<PAGE> 1
As filed with the Securities and Exchange Commission on April 28, 1999.
Registration No. 333-________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
---------------
INTERNET AMERICA, INC.
(Exact name of registrant as specified in its charter)
Texas 86-0778979
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
One Dallas Centre
350 N. St. Paul, Suite 3000
Dallas, Texas 75201
(Address of principal executive offices)
---------------
INTERNET AMERICA, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
---------------
MICHAEL T. MAPLES
One Dallas Centre
350 N. St. Paul, Suite 3000
Dallas, Texas 75201
(Name and address of agent for service of agent for service)
(214) 861-2500
(Telephone number, including area code,
of agent for service)
----------------
COPY TO:
RICHARD F. DAHLSON
Jackson Walker L.L.P.
901 Main Street
Suite 6000
Dallas, Texas 75202
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Price Aggregate Registration
to be Registered Registered (1) Per Share (2) Offering Price (2) Fee (2)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 200,000 shares $27.25 $5,450,000 $1,515.10
=========================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c) and 457(h), the offering price and
registration fee are computed on the basis of the average of the high
and low prices of the Common Stock on the National Association of
Securities Dealers Automated Quotation National Market System on April
23, 1999.
<PAGE> 2
PROSPECTUS
INTERNET AMERICA, INC.
200,000 SHARES OF COMMON STOCK
This Prospectus relates to the offer and sale of up to 200,000 shares
(the "Shares") of common stock, par value $0.01 per share (the "Common Stock")
of Internet America, Inc. (the "Company"), issued pursuant to the provisions of
the Internet America, Inc. Employee Stock Purchase Plan (the "Plan").
The Shares may be sold from time to time by certain officers,
directors and employees of the Company (the "Selling Shareholders") or by their
permitted transferees. The Common Stock is quoted through the National
Association of Securities Dealers Automated Quotation National Market System
(the "Nasdaq/NMS") under the symbol "GEEK" and may be sold from time to time by
the Selling Shareholders either directly in private transactions, or through
one or more brokers or dealers on the Nasdaq/NMS, or any other over-the-counter
market or exchange on which the Common Stock is quoted or listed for trading,
at such prices and upon such terms as may be obtainable. On April 23, 1999, the
last reported sale price of the Common Stock, as reported on the Nasdaq/NMS,
was $27.38.
Upon any sale of the Common Stock offered hereby, the Selling
Shareholders and participating agents, brokers, dealers or marketmakers may be
deemed to be underwriters as that term is defined in the Securities Act of
1933, as amended (the "Securities Act"), and commissions or discounts or any
profit realized on the resale of such securities purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act.
See "Plan of Distribution." The Company will not receive any of the proceeds
from the sales by the Selling Shareholders.
No underwriter is being utilized in connection with this offering. The
Company will pay all expenses incurred within this offering. The expenses
incurred in connection with the offering are estimated to be approximately
$5,000.
-----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is April 27, 1999.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information filed by the Company with the Commission
can be inspected and copied at the public reference facilities maintained by
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549; at the Commission's Chicago Regional office located at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and at the Commission's New York Regional office located
at 7 World Trade Center, Room 1300, New York, New York 10048. Copies of such
material may also be obtained at prescribed rates from the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549. Additionally, the Commission maintains a website
(http://www.sec.gov) that contains reports, proxy statements and information
statements and other information regarding registrants that file electronically
with the Commission. The Common Stock is listed on the Nasdaq/NMS. Reports,
proxy statements and other information concerning the Company can be inspected
at the offices of the Nasdaq/NMS.
The Company has filed with the Commission in Washington, D.C., a
Registration Statement on Form S-8 (the "Registration Statement") in connection
with the offer and sale of the Common Stock offered hereby under the Securities
Act. This Prospectus does not contain all of the information set forth or
incorporated by reference in the Registration Statement and the exhibits
thereto. For further information with respect to the Company and the Common
Stock, reference is made to the Registration Statement and the exhibits
thereto. Copies of the Registration Statement are available from the
Commission. Statements contained in this Prospectus concerning the provisions
of documents filed with the Registration Statement are necessarily summaries of
such documents, and each statement is qualified in its entirety by reference to
the copy of the applicable document filed with the Commission.
The Company's principal executive offices are located at One Dallas
Centre, 350 N. St. Paul, Suite 3000, Dallas, Texas 75201 and its telephone
number is (214) 861-2500.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission by
the Company, are incorporated herein by reference and made a part hereof:
(i) Prospectus dated December 9, 1998 and filed with the Commission
pursuant to Rule 424(b) on December 10, 1998 (the "424(b)
Prospectus");
(ii) All other reports filed with the Commission 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 fiscal year covered by the
424(b) Prospectus; and
2
<PAGE> 4
(iii) Description of the Common Stock contained in the Company's
Registration Statement on Form SB-2 (No. 333-59527) and Registration
Statement on Form 8-A (No. 000-25147), effective as of December 9,
1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Common Stock to be made
hereunder shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide, without charge, to each person to whom a
copy of this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all of the documents incorporated herein by reference
(other than exhibits to such documents unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates). Written or telephone requests for such documents should be
directed to James T. Chaney, One Dallas Centre, 350 N. St. Paul, Suite 3000,
Dallas, Texas 75201, telephone number (214) 861-2500.
SELLING SHAREHOLDERS
Information relating to the Selling Shareholders will be provided by a
supplement to this Prospectus.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common
Stock hereby.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by any of the Selling
Shareholders, or permitted transferees. The Shares may be disposed of from time
to time in one or more transactions through any one or more of the following:
(i) to purchasers directly, (ii) in ordinary brokerage transactions and
transactions in which the broker solicits purchasers, (iii) through underwriters
or dealers who may receive compensation in the form of underwriting discounts,
concessions or commissions from the Selling Shareholders or such permitted
transferees or from the purchasers of the Shares for whom they may act as agent,
(iv) the writing of options on the Shares, (v) the pledge of the Shares as
security for any loan or obligation, including pledges to brokers or dealers who
may, from time to time, themselves effect distributions of the Shares or
interests therein, (vi) purchases by a broker or dealer as principal and resale
by such broker or dealer for its own account pursuant to this Prospectus, (vii)
a block trade in which the broker or dealer so engaged will attempt to sell the
3
<PAGE> 5
Shares as agent but may position and resell a portion of the block as principal
to facilitate the transaction and (viii) an exchange distribution in accordance
with the rules of such exchange, including the Nasdaq/NMS, or in transactions
in the over the counter market. Such sales may be made at prices and at terms
then prevailing or at prices related to the then current market price or at
negotiated prices and terms. In effecting sales, brokers or dealers may arrange
for other brokers or dealers to participate. The Selling Shareholders or such
successors in interest, and any underwriters, brokers, dealers or agents that
participate in the distribution of the Shares, may be deemed to be
"underwriters" within the meaning of the Securities Act, and any profit on the
sale of the Shares by them and any discounts, commissions or concessions
received by any such underwriters, brokers, dealers or agents may be deemed to
be underwriting commissions or discounts under the Securities Act.
The Company will pay all expenses incident to the offering and sale of
the Shares to the public and all underwriting discounts or commissions,
brokers' fees and the fees and expenses of any counsel to the Selling
Shareholders related thereto.
In the event of a material change in the plan of distribution
disclosed in this Prospectus, the Selling Shareholders will not be able to
effect transactions in the Shares pursuant to this Prospectus until such time
as a post-effective amendment to the Registration Statement is filed with, and
declared effective by, the Commission.
LEGAL MATTERS
Certain legal matters in connection with the Common Stock offered
hereby have been passed upon for the Company by Jackson Walker L.L.P., 901 Main
Street, Suite 6000, Dallas, Texas 75202.
EXPERTS
The financial statements as of June 30, 1997 and 1998 and for each of
the three years in the period then ended, incorporated in this prospectus by
reference from the Company's Registration Statement on Form SB-2 (No.
333-59527) have been audited by Deloitte & Touche, independent auditors, as
stated in their report, which is incorporated herein by reference, and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
INDEMNIFICATION
The Articles of Incorporation of the Company provide that to the
fullest extent permitted by applicable law, a director of the Company will not
be liable to the Company or its shareholders for monetary damages for an act or
omission in the director's capacity as a director.
4
<PAGE> 6
The Texas Business Corporation Act ("TBCA") permits the
indemnification of directors, employees, officers and agents to Texas
corporations. The Company's Articles and Bylaws provide that the Company shall
indemnify any person to the fullest extent permitted by law. Under the TBCA, an
officer or director may be indemnified if he acted in good faith and reasonably
believed that his conduct (i) was in the best interests of the Company if he
acted in his official capacity or (ii) was not opposed to the best interests of
the Company in all other cases. In addition, the indemnitee may not have
reasonable cause to believe that his conduct was unlawful in the case of a
criminal proceeding. In any case, the indemnitee may not have been found liable
to the Company for improperly receiving a personal benefit or for willful or
intentional misconduct in the performance of his duty to the Company. The
Company (i) must indemnify an officer or director for reasonable expenses if he
is successful, (ii) may indemnify an officer or director for such reasonable
expenses unless he was found liable for willful or intentional misconduct in
the performance of his duty to the Company and (iii) may advance reasonable
defense expenses if the officer or director undertakes to reimburse the Company
if he is later found not to satisfy the standard for indemnification expenses.
Insofar as indemnification for liabilities arising under the Securities Act 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 Securities Act and
is, therefore, unenforceable. This provision in the Articles does not eliminate
the duty of care, and in appropriate circumstances equitable remedies such as
an injunction or other forms of nonmonetary relief would remain available under
Texas law. This provision also does not affect a director's responsibilities
under any other laws, such as the federal securities laws or state or federal
environmental laws.
5
<PAGE> 7
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and if given or
made, such information or representations must not be relied upon. This
Prospectus does not constitute an offer to sell or a solicitation to buy any
securities other than registered securities to which it relates, or an offer to
or a solicitation of any person in any jurisdiction where such offer or
solicitation would be unlawful. The delivery of this Prospectus at any time does
not imply that the information herein is correct as of any time subsequent to
its date.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information.............................2
Incorporation of Certain Documents
by Reference...................................2
Selling Shareholders..............................3
Use of Proceeds...................................3
Plan of Distribution..............................3
Legal Matters.....................................4
Experts...........................................4
Indemnification...................................4
</TABLE>
- -----------------------------------------------------
200,000 Shares
Common Stock
INTERNET AMERICA, INC.
April 27, 1999
6
<PAGE> 8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Commission by
Internet America, Inc. (the "Company"), are incorporated herein by reference
and made a part hereof:
(i) Prospectus dated December 9, 1998 and filed with the Commission
pursuant to Rule 424(b) on December 10, 1998 (the "424(b)
Prospectus");
(ii) All other reports filed with the Commission 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 fiscal year covered by the
424(b) Prospectus; and
(iii) Description of the Common Stock contained in the Company's
Registration Statement on Form SB-2 (No. 333-59527) and Registration
Statement on Form 8-A (No. 000-25147), effective as of December 9,
1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment that indicates
that all of the Common Stock offered hereunder has been sold or which
deregisters all of such Common Stock then remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE> 9
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation of the Company provide that to the
fullest extent permitted by applicable law, a director of the Company will not
be liable to the Company or its shareholders for monetary damages for an act or
omission in the director's capacity as a director.
The Texas Business Corporation Act ("TBCA") permits the
indemnification of directors, employees, officers and agents to Texas
corporations. The Company's Articles and Bylaws provide that the Company shall
indemnify any person to the fullest extent permitted by law. Under the TBCA, an
officer or director may be indemnified if he acted in good faith and reasonably
believed that his conduct (i) was in the best interests of the Company if he
acted in his official capacity or (ii) was not opposed to the best interests of
the Company in all other cases. In addition, the indemnitee may not have
reasonable cause to believe that his conduct was unlawful in the case of a
criminal proceeding. In any case, the indemnitee may not have been found liable
to the Company for improperly receiving a personal benefit or for willful or
intentional misconduct in the performance of his duty to the Company. The
Company (i) must indemnify an officer or director for reasonable expenses if he
is successful, (ii) may indemnify an officer or director for such reasonable
expenses unless he was found liable for willful or intentional misconduct in
the performance of his duty to the Company and (iii) may advance reasonable
defense expenses if the officer or director undertakes to reimburse the Company
if he is later found not to satisfy the standard for indemnification expenses.
Insofar as indemnification for liabilities arising under the Securities Act 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 Securities Act and
is, therefore, unenforceable. This provision in the Articles does not eliminate
the duty of care, and in appropriate circumstances equitable remedies such as
an injunction or other forms of nonmonetary relief would remain available under
Texas law. This provision also does not affect a director's responsibilities
under any other laws, such as the federal securities laws or state or federal
environmental laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE> 10
ITEM 8. EXHIBITS.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------ ----------------------
<S> <C>
3.1 Internet America, Inc.'s Articles of Incorporation (1)
3.2 Internet America, Inc.'s Article of Amendment to Articles of Incorporation (1)
3.3 Internet America, Inc.'s Bylaws (1)
3.4 Internet America Inc.'s Amendment to Bylaws (1)
3.5 Application for Certificate of Withdrawal of Internet America, Inc.(1)
3.6 Articles of Merger merging Internet America, Inc., an Arizona corporation, with and
into INTRNTUSA, INC., a Texas corporation (1)
4.1 Specimen Common Stock certificate (1)
4.2 Certificate of Designation of the Series A Preferred Stock of Internet America, Inc.(1)
4.3 Amended Certificate of Designation of the Series A Preferred Stock of Internet
America, Inc.(1)
4.4 Certificate of Designation of the Series B Preferred Stock of Internet America, Inc.(1)
5.1 Opinion of Jackson Walker L.L.P.*
23.1 Consent of Jackson Walker L.L.P. (included in its opinion filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP*
24 Power of Attorney (included in Part II hereof)
99 Internet America, Inc. Employee Stock Purchase Plan*
</TABLE>
- --------
* Filed herewith.
II-3
<PAGE> 11
(1) Previously filed as an exhibit to the Company's Registration Statement
on Form SB-2 (File No. 333-59527) originally filed on July 21, 1998,
as amended, and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933, as amended;
(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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(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) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the Exchange Act of 1934, as amended, that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended, 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 undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report
II-4
<PAGE> 12
pursuant to Section 13(a) or Section 15(d) of the Exchange Act of 1934, as
amended, that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-5
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas
on the 27 day of April, 1999.
INTERNET AMERICA, INC.
By: /s/ JAMES T. CHANEY
----------------------------------------------
James T. Chaney, Vice President, Chief
Financial Officer, Secretary and Treasurer
(Principal Accounting and Financial Officer)
II-6
<PAGE> 14
POWER OF ATTORNEY
Each person whose signature appears below authorizes Michael T.
Maples and James T. Chaney, and each of them, each of whom may act without
joinder of the other, to execute in the name of each such person who is then an
officer or director of the Registrant, and to file any amendments to this
Registration Statement necessary or advisable to enable the Registrant to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Commission, in respect thereof, in connection with the
registration of the securities which are the subject of this Registration
Statement, which amendments may make such changes in such Registration
Statement as such attorney may deem appropriate.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ MICHAEL T. MAPLES Chief Executive Officer, April 27, 1999
- -------------------------- President and Director
Michael T. Maples (Principal Executive Officer)
/s/ JAMES T. CHANEY Chief Financial Officer, Vice April 27, 1999
- -------------------------- President, Secretary and Treasurer
James T. Chaney (Principal Financial and Accounting Officer)
/s/ DOUGLAS G. SHELDON Vice President -- Marketing, April 27, 1999
- -------------------------- Director
Douglas G. Sheldon
/s/ WILLIAM O. HUNT Chairman of the Board April 27, 1999
- --------------------------
William O. Hunt
/s/ JACK T. SMITH Director April 27, 1999
- --------------------------
Jack T. Smith
/s/ GARY L. CORONA Director April 27, 1999
- --------------------------
Gary L. Corona
</TABLE>
II-7
<PAGE> 15
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------ ----------------------
<S> <C>
3.1 Internet America, Inc.'s Articles of Incorporation (1)
3.2 Internet America, Inc.'s Article of Amendment to Articles of Incorporation (1)
3.3 Internet America, Inc.'s Bylaws (1)
3.4 Internet America Inc.'s Amendment to Bylaws (1)
3.5 Application for Certificate of Withdrawal of Internet America, Inc.(1)
3.6 Articles of Merger merging Internet America, Inc., an Arizona corporation, with and
into INTRNTUSA, INC., a Texas corporation (1)
4.1 Specimen Common Stock certificate (1)
4.2 Certificate of Designation of the Series A Preferred Stock of Internet America, Inc.(1)
4.3 Amended Certificate of Designation of the Series A Preferred Stock of Internet
America, Inc.(1)
4.4 Certificate of Designation of the Series B Preferred Stock of Internet America, Inc.(1)
5.1 Opinion of Jackson Walker L.L.P.*
23.1 Consent of Jackson Walker L.L.P. (included in its opinion filed as Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP*
24 Power of Attorney (included in Part II hereof)
99 Internet America, Inc. Employee Stock Purchase Plan*
</TABLE>
- --------
* Filed herewith.
(1) Previously filed as an exhibit to the Company's Registration
Statement on Form SB-2 (File No. 333-59527) originally filed on July
21, 1998, as amended, and incorporated herein by reference.
<PAGE> 1
EXHIBIT 5.1
April 27, 1999
Internet America, Inc.
One Dallas Centre
350 N. St. Paul, Suite 3000
Dallas, Texas 75201
Re: Registration Statement on Form S-8 of Internet America, Inc.
Gentlemen:
We are acting as counsel for Internet America, Inc., a Texas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and sale of up
to 200,000 shares of the Company's Common Stock, par value $0.01 per share (the
"Shares") in connection with the Internet America, Inc. Employee Stock Purchase
Plan (the "Plan"). A Registration Statement on Form S-8 covering the offering
and sale of the Shares (the "Registration Statement") is expected to be filed
with the Securities and Exchange Commission on or about the date hereof.
In reaching the conclusions expressed in this opinion, we have
examined and relied upon the originals or certified copies of all documents,
certificates and instruments as we have deemed necessary to the opinions
expressed herein, including the Articles of Incorporation, as amended, and the
Bylaws of the Company and a copy of the Plan. In making the foregoing
examinations, we have assumed the genuineness of all signatures on original
documents, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all copies submitted to us.
Based solely upon the foregoing, subject to the comments hereinafter
stated, and limited in all respects to the laws of the State of Texas and the
federal laws of the United States of America, it is our opinion that the Shares
have been duly authorized, and when issued and delivered, against receipt by
the Company of the agreed consideration therefor, will be validly issued, fully
paid and nonassessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Jackson Walker L.L.P.
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Internet America, Inc. on Form S-8 of our report dated
August 12, 1998, appearing in the Registration Statement on Form SB-2
of Internet America, Inc. (No. 333-59527) and to the incorporation by
reference of our report dated April 14, 1999, appearing in the Current
Report on Form 8-K/A dated April 16, 1999, of Internet America, Inc.
We also consent to the reference to us under the heading "Experts" in
the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Dallas, Texas
April 23, 1999
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EXHIBIT 99
INTERNET AMERICA, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the Plan is to provide employees of
the Company and its Designated Subsidiaries with an opportunity to purchase
Common Stock of the Company through accumulated payroll withholding amounts. It
is the intention of the Company that the Plan qualify as an "Employee Stock
Purchase Plan" within the meaning of Code Section 423, and the provisions of the
Plan shall be construed in a manner consistent with the requirements of Code
Section 423.
2. DEFINITIONS.
(a) "Agent" shall have the meaning set forth in paragraph
11(c).
(b) "Base Pay" shall mean the regular straight-time and
overtime compensation received by an Employee from the Company and its
Designated Subsidiaries for personal services rendered by the Employee,
excluding payments for incentive compensation, bonuses and other
special payments.
(c) "Board" shall mean the Company's Board of Directors.
(d) "Change in Control" shall have the meaning set forth in
paragraph 16.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Commencement Date" shall mean the first day of each
Offering Period on which the Nasdaq National Market System is open for
trading.
(g) "Common Stock" shall mean the Company's common stock, par
value $.01 per share.
(h) "Company" shall mean Internet America, Inc., a Texas
corporation.
(i) "Committee" shall have the meaning set forth in paragraph
11(a).
(j) "Continuous Status as an Employee" shall mean the absence
of any interruption or termination of service as an Employee.
Continuous Status as an Employee shall not be considered interrupted in
the case of absence due to vacation or sick leave in accordance with
the Company's policies or leave agreed to in writing by the Company,
provided that such leave is for a period of not more than 90 days or
reemployment upon the expiration of such leave is guaranteed by
contract or statute.
(k) "Custodian" shall mean the person or entity designated by
the Committee or Plan Administrator pursuant to paragraph 11(b).
(l) "Designated Subsidiary" shall mean each Subsidiary that
has been designated by the Company's Chief Executive Officer as
eligible to become a participating employer in the Plan.
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(m) "Effective Date" shall mean April 20, 1999.
(n) "Employee" shall mean any person who is actually recorded
as an employee on the Company's or a Designated Subsidiary's customary
and usual payroll records at the time the services are performed,
provided that no person classified as an independent contractor by the
Company or a Designated Subsidiary shall be considered an "Employee"
for purposes of the Plan.
(o) "Exercise Date" shall mean the last day of each Offering
Period on which the Nasdaq National Market System is open for trading.
(p) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(q) "Fair Market Value" shall mean, on any date, the closing
price per share of the Common Stock on the Nasdaq National Market
System on such date.
(r) "Offering Period" shall mean each quarterly offering
period beginning on January 1st, April 1st, July 1st and October 1st
and ending on March 31st, June 30th, September 30th and December 31st,
respectively, of each year during the continuation of the Plan;
provided that the Committee shall have the power to change the duration
of Offering Periods from time to time in its sole discretion.
(s) "Option Price" shall have the meaning set forth in
paragraph 4(c).
(t) "Participant" shall mean each Employee who is eligible to
participate in the Plan and who has elected to participate in the Plan
by timely filing a payroll withholding authorization form with the
Committee.
(u) "Plan" shall mean the Internet America, Inc. Employee
Stock Purchase Plan, as amended from time to time.
(v) "Plan Administrator" shall mean the person designated by
the Committee pursuant to paragraph 11(b).
(w) "Reserves" shall have the meaning set forth in paragraph
15(b).
(x) "Subsidiary" shall mean a corporation, domestic or
foreign, of which not less than 50% of the voting shares are held by
the Company or a Subsidiary whether or not such corporation now exists
or is hereafter organized or acquired by the Company or a Subsidiary.
(y) "Transaction" shall have the meaning set forth in
paragraph 16(iii).
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3. ELIGIBILITY.
(a) Subject to the requirements of paragraph 4(b), any
Employee shall be eligible to participate in the Plan during an
Offering Period, provided that as of the Commencement Date of such
Offering Period:
(i) the Employee's customary employment with the
Company or a Designated Subsidiary is more than 20 hours per
week and more than five months in any calendar year; and
(ii) the Employee has maintained Continuous Status as
an Employee for at least three months; and
provided that the Employee maintains Continuous Status as an Employee
throughout the Offering Period. For purposes of paragraph 3(a)(ii),
service with a "predecessor employer" shall be considered service with
the Company or a Designated Subsidiary. The term "predecessor employer"
means an entity (i) the securities or assets of which are acquired by
the Company or a Designated Subsidiary or which is merged into the
Company or a Designated Subsidiary and (ii) which is so designated by
the Company's Chief Executive Officer.
(b) Notwithstanding any provision of the Plan to the contrary,
no Employee shall be granted an option under the Plan:
(i) if, immediately after the grant, the Employee
(together with any other person whose stock would be
attributed to the Employee pursuant to Code Section 424(d))
would own stock and/or hold outstanding options to purchase
stock possessing five percent or more of the total combined
voting power or value of all classes of stock of the Company
or any Subsidiary; or
(ii) which permits the Employee's right to purchase
stock under all employee stock purchase plans (described in
Code Section 423) of the Company and each Subsidiary to accrue
at a rate that exceeds $25,000 of Fair Market Value of such
stock (determined on the date the option is granted) for each
calendar year in which the option is outstanding at any time.
4. GRANT OF OPTION; PARTICIPATION.
(a) On each Commencement Date, the Company shall commence an
offer by granting each eligible Employee an option to purchase the
maximum number of shares of Common Stock that may be purchased by the
eligible Employee pursuant to the Plan, subject to the limitations set
forth in paragraph 10.
(b) Each eligible Employee may elect to participate in the
Plan with respect to an offer only by filing a payroll withholding
authorization form with the Committee on or
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before the 15th day of the month preceding the Commencement Date of the
Offering Period (or such other date as the Committee may designate from
time to time in its sole discretion) authorizing payroll withholding
(as set forth in paragraph 5) throughout the Offering Period.
(c) The option price per share of the Common Stock subject to
an offering (the "Option Price") shall be the lesser of:
(i) 85% of the Fair Market Value of a share of Common
Stock on the Commencement Date, or
(ii) 85% of the Fair Market Value of a share of
Common Stock on the Exercise Date.
5. PAYROLL WITHHOLDING.
(a) The payroll withholding authorization form filed by an
eligible Employee with the Committee shall indicate the percentage
amount (in whole numbers) of the Participant's Base Pay (not to exceed
10%) that the Participant elects to use to purchase shares of Common
Stock pursuant to the Plan. A Participant may not increase or decrease
such amount during an Offering Period; provided that a Participant may
change such amount by filing a new payroll withholding authorization
form with the Committee on or before the 15th day of the month
preceding the Commencement Date of the next Offering Period (or such
other date as the Committee may designate from time to time in its sole
discretion). The change in amount shall be effective on the
Commencement Date of the next Offering Period. A Participant's payroll
withholding authorization form shall remain in effect for successive
Offering Periods unless modified as provided in this paragraph or
terminated as provided in paragraph 8.
(b) During an Offering Period, the Company shall withhold from
each Participant's Base Pay the percentage amount elected by the
Participant pursuant to paragraph 5(a). All payroll withholding from a
Participant's Base Pay shall be credited to the Participant's Plan
account. A Participant may not make any payments for the purchase of
Common Stock pursuant to the Plan other than payments pursuant to a
payroll withholding authorization form.
6. EXERCISE OF OPTION. Unless a Participant withdraws the
Participant's accumulated payroll withholding amounts in accordance with
paragraph 8, the Participant's option to purchase Common Stock shall be
exercised automatically on the Exercise Date, and the maximum number of whole
shares of Common Stock subject to the option granted to each Participant shall
be purchased at the Option Price with the Participant's accumulated payroll
withholding amounts. No fractional shares of Common Stock may be purchased.
Payroll withholding amounts that represent cash in lieu of fractional shares
shall remain in the Participant's Plan account and shall become part of the
Participant's accumulated payroll withholding amounts for the next Offering
Period. The Common Stock purchased upon exercise of an option shall be deemed to
be transferred to the Participant on the Exercise Date. During each
Participant's lifetime, the option to purchase shares
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<PAGE> 5
of Common Stock shall be exercisable only by the Participant.
7. DELIVERY. Certificates representing shares of Common Stock
purchased upon exercise of a Participant's option shall be held by the Custodian
and credited to the Participant's Plan account. Upon written request by a
Participant or a Participant's legal representative, the Custodian shall issue
certificates to the Participant or the Participant's legal representative for
the Common Stock credited to the Participant's Plan account. The Custodian may
require a Participant or a Participant's legal representative to provide such
documentation as may be reasonably required in connection with the issuance of
certificates of Common Stock.
8. WITHDRAWAL; TERMINATION OF EMPLOYMENT; INSIDERS.
(a) During an Offering Period, a Participant may withdraw all,
but not less than all, of the Participant's payroll withholding amounts
prior to the Exercise Date of an Offering Period by giving written
notice to the Committee. All of the Participant's payroll withholding
amounts shall be paid to the Participant as soon as administratively
feasible after receipt of written notice of withdrawal, and the
Participant's option for the Offering Period shall be automatically
terminated.
(b) Any Participant who withdraws from the Plan during an
Offering Period pursuant to paragraph 8(a) shall not be eligible to
participate in the Plan for the remainder of the Offering Period. To
participate in the Plan for a subsequent Offering Period, the
Participant must file a new payroll withholding authorization form with
the Committee on or before the date prescribed pursuant to paragraph
4(b).
(c) Upon termination of a Participant's Continuous Status as
an Employee prior to the Exercise Date of an Offering Period on account
of retirement or disability (in accordance with the Company's personnel
policies) or death, the Participant's payroll withholding amounts shall
be used to purchase Common Stock on the next succeeding Exercise Date
unless the Participant (or in the case of the Participant's death, the
legal representative of the Participant's estate) elects to withdraw
the Participant's payroll withholding amounts in cash prior to the
Exercise Date. Upon termination of a Participant's Continuous Status as
an Employee for any other reason, the Participant's payroll withholding
amounts shall be refunded to the Participant in cash as soon as
administratively feasible after such termination.
9. INTEREST. No interest shall accrue on or be payable with
respect to a Participant's payroll withholding amounts.
10. STOCK.
(a) The maximum number of shares of Common Stock that shall be
reserved for issuance pursuant to the Plan shall be 200,000, subject to
adjustment due to changes in capitalization of the Company as provided
in paragraph 15. If the total number of shares of Common Stock that
would otherwise be subject to options granted pursuant to paragraph
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<PAGE> 6
4(a) on a Commencement Date exceeds the number of shares of Common
Stock then available under the Plan (after deduction of all shares of
Common Stock for which options have been exercised or are then
outstanding), the Committee shall make a pro rata allocation of the
shares of Common Stock remaining available for option grant in a
uniform manner. In such event, the Committee shall give notice to each
Participant of the reduction in the number of shares of Common Stock
available for option grant and, if necessary, shall reduce the rate of
payroll withholding of all affected Participants. The Plan shall
terminate if no Common Stock is available for issuance pursuant to the
Plan. The Common Stock available for issuance pursuant to the Plan may
be authorized but unissued shares, treasury shares or shares purchased
by the Company in the public market for issuance pursuant to the Plan.
The Company shall pay all brokerage commissions and fees incurred in
connection with the purchase of Common Stock for issuance pursuant to
the Plan.
(b) No Participant shall have rights as a stockholder with
respect to Common Stock subject to an option until such shares of
Common Stock have been purchased for the Participant's Plan account in
accordance with the provisions of the Plan.
(c) Common Stock to be delivered to a Participant pursuant to
the Plan shall be registered in the name of the Participant.
11. ADMINISTRATION.
(a) The Plan shall be administered by a committee comprised of
one or more individuals (the "Committee") appointed from time to time
by the Board. The Committee shall have full power and authority to
promulgate rules and regulations for the proper administration of the
Plan, to interpret the provisions and supervise the administration of
the Plan and to take all actions in connection with or in relation to
the Plan as it deems necessary or desirable. Decisions of the Committee
shall be made by a majority of its members and shall be final for all
purposes. The Company shall pay all expenses incurred in the
administration of the Plan.
(b) The Committee may delegate all or part of its power and
authority to administer the Plan to a Plan Administrator appointed by
the Committee. The Plan Administrator (or the Committee if no Plan
Administrator has been appointed) may delegate the responsibility for
the day-to-day operations of the Plan to a Custodian. The Custodian
shall establish and maintain an account for each Participant for the
purpose of holding Common Stock on behalf of each Participant.
(c) An agent (the "Agent") may be appointed by the Committee
to perform the functions and have the responsibilities assigned to the
Agent in this subparagraph with respect to the purchase of Common
Stock. The Committee shall have the right to replace the Agent at any
time. Notwithstanding any Plan provision to the contrary, to the extent
that Common Stock is purchased in the public market, the Agent shall
have all authority to determine the times of purchases, the prices at
which purchases shall be made, the manner in which purchases shall be
made and the brokers or dealers (which may include the Agent) to make
such purchases.
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<PAGE> 7
12. TRANSFERABILITY. Neither payroll withholding amounts nor any
rights with regard to the exercise of an option or to receive Common Stock
pursuant to the Plan may be assigned, transferred, pledged or otherwise disposed
of in any way (other than by will or the laws of descent and distribution) by
the Participant. Any such attempted assignment, transfer, pledge or other
disposition shall be ineffective except that the Committee may treat such act as
an election to withdraw payroll withholding amounts in accordance with paragraph
8.
13. USE OF FUNDS. All payroll withholding amounts pursuant to the
Plan may be used by the Company for any corporate purpose, and the Company shall
not be obligated to segregate payroll withholding amounts from its other assets.
14. REPORTS. Statements of account shall be given to each
Participant as soon as administratively feasible after each Exercise Date. The
statements shall set forth the Participant's payroll withholding amounts
throughout the Offering Period, the Option Price, the number of shares of Common
Stock purchased and the cash balance, if any, in the Participant's Plan account.
15. ADJUSTMENTS. Subject to any required action by the
stockholders of the Company,
(a) the number of shares of Common Stock subject to each
option granted pursuant to the Plan that has not been exercised,
(b) the number of shares of Common Stock that has been
authorized for issuance pursuant to the Plan but has not been placed
under option (collectively, the "Reserves"), and
(c) the Option Price of Common Stock subject to each option
granted pursuant to the Plan that has not been exercised,
shall be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification of the Common Stock or similar
capital adjustment, or any other increase or decrease in the number of shares of
Common Stock effected without receipt of consideration by the Company, provided
that conversion of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration." Such adjustment shall
be made by the Board whose determination shall be final, binding and conclusive
for all purposes. Except as expressly provided in the Plan, no issue by the
Company of shares of stock of any class or securities convertible into shares of
stock of any class shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or Option Price of the shares of Common Stock
subject to an option granted pursuant to the Plan.
16. EFFECTS OF CERTAIN CHANGES. In the event of the dissolution or
liquidation of the Company, the Offering Period shall terminate immediately
prior to the consummation of such event unless otherwise provided by the Board.
In the event that the Company enters into an agreement to merge into,
consolidate with or otherwise transfer all or substantially all of its assets to
another corporation or a Change in Control or threatened Change in Control (as
determined by the
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Committee in its sole discretion) occurs, each option under the Plan shall be
assumed, or an equivalent option shall be substituted by, the surviving,
resulting or acquiring corporation or a parent or subsidiary of such corporation
unless the Board determines, in its sole discretion and in lieu of such
assumption or substitution:
(a) to cancel each option and refund to each Participant the
payroll withholding amounts received with respect to the canceled
options, or
(b) to give each Participant the right to exercise the option
as to all of the optioned shares of Common Stock, including shares of
Common Stock as to which the option would not otherwise be exercisable.
For purposes of this paragraph 16, "Change in Control" means one or
more of the following events:
(i) Any person within the meaning of Section 13(d)
and 14(d) of the Exchange Act, other than the Company
(including its Subsidiaries, directors or executive officers)
has become the beneficial owner, within the meaning of Rule
13d-3 under the Exchange Act, of 50% or more of the combined
voting power of the Company's then outstanding Common Stock or
equivalent in voting power of any class or classes of the
Company's outstanding securities ordinarily entitled to vote
in elections of directors ("voting securities"); or
(ii) Shares representing 50% or more of the combined
voting power of the Company's voting securities are purchased
pursuant to a tender offer or exchange offer (other than an
offer by the Company or its Subsidiaries or affiliates); or
(iii) As a result of, or in connection with, any
tender offer or exchange offer, merger or other business
combination, sale of assets or contested election, or any
combination of the foregoing transactions (a "Transaction"),
the persons who were Directors of the Company before the
Transaction shall cease to constitute a majority of the Board
of the Company or of any successor to the Company; or
(iv) Following the effective date of the Plan, the
Company is merged or consolidated with another corporation and
as a result of such merger or consolidation less than 50% of
the outstanding voting securities of the surviving or
resulting corporation shall then be owned in the aggregate by
the former shareholders of the Company, other than (A) any
party to such merger or consolidation, or (B) any affiliates
of any such party; or
(v) The Company transfers more than 50% of its
assets, or the last of a series of transfers results in the
transfer of more than 50% of the assets of the Company, to
another entity that is not wholly-owned by the Company. For
purposes of this subparagraph (v), the determination of what
constitutes 50% of the assets of the Company shall be made by
the Committee, as constituted immediately prior to
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the events that would constitute a change of control if 50%
of the Company's assets were transferred in connection with
such events, in its sole discretion.
If the Board makes an option fully exercisable upon the happening of
one of the events described in this paragraph 16, the Board shall notify each
Participant that the option shall be fully exercisable for a period of at least
30 days from the date of such notice, and the option shall terminate upon the
expiration of such period.
The Board, in its sole discretion, also may adjust the Reserves as well
as the Option Price of the Common Stock subject to each outstanding option if
the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of shares of Common Stock or
consolidates with or merges into any other corporation.
17. AMENDMENT OR TERMINATION. The Board may at any time terminate,
suspend or amend the entire Plan or any provision of the Plan. Except as
provided in paragraph 16, no such termination shall affect options previously
granted, nor may an amendment make any change in any option previously granted
that adversely affects the rights of any Participant, nor may an amendment be
made without prior approval of the Company's stockholders if such amendment
would:
(a) materially increase the number of shares of Common Stock
that may be issued pursuant to the Plan; or
(b) change the designation or class of employees eligible for
participation in the Plan;
provided that prior approval of the Company's stockholders with respect to the
foregoing shall be required only to the extent required by any statutory law,
regulation or stock exchange rule.
18. NOTICES. All notices or other communications by a Participant
to the Committee under or in connection with the Plan shall be deemed to have
been given when received in the form specified by the Committee to the location,
or by the person, designated by the Committee for the receipt thereof.
19. STOCKHOLDER APPROVAL. The Plan shall be subject to approval of
the Company's stockholders within 12 months before or after the Effective Date
of the Plan.
20. EMPLOYMENT RIGHTS. Participation in the Plan shall not impose
any obligations upon the Company to continue the employment of a Participant for
any specific period of time and shall not affect the right of the Company to
terminate such person's employment at any time, with or without cause.
21. GOVERNING LAW. The validity, construction and effect of the
Plan and any rules and regulations relating to the Plan shall be determined in
accordance with laws of the State of Texas (without giving effect to conflicts
of laws principles) and applicable Federal law.
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22. CONDITIONS UPON ISSUANCE OF COMMON STOCK. Common Stock shall
not be issued with respect to an option unless the exercise of the option and
the issuance and delivery of the Common Stock complies with all applicable
provisions of law, domestic or foreign, including without limitation the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated under such laws, the requirements of any stock exchange upon which
the Common Stock may then be listed, and shall be subject to the approval of
counsel to the Company with respect to such legal compliance.
As a condition to the exercise of an option, the Company may require
the person exercising the option to represent and warrant at the time of any
such exercise that the Common Stock is being purchased only for investment
without any present intention to sell or distribute the Common Stock if, in the
opinion of counsel to the Company, such a representation is required by
applicable law.
23. EFFECTIVE DATE. The Plan shall be effective on the Effective
Date subject to the approval of the Plan by the Company's stockholders.
10
