-----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, Ew4jfCs8ViTFXILOr5nn+46XLA0IBkHqmt3xxSgqzrld6adlwz2ALY1u+dEXCdIP JQX9zpKqM5rX4tu7HJ61EA== 0000950147-00-000662.txt : 20000508 0000950147-00-000662.hdr.sgml : 20000508 ACCESSION NUMBER: 0000950147-00-000662 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000504 EFFECTIVENESS DATE: 20000504 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONSYGEN INC CENTRAL INDEX KEY: 0000844008 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 760260145 STATE OF INCORPORATION: TX FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-36338 FILM NUMBER: 619894 BUSINESS ADDRESS: STREET 1: 125 SOUTH 52ND STREET STREET 2: SUITE 140 CITY: TEMPE STATE: AZ ZIP: 85281 BUSINESS PHONE: 6023949100 MAIL ADDRESS: STREET 1: 125 SOUTH 52ND STREET STREET 2: SUITE 140 CITY: TEMPE STATE: AZ ZIP: 85281 S-8 1 FORM S-8 OF CONSYGEN, INC. AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- CONSYGEN, INC. (Exact Name of Registrant as Specified in its Charter) TEXAS 76-0260145 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 125 SOUTH 52ND STREET, TEMPE, AZ 85281, (480-394-9100) (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) ---------- CONSYGEN, INC. 2000 COMBINATION STOCK OPTION PLAN ------------------------------------------------- (Full title of Plans) ---------- A. LEWIS BURRIDGE PRESIDENT AND CHIEF EXECUTIVE OFFICER 125 SOUTH 52ND STREET, TEMPE, AZ 85281 (480) 394-9100 (Name, Address and Telephone Number, Including Area Code, of Agent for Service) WITH A COPY TO: JOHN G. NOSSIFF, JR., ESQ. BROWN, RUDNICK, FREED & GESMER ONE FINANCIAL CENTER, BOSTON, MASSACHUSETTS 02111 (617) 856-8200 ----------
CALCULATION OF REGISTRATION FEE ============================================================================================== Proposed Proposed Amount Maximum Maximum Amount of Title of Each Class of to Be Offering Price Aggregate Registration Securities to Be Registered Registered Per Share(1) Offering Price(1) Fee - ---------------------------------------------------------------------------------------------- Common Stock, $.003 par value 5,000,000 $1.234 $6,170,000 $1,629 ==============================================================================================
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457 under the Securities Act of 1933, on the basis of the average of the high and low reported price of the Common Stock as reported on the National Association of Securities Dealers OTC Bulletin Board on May 1, 2000. (2) Such presently indeterminable number of additional shares of Common Stock are also registered hereunder as may be issued in the event of a merger, consolidation, reorganization, recapitalization, stock dividend, stock split or other similar change in Common Stock. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents are hereby incorporated by reference into this Registration Statement: (a) The Registrant's Annual Report on Form 10-KSB, Form 10-KSB/A and Form 10-KSB/A2 for the fiscal year ended May 31, 1999 filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) All other reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant's documents referred to paragraph (a) above; and (c) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A, as amended by Amendment No. 1 thereto (Registration No. 0-17598), filed under the Exchange Act with the Securities and Exchange Commission. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and 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 a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's Articles of Incorporation, as amended (the "Amended Articles"), eliminate, subject to certain exceptions, the personal liability of directors to the Registrant or its stockholders for monetary damages for breaches of fiduciary duties as directors to the extent permitted by state law. The Amended Articles do not provide for the elimination of, or any limitation on, the personal liability of a director (i) for a breach of the director's duty of loyalty, (ii) engaged in a transaction from which he receives an improper benefit, (iii) for intentional misconduct or knowing violation of law, (iv) found not to have acted in good faith, (v) engaged in an act related to an unlawful stock repurchase or payment of dividend or (vi) where liability is prescribed by law. These provisions of the Amended Articles may limit the remedies available to a stockholder in the event of breaches of any director's duties to such stockholder or the Registrant. The Registrant's Amended and Restated Bylaws (the "Amended Bylaws") include provisions for mandatory indemnification of its officers and directors to the maximum extent provided under the Texas Business Corporation Act ("TBCA"). To the extent permitted under the TBCA, the Amended Bylaws provide that no officer or director shall be liable to the Company for any action taken or omitted to be taken by him as a director or officer if such person (i) exercised the same degree of care and skill as a prudent person would have exercised under similar circumstances or (ii) took or omitted to take such action in reliance upon advice of counsel for the Company or upon statements made or information furnished by directors, officers, employees, or agents of the Company, which he had no reasonable grounds to disbelieve. In addition, the Amended Bylaws provide that directors and officers shall be paid or reimbursed, to the fullest extent provided under the TBCA, for reasonable expenses incurred by such director or officer in connection with certain proceedings, in advance of the final disposition of such proceeding. Article 2.02-1 of the TBCA generally permits a corporation to indemnify a person who was, is, or is threatened to be a named defendant or respondent in a proceeding because the person was or is a director or officer if it is determined that such person (1) conducted himself in good faith; (2) reasonably believed (a) in the case of conduct in his official capacity as a director or officer of the corporation, that his conduct was in the corporation's best interests, or (b) in the case of other situations, that his conduct was at least not opposed to the corporation's best interests; and (3) in the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. In addition, the TBCA requires a corporation to indemnify a director or officer for any action that such director or officer successfully defended on the merits. The Registrant has entered into indemnification agreements with each of its directors and officers. The indemnification agreements provide that the Registrant will pay certain amounts incurred by a director or officer in connection with any civil or criminal action or proceeding and specifically including actions by or in the name of the Registrant (derivative suits) where the individual's involvement is by reason of the fact that he is or was a director or officer. Such amounts include, to the maximum extent permitted by law, attorney's fees, judgments, civil or criminal fines, settlement amounts and other expenses customarily included in connection with legal proceedings. Under the indemnification agreements, a director or officer will not receive indemnification if he is found not to have acted in good faith in the reasonable belief that his action was in the best interests of the Registrant. The Registrant has also purchased and maintains director's and officer's liability insurance for each of its officers and directors. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. Number Description - ------ ----------- 4.1* Specimen Common Stock Certificate (Filed as Exhibit 4.B to the Registrant's Registration Statement on Form S-8 (File No. 33-22900-FW)). 5** Legal Opinion of Brown, Rudnick, Freed & Gesmer. 23.1** Consent of Brown, Rudnick, Freed & Gesmer (contained in its opinion filed as Exhibit 5). 23.2** Consent of King, Weber & Associates, P.C. 23.3** Consent of Wolinetz, Gottlieb & Lafazan, P.C. 24** Power of Attorney (included on the Signature Page of this Registration Statement). 99.1** ConSyGen, Inc. 2000 Combination Stock Option Plan. - ---------- * Not filed herewith. In accordance with Rule 411 promulgated pursuant to the Securities Act, reference is made to the documents previously filed with the Commission, which are incorporated by reference herein. ** Filed herewith. ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in this Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the Registrant's Amended Articles of Incorporation, Amended and Restated By-Laws, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES The Registrant. 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 Tempe, Arizona, on April 12, 2000. CONSYGEN, INC. By: /s/ A. Lewis Burridge ----------------------------------- A. LEWIS BURRIDGE, PRESIDENT POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints A. Lewis Burridge and Jason Genet, and each of them (with full power to each of them to act alone), his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, 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, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, 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 by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE --------- ----- ---- /s/ Robert L. Stewart Chairman of the Board April 12, 2000 - ----------------------- Robert L. Stewart /s/ A. Lewis Burridge President, Chief Executive April 12, 2000 - ----------------------- Officer and Director A. Lewis Burridge (Principal Executive Officer) /s/ Eric J. Strasser Vice President and Chief Financial April 12, 2000 - ----------------------- Officer (Principal Financial Eric J. Strasser Officer) /s/ Andrew Lee Director April 12, 2000 - ----------------------- Andrew Lee /s/ John L. Caldwell Director April 12, 2000 - ----------------------- John L. Caldwell /s/ Donald P. Knode Director April 12, 2000 - ----------------------- Donald P. Knode EXHIBIT INDEX Exhibit Sequential Number Page No. - ------ ---------- 4.1 Specimen Common Stock Certificate (Filed as Exhibit 4.B to * the Registrant's Registration Statement on Form S-8 (File No. 33-22900-FW)). 5 Legal Opinion of Brown, Rudnick, Freed & Gesmer. ** 23.1 Consent of Brown, Rudnick, Freed & Gesmer (contained in its ** opinion filed as Exhibit 5). 23.2 Consent of King, Weber & Associates, P.C. ** 23.3 Consent of Wolinetz, Gottlieb & Lafazan, P.C. ** 24 Power of Attorney (included on the Signature Page of this ** Registration Statement). 99.1 ConSyGen, Inc. 2000 Combination Stock Option Plan. ** - ---------- * Not filed herewith. In accordance with Rule 411 promulgated pursuant to the Securities Act of 1933, reference is made to the documents previously filed with the Commission, which are incorporated by reference herein. ** Filed herewith. EX-5 2 LEGAL OPINION OF BROWN, RUDNICK ET AL May 3, 2000 ConSyGen, Inc. 125 South 52nd Street Suite 140 Tempe, AZ 85281 Re: ConSyGen, Inc., a Texas corporation Registration Statement on Form S-8 Gentlemen: We are counsel for ConSyGen, Inc., a Texas corporation (the "Company"). We have been asked to deliver this opinion in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), of a Registration Statement on Form S-8 (the "Registration Statement") relating to an aggregate of 5,000,000 shares of the Company's Common Stock, $.003 par value per share (the "Shares"). This opinion letter, together with Schedule A attached hereto (this "Opinion Letter"), is being rendered in connection with the filing of the Registration Statement. The 5,000,000 Shares covered by the Registration Statement are issuable under the Company's 2000 Combination Stock Option Plan (referred to herein as the "Plan"). In connection with this Opinion Letter, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of the following documents (collectively, the "Documents"): 1. a certificate from the Secretary of State of the State of Texas dated March 28, 2000 as to the legal existence and good standing of the Company; 2. a copy of the Articles of Incorporation of the Company, as amended to date, and a certificate of the Secretary that there have been no further amendments thereto; 3. a copy of the Amended and Restated By-laws of the Company, certified by the Secretary of the Company as presently being in effect; 4. certain proceedings of the directors of the Company relative to the Plan and Options granted under the Plan; 5. the Plan; 6. a letter of recent date from the Company's transfer agent as to the issued and outstanding shares of the Company's Common Stock, $.003 par value per share; 7. a representation letter dated April 12, 2000 from the Company and Howard R. Baer regarding consulting services provided to the Company by Mr. Baer; and 8. the Registration Statement. We have assumed, for the purposes of our opinion herein, that any conditions to the issuance of the Shares under the Plan have been or will be satisfied in full. We have, without independent investigation, relied upon the representations and warranties of the various parties as to matters of objective fact contained in the Documents. In addition, this Firm, in rendering legal opinions, customarily makes certain assumptions which are described in Schedule A hereto. In the course of our representation of the Company in connection with the preparation of the Registration Statement, nothing has come to our attention which causes us to believe reliance upon any of these assumptions is inappropriate, and, with your concurrence, the opinion hereafter expressed is based upon those assumptions. The Enumerated Party referred to in Schedule A is the Company. We have not made any independent review or investigation of orders, judgments, rules or other regulations or decrees by which the Company or any of its property may be bound, nor have we made any independent investigation as to the existence of actions, suits, investigations or proceedings, if any, pending or threatened against the Company. With your concurrence, our opinion hereafter expressed is based solely upon (1) our review of the Documents, (2) discussions with those of our attorneys who have devoted substantive attention to the preparation of the Registration Statement, and (3) such review of published sources of law as we have deemed necessary. Our opinions contained herein are limited to the laws of the Commonwealth of Massachusetts and the Federal law of the United States of America. To the extent that the Plan or any agreement issued thereunder provides that it should be governed by the laws of any jurisdiction other than the Commonwealth of Massachusetts, our opinion regarding the Shares is being rendered as if only the internal laws of the Commonwealth of Massachusetts were applicable thereto, notwithstanding the governing law provisions of the Plan, any agreement issued thereunder to the contrary or that the Company is a Texas corporation. We express no legal opinion upon any matter other than that explicitly addressed below, and our express opinion therein contained shall not be interpreted to be an implied opinion upon any other matter. Based upon and subject to the foregoing, we are of the opinion that the issuance of the Shares has been duly authorized and, when issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid, and non-assessable. We hereby consent to the reference to this firm in the Registration Statement and to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, BROWN, RUDNICK, FREED & GESMER, P.C. By: /s/ John G. Nossiff, Jr. ----------------------------------- John G. Nossiff, Jr., a Member JGN:SRL:MSG SCHEDULE A BROWN, RUDNICK, FREED & GESMER STANDARD ASSUMPTIONS In rendering legal opinions, Brown, Rudnick, Freed & Gesmer makes certain customary assumptions described below: 1. Each natural person executing any of the Documents has sufficient legal capacity to enter into such Documents. 2. Each Document is accurate, complete and authentic, each original is authentic, each copy conforms to an authentic original and all signatures are genuine. 3. All official public records are accurate, complete and properly indexed and filed. 4. There has not been any mutual mistake of fact or misunderstanding, fraud, duress, or undue influence by or among any of the parties to the Documents. 5. The conduct of the parties to the Documents has complied in the past and will comply in the future with any requirement of good faith, fair dealing and conscionability. 6. The Enumerated Party will obtain all permits and governmental approvals required in the future and take all actions similarly required relevant to its performance of its obligations under the Documents. 7. All parties to or bound by the Documents will act in accordance with, and will refrain from taking any action that is forbidden by, the terms and conditions of the Documents. 8. There are no agreements or understandings among the parties to or bound by the Documents, and there is no usage of trade or course of prior dealing among such parties, that would define, modify, waive, or qualify the terms of any of the Documents. EX-23.2 3 CONSENT OF KING, WEBER & ASSOCIATES, P.C. CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the ConSyGen, Inc. 2000 Combination Stock Option Plan of our report dated August 5, 1999 (except for Note 12, as to which the date is November 3, 1999) with respect to our audit of the consolidated financial statements of ConSyGen, Inc. (a Texas corporation) included in its Annual Report on Form 10-KSB and Form 10-KSB/A as of May 31, 1999 and for the year then ended May 31, 1999, filed with the Securities and Exchange Commission. /s/ King, Weber & Associates, P.C. Phoenix, Arizona May 2, 2000 EX-23.3 4 CONSENT OF WOLINETZ, GOTTLIEB & LAFAZAN, P.C. CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the ConSyGen, Inc. 2000 Combination Stock Option Plan of our report dated July 17, 1998 with respect to the consolidated statements of operations, changes in stockholders' equity (deficit) and cash flows for the year ended May 31, 1998 of ConSyGen, Inc. (a Texas corporation) included in its Annual Report on Form 10-KSB/A2 for the year ended May 31, 1999, filed with the Securities and Exchange Commission. /s/ WOLINETZ, GOTTLIEB & LAFAZAN, P.C. Rockville Centre, New York May 3, 2000 EX-99.1 5 2000 COMBINATION STOCK OPTION PLAN CONSYGEN, INC. 2000 COMBINATION STOCK OPTION PLAN SECTION I. PURPOSE OF THE PLAN. The purposes of this ConSyGen, Inc. 2000 Combination Stock Option Plan (the "2000 Plan") are (i) to provide long-term incentives and rewards to those key employees (the "Employee Participants") of ConSyGen, Inc., a Texas corporation (the "Corporation"), and its subsidiaries (if any), and any other persons (the "Non-employee Participants") who are in a position to contribute to the long-term success and growth of the Corporation and its subsidiaries, (ii) to assist the Corporation in retaining and attracting executives and key employees with requisite experience and ability, and (iii) to associate more closely the interests of such executives and key employees with those of the Corporation's stockholders. SECTION II. DEFINITIONS. "Code" is the Internal Revenue Code of 1986, as it may be amended from time to time. "Common Stock" is the common stock, $.003 par value, of the Corporation. "Committee" is defined in Section III, paragraph (a). "Corporation" is defined in Section I. "Corporation ISOs" are all stock options (including 2000 Plan ISOs) which (i) are Incentive Stock Options and (ii) are granted under any plans (including this 2000 Plan) of the Corporation, a Parent Corporation and/or a Subsidiary Corporation. "Employee Participants" is defined in Section I. "Fair Market Value" of any property is the value of the property as reasonably determined by the Committee. "Incentive Stock Option" is a stock option which is treated as an incentive stock option under Section 422 of the Code. "2000 Plan" is defined in Section I. "2000 Plan ISOs" are Stock Options which are Incentive Stock Options. "Non-employee Participants" is defined in Section I. "Non-qualified Option" is a Stock Option which does not qualify as an Incentive Stock Option or for which the Committee provides, in the terms of such option and at the time such option is granted, that the option shall not be treated as an Incentive Stock Option. "Parent Corporation" has the meaning provided in Section 424(e) of the Code. "Participants" are all persons who are either Employee Participants or Non-employee Participants. "Permanent and Total Disability" has the meaning provided in Section 22(e)(3) of the Code. "Rule 16b-3" means Securities and Exchange Commission Rule 16b-3. "Section 16" means Section 16 of the Securities Exchange Act of 1934, as amended, or any similar or successor statute, and any rules, regulations, or policies adopted or applied thereunder. "Stock Options" are rights granted pursuant to this 2000 Plan to purchase shares of Common Stock at a fixed price. "Subsidiary Corporation" has the meaning provided in Section 424(f) of the Code. "Ten Percent Stockholder" means, with respect to a 2000 Plan ISO, any individual who directly or indirectly owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Corporation or any Parent Corporation or any Subsidiary Corporation at the time such 2000 Plan ISO is granted. SECTION III. ADMINISTRATION. (a) THE COMMITTEE. This 2000 Plan shall be administered by the Board of Directors or by a compensation committee consisting solely of two or more "non-employee directors", as defined in Rule 16b-3, who shall be designated by the Board of Directors of the Corporation (the administering body is hereafter referred to as the "Committee"). The Committee shall serve at the pleasure of the Board of Directors, which may from time to time, and in its sole discretion, discharge any member, appoint additional new members in substitution for those previously appointed and/or fill vacancies however caused. A majority of the Committee shall constitute a quorum and the acts of a majority of the members present at any meeting at which a quorum is present shall be deemed the action of the Committee. No person shall be eligible to be a member of the Committee if that person's membership would prevent the plan from complying with Section 16, if applicable to the Corporation. (b) AUTHORITY AND DISCRETION OF THE COMMITTEE. Subject to the express provisions of this 2000 Plan and provided that all actions taken shall be consistent with the purposes of this 2000 Plan, and subject to ratification by the Board of Directors only if required by applicable law, the Committee shall have full and complete authority and the sole discretion to: (i) determine those persons who shall constitute key employees eligible to be Employee Participants; (ii) select the Participants to whom Stock Options shall be granted under this 2000 Plan; (iii) determine the size and the form of the Stock Options, if any, to be granted to any Participant; (iv) determine the time or times such Stock Options shall be granted including the grant of Stock Options in connection with other awards made, or compensation paid, to the Participant; (v) establish the terms and conditions upon which such Stock Options may be exercised and/or transferred, including the exercise of Stock Options in connection with other awards made, or compensation paid, to the Participant; (vi) make or alter any restrictions and conditions upon such Stock Options and the Stock received on exercise thereof, including, but not limited to, providing for limitations on the Participant's right to keep any Stock received on termination of employment; (vii) determine whether the Participant or the Corporation has achieved any goals or otherwise satisfied any conditions or requirements that may be imposed on or related to the exercise of Stock Options; and (viii) adopt such rules and regulations, establish, define and/or interpret these and any other terms and conditions, and make all determinations (which may be on a case-by-case basis) deemed necessary or desirable for the administration of this 2000 Plan. Notwithstanding any provision of this 2000 Plan to the contrary, only Employee Participants shall be eligible to receive 2000 Plan ISOs. (c) APPLICABLE LAW. This 2000 Plan and all Stock Options shall be governed by the law of the state in which the Corporation is incorporated. SECTION IV. TERMS OF STOCK OPTIONS. (a) AGREEMENTS. Stock Options shall be evidenced by a written agreement between the Corporation and the Participant awarded the Stock Option. This agreement shall be in such form, and contain such terms and conditions (not inconsistent with this 2000 Plan) as the Committee may determine. If the Stock Option described therein is not intended to be an Incentive Stock Option, but otherwise qualifies as an Incentive Stock Option, the agreement shall include the following or a similar statement: "This stock option is not intended to be an Incentive Stock Option, as that term is described in Section 422 of the Internal Revenue Code of 1986, as amended." (b) TERM. Stock Options shall be for such periods as may be determined by the Committee, provided that in the case of 2000 Plan ISOs, the term of any such 2000 Plan ISO shall not extend beyond three months after the time the Participant ceases to be an employee of the Corporation. Notwithstanding the foregoing, the Committee may provide in a 2000 Plan ISO that in the event of the Permanent and Total Disability or death of the Participant, the 2000 Plan ISO may be exercised by the Participant or his estate (if applicable) for a period of up to one year after the date of such Permanent and Total Disability or Death. In no event may a 2000 Plan ISO be exercisable (including provisions, if any, for exercise in installments) subsequent to ten years after the date of grant, or, in the case of 2000 Plan ISOs granted to Ten Percent Stockholders, more than five years after the date of grant. (c) PURCHASE PRICE. The purchase price of shares purchased pursuant to any Stock Option shall be determined by the Committee, and shall be paid by the Participant or other person permitted to exercise the Stock Option in full upon exercise, (i) in cash, (ii) by delivery of shares of Common Stock (valued at their Fair Market Value on the date of such exercise), (iii) any other property (valued at its Fair Market Value on the date of such exercise), or (iv) any combination of cash, stock and other property, with any payment made pursuant to subparagraphs (ii), (iii) or (iv) only as permitted by the Committee, in its sole discretion. In no event will the purchase price of Common Stock be less than the par value of the Common Stock. Furthermore, the purchase price of Common Stock subject to a 2000 Plan ISO shall not be less than the Fair Market Value of the Common Stock on the date of the issuance of the 2000 Plan ISO, provided that in the case of 2000 Plan ISOs granted to Ten Percent Stockholders, the purchase price shall not be less than 110% of the Fair Market Value of the Common Stock on the date of issuance of the 2000 Plan ISO. (d) FURTHER RESTRICTIONS AS TO INCENTIVE STOCK OPTIONS. To the extent that the aggregate Fair Market Value of Common Stock with respect to which Corporation ISOs (determined without regard to this section) are exercisable for the first time by any Employee Participant during any calendar year exceeds $100,000, such Corporation ISOs shall be treated as options which are not Incentive Stock Options. For the purpose of this limitation, options shall be taken into account in the order granted, and the Committee may designate that portion of any Corporation ISO that shall be treated as not an Incentive Stock Option in the event that the provisions of this paragraph apply to a portion of any option, unless otherwise required by the Code or regulations of the Internal Revenue Service. The designation described in the preceding sentence may be made at such time as the Committee considers appropriate, including after the issuance of the option or at the time of its exercise. For the purpose of this section, Fair Market Value shall be determined as of the time the option with respect to such stock is granted. (e) RESTRICTIONS. At the discretion of the Committee, the Common Stock issued pursuant to the Stock Options granted hereunder may be subject to restrictions on vesting or transferability. For the purposes of this limitation, options shall be taken into account in the order granted. (f) WITHHOLDING OF TAXES. Pursuant to applicable federal, state, local or foreign laws, the Corporation may be required to collect income or other taxes upon the grant of a Stock Option to, or exercise of a Stock Option by, a holder. The Corporation may require, as a condition to the exercise of a Stock Option, or demand, at such other time as it may consider appropriate, that the Participant pay the Corporation the amount of any taxes which the Corporation may determine is required to be withheld or collected, and the Participant shall comply with the requirement or demand of the Corporation. In its discretion, the Corporation may withhold shares to be received upon exercise of a Stock Option if it deems this an appropriate method for withholding or collecting taxes. (g) SECURITIES LAW COMPLIANCE. Upon exercise (or partial exercise) of a Stock Option, the Participant or other holder of the Stock Option shall make such representations and furnish such information as may, in the opinion of counsel for the Corporation, be appropriate to permit the Corporation to issue or transfer Stock in compliance with the provisions of applicable federal or state securities laws. The Corporation, in its discretion, may postpone the issuance and delivery of Stock upon any exercise of this Option until completion of such registration or other qualification of such shares under any federal or state laws, or stock exchange listing, as the Corporation may consider appropriate. Furthermore, the Corporation is not obligated to register or qualify the shares of Common Stock to be issued upon exercise of a Stock Option under federal or state securities laws (or to register or qualify them at any time thereafter), and it may refuse to issue such shares if, in its sole discretion, registration or exemption from registration is not practical or available. The Corporation may require that prior to the issuance or transfer of Stock upon exercise of a Stock Option, the Participant enter into a written agreement to comply with any restrictions on subsequent disposition that the Corporation deems necessary or advisable under any applicable federal and state securities laws. Certificates of Stock issued hereunder shall bear a legend reflecting such restrictions. (h) RIGHT TO STOCK OPTION. No employee of the Corporation or any other person shall have any claim or right to be a participant in this 2000 Plan or to be granted a Stock Option hereunder. Neither this 2000 Plan nor any action taken hereunder shall be construed as giving any person any right to be retained in the employ of the Corporation. Nothing contained hereunder shall be construed as giving any person any equity or interest of any kind in any assets of the Corporation or creating a trust of any kind or a fiduciary relationship of any kind between the Corporation and any such person. As to any claim for any unpaid amounts under this 2000 Plan, any person having a claim for payments shall be an unsecured creditor. (i) INDEMNITY. Neither the Board of Directors nor the Committee, nor any members of either, nor any employees of the Corporation or any parent, subsidiary, or other affiliate, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with their responsibilities with respect to this 2000 Plan, and the Corporation hereby agrees to indemnify the members of the Board of Directors, the members of the Committee, and the employees of the Corporation and its parent or subsidiaries in respect of any claim, loss, damage, or expense (including reasonable counsel fees) arising from any such act, omission, interpretation, construction or determination to the full extent permitted by law. (j) PARTICIPATION BY FOREIGNERS. Without amending this 2000 Plan, except to the extent required by the Code in the case of Incentive Stock Options, the Committee may modify grants made to participants who are foreign nationals or employed outside the United States so as to recognize differences in local law, tax policy, or custom. SECTION V. AMENDMENT AND TERMINATION: ADJUSTMENTS UPON CHANGES IN STOCK. The Board of Directors of the Corporation may at any time, and from time to time, amend, suspend or terminate this 2000 Plan or any portion thereof, provided that no amendment shall be made without approval of the Corporation's stockholders if such approval is necessary to comply with any applicable tax requirement, any applicable rules or regulations of the Securities and Exchange Commission, including Rule 16b-3 (or any successor rule thereunder), or the rules and regulations of any exchange or stock market on which the Corporation's securities are listed or quoted. Except as provided herein, no amendment, suspension or termination of this 2000 Plan may affect the rights of a Participant to whom a Stock Option has been granted without such Participant's consent. The Committee is specifically authorized to convert, in its discretion, the unexercised portion of any 2000 Plan ISO granted to an Employee Participant to a Non-qualified Option at any time prior to the exercise, in full, of such 2000 Plan ISO. If there shall be any change in the Common Stock or to any Stock Option granted under this 2000 Plan through merger, consolidation, reorganization, recapitalization, stock dividend, stock split or other change in the corporate structure of the Corporation, appropriate adjustments may be made by the Committee (or if the Corporation is not the surviving corporation in any such transaction, the Board of Directors of the surviving corporation, or its designee) in the aggregate number and kind of shares subject to this 2000 Plan, and the number and kind of shares and the price per share subject to outstanding options, provided that such adjustment does not affect the qualification of any 2000 Plan ISO as an Incentive Stock Option. In connection with the foregoing, the Committee may issue new Stock Options in exchange for outstanding Stock Options. SECTION VI. SHARES OF STOCK SUBJECT TO THE PLAN. The number of shares of Common Stock that may be the subject of awards under this 2000 Plan shall not exceed an aggregate of 5,000,000 shares. Shares to be delivered under this 2000 Plan may be either authorized but unissued shares of Common Stock or treasury shares. Any shares subject to an option hereunder which for any reason terminates, is canceled or otherwise expires unexercised, and any shares reacquired by the Corporation due to restrictions imposed on the shares, shares returned because payment is made hereunder in stock of equivalent value rather than in cash, and/or shares reacquired from a recipient for any other reason shall, at such time, no longer count towards the aggregate number of shares which have been the subject of Stock Options issued hereunder, and such number of shares shall be subject to further awards under this 2000 Plan, provided, first, that the total number of shares then eligible for award under this 2000 Plan may not exceed the total specified in the first sentence of this Section VI, and second, that the number of shares subject to further awards shall not be increased in any way that would cause this 2000 Plan or any Stock Option to not comply with Section 16, if applicable to the Corporation. SECTION VII. EFFECTIVE DATE AND TERM OF THIS PLAN. The effective date of this 2000 Plan is April 12, 2000 (the "Effective Date") and awards under this 2000 Plan may be made for a period of ten years commencing on the Effective Date. The period during which a Stock Option may be exercised may extend beyond that time as provided herein. DATE OF APPROVAL BY BOARD OF DIRECTORS: As of April 12, 2000 -----END PRIVACY-ENHANCED MESSAGE-----