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0001044764-03-000016.txt : 20030212
0001044764-03-000016.hdr.sgml : 20030212
20030212151320
ACCESSION NUMBER: 0001044764-03-000016
CONFORMED SUBMISSION TYPE: S-8 POS
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20030212
EFFECTIVENESS DATE: 20030212
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: SURE TRACE SECURITY CORP
CENTRAL INDEX KEY: 0000736314
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389]
IRS NUMBER: 840959153
STATE OF INCORPORATION: UT
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-8 POS
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-103074
FILM NUMBER: 03554240
BUSINESS ADDRESS:
STREET 1: 1530- 9 AVENUE S.E.
STREET 2: 1530- 9 AVENUE S.E.
CITY: CALGARY
STATE: A0
ZIP: T2G 0T7
BUSINESS PHONE: 403 693 8003
MAIL ADDRESS:
STREET 1: 1530- 9 AVENUE S.E.
STREET 2: 1530- 9 AVENUE S.E.
CITY: CALGARY
STATE: A0
ZIP: T2G 0T7
FORMER COMPANY:
FORMER CONFORMED NAME: WHITE CLOUD EXPLORATION INC
DATE OF NAME CHANGE: 19920703
FORMER COMPANY:
FORMER CONFORMED NAME: WATCHOUT INC
DATE OF NAME CHANGE: 19991110
FORMER COMPANY:
FORMER CONFORMED NAME: CORMAX BUSINESS SOLUTIONS INC
DATE OF NAME CHANGE: 20010417
S-8 POS
1
forms8.htm
POST-EFFECTIVE AMENDMENT NO. 1
As filed with the Securities and Exchange Commission on April
As filed with the Securities and Exchange Commission on February
12, 2003
Registration No. 333-103074
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SURE TRACE SECURITY CORPORATION
(Exact name of Registrant as Specified in its Charter)
Utah |
84-0959153 |
(State or Other Jurisdiction of Incorporation or
Organization) |
(I.R.S. Employer Identification
Number) |
1530-9th Ave S.E.
Calgary, Alberta, Canada T2G 0T7
(Address of Principal Executive Offices) (Zip Code)
YEAR 2003 DIRECTORS, OFFICERS AND EMPLOYEES STOCK OPTION
AND STOCK AWARD PLAN
(Full Title of the Plan)
W. Scott Lawler, Esq.
1530 9th Ave. S.E.
Calgary, Alberta Canada T2G 0T7
(Name and Address of Agent for Service)
403-693-8014
(Telephone Number, Including Area Code, of Agent for
Service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price per Share(1) |
Proposed Maximum
Aggregate Offering Price (1) |
Amount of Registration Fee (1) |
Common Stock,
no par value per share |
3,400,000 |
$0.01 |
$34,000.00 |
N/A(2) |
Total |
3,400,000 |
$0.01 |
$34,000.00 |
N/A |
(1)
Pursuant to Rule 457(c), the proposed maximum
offering price per share and the proposed maximum offering price have been
calculated on the basis of the set exercise price for the shares under the
Option Plan as filed as an Exhibit to this Registration Statement.
(2) An original registration fee of $18.39 was paid when the original S-8 was
filed on February 10, 2003, based on an amount of to be registered of 20,000,000
shares.
This Amendment No. 1 to Form S-8 Registration Statement, file number
333-103074, is filed for only the following two (2) purposes:
1. Provide the new name of the registrant, Sure Trace Security Corporation;
and
2. Reduce the total number of shares that may be issued pursuant to this
registration statement to 3,400,000 shares from 20,000,000 shares.
All information and exhibits provided in the original filing
are incorporated herein by reference, except for the registrant's 2003 Stock
Option and Stock Award Plan, which has been amended and re-submitted as an
Exhibit to this Amendment No. 1.
Item 8. Exhibits
Exhibit Number |
Description |
5.1* |
Opinion of W. Scott Lawler, Esq. |
|
|
23.1 |
Consent of W. Scott Lawler, Esq (included in Exhibit 5.1
to this Registration Statement |
|
|
23.2* |
Consent of Michael Johnson & Co.,
LLC |
|
|
24* |
Powers of Attorney |
|
|
99.1 |
Year 2003 Directors, Officers and Employees Stock Option
and Stock Award Plan |
* Incorporated by reference to the Exhibits filed with the
Registration Statement on Form S-8, file number 333-103074, filed on February
10, 2003.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Calgary, Canada on the 11th day of
February, 2003.
SURE TRACE SECURITY CORPORATION
(Registrant)
/s/ PETER LEEUWERKE
By: Peter Leeuwerke
Title: President*
* Executed on behalf of Mr. Peter Leeuwerke, President, by his
Attorney-in-fact, Mr. W. Scott Lawler
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed on behalf of the following persons in the capacities
and on the dates indicated pursuant to a signed power of attorney executed by
such persons appointing W. Scott Lawler. Such power of attorney made Mr. Lawler
a true and lawful attorney-in-fact and agent, with full power of substitution,
of each person named below and in his name, place and stead in any and all
capacities to sign any or all amendments or post-effective amendments to this
Registration Statement, including registration statements filed or amendments
made pursuant to Rule 462 under the Securities Act of 1933, as amended, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, to sign any and all
applications, registration statements, notices or other document necessary or
advisable to comply with the applicable state securities laws, and to file the
same, together with all other documents in connection therewith, with the
appropriate state securities authorities, granting unto Mr. Lawler full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, thereby ratifying and confirming all
that Mr. Lawler may lawfully do or cause to be done by virtue hereof.
/s/ PETER LEEUWERKE
Peter Leeuwerke
President and Member of the Board of Directors (Principal
Executive and Principal Accounting Officer) |
February 11, 2003 |
/s/ GRAHME ENTWISTLE
Graham Entwistle
Member of the Board of Directors |
February 11, 2003 |
EXHIBIT INDEX
Exhibit Number |
Description |
5.1* |
Opinion of W. Scott Lawler, Esq. |
|
|
23.1* |
Consent of W. Scott Lawler, Esq (included in Exhibit 4.1
to this Registration Statement |
|
|
23.2* |
Consent of Michael Johnson & Company |
|
|
24.* |
Powers of Attorney |
|
|
99.1 |
Year 2003 Directors, Officers and Employees Stock Option
and Stock Award Plan |
* Incorporated by reference to the Exhibits filed with the Registration
Statement on Form S-8, file number 333-103074, filed on February 10,
2003.
EX-99
3
optplan.htm
STOCK OPTION AND STOCK AWARD PLAN
EXHIBIT 99
EXHIBIT 99.1
CORMAX BUSINESS SOLUTIONS INC.
2003 DIRECTORS, OFFICERS AND EMPLOYEES STOCK OPTION
AND STOCK AWARD PLAN (Amended
February 11, 2003)
(this
"PLAN")
1. Definitions.
Each of the following terms shall have the respective meanings
set forth below for purposes of this Plan, whether employed in the singular or
plural unless the particular context in which said term is used clearly
indicates otherwise:
- "Option" shall mean the right to purchase a specified number of shares
of the Common Stock (as such term is defined below) pursuant to the terms
and conditions set forth in this Plan.
- "Stock Award" shall mean the granting and issuance of the Common Stock
pursuant to the terms and conditions set forth in this Plan.
- "Optionee" shall mean the recipient of Options hereunder. Any reference
herein to the employment or consultancy of an Optionee by the Company shall
include Optionee's employment or consultancy by the Company or its
subsidiaries, if any.
- "Effective Date" shall mean as of December 30, 2002 and amended as of
February 11, 2003.
- "Plan Termination Date" shall mean the date upon which this Plan
terminates.
- "Directors" shall mean each and every member of the Board of Directors
of the Company (as such term is defined below) as presently constituted and
as may otherwise be constituted during the term hereof.
2. Purpose.
The purpose of this Plan is to maintain the ability of Cormax
Business Solutions Inc. (the "Company") and its subsidiaries to attract and
retain highly qualified and experienced directors, officers, employees and
consultants ("Participants") and to give such Participants a continued
proprietary interest in the success of the Company and its subsidiaries.
Pursuant to this Plan, eligible Participants will be provided the opportunity to
participate in the enhancement of shareholder value through the grants of
options, stock appreciation rights, awards of free trading stock and restricted
stock, bonuses and/or fees payable in stock, or any combination thereof. The
term "subsidiary" as used in this Plan shall mean any present or future
corporation which is or would be a "subsidiary corporation" of the Company as
the term is defined in Section 424(f) of the Internal Revenue Code of 1986, as
amended from time to time (the "Code").
3. Administrator(s) of this Plan.
a. Subject to the provisions of Section 5, this Plan shall be
administered by the Board or by an Administrator(s) of the Board (in either
case, hereinafter referred to as the "Administrator(s)"). The Administrator(s),
if so appointed, may adopt such rules and regulations as he or she shall deem
appropriate concerning this Plan, the Options and the Stock Awards, and make all
other determinations necessary or advisable for administering this Plan,
including, but not limited to, the persons to whom, and the time or times at
which, grants shall be made, the number of Options to be included in the grants,
the length of time the Options are exercisable, the number of Options which
shall be treated as incentive stock options, the Option exercise price, and any
vesting schedule with respect to the Options. All determinations and
interpretations by the Administrator(s) shall be binding and conclusive upon all
parties.
2
b. Each grant or award made pursuant to this Plan shall be
evidenced by an Option Agreement or Stock Award Agreement (the "Agreement"). No
person shall have any rights under any option, restricted stock or other award
granted under this Plan unless and until the person to whom such Option,
restricted stock or other Stock Award shall be granted shall have executed and
delivered an Agreement to the Company. The Administrator(s) shall prescribe the
form of all Agreements. A fully executed counterpart of the Agreement shall be
provided to both the Company and the recipient of the grant or award.
c. The Company shall indemnify and hold harmless the Directors
and the Administrator(s) from and against any and all liabilities, costs and
expenses incurred by such persons as a result of any act, or omission to act, in
connection with the performance of such persons' duties, responsibilities, and
obligations under this Plan, other than such liabilities, costs and expenses as
may result from the gross negligence, bad faith, willful misconduct, and/or
criminal acts of such persons.
4. Shares of Stock Subject to this Plan.
The maximum number of shares of the voting common stock of the
Company, par value $0.001 per share (the "Common Stock"), that may be optioned
or awarded under this Plan is 3,400,000 shares, subject to adjustment as
provided in Section 15 hereof. Any shares subject to an Option which for any
reason expires or is terminated unexercised and any restricted stock which is
forfeited may again be optioned or awarded under this Plan; provided, however,
that forfeited shares shall not be available for further awards if the
Participant has realized the benefits of ownership from such shares. Shares
subject to this Plan may be either, authorized and un-issued shares or issued
shares repurchased or otherwise acquired by the Company or its
subsidiaries.
5. Grant of Options.
- The Administrator(s) shall have the authority and responsibility, within
the limitations of this Plan, to determine the Directors, employees and
consultants to whom and the times at which Options are to be granted, the
number of shares of Common Stock which may be purchased under each Option,
the provisions of the respective Option Agreements (which need not be
identical) including provisions concerning the time or times when, and the
extent to which, the Options may be exercised, and the Option exercise
price. All Options pursuant to this Plan shall be granted on or before the
Plan Termination Date.
- In determining the Directors, employees and consultants to whom Options
shall be
granted, the number of shares of Common Stock to be covered
by each such Option, and the provisions of the respective Option Agreements,
the Administrator(s) shall take into consideration the employee's or
consultant's present and potential contribution to the success of the
Company and such other factors as the Administrator(s) may deem proper and
relevant.
- The aggregate fair market value (determined as of the date upon which an
Option is
granted) of the Common Stock for which any Optionee may
exercise incentive stock options for the first time in any calendar year (under
all plans of the Company and any parent or subsidiary of the Company which plans
provide for granting of incentive stock options within the meaning of Section
422(b) of the Code) shall not exceed $100,000.
6. Eligibility.
Directors, employees, including officers, of the Company and
its divisions and subsidiaries, and consultants who provide bonafide services to
the Company are eligible to be granted Options, free trading stock, restricted
stock and other Stock Awards under this Plan and to have their salaries, bonuses
and/or consulting fees payable in free trading stock, restricted stock and other
Stock Awards. The Directors, employees, and consultants who shall receive awards
or options under this Plan, and the criteria to be used in determining the award
to be made, shall be determined from time to time by the Administrator(s), in
their sole discretion, from among those eligible, which may be based upon
information furnished to the Administrator(s) by the Company's management; and
the Administrator(s) shall determine, in their sole discretion, the number of
shares to be covered by each Stock Award and option granted to each Director,
employee or consultant selected.
3
7. Duration of this Plan.
No award or Option may be granted under this Plan after more
than ten (10) years from the earlier of the date this Plan is adopted by the
Board or approved by a majority of the shareholders of the Company. The Plan
shall be submitted to the shareholders of the Company for their approval at the
regular or special meeting to be held within 12 months after the adoption of the
Plan by the Board. Shareholder approval shall be evidenced by the affirmative
vote by the holders of a majority of the shares of the Company's Common Stock,
present in person or by proxy and voting at the meeting
8. Terms and Conditions of Stock Options.
Options granted under this Plan may be either incentive stock
options, as defined in Section 422 of the Code, or Options other than incentive
stock options. Each Option shall be subject to all the applicable provisions of
this Plan, including the following terms and conditions, and to such other terms
and conditions not inconsistent therewith as the Administrator(s) shall
determine:
- The Option price per share shall be set by the Board of Directors at the
time of each Option grant.
- The exercise of certain Options granted under this Plan may be subject
to the attainment of such performance goals, and/or during such period as
may be determined by the Administrator(s) and stated in the Agreement.
- An Option shall not be exercisable with respect to a fractional share of
Common Stock or
with respect to the lesser of fifty (50) shares or the full
number of shares then subject to the Option. No fractional shares of Common
Stock shall be issued upon the exercise of an Option. If a fractional share
of Common Stock shall become subject to an Option by reason of a stock
dividend or otherwise, the Optionee shall not be entitled to exercise the
Option with respect to such fractional share.
- Each Option shall state whether it will or will not be treated as an
incentive stock option.
- Each Option will be deemed exercised on the day written notice
specifying the number of shares to be purchased, accompanied by payment in
full including, if required by law, applicable taxes, is received by the
Company. Payment, except as provided in the Agreement shall be:
i. in United States dollars by check or bank draft, or
ii. by tendering to the Company shares of Common Stock
already owned for at least six months by the person exercising the Option,
which may include shares received as the result of a prior exercise of an
Option, and having an aggregate fair market value, on the date on which the
Option is exercised, equal to the total cash exercise price applicable to
the Options being exercised, or
iii. by a combination of United States dollars and shares
of Common Stock valued as aforesaid.
For purposes of this Plan, fair market value shall be the
mean between the highest and lowest prices at which the Common Stock is
traded on a national securities exchange or an automated securities
quotation exchange on the relevant date, provided however, if there is no
sale of the Common Stock on such exchange on such date, fair market value
shall be the mean between the bid and asked prices on such exchange at the
close of the market on such date. No Optionee shall have any rights to
dividends or other right of a shareholder with respect to shares of Common
Stock subject to his or her Option until he or she has given written notice
of exercise of such Option and paid in full for such shares.
4
- Notwithstanding the foregoing, the Administrator(s) may, in their sole
discretion, include in the Agreement a provision to allow for the cashless
exercise of any Options granted by such Agreement under this Plan.
- The Administrator(s) may, in their discretion, include in the grant of
any Option the right of a grantee (hereinafter referred to as a "stock
appreciation right") to elect, in the manner described below, in lieu of
exercising his or her Option for all or a portion of the shares of Common
Stock covered by such Option, to relinquish his or her Option for all or a
portion of the such shares and to receive from the Company a payment equal
in value to (x) the fair market value, as determined in accordance with
Section 8(e), of a share of Common Stock on the date of such election,
multiplied by the number of shares as to which the grantee shall have made
such election, less (y) the exercise price for that number of shares of
Common Stock for which the grantee shall have made such election under the
terms of such Option. A stock appreciation right shall be exercisable at the
time the tandem option is exercisable, and the "expiration date" for the
stock appreciation right shall be the amount described in (x) above exceeds
the amount described in (y) above. An election to exercise stock
appreciation rights shall be deemed to have been made on the day written
notice of such election, addressed to the Administrator(s), is received by
the Company. An Option or any portion thereof with respect to which a
grantee has elected to exercise a stock appreciation right shall be
surrendered to the Company and such Option shall thereafter remain
exercisable according to its terms only with respect to the number of shares
as to which it would otherwise be exercisable, less the number of shares
with respect to which stock appreciation rights have been exercised. The
grant of a stock appreciation right shall be evidenced by an Agreement. The
Agreement evidencing stock appreciation rights shall be personal and will
provide that the stock appreciation rights will not be transferable by the
grantee otherwise than by will or the laws of descent and distribution and
that they will be exercisable, during the lifetime of the grantee, only by
him or her.
- Except as provided in the applicable Agreement, an Option may be
exercised only if at all times during the period beginning with the date of
the granting of the Option and ending on the date of such exercise, the
grantee was a consultant or employee of either the Company (or of a
division) or subsidiary of the Company or of another corporation referred to
in Section 421(a)(2) of the Code. The Agreement shall provide whether, and
to what extent, an Option may be exercised after termination of continuous
employment, but any such exercise shall in no event be later than the
termination date of the Option. If the grantee should die, or become
permanently disabled as determined by the Administrator(s) at any time when
the Option, or any portion thereof, shall be exercisable, the Option will be
exercisable within a period provided for in the Agreement, by the Optionee
or person or persons to whom his or her rights under the Option shall have
passed by will or by the laws of descent and distribution, but in no event
at a date later than the termination of the Option. The Administrator(s) may
require medical evidence of permanent disability, including medical
examinations by physicians selected by it.
- Each Option by its terms shall be personal and shall not be transferable
by the Optionee otherwise than by will or by the laws of descent and
distribution. During the lifetime of an Optionee, the Option shall be
exercisable only by the Optionee. In the event any Option is exercised by
the executors, Administrators, heirs or distributees of the estate of a
deceased Optionee as provided in Section 8(h) above, the Company shall be
under no obligation to issue Common Stock thereunder unless and until the
Company is satisfied that the person or persons exercising the Option are
the duly appointed legal representatives of the deceased Optionee's estate
or the proper legatees or distributees thereof.
- No incentive stock option shall be granted to an employee who owns or
would be treated as owning by attribution under Code Section 424(d)
immediately before the grant of such incentive stock option, directly or
indirectly, stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company. This restriction shall not
apply if: (i) at the time such incentive stock option is granted, the Option
price is at least 110% of the fair market value of the shares of Common
Stock subject to the Option, as determined in accordance with Section 8(e)
on the date of grant, and (ii) the incentive stock option by its terms is
not exercisable after the expiration of five years from the date of its
grant.
5
- An Option and any Common Stock received upon the exercise of an Option
shall be subject to such other transfer restriction and/or legending
requirements as are specified in the applicable Agreement.
- With respect to persons subject to Section 16 of the Securities Exchange
Act of 1934, as amended ("1934 Act"), this Plan is intended to comply with
all applicable conditions of Rule 16b-3 (and all subsequent revisions
thereof) ("Rule 16b-3") promulgated under the 1934 Act. In such instance, to
the extent any provision of this Plan or action by the Administrator fails
to so comply, it shall be deemed null and void, to the extent permitted
bylaw and deemed advisable by the Administrator. In addition, the Board may
amend this Plan from time to time as it deems necessary in order to meet the
requirements of any amendments to Rule 16b-3 without the consent of the
shareholders of the Company.
- The Plan Administrator may, in its sole discretion, set forth other
terms and conditions upon which the Company (or its assigns) shall have the
right to repurchase shares of Stock acquired by as a Optionholder pursuant
to an Option. Any repurchase right of the Company shall be exercisable by
the Company (or its assignees) upon such terms and conditions as the Plan
Administrator may specify in the Stock Repurchase Agreement evidencing such
right. The Plan Administrator may, in its discretion, also establish as a
term and condition of one or more Options granted under the Plan that the
Company shall have a right of first refusal with respect to any proposed
sale or other disposition by the Optionholder of any shares of Stock issued
upon the exercisable by the Company (or its assigns) in accordance with the
terms and conditions set forth in the Stock Repurchase
Agreement.
9. Terms and Conditions of Restricted Stock Awards.
Awards of restricted stock under this Plan shall be subject to
all the applicable provisions of this Plan, including the following terms and
conditions, and to such other terms and conditions not inconsistent therewith,
as the Administrator(s) shall determine:
- Awards of restricted stock may be in addition to or in lieu of Option
grants. Awards may be conditioned on the attainment of particular
performance goals based on criteria established by the Administrator(s) at
the time of each award of restricted stock. During a period set forth in the
Agreement (the "Restriction Period"), the recipient shall not be permitted
to sell, transfer, pledge, or otherwise encumber the shares of restricted
stock; except that such shares may be used, if the Agreement permits, to pay
the option price pursuant to any Option granted under this Plan, provided an
equal number of shares delivered to the Optionee shall carry the same
restrictions as the shares so used.
- Shares of restricted stock shall become free of all restrictions if
during the Restriction Period, (i) the recipient dies, (ii) the recipient's
directorship, employment, or consultancy terminates by reason of permanent
disability, as determined by the Administrator(s), (iii) the recipient
retires after attaining both 59 1/2 years of age and five years of
continuous service with the Company and/or a division or subsidiary, or (iv)
if provided in the Agreement, there is a "change in control" of the Company
(as defined in such Agreement). The Administrator(s) may require medical
evidence of permanent disability, including medical examinations by
physicians selected by it.
- Unless and to the extent otherwise provided in the Agreement, shares of
restricted stock shall be forfeited and revert to the Company upon the
recipient's termination of directorship, employment or consultancy during
the Restriction Period for any reason other than death, permanent
disability, as determined by the Administrator(s), retirement after
attaining both 59 1/2 years of age and five years of continuous service with
the Company and/or a subsidiary or division, or, to the extent provided in
the Agreement, a "change in control" of the Company (as defined in such
Agreement), except to the extent the Administrator(s), in their sole
discretion, finds that such forfeiture might not be in the best interests of
the Company and, therefore, waives all or part of the application of this
provision to the restricted stock held by such recipient.
6
- Stock certificates for restricted stock shall be registered in the name
of the recipient but shall be appropriately legended and returned to the
Company by the recipient, together with a stock power endorsed in blank by
the recipient. The recipient shall be entitled to vote shares of restricted
stock and shall be entitled to all dividends paid thereon, except that
dividends paid in Common Stock or other property shall also be subject to
the same restrictions.
- Restricted Stock shall become free of the foregoing restrictions upon
expiration of the applicable Restriction Period and the Company shall then
deliver to the recipient Common Stock certificates evidencing such stock.
- Restricted stock and any Common Stock received upon the expiration of
the restriction period shall be subject to such other transfer restrictions
and/or legending requirements as are specified in the applicable Agreement.
10. Bonuses and Past Salaries and Fees Payable in Stock.
- In lieu of cash bonuses otherwise payable under the Company's or
applicable division's or subsidiary's compensation practices to Directors,
employees and consultants eligible to participate in this Plan, the
Administrator(s), in their sole discretion, may determine that such bonuses
shall be payable in Common Stock or partly in Common Stock and partly in
cash. Such bonuses shall be in consideration of services previously
performed and as an incentive toward future services and shall consist of
shares of Common Stock which shall be free trading unless otherwise
determined by the Administrator(s) in their sole discretion. The number of
shares of Common Stock payable in lieu of a bonus otherwise payable shall be
determined by dividing such bonus amount by the fair market value of one
share of Common Stock on the date the bonus is payable, plus ten percent
with fair market value determined as of such date in accordance with Section
8(e).
- In lieu of salaries and fees otherwise payable by the Company's to
employees and consultants eligible to participate in this Plan that were
incurred for services rendered at any time to the Company, in the event such
Directors, employees or consultants elect, the Administrator(s) may provide
that such unpaid salaries and fees shall be payable in Common Stock or
partly in Common Stock and partly in cash. Such awards shall be in
consideration of services previously performed and as an incentive toward
future services and shall consist of shares of Common Stock subject to such
terms as the Administrator(s) may determine in their sole discretion. The
number of shares of Common Stock payable in lieu of salaries and fees
otherwise payable shall be determined by the Administrator.
11. Change in Control.
Each Agreement may, in the sole discretion of the
Administrator(s), provide that any or all of the following actions may be taken
upon the occurrence of a change in control (as defined in the Agreement) with
respect to the Company:
- acceleration of time periods for purposes of vesting in, or realizing
gain from, or exercise of any outstanding Option or stock appreciation right
or shares of restricted stock awarded pursuant to this Plan;
- offering to purchase any outstanding Option or stock appreciation right
or shares of restricted stock made pursuant to this Plan from the holder for
its equivalent cash value, as determined by the Administrator(s), as of the
date of the change in control; or
- making adjustments or modifications to outstanding Options or stock
appreciation rights or with respect to restricted stock as the
Administrator(s) deems appropriate to maintain and protect the rights and
interests of the Participants following such change in control, provided,
however, that the exercise period of any option may not be extended beyond
10 years from the date of grant.
7
12. Transfer, Leave of Absence.
For purposes of this Plan:
a. Transfer of an employee from the Company the division or
subsidiary of the Company, whether or not incorporated, or vice versa, or from
one division or subsidiary of the Company to another, and
b. A leave of absence, duly authorized in writing by the
Company or a subsidiary or division of the Company, shall not be deemed a
termination of employment.
13. Rights of Directors, Employees and Consultants.
- No person shall have any rights or claims under this Plan except in
accordance with the provisions of this Plan and each Agreement.
- Nothing contained in this Plan and Agreement shall be deemed to give any
Director, employee or consultant the right to continued employment by the
Company or its divisions or subsidiaries.
14. Withholding Taxes.
The Company shall require a payment from a Participant to cover
applicable withholding for income and employment taxes upon the happening of any
event pursuant to this Plan which requires such withholding. The Company
reserves the right to offset such tax payment from any funds which may be due
the Participant from the Company or its subsidiaries or divisions or, in its
discretion, to the extent permitted by applicable law, to accept such tax
payment through the delivery of shares of Common Stock owned by the Participant
or by utilizing shares of the Common Stock which were to be delivered to the
Participant pursuant to this Plan, having an aggregate fair market value,
determined as of the date of payment, equal to the amount of the payment due.
15. Adjustments.
In the event of stock dividends, stock splits,
recapitalizations, mergers, consolidations, combinations, exchanges of shares,
spin-offs, liquidations, reclassifications or other similar changes in the
capitalization of the Company, the number of shares of Common Stock available
for grant under this Plan shall be adjusted appropriately by the Board, and,
where deemed appropriate, the number of shares covered by outstanding stock
options and stock appreciation rights outstanding and the number of shares of
restricted stock outstanding, and the option price of outstanding stock options,
shall be similarly adjusted. If another corporation or other business entity is
acquired by the Company, and the Company has assumed outstanding employee option
grants under a prior existing plan of the acquired entity, similar adjustments
are permitted at the discretion of the Administrator(s). In the event of any
other change affecting the shares of Common Stock available for awards under
this Plan, such adjustment, if any, as may be deemed equitable by the
Administrator(s), shall be made to preserve the intended benefits of this Plan
giving proper effect to such event.
16. Miscellaneous Provisions.
- This Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the issuance of shares or the payment of cash upon exercise
of any option or stock appreciation right under this Plan. The expenses of
this Plan shall be borne by the Company.
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- The Administrator(s) may, at any time and from time to time after the
granting of an Option or the award of restricted stock or bonuses payable in
Common Stock hereunder, specify such additional terms, conditions and
restrictions with respect to such Option or stock as may be deemed necessary
or appropriate to ensure compliance with any and all applicable laws,
including, but not limited to, the Code, federal and state securities laws
and methods of withholding or providing for the payment of required taxes.
- If at any time the Administrator(s) shall determine in its discretion
that the listing, registration or qualification of shares of Common Stock
upon any national securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the sale or purchase of
shares of Common Stock hereunder, no Option or stock appreciation right may
be exercised or restricted stock or stock bonus may be transferred in whole
or in part unless and until such listing registration, qualification,
consent or approval shall have been effected or obtained, or otherwise
provided for, free of any conditions not acceptable to the Administrator(s).
- By accepting any benefit under this Plan, each Participant and each
person claiming under or through such Participant shall be conclusively
deemed to have indicated his acceptance and ratification, and consent to,
any action taken under this Plan by the Administrator(s), the Company or the
Board.
- This Plan shall be governed by and construed in accordance with the laws
of the Company's state of incorporation.
- Administrator(s) members exercising their functions under this Plan are
serving as directors of the Company and they shall therefore be entitled to
all rights of indemnification and advancement of expenses accorded directors
of the Company.
17. Limits of Liability.
- Any liability of the Company or a subsidiary of the Company to
any Participant with respect to any option or award shall be based solely
upon contractual obligations created by this Plan and Agreement.
- Neither the Company nor a division or subsidiary of the Company, nor any
member of the Administrator(s) or the Board, nor any other person
participating in any determination of any question under this Plan, or in
the interpretation, administration or application of this Plan, shall have
any liability to any party for any action taken or not taken in connection
with this Plan, except as may expressly be provided by statute.
18. Amendments and Termination.
The Board may, at any time, amend, alter or discontinue
this Plan; provided, however, no amendment, alteration or discontinuation
shall be made which would impair the rights of any holder of an award of
restricted stock, Option, stock appreciation rights or stock bonus
theretofore granted, without his or her written consent, or which, without
the approval of the shareholders would:
- except as provided in Section 15, increase the maximum number of
shares of Common Stock which may be issued under this Plan;
- except as provided in Section 15, decrease the option price of an Option
(and related stock appreciation rights, if any) to less than 100% of the
fair market value (as determined in accordance with Section 8(e)) of a share
of Common Stock on the date of the granting of the Option (and related stock
appreciation rights, if any);
- materially change the class of persons eligible to receive an award of
restricted stock or Options or stock appreciation rights under this Plan;
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- extend the duration of this Plan; or
- materially increase in any other way the benefits accruing to
Participants.
19. Duration.
This Plan shall be adopted by the Board and approved by the
Company's shareholders and such regulatory bodies as may in each case be
necessary, which approvals, if required, must occur either before, or no
later than the period ending twelve months after the date, this Plan is
adopted. Subject to such approvals, grants and awards may be made under this
Plan between the date of its adoption and receipt of such approvals. This
Plan shall terminate upon the earlier of the following dates or events to
occur:
- upon the adoption of a resolution of the Board terminating this
Plan;
- the date all shares of Common Stock subject to this Plan are purchased
according to this Plan's provisions; or
- ten years from the date of adoption of this Plan by the Board.
No such termination of this Plan shall adversely affect the
rights of any Participant hereunder and all Options or stock appreciation rights
previously granted and restricted stock and stock bonuses awarded hereunder
shall continue in force and in operation after the termination of this Plan,
except as they may be otherwise terminated in accordance with the terms of this
Plan.
20. Other Compensation Plans.
This Plan shall not be deemed to preclude the implementation by
the Company or its divisions or subsidiaries of other compensation plans which
may be in effect from time to time, nor adversely affect any rights of
Participants under any other compensation plans of the Company or its divisions
or subsidiaries.
21. Non-Transferability.
No right or interest in any award granted under this Plan shall
be assignable or transferable, except as set forth in this Plan and required by
law, and no right or interest of any participant in any award shall be liable
for, or subject to, any lien, obligation or liability except as set forth in
this Plan or as required by law.
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