executive's consent,
unless this Agreement is terminated pursuant to Section
6.3(C). Executive may not assign, pledge, or encumber any
interest in this Agreement or any part thereof without the
express written consent of the Company, this Agreement
being personel to Executive.
13. Severabilty Each provision of this
Agreement
constitutes a separate and distinct undertaking convenant
and/or provision hereof. In the event that any provision
of this Agreement shall finally be determined to be
unlawful, such provision shall be deemed severed from this
Agreement, but every other provision of this Agreement
shall remain in full force and effect, and in substitution
for any such provision held unlawful, there shall be
substituted
a provision of similar import reflecting the original
intent of the parties hereto to the extent permissible
under the law.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date and year first set forth above
written mrcdrom.com, inc.
By:
______________________________
Jeanette Fitzgerald Director
______________________________
Danny Wettreich
EXHIBIT 10.3
ASSIGNMENT
THIS ASSIGNMENT is made and delivered by MAXMEDIA
DISTRIBUTING, INC., a Florida corporation, CAMELOT CORPORATION,
a Colorado corporation, Mr. CD-ROM Stores, Inc., a Delaware
corporation(collectively the "Seller") to mrcdrom.com, inc., a
Delaware corporation located at 2415 Midway, Suite 115,
Carrollton, Texas 75006 (the "Buyer").
For good and valuable consideration, the receipt of which is
hereby acknowledged, Seller does hereby grant, sell, transfer,
assign, and deliver to Buyer its successors and assigns, all
right, title, and interest of every kind and character throughout
the world (including but not limited to all goodwill, copyrights,
moral rights, trade secret rights, patent rights, and
other
proprietary rights) in the following work "Mr CD ROM" (the
"Work") with a U.S. Trademark and Patent Office registration
number of 1870154 registered on December 27, 1994 .
Seller represents and warrants to Buyer that Seller has full
right, power and authority to make this Assignment of the Work to
Buyer in the manner set forth above, and that Seller
is
transferring to Buyer good and marketable title to the Work, free
and clear of all liens, security interests,
claims, interests, options,
encumbrances, or indebtedness of any kind.
Seller agrees to indemnify, defend and hold Buyer harmless
against any and all actions, suits, losses, liabilities, damages,
deficiencies, claims, demands, costs and expenses (including
attorney's fees and costs of investigation) that may arise out of
any breach of the foregoing warranty or any nonfulfillment of
this Assignment by Seller.
IN WITNESS WHEREOF, Seller has executed this Assignment as
of the 1st day of April, 1997.
Maxmedia Distributing, Inc.
By:_____________________________________
Its: CEO
Camelot Corporation
By:_____________________________________
Its: CEO
Mr. CD-ROM Stores, Inc.
By:_____________________________________
Its: CEO
mrcdrom.com, inc.
By:_____________________________________
Its: President
EXHIBIT 10.4
MRCDROM.COM, INC. MANAGEMENT AGREEMENT
Agreement made this 1st day of April, 1997, by and between
MRCDROM.COM, INC., a Delaware corporation, (hereinafter referred
to
as "mrcdrom.com"), and CAMELOT CORPORATION, a Colorado
corporation (hereinafter referred to as "Camelot").
In consideration of the mutual premises herein contained,
the parties hereto agree as follows:
RECITALS
It is the desire of mrcdrom.com to engage the services of
Camelot to act as Agent for and perform management services for
mrcdrom.com in the areas of accounting, overall corporate
planning and strategy as an independent contractor;
It is the desire of mrcdrom.com to rent office warehouse and
office space from Camelot;
It is the desire of Camelot to provide such services and to
consult with the Board of Directors, the officers of mrcdrom.com,
and the administrative staff of mrcdrom.com and provide warehouse
and office space on the terms set out below.
AGREEMENT
Services
Camelot shall act as Agent and shall make itself available to
consult with the Board of Directors, the officers of
mrcdrom.com, and the department heads of the administrative
staff, at reasonable times, concerning all matters pertaining to
accounting and overall corporate planning and strategy
of mrcdrom.com.
Rent
Camelot shall lease to mrcdrom.com the space known as 2415
Midway, Suite 115 constituting approximately 5,000 square feet
for use by mrcdrom.com.
Confidentiality
Camelot acknowledges that it may be made aware of
confidential information regarding mrcdrom.com, and warrants not
to disclose such information to any third parties.
Compensation
Camelot shall receive monthly in arrears from mrcdrom.com a
sum for the performance of the services to be rendered to
mrcdrom.com pursuant to the terms of this agreement which shall
be Five Thousand ($5,000) dollars per month. Camelot shall also
receive reasonable itemized out-of-pocket expenses relating to
the provision of services. Camelot shall also receive the
proportion of taxes, maintenance fee and common area fees as
deemed appropriate. Further the fees related to the rental of
warehouse and office space are subject to annual adjustment as
appropriate.
Non-exclusivity
Camelot may represent, perform services for, and be employed
by such additional clients, persons, or companies as Camelot, in
its sole discretion, sees fit.
Renewal
This Agreement shall be automatically renewed each month.
Either party may terminate the agreement by giving thirty days
prior written notice.
MISCELLANEOUS
Remedies
If any action at law or equity is necessary to enforce or
interpret the terms of this agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which he may be
entitled.
Parties Bound
This agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors, and
assigns where permitted by this agreement.
Legal Construction
In case any one or more of the provisions contained in this
agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision thereof,
and this agreement shall be construed as if such invalid,
illegal,
or unenforceable provision had never been contained herein.
Prior Agreements Superseded
This Agreement constitutes the sole and only agreement of
the parties hereto and supersedes any prior understandings or
written or oral agreements between the parties respecting the
within subject matter.
Governing Law
It is hereby agreed that this Agreement shall be governed and
construed according to the laws of the State of Texas and
venue shall be in Collin County, Texas.
Notice
Any notices shall be by facsimile followed by written
confirmation, U.S. Mail sent certified return receipt requested,
or
federal express or comparable next day delivery service to the
addresses of the parties as listed below their names or as
provided pursuant to this notice provision.
Executed on the day and year first above mentioned.
MRCDROM.COM, INC.
By:__________________________________
Thomas Watts,
President
2415 Midway, Suite 115
Carrollton, TX 75006
CAMELOT CORPORATION
By:__________________________________
Daniel Wettreich,Chairman and CEO
17770 Preston Road Dallas, TX 75252
EXHIBIT 24.0
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in this
Registration Statement of our report, dated July 7, 1997,
relating to the consolidated financial statements of mrcdrom.com,
inc. and subsidiaries, and to the reference to our Firm under
the caption "Experts" in the Prospectus.
Lane Gorman Trubitt, L.L.P.
Dallas, Texas
September 8, 1997
EXHIBIT 24.1
(INCLUDED IN EXHIBIT 5.0)