-----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, AQz9jtpasVY93PQid742eF5gFCQJM+ZJQBS0xUp+5gqu0Fvlj7xuP8f3wbbOUoAJ 2MIqsnkYpKTkBwrZEGw1Pw== 0000950152-97-008140.txt : 19971118 0000950152-97-008140.hdr.sgml : 19971118 ACCESSION NUMBER: 0000950152-97-008140 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 20 FILED AS OF DATE: 19971117 EFFECTIVENESS DATE: 19971117 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SECURFONE AMERICA INC CENTRAL INDEX KEY: 0000929425 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL INSTRUMENTS FOR MEASUREMENT, DISPLAY, AND CONTROL [3823] IRS NUMBER: 954622822 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-40379 FILM NUMBER: 97722857 BUSINESS ADDRESS: STREET 1: 11835 WEST OLYMPIC BLVD STREET 2: EAST TOWER STE 705 CITY: LOS ANGELES STATE: CA ZIP: 90064 BUSINESS PHONE: 3102085589 MAIL ADDRESS: STREET 1: 11835 WEST OLYMPIC BLVD STREET 2: EAST TOWER STE 705 CITY: LOS ANGELES STATE: CA ZIP: 90064 FORMER COMPANY: FORMER CONFORMED NAME: MATERIAL TECHNOLOGY INC DATE OF NAME CHANGE: 19970326 FORMER COMPANY: FORMER CONFORMED NAME: MATERIAL TECHNOLOGIES INC DATE OF NAME CHANGE: 19970313 S-8 1 SECURFONE AMERICA, INC. S-8 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SECURFONE AMERICA, INC. (Exact Name of Registrant as Specified in its Charter) DELAWARE 954453386 (State of Incorporation) (I.R.S. Employer Identification No.) 5850 OBERLIN DRIVE, SUITE 220, SAN DIEGO, CALIFORNIA 92121 (Address of Principal Executive Offices) (Zip Code) SECURFONE AMERICA, INC. 1997 STOCK OPTION PLAN SECURFONE AMERICA, INC. 1997 DIRECTORS' STOCK OPTION PLAN EMPLOYMENT AGREEMENT WITH DEREK DAVIS RETAINER AGREEMENTS WITH JENNIFER GRIFFITH, MICHAEL R. LEE, GREGORY F. LEPORE, STEPHANIE MARUSIAK, AMY J. PIPOLY, AND STEVEN L. WASSERMAN CONSULTING AGREEMENTS WITH ROBERT M. BERNSTEIN, E.B. ADVISORY LIMITED, AL JUGO, AND TERRI A. WELLES FEE AGREEMENTS WITH DILL, DILL, CARR, STONBRAKER & HUTCHINGS, P.C., AND KOHRMAN JACKSON & KRANTZ P.L.L. (Full Title of the Plans) Copy to: WILLIAM P. STUEBER II, PRESIDENT STEVEN L. WASSERMAN, ESQ. SECURFONE AMERICA, INC. KOHRMAN JACKSON & KRANTZ P.L.L. 5850 OBERLIN DRIVE, SUITE 220 20TH FLOOR ONE CLEVELAND CENTER SAN DIEGO, CALIFORNIA 92121 CLEVELAND, OHIO 44114 619-677-5580 216-736-7220 (Name, Address and Telephone Number, of Agent for Service) 2
Calculation of Registration Fee ========================================================================================================================== Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price Aggregate Offering Amount of to be Registered Registered(1) per Share(2) Price(2) Registration Fee ========================================================================================================================== Common Stock 100,000 Shares(3) $ 1.00 $ 100,000 $ 30.30 Common Stock 900,000 Shares(4) $ 6.00(5) $5,400,000 $1,636.20 Common Stock 200,000 Shares(6) $ 1.00 $ 200,000 $ 60.60 Common Stock 50,000 Shares(7) $ 6.00(5) $ 300,000 $ 90.90 Common Stock 20,000 Shares(8) $ 6.00(5) $ 120,000 $ 36.36 Common Stock 50,000 Shares(9) $ 6.00(5) $ 300,000 $ 90.90 Common Stock 515,000 Shares(10) $ 6.00(5) $3,090,000 $ 936.27 Common Stock 130,900 Shares(11) $ 2.50 $ 327,250 $ 99.16 Common Stock 10,000 Shares(12) $ 6.00(5) $ 60,000 $ 18.18 Common Stock 25,000 Shares(13) $ 2.50 $ 62,500 $ 18.94 TOTAL: 2,000,900 Shares $3,017.81 ========================================================================================================================== 1 Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement covers, in addition to the number of shares of Class A Common Stock, par value $0.001 per share (the "Common Stock"), stated above, an indeterminant number of shares of Common Stock that may be issued upon exercise of options granted under the Registrant's 1997 Stock Option Plan (the "1997 Plan") and 1997 Directors' Stock Option Plan (the "Directors' Plan"), as a result of the adjustment provisions thereof. 2 Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933. 3 Shares issuable upon the exercise of outstanding options under the 1997 Plan. 4 Shares for which options have not yet been granted under to the 1997 Plan. 5 The average of the high and low price of the Common Stock on November 10, 1997 as reported on the Nasdaq OTC Bulletin Board.(R) 6 Shares issuable upon exercise of outstanding options under the Directors' Plan. 7 Shares for which options have not yet been granted under to the 1997 Directors' Plan. 8 Shares issuable pursuant to an Employment Agreement between the Registrant and Derek Davis. 9 Shares issuable pursuant to Retainer Agreements between the Registrant and Jennifer Griffith, Michael R. Lee, Gregory F. Lepore, Stephanie Marusiak, Amy J. Pipoly and Steven L. Wasserman. 10 Shares issuable pursuant to Consulting Agreements between the Registrant and E.B. Advisory Limited, Al Jugo, and Terri A. Welles. 11 Shares issuable under options to be granted pursuant to a Consulting Agreement between the Registrant and Robert M. Bernstein. 12 Shares issuable pursuant to a Fee Agreement between the Registrant and Dill, Dill, Carr, Stonbraker & Hutchings, P.C. 13 Shares issuable pursuant to a Fee Agreement between the Registrant and Kohrman Jackson & Krantz P.L.L.
3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by SecurFone America, Inc., a Delaware corporation previously known as Material Technology, Inc. (the "Company"), with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference in this Registration Statement: (a) (1) The Annual Report on Form 10-K of Material Technology, Inc. for the fiscal year ended December 31, 1996 as amended by Amendments No. 1 and 2. (2) The Quarterly Reports on Form 10-Q of Material Technology, Inc. for the quarterly periods ended March 31, 1997 and June 30, 1997 and of SecurFone America, Inc. for the quarterly period September 30, 1997. (3) The Information Statement of Material Technology, Inc. filed June 11, 1997 (File No. 033-83526) with the Commission pursuant to Section 14(c) of the Exchange Act. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as amended (the "Exchange Act"), since the end of the latest fiscal year covered by the Annual Report referred to in (a) (1) above; and (c) The description of the Company's Class A Common Stock, par value $0.001 per share (the "Common Stock"), contained in the Registration Statement of Material Technology, Inc. on Form S-1 filed March 19, 1997 (File No. 333-23617) with the Commission pursuant to Section 12(g) of the Exchange Act (there being no further amendment or report filed for the purpose of updating such description). All documents hereafter filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment hereto 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 of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The law firm of Kohrman Jackson & Krantz P.L.L., Cleveland, Ohio ("KJK"), performs legal services for the Company and is providing the opinion attached to this Registration Statement as Exhibit 5.1. The Company has agreed to issue 25,000 shares of Common Stock to KJK for the II-1 4 performance of legal services. Steven L. Wasserman, Secretary and a director of the Company, is an attorney and a partner in KJK. The Company has agreed to issue 10,000 shares of Common Stock to Mr. Wasserman for serving as Secretary of the Company. In addition, Mr. Wasserman was granted an option to purchase 50,000 shares of Common Stock at an option price of $1.00 per share under the Company's 1997 Directors' Stock Option Plan. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Certain statutes and Articles 6 and 7 of the Company's Amended and Restated Certificate of Incorporation and Article VII of the Company's Bylaws, provide that, in certain cases, the liability of each director shall be limited and each officer and director and controlling person of the Company shall be indemnified by the Company against certain costs, expenses and liabilities which he may incur in his capacity as such. Accordingly, the liability of such persons may be affected as a result. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS 4.1 SecurFone America, Inc. 1997 Stock Option Plan 4.2 SecurFone America, Inc. 1997 Directors' Stock Option Plan 4.3 Employment Agreement dated October 24, 1997 between the Company and Derek Davis 4.4 Retainer Agreement between the Company and Jennifer Griffith 4.5 Retainer Agreement between the Company and Michael R. Lee 4.6 Retainer Agreement between the Company and Gregory F. Lepore, Esq. 4.7 Retainer Agreement between the Company and Stephanie Marusiak 4.8 Retainer Agreement between the Company and Amy J. Pipoly 4.9 Retainer Agreement dated July 1, 1996 between the Company and Steven L. Wasserman 4.10 Consulting Agreement dated February 18, 1997 between the Company and Robert M. Bernstein 4.11 Consulting Agreement dated August 1, 1996 between the Company and E.B. Advisory Limited 4.12 Consulting Agreement dated November 11, 1996 between the Company and Al Jugo II-2 5 4.13 Consulting Agreement dated October 1, 1997 between the Company and Terri A. Welles 4.14 Fee Arrangement dated July 11, 1997 between Dill, Dill, Carr, Stonbraker & Hutchings, P.C. and the Company (the "Fee Agreement") 4.15 Addendum to the Fee Agreement dated October 13, 1997 between Dill, Dill, Carr, Stonbraker & Hutchings, P.C. and the Company 4.16 Fee Agreement dated August 1, 1996 between Kohrman Jackson & Krantz P.L.L. and the Company 5.1 Opinion of Kohrman Jackson & Krantz P.L.L. 23.1 Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion filed as Exhibit 5.1) 23.2 Consent of Conte Co., CPA, Inc. 23.3 Consent of Jonathon P. Reuben, CPA 24.1 Power of Attorney (included on signature page) ITEM 9. UNDERTAKINGS (a) The Company undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission II-3 6 by the Company pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be 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. (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 Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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) The Company hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. (d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Act and will be governed by the final adjudication of such issue. II-4 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company 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 San Diego, State of California, on November 13, 1997. SECURFONE AMERICA, INC. /S/ WILLIAM P. STUEBER II ------------------------------------ By William P. Stueber II, President POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Steven L. Wasserman his true and lawful attorney-in-fact and agent, with full power of substitution and revocation, to sign on his behalf, individually and in each capacity stated below, all amendments and post-effective amendments to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto and any other documents in connection therewith, with the Securities and Exchange Commission under the Securities Act of 1933, granting such attorney-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming each act that such attorney-in-fact may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
NAME TITLE DATE /S/ WILLIAM P. STUEBER II Chief Executive Officer and Director November 13, 1997 - ------------------------------ William P. Stueber II /S/ MICHAEL R. LEE Principal Financial and Accounting November 5, 1997 - ------------------------------ Officer and Director Michael R. Lee /S/ MICHAEL GRAND Director November 13, 1997 - ------------------------------ Michael Grand /S/ DEREK DAVIS Vice President and Director November 13, 1997 - ------------------------------ Derek Davis /S/ STEVEN L. WASSERMAN Director November 13, 1997 - ------------------------------ Steven L. Wasserman
II-5 8 EXHIBIT INDEX 4.1 SecurFone America, Inc. 1997 Stock Option Plan 4.2 SecurFone America, Inc. 1997 Directors' Stock Option Plan 4.3 Employment Agreement dated October 24, 1997 between the Company and Derek Davis 4.4 Retainer Agreement between the Company and Jennifer Griffith 4.5 Retainer Agreement between the Company and Michael R. Lee 4.6 Retainer Agreement between the Company and Gregory F. Lepore, Esq. 4.7 Retainer Agreement between the Company and Stephanie Marusiak 4.8 Retainer Agreement between the Company and Amy J. Pipoly 4.9 Retainer Agreement dated July 1, 1996 between the Company and Steven L. Wasserman 4.10 Consulting Agreement dated February 18, 1997 between the Company and Robert M. Berstein 4.11 Consulting Agreement dated August 1, 1996 between the Company and E.B. Advisory Limited 4.12 Consulting Agreement dated November 11, 1996 between the Company and Al Jugo 4.13 Consulting Agreement dated October 1, 1997 between the Company and Terri A. Welles 4.14 Fee Arrangement dated July 11, 1997 between Dill, Dill, Carr, Stonbraker & Hutchings, P.C. and the Company (the "Fee Agreement") 4.15 Addendum to the Fee Agreement dated October 13, 1997 between Dill, Dill, Carr, Stonbraker & Hutchings, P.C. and the Company 4.16 Fee Agreement dated August 1, 1996 between Kohrman Jackson & Krantz P.L.L. and the Company 5.1 Opinion of Kohrman Jackson & Krantz P.L.L. 23.1 Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion filed as Exhibit 5.1) 23.2 Consent of Conte Co., CPA, Inc. 23.3 Consent of Jonathon P. Reuben, CPA 24.1 Power of Attorney (included on signature page) EX-4.1 2 EXHIBIT 4.1 1 Exhibit 4.1 SECURFONE AMERICA, INC. 1997 STOCK OPTION PLAN 2
SECURFONE AMERICA, INC. 1997 STOCK OPTION PLAN TABLE OF CONTENTS ----------------- Page ---- 1. Purpose.......................................................................................1 2. Definitions...................................................................................1 3. Shares Available under the Plan...............................................................3 4. Option Rights.................................................................................3 5. Transferability...............................................................................4 6. Adjustments...................................................................................5 7. Fractional Shares.............................................................................5 8. Withholding Taxes.............................................................................5 9. Participation by Employees or Consultants of a Less-Than-80-Percent Subsidiary................5 10. Certain Terminations of Employment or Other Services, Hardship and Approved Leaves of Absence....................................................................6 11. Foreign Participants..........................................................................6 12. Administration of the Plan....................................................................6 13. Amendments and Other Matters..................................................................7 14. Termination of the Plan.......................................................................7
i 3 - ------------------------------------------------------------------------------- SECURFONE AMERICA, INC. 1997 STOCK OPTION PLAN (August 27, 1997) - -------------------------------------------------------------------------------- 1. PURPOSE. The purpose of this Plan is to attract and retain key employees of, and advisors and consultants providing valuable services to, Securfone America, Inc., a Delaware corporation (the "Corporation"), and its Subsidiaries and to provide such persons with incentives and rewards for superior performance. 2. DEFINITIONS. As used in this Plan, "BOARD" means the Board of Directors of the Corporation. "CODE" means the Internal Revenue Code of 1986, as amended from time to time. "COMMITTEE" means the committee described in Section 12(a) of this Plan. "COMMON STOCK" means (i) shares of the common stock, par value $.001 per share, of the Corporation and (ii) any security into which shares of Common Stock may be converted by reason of any transaction or event of the type referred to in Section 6 of this Plan. "DATE OF GRANT" means the date specified by the Board on which a grant of Option Rights shall become effective, which shall not be earlier than the date as of which the Board takes action with respect thereto. "INCENTIVE STOCK OPTION" means an Option Right that is intended to qualify as an "incentive stock option" under Section 422 of the Code or any successor provision. "LESS-THAN-80-PERCENT SUBSIDIARY" means a Subsidiary with respect to which the Corporation directly or indirectly owns or controls less than 80 percent of the total combined voting or other decision-making power. "MARKET VALUE PER SHARE" on any date of reference shall be the "Closing Price" (as defined below) of the Common Stock on the business day immediately preceding such date. For the purpose of determining Market Value per Share, the "Closing Price" of the Common Stock on any business day shall be (i) if the Common Stock is listed or admitted for trading on any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the last reported sale price of Common Stock on such exchange or reporting system, as reported in any newspaper of general circulation, (ii) if the Common Stock is quoted on the National Association of Securities Dealers Automated Quotations ("NASDAQ") System, or any similar system of automated dissemination of quotations of securities prices in 1 4 common use, the mean between the closing high bid and low asked quotations for such day of Common Stock on such system, or (iii) if neither clause (i) or (ii) is applicable, the mean between the high bid and low asked quotations for the Common Stock as reported by the National Quotation Bureau, Incorporated if at least two securities dealers have inserted both bid and asked quotations for Common Stock on at least five of the ten preceding days. If none of clauses (i), (ii) or (iii) is applicable, the Market Value per Share shall be the price at which one could reasonably expect a share of Common Stock to be sold in an arm's length transaction, for cash, other than on an installment basis, to a person not employed by, controlled by, in control of or under common control with the Company. Such Market Value shall be that which has currently or most recently been determined for this purpose by the Board, or at the discretion of the Board by an independent appraiser or appraisers selected by the Board, in either case giving due consideration to recent transactions involving shares of Common Stock, if any, the issuer's net worth, prospective earning power and dividend-paying capacity, the goodwill of the issuer's business, the issuer's industry position and its management, that industry's economic outlook, the values of securities of issuers whose stock is publicly traded and which are engaged in similar businesses, the effect of transfer restrictions to which the Common Stock may be subject under law and under the applicable terms of any contract governing such stock, the absence of a public market for the Common Stock and such other matters as the Board or its appraiser or appraisers deem pertinent. The determination by the Board or its appraiser or appraisers of the Market Value shall, if not unreasonable, be conclusive and binding notwithstanding the possibility that other persons might make a different, and also reasonable, determination. If the Market Value to be used was thus fixed more than sixteen months prior to the day as of which Market Value is being determined, it shall in any event be no less than the book value of the Common Stock at the end of the most recent period for which financial statements of the issuer are available. "NONQUALIFIED OPTION" means an Option Right that is not intended to qualify as a Tax-Qualified Option. "OPTIONEE" means the person so designated in an agreement evidencing an outstanding Option Right. "OPTION PRICE" means the purchase price payable upon the exercise of an Option Right. "OPTION RIGHT" means the right to purchase shares of Common Stock from the Corporation upon the exercise of a Nonqualified Option or a Tax-Qualified Option granted pursuant to Section 4 of this Plan. "PARTICIPANT" means a person who is selected by the Board to receive benefits under this Plan and (i) is at that time a key employee (including, without limitation, a key employee who is also a member of the Board), advisor or consultant of the Corporation or any Subsidiary or (ii) has agreed to commence serving in any such capacity. "RULE 16b-3" means Rule 16b-3 under the Securities Exchange Act of 1934 or any successor rule to the same effect. 2 5 "SUBSIDIARY" means a corporation, partnership, joint venture, unincorporated association or other entity in which the Corporation has a direct or indirect ownership or other equity interest; provided, however, for purposes of determining whether any person may be a Participant for purposes of any grant of Incentive Stock Options, "Subsidiary" means any corporation in which the Corporation owns or controls directly or indirectly more than 50 percent of the total combined voting power represented by all classes of stock issued by such corporation at the time of the grant. "TAX-QUALIFIED OPTION" means an Option Right that is intended to qualify under particular provisions of the Code, including without limitation an Incentive Stock Option. 3. SHARES AVAILABLE UNDER THE PLAN. Subject to adjustment as provided in Section 6 of this Plan, the number of shares of Common Stock issued or transferred and covered by outstanding Option Rights granted under this Plan shall not in the aggregate exceed 1,000,000 shares of Common Stock, which may be shares of Common Stock of original issuance or shares of Common Stock held in treasury or a combination thereof. For the purposes of this Section 3, shares of Common Stock covered by any Option Rights granted under this Plan shall be deemed to have been issued or transferred, and shall cease to be available for future issuance or transfer in respect of any other Option Rights granted hereunder, at the earlier of the time when they are actually issued or transferred or the time when dividend equivalents are paid thereon. 4. OPTION RIGHTS. The Committee may from time to time authorize grants to Participants of options to purchase shares of Common Stock upon such terms and conditions as the Committee may determine in accordance with the following provisions: (a) Each grant shall specify the number of shares of Common Stock to which it pertains; provided, however, that no Participant shall be granted Incentive Stock Options to purchase shares of Common Stock with an aggregate market value in excess of $100,000 in any one fiscal year of the Corporation. (b) Each grant shall specify an Option Price per Common Share, which, in the case of cash Incentive Stock Option, shall be equal to or greater than the Market Value per Share on the Date of Grant. (c) Each grant shall specify the form of consideration to be paid in satisfaction of the Option Price and the manner of payment of such consideration, which may include (i) cash in the form of currency or check or other cash equivalent acceptable to the Corporation, (ii) nonforfeitable, unrestricted shares of Common Stock, which are already owned by the Optionee and have a value at the time of exercise that is equal to the Option Price, (iii) any other legal consideration that the Committee may deem appropriate (including, without limitation, any form of consideration authorized under Section 4(d) below) on such basis as the Committee may determine in accordance with this Plan and (iv) any combination of the foregoing. (d) On or after the Date of Grant of any Nonqualified Option, the Committee may determine that payment of the Option Price may also be made in whole or in part in the form of shares of Common Stock that are subject to risk of forfeiture or restrictions on transfer. Unless otherwise determined by the Committee on or after the Date of Grant, whenever any Option Price 3 6 is paid in whole or in part by means of the form of consideration specified in this Section 4(d), the shares of Common Stock received by the Optionee upon the exercise of the Nonqualified Option shall be subject to the same risk of forfeiture or restrictions on transfer as those that applied to the consideration surrendered by the Optionee; provided, however, that any such risk of forfeiture or restrictions on transfer shall apply only to the same number of shares of Common Stock received by the Optionee as applied to the forfeitable or restricted shares of Common Stock surrendered by the Optionee. (e) Any grant may provide for deferred payment of the Option Price from the proceeds of sale through a broker of some or all of the shares of Common Stock to which the exercise relates. (f) Successive grants may be made to the same Participant regardless of whether any Option Rights previously granted to the Participant remain unexercised. (g) Each grant shall specify the period or periods of continuous service as a key employee, officer or consultant by the Optionee to the Corporation or any Subsidiary that are necessary before the Option Rights or installments thereof shall become exercisable, and any grant may provide for the earlier exercise of the Option Rights in the event of a change in control of the Corporation or other similar transaction or event. (h) Option Rights granted pursuant to this Section 4 may be Nonqualified Options or Tax-Qualified Options or combinations thereof. (i) Any grant of a Nonqualified Option may provide for the payment to the Optionee of dividend equivalents thereon in cash or shares of Common Stock on a current, deferred or contingent basis or may provide that any dividend equivalents shall be credited against the Option Price. (j) No Option Right granted pursuant to this Section 4 may be exercised more than 10 years from the Date of Grant. (k) Each grant shall be evidenced by an agreement, which shall be executed on behalf of the Corporation by an officer thereof and delivered to and accepted by the Optionee and shall contain such terms and provisions as the Board may determine consistent with this Plan. 5. TRANSFERABILITY. (a) No Option Right or other "derivative security" (as that term is used in Rule 16b-3) granted under this Plan may be transferred by a Participant except by will or the laws of descent and distribution. Option Rights may not be exercised during a Participant's lifetime except by the Participant or, in the event of the Participant's legal incapacity, by his guardian or legal representative acting in a fiduciary capacity on behalf of the Participant under state law and court supervision. (b) Any grant of Option Rights made under this Plan may provide that all or any part of the shares of Common Stock that are to be issued or transferred by the Corporation upon the exercise thereof shall be subject to further restrictions upon transfer. 4 7 6. ADJUSTMENTS. The Committee may make or provide for such adjustments in the number of shares of Common Stock covered by outstanding Option Rights, the Option Prices per Common Share applicable thereto, and the kind of shares (including shares of another issuer) covered thereby, as the Committee may in good faith determine to be equitably required in order to prevent dilution or expansion of the rights of Participants that otherwise would result from (i) any stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Corporation or (ii) any merger, consolidation, spin-off, spin-out, split-off, split-up, reorganization, partial or complete liquidation or other distribution of assets, issuance of warrants or other rights to purchase securities or (iii) any corporate transaction or event having an effect similar to any of the foregoing. In the event of any such transaction or event, the Committee may provide in substitution for any or all outstanding Option Rights under this Plan such alternative consideration as it may in good faith determine to be equitable under the circumstances and may require in connection therewith the surrender of all Option Rights so replaced. Moreover, the Committee may on or after the Date of Grant provide in the agreement evidencing any grant of Option Rights under this Plan that the Optionee may elect to receive an equivalent award in respect of securities of the surviving entity of any merger, consolidation or other transaction or event having a similar effect, or the Committee may provide that the Optionee will automatically be entitled to receive such an equivalent award. The Committee may also make or provide for such adjustments in the number of shares of Common Stock specified in Section 3, and the number of shares of Common Stock specified in Section 4(a), of this Plan as the Committee may in good faith determine to be appropriate in order to reflect any transaction or event described in this Section 6. 7. FRACTIONAL SHARES. The Corporation shall not be required to issue any fractional shares of Common Stock pursuant to this Plan. The Committee may provide for the elimination of fractions or for the settlement thereof in cash. 8. WITHHOLDING TAXES. To the extent that the Corporation is required to withhold federal, state, local or foreign taxes in connection with any payment made or benefit realized by a Participant or other person under this Plan, and the amounts available to the Corporation for the withholding are insufficient, it shall be a condition to the receipt of any such payment or the realization of any such benefit that the Participant or such other person make arrangements satisfactory to the Corporation for payment of the balance of any taxes required to be withheld. At the discretion of the Committee, any such arrangements may include relinquishment of a portion of any such payment or benefit. The Corporation and any Participant or such other person may also make similar arrangements with respect to the payment of any taxes with respect to which withholding is not required. 9. PARTICIPATION BY EMPLOYEES OR CONSULTANTS OF A LESS-THAN-80-PERCENT SUBSIDIARY. As a condition to the effectiveness of any grant of Option Rights to be made hereunder to a Participant who is an employee or consultant of a Less-Than-80-Percent Subsidiary, regardless of whether the Participant is also employed or engaged as a consultant by the Corporation or another Subsidiary, the Committee may require the Less-Than-80-Percent Subsidiary to agree to transfer to the Participant (as, if and when provided for under this Plan and any applicable agreement entered into between the Participant and the Less-Than-80-Percent Subsidiary pursuant to this Plan) the shares of Common Stock that would otherwise be delivered by the Corporation upon receipt by the Less-Than-80-Percent Subsidiary of any consideration then otherwise payable by the Participant to the Corporation. Any such grant of Option Rights may be evidenced by an agreement between the 5 8 Participant and the Less-Than-80-Percent Subsidiary, in lieu of the Corporation, on terms consistent with this Plan and approved by the Committee and so delivered by or to a Less-Than-80-Percent Subsidiary will be treated as if they had been delivered by or to the Corporation for purposes of Section 3 of this Plan, and all references to the Corporation in this Plan shall be deemed to refer to the Less-Than-80-Percent Subsidiary except with respect to the definitions of the Board and the Committee and in other cases where the context otherwise requires. 10. CERTAIN TERMINATIONS OF EMPLOYMENT OR OTHER SERVICES, HARDSHIP AND APPROVED LEAVES OF ABSENCE. Notwithstanding any other provision of this Plan to the contrary, in the event of termination of employment or service as an employee, officer, advisor or consultant by reason of death, disability, normal retirement, or early retirement with the consent of the Corporation, termination of employment or service as an employee, officer, advisor or consultant to enter public service with the consent of the Corporation or leave of absence approved by the Corporation, or in the event of hardship or other special circumstances, of a Participant who holds an Option Right that is not immediately and fully exercisable or any shares of Common Share that are subject to any transfer restriction pursuant to Section 5(b) of this Plan, the Committee may take any action that it deems to be equitable under the circumstances or in the best interests of the Corporation, including without limitation waiving or modifying any limitation or requirement with respect to any grant of Option Rights under this Plan. 11. FOREIGN PARTICIPANTS. In order to facilitate the making of any grant of Option Rights under this Plan, the Committee may provide for such special terms for grants of Option Rights to Participants who are foreign nationals, or who are employed or engaged as consultants by the Corporation or any Subsidiary outside of the United States of America, as the Committee may consider necessary or appropriate to accommodate differences in local tax, tax policy or custom. Moreover, the Committee may approve such supplements to, or amendments, restatements or alternative versions of, this Plan as it may consider necessary or appropriate for such purposes without thereby affecting the terms of this Plan as in effect for any other purpose; provided, however, that in no such supplements, amendments, restatements or alternative versions shall include any provisions that are inconsistent with the terms of this Plan, as then in effect, unless this Plan could have been amended to eliminate the inconsistency without further approval by the stockholders of the Corporation. 12. ADMINISTRATION OF THE PLAN. (a) This Plan shall be administered by a committee of not less than two members of the Board, each of whom shall be a "disinterested person" within the meaning of Rule 16b-3. A majority of the members of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved in writing by the members of the Committee, shall be the acts of the Committee. (b) The interpretation and construction by the Committee of any provision of this Plan or any agreement, notification or document evidencing a grant of Option Rights, and any determination by the Committee pursuant to any provision of this Plan or any such agreement, notification or document, shall be final and conclusive. No member of the Committee shall be liable for any such action taken or determination made in good faith. 6 9 13. AMENDMENTS AND OTHER MATTERS. (a) This Plan may be amended from time to time by the Committee; provided, however, that except as expressly authorized by this Plan, no such amendment shall increase the number of shares of Common Stock specified in Section 3 of this Plan, increase the number of shares of Common Stock specified in Section 4(a) of this Plan, or otherwise cause this Plan to cease to satisfy any applicable condition of Rule 16b-3, without the further approval of the stockholders of the Corporation. (b) With the concurrence of the affected Optionee, the Committee may cancel any agreement evidencing Option Rights granted under this Plan. In the event of any such cancellation, the Committee may authorize the granting of new Option Rights hereunder, which may or may not cover the same number of shares of Common Stock as had been covered by the cancelled Option Rights, at such Option Price, in such manner and subject to such other terms, conditions and discretion as would have been permitted under this Plan had the cancelled Option Rights not been granted. (c) This Plan shall not confer upon any Participant any right with respect to continuance of employment or other service with the Corporation or any Subsidiary and shall not interfere in any way with any right that the Corporation or any Subsidiary would otherwise have to terminate any Participant's employment or other service at any time. (d) (i) To the extent that any provision of this Plan would prevent any Option Right that was intended to qualify as a Tax-Qualified Option from so qualifying, any such provision shall be null and void with respect to any such Option Right; provided, however, that any such provision shall remain in effect with respect to other Option Rights, and there shall be no further effect on any provision of this Plan. (ii) Any award that may be made pursuant to an amendment to this Plan that shall have been adopted without the approval of the stockholders of the Corporation shall be null and void if it is subsequently determined that such approval was required in order for this Plan to continue to satisfy the applicable conditions of Rule 16b-3. 14. TERMINATION OF THE PLAN. No further awards shall be granted under this Plan after the passage of 10 years from the date on which this Plan is first approved by the stockholders of the Corporation. 7 EX-4.2 3 EXHIBIT 4.2 1 Exhibit 4.2 SECURFONE AMERICA, INC. 1997 DIRECTORS' STOCK OPTION PLAN 2 TABLE OF CONTENTS
Page ---- 1. Purpose.....................................................................1 2. Definitions.................................................................1 3. Shares and Options..........................................................3 4. Conditions for Grant of Options.............................................3 5. Option Grants...............................................................3 6. Exercise of Options.........................................................3 7. Exercisability of Options...................................................4 8. Termination of Option Period................................................4 9. Adjustment of Shares........................................................4 10. Transferability of Options..................................................5 11. Administration of the Plan..................................................5 12. Interpretation..............................................................5 13. Amendment and Discontinuation of the Plan...................................6 14. Effective Date and Termination Date.........................................6
i 3 - -------------------------------------------------------------------------------- SECURFONE AMERICA, INC. 1997 DIRECTORS' STOCK OPTION PLAN (August 27, 1997) - ------------------------------------------------------------------------------- 1. PURPOSE. The purpose of this Plan is to advance the interests of SECURFONE AMERICA, INC., a Delaware corporation (the "Company"), by providing additional incentive to attract and retain qualified and competent Directors upon whose efforts and judgment the success of the Company is largely dependent, by encouraging such persons to own stock in the Company. 2. DEFINITIONS. As used herein, the following terms shall have the meanings indicated: (a) "BOARD" shall mean the Board of Directors of the Company. (b) "CODE" shall mean the Internal Revenue Code of 1986, as amended. (c) "COMMITTEE" shall mean the stock option committee described in Section 11 hereof. (d) "COMMON STOCK" shall mean the Company's Common Stock, par value $.001 per share. (e) "DIRECTOR" shall mean a member of the Board. (f) "DISINTERESTED PERSON" shall mean a Director who is not, during the one year prior to his or her service as an administrator of this Plan or any other stock option plan of the Company, or during such service, granted or awarded equity securities pursuant to this Plan or any other plan of the Company or any of its affiliates, except that: (i) participation in a formula plan meeting the conditions in paragraph (c)(2)(ii) of Rule 16b-3 promulgated under the Securities Exchange Act shall not disqualify a Director from being a Disinterested Person; (ii) participation in an ongoing securities acquisition plan meeting the conditions in paragraph (d)(2)(i) of Rule 16b-3 promulgated under the Securities Exchange Act shall not disqualify a Director from being a Disinterested Person; and (iii) an election to receive an annual retainer fee in either cash or an equivalent amount of securities, or partly in cash and partly in securities, shall not disqualify a Director from being a Disinterested Person. (g) "EFFECTIVE DATE" shall mean August 27, 1997. 1 4 (h) "FAIR MARKET VALUE" of a Share on any date of reference shall be the "Closing Price" (as defined below) of the Common Stock on the business day immediately preceding such date. For the purpose of determining Fair Market Value, the "Closing Price" of the Common Stock on any business day shall be (i) if the Common Stock is listed or admitted for trading on any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the last reported sale price of Common Stock on such exchange or reporting system, as reported in any newspaper of general circulation, (ii) if the Common Stock is quoted on the National Association of Securities Dealers Automated Quotations ("NASDAQ") System, or any similar system of automated dissemination of quotations of securities prices in common use, the mean between the closing high bid and low asked quotations for such day of Common Stock on such system, or (iii) if neither clause (i) or (ii) is applicable, the mean between the high bid and low asked quotations for the Common Stock as reported by the National Quotation Bureau, Incorporated if at least two securities dealers have inserted both bid and asked quotations for Common Stock on at least five of the ten preceding days. If none of clauses (i), (ii) or (iii) is applicable, the Market Value per Share shall be the price at which one could reasonably expect a share of Common Stock to be sold in an arm's length transaction, for cash, other than on an installment basis, to a person not employed by, controlled by, in control of or under common control with the Company. Such Market Value shall be that which has currently or most recently been determined for this purpose by the Board, or at the discretion of the Board by an independent appraiser or appraisers selected by the Board, in either case giving due consideration to recent transactions involving shares of Common Stock, if any, the issuer's net worth, prospective earning power and dividend-paying capacity, the goodwill of the issuer's business, the issuer's industry position and its management, that industry's economic outlook, the values of securities of issuers whose stock is publicly traded and which are engaged in similar businesses, the effect of transfer restrictions to which the Common Stock may be subject under law and under the applicable terms of any contract governing such stock, the absence of a public market for the Common Stock and such other matters as the Board or its appraiser or appraisers deem pertinent. The determination by the Board or its appraiser or appraisers of the Market Value shall, if not unreasonable, be conclusive and binding notwithstanding the possibility that other persons might make a different, and also reasonable, determination. If the Market Value to be used was thus fixed more than sixteen months prior to the day as of which Market Value is being determined, it shall in any event be no less than the book value of the Common Stock at the end of the most recent period for which financial statements of the issuer are available. (i) "NON-STATUTORY STOCK OPTION" shall mean an Option which is not an incentive stock option as defined in Section 422 of the Code. (j) "OPTION" (when capitalized) shall mean any option granted under this Plan. (k) "OPTIONEE" shall mean a person to whom an Option is granted under this Plan or any person who succeeds to the rights of such person under this Plan by reason of the death of such person. (l) "PLAN" shall mean this Directors' Stock Option Plan for the Company. 2 5 (m) "SECURITIES EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended. (n) "SHARE(S)" shall mean a share or shares of the Common Stock. 3. SHARES AND OPTIONS. Options may be granted under this Plan from time to time to purchase an aggregate of up to 250,000 Shares from Shares held in the Company's treasury or from authorized and unissued Shares. If any Option granted under the Plan shall terminate, expire, or be canceled or surrendered as to any Shares, new Options may thereafter be granted covering such Shares. Each Option granted hereunder shall be a Non-Statutory Stock Option and shall clearly state that it is a Non-Statutory Stock Option. 4. CONDITIONS FOR GRANT OF OPTIONS. Each Option shall be evidenced by a written agreement with such terms as are not inconsistent with this Plan. Any person who files with the Committee, in a form satisfactory to the Committee, a written waiver of eligibility to receive any Option under this Plan shall not be eligible to receive any Option under this Plan for the duration of such waiver. 5. OPTION GRANTS. On the Effective Date Nicholas R. Wilson, Michael R. Lee, and Steven L. Wasserman will each receive an Option to purchase 50,000 shares of Common Stock, which Option will become exercisable in full on the first anniversary of the Option's grant. Each Director who is not a director on the Effective Date will receive, on the date of his or her initial election as a Director, an Option to purchase 50,000 shares of Common Stock, which Option will become exercisable in full on the first anniversary of the Option's grant; provided he or she remains a Director on such anniversary. No person shall receive an Option pursuant to this Section 5 more than once. The per share exercise price of all Options granted pursuant to this Section 5 will be equal to the Fair Market Value of the Shares underlying such Option on the date such Option is granted. 6. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i) the Company has received written notice of such exercise in accordance with the terms of the Option, (ii) full payment of the aggregate option price of the Shares as to which the Option is exercised has been made, and (iii) arrangements that are satisfactory to the Committee in its sole discretion have been made for the Optionee's payment to the Company of an amount that is sufficient to satisfy all applicable Federal or state tax withholding requirements relating to exercise of the Option. The option price of any Shares purchased shall be paid in cash, by certified or official bank check, by money order, with Shares or by a combination of the above; provided, however, that the Committee in its sole discretion may accept a personal check in full or partial payment of any Shares. If the exercise price is paid in whole or in part with Shares, the value of the Shares surrendered shall be their Fair Market Value on the date the Option is exercised. No Optionee shall be deemed to be a holder of any Shares subject to an Option unless and until a stock certificate or certificates for such Shares are issued to such person(s) under the terms of this Plan. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date such stock certificate is issued, except as expressly provided in Section 9 hereof. 3 6 7. EXERCISABILITY OF OPTIONS. Each outstanding Option shall become immediately fully exercisable if: (a) there occurs any transaction (which shall include a series of transactions occurring within 60 days or occurring pursuant to a plan), that has the result that stockholders of the Company immediately before such transaction cease to own at least 51% of the voting stock of the Company or of any entity that results from the participation of the Company in a reorganization, consolidation, merger, liquidation or any other form of corporate transaction; (b) the stockholders of the Company approve a plan of merger, consolidation, reorganization, liquidation or dissolution in which the Company does not survive (unless the approved merger, consolidation, reorganization, liquidation or dissolution is subsequently abandoned); or (c) the stockholders of the Company approve a plan for the sale, lease, exchange, transfer, assignment or other disposition of all or substantially all the property and assets of the Company (unless such plan is subsequently abandoned). 8. TERMINATION OF OPTION PERIOD. The unexercised portion of any Option shall automatically and without notice terminate and become null and void on the earliest to occur of: (i) one year after the death of Optionee; (ii) six months after the date on which the Optionee ceases to be a Director for any reason other than death; or (iii) after the expiration of 10 years from the date of grant of the Option. 9. ADJUSTMENT OF SHARES. (a) If at any time while the Plan is in effect or unexercised Options are outstanding, there shall be any increase or decrease in the number of issued and outstanding Shares through the declaration of a stock dividend or through any recapitalization resulting in a stock split-up, combination or exchange of Shares, then and in such event: (i) appropriate adjustment shall be made in the maximum number of Shares available for grant under the Plan, so that the same percentage of the Company's issued and outstanding Shares shall continue to be subject to being so optioned; and (ii) appropriate adjustment shall be made in the number of Shares and the exercise price per Share thereof then subject to any outstanding Option, so that the same percentage of the Company's issued and outstanding Shares shall remain subject to purchase at the same aggregate exercise price. (b) Subject to the specific terms of any Option, the Committee shall make appropriate adjustment in the terms of Options outstanding under this Plan, with respect to the option price or the number of Shares subject to the Options, or both, when such adjustments become appropriate by reason of a corporate transaction described in Subsections 7(b) or (c) hereof. 4 7 (c) Except as otherwise expressly provided herein, the issuance by the Company of shares of its capital stock of any class, or securities convertible into shares of capital stock of any class, either in connection with direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to the number of or exercise price of Shares then subject to outstanding Options granted under the Plan. (d) Without limiting the generality of the foregoing, the existence of outstanding Options granted under the Plan shall not affect in any manner the right or power of the Company to make, authorize or consummate (i) any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business; (ii) any merger or consolidation of the Company; (iii) any issue by the Company of debt securities, or preferred or preference stock that would rank above the Shares subject to outstanding Options; (iv) the dissolution or liquidation of the Company; (v) any sale, lease, exchange, transfer, assignment or other disposition of all or any part of the assets or business of the Company; or (vi) any other corporate act or proceeding, whether of a similar character or otherwise. 10. TRANSFERABILITY OF OPTIONS. No Option shall be transferable by the Optionee other than by will or the laws of descent and distribution and each Option shall be exercisable during the Optionee's lifetime only by the Optionee. 11. ADMINISTRATION OF THE PLAN. (a) The Plan shall be administered by the Committee, which shall consist of not less than two Directors, each of whom shall be Disinterested Persons, provided that the Committee shall not have any discretion with respect to the grant of Options to pursuant to this Plan. The Committee shall have all of the powers of the Board with respect to the Plan. The Board may change the membership of the Committee at any time and fill any vacancy occurring in the membership of the Committee by appointment. (b) The Committee, from time to time, may adopt rules and regulations for carrying out the purposes of the Plan. The Committee's determinations and its interpretation and construction of any provision of the Plan shall be final and conclusive. (c) Any and all decisions or determinations of the Committee shall be made either (i) by a majority vote of the members of the Committee at a meeting or (ii) without a meeting by the unanimous written consent of the members of the Committee. 12. INTERPRETATION. (a) This Plan shall be governed by the internal substantive laws of the State of Delaware. (b) Headings contained in this Plan are for convenience only and shall in no manner be construed as part of this Plan. 5 8 (c) Any reference to the masculine, feminine, or neuter gender shall be a reference to such other gender as is appropriate. 13. AMENDMENT AND DISCONTINUATION OF THE PLAN. Either the Board or the Committee may from time to time amend the Plan or any Option; provided, however, that, except to the extent provided in Section 9, no such amendment may, without approval by the stockholders of the Company, (i) materially increase the benefits accruing to participants under the Plan, (ii) materially increase the number of securities which may be issued under the Plan, or (iii) materially modify the requirements as to eligibility for participation in the Plan; and provided further, that, no amendment or suspension of the Plan or any Option issued hereunder shall substantially impair any Option previously granted to any Optionee without the consent of such Optionee. Notwithstanding anything herein to the contrary, to the extent required by Rule 16b-3 promulgated under the Securities Exchange Act, the provisions of this Plan which govern the number of Options to be awarded, the exercise price per share under each Option, when and under what circumstances Options will be granted and the period within which each Option may be exercised, shall not be amended more than once every six months (even with stockholder approval), other than to conform to changes to the Code, or the rules promulgated thereunder, or with rules promulgated by the Securities and Exchange Commission. 14. EFFECTIVE DATE AND TERMINATION DATE. Subject to approval of the Plan by the holders of a majority of the shares of Common Stock present at a duly called stockholders' meeting at which a quorum is present, the Plan shall be effective upon the Effective Date and shall terminate on the tenth anniversary of the Effective Date. If the Plan is not approved by the holders of a majority of the outstanding shares of Common Stock, the Plan shall be null and void. 6 EX-4.3 4 EXHIBIT 4.3 1 Exhibit 4.3 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this 24th day of October 1997 by and between SecurFone America, Inc. (the "Corporation"), a Delaware corporation, and Derek Davis (the "Employee"). EXPLANATORY STATEMENT A. The Corporation is engaged in the business of telecommunications. B. The Employee has specialized expertise in the operation of telecommunications companies. C. The Corporation desires to employ the Employee as Vice-President and Chief Operating officer and to render such services as shall be assigned reasonably, from time-to-time, to the Employee by the Board of Directors or by the President of the Corporation, and the Employee is willing to accept such employment, upon the terms and conditions hereinafter provided. NOW, THEREFORE, in consideration of the Explanatory Statement, which shall be deemed to be a substantive part of this Agreement, and the mutual covenants, promises, agreements, representations and warranties set forth, the parties hereto do hereby covenant, promise, agree, represent and warrant as follows: 1. Employment. The Corporation hereby employs the Employee as the Vice-President and Chief Operating Officer of the Corporation and to render such services for and on behalf of the Corporation as may be assigned reasonably, from time-to-time, to the Employee by the Board of Directors or by the President of the Corporation (the "Services"). The Employee hereby accepts such employment with the Corporation and agrees to render the Services for and on behalf of the Corporation on the terms and conditions set forth in this Agreement. The power to direct, control and supervise the Services to be performed, the means and manner of performing the Services and the time for performing the Services shall be exercised by the Board of Directors or the President of the Corporation; provided, however, that the Board of Directors or the President shall not impose employment duties or constraints of any kind which would require the Employee to violate any law, statute, ordinance, rule or regulation now or hereinafter in effect. 2 2. Term. The term (the "Initial Term") of this Agreement shall commence on the date hereof and, subject to the further provisions of this Agreement, shall end on Oct 24, 1998; provided, however, this Agreement shall be automatically renewed for successive one-year periods (a "Renewal Term") unless, at least 60 days prior to the expiration of the Initial Term or any Renewal Term, either party gives written notice to the other party specifically electing to terminate this Agreement at the end of the Initial Term or any such Renewal Term. 3. Performance of Services. The Employee shall devote all of his time exclusively to the Corporation's business and shall render the Service to the best of his ability for and on behalf of the Corporation. The Employee shall comply with all laws, statutes, ordinances, rules and regulations relating to the Services. Unless having first received the written consent of the Corporation, during the term of this Agreement the Employee shall not, at any time or place, directly or indirectly, engage or agree to engage in the telecommunications business with or for any other person or entity to any extent whatsoever, other than to the extent required by the terms and conditions of this Agreement. 4. Compensation. 4.1 During the term of this Agreement, the Employee will earn an annual salary of $100,000 ("Salary") of which $75,000 will be payable in equal consecutive weekly installments. The parties agree that the balance of such annual Salary shall be accrued and deferred without interest and shall be payable upon the earlier of (i) a determination by the Board of Directors or the President of the Corporation that the Corporation has sufficient revenues or capital for payment of the accrued and deferred Salary, or (ii) October 1, 1998, and upon the occurrence of either (i) or (ii) above, Employee's annual Salary of $100,000 shall be payable in equal consecutive weekly installments. 4.2 Prior to the date of this Agreement, Employee provided significant services to the Corporation on a consulting basis. As full compensation for such consulting services, the Corporation shall issue to Employee 20,000 shares of the Corporation's common stock. Such shares shall be validly issued, fully paid and non-assessable. 2 3 5. Vacations and Benefits. 5.l. During each 12-month period during the Initial Term and any Renewal Term of this Agreement, the Employee shall be entitled to vacation time of not less than three (3) weeks, during which time the Employee's Salary shall be paid in full. The Employee shall take his vacation at such time or times as shall be approved by the Corporation, which approval shall not be unreasonably withheld. 5.2. The Employee shall be entitled to such benefits as the Board of Directors shall lawfully adopt and approve. 6. Disability. 6.1. As used herein, the Employee shall be "disabled" or have a "disability" for purposes of this Agreement if the Employee shall have an illness, injury, or other physical or mental condition which results in the Employee's inability to perform substantially the duties he performed in his employment capacity under this Agreement to the extent he was performing such duties immediately prior to the commencement of such condition. 6.2. In the event that the Employee shall be disabled for not more than ninety (90) days during any 12-month period, then the Employee, during the continuance of such disability, shall remain employed by the Corporation hereunder and shall continue to receive his Salary pursuant to Section 4 of this Agreement and otherwise have all of the rights and be subject to all of the Employee's obligations and duties under this Agreement, other than the obligation and duty to render the Services otherwise in accordance with this Agreement. 6.3. In the event that the Employee shall be disabled for more than ninety (90) days during any 12-month period, but not more than one hundred eighty (180) days during any 12-month period, then from and after the expiration of the 90th day and during the continuance of such disability up to and including the day immediately preceding the 181st day, the Employee shall be deemed to have taken a leave of absence from the Corporation commencing on the 91st day of such disability and, during the continuance of such disability, the following provisions shall apply: 6.3.1. The Employee's Salary shall be apportioned up to and including the 90th day of such disability and from and after the 90th day of 3 4 such disability and up to and including the day immediately preceding the 181st day, the Corporation shall pay Salary to the Employee at the rate of one half (1/2) the Salary specified in Section 4 of this Agreement. 6.3.2. The Corporation, in the sole discretion of its Board of Directors, shall have the right and power to remove the Employee from the position of Vice-President and Chief Operating Officer of the Corporation or to delegate all or any portion of the Employee's duties as Vice-President and Chief Operating Officer of the Corporation to one or more other employees of the Corporation. 6.3.3. The Employee shall otherwise have all of the rights and be subject to all of the Employee's obligations and duties under this Agreement, except that the Employee shall have no obligation or duty to render the Services otherwise in accordance with this Agreement; provided, however, that the Corporation shall be excused from providing any insurance coverages or benefits which, by reason of the Employee's disability, the Corporation shall not be able to obtain, continue or maintain at substantially the same cost and expense or on substantially the same terms and conditions that the Corporation was able to obtain, continue or maintain immediately prior to the commencement of the Employee's disability. 6.4. In the event that the Employee shall be disabled for more than one hundred eighty (180) days in any 12-month period, the employment of the Employee hereunder shall cease and terminate pursuant to Section 10 hereof. 6.5. If the Corporation and the Employee are unable to agree whether the Employee is disabled within the meaning of this Section 6, then this limited issue shall be submitted to and settled by binding arbitration under and pursuant to the Delaware Uniform Arbitration Act and the rules and regulations of the American Arbitration Association, and the decision in such arbitration shall be final, conclusive and binding upon each of the parties and judgment may be entered thereon in any court of competent jurisdiction. No other issue shall be submitted to or settled by binding arbitration under this Agreement. 7. Confidential Information. 7.1. The Employee acknowledges that in the Employee's employment hereunder, the Employee will be making use of, acquiring and adding to the Corporation's trade secrets and its confidential and proprietary 4 5 information of a special and unique nature and value relating to such matters as, but not limited to, the Corporation's business operations, internal structure, financial affairs, procedures, manuals, confidential reports, lists of clients and prospective clients and sales and marketing methods, as well as the amount, nature and type of services equipment and methods used and preferred by the Corporation's clients and business partners, all of which shall be deemed to be confidential information. The Employee acknowledges that such confidential information has been and will continue to be of central importance to the business of the Corporation and that disclosure of it to or its use by others could cause substantial loss to the Corporation. In consideration of employment by the Corporation, the Employee agrees that during the Initial Term and any Renewal Term of this Agreement and upon and after leaving the employ of the Corporation for any reason whatsoever, the Employee shall not, for any purpose whatsoever, directly or indirectly, divulge or disclose to any person or entity any of such confidential information which was obtained by the Employee as a result of the Employee's employment with the Corporation or any trade secrets of the Corporation, but shall hold all of the same confidential and inviolate. 7.2. All contracts, agreements, financial books, records, instruments and documents; client lists; memoranda; data; reports; programs; software; tapes; rolodexes; telephone and address books; letters; research; card decks; listings; programming; and any other instruments, records or documents relating or pertaining to clients serviced by and business partners of the Corporation or the Employee, the Services rendered by the Employee, or the business of the Corporation (collectively, the "Records") shall at all times be and remain the property of the Corporation. Upon termination of this Agreement and the Employee's employment under this Agreement for any reason whatsoever, the Employee shall return to the Corporation all Records (whether furnished by the Corporation or prepared by the Employee), and the Employee shall neither make nor retain any copies of any of such Records after such termination. 7.3. All inventions and other creations, whether or not patentable or copyrightable, and all ideas, reports and other creative works, including, without limitation, computer programs, manuals and related materials, made or conceived in whole or in part by the Employee while employed by the Corporation which relate in any manner whatsoever to the business, existing or proposed, of the Corporation or any other business or research or development effort in which the Corporation or any of its subsidiaries or affiliates engages during Employee's employment by the Corporation will be disclosed promptly by the Employee to the Corporation and shall be the sole and exclusive property of the Corporation. All copyrightable works created by the Employee and 5 6 covered by this Section 7.3 shall be deemed to be works for hire. The Employee shall cooperate with the Corporation in patenting or copyrighting all such inventions, ideas, reports and other creative works, shall execute, acknowledge, seal and deliver all documents tendered by the Corporation to evidence its ownership thereof throughout the world, and shall cooperate with the Corporation in obtaining, defending, and enforcing its rights therein. 8. Indemnity. The Employee shall indemnify the Corporation, its officers, directors and stockholders (other than the Employee), and hold the Corporation, its officers, directors and stockholders (other than the Employee) harmless, from and against any and all actions, suits, proceedings, liabilities, damages, losses, costs and expenses (including attorneys' and experts' fees) arising out of or in connection with any breach or threatened breach by the Employee of any one or more provisions of this Agreement. 9. Restrictive Covenants. 9.1. The Corporation and the Employee acknowledge and agree that the Employee's Services are of a special and unusual character which have a unique value to the Corporation, the loss of which cannot be adequately compensated by damages in an action at law and if used in competition with the Corporation could cause serious harm to the Corporation. Accordingly, the Employee covenants that for a period of one year after the Employee ceases to be employed by the Corporation for any reason whatsoever, the Employee shall not, without the prior written consent of the Corporation, directly or indirectly: 9.1.1. Offer to render any services or solicit the rendition of any services which were rendered by the Corporation during the two year period immediately preceding such cessation of the Employee's employment with the Corporation to any clients, business partners, customers or accounts of the Corporation who were such at any time during such two year period to or for the benefit or account of the Employee or to or for the benefit or account of any other person or entity. 9.1.2. Render or attempt to render any services which were rendered by the Corporation during the two year period immediately preceding such cessation of the Employee's employment with the Corporation to any clients, business partners, customers or accounts of the Corporation who were such at any time during such two year period to or for the benefit or account of the Employee or to or for the benefit or account of any other person or entity. 6 7 9.1.3. Solicit for employment or employ to or for the benefit or account of the Employee or to or for the benefit or account of any other person or entity any employee of the Corporation, nor shall the Employee urge, directly or indirectly, any client, business partners or referrer of clients, business partners, customers, or accounts of the Corporation to discontinue, in whole or in part, business with the Corporation or not to do business with the Corporation. For purposes of this Section 9.1.3 of this Agreement, the term "referrer of clients" shall mean any person or entity who or which referred a client, business partners, customer or account to the Corporation at any time prior to such cessation of the Employee's employment with the Corporation. 9.1.4. Engage, either as a consultant, independent contractor, proprietor, stockholder, partner, officer, director, employee or otherwise, in any telecommunications business or otherwise compete with the Corporation in any state of the United States or in any foreign country, in each such case where the Corporation sold, licensed or otherwise engaged in the telecommunications business at any time during the two year period immediately preceding such cessation of the Employee's employment with the Corporation. 9.2. The parties hereto agree that to the extent that any provision or portion of Section 9.1 of this Agreement shall be held, found or deemed to be unreasonable, unlawful or unenforceable by a court of competent jurisdiction, then any such provision or portion thereof shall be deemed to be modified to the extent necessary in order that any such provision or portion thereof shall be legally enforceable to the fullest extent permitted by applicable law; and the parties hereto do further agree that any court of competent jurisdiction shall, and the parties hereto do hereby expressly authorize, request and empower any court of competent jurisdiction to, enforce any such provision or portion thereof or to modify any such provision or portion thereof in order that any such provision or portion thereof shall be enforced by such court to the fullest extent permitted by applicable law. 9.3. As the violation by the Employee of the provisions of Sections 7 and 9 of this Agreement would cause irreparable injury to the Corporation, and there is no adequate remedy at law for such violation, the Corporation shall have the right, in addition to any other remedies available at law or in equity, to enjoin the Employee in a court of equity from violating such provisions. 9.4. The provisions of Sections 9.1.1, 9.1.2, 9.1.3 and 9.1.4 of this Agreement are cumulative. Compliance with Sections 9.1.1, 9.1.2, 9.1.3 and 9.1.4 of this Agreement is a condition precedent to the Corporation's 7 8 obligation to make any payments of any nature to the Employee, whether under this Agreement or otherwise. Nothing in this Agreement shall be construed as prohibiting the Corporation from pursuing any other remedies available to it for a breach or threatened breach of Sections 7 and 9 of this Agreement. 9.5 As used in this Section 9, "clients," "business partners," "customers" and "accounts" shall include any person or entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, any such "clients," "business partners," "customers" or "accounts". 10. Termination of Employment. 10.1. Subject to Section 10.2 of this Agreement, the Corporation shall have the right to terminate the Employee's employment hereunder at any time and without prior written notice to the Employee upon the occurrence of any one or more of the following events: (i) the breach by the Employee of any covenant, promise or agreement of this Agreement; (ii) the voluntary or involuntary dissolution of the Corporation; (iii) the voluntary or involuntary liquidation or winding up of the Corporation; (iv) the disability of the Employee for more than one hundred eighty (180) days in any 12-month period pursuant to Section 6.4 of this Agreement; and (v) for cause, other than permitted in Section 10.1(i). Upon termination of the Employee's employment under this Agreement pursuant to this Section 10, neither party shall thereafter have any further rights, duties or obligations under this Agreement, except for the Employee's obligations and duties under Sections 7, 8 and 9 hereof, but each party shall remain liable and responsible to the other for all prior obligations and duties hereunder and for all acts and omissions of such party, its agents, servants and employees, prior to such termination. 10.2. Anything contained in Section 10.1 to the contrary notwithstanding, the Corporation shall not terminate this Agreement and the Employee's employment under this Agreement pursuant to Section 10.1(i) or (v) unless the Corporation shall have first given to the Employee 15 days' prior written notice of such termination which sets forth the grounds of such termination, and the Employee shall have failed to cure such grounds for termination within said 15-day period; provided, however, that the foregoing opportunity to cure shall be limited to no more than two opportunities during each 12-month period hereunder, commencing upon the effective date of this Agreement. 8 9 11. Notices. All notices and other communications required or permitted to be given by this Agreement shall be in writing and shall be given and shall be deemed received if and when either hand-delivered and a signed receipt is given therefor or mailed by registered or certified U.S. mail, return receipt requested, postage prepaid, and if to the Corporation to: SecurFone America, Inc. William Stueber, President 5850 Oberlin Street San Diego, CA 92121 Fax 619-587-2914 and if to the Employee to: Derek Davis 5850 Oberlin Street, Suite 220 San Diego, CA 92121 Fax 619-587-2914 or at such other address as either party hereto shall notify the other of in writing. 12. Miscellaneous. 12.1. This Agreement shall be binding upon and inure to the benefit of the Corporation, its successors and assigns. This Agreement shall be binding upon the Employee and his heirs, personal and legal representatives, and guardians, and shall inure to the benefit of the Employee. Neither this Agreement nor any part hereof or interest herein shall be assigned by the Employee. 12.2. The terms and provisions of this Agreement may not be modified except by written instrument duly executed by each party hereto. 12.3. The use of any gender herein shall be deemed to be or include the other genders and the neuter and the use of the singular herein shall be deemed to be and include the plural (and vice versa), wherever appropriate. 12.4. This Agreement shall be governed by and enforced and construed in accordance with the laws of the State of Delaware. 9 10 12.5. This Agreement sets forth the entire, integrated understanding and agreement of the parties hereto with respect to the subject matter hereof. 12.6. The headings in this Agreement are included for the convenience of reference and shall be given no effect in the construction of this Agreement. 12.7. In the event of a breach of this Agreement, the non-breaching party hereto may maintain an action for specific performance against the party hereto who is alleged to have breached any of the terms, conditions, representations, warranties or agreements, herein contained. Anything contained herein to the contrary notwithstanding, this Section shall not be construed to limit in any manner whatsoever any other rights or remedies an aggrieved party may have by virtue of any breach of this Agreement. Each of the parties hereto shall have the right to waive compliance with or the fulfillment, satisfaction or enforcement of any warranty, representation, covenant, promise, agreement or condition herein set forth, but the waiver by any party of such right shall not be deemed a waiver of compliance with or fulfillment, satisfaction or enforcement of any other warranty, representation, covenant, promise, agreement or condition herein set forth or to seek redress for any breach thereof on any subsequent occasion, nor shall any such waiver be deemed effective unless in writing and signed by the party so waiving. IN WITNESS WHEREOF, the parties have executed, acknowledged, sealed and delivered this Agreement the day and year first hereinabove set forth. SECURFONE AMERICA,INC. ATTEST: By: /s/ William Stueber II - --------------------------- ---------------------------------- William Stueber, President WITNESS: /s/ Derek Davis - --------------------------- ---------------------------------- Derek Davis, Employee 10 EX-4.4 5 EXHIBIT 4.4 1 Exhibit 4.4 RETAINER AGREEMENT ------------------ The parties hereto, SECURFONE AMERICA INCORPORATED (hereinafter SFI) and Jennifer Griffith, in consideration of the mutual covenants herein contained. The parties agree herein as follows: 1. Between November 1, 1996 and December 31, 1997, Griffith will provide, on demand as reasonably required by SFI, consulting services to SFI concerning matters within Griffith's expertise and germane to SFI business activities. 2. SFI agrees that it shall compensate Griffith by provision of 2,500 shares of SFI or its option equivalent at such time as SFI release such shares for the compensation of those individuals likewise providing consulting and professional services to SFI, but in no event later than February 28, 1998. 3. Griffith agrees that SFI's liability shall be limited to stock or options as aforesaid, and that SFI makes no representation or warranty as to there market value or marketability. 4. The services to be provided by Griffith shall be provided at such time and locations as are convenient to SFI or its officers. /s/ Jennifer Griffith -------------------------------------- Jennifer Griffith /s/ William P. Stueber II -------------------------------------- William P. Stueber II Chief Executive Officer for SECURFONE AMERICA INCORPORATED EX-4.5 6 EXHIBIT 4.5 1 Exhibit 4.5 RETAINER AGREEMENT The parties hereto, SECURFONE AMERICA INCORPORATED (hereinafter SFI) and MICHAEL R. LEE, in consideration of the mutual covenants herein contained, the parties agree herein as follows: 1. Between May 22, 1997, and September 30, 1997, LEE will provide, on demand as reasonably required by SFI, consulting services to SFI concerning matters within LEE'S expertise and germane to SFI business activities. 2. SFI agrees that it shall compensate LEE by the provision of 24,000 shares of SFI or its option equivalent at such time as SFI release such shares for the compensation of those individuals likewise providing consulting and professional services to SFI, but in no event later than February 28, 1998. 3. LEE agrees that SFI's liability shall be limited to stock or options as aforesaid, and that SFI makes no representation or warranty as to there market value or marketability. 4. The services to be provided by LEE shall be provided at such times and locations as are convenient to SFI or its officers. /s/ Michael R. Lee ---------------------------------- Michael R. Lee /s/ Steven Wasserman ---------------------------------- Steven Wasserman Secretary for SECURFONE AMERICA INCORPORATED EX-4.6 7 EXHIBIT 4.6 1 Exhibit 4.6 RETAINER AGREEMENT ------------------ The parties hereto, SECURFONE AMERICA INCORPORATED (hereinafter SFI) and GREGORY F. LEPORE, ESQ., in consideration of the mutual covenants herein contained. The parties agree herein as follows: 1. Between February 1, 1997 and April 30, 1997, LEPORE will provide, on demand as reasonably required by SFI, consulting services to SFI concerning matters within LEPORE'S expertise and germane to SFI business activities. 2. SFI agrees that it shall compensate LEPORE by the provision of 10,000 shares of SFI or its option equivalent at such time as SFI releases such shares for the compensation of those individuals likewise providing consulting and professional services to SFI but in no event later than February 28, 1998. 3. LEPORE agrees that SFI's liability shall be limited to stock or options as aforesaid, and that SFI makes no representation or warranty as to there market value or marketability. 4. The services to be provided by LEPORE shall be provided at such times and locations as are convenient to SFI or its officers. /s/Gregory F. Lepore, Esquire ----------------------------- Gregory F. Lepore, Esquire /s/ William P. Stueber, II ----------------------------- William P. Stueber, II Chief Executive Officer for SECURFONE AMERICA INCORPORATED EX-4.7 8 EXHIBIT 4.7 1 Exhibit 4.7 RETAINER AGREEMENT ------------------ The parties hereto, SECURFONE AMERICA INCORPORATED (hereinafter SFI) and STEFANIE MARUSIAK, in consideration of the mutual covenants herein contained, the parties agree herein as follows: 1. Between May 22, 1996, and September 30, 1997, MARUSIAK will provide, on demand as reasonably required by SFI, administrative services to SFI concerning matters within MARUSIAK'S expertise and germane to SFI business activities. 2. SFI agrees that it shall compensate MARUSIAK by the provision of 1,000 shares of SFI or its option equivalent at such time as SFI releases such shares for the compensation of those individuals likewise providing administrative and professional services to SFI, but in no event later than February 28, 1998. 3. MARUSIAK agrees that SFI's liability shall be limited to stock or options as aforesaid, and that SFI makes no representation or warranty as to there market value or marketability. 4. The services to be provided by MARUSIAK shall be provided at such times and locations as are convenient to SFI or its officers. /s/ Stephanie Marusiak ----------------------------- Stephanie Marusiak /s/ Michael R. Lee ----------------------------- Michael R. Lee Chief Financial Officer for SECURFONE AMERICA INCORPORATED EX-4.8 9 EXHIBIT 4.8 1 Exhibit 4.8 RETAINER AGREEMENT ------------------ The parties hereto, SECURFONE AMERICA INCORPORATED (hereafter SFI) and AMY J. PIPOLY, in consideration of the mutual covenants herein contained, the parties agree herein as follows: 1. Between May 22, 1996 and September 30, 1997, PIPOLY will provide, on demand as reasonable required by SFI, consulting services to SFI concerning matters within PIPOLY'S expertise and germane to SFI business activities. 2. SFI agrees that is shall compensate PIPOLY by the provision of 2,500 shares of SFI or its option equivalent at such time as SFI releases such shares for compensation of those individuals likewise providing consulting and professional services to SFI, but in no event later than February 28, 1998. 3. PIPOLY agrees SFI's liability shall be limited to stock or options aforesaid, and that SFI makes no representation or warranty as to their market value or marketability. 4. The services to be provided by PIPOLY shall be provided at such times and locations as are convenient to SFI or it's officers. /s/ Amy J. Pipoly ------------------------------ AMY J. PIPOLY /s/ Michael R. Lee ------------------------------ MICHAEL R. LEE EX-4.9 10 EXHIBIT 4.9 1 Exhibit 4.9 AGREEMENT --------- This Agreement is made and entered into as of July 1, 1996, by and between SecurFone America, Inc. ("SecurFone") and Steven L. Wasserman ("Wasserman"). In consideration of the mutual promises herein contained the parties hereby agree as follows: 1. SecurFone engages the services of Wasserman to serve as Secretary of SecurFone through December 1997. Wasserman will be responsible for maintaining the corporate records of SecurFone including preparation of minutes for Board and Executive Committee meetings. 2. SecurFone agrees to compensate Wasserman for his services as Secretary by issuing 10,000 shares of common stock of SecurFone at such time as SecurFone is a publicly-traded corporation. SecurFone shall pay all expenses associated with the registration and issuance of such shares. SecurFone makes no representation as to the market value or marketability of the common stock issued as compensation hereunder. 3. SecurFone agrees to pay or reimburse Wasserman for reasonable travel and entertainment expenses required during the term hereof and in fulfillment of the secretarial responsibilities described herein. 4. This Agreement shall be governed by the laws of the State of Delaware. SECURFONE, AMERICA, INC. By: /s/ Michael R. Lee ---------------------------------- Its: Treasurer --------------------------------- /s/ Steven L. Wasserman ---------------------------------- STEVEN L. WASSERMAN EX-4.10 11 EXHIBIT 4.10 1 Exhibit 4.10 CONSULTING AGREEMENT -------------------- As of the last date written below, Material Technology, Inc., ("Matech") and Robert M. Bernstein ("Consultant") agree that Consultant shall act as a consultant to Matech on the following terms and conditions: WHEREAS, the willingness of Matech to enter into the Stock Purchase Agreement among Montpilier Holdings, Inc., SecurFone America, Inc., Matech, and Robert M. Bernstein was conditioned on the willingness of Consultant to act as consultant on the terms in this Agreement; and WHEREAS, Consultant is willing to act as a consultant as described below and on the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows: 1. AGREEMENT TO ACT AS CONSULTANT. Effective on the Closing Date of the Stock Purchase Agreement, Consultant hereby agrees to act as a consultant to Matech for eighteen months following the Closing (as defined in the Stock Purchase Agreement). Upon request of Matech's officers or directors, Consultant shall make himself available for up to fifty (50) hours per calendar quarter to consult with Matech's officers and directors on matters involving Matech's business and affairs. Consultant shall be entitled to reasonable notice to prepare to perform the services requested and to render such services at times reasonable convenient to Consultant. Moreover, Consultant shall be reimbursed for all reasonable travel expenses in connection with such services, provided such expenses are adequately documented. 2. COMPENSATION. On the Closing Date under the Stock Purchase Agreement, RMB shall be paid $5,000 out of the escrow referred to in such Stock Purchase Agreement. In addition, for a period of five years from Closing, Consultant shall be entitled to receive stock options entitling him to purchase Class A Common Stock of Matech. The number of shares of Matech Class A Common Stock subject to such options shall be equal to seven per cent (7%) of the sum of (A) the total number of shares of any class of equity security of Matech that, during the five years following the Closing, Matech registers with the Securities Exchange Commission on Form S-8 plus (B) the total number of shares of any class of equity security of Matech that, during the five years following Closing, Matech sells under Regulation S of the Securities Act of 1933. The shares issuable upon exercise of all such options granted to Consultant shall be registered on Form S-8 within 180 days following the date of grant. In addition, (i) Consultant's options based on shares registered on Form S-8 shall be granted to him on the date each such registration statement becomes effective, shall not be exercisable until one year following the date of grant, and shall be exercisable for a period of five years following the expiration of such one-year period and (ii) Consultant's options 2 PAGE 2 CONSULTING AGREEMENT based on shares sold under Regulation S shall be granted within twenty (20) days of any sales under Regulation S and shall grant Consultant the right to purchase shares on the same terms and conditions as the purchasers under Regulation S, except that (i) such option shall not be exercisable for a period of one year following the date of grant; (ii) any restrictions on resale of the Regulation S shares shall not apply to the shares Consultant receives upon exercising his options after such one-year period; and (iii) the shares shall be registered on Form S-8 within 180 days following the date of grant of options to Consultant; provided that Matech shall not be obligated to file more than two Form S-8 registration statements in any calendar year. Consultant shall pay for shares purchased upon exercise of such options in full at the time of exercise. 3. NO SET-OFF OR REDUCTION. Matech agrees that the right of Consultant to receive the compensation set forth in Paragraph 2 above shall not be subject to reduction or set-off for any reason whatever, including, but not limited to, any alleged breach of warranties or other obligations under this Agreement or the Stock Purchase Agreement. 4. REMEDIES OF CONSULTANT. In the event of any breach by Matech of its obligations to compensate consultant, in addition to any remedies Consultant may have at law, any and all options previously granted to Consultant shall become immediately exercisable. In the event that Consultant incurs costs, expenses, and/or attorneys fees to enforce his rights under this Agreement, Matech shall reimburse Consultant for any and all such costs, expenses, and/or reasonable attorneys fees. 5. AUTHORIZATION. This Agreement has been authorized by Matech's directors prior to Closing and by Matech's replacement directors after the Closing. 6. CONFIDENTIAL INFORMATION. Consultant will acquire information of a confidential nature relating to the operation, finances, business relationships, intellectual property, and trade secrets of Matech. During the term of this Agreement and for two years following termination of the 18-month term of his consulting obligation, Consultant will not, without Matech's prior written consent, use, publish, or disclose or authorize anyone else to use, publish, or disclose, any confidential information pertaining to Matech or its affiliated entities, including, without limitation, any information relating to existing or potential business, customers, trade or industrial practices, plans, costs, processes, technical or engineering data, or trade secrets; provided, however, that Consultant shall be prohibited from ever using, publishing, or disclosing or authorizing anyone else to use, publish, or disclose any confidential information which constitutes a trade secret under applicable law. The foregoing notwithstanding, Consultant has no obligation to refrain from using, 3 PAGE 3 CONSULTING AGREEMENT publishing, or disclosing any such confidential information which is or hereafter shall become available to the public otherwise than by Consultant's use, publication, or disclosure. This prohibition also does not prohibit Consultant from disclosing confidential information in response to lawful process compelling disclosure. On the other hand, Consultant shall provide reasonable notice to Matech of any such process to allow Matech to timely object to such disclosure. 7. RETURN OF DOCUMENTS. Within five days of termination of the 18-month consulting period under this Agreement, Consultant shall return to Matech or destroy all of Matech's papers, documents, and things, including information stored for use in or with computers and software applicable to Matech's business and all copies of such papers, documents, and things, which are in Consultant's possession, custody, or control and Consultant shall certify in writing that he has complied with this provision. 8. AGREEMENT ON FAIRNESS. Consultant acknowledges that: (i) this Agreement has been specifically bargained between the parties and reviewed by Consultant and his counsel and (ii) the covenants made by and the duties imposed upon Consultant hereby are fair, reasonable, and minimally necessary to protect the legitimate business interests of Matech, and such covenants and duties will not place an undue burden upon Consultant's livelihood. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date written below. Date: CONSULTANT /s/ Robert M. Bernstein 2/18/97 ------------------------------------ Robert M. Bernstein Date: MATERIAL TECHNOLOGY, INC. By: /s/ Robert M. Bernstein 2/18/97 ------------------------------------ Print Name and Title Robert M. Bernstein, President EX-4.11 12 EXHIBIT 4.11 1 Exhibit 4.11 CONSULTING AGREEMENT BETWEEN E.B. ADVISORY LIMITED AND SECURFONE AMERICA, INC. This Consulting Agreement (the "Agreement") is made and is effective as of the 1st day of August, 1996, by and between E.B. Advisory Limited, a Jersey corporation ("E.B.A."), and SecurFone America, INC., a Delaware corporation ("S.A.I."), with reference to the following facts: RECITALS: A. S.A.I. is engaged in the business of providing prepaid cellular and landline telephone services. B. E.B.A. has been organized to engage in the business of providing consulting and technical advice to businesses with respect to operations throughout the world and, in particular, the United Kingdom, the European Community, and the Caribbean. C. S.A.I. wishes to obtain the consulting and advisory services of E.B.A. to provide advice and assistance in connection with the location and negotiation of opportunities by which S.A.I. can sell and install its products and equipment throughout the world. AGREEMENTS: Now, therefore, in consideration of the foregoing recitals and of the mutual covenants and conditions hereinafter set forth, the parties hereto agree as follow: 1. INDEPENDENT CONTRACTOR RELATIONSHIP 1.1 ENGAGEMENT. S.A.I. hereby engages E.B.A. and E.B.A. hereby accepts engagement by S.A.I., subject to all of the terms and conditions set forth in this consulting agreement, during the term specified in Section 3, below, of this 2 Consulting Agreement. 1.2 RELATIONSHIP CREATED. For purposes of this Consulting Agreement, the 1.3 relationship created between E.B.A. and S.A.I. shall be that of independent contractor, and not that of employer/employee, principal/agent, partner, joint venturers, vendor/vender, or otherwise. It is understood that each party to this Consulting Agreement is placing its trust and confidence in each other's best interests and thus create a reciprocal confidential relationship. 2. Duties of E.B.A. 2.1 GENERAL DUTIES. E.B.A. shall do and perform all services, acts or things necessary or advisable to advise counsel and assist S.A.I. in locating business opportunities throughout the world for the sale of the products and services of S.A. I., subject always to the policy set by the Board of Directors of S.A.I. Notwithstanding any other provision of this Consulting Agreement, E.B.A. shall not have the authority to sign or to enter into any contracts on behalf of S.A.I. without the prior written approval of the board of directors of S.A.I. Specifically E.B.A. shall: l. Provide feasibility analysis to SecurFone America regarding potential of licensing technology and potential licensees. 2. Create specific license program and platform for SecurFone America to benefit from technology it has developed. 3. Assist in determination of licensee valuations and payment options. 2.2 DEVOTION OF TIME. E.B.A. shall devote such productive time, ability, and attention to the business of S.A.I. as E.B.A. shall determine in its sole discretion. 3 During the term hereof, E.B.A. may devote time to other business interests, including without limitation, other consulting clients, provided however, that E.B.A. shall not act on behalf of any other person firm or company which is engaged, directly or indirectly in a business which competes with the business of S.A.I. 2.3 LIMITATION ON PLACE OF SERVICES. It is expressly understood and agreed that E.B.S., shall not render any services pursuant to this Consulting Agreement within the United States of America or within any possessions or territories thereof. 3. TERMS AND TERMINATION 3.1 TERM. The initial term of this Consulting Agreement shall be for a period of two (2) years, commencing as of the effective date of this Consulting Agreement and ending on August 31, 1998, unless sooner terminated pursuant to the provisions of this Section 3. Unless otherwise terminated, this Consulting Agreement may be extended from year to year by agreement of the parties. 3.2 TERMINATION BY E.B.A. E.B.A. may terminate this Consulting Agreement with or without cause at any time upon ten (10) days written notice to S.A.I. 4. COMPENSATION OF E.B.A. As compensation for services to be rendered by E.B.A. hereunder, E.B.A. shall receive a consulting fee (the "Fee") during the term of this Consulting Agreement in the amount of SEE ATTACHED SCHEDULE, plus reimbursement of any out-of-pocket expenses reasonably incurred by E.B.A. in carrying out its services hereunder which are approved in advance by the board of directors of S.A.I. Any sales or value added taxes payable with respect to such compensation shall be borne entirely by E.B.A. Any exchange control or other permits or approvals necessary to carry out the payment terms of this Consulting Agreement shall be obtained by E.B.A. at its 4 own expense. 5. RELATIONSHIP OF PARTIES 5.1 E.B.A.'S EXPENSES. During the term of this Consulting Agreement, E.B.A. shall be an independent contractor with respect to S.A.I. Accordingly, except as provided herein, E.B.A. shall hear all of its own expenses in performing its services within British Virgin Islands pursuant to this Consulting Agreement, including, without limitation, automobile, telephone, travel within Europe and the United Kingdom, office telephone business promotion within Europe and the United Kingdom, entertainment within Europe and the United Kingdom, taxes, insurance, and legal and accounting expenses. 5.2. REIMBURSED EXPENSES. Notwithstanding the provisions of Paragraph 5.1, immediately above, S.A.I. shall reimburse E.B.A. for all reasonable travel, business promotion and entertainment expenses incurred by E. B.A. outside of Europe and the United Kingdom if and to the extent that such expenses are reasonably calculated to further the business interests of S.A.I. and are approved in advance by the board of directors of S.A.I. 5.3. INDEPENDENCE OF PARTIES. No agency, employment, partnership or joint venture is intended to be created by this Consulting Agreement. Each party hereto shall refrain from making any representation tending to create an apparent agency, employment, partnership or joint venture relationship between the parties. 6. GENERAL PROVISIONS 6.1 SEVERABILITY. The invalidity of any provision of this Consulting Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. 6.2 WAIVERS AND CONSENT. No waiver of any provision hereof shall be deemed a waiver of any other provision hereof, or of any subsequent breach of the same or any other provision. Consent to or approval by either party of any action shall not be deemed to render 5 unnecessary the obtaining of such party's consent to or approval of any subsequent acts. 6.3 ENTIRE AGREEMENT; AMENDMENT. This Consulting Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained herein and supersedes all prior negotiation, agreements, statements of understanding, presentation, and proposals of the parties. No supplement, modification, or amendment to this consulting Agreement shall be binding unless executed in writing by E.B.A. and S.A.I. 6.4 NOTICES. Any written notice, demand, request or other communication required or permitted to be given hereunder shall be in writing and may be served personally, by telecopier, or by registered mail, postage repaid, and return receipt request, addressed as follow: If to E.B.A.: E.B. Advisory Limited P.O. Box 544 Britannia Place Bath Street St. Helier, Jersey Channel Island If to S.A.I.: SecurFone America, Inc. 5850 Oberlin Drive, Suite 220 San Diego, CA 92121 United States of America 6.5 GOVERNING LAW. This Consulting Agreement shall be governed by, and construed in accordance with, the laws of the Jersey. 6.6 ARBITRATION; ATTORNEY'S FEES. Any dispute or conflict arising out of or related to this Consulting Agreement shall be submitted to binding arbitration before a single retired judge of the Jersey Royal Court appointed by the Clerk of the Royal Court or an ex parts motion by either party. Said arbitration shall be conducted in St. Helier, Jersey, and the parties shall be bound by the results of such arbitration. Further, the prevailing party in such arbitration or in any other legal proceeding arising out of or resulting from this Consulting Agreement 6 shall be entitled to recover its costs and fees, including reasonable attorney's fees, from the other party. 6.7 SURVIVAL OF PROVISIONS. Each of the covenants, agreements, representations and warranties contained herein shall, to the extent applicable, survive the termination of this Consulting Agreement. 6.8 AUTHORIZED AGENT. The persons executing this Consulting Agreement on behalf of E.B.S. and S.A.I. hereby represent and warrant to each other that they are the duly authorized representatives of their respective entities and that each has taken all necessary corporate action to ratify and approve the execution of this Consulting Agreement in accordance with its terms. 6.9 ADDITIONAL DOCUMENTS. Each of the parties to this Consulting Agreement agrees to provide such additional duly executed agreements, documents and instruments as may be reasonably requested by the other party in order to carry out the purposes and intent of this consulting Agreement. Without limiting the generality of the foregoing, E.B.A. shall at the request of S.A.I., provide to S.A.I. such documents as S.A.I. withholding taxes upon any payments from S.A.I. to E.B.A. pursuant to this Consulting Agreement. In Witness Whereof, the parties hereto have executed this Consulting Agreement, consisting of 5 pages, including this page, as of the date set forth above. E.B.A. E.B. Advisory Limited, a Jersey Corporation By: /s/ Paul A. Jackson Director ----------------------------------------- S.A.I. SecurFone America, INC., a Delaware corporation By: /s/ Michael Lee ----------------------------------------- Michael Lee, CFO 7 SCHEDULE "A" Compensation as expressed in % of SecurFone America Inc. issued stock.
SecurFone America Inc. license income E.B.A. compensation ------------------------------------- ------------------- $250,000 2.5% $500,000 5.0% $1,000,000 10.0%
EX-4.12 13 EXHIBIT 4.12 1 Exhibit 4.12 CONSULTING AGREEMENT -------------------- THIS CONSULTING AGREEMENT (the "Agreement") entered into this 11th day of November, 1996, by and between SECURFONE AMERICA, INC., a Delaware corporation (hereinafter referred to as the "Company"), and AL JUGO, an individual ("Consultant"). RECITALS: WHEREAS, the Company is engaged in the wireless communications industry and in the debit or prepaid cellular business industry (the "Company Business"); WHEREAS, Consultant has experience, knowledge and expertise related to one or more facets of the Company Business; WHEREAS, the Company desires to engage Consultant to perform various consulting services as an independent contractor; WHEREAS, Consultant has indicated to the Company a desire and willingness to undertake an engagement as a consultant for the Company, upon the terms and conditions set forth below. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and representations contained herein, the parties hereby agree as follows: 1. ENGAGEMENT. The Company does hereby engage Consultant, and Consultant does hereby accept the engagement, to use Consultant's best efforts in the furtherance of the following assignments: (i) to oversee network design and implementation, (ii) to oversee indirect and direct sales, and (iii) to serve as a liaison between the Company and carriers. 2. DUTIES. Consultant's duties hereunder shall be to engage in such activities as will most efficiently accomplish the engagement described in paragraph 1 above. 3. TERM. The term of this Agreement shall extend from October 15, 1996 through December 31, 1996. 4. COMPENSATION. The Company agrees to pay, as full compensation for Consultant's labors, efforts, services, covenants and agreements provided for herein, including any covenants of confidentiality and noncompetition, consulting fees at the rate of Eight Thousand Five Hundred Dollars ($8,500) per month during the term. 5. INDEPENDENT CONTRACTOR. (a) The parties mutually acknowledge that Consultant is not an employee of the Company for any purpose whatsoever, but is and shall be at all times an independent 2 contractor. The Company shall not have control over Consultant as to the location of Consultant's place of business, the employment of its personnel, or the manner or means of its performance of its duties and responsibilities hereunder (except as specifically provided in this Agreement). (b) As an independent contractor, all overhead expenses for the operation of Consultant's activities, including, without limitation, insurance, employees (including the withholding and payment of all applicable taxes with respect to employees), office rent, supplies, lights, stenographic and clerical assistance, telephone, facsimile and telegrams, agency licenses and taxes, etc. shall be borne by Consultant. The Company will provide the Consultant with a cellular phone and will also reimburse the Consultant for any other expenses incurred by the Consultant when conducting business on behalf of the Company. (c) Consultant is not authorized to enter into any agreements in the name of the Company. 6. COVENANTS OF CONSULTANT. Consultant covenants and agrees as follows: (a) Employee agrees to retain in strictest confidence, and not use for the benefit of himself or others (except in connection with the business and affairs of the Company) any and all information learned by Consultant in connection with his employment at the Company, including without limitation, information which is proprietary to the Company, is retained in confidence by the Company, is treated as confidential information by the Company, constitutes a trade secret of the Company, and/or which, by its nature, is sufficiently sensitive that it should be deemed to be confidential. (b) Consultant agrees that for a period of two (2) years following the termination of his engagement hereunder, he will not, directly or indirectly, contact or solicit any person or entity which was a customer of the Company with which he worked during his engagement, or which Consultant solicited on behalf of the Company, for the purpose of inducing such person or entity to become a customer of a cellular/wireless or paging provider which competes with the Company. Further, Consultant agrees that he will not provide information to third parties which will enable them to accomplish indirectly what the terms of this Agreement prohibit Consultant from doing directly. (c) Consultant further agrees that, to the extent the Company has, in the ordinary course of its business, entered into contracts with other entities which subject the Company to non-disclosure requirements and covenants not to compete which provide, by their terms, an intent to bind employees of the Company, Consultant shall honor such provisions to the extent that they are applicable to employees of the Company, so long as and to the extent that he has knowledge of their existence. (d) It is understood that the Company is a part of a group of "affiliated" companies and that from time to time Consultant may perform services for these affiliated companies and be compensated therefor. To the extent Consultant performs such sevices for -2- 3 affiliated companies, the rights of Consultant and the affiliated company shall be subject to the terms and provisions of this Agreement, unless a separate written agreement exists between the affiliated company and Consultant with respect to such work. 7. TERMINATION. (a) TERMINATION BY EITHER PARTY. Either party shall have the right to terminate this Agreement if the other party is in breach or in default in the performance of any of the terms, obligations, covenants, representations or warranties under this Agreement which breach or default has not been waived in writing by the non-defaulting party. (b) EFFECT of TERMINATION. Upon the expiration of this Agreement, or its termination for any reason: (i) Consultant shall immediately thereupon cease and desist from acting on behalf of the Company in any manner whatsoever; (ii) Consultant shall return to the Company any documents, forms, written information, or other data provided by the Company to Consultant during the course and operation of this Agreement, including both Confidential Information and information which is not confidential; and (iii) the termination shall not affect any financial obligations of either party to the other with respect to obligations incurred prior to the date of termination. 8. NON-ASSIGNMENT. This Agreement is a personal services contract and it is expressly agreed that the rights and interests of Consultant and the Company hereunder may not be sold, transferred, assigned, pledged or hypothecated; provided, however that the Company may assign its rights and obligation hereunder to its parent company, wholly-owned subsidiary or affiliate of the Company, whether presently existing or formed after the date hereof. 9. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their heirs, agents and successors. 10. SEVERABILITY. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 11. REMEDIES CUMULATIVE; NO WAIVER. All remedies specified herein or otherwise available shall be cumulative and in addition to any and every other remedy provided hereunder or now or hereafter available. No waiver or failure (intentional or unintentional) to act with respect to any breach or default hereunder shall be deemed to be a waiver with respect to any subsequent breach or default, whether of a similar or different nature. 12. NOTICES. Whenever written notice is required herein, such notice shall be given by registered or certified mail, return receipt requested, as follows: -3- 4 (a) As to the Company: SecurFone America, Inc. Attn: President 14 East Main Street Somerville, NJ 08876 (b) As to Consultant: Mr. Al Jugo 428 Sevilla Avenue Coral Gables, FL 33134 (c) Nothing herein shall preclude or prevent the parties from designating any additional or other persons or entities to whom notice is to be given, provided written notification of such designation is first given to the other party in the manner described in this paragraph. 13. GOVERNING LAW. This Agreement and all provisions hereunder shall be governed by and construed in accordance with the substantive law of the State of Delaware and shall, for all purposes, be deemed to have been entered into in the State of Delaware. 14. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 15. AMENDMENT. This Agreement may not be changed orally, but may be amended, superseded, canceled or modified, and the terms hereof may be waived, only by an instrument in writing signed by each of the parties, or, in the case of a waiver, signed by the party against whom enforcement of such waiver is being sought. 16. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and understanding between the Company and Consultant with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect thereof. IN WITNESS WHEREOF, the parties have hereunto executed this Agreement in duplicate original on the date and year first set forth above. SECURFONE AMERICA, INC. By: /s/ William P. Steuber II ------------------------------ Its: CEO / President ------------------------------ /s/ Alfonso Jugo AL JUGO -4- EX-4.13 14 EXHIBIT 4.13 1 Exhibit 4.13 CONSULTING AGREEMENT BETWEEN SECURFONE AMERICA, INC. AND TERRI A. WELLES THIS CONSULTING AGREEMENT (the "Agreement") is made and is effective as of October 1, 1997, by and between SECURFONE AMERICA, INC., a Delaware corporation (the "Corporation") and TERRI A. WELLES, an individual (the "Consultant") with reference to the following facts: R E C I T A L S A. The Corporation is engaged in the business of providing prepaid cellular and landline telephone services. B. The Consultant has developed significant skill, expertise and goodwill in the field of media relations and marketing through the internet. C. The Corporation desires to retain the Consultant in the capacity of independent consultant on behalf of the Corporation to provide advisory and consulting services to the Corporation. D. The Consultant desires to accept such arrangement with the Corporation in such capacity and is willing to render such services to the Corporation, subject to the terms and conditions set forth herein. E. The Consultant has represented and warranted to the Corporation that the Consultant is free to enter into this Agreement and to perform all of the duties and obligations of the Consultant pursuant hereto. A G R E E M E N T S NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual covenants and conditions hereinafter set forth, the parties hereto agree as follows: 1. INDEPENDENT CONTRACTOR RELATIONSHIP 1.1 ENGAGEMENT. The Corporation hereby engages the Consultant, and the Consultant hereby accepts engagement with the -- 1 -- 2 Corporation, subject to all of the terms and conditions set forth in this Agreement, during the term specified in Section 3, below, of this Agreement. 1.2 RELATIONSHIP CREATED. For purposes of this Agreement, the relationship created between the Corporation and the Consultant shall be that of independent contractor, and not that of employer/employee, principal/agent, partner, joint venturers, vendor/vender, or otherwise. It is understood that each party to this Agreement is placing its trust and confidence in the other to perform all duties contained herein and to act in each other's best interests and thus create a reciprocal confidential relationship. 2. DUTIES OF THE CONSULTANT 2.1 GENERAL DUTIES. The Consultant shall do and perform all services, acts or things necessary or advisable to assist the media relations and internet advertising activities of the Corporation, subject always to the policy set by the Board of Directors and the President of the Corporation. In particular, the duties of the Consultant shall include the following: (a) The Consultant shall advise the Corporation with respect to its relations with the media, for advertising, marketing and public relations purposes; (b) The Consultant shall, at such times and in such manner as shall be determined by the Corporation, appear on behalf of the Corporation and shall act on behalf of the Corporation as a media representative and spokesperson of the Corporation, and, in such capacity, the Consultant shall permit the Corporation to use the name and likeness of the Consultant for public relations purposes (provided however, that the Corporation shall not be entitled to use the name or likeness of the Consultant for advertising or marketing purposes without the consent of the Consultant); (c) The Consultant shall assist the Corporation in establishing, maintaining and exploiting a web site on the internet; (d) The Consultant shall utilize her best efforts to develop new business for the Corporation; (e) The Consultant shall advise the management of the Corporation of any breakdown or potential breakdown in relations with the media and shall attempt to ensure that corrective action is taken by the Corporation; and -- 2 -- 3 (f) The Consultant shall NOT enter into any contracts on behalf of the Corporation pursuant to which the Corporation shall be obligated to pay any money to any third party without the prior written approval of the Corporation. 2.2 DEVOTION OF TIME. The Consultant shall devote such productive time, ability, and attention to the business of the Corporation as the Consultant shall determine in her sole discretion. During the term hereof, the Consultant may devote time to other business interests, provided however, that the Consultant shall not cause or permit any customer or account of the Corporation to be solicited for or on behalf of any other person engaged in competition with the Corporation. 2.3 ADHERENCE TO RULES. The Consultant at all times during the term of this Agreement and in the performance her duties pursuant to this Agreement shall strictly adhere to and obey all of the rules and regulations of the Corporation now in effect or subsequently modified governing the conduct of representatives of the Corporation. Without limiting the generality of the foregoing, the Consultant expressly represents and warrants to the Corporation that the Consultant shall not engage in any activity, arrangement or transaction which violates any provision of Federal, State or local law. 2.4 LOYAL PERFORMANCE. The Consultant agrees that, to the best of her ability and experience, she will at all times loyally and conscientiously perform all the duties and obligations either expressly or implicitly required of her by the terms of this Agreement. 3. TERM AND TERMINATION 3.1 TERM. The term of this Agreement shall be for a period of one (1) year, provided that this Agreement may be terminated at any time by the Corporation or by the Consultant on written notice to the other, with or without cause. 3.2 DUTIES UPON TERMINATION OF THIS AGREEMENT. Upon termination of this Agreement by either party: (a) Neither party shall be released or discharged from any obligation, debt or liability which has previously accrued and remains to be performed as of the date of such termination; (b) All compensation (as defined in Paragraph 4.1, below, of this Agreement), paid to the Consultant shall remain the property of the Consultant without any refund, proration or set-off; and -- 3 -- 4 (c) The Consultant shall return to the Corporation any and all physical embodiments of the trade secrets of the Corporation, including, but not limited to, any and all Information (as defined in Paragraph 6.1 below), which is in the possession of the Consultant or any third party to whom the Consultant have delivered such physical embodiment. 4. COMPENSATION OF THE CONSULTANT 4.1 IN GENERAL. As compensation for the services to be rendered by the Consultant hereunder, the Corporation shall issue and deliver to the Consultant TEN THOUSAND (10,000) fully paid and non-assessable shares of common capital stock (the "Shares") of the Corporation. 4.2 RESTRICTIONS ON THE SHARES. The Consultant acknowledges and agrees that: (i) the Shares, when issued by the Corporation, shall be subject to restrictions and limitations on transferability of the Shares pursuant to Federal and State securities laws; and (ii) the Consultant shall not sell, assign, transfer, hypothecate or convey the Shares without first complying with all applicable Federal and State securities laws. 4.3 VALUATION OF THE SHARES. The Consultant acknowledges and agrees that the Corporation has made no representations or warranties to the Consultant with respect to the current value of the Shares or with respect to any possible future value of the Shares. The Consultant further acknowledges and agrees that the Shares represent a speculative investment and that, in the event that the Shares decline in value, the Corporation (including, without limitation, its officers, directors, employees, shareholders, agents and representatives) shall have no obligation to pay any further or additional compensation to the Consultant pursuant to this Agreement. 5. RELATIONSHIP OF PARTIES 5.1 CONTRACTOR'S EXPENSES. During the term of this Agreement, the Consultant shall be an independent contractor with respect to the Corporation and shall not be an employee of the Corporation. Accordingly, the Consultant shall bear all of her own expenses in performing her services pursuant to this Agreement, including, without limitation, automobile, telephone, travel, office, telephone, business promotion, entertainment, taxes, insurance, and legal and accounting expenses. The Consultant shall not be entitled to any of the benefits provided by the Corporation to its employees, and the Consultant specifically waives, and agrees to indemnify and hold harmless the Corporation against, any claim including, without limitation, health or life insurance, vacation pay, sick pay, retirement or pension benefits, Social Security contributions, workers' -- 4 -- 5 compensation insurance, state disability insurance, F.I.C.A. or F.U.T.A. tax payments, reimbursement of business related expenses, welfare and pension benefits and obligations of the Corporation under the Employee Retirement Income Security Act of 1974, or other benefits of any kind customarily afforded to an employee. The Consultant acknowledges that she is aware of her obligations to pay payroll, self-employment, income, license, franchise and other taxes, and the Consultant agrees to pay all such taxes as required by law and to indemnify and hold harmless the Corporation from and against any claim, expense, loss, liability or damage relating thereto. 5.2 INDEPENDENCE OF PARTIES. No agency, employment, partnership or joint venture is intended to be created by this Agreement. Each party hereto shall refrain from making any representation tending to create an apparent agency, employment, partnership or joint venture relationship between the parties. Neither the Consultant nor any of her employees, agents or subcontractors shall have any claim against the Corporation for any compensation or remuneration except as otherwise provided in paragraph 4.1, above of this Agreement. 6. PROPRIETARY INTERESTS AND RIGHTS OF THE CORPORATION 6.1 TRADE SECRETS AND CONFIDENTIAL INFORMATION. Upon termination of his Agreement by either party for any reason whatsoever (or for no reason), the Consultant shall immediately surrender and deliver to the Corporation all property belonging to the Corporation (excluding the Shares, which shall constitute the property of the Consultant), including, without limitation, policies, procedures, operating manuals, business practices, forms, contracts, customer lists, pricing schedules and other information which will be used in operating the Corporation's business and which are a trade secret nature or confidential information (collectively, the "Information"), it being understood by the Consultant that the Information and any documents or instruments evidencing the Information are and have always been the exclusive property of the Corporation and that the Consultant shall not make or use any copies thereof. 6.2 REMEDIES FOR BREACH. The Consultant agrees that the remedy at law for any breach of the foregoing Paragraph 6.1 will be inadequate, and that the Corporation shall be entitled, in addition to any other remedies it may have under this Agreement or at law, to injunctive and other equitable relief against the Consultant for any such breach. -- 5 -- 6 7. REPRESENTATIONS OF CONTRACTOR 7.1 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR. The Consultant represents and warrants to the Corporation as follows: (a) The Consultant has all right, power and authority to enter into this Agreement and to perform all of her obligations pursuant hereto without the consent or approval of any other person. (b) The Consultant is not subject to or a party to any covenant or agreement not to compete with any third party in connection with the business of the Corporation or to refrain from soliciting or servicing any business in connection with such business. (c) In performing her obligations pursuant to this Agreement, the Consultant will not be violating the terms of any agreement, understanding, covenant, obligation, law, rule or undertaking, whether oral or written, express or implied, to which the Consultant is subject. (d) In performing her obligations pursuant to this Agreement, the Consultant shall not knowingly utilize or exploit in any way any policies, procedures, operating manuals, business practices, forms, contracts, customer lists, pricing schedules or similar property belonging to any other person, firm or entity without the express written consent of such other person, firm or entity. 7.2 REPRESENTATIONS TO SURVIVE. The representations and warranties set forth in this Section 7 shall be true and correct as of the date of this Agreement and throughout the entire term of this Agreement and shall survive termination of this Agreement. All of the representations and warranties set forth in this Section 7 have been made by the Consultant after conferring with legal counsel of her choice. 8. GENERAL PROVISIONS 8.1 SEVERABILITY. The invalidity of any provision of this Agreement, as determined by a Court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. 8.2 WAIVERS AND CONSENT. No waiver of any provision hereof shall be deemed a waiver of any other provision hereof, or of any subsequent breach of the same or any other provision. Consent to or approval by either party of any action shall not be deemed to -- 6 -- 7 render unnecessary the obtaining of such party's consent to or approval of any subsequent acts. 8.3 HEADINGS. The headings of Sections, paragraphs and subparagraphs in this Agreement are for convenience and reference only, and they in no way define, limit, or describe the scope or intent of this Agreement or of the provisions of such Sections, paragraphs or subparagraphs. 8.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained herein and supersedes all prior negotiations, agreements, statements of understanding, presentations, and proposals of the parties. No supplement, modification, or amendment to this Agreement shall be binding unless executed in writing by the Corporation and the Consultant. The Consultant acknowledges that she has been advised by independent counsel of her choice prior to entering into this Agreement. 8.5 NOTICES. Any written notice, demand, request or other communication required or permitted to be given hereunder shall be in writing and may be served personally or by registered mail, postage prepaid, and return receipt request, addressed as follows: IF TO THE CORPORATION: William Stueber, President Securfone America, Inc. 5850 Oberlin Drive, Suite 220 San Diego, CA 92121 IF TO THE CONSULTANT: Ms. Terri A. Welles 12992 Carmel Creek Road #163 San Diego, CA 92130-2132 or to such other address as such party may have advised the other parties to this Agreement in writing. Any such notice shall be deemed to have been given as of the date so delivered, if delivered personally, or as of the third (3RD) business day following the date of deposit in the United States mail. 8.6 ASSIGNABILITY; BINDING EFFECT. The Consultant shall not be entitled to delegate any of her duties hereunder without the prior written consent of the Corporation, and any attempted delegation in violation hereof shall be void and ineffectual. This Agreement shall bind and inure to the parties, their personal representatives, successors and permitted assigns. 8.7 ARBITRATION. The parties hereby agree to use their best efforts to resolve any differences that may arise pursuant to the performance of their obligations under this Agreement. In the event that any such differences cannot be resolved, the --7-- 8 subject matter of such dispute between the parties shall be submitted to final and binding arbitration by the American Arbitration Association in San Diego County, State of California, in accordance with the commercial rules then existing of the American Arbitration Association. In any such arbitration proceeding, the parties shall have the same rights of discovery as they would have pursuant to the California Civil Discovery Act as if an action were filed in the California Superior Court. Notwithstanding any provision to the contrary set forth herein, the Corporation shall be entitled to seek injunctive relief against the Consultant from a court of competent jurisdiction if the Consultant violates or attempts to violate any of the covenants, conditions, terms and provisions of this Agreement. 8.8 ATTORNEYS' FEES. If either party brings an arbitration proceeding or an action for judicial review or enforcement of the arbitration proceedings, award or decision, or of this Agreement, the prevailing party in any such arbitration or action, on trial and/or appeal, shall be entitled to its reasonable attorneys' fees to be paid by the non-prevailing party as fixed by the arbitrator or the court, as the case may be. 8.8 FURTHER ASSURANCES. Each of the parties agrees to execute, acknowledge and deliver such further instruments and documents and to do all such further acts as may be necessary and proper to carry out and effectuate the terms of this Agreement. 8.9 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which taken together shall constitute but one and the same instrument which may be sufficiently evidenced by one counterpart signed by the party who is to be charged with it. 8.10 PRONOUNS, PLURALITY. All pronouns and any variation thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons, entity or entities, may require. As used herein, the singular shall constitute the plural and the plural shall constitute the singular where appropriate. 8.11 GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. 8.12 AUTHORIZED SIGNATORY. The person executing this Agreement on behalf of the Corporation hereby represents and warrants to the Consultant that he is the duly authorized representative of the Corporation and that the Corporation has taken all necessary corporate action to ratify and approve the execution of this Agreement in accordance with its terms. -- 8 -- 9 8.13 SURVIVAL OF PROVISIONS. Each of the covenants, agreements, representations and warranties contained herein shall, to the extent applicable, survive the termination of this Agreement. 8.14 INTERPRETATION OF AGREEMENT. This Agreement shall be interpreted as if it were prepared by both of the parties hereto and no rule of construction shall be applied with respect to either party as the preparer of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, consisting of 9 pages, including this page, as of the date set forth at the beginning of this Agreement. THE CORPORATION: SECURFONE AMERICA, INC., a Delaware corporation By: /S/ WILLIAM STUEBER ---------------------------- William Stueber, President THE CONSULTANT: /S/ TERRI WELLES ------------------------------- TERRI A. WELLES -- 9 -- EX-4.14 15 EXHIBIT 4.14 1 Exhibit 4.14 DILL DILL CARR STONBRAKER & HUTCHINGS A PROFESSIONAL CORPORATION ATTORNEYS AT LAW - ------------------------------------------------------------------------------- Daniel W. Carr Leslie Block Kaye* John J. Coates Fay M. Matsukage** H. Alan Dill Casey Paison Robert A. Dill Jon Stonbraker Thomas M. Dunn Craig A. Stoner John A. Hutchings Patrick D. Tooley ------- Lori Ann Y. Fujioka of Counsel July 11, 1997 * Also licensed in Arizona and New York **Also licensed in Nevada SecurFone America, Inc. William P. Stueber II 14 East Main Street Somerville, NJ 08876 Dear Bill: This letter will serve, with your consent, as a memorandum of our agreement with respect to the fee arrangement for our representation of SecurFone America, Inc. (the "Client") and Dill, Dill, Carr, Stonbraker & Hutchings, P.C. relative to corporate and general business matter of the Client. My hourly rate is $250 per hour, with respect to the time that I spend on such matters. Time expended by other partners of the Firm will also be billed at the rate of $225 per hour. In addition, any time expended by associates of the Firm will be billed to you at the rate of $175 per hour. Any time expended by law clerks and paralegals will be billed to you at the rate of $75 per hour. All such fees are subject to increase should Dill, Dill, Carr, Stonbraker & Hutchings adopt a general increase in its fees. However, such increase shall be subject to your prior written approval. In the event that any travel time is required in connection with our representation, such travel time will also be billed accordingly. In addition, any out-of-pocket costs associated with this matter, including such items as filing fees, investigation fees, petitioning fees, fax charges, expedited mailing or messenger service, or computer research time billed to the Firm, will also be charged to you. The costs and time mentioned above will be billed on a monthly basis. All billings will be paid within twenty (20) days of receipt. Failure to timely pay any billing shall result in our stopping all work in progress. - -------------------------------------------------------------------------------- 455 SHERMAN STREET, SUITE 300 / DENVER, COLORADO 80203 / FAX (303)777-3823 / (303) 777-3737 E-mail: dillndill@aol.com 2 We agree that the Firm may withdraw as your attorneys and terminate this agreement for any just reason by notice in writing. We agree that reasons for such termination include the Client's failure to pay the Firm's fees or expenses within twenty (20) days of the transmission of any bill, the Client's failure to cooperate with the Firm, as well as any action or request by the Client which would require the Firm to act in an unethical manner. The Firm shall not accept service of any nature whatsoever without the written consent of the party sought to be served. If you accept this agreement, please be so kind as to sign the enclosed copy of this letter, and return it to me in the envelope which is also enclosed for your convenience. In the event that you have any questions or problems concerning the fee arrangement or there is any other matter associated with the case which I have failed to cover to date, please do not hesitate to contact outside counsel or myself at your convenience. Very truly yours, DILL, DILL, CARR, STONBRAKER & HUTCHINGS A Professional Corporation By: /S/ JOHN A. HUTCHINGS John A. Hutchings JAH:np enc. APPROVED AND AGREED UPON THE FOREGOING TERMS AND CONDITIONS: Client: SECURFONE AMERICA, INC. By:/s/ WILLIAM P. STUEBER, II Date: 10/15/97 -------------------------------- ----------------------------- William P. Stueber, II President EX-4.15 16 EXHIBIT 4.15 1 Exhibit 4.15 DILL DILL CARR STONBRAKER & HUTCHINGS A PROFESSIONAL CORPORATION ATTORNEYS AT LAW - ------------------------------------------------------------------------------ Daniel W. Carr Leslie Block Kaye* John J. Coates Fay M. Matsukage** H. Alan Dill Casey Paison Robert A. Dill Jon Stonbraker Thomas M. Dunn Craig A. Stoner John A. Hutchings Patrick D. Tooley ------- Lori Ann Y. Fujioka of Counsel October 13, 1997 * Also licensed in Arizona and New York **Also licensed in Nevada William P. Stueber II President SecurFone America, Inc. 14 East Main Street Somerville, NJ 08876 RE: ADDENDUM TO FEE AGREEMENT Dear Bill: This letter will serve, with your consent, as an addendum to the fee arrangement contained in our letter dated July 11, 1997. SecurFone America, Inc. (the "Client") agrees to issue to Dill Dill Carr Stonbraker & Hutchings, P.C. (the "Firm") 10,000 shares of common stock of SecurFone America, Inc., and the Firm agrees to accept 10,000 shares of common stock of the Client in exchange for legal services provided by the Firm to the Client. All other terms of the fee arrangement contained in the July 11, 1997 agreement shall remain unchanged. Very truly yours, DILL DILL CARR STONBRAKER & HUTCHINGS, a Professional Corporation By: /s/ JOHN A. HUTCHINGS --------------------------------- John A. Hutchings JAH:vkd Enclosures - ------------------------------------------------------------------------------- 455 SHERMAN STREET, SUITE 300 / DENVER, COLORADO 80203 / FAX (303) 777-3823 / (303) 777-3737 E-mail: dillndill@aol.com 2 William P. Stueber II October 16, 1997 Page 2 APPROVED AND AGREED UPON THE FOREGOING TERMS AND CONDITIONS CLIENT: SECURFONE AMERICA, INC. By:/s/ WILLIAM P. STUEBER, II ------------------------------------ William P. Stueber, II President EX-4.16 17 EXHIBIT 4.16 1 Exhibit 4.16 KOHRMAN JACKSON & KRANTZ P.L.L. ATTORNEYS AT LAW 20th FLOOR, ONE CLEVELAND CENTER CLEVELAND, OHIO 44114 ------- Steven L. Wasserman 216-696-8700 Sheila J. Pecek, Assistant Direct Dial: 216-736-7220 TELECOPIER Direct Dial: 216-736-7267 E-mail: slw@kjk.com 216-621-6536 E-mail: sjp@kjk.com August 1, 1996 Nicholas R. Wilson, President SecurFone America, Inc. 2016 Catalina Marie Las Vegas, NV 89014 Re: FEE AGREEMENT FOR PROFESSIONAL SERVICES Dear Nick: This letter will confirm our agreement concerning on-going representation of SecurFone America, Inc. It has been our experience that the attorney-client relationship works best when there is a mutual understanding about fees, terms and billing procedures. Thus, in order to avoid any misunderstanding, it is the policy of our firm to require a written agreement. LEGAL FEES - ---------- Our fees for legal services shall be charged on an hourly basis and are based generally on the time requirements of the assignment. Our hourly billing rates range from $55.00 to $250.00 per hour. Paralegals' time is billed from $55.00 to $75.00 per hour, associates' time is billed from $85.00 to $160.00 per hour, and partners' time is billed from $170.00 to $250.00 per hour. We shall determine which of our attorneys shall be assigned to a particular matter from time to time, based upon considerations of allocations of attorneys' time and the degree of expertise of our attorneys in any given situation. Rate changes may occur from time to time during the course of our representation, but such changes ordinarily would not occur more frequently than annually. In special situations, other arrangements as to the method of calculating fees may be made by mutual agreement confirmed in writing. COSTS AND DISBURSEMENTS - ----------------------- Certain costs incurred in rendering legal services on your behalf, such as filing fees, long distance telephone calls, telecopier, messenger/courier services, computerized research (including LEXIS and Westlaw), copying and delivery charges, travel expenses, court reporter charges and the like, are payable by you. Invoices for such items will either be sent directly to you for payment, or, if advanced by the firm, will be billed to you by the firm. Large disbursement billings will ordinarily be forwarded to you for payment directly to the supplier. 2 KOHRMAN JACKSON & KRANTZ P.L.L. Nicholas R. Wilson, President August 1, 1996 Page 2 - ------------------------------- BILLING - ------- Statements for services rendered and costs advanced by the firm are rendered to clients at regular intervals, usually monthly. The monthly statement of account contains an itemization of services rendered and amounts outstanding, if any, as of the date the statement is prepared. Due to the manner in which certain costs and expenses are received and compiled, some expense items may actually be billed 30 to 60 days after they are incurred. PAYMENT; ISSUANCE OF COMMON STOCK - --------------------------------- All bills are payable immediately upon receipt. It is the policy of Kohrman Jackson & Krantz P.L.L. not to perform any work for any client who is more than thirty (30) days in arrears on any outstanding bill. Despite this policy, you have indicated that due to the nature of SecurFone's business there may be delays in payment while the company's network is being developed. We have agreed to accept payment in cash for 50% of our regular monthly billings together with full reimbursement of all costs and disbursements, with the balance of our fees will be payable in common stock of SecurFone at an agreed value of $2.50 per share. SecurFone agrees to issue such shares to the firm at such time as SecurFone becomes publicly traded, and SecurFone will register such shares at its sole expense. Our firm will advise you in writing of the total amount outstanding at the time such shares are to be issued. Thereafter, all billings shall be payable immediately upon receipt. ATTORNEYS FEES - -------------- Our firm or our assignees shall be entitled to recover the reasonable attorneys' fees incurred by or on behalf of our firm, or by or on behalf of our assignees, in any litigation, including appeals, instituted to collect our fees. ESTIMATES - --------- Any estimates of anticipated fees that we provide at the request of a client, whether for budgeting purposes or otherwise, are, due to the uncertainties involved, necessarily only an approximation of potential fees. Under no circumstances are such estimates a maximum or minimum fee quotation. Our actual fees will be determined in accordance with the policies described above. QUESTIONS ABOUT BILLING - ----------------------- You are encouraged to discuss any questions you have about statements rendered to you with me, the attorney primarily responsible for your account, or with our Accounting Department. 3 KOHRMAN JACKSON & KRANTZ P.L.L. Nicholas R. Wilson, President August 1, 1996 Page 3 - ----------------------------- CONFIRMATION - ------------ Please confirm your understanding and acceptance of the above terms by signing the acknowledgment on the enclosed copy of this letter and returning it to me. Throughout our representation we will remain prompt and accessible, and we will, of course, apprise you of all significant developments in this matter. If at any time you have any questions or concerns, please do not hesitate to contact me. Please call me if you should have any questions. I look forward to working with you. Very truly yours. /s/ Steven L. Wasserman Steven L. Wasserman SLW/sjp I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD THIS LETTER, AND THAT I AGREE TO ITS TERMS. SECURFONE AMERICA, INC. /s/ Nicholas R. Wilson --------------------------------------- NICHOLAS R. WILSON, PRESIDENT 8/2/96 CHAIRMAN -------------------------------------- DATE EX-5.1 18 EXHIBIT 5.1 1 Exhibit 5.1 KOHRMAN JACKSON & KRANTZ P.L.L. ATTORNEYS AT LAW 20th FLOOR, ONE CLEVELAND CENTER CLEVELAND, OHIO 44114 ------- 216-696-8700 TELECOPIER 216-621-6536 November 13, 1997 SecurFone America, Inc. 5850 Oberlin Drive, Suite 220 San Diego, California 92121 Re: Registration Statement on Form S-8 of SecurFone America, Inc. Ladies and Gentlemen: SecurFone America, Inc., a Delaware corporation (the "Company"), is filing with the Securities and Exchange Commission a registration statement on Form S-8 (the "Registration Statement"), under the Securities Act of 1933, as amended (the "Act"). The Registration Statement relates to the offering and sale by the Company of up to 2,000,900 shares (the "Shares") of the Company's Class A Common Stock, par value $0.001 per share (the "Common Stock"), pursuant to stock options ("Options") granted or to be granted under the SecurFone America, Inc. 1997 Stock Option Plan and the SecurFone America, Inc. 1997 Directors' Stock Option Plan (collectively, the "Option Plans"), and stock grants pursuant to an Employment Agreement between the Company and Derek Davis, Retainer Agreements between the Company and Jennifer Griffith, Michael R. Lee, Gregory F. Lepore, Stephanie Marusiak, Amy J. Pipoly, and Steven L. Wasserman, Consulting Agreements between the Company and Robert M. Bernstein, E.B. Advisory Limited, Al Jugo and Terri Welles, and Fee Agreements between the Company and Dill, Dill, Carr, Stonbraker & Hutchings, P.C. and Kohrman Jackson & Krantz P.L.L. (collectively the "Grant Agreements"). We have acted as counsel to the Company in connection with the preparation and filing of the Registration Statement. In connection with this opinion letter, we have examined and relied upon the original or a copy, certified to our satisfaction, of (i) the Amended and Restated Certificate of Incorporation and the Bylaws of the Company; (ii) resolutions of the Board of Directors of the Company; (iii) the Option Plans; (iv) the Grant Agreements; and (v) such other documents and instruments as we have deemed necessary for providing this opinion letter. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or photostatic copies. We have made such investigations of law as we deem appropriate as a basis for rendering the opinions expressed below, and as to various questions of fact material to the opinions, we have relied, to the extent we deem appropriate, upon representations or 2 KOHRMAN JACKSON & KRANTZ P.L.L. SecurFone America, Inc. Page 2 November 13, 1997 certificates of officers or directors of the Company and upon documents, records and instruments furnished to us by the Company, without independently verifying the accuracy of such documents, records and instruments. Based upon the foregoing examination, we are of the opinion that assuming (i) the Company maintains an adequate number of authorized but unissued Shares and treasury Shares available for issuance to those persons who exercise Options granted in accordance with the Option Plans and (ii) the Shares are duly delivered against payment therefor in accordance with the terms of the Option Plans and the Grant Agreements, the Shares issued pursuant to the exercise of Options granted in accordance with the Option Plans and pursuant to the Grant Agreements will be validly issued, fully paid and non-assessable. We express no opinion other than as to the Federal law of the United States and the General Corporation Law of the State of Delaware. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we come within the category of persons whose consent is required by Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission thereunder. KOHRMAN JACKSON & KRANTZ P.L.L. /S/ KOHRMAN JACKSON & KRANTZ P.L.L. EX-23.2 19 EXHIBIT 23.2 1 Exhibit 23.2 CONSENT OF INDEPENDENT AUDITORS As independent auditors to SecurFone America, Inc., we hereby consent to the incorporation by reference in this Registration Statement of our Independent Auditors' Report for the Balance Sheet as of March 31, 1997 and the related Statements of Operations, Changes in Stockholder's Equity, and Cash Flows for the four months then ended for SecurFone America, Inc. dated June 16, 1997 included in Material Technology, Inc.'s Information Statement filed June 11, 1997 with the Securities and Exchange Commission, and all references to our Firm included in this Registration Statement. /S/ CONTE CO., CPA, INC. - ------------------------------ Conte Co., CPA, Inc. Norton, Ohio November 12, 1997 EX-23.3 20 EXHIBIT 23.3 1 Exhibit 23.3 CONSENT OF INDEPENDENT AUDITORS As independent auditors, we hereby consent to the incorporation by reference in this Registration Statement of our report dated March 10, 1997 included in Material Technology, Inc.'s (the "Company") Form 10-K for the year ended December 31, 1996, our report dated June 12, 1997 included in the Company's amended 10-K for the year ended December 31, 1996 and the Company's Information Statement filed June 11, 1997 with the Securities and Exchange Commission, and all references to our Firm included in this Registration Statement. /S/ JONATHON P. REUBEN - ---------------------- Jonathon P. Reuben, Certified Public Accountant Torrence, California November 10, 1997 -----END PRIVACY-ENHANCED MESSAGE-----