As filed with the Securities and Exchange Commission on January , 2000
Registration No. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TENSLEEP.COM INC.
(Exact name of registrant as specified in its charter)
Colorado 33-0789960
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1997 STOCK OPTION PLAN
(Full Title of the Plan)
Mr. Ronald S. Tucker
2201 N. Lamar Boulevard, Suite 205
Austin, Texas 78705
(512) 236-1840
(Name, address and telephone number of agent for service)
Copies to:
John W. Martin, Esq.
5777 West Century Blvd., Suite 1540
Los Angeles, California 90045
(310) 342-6800
CALCULATION OF REGISTRATION FEE
<TABLE>
< CAPTION>
Amount to Proposed Maximum Proposed Maximum
Title of Securities Be Offering Price Per Aggregate Offering Amount of
Registered Registered Unit Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 1,300,000(1) $ 2.00 (1) $ 2.600,000 (1) $ 896.46
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(c) and 457(h) under the
Securities Act of 1933, as amended. The Proposed Maximum Offering Price
was determined by averaging the bid and asked price for the Common Stock as
reported on January 15, 2000 on the OTC Electronic Bulletin Board.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Tensleep.com Inc. (the "Company") 1997 Stock
Option Plan, pursuant to Rule 428(b)(1) promulgated under the Securities
Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in
this Registration Statement:
(a) The Company's Registration Statement on Form 10-SB
(Registration No. 000-30164) filed with the Commission on July 22, 1999;
(b) All reports filed by the Company pursuant to Sections 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 Form 10-SB referred
to in clause (a) above;
(c) The description of the Company's Common Stock contained in Item
11, "Description of Securities" in the Company's Registration Statement on
Form 10-SB (Registration No. 000-30164) referred to in clause (a) above;
(d) Any and all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, after the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold.
Any statement contained in this Registration Statement, or 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws provide that the Company will indemnify its
directors and officers to the fullest extent permitted by law against
certain losses that may be incurred concerning any proceeding that arises
because such person is or was an agent of the Company. The Company believes
that indemnification under the Bylaws covers at least negligence and gross
negligence by an indemnified party, and permits the Company to advance
litigation expenses for stockholder derivative actions or other actions,
against an undertaking by the indemnified party to repay those advances if
it is ultimately determined that the indemnified party is not entitled to
indemnification.
In addition, the Company's Articles of Incorporation provide that,
pursuant to Colorado law, its directors will not be liable to the Company
or its stockholders for monetary damages for an act or omission in the
director's capacity as a director. This provision does not eliminate or
limit the liability of a director to the extent the director is found
liable for a breach of the director's duty of loyalty to the Company for
acts or omissions lacking good faith or involving intentional misconduct,
or a knowing violation of the law, for actions leading to improper personal
benefit to the director and for an act or omission for which the liability
of the director is explicitly provided by applicable statute. The
provision also does not affect a director's responsibilities under any
other law, such as federal securities laws or state and federal
environmental laws.
The specific provisions of the Articles of Incorporation of the
Registrant with respect to the indemnification of directors and officers
are as follows:
INDEMNIFICATION: To the extent permitted under the Colorado
Corporation Act, the corporation shall indemnify any person who is or was a
director, officer, agent, fiduciary or employee of the corporation against
any claim, liability or expense arising against or incurred by such person
as a result of actions reasonably taken by him at the direction of the
corporation. The corporation further hereby indemnifies its directors,
officers, agents, fiduciaries and employees against any claim, liability,
or expense arising against or incurred by them in all other circumstances
and to maintain insurance for such persons to the full extent permitted
under the Colorado Corporation Act. Such indemnification shall inure to
the benefit of the estates, heirs, devisees and personal representatives of
such persons. For the purpose of these Articles of Incorporation, the term
"official capacity" when used with respect to any director, officer, agent
fiduciary or employee shall include services with the corporation or a
parent, subsidiary, or affiliated corporation or any other entity.
The specific provisions of the Bylaws of Registrant with respect to
the indemnification of directors and officers are as follows:
INDEMNIFICATION OF DIRECTORS AND OFFICERS. The corporation shall
indemnify all persons who have served or may serve at any time as officers
or directors of the corporation, and their heirs, executors,
administrators, successors, and assigns, from and against any and all loss
and expense, including amounts paid in settlement before or after suit is
commenced, and reasonable attorneys' fees, actually and necessarily
sustained as a result of any claim, demand, action, proceeding, or judgment
that may be asserted against any such persons, or in which any such persons
are made parties by reason of their being or having been officers or
directors of the corporation. However, this right of indemnification shall
not exist in relation to matters where it is adjudged in any action, suit,
or proceeding that any such persons are liable for negligence or misconduct
in the performance of duty and in any case, the right to indemnification
shall be subject to the approval of a majority of disinterested directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
4 1997 Stock Option Plan
5 Opinion of Law Office of John W.
Martin
23.1 Consent of Brabo, Carlsen &
Cahill, Certified Public
Accountants
23.2 Consent of Law Office of John W.
Martin (included in Exhibit 5.0)
ITEM 9. UNDERTAKINGS.
A. Undertaking pursuant to Rule 415
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) 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) 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.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time will 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 that remain unsold at the
termination of the offering.
B. Undertaking for Filings Incorporating Subsequent Exchange
Documents by Reference.
For purposes of determining any liability under the Securities Act of
1933, as amended, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 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. Undertaking in respect of indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers
and other agents of the Company, the Company has been informed that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act of 1933, as
amended, 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, 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 of 1933, as amended, and will be governed
by the final adjudication of such issue.
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 Austin, State of
Texas, on the 15 day of January, 2000.
TENSLEEP.COM INC.
/s/ Ronald S. Tucker
Ronald S. Tucker
Chief Executive Officer, President
and Chief Financial Officer
(Principal Accounting Officer)
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.
Signature Title Date
/s/ Ronald S. Tucker Chief Executive January 15, 2000
Officer, President,
Chief Financial Officer and
Director
/s/ Leticia I. Tucker Director January 15, 2000
/s/ Dennis Kaliher Director January 15, 2000
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
4 1997 Stock Option Plan (filed herewith)
5 Opinion of Law Office of John W. Martin
(filed herewith)
23.1 Consent of Brabo, Carlsen & Cahill, Cerfitied
Public Accountants (filed herewith)
23.2 Consent of Law Office of John W. Martin
(filed herewith as part of Exhibit 5.0)
TENSLEEP.COM INC.
(formerly known as Tensleep Design Inc. and Tensleep Technologies, Inc.)
1997 STOCK OPTION PLAN
As adopted by the Board of Directors in November 1997
----------------------
1. PURPOSE
The name of this plan is the Tensleep.com Inc. 1997 Stock Option Plan
(the "Plan"). The purpose of the Plan is to promote the long-term success
of Tensleep.com Inc., a Colorado corporation (the "Company"), by providing
financial incentives to the officers, employees, directors and consultants
of the Company who are in positions to make significant contributions
toward such success. The Plan is designed to attract individuals of
outstanding ability to become or to continue as officers, employees,
directors or consultants of the Company, to enable such individuals to
acquire or increase proprietary interests in the Company through the
ownership of shares of common stock of the Company ("Common Stock"), and to
render superior performance during their associations with the Company.
The Company intends that this purpose will be effected by the granting
pursuant to the Plan of options for shares of Common Stock (hereinafter
referred to as "Options") that either may be incentive stock options (ad
defined under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"))("Incentive Stock Options") or options not intended to qualify
as an Incentive Stock Option ("Nonqualified Stock Options").
References herein to "the Company" shall include any successor
corporation to the Company and also any subsidiary of the Company (such
that, if the Company has one or more subsidiaries, individuals who are
officers or key employees thereof are eligible to be granted Options under
the Plan).
2. OPTIONS TO BE GRANTED AND ADMINISTRATION
(a) Options granted under the Plan may be either Incentive Stock
Options or Nonqualified Stock Options. An Option shall not be considered
to be an Incentive Stock Option unless designated as such at the time of
grant or in the option agreement relating to such option, and any option
that is not so designated (or even if so designated fails to meet the
definition of "incentive stock option" under Section 422(b) of the Code)
shall be a Nonqualified Stock Option. Unless otherwise specified in a
particular grant, Options granted under the Plan are intended to qualify as
performance-based compensation to the extent required under Section 162(m)
of the Code and the regulations promulgated thereunder.
(b) The Plan shall be administered by a committee (the "Option
Committee") of not less than two members of the Board of Directors of the
Company selected by and from the members of the Company's Board of
Directors in accordance with the provisions of the Company's By-Laws
relating to the appointment of Committees; provided, however, that the Plan
shall be administered so that Options granted under the Plan will qualify
for the benefits provided by Rule 16b-3 (or any successor rule to the same
effect) under the Securities Exchange Act of 1934, as amended, and by
Section 162(m) of the Code (or any successor provision to the same effect)
and the applicable regulations promulgated thereunder. Subject to the
provisions of this Plan, the Option Committee shall exercise all powers
under the Plan, unless and until other action is taken by the Company's
Board of Directors. Action by the Option Committee shall require the
affirmative vote of a majority of all its members, and a further vote of
the Company's Board of Directors shall be required for the approval of any
and all grants of Options recommended by the Option Committee.
(c) Subject to the terms and conditions of the Plan, the Option
Committee shall have the power:
(i) To determine from time to time the Options to be granted
to eligible persons under the Plan, and to prescribe the terms and
provisions (which need not be identical) of each Option granted under
the Plan to such persons, and to recommend the grant of Options to
the Board of Directors of the Company for its approval;
(ii) To construe and interpret the Plan and Options granted
thereunder and to establish, amend, and revoke rules and regulations
for administration of the Plan. In this connection, the Option
Committee may correct any defect or supply any omission, or reconcile
any inconsistency in the Plan, or in any option agreement, in the
manner and to the extent it shall deem necessary or expedient to make
the Plan fully effective. All decisions and determinations by the
Option Committee and, with respect to the grant of Options, by the
Board of Directors of the Company in the exercise of this power shall
be final and binding upon the Company and all optionees; and
(iii) Generally, to exercise such powers and to perform such
acts as are deemed necessary or expedient to promote the best
interests of the Company with respect to the Plan.
3. STOCK SUBJECT TO THE PLAN
(a) The stock subject to the Options granted under the Plan shall
be shares of the Company's authorized but unissued Common Stock, or
previously issued shares of Common Stock that have been reacquired and
reserved by the Company's Board of Directors for resale upon exercise of
Options granted under the Plan. The total number of shares of Common Stock
that may be issued pursuant to Options granted under the Plan shall not
exceed an aggregate of 1,300,000 shares of Common Stock. Such number shall
be subject to adjustment as provided in Section 9 hereof.
(b) Whenever any outstanding Option under the Plan expires, is
cancelled or is otherwise terminated (other than by exercise), the shares
of Common Stock allocable to the unexercised portion of such Option may
again be the subject of Options under the Plan.
(c) No employee of the Company may be granted Options to acquire,
in the aggregate, more than 500,000 shares of Common Stock under the Plan.
If any Option granted under the Plan shall expire or terminate for any
reason without having been exercised in full or shall cease for any reason
to be exercisable in whole or in part, the unpurchased shares subject to
such Option shall be included in the determination of the aggregate number
of shares of Common Stock deemed to have been granted to such employee
under the Plan.
4. STOCK OPTION GRANTS
(a) Incentive Stock Options may be granted only to persons who are
employees of the Company, including members of the Board of Directors who
are also employees of the Company. Nonqualified Stock Options may be
granted to officers and employees of the Company, to directors of the
Company, whether or not they are also employees of the Company, to
consultants to the Company who are not employees, and to such other persons
as the Option Committee shall select from time to time. The determination
of the persons eligible to receive grants, the number of shares of Common
Stock for which Options are granted and the determination of whether an
Option shall be an Incentive Stock Option or a Nonqualified Stock Option
shall be made by the Option Committee, subject to the approval of the Board
of Directors of the Company.
(b) No person shall be eligible to receive any Incentive Stock
Option under the Plan if at the date of grant such person beneficially owns
(or would own upon the exercise of any Options held, or which upon such
grant would be held, by such person) in excess of ten percent (10%) of the
outstanding shares of Common Stock, unless (i) the exercise price is at
least 110% of the fair market value (determined as provided in Section 5(d)
hereof at the time the Incentive Stock Option is granted) of the shares of
Common Stock subject to the Option and (ii) such Option by its terms is not
exercisable after the expiration of five (5) years from the date such
Option is granted.
(c) The aggregate fair market value (determined as provided in
Section 5(d) hereof at the time the Incentive Stock Option is granted) of
shares of Common Stock with respect to which any Incentive Stock Option is
exercisable for the first time by the optionee during any calendar year
(plus the value of any other such shares of Common Stock first purchasable
in such year under any other Option under the Plan or any other plan of the
Company or any parent or subsidiary thereof intended to be an "incentive
stock option" under Section 422 of the Code) shall not exceed $100,000, and
no person shall be eligible to receive an Incentive Stock Option for shares
of Common Stock in excess of such limitation.
5. TERMS OF THE OPTION AGREEMENTS
Each option agreement for Options granted under the Plan shall
contain such provisions as the Option Committee shall from time to time
deem appropriate. Option agreements need not be identical, but each option
agreement by appropriate language, or by reference to this Section 5 of the
Plan, shall include the substance of all of the following provisions:
(a) Expiration. Each Option shall expire on the date specified in
the option agreement, which date shall not be later than the tenth
anniversary of the date on which the Option was granted. Each Incentive
Stock Option shall in any event expire not later than three months after
the optionee is for any reason no longer employed by the Company, except
(i) if such termination of employment results from optionee's disability
(within the meaning of Section 22(e)(3) of the Code), an Option may be
exercised within twelve (12) months thereafter, whether or not exercisable
at the time of such termination, and (ii) if such termination of employment
results from the optionee's death, an Option may be exercised by his
executors or administrators within twenty-four (24) months thereafter,
whether or not exercisable at the time of such termination.
(b) Exercise. Unless the Option Committee shall otherwise
determine at the time an Option is granted, each Incentive Stock Option
shall become vested and exercisable with respect to 25% of the shares of
Common Stock subject to such Option as of the first anniversary of the date
of grant and, thereafter, with respect to an additional 25% of the shares
subject to such Option as of the same day (or the immediately preceding day
if a month does not have such day) of each calendar month thereafter, so
that such Option shall be exercisable in full as of the fourth anniversary
of the date of grant. Unless otherwise provided in the vote of either the
Option Committee or the Board of Directors of the Company, for this purpose
the date of the grant of an Option shall be the date on which the Board of
Directors approves the grant. To the extent not exercised, vested
installments shall accumulate and be exercisable in whole or in part at any
time after becoming exercisable, but not later than the date the Option
expires or terminates.
(c) Purchase Price. Unless the Option Committee shall otherwise
determine at the time the Option is granted, the purchase price per share
of Common Stock under each Option shall be not less than the fair market
value of a share of Common Stock on the date the Option is granted. For the
purposes of the Plan, the fair market value of the shares of Common Stock
shall be determined by the Option Committee with the approval of the Board
of Directors of the Company.
6. LIMITATION ON RIGHTS OF OPTIONEES
(a) Options Nontransferable. No Option shall be transferable by
any optionee other than by will or by the laws of descent and distribution.
Options may be exercised during the optionee's lifetime only by the
optionee (or, if the optionee is disabled and so long as the Option remains
exercisable, by the optionee's duly appointed guardian or other legal
representative).
(b) No Shareholder Rights. No optionee shall be deemed for any
purpose to be the owner of any shares of Common Stock subject to any Option
unless and until (i) the Option shall have been exercised pursuant to the
terms thereof, (ii) the Company shall have issued and delivered the shares
to the optionee, and (iii) the optionee's name shall have been entered as a
shareholder of record on the books of the Company. Thereupon, the optionee
shall have full voting, dividend and other ownership rights with respect to
such shares of Common Stock.
(c) No Employment Rights. Neither the Plan nor the grant of any
Option thereunder shall be deemed to confer upon any optionee any rights of
employment with the Company, including without limitation any right to
continue in the employ of the Company, or affect the right of the Company
to terminate the employment of an optionee at any time, with or without
cause.
(d) Authority of Company. The existence of the Options shall not
affect: the right or power of the Company or its shareholders to make
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; any issue of bonds,
debentures, preferred or prior preference stock affecting the Common Stock
or the rights thereof; the dissolution or liquidation of the Company, or
sale or transfer of any part of its assets or business; or any other act,
whether of a similar character or otherwise.
7. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE
(a) Notice of Exercise. Any Option granted under the Plan may be
exercised by the optionee by delivering to the Chief Financial Officer of
the Company (or such other representative of the Company as the Option
Committee may designate) on any business day a written notice specifying
the number (which shall be consistent with the provisions of Section 5(b)
hereof) of shares of Common Stock the optionee then desires to purchase
(the "Notice").
(b) Payment. Payment for the shares of Common Stock purchased
pursuant to the exercise of an Option shall be made either (i) in cash or
by check representing good funds in an amount equal to the option price for
the number of shares of Common Stock specified in the Notice (the "Total
Option Price"), or (ii) if authorized by the applicable option agreement,
by the valid and properly completed transfer to the Company of a number of
shares of Common Stock having a fair market value, determined as provided
in Section 5(d) hereof, equal to or less than the Total Option Price, plus
cash or check in an amount equal to the excess, if any, of the Total Option
Price over the fair market value of such shares of Common Stock.
8. NOTICE OF DISPOSITION; WITHHOLDING; ESCROW
An optionee shall immediately notify the Company in writing of any
sale, transfer, assignment or other disposition (or action constituting a
disqualifying disposition within the meaning of Section 421 of the Code) of
any shares of Common Stock acquired through exercise of an Incentive Stock
Option, within two (2) years after the grant of such Incentive Stock Option
or within one (1) year after the acquisition of such shares of Common
Stock, setting forth the date and manner of disposition, the number of
shares of Common Stock disposed of and the price at which such shares of
Common Stock were disposed of. The Company shall be entitled to withhold
from any compensation or other payments then or thereafter due to the
optionee such amounts as may be necessary to satisfy any withholding
requirements of federal or state law or regulation and, further, to collect
from the optionee any additional amounts which may be required for such
purpose as a condition of delivering the shares of Common Stock acquired
pursuant to an Option. The Option Committee may, in its discretion, require
shares of Common Stock acquired by an optionee upon exercise of an
Incentive Stock Option to be held in an escrow arrangement for the purpose
of enabling compliance with this Section 8.
9. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
(a) Events for Adjusting Number and Price. If the shares of Common
Stock as a whole are changed into or exchanged for a different number or
kind of shares or securities of the Company, whether through
reorganization, recapitalization, reclassification, stock dividend or other
distribution, split, combination of interests, exchange of interests,
change in corporate structure or the like, an appropriate and proportionate
adjustment shall be made in the number and kind of shares of Common Stock
subject to the Plan and in the number, kind, and per share exercise price
of shares of Common Stock subject to unexercised Options or portions
thereof granted prior to any such change. In the event of any such
adjustment in an outstanding Option, the optionee thereafter shall have the
right to purchase the number of shares of Common stock under such Option at
the per share price, as so adjusted, which the optionee could purchase at
the total purchase price applicable to the Option immediately prior to such
adjustment.
(b) Option Committee and Board Action. Adjustments under this
Section 9 shall be determined by the Option Committee and approved and
ratified by the Board of Directors of the Company, and such determinations
shall be conclusive. The Option Committee shall have the discretion and
power in any such event to determine and to make effective provision for
acceleration of the time or times at which any Option or portion thereof
shall become exercisable. No fractional interests shall be issued under the
Plan on account of any adjustment specified above.
10. AMENDMENT OR TERMINATION OF PLAN
The Board of Directors of the Company may modify, revise or terminate
this Plan at any time and from time to time, except that, other than as
provided in Section 9 hereof, no amendment shall be effective unless
approved by the stockholders of the Company in accordance with applicable
law and regulations at an annual or special meeting held within twelve (12)
months before or after the date of adoption of such amendment, where such
amendment will:
(a) increase the number of shares of Common Stock as to which
Options may be granted under the Plan;
(b) change in substance Section 4 hereof relating to eligibility to
participate in the Plan;
(c) change the minimum purchase price of Incentive Stock Options to
be granted under the Plan;
(d) increase the maximum term of Options provided herein; or
(e) otherwise materially increase the benefits accruing to
participants under the Plan.
Except as provided in Section 9 hereof, rights and obligations under
any Option granted before any amendment of the Plan shall not be altered or
impaired by such amendment, except with the consent of the optionee.
11. EFFECTIVE DATE; NONEXCLUSIVITY
(a) Effective Date. This Plan will be deemed to have been adopted
and to be effective when approved by the stockholders of the Company in
compliance with Temporary Regulation (S)14a-422A-2 under the Code.
(b) Nonexclusivity. The adoption of the Plan shall not be construed
as creating any limitations on the power of the Board of Directors of the
Company to adopt such other incentive arrangements as it may deem
desirable, including, without limitation, the granting of options otherwise
than under the Plan, and such arrangements may be either applicable
generally or only in specific cases.
12. GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW
(a) Securities Laws. If in the opinion of legal counsel for the
Company the issuance or sale of any shares of Common Stock pursuant to the
exercise of an Option would not be lawful for any reason, including without
limitation the inability of the Company to obtain from any governmental
authority or regulatory body having jurisdiction the authority deemed by
such counsel to be necessary for such issuance or sale, the Company shall
not be obligated to issue or sell any shares of Common Stock pursuant to
the exercise of an Option to an optionee or any other authorized person
unless a registration statement that complies with the provisions of the
Securities Act of 1933, as amended, (the "Act") in respect of such shares
of Common Stock is in effect at the time thereof, or other appropriate
action has been taken under and pursuant to the terms and provisions of the
Act, or the Company receives evidence satisfactory to such counsel that the
issuance and sale of such shares of Common Stock, in the absence of an
effective registration statement or other appropriate action, would not
constitute a violation of the Act or any applicable state securities law.
The Company is in no event obligated to register any such shares of Common
Stock, to comply with any exemption from registration requirements or to
take any other action which may be required in order to permit, or to
remedy or remove any prohibition or limitation on, the issuance or sale of
such shares of Common Stock of any optionee or other authorized person.
(b) Withholding Taxes. As a condition of exercise of an Option, the
Company may, in its sole discretion, withhold or require the optionee to
pay or reimburse the Company for any taxes which the Company determines are
required to be withheld in connection with the grant or any exercise of an
Option.
(c) Governing Law. The Plan shall be interpreted such that all
options hereunder intended to be Incentive Stock Options shall meet the
requirements therefore set forth in Section 422 of the Code (and any
applicable regulations, rulings or judicial decisions interpreting said
Section). Otherwise, the Plan shall be governed by and interpreted under
the laws of the State of Colorado.
13. TERMINATION OF GRANTING OF OPTIONS UNDER THE PLAN
No Option may be granted under the Plan after the tenth anniversary
of the effective date of the Plan.
LAW OFFICE OF
JOHN W. MARTIN
5777 West Century Boulevard, Suite 1540
Los Angeles, California 90045
Telephone (310) 342-6800
Telecopier (310) 342-6808
January 13, 2000
Tensleep.com Inc.
2201 N. Lamar Boulevard, Suite 205
Austin, Texas 78705
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as your counsel in connection with the preparation and
filing with the Securities and Exchange Commission of a Registration
Statement on Form S-8 (the "Registration Statement") registering for
issuance by Tensleep.com Inc., a Colorado corporation (the "Company"), upon
exercise of options granted under the Company's 1997 Stock Option Plan (the
"Plan"), 1,300,000 shares of the Company's Common Stock, $.01 par value per
share (the "Shares").
We have examined (i) the Registration Statement, (ii) the Articles of
Incorporation of the Company and (iii) such other documents and records of
the Company as we have deemed necessary for the purpose of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
Based upon the foregoing, it is our opinion that, when issued and
sold in the manner referred to in the Plan and pursuant to the respective
agreement which accompanies each grant under the Plan, the Shares will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
it appears in the Registration Statement and any amendments to it.
Very truly yours,
LAW OFFICE OF JOHN W. MARTIN
By: /s/ JOHN W. MARTIN
JOHN W. MARTIN
Brabo, Carlsen & Cahill
Certified Public Accountants
1111 E. Tahquitz Canyon Way, Suite 203
Palm Springs, California 92262
(760) 320-0848
Tensleep.com Inc.
2201 N. Lamar Boulevard, Suite 205
Austin, Texas 78705
Gentlemen:
We consent to the incorporation by reference in the Registration
Statement of Tensleep.com, Inc. (formerly Tensleep Technologies, Inc. and
Tensleep Design, Inc.) on Form S-8 pertaining to the 1997 Stock Option Plan
of Tensleep.com Inc. of our reports dated March 31, 1999 and December 17,
1999, relating to the financial statements of Tensleep.com Inc. for the
years ended September 30, 1998 and 1999, respectively, in Tensleep.com
Inc.'s Registration Statement on Form 10-SB and Form 10-KSB filed with the
Securities and Exchange Commission.
BRABO, CARLSEN & CAHILL
Palm Springs, California
January 7, 2000
