-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GYvgF0tJNhgOgJhPRXt8Ug2aLrZFd0iTe909/NlP0vfRFGsvAPOF1eGEWX95bY7F D9gcTjc0ZH1jAKfWDHoMjw== 0001012975-99-000015.txt : 19990201 0001012975-99-000015.hdr.sgml : 19990201 ACCESSION NUMBER: 0001012975-99-000015 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990129 EFFECTIVENESS DATE: 19990129 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NETWORK EVENT THEATER INC CENTRAL INDEX KEY: 0001005500 STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841] IRS NUMBER: 133864111 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-71445 FILM NUMBER: 99517026 BUSINESS ADDRESS: STREET 1: 529 FIFTH AVE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2127792740 MAIL ADDRESS: STREET 1: 149 5TH AVE CITY: NEW YORK STATE: NY ZIP: 10010 S-8 1 As filed with the Securities and Exchange Commission on January 29, 1999 Registration No. 333-_______ ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------- Network Event Theater, Inc. (Exact name of registrant as specified in its charter) Delaware 13-3864111 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 529 Fifth Avenue New York, New York 10017 (Address of principal executive offices) (Zip Code) Network Event Theater, Inc. 1997 Stock Option Plan Network Event Theater, Inc. 1996 Stock Option Plan (Full title of the Plans) Harlan D. Peltz Network Event Theater, Inc. 529 Fifth Avenue New York, New York 10017 (212) 622-7300 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------------------------
CALCULATION OF REGISTRATION FEE =============================================================================== Title Of Securities Amount Proposed Proposed Amount Of To Be Registered To Be Maximum Maximum Registration Registered(1) Offering Aggregate Fee (2) Price Per Offering Share(2) Price(2) =============================================================================== Common Stock, 850,000 shares $15.50 $13,175,000 $3,663 par value $.01 per share =============================================================================== (1) The maximum number of shares which may be issued pursuant to the Network Event Theater, Inc. 1997 Stock Option Plan (the "1997 Plan") and the Network Event Theater, Inc. 1996 Stock Option Plan (the "1996 Plan" and, together with the 1997 Plan, the "Plans") covered by this Registration Statement. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), there are also being registered such additional indeterminate number of shares as may be required to cover possible adjustments under the Plans as a result of the adjustment provisions therein. (2) Estimated solely for the purpose of calculating the fee pursuant to Rule 457(h) and 457(c) under the Securities Act, based on the average of the high and low prices of the Registrant's common stock, par value $.01 per share (the "Common Stock"), reported on the Nasdaq SmallCap Market on January 26, 1999.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed with the Securities and Exchange Commission (the "Commission") by Network Event Theater, Inc., a Delaware corporation (the "Company" or the "Registrant"), are incorporated herein by reference: (1) The Company's Annual Report on Form 10-KSB for the fiscal year ended June 30, 1998. (2) ______ The Company's Quarterly Report on Form 10-QSB for the fiscal quarter ended September 30, 1998. (3) ______ The description of the Common Stock contained in the Company's registration statement on Form 8-A, as filed with the Commission on January 17, 1996, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing such documents. Any statement in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not applicable. Item 5. Interest of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Company is incorporated in Delaware. Section 145 of the General Corporation Law of the State of Delaware permits a corporation to indemnify its directors and officers against expenses (including attorneys' fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties, if such directors or officers acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action, i.e., one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably incurred by directors and officers in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant officers or directors are reasonably entitled to indemnity for such expenses despite such adjudication of liability. The Certificate of Incorporation of the Company provides for indemnification of directors and officers to the fullest extent permitted by the General Corporation Law of the State of Delaware. Section 102(b)(7) of the General Corporation Law of the State of Delaware provides that a corporation may eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 (relating to liability for unauthorized acquisitions or redemptions of, or dividends on, capital stock) of the General Corporation Law of the State of Delaware or (iv) for any transaction from which the director derived an improper personal benefit. No such provision shall eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision becomes effective. The Company's Certificate of Incorporation contains such a provision. The Company's Bylaws authorize the Company to indemnify its directors, officers, incorporators, employees and agents with respect to certain costs, expenses and amounts incurred in connection with an action, suit or proceeding by reason of the fact that any such person was serving as a director, officer, incorporator, employee or agent of the Company. In addition, the Company's Bylaws permit the Company to provide additional indemnification rights to its officers and directors and to indemnify them to the fullest extent possible under the General Corporation Law of the State of Delaware. Pursuant to Section 145 of the General Corporation Law of the State of Delaware, the Company maintains a standard form of directors' and officers' liability insurance policy which provides coverage to the directors and officers of the Company for certain liabilities, including certain liabilities which may arise out of this Registration Statement. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Certificate of Incorporation of the Company (incorporated herein by reference to Exhibit 3.1 to the Company's Registration Statement on Form SB-2, Registration No. 33-80935, filed on March 6, 1996 (the "Form SB-2")). 4.2 Certificate of Amendment of Certificate of Incorporation (incorporated herein by reference to Exhibit 3.2 to the Form SB-2). 4.3 Certificate of Amendment of Certificate of Incorporation, as filed May 27, 1998 (incorporated herein by reference to Exhibit 3.3 to the Company's Annual Report on Form 10-KSB for the fiscal year ended June 30, 1998). 4.4 Bylaws of the Company (incorporated herein by reference to Exhibit 3.3 to the Form SB-2). 4.5 Network Event Theater, Inc. 1996 Stock Option Plan (incorporated herein by reference to Exhibit 10.1 to the Form SB-2). 4.6* Network Event Theater, Inc. 1997 Stock Option Plan. 5.1* Opinion of Proskauer Rose LLP re: legality of securities. 23.1* Consent of Ernst & Young LLP. 23.2* Consent of Proskauer Rose LLP (included in Exhibit 5.1). 24.1* Powers of Attorney (included on signature page). - --------------------------- * Filed herewith. Item 9. Undertakings. The undersigned Registrant hereby undertakes that it will: (1) ______ File, during any period in which it offers or sells securities, a post-effective amendment to this registration statement to: (i) Include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) Reflect in the prospectus any facts or events which, individually or together, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) Include any additional or changed material information on the plan of distribution. (2) For determining liability under the Securities Act, treat each post-effective amendment as a new registration statement of the securities offered, and the offering of the securities at that time to be the initial bona fide offering. (3) File a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on January 29, 1999. Network Event Theater, Inc. By:/s/ Harlan D. Peltz Harlan D. Peltz Chairman of the Board and Chief Executive Officer SIGNATURES AND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each director and officer whose signature appears below hereby constitutes and appoints Harlan D. Peltz, Don Leeds, Bruce L. Resnik or any of them, as his true and lawful attorney-in-fact and agent, with full power of substitution, to sign on his behalf individually and in any and all capacities (until revoked in writing), any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same with all exhibits thereto and all other documents in connection therewith with the Securities and Exchange Commission, granting to such attorneys-in-fact and agents, and each of them, full power and authority to do all such other acts and things requisite or necessary to be done, and to execute all such other documents as they, or any of them, may deem necessary or desirable in connection with the foregoing, as fully as the undersigned might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signatures Title Date - ---------- ----- ---- /s/Harlan D. Peltz Chairman of the Board and January 29, 1999 - -------------------- Chief Executive Officer Harlan D. Peltz (principal executive officer) /s/ Don Leeds President and Director January 29, 1999 - -------------------- Don Leeds /s/ Bruce L. Resnik Executive Vice President, January 29, 1999 Bruce L. Resnik Chief Financial Officer and Secretary (principal financial and accounting officer) /s/ Freddie Fields Director January 29, 1999 - -------------------- Freddie Fields /s/ Howard Klein Director January 29, 1999 - -------------------- Howard Klein /s/ Metin Negrin Director January 29, 1999 - -------------------- Metin Negrin /s/ George Lindemann Director January 29, 1999 - -------------------- George Lindemann EXHIBIT INDEX 4.1 Certificate of Incorporation of the Company (incorporated herein by reference to Exhibit 3.1 to the Company's Registration Statement on Form SB-2, Registration No. 33-80935, filed on March 6, 1996 (the "Form SB-2")). 4.2 Certificate of Amendment of Certificate of Incorporation (incorporated herein by reference to Exhibit 3.2 to the Form SB-2). 4.3 Certificate of Amendment of Certificate of Incorporation, as filed May 27, 1998 (incorporated herein by reference to Exhibit 3.3 to the Company's Annual Report on Form 10-KSB for the fiscal year ended June 30, 1998). 4.4 Bylaws of the Company (incorporated herein by reference to Exhibit 3.3 to the Form SB-2). 4.5 Network Event Theater, Inc. 1996 Stock Option Plan (incorporated herein by reference to Exhibit 10.1 to the Form SB-2). 4.6* Network Event Theater, Inc. 1997 Stock Option Plan. 5.1* Opinion of Proskauer Rose LLP. 23.1* Consent of Ernst & Young LLP. 23.2* Consent of Proskauer Rose LLP (included in Exhibit 5.1). 24.1* Powers of Attorney (included on signature page). - --------------------------- * Filed herewith. EX-4.6 2 1997 STOCK OPTION PLAN OF NETWORK EVENT THEATER, INC. 1. Purpose. The purpose of this 1997 Stock Option Plan is to advance the interests of the Company and its stockholders by (i) providing key employees and consultants of the Company, upon whose judgment, initiative and efforts the successful conduct of the Company's business largely depends, with an additional incentive to continue their efforts on behalf of the Company, thereby attracting, retaining and rewarding people of experience and ability, and (ii) making equity-based awards to non-employee directors, thereby attracting, retaining and rewarding non-employee directors and strengthening the mutuality of interests between non-employee directors and the Company's stockholders. 2. Definitions. When used in this Plan, unless the context otherwise requires: (a) "Board of Directors" shall mean the Board of Directors of the Company, as constituted at any time. (b) "Committee" shall mean the Stock Option Committee of the Board of Directors, as described in Section 3. (c) "Company" shall mean Network Event Theater, Inc., a Delaware corporation. (d) "Fair Market Value" on a specified date shall mean the last sales price reported for the Shares on the last trading day immediately preceding the applicable date (i) as reported on the principal national securities exchange on which the Shares are primarily traded, or (ii) if the Shares are not traded on a national securities exchange, as quoted on an automated quotation system sponsored by The Nasdaq Stock Market ("Nasdaq"). If the Shares are not listed on a national securities exchange or quoted on a system sponsored by Nasdaq, the Fair Market Value of the Shares shall be as established by the Committee using any reasonable method of valuation. (e) "Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as amended, or the comparable provisions of future Internal Revenue laws. (f) "Options" shall mean the stock options issued pursuant to this Plan. (g) "Plan" shall mean this 1997 Stock Option Plan of the Company, as such Plan from time to time may be amended. (h) "Share" shall mean a share of common stock of the Company, par value $.01. (i) "Subsidiary" shall mean any "subsidiary corporation," as such term is defined in Section 424(f) of the Internal Revenue Code. 3. Administration of the Plan. The Plan shall be administered by a Committee of at least three members of the Board of Directors, each of whom is a "non-employee director" within the meaning of Rule 16b-3(b)(3) under the Securities Exchange Act of 1934. Each member of the Committee shall hold office until the next regular annual meeting of the Board of Directors following his designation and until his successor is designated as a member of the Committee. Any vacancy in the Committee may be filled by a resolution adopted by a majority of the full Board of Directors. Any member of the Committee may be removed at any time, with or without cause, by resolution adopted by a majority of the full Board of Directors. A member of the Committee may resign from the Committee at any time by giving written notice to the Chairman or Secretary of the Company and, unless otherwise specified therein, such resignation shall take effect upon receipt thereof. The acceptance of such resignation shall not be necessary to make it effective. The Committee shall establish such rules and procedures as it considers necessary or advisable to administer the Plan and shall make such determinations and interpretations and take such action in connection with the Plan and any Options granted pursuant to the Plan as it considers necessary or advisable. 2 4. Participants. Except as hereinafter provided, the class of persons who are potential recipients of Options to be granted under this Plan consists of the employees, consultants and non-employee directors of the Company or a Subsidiary, as determined by the Committee. The persons to whom Options are granted under this Plan and the number of Shares subject to each Option shall be determined by the Committee in its sole discretion, subject, however, to the terms and conditions of this Plan. Options may be granted to employees and consultants who are also officers and/or directors of the Company or a Subsidiary. 5. Shares. The Committee may, but shall not be required to, grant, in accordance with this Plan, Options to purchase Shares for an aggregate of up to 450,000 Shares (subject to adjustment as provided in Section 14), which may be either treasury Shares or authorized but unissued Shares. If an Option shall expire or terminate for any reason without having been exercised in full, then the Committee may grant Options with respect to the unpurchased Shares subject to any such expired or terminated Option. 6. Grant of Options. An Option granted under this Plan to an employee of the Company shall be an incentive stock option within the meaning of Section 422 of the Internal Revenue Code, unless the Committee, in its sole discretion, designates otherwise. Options granted to employees that are designated not to be incentive stock options and Options granted to consultants and non-employee directors shall not be treated as such for purposes of this Plan and the Internal Revenue Code. Notwithstanding any other provision of this Plan to the contrary (a) the aggregate Fair Market Value (determined as of the date an Option is granted) of the Shares with respect to which any individual employee may be granted Options that are incentive stock options and that become exercisable in any one calendar year (under this Plan and all other stock option plans maintained by the Company or any Subsidiary), shall not exceed $100,000, and (b) the maximum number of Shares that may be granted under this 3 Plan to each non-employee director of the Company shall not exceed 5,000 Shares in any one calendar year. The form, terms and conditions to each Option shall be determined from time to time by the Committee and shall be set forth in writing in an agreement (the "Option Agreement") signed by the Option holder and on behalf of the Company by the Chairman, President or a Vice President of the Company. The Option Agreement shall state whether or not the Option is an incentive stock option. The Committee may, in its sole discretion, at the time an Option is granted, establish one or more conditions to the exercise of an Option, provided that, if the Option is designated as an incentive stock option, then the condition or conditions shall not be inconsistent with Section 422 of the Internal Revenue Code. 7. Exercise Price for Options. The exercise price per share of the Shares to be purchased pursuant to any Option shall be fixed by the Committee at the time an Option is granted; provided, however, that in no event shall the exercise price per Share be less than the Fair Market Value of a Share on the date on which the Option is granted. 8. Duration of Options and Rights. The duration of any Option granted under this Plan shall be for a period fixed by the Committee but not more than ten years from the date upon which the Option is granted. 9. Limitations on Options Granted to Ten Percent Stockholders. No Option that is intended to qualify as an incentive stock option may be granted under this Plan to any employee who, at the time the Option is granted, owns, or is considered as owning, within the meaning of Section 422 of the Internal Revenue Code, Shares possessing more than ten percent of the total combined voting power or value of all classes of stock of the Company or any Subsidiary, unless the exercise price under the Option is at least 110% of the Fair Market Value on the date such Option is granted and the duration of such Option is no more than five years. 4 10. Option Holder Not a Stockholder. An Option holder shall not be deemed to be the holder of, or to have any of the rights of a stockholder with respect to, any Shares subject to that Option unless and until the Option shall have been exercised pursuant to the terms thereof, the Company shall have issued and delivered Shares to the Option holder, and the holder's name shall have been entered as a stockholder of record on the books of the Company. Thereupon, the holder shall have full voting, dividend and other ownership rights with respect to those Shares. 11. Non-transferability of Options. Options may be exercised or surrendered during the holder's lifetime only by the holder thereof, and all rights thereunder shall be non-transferable and non-assignable by the holder thereof, other than by will or the laws of descent and distribution. Notwithstanding the foregoing, the Committee may determine, at the time of grant or thereafter, that a non-qualified option that is otherwise transferable pursuant to this Section is transferable in whole or in part and in such circumstances, and under such conditions, as specified by the Committee. 12. Exercise of Options. Except as otherwise provided herein, an Option, after the grant thereof, shall be exercisable by the holder at such times as may be fixed by the Committee at the time the Option is granted; provided, however, that no Option may be exercised in part or in full prior to the approval of the Plan by the stockholders of the Company as provided in Section 19 of this Plan. All or any part of any remaining unexercised Options granted to any person shall, after approval of the Plan by the stockholders of the Company as provided in Section 19 of this Plan, be exercisable in full, whether or not then exercisable, upon the occurrence of such special circumstance or event as in the sole discretion of the Committee merits special consideration. An Option shall be exercised by the delivery to any officer of the Company, designated for the purpose of receiving the same, of a written notice of exercise duly signed by the Option holder (or the representative of the estate or the heirs of a deceased 5 Option holder), together with the Option certificate and either cash, a certified check payable to the order of the Company or Shares duly endorsed over to the Company (which Shares shall be valued at their Fair Market Value as of the day of that exercise), or any combination of these methods of payment, that together amount to the full exercise price of the Shares purchased pursuant to the terms of the Option; provided, however, that a holder may not use any Shares he has acquired pursuant to the exercise of an Option granted under this Plan or any other stock option plan maintained by the Company or any Subsidiary unless he has beneficially owned such Shares for at least six months (and for which the holder has good title, free and clear of any liens, claims and encumbrances, and has represented to the Company that he has owned such Shares for at least six months). No Option may be granted pursuant to this Plan or exercised at any time when that Option, or the granting or exercise thereof, may result in the violation of any law or governmental order or regulation. Within a reasonable time after exercise of an Option the Company shall cause to be delivered to the person entitled thereto a certificate for the Shares purchased pursuant to the exercise of the Option. If the Option shall have been exercised with respect to fewer than all of the Shares subject to the Option, the Company shall also cause to be delivered to the persons entitled thereto a new Option certificate, in replacement of the Option certificate surrendered at the time of the exercise of the Option, indicating the number of Shares with respect to which the Option remains available for exercise, or the original Option certificate shall be endorsed to give effect to the partial exercise thereof. 13. Termination of Option upon Termination of Service. At the time an Option is granted, the Committee shall determine the period of time during which the Option holder may exercise the Option following his termination of service with the Company and its Subsidiaries; provided, however, that an Option shall be exercisable only to the extent the Option, by its terms, is exercisable as of the date the Option holder's service is terminated, unless the Option is made fully exercisable by the Committee pursuant to the provisions of Section 12 of this Plan, and such exercise must be 6 accomplished prior to the expiration of the term of such Option. The Committee may fix different periods of time during which such Option may be exercised following the Option holder's termination of service, depending on the cause for the Option holder's termination of service. Notwithstanding the foregoing, unless otherwise determined by the Committee, if an Option holder's service is terminated for cause for any reason, any Option held by such holder shall thereupon terminate and expire as of the date of termination, regardless of whether any such Option shall have become exercisable. 14. Adjustment of Shares. If, prior to the complete exercise of any Option, there shall be declared and paid a stock dividend upon the Shares or if the Shares shall be split up, converted, exchanged, reclassified, or in any way substituted for, then the Option, to the extent that it has not been exercised, shall entitle the holder thereof upon the future exercise of the Option to such number and kind of securities subject to the terms of the Option to which he would have been entitled had he actually owned the Shares subject to the unexercised portion of the Option at the time of the occurrence of such stock dividend, split-up, conversion, exchange, reclassification or substitution, and the aggregate purchase price upon the future exercise of the Option shall be the same as if the originally optioned Shares were being purchased thereunder. If, at any time during the term of this Plan, there shall be declared and paid a stock dividend upon the Shares or if the Shares shall be split up, converted, exchanged, reclassified, or in any way substituted for, the number of Shares referred to in Section 5 for which Options may be granted and the exercise price of the Shares shall be adjusted to reflect such stock dividend, split-up, conversion, exchange, reclassification or substitution. The Committee shall have the power, in the event of any merger or consolidation of the Company with or into any other corporation, or the merger or consolidation of any other corporation into the Company, to amend all outstanding Options to permit the exercise of all such Options prior to the effectiveness of any such merger or consolidation and to terminate such Options as of such effectiveness. If the Committee, in its discretion, shall exercise that power, all Options then outstanding and 7 subject to such requirement shall be deemed to have been amended to permit the exercise thereof in whole or in part by the holder at any time prior to the effectiveness of such merger or consolidation and these Options shall be deemed to terminate upon such effectiveness. The Committee also may grant Options having terms and provisions that vary from the terms specified in this Plan provided that any Option granted pursuant to this Section is granted only in substitution for or in connection with the assumption of existing options granted by another corporation and assumed or otherwise agreed to be provided for by the Company pursuant to or by reason of a transaction involving a corporate merger, consolidation, acquisition of property or stock, separation, reorganization, or liquidation to which the Company is a party. 15. No Right to Continued Service. Nothing contained herein or in any Option shall be construed to confer on any holder any right to continue in the service of the Company or any Subsidiary or derogate from any right of the Company or any Subsidiary to terminate, retire, request the resignation of or discharge such holder, at any time, with or without cause. 16. Issuance of Shares and Compliance with Securities Laws. Before issuing and delivering any Shares upon the exercise of an Option, the Company may: (i) require the holder to give satisfactory assurances that the Shares are being purchased for investment and not with a view to resale or distribution, and will not be transferred in violation of applicable securities laws; (ii) restrict the transferability of the Shares and require a legend to be endorsed on the certificate representing the Shares; and (iii) condition the issuance and delivery of Shares upon the listing, registration or qualification of such Shares upon a securities exchange or under applicable securities laws. At the time an Option is granted, the Committee shall determine whether an appropriate registration statement covering the Shares to be issued pursuant to this Plan shall be filed with the Securities and Exchange Commission under the Securities Act of 1933, and whether to 8 cause a registration statement covering the reoffer and resale of Shares by holders of Options who may be deemed to be affiliates of the Company to be so filed, and the length of time the Company will cause any such registration statement to become and remain effective. This Plan is intended to comply with Rule 16b-3 under the Securities Exchange Act of 1934 ("Rule 16b-3"). Any provision inconsistent with that Rule shall be inoperative and shall not affect the validity of this Plan or of any Option Agreement. 17. Income Tax Withholding. If the Company or a Subsidiary shall be required to withhold any amounts be reason of any federal, state or local tax rules or regulations in respect of the issuance of Shares pursuant to the exercise of an Option, the holder shall make available to the Company or the Subsidiary sufficient funds to meet the withholding requirements and the Company or the Subsidiary shall be entitled to take and authorize any steps it deems advisable in order to have such funds made available to the Company or the Subsidiary out of any funds or property due or to become due to the holder. If an employee disposes of Shares acquired pursuant to an Option that is an incentive stock option in any transaction considered to be a "disqualifying transaction" under Sections 421 and 422 of the Internal Revenue Code, the Company shall have the right to deduct any taxes required to be withheld from any amounts otherwise payable to the employee. 18. Administration and Amendment of this Plan. Except as hereinafter provided, the Committee may at any time withdraw or from time to time amend this Plan as it relates to the terms and conditions of any Options not theretofore granted, and the Committee with the consent of each adversely affected holder of any Option may at any time withdraw or from time to time amend this Plan as it relates to the terms and conditions of any outstanding Option. Notwithstanding the foregoing, any amendment by the Committee that would increase the number of Shares issuable under this Plan, change the class of persons to whom Options may be granted or otherwise amend this Plan in a 9 manner that would require stockholder approval under Rule 16b-3, the rules of any exchange on which the Company's securities are listed or traded, or of Nasdaq, or, with respect to incentive stock options, under Section 422 of the Internal Revenue Code, shall be subject to the approval of the stockholders of the Company solely to the extent required under Rule 16b-3, the rules of such exchange or Nasdaq or, with respect to incentive stock options, under Section 422 of the Internal Revenue Code. Determinations of the Committee as to any question that may arise with respect to the interpretation of the provisions of this Plan shall be final and binding on all participants and their legal representatives and beneficiaries. The Committee may authorize and establish such rules, regulations and revisions thereof, not inconsistent with the provisions of this Plan, as it may deem advisable to make this Plan and any Options effective or provide for their administration, and may take such other action with regard to this Plan and any Options as it shall deem desirable to effectuate their purposes. 19. Effective Date of the Plan. This Plan shall become effective upon the date specified by the Board of Directors in its resolution adopting the Plan, provided that the Plan is conditioned upon the approval of the common stockholders of the Company in accordance with Delaware law in order for this Plan to be in compliance with the requirements of Rule 16b-3, the rules of any exchange on which the Company's securities are listed or traded, or of Nasdaq, or, with respect to incentive stock options, Section 422 of the Internal Revenue Code. In the event that this Plan is not approved by the stockholders of the Company, this Plan and any Options granted hereunder shall be void and of no force or effect. 20. Term of Plan. No Option shall be granted pursuant to this Plan on or after the tenth anniversary of the earlier of the date the Plan is adopted or the date of shareholder approval, but Options granted prior to such tenth anniversary may be exercised beyond that date and the terms and conditions of this Plan shall continue to apply to those Options. 10 EX-5.1 3 January 29, 1999 The Board of Directors Network Event Theater, Inc. 529 Fifth Avenue New York, New York 10017 Dear Sirs: We are acting as counsel to Network Event Theater, Inc., a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-8 with exhibits thereto (the "Registration Statement") filed by the Company under the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations thereunder, relating to the registration of 850,000 shares (the "Shares") of the Company's common stock, par value $.01 per share, issuable by the Company pursuant to the Network Event Theater, Inc. 1997 Stock Option Plan (the "1997 Plan") and the Network Event Theater, Inc. 1996 Stock Option Plan (the "1996 Plan" and, together with the 1997 Plan, the "Plans"). As such counsel, we have participated in the preparation of the Registration Statement and have reviewed the corporate minutes relating to the issuance of the Shares pursuant to the Plans and have also examined and relied upon originals or copies, certified or otherwise authenticated to our satisfaction, of all such corporate records, documents, agreements and instruments relating to the Company and certificates of public officials and of representatives of the Company. Based upon, and subject to, the foregoing, we are of the opinion that the Shares are duly authorized and, upon exercise in accordance with the terms of the applicable Plan against payment of the exercise price therefor, and upon compliance with applicable securities laws, will be, assuming no change in the applicable law or pertinent facts, validly issued, fully paid and non-assessable. The foregoing opinion relates only to matters of the General Corporation Law of the State of Delaware and does not purport to express any opinion on the laws of any other jurisdiction. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving the foregoing consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. Very truly yours, /s/ Proskauer Rose LLP Proskauer Rose LLP EX-23.1 4 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1996 and 1997 Stock Option Plans of Network Event Theater, Inc. of our report dated August 21, 1998, with respect to the consolidated financial statements of Network Event Theater, Inc. included in its Annual Report (Form 10-KSB) for the year ended June 30, 1998 filed with the Securities and Exchange Commission. Ernst & Young LLP New York, New York January 28, 1999 -----END PRIVACY-ENHANCED MESSAGE-----