As filed with the Securities and Exchange Commission on June 28, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ARCA CORP.
(Exact name of Registrant as specified in its charter)
New Jersey 22-3417547
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
215 West Main Street
Maple Shade, New Jersey 08052
(Address of Principal Executive Offices)(Zip Code)
ARCA CORP.
1999 DUAL STOCK OPTION PLAN
(Full Title of the Plan)
Harry J. Santoro, President,
ARCA CORP.
215 West Main Street
Maple Shade, New Jersey 08052
(609) 667-0600
(Name, Address, and Telephone Number, Including Area Code,
of Agent for Service)
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
CALCULATION OF REGISTRATION FEE
=============================================================================
Title of Amount to Proposed Maximum Proposed Maximum Amount of
Securities Be Offering Price Aggregate Offering Registration
to be Registered(1) Per Share(2) Price Fee
Registered
- -----------------------------------------------------------------------------
Common Stock 4,500,000 $.50 $2,250,000 $626.00
- -----------------------------------------------------------------------------
(1) Represents 4,500,000 shares issuable under the 1999 Stock Incentive Plan.
This Registration Statement shall also cover any additional shares of
common Stock which become issuable under the 1999 Incentive Stock Plan by
reason of any stock dividend,
stock split, recapitalization or any other similar transaction without
receipt of consideration which results in an increase in the number of
outstanding shares of Common Stock of ARCA Corp.
(2) Calculated for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, using the average of the high and low
bid prices for the Common Stock of ARCA Corp. on June 25, 1999 as
quoted on the OTC Bulletin Board.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting Part I of this registration statement
have been or will be sent or given to participants in the registrant's 1999 Dual
Stock Option Plan (the "Plan") as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
ARCA Corp. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1998;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the 1934 Act since the end of the fiscal year covered by the
document referred to in (a) above.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
The Company's certificate of incorporation authorizes the
issuance of 50,000,000 shares of Common Stock, par value $.0001 per share
(Common Stock) and Ten Million (10,000,000) shares of Preferred Stock, par value
$.0001 per share ("Preferred Stock").
Common Stock -Holders of shares of Common Stock of the Company are entitled to
cast one vote for each share held at all shareholders meetings for all purposes,
including the election of directors, and to share equally on a per share basis
in such dividends as may be declared by the Board of Directors out of funds
legally available therefor. Upon liquidation or dissolution, each outstanding
share of Common Stock will be entitled to share equally in the assets of the
Company legally available for distribution to shareholders after the payment of
all debts and other liabilities. Shares of Common Stock are not redeemable,
have no conversion rights and carry no preemptive or other rights to subscribe
to or purchase additional shares in the event of a subsequent offering. All
outstanding shares of Common Stock are, and the shares offered hereby will be
when issued, fully paid and non-assessable.
The Common Stock does not have cumulative voting rights which means that the
holders of more than fifty percent of the Common Stock voting for election of
directors can elect one hundred percent of the directors of the Company if they
choose to do so.
Preferred Stock- Preferred Stock may be issued from time to time in one or more
series. The Board of Directors of the Corporation (the "Board") is authorized
to provide for the issuance of shares of Preferred Stock in one or more series
and to establish from time to time the number of shares to be included in each
such series, and to fix the designation, powers, preferences and the relative,
participating, optional or other rights of the shares of each such series and
the qualifications, limitations and restrictions thereof. The authority of the
Board with respect to each series shall include, but not be limited to,
determination of the following:
1. the designation of the series, which may be by distinguishing
number, letter or title;
2. the number of shares of the series, which number the Board may
thereafter (except where otherwise provided in the Preferred Stock Designation)
increase or decrease (but not below the number of shares thereof then
outstanding);
3. whether dividends, if any, shall be cumulative or noncumulative
and the rights with respect to dividends of the series;
4. the redemption rights and price or prices, if any, for shares of
the series;
5. the terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
6. the amounts payable on, and the preferences, if any, of shares
of the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation;
7. whether the shares of the series shall be convertible into shares
of any other class or series, or any other security, of the Corporation or any
other corporation, and, if so, the specification of such other class or series
of such other security, the conversion price or prices or rate or rates, any
adjustments thereof, the date or dates at which such shares shall be convertible
and all other terms and conditions upon which such conversion may be made;
8. restrictions on the issuance of shares of the same series or of
any other class or series; and
9. the voting rights, if any, of the holders of shares of the
series.
The Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof. The holders of shares of Common Stock shall be
entitled to one (1) vote for each such share upon all questions presented
generally to the stockholders.
The number of authorized shares of Common Stock or Preferred Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority in voting
power of the stock of the Corporation entitled to vote thereon, and no vote of
the holders of either the Common Stock or the Preferred Stock voting separately
as a class shall be required therefor.
Series A Preferred Stock.
(1) Designation; Number; Initial Sales Price; Parity Preferred Stock.
(a) The initial series of preferred stock shall be designated
"Series A Preferred Stock".
(b) The number of shares constituting the Series A Preferred Stock
shall be Two Million Seventy Five Thousand (2,075,000).
(c) The "Initial Sales Price" of the Series A Preferred Stock is
deemed to be Three Dollars and Fifty Cents ($3.50).
(d) Any series of Preferred Stock whose rights, preferences,
privileges, restrictions, number, and designation are fixed in a resolution
adopted by the Corporation's Board of Directors as set forth in one or more
certificates of determination filed subsequently to the filing of this
Certificate of Incorporation are hereby defined as "Parity Preferred Stock,"
provided that shares of such series shall be convertible into Common Stock,
shall have one vote per share of Common Stock into which such shares may be
converted if such shares are voting shares, and are on a parity with the Series
A Preferred Stock in payment of dividends and upon liquidation, based upon the
Initial Sales Price of the respective series.
(2) Dividend Rights.
(a) No dividend (payable other than in Common Stock of the
corporation) may be paid on or declared or set apart for the Common Stock in any
one fiscal year unless a dividend at the rate of five percent (5%) of the
Initial Sales Price is paid on, or declared and set apart for, each share of
Series A Preferred Stock, and the applicable designated dividend is paid on, or
declared and set apart for, each share of Parity Preferred Stock. The amount
of any such dividend shall be prorated for a share of Series A Preferred Stock
or Parity Preferred Stock which is not issued and outstanding for an entire
fiscal year.
(b) After the dividends to which the holders of Series A Preferred
Stock and Parity Preferred Stock are entitled have been paid or declared and set
apart in any one fiscal year of the Corporation, if the Board of Directors shall
elect to declare additional dividends out of funds legally available therefor
in that fiscal year, such additional dividends shall be allocated among the
holders of the Common Stock in proportion to the number of shares held by them.
(c) The dividends on the Series A Preferred Stock and Parity
Preferred Stock shall be paid out of any assets legally available therefor,
when, as and if declared by the Board of Directors. Dividends on the Series A
Preferred Stock and Parity Preferred Stock shall not be cumulative and no rights
shall accrue to the holders of the Series A Preferred Stock or Parity Preferred
Stock in the event the Corporation shall fail to declare or pay dividends on the
Series A Preferred Stock and Parity Preferred Stock in the amount of five
percent (5%) of the Initial Sales Price per share per fiscal year or in any
amount in any prior year of the Corporation, whether or not the earnings of the
Corporation in that previous fiscal year were sufficient to pay such dividends
in whole or in part.
(d) In the event the Board of Directors of the Corporation
declares dividends in a fiscal year in an amount less than the aggregate of all
the dividend preferences of the Series A Preferred Stock and Parity Preferred
Stock, then the entire amount of dividends declared by the Board of Directors
shall be distributed ratably among the holders of the Series A Preferred Stock
and Parity Preferred Stock such that the same percentage of the annual dividend
to which each series of Preferred Stock is entitled is paid on each share of
Series A Preferred Stock and Parity Preferred Stock.
(3) Liquidation Preference.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding up of the corporation, no distribution shall be made on
the shares of Common Stock without first making a distribution on the shares of
Series A Preferred Stock equal to (i) the amount of the Initial Sales Price per
share for each share of Series A Preferred Stock, plus (ii) all declared but
unpaid preferred dividends thereon; and on the shares of Parity Preferred Stock
equal to the applicable liquidation preference designated therefor. After such
payment to the holders of the Series A Preferred Stock and Parity Preferred
Stock, the remaining proceeds, if any, shall be allocated among the holders of
the Common Stock in proportion to the numbers of shares held by them. If upon
occurrence of such event the assets and property thus distributed among the
holders of the Series A Preferred Stock and Parity Preferred Stock shall be
insufficient to permit the payment to such holders of the full preferential
amount, then the entire assets and property of the corporation legally available
for distribution shall be distributed ratably among the holders of the Series
A Preferred Stock and the Parity Preferred Stock such that each holder of Series
A Preferred Stock and Parity Preferred Stock receives the same percentage of (x)
with respect to the holder's shares of Series A Preferred Stock, the sum of (A)
the Initial Sales Price of shares of the series plus (B) declared but unpaid
dividends; and (y) with respect to the holder's shares of Parity Preferred
Stock, the liquidation preference thereof.
(b) A merger of the corporation with or into any other corporation
or corporations, or a sale of all or substantially all of the assets of the
Corporation, shall be deemed to be a liquidation, dissolution, or winding up
within the meaning of this subparagraph.
(4) Conversion Privilege.
(a) Right to Convert. Any holder of shares of Series A Preferred
Stock may, at the option of the holder, at any time after the date of issuance
and not later than five (5) days prior to any Redemption Date provided for in
Section C(5)(c) of this Article IV, below, or a merger or sale of all or
substantially all of the assets of the corporation, convert all or any part of
the holder's shares of Series A Preferred Stock into shares of Common Stock at
the rate (adjusted as appropriate pursuant to paragraph (4)(c), below) of one
and one-half (1.5) shares of Common Stock for each one (1) share of Series A
Preferred Stock to be converted, by surrendering the certificate or certificates
for the shares of Series A Preferred Stock at the principal executive office of
the corporation, duly endorsed to the corporation, together with written notice
of intention to convert. In the event a date is fixed for redemption of the
shares of Series A Preferred Stock pursuant to Section C(5) of this Article IV,
below, or a Redemption Notice is given pursuant to paragraph (5)(c) of Section
C, below, this conversion privilege must be exercised no later than five (5)
days prior to the Redemption Date or a sale of all or substantially all of the
assets of the corporation.
(b) Mechanics of Conversion. Before any holder of Series A
Preferred Stock shall be entitled to convert the same into shares of Common
Stock, the holder shall surrender the certificate or certificates for the shares
to be converted, duly endorsed, at the office of the Corporation or of the
transfer agent for the preferred stock, and shall give written notice by mail,
postage prepaid, to the Corporation at its principal corporate office, of the
election to convert the shares. The notice shall state the name or names in
which the certificate or certificates for the shares of Common Stock are to be
issued. The Corporation shall as soon as practicable thereafter issue and
deliver at its principal corporate office to the holder of preferred stock, or
to the nominee or nominees of the holder, a certificate or certificates for the
number of shares of Common Stock to which the holder shall be entitled by virtue
of the conversion. The conversion shall be deemed to have been made immediately
prior to the close of business on the date of the surrender of the shares of
preferred stock to be converted, and the person or persons entitled to receive
the shares of Common Stock issuable upon the conversion shall be treated for all
purposes as the record holder or holders of the shares of Common Stock as of
that date. No fractional shares of Common Stock shall be issued upon conversion
of preferred stock. In lieu of any fractional shares to which the holder would
otherwise be entitled, the Corporation shall pay cash equal to the fraction
multiplied by the Initial Sales Price of the Series A Preferred Stock.
(c) Adjustments to Conversion Rate.
(i) Splits, Combinations or Reorganizations. In the event that at any
time after the first issuance of the Series A Preferred Stock the outstanding
shares of Common Stock shall be (A) subdivided or split into a greater number
of shares of Common Stock; (B) combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock; or (C) changed into
a different number of shares of any other class or classes of stock, whether by
capital reorganization, reclassification, or otherwise, the holders of the
shares of Series A Preferred Stock shall upon conversion thereof receive the
stock or securities, as applicable, to which the holder would have been entitled
had the holder held, at the time of said split, subdivision, combination,
consolidation, reorganization, or reclassification, the same number of shares
of Common Stock as the number of Series A Preferred Stock converted, and had the
holder thereafter during the period from the date of that event to and including
the date of conversion, retained the stock or securities receivable by them as
aforesaid during that period, subject to all other adjustments called for during
such period under this paragraph (4)(c) with respect to the rights of the
holders of the Series A Preferred Stock.
(ii) Other Distributions. In the event the corporation at
any time after the date of the first issuance of the Series A Preferred Stock
makes, or fixes a record date for, the determination of holders of Common Stock
entitled to receive, a dividend or other distribution payable in the securities
of the corporation, then the holders of the shares of Series A Preferred Stock
shall upon conversion thereof receive, in addition to the number of shares of
Common Stock receivable thereupon, the stock or securities to which the holder
would have been entitled had the holder held, at the time of the dividend or
other distribution, the same number of shares of Common Stock as the number of
Series A Preferred Stock converted, and had the holder thereafter during the
period from the date of that event to and including the date of conversion,
retained the stock or securities receivable by them as aforesaid during that
period, subject to all other adjustments called for during such period under
this Section c with respect to the rights of the holders of the Series A
Preferred Stock.
(d) Automatic Conversion. All outstanding shares of Series A
Preferred Stock also shall be deemed automatically converted into fully paid and
nonassessable shares of Common Stock at the rate (adjusted as appropriate
pursuant to paragraph (4)(c)(i) of this Section C, above) of one and one-half
(1.5) shares of Common Stock for each one (1) share of Series A Preferred Stock
upon the earlier to occur of:
(i) The consummation of an underwritten public offering of
the Common Stock of the corporation to the general public pursuant to a
registration statement filed with, and declared effective by, the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, in which
the per share price is at least the Initial Sales Price of the Series A
Preferred Stock and from which the corporation receives at least Five Million
dollars ($5,000,000); or
(ii) The consent of the holders of a majority of the
outstanding shares of Series A Preferred Stock; or
(iii) That time, after the initial issuance date of any
shares of Series A Preferred Stock, at which less than one hundred fifty
thousand (150,000) shares of Series A Preferred Stock remain outstanding.
(e) Reservation of Shares Issuable Upon Conversion. Shares of
Series A Preferred Stock converted as herein provided may not be reissued. The
corporation shall at all times reserve and keep available, out of its authorized
but unissued shares of Common Stock, solely for the purpose of conversion of its
shares of Series A Preferred Stock, such number of shares of Common Stock as
shall be sufficient to effect the conversion of all shares of Series A Preferred
Stock from time to time outstanding, and the corporation shall obtain and keep
in force such permits as may be required in order to enable the corporation
lawfully to issue and deliver such number of shares of Common Stock.
(5) Redemption.
(a) The corporation may, at any time it may lawfully do so, at the option of
the Board of Directors, redeem in whole or in part the Series A Preferred Stock
by paying in cash therefor a sum (the "Series A Redemption Price") equal to (i)
the Initial Sales Price of the Series A Preferred Stock plus (ii) declared but
unpaid dividends thereon.
(b) The corporation shall not be required to redeem all or part of the Series
A Preferred Stock because it is redeeming all or part of any other series of
preferred stock. In the event the Board of Directors elects to partially redeem
the Series A Preferred Stock, the method of selecting the shares to be redeemed
shall be at the discretion of the Board of Directors of the corporation.
(c) At least sixty (60) days prior to the date fixed for any redemption
pursuant to this Section C(5) (the "Redemption Date"), the corporation shall
mail written notice (the "Redemption Notice"), first class postage prepaid, to
each holder of record (at the close of business on the business day next
preceding the day on which notice is given) of the preferred stock to be
redeemed, at the address last shown on the records of the corporation for the
holder or given by the holder to the corporation for the purpose of notice (or
if no such address appears or is given at the place where the principal
executive office of this corporation is located), notifying the holder of the
redemption to be effected, specifying the number of shares to be redeemed from
the holder, the Redemption Date, the Redemption Price, the place at which
payment may be obtained and the date on which the holder's conversion privileges
(as defined in Section C(4) of this Article IV, above) as to the shares
terminate; and calling upon the holder to surrender to the corporation, in the
manner and at the place designated, the certificate or certificates representing
the holder's shares to be redeemed.
(d) On or before the Redemption Date, each holder of shares called for
redemption shall surrender the certificate or certificates for the shares to be
redeemed to the corporation at the place designated in the Redemption Notice,
and thereupon shall be entitled to receive payment of the Redemption Price on
the Redemption Date, unless the holder has exercised the conversion privilege
as hereinabove provided. If less than all of the shares represented by such
certificates are redeemed, the corporation shall as promptly as practicable
issue a new certificate for the unredeemed shares.
(e) From and after the Redemption Date, unless there shall have been a default
in payment of the Redemption Price, all rights of the holders of shares called
for redemption as holders of Series A Preferred Stock (except the right to
receive the Redemption Price without interest upon surrender of their
certificate or certificates) shall cease with respect to those shares, and those
shares shall not thereafter be transferred on the books of the corporation or
be deemed to be outstanding for any purpose whatsoever. Shares of Series A
Preferred Stock redeemed as herein provided may not be reissued.
(6) Voting Rights.
(a) Except as otherwise required by law or as provided in paragraph (6)(b),
below, the holders of the Series A Preferred Stock shall have no voting rights
and shall not be entitled to vote on any matters brought to the shareholders of
the Corporation.
(b) Each of the following require the affirmative vote of a majority of (i)
the shares of Series A Preferred Stock then outstanding, voting together as a
class, and (ii) the Voting Stock of the corporation, as such term is defined in
Article V, Section A(3), below:
(i) Any exchange, reclassification, or cancellation of all or part of the
outstanding shares of Series A Preferred Stock, including a reverse stock split
but excluding a stock split;
(ii) Any exchange, and the creation of any right of exchange, of all or part
of the shares of any other class of the corporation into shares of Series A
Preferred Stock;
(iii) Any change in the rights, preferences, privileges, or restrictions of the
Series A Preferred Stock;
(iv) The creation of any new class of shares of the corporation having rights,
preferences, or privileges prior to those of the Series A Preferred Stock, and
any increase in the rights, preferences, or privileges, or the authorized number
of shares, of any class of stock having rights, preferences, or privileges prior
to the shares of Series A Preferred Stock;
(v) Any division of the Series A Preferred Stock into series having different
rights, preferences, privileges, or restrictions, and any authorization to the
Board of Directors of the corporation to effect any such division; and
(vi) Any cancellation or other change that would affect dividends on the Series
A Preferred Stock which have accrued but not yet been paid.
(7) Repurchase of Shares. Each holder of an outstanding share of Series A
Preferred Stock shall be deemed to have consented, to the extent required by
law, to the distributions made by the corporation in connection with the
repurchase of shares of Common Stock issued to or held by consultants,
independent contractors, vendors, or customers upon termination of their
services or failure to fulfill certain conditions pursuant to agreements
providing for the right of said repurchase between the corporation and such
persons at the same price per share such persons paid therefor.
(8) Covenants. In addition to any other rights provided by law, as long as
sixty percent (60%) of the originally issued shares of Series A Preferred Stock
shall remain outstanding, the corporation shall not, without first obtaining the
affirmative vote or written consent of the holders of not less than a majority
of the outstanding shares of the Series A Preferred Stock:
(a) Amend or repeal any provision of, or add any provision to, the
corporation's Certificate of Incorporation or By-laws if such action would
materially and adversely alter or change the preferences, rights, privileges or
powers of, or the restrictions provided for the benefit of, the Series A
Preferred Stock authorized hereby;
(b) Authorize or issue shares of any class of stock having any preference or
priority as to dividends or assets superior to any such preference or priority
of the Series A Preferred Stock; or
(c) Reclassify any shares of Common Stock into shares having any preference
or priority as to dividends or assets superior to those of the Series A
Preferred Stock.
Notwithstanding the foregoing, the designation and authorization of the
issuance of any shares of Parity Preferred Stock shall not require a class vote
of the Series A Preferred Stock except as otherwise required by the New Jersey
Business Corporation Law.
Item 5. Interests of Named Experts and Counsel
The firm of Stephen M. Robinson, P.A., Medford, New Jersey,
has acted as counsel for the Registrant in the preparation of this Registration
Statement. As of June 23, 1998, a member of such firm beneficially owned a total
of 384,370 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
Section 14A:3-5 of the New Jersey Business Corporation Act provides in
pertinent part that:
(2) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate
agent against his expenses and liabilities in connection with any
proceeding involving the corporate agent by reason of his being or having
been such a corporate agent, other than a proceeding by or in the right of
the corporation, if
(a) such corporate agent acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation; and
(b) with respect to any criminal proceeding, such corporate
agent had no reasonable cause to believe his conduct was unlawful.
(3) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate agent
against his expenses in connection with any proceeding by or in the right of the
corporation to procure a judgment in its favor which involves the corporate
agent by reason of his being or having been such corporate agent, if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation. However, in such proceeding no
indemnification shall be provided in respect of any claim, issue or matter as
to which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Superior Court or the court
in which such proceeding was brought shall determine upon application that
despite the adjudication of liability, but in view of all circumstances of the
case, such corporate agent is fairly and reasonably entitled to indemnity for
such expenses as the Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any general or
special law of this State shall indemnify a corporate agent against expenses to
the extent that such corporate agent has been successful on the merits or
otherwise in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-5(3)
or in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and, unless
ordered by a court, under subsection 14A:3-5(3) may be made by the corporation
only as authorized in a specific case upon a determination that indemnification
is proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or subsection
14A:3-5(3). Unless otherwise provided in the certificate of incorporation or
bylaws, such determination shall be made
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Exhibit
- ------ -------
5 Opinion and consent of Stephen M. Robinson, P.A.
10.20 1999 Dual Stock Option Plan
23.1 Consent of Stephen M. Robinson, P.A. is contained in Exhibit 5
23.2 Consent of Independent Certified Public Accountants - Haefele
Flanagan & Co., P.C.
Item 9. Undertakings
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
into 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 may be permitted to directors, officers or
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Medford, State of New Jersey on this 28th day of
June, 1999
ARCA CORP.
By: /s/ Harry J. Santoro
-----------------------------------
Harry J. Santoro, President, and
Chief Executive Officer
(Principal Executive 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 dates indicated:
ARCA CORP.
(Registrant)
Date: June 28, 1999
/S/ Harry J. Santoro
-------------------------------------
Harry J. Santoro, President,
Treasurer, Chief Financial Officer
and Director
Date: June 28, 1999
/S/ Stephen M. Robinson
-------------------------------------
Stephen M. Robinson, Vice
President, Secretary and Director
EXHIBIT INDEX
Exhibit
Number Exhibit
- ------- -------
5 Opinion and consent of Stephen M. Robinson, P.A.
10.20 1999 Dual Stock Option Plan
23.1 Consent of Stephen M. Robinson, P.A. is contained in Exhibit 5
23.2 Consent of Independent Certified Public Accountants - Haefele
Flanagan & Co., P.C.
<PAGE>
EXHIBIT 5
The Law Offices of
STEPHEN M. ROBINSON, P.A.
172 Tuckerton Road
Medford, New Jersey 08055
Telephone: (856) 596-5530
Fax: (856) 596-3340
June 28, 1999
ARCA Corp.
215 West Main Street
Maple Shade, New Jersey 08052
RE: REGISTRATION STATEMENT ON FORM S-8
ARCA Corp.
Gentlemen:
As legal counsel to ARCA Corp., a New Jersey corporation the
"Company"), we have assisted in the preparation of the Company's registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on or about June 28, 1999 in connection with
the registration under the Securities Act of 1933, as amended of 4,500,000
shares of the Company's common stock, par value $0.0001 per share, the "Common
Stock") issuable pursuant to the Company's 1999 Dual Stock Option Plan (the
"Option Plan"). The shares of Common Stock issuable pursuant to the Option Plan
are collectively referred to as the "Shares." The facts, as we understand them,
are set forth in the Registration Statement.
With respect to the opinion set forth below, we have examined
originals, certified copies, or copies otherwise identified to our satisfaction
as being true copies, only of the following:
A. The Certificate of Incorporation of the Company, and all
amendments thereto, as filed with the Secretary of State of the State of New
Jersey;
B. The Bylaws of the Company, as amended through the date
hereof;
C. Resolutions of the Board of Directors of the Company
reserving a maximum of 4,500,000 shares of the Common Stock of the Company for
issuance pursuant to the Option Plan; and
D. The Registration Statement.
ARCA Corp.
June 28, 1999
Page 2
Subject to the assumptions that (i) the documents and
signatures examined by us are genuine and authentic and (ii) the persons
executing the documents examined by us have the legal capacity to execute such
documents, and subject to the further limitations and qualifications set forth
below, it is our opinion that the Shares, when issued and sold in accordance
with the terms of the Option Plan, will be validly issued, fully paid and
nonassessable.
Please be advised that we are members of the State Bar of New
Jersey, and our opinion is limited to the legality of matters under the laws of
the State of New Jersey and the corporation laws of the State of New Jersey.
Further, our opinion is based solely upon existing laws, rules and regulations,
and we undertake no obligation to advise you of any changes that may be brought
to our attention after the date hereof.
We hereby expressly consent to any reference to our firm in
the Registration Statement, inclusion of this Opinion as an exhibit to the
Registration Statement, and to the filing of this Opinion with any other
appropriate governmental agency.
Very truly yours,
STEPHEN M. ROBINSON, P.A.
/s/ Stephen M. Robinson
BY: Stephen M. Robinson
<PAGE>
1
EXHIBIT 10.20
ARCA CORP.
1999 DUAL STOCK OPTION PLAN
1. Purposes
ARCA Corp., a New Jersey corporation (hereinafter called the
"Company") has adopted this Plan to enhance the interest and concern of the
Company's key employees, officers, directors and consultants in the success of
the Company by giving them an ownership interest in the Company, and to give
them an incentive to continue their service to the Company.
2. Stock Subject to Plan
The Company shall reserve 4,500,000 shares of its par value $.0001
Common Stock (hereinafter called the "Shares") to be issued upon exercise of the
options which may be granted from time to time under this Plan. As it may from
time to time determine, the Board of Directors of the Company (hereinafter
called the "Board") may authorize that the Shares may be comprised, in whole or
in part, of authorized but unissued shares of the Common Stock of the Company
or of issued shares which have been reacquired. If options granted under this
Plan terminate or expire before being exercised in whole or in part, the Shares
subject to those options which have not been issued may be subjected to
subsequent options granted under the Plan.
3. Administration of the Plan
The Board shall appoint a Stock Option Committee (hereinafter called
the "Committee") which shall consist of not less than two (2) members of the
Board, and, at the election of the Board or if the Board consists of less than
three directors, may consist of the entire Board, to administer the Plan.
Subject to the express provisions of this Plan and guidelines which may be
adopted from time to time by the Board, the Committee shall have plenary
authority in its discretion (a) to determine the individuals to whom, and the
time at which, options are granted, and the number and purchase price of the
Shares subject to each option; (b) to determine whether the options granted
shall be "incentive stock options" within the meaning of Section 422A of the
Internal Revenue Code of 1986 (hereinafter called the "Code"), or non-statutory
stock options, or both; (c) to interpret the Plan and prescribe, amend and
rescind rules and regulations relating to it; (d) to determine the terms and
provisions (and amendments thereof) of the respective option agreements subject
to Section 6 of the Plan, which need not be identical, including, if the
Committee shall determine that a particular option is to be an incentive stock
option, such terms and provisions (and amendments thereof) as the Committee
deems necessary to provide for an incentive stock option or to conform to any
change in any law, regulation, ruling or interpretation applicable to incentive
stock options; and (e) to make any and all determinations which the Committee
deems necessary or advisable in administering the Plan. The Committee's
determination on the foregoing matters shall be conclusive. The Committee may
delegate any of the foregoing authority to the President with respect to options
granted to or which are held by non-officers.
4. Persons Eligible
Options may be granted under the Plan to employees of and consultants
to the Company and its subsidiaries, including officers and directors.
Employees may be granted either incentive or non-statutory options while
consultants may be granted only non-statutory options. Officers and directors
shall be deemed to be consultants for the foregoing purposes unless they are
also employees. For purposes of this Plan, "employee" shall conform to the
requirements of Section 422A of the Code, and "subsidiary" shall mean subsidiary
corporations as defined in Section 425 of the Code.
The aggregate fair market value (determined as of the time the option
is granted) of the Shares with respect to which incentive stock options are
exercisable for the first time by an optionee during any calendar year (under
all incentive stock option plans of the Company or its parent or subsidiaries)
shall not exceed $100,000.
5. Changes in Capital Structure
(a) Effect on the Plan. In the event of changes in the outstanding
capital stock of the Company by reason of any stock dividend, stock split or
reverse split, reclassification, recapitalization, merger or consolidation,
acquisition of 80 percent or more of its gross assets or stock, reorganization
or liquidation, the Committee and/or the Board shall make such adjustments in
the aggregate number and class of shares available under the Plan as it deems
appropriate, and such determination shall be final, binding and conclusive.
(b) In Outstanding Options.
(i) Stock Splits and Like Events.
Should a stock dividend, stock split, reverse stock split,
reclassification, or recapitalization occur, then the Committee and/or the Board
shall make such adjustments in (i) the number and class of shares to which
optionees will thereafter be entitled upon exercise of their options and (ii)
the price which optionees shall be required to pay upon such exercise as it in
its sole discretion in good faith deems appropriate, and such determination
shall be final, binding and conclusive. Notwithstanding the foregoing, such
adjustment shall have the result that an optionee exercising an option
subsequent to such occurrence would pay the same aggregate exercise price to
exercise the entire option and would then hold the same class and aggregate
number of shares as if such optionee would have exercised the outstanding option
immediately prior to such occurrence.
(ii) Recapitalizations; Assumption of Options.
(A) Definition of "Event".
An "Event" shall mean the occurrence of any of the following
transactions:
(i) a merger or consolidation in which the Company is
not the surviving corporation (other than a merger or consolidation with a
wholly owned subsidiary, a reincorporation of the Company in a different
jurisdiction, or other transaction in which there is no substantial change in
the shareholders of the Company and the options granted under this Plan are
assumed by the successor corporation, which assumption shall be binding on all
optionees);
(ii) a dissolution or liquidation of the Company;
(iii) the sale of substantially all of the assets of
the Company; or
(iv) any other transaction which qualifies as a
"corporate transaction" under Section 424(a) of the Code wherein the
shareholders of the Company give up all of their equity interest in the Company
(except for the acquisition, sale or transfer of all or substantially all of the
outstanding shares of the Company).
(B) Effect of "Event".
Upon the consummation of an Event, the Board shall make
arrangements which shall be binding upon the holders of unexpired options then
outstanding under this Plan as the Board, in its sole discretion, in good faith
determines to be in the best interests of the Company, which determination shall
be final and conclusive. The possible arrangements include, but are not limited
to, the substitution of new options for any portion of such unexpired options,
the assumption of any portion of such unexpired options by any successor to the
Company, the acceleration of the expiration date of any portion of such
unexpired options to a date not earlier than thirty (30) days after notice to
the optionee, or the cancellation of such portion in exchange for the payment
by any successor to the Company of deferred compensation to the optionee. (Such
deferred compensation may (but need not) be in an amount equal to the difference
between the fair market value of the Shares subject to such unexpired portion
and the aggregate exercise price of the Shares under the terms of such unexpired
portion on the date of the Event and may (but need not) be paid in installments
which correspond to the vesting schedule of the unexpired option.) The Board
shall not be obligated to arrange such substitution or assumption to comply with
Section 425(a) of the Code or to accelerate the exercisability of a portion of
an option when it accelerates the expiration date of such portion.
(C) Company Acquisitions.
The Company, from time to time, also may substitute or
assume outstanding awards granted by another company, whether in connection with
an acquisition of such other company or otherwise, by either (i) granting an
option under the Plan in substitution of such other company's award, or (ii)
assuming such award as if it had been granted under the Plan if the terms of
such assumed award could be applied to an option granted under the Plan. Such
substitution or assumption shall be permissible if the holder of the substituted
or assumed option would have been eligible to be granted an option under the
Plan if the other company had applied the rules of the Plan to such grant. In
the event the Company assumes an award granted by another company, the terms and
conditions of such award shall remain unchanged (except that the exercise price
and the number and nature of shares issuable upon exercise of any such option
will be adjusted appropriately pursuant to Section 424(a) of the Code). In the
event the Company elects to grant a new option rather than assuming an existing
option, such new option may be granted with a similarly adjusted exercise
price.
6. Terms and Conditions of Options
Each option granted under this Plan shall be evidenced by a stock
option agreement (hereinafter called "Agreement") which is not inconsistent with
this Plan, and the form of which the Committee and/or Board may from time to
time determine, provided that the Agreement shall contain the substance of the
following:
(a) Option Price. The option price shall be not less than 100% of
the fair market value of the Shares at the time the option is granted, which
shall be the date the Committee and/or Board, or its delegate, awards the grant,
except that in the case of a grant of a non- statutory option to a key employee
of the Company, the option price shall not be less than 85% of such fair market
value. If the optionee, at the time of the option is granted, owns stock
possessing more than ten percent (10%) of the total combined voting power of all
the classes of stock of the Company or of its parent or subsidiaries (a
"Principal Shareholder"), the option price of incentive stock options shall be
not less than 110% of the fair market value of the Shares at the time the option
is granted. The fair market value of the Shares shall be determined and the
option price of the Shares set by the Committee and/or Board in accordance with
the valuation methods described in Section 20.2031-2 of the Treasury
Regulations.
(b) Method of Exercise. At the time of purchase, Shares purchased
under options shall be paid for in full either (i) in cash, (ii) at the
discretion of the Board, with a promissory note secured by the Shares purchased,
(iii) at the discretion of the Committee and/or Board, with outstanding stock
of the Company at such value as the Board shall determine in its sole discretion
to be the fair market value of such stock, or (iv) a combination of promissory
note (if permitted pursuant to (ii) above), stock (if permitted pursuant to
(iii) above), and/or cash. To the extent that the right to purchase Shares has
accrued under an option, the optionee may exercise said option from time to time
by giving written notice to the Company stating the number of Shares with
respect to which the optionee is exercising the option, and submitting with said
notice payment of the full purchase price of said Shares either in cash or, at
the discretion of the Board and/or Committee as described above, with a
promissory note, outstanding stock of the Company, or a combination of cash,
promissory note, and/or such stock. As soon as practicable after receiving such
notice and payment, the Company shall issue, without transfer or issue tax to
the optionee (or other person entitled to exercise the option), and at the main
office of the Company or such other place as shall be mutually acceptable, a
certificate or certificates representing such Shares out of authorized but
unissued Shares or reacquired Shares of its capital stock, as the Board and/or
Committee, or its delegate, may elect, for the number of Shares to be
delivered. The time of such delivery may be postponed by the Company for such
period as may be required for it with reasonable diligence to comply with
such procedures as may, in the opinion of counsel to the Company, be
desirable in view of federal and state laws, including corporate securities
laws and revenue and taxation laws. If the optionee (or other person
entitled to exercise the option) fails to accept delivery of any or all of
the number of Shares specified in such notice upon tender of delivery of
the certificates representing them, the right to exercise the option with
respect to such undelivered Shares may be terminated.
(c) Option Term. The Committee and/or Board may grant options for
any term, but shall not grant any options for a term longer than ten (10) years
from the date the option is granted (except in the case of an incentive option
granted to a Principal Shareholder in which case the term shall be no longer
than five (5) years from the date the option is granted). Each option shall be
subject to earlier termination as provided in this section 6 of this Plan.
(d) Exercise of Options. Each option granted under this Plan shall
be exercisable on such date or dates, upon or after the occurrence of certain
events, or upon or after the achievement of certain performance milestones
(which occurrences or achievements may be waived in whole or in part or extended
at the discretion of the Committee and/or Board) and during such period and for
such number of Shares as shall be determined by the Committee and/or Board.
Provided, however, for so long as the Company is relying upon California
Corporations Code Section 25102(0) for exemption from qualification under the
California Blue Sky law, and for so long as required by said Section 25102(0)
or regulations implementing it, each option, unless granted to an officer,
director or consultant of the Company, shall nevertheless become exercisable as
to not less than twenty percent (20%) of the Shares subject to the option per
year elapsed from the date of the grant. An incentive option granted to a
non-officer may not be exercised at any time unless the optionee shall have
continuously served, to the extent determined by the Committee and/or Board, as
an employee of the Company or its subsidiary throughout a period commencing at
the date an option is granted and ending no more than three (3) months and no
less than thirty (30) days before an attempted exercise of the option, and, if
applicable, unless the Committee and/or Board shall determine and notify the
optionee in writing that certain events have occurred or certain performance
milestones have been achieved. If an option becomes exercisable upon the
occurrence of certain events or achievements of certain performance milestones,
the option, unless granted to an officer, director or consultant of the Company,
shall nevertheless become exercisable as to not less than twenty percent (20%)
of the Shares subject to the option per year elapsed from the date of the grant;
but otherwise may not be exercised unless the Committee and/or Board shall
determine and notify the optionee in writing that such events have occurred or
that such performance milestones have been achieved.
(e) Nonassignability of Option Rights. No option shall be assignable
or transferable by the optionee except by will or by the laws of descent and
distribution. During the life of an optionee, the option shall be exercisable
only by the optionee.
(f) Effect of Termination of Employment or Death or Disability. In
the event the optionee's employment with the Company or its subsidiaries ceases,
as determined by the Committee during the optionee's life for any reason,
including retirement, any incentive option or unexercised portion thereof
granted to a non-officer optionee which is otherwise exercisable shall terminate
unless exercised within a period not to exceed three (3) months nor to be less
than thirty (30) days of the date on which such employment ceased but not later
than the date of expiration of the option period. In the event of the death or
disability (as defined in Code Section 22(e)(3)) of the optionee while employed
or within a period not to exceed three months nor to be less than thirty (30)
days of the date on which such employment ceases, any option or unexercised
portion thereof granted to the optionee, if otherwise exercisable by the
optionee at the date of death or disability, may be exercised by the optionee
(or by the optionee's personal representatives, heirs or legatees) at any time
prior to the expiration of one year from the date of death or disability of the
optionee but not later than ten (10) years from the date of grant of such option
except that, in the case of an incentive option granted to a Principal
Shareholder, not later than five years from the date of grant of such option.
(g) Rights of Optionee. The optionees shall have no rights as a
stockholder with respect to any Shares subject to an option until the date of
issuance of a stock certificate to the optionee for such Shares. No adjustment
shall be made for dividends or other rights of which the record date is prior
to the date such stock certificate is issued. Neither this Plan, nor any action
or agreement thereunder, shall confer any rights of employment, any rights to
election or retention as an officer or director, or any rights to serve as a
consultant.
(h) Tax Withholding. To the extent required by applicable law, the
Company shall withhold from the pay of an optionee any taxes required to be
withheld upon exercise of an option. The Company may instead at its discretion
require that the taxes be paid to the Company concurrently with the exercise of
the option as a condition to the exercise of the option. The Company, at the
discretion and upon the approval of the Board, may permit the optionee to pay
some or all of the taxes by tendering to the Company outstanding shares of the
Company's stock held by the optionee, meeting the same criteria and valued in
the same manner as stock tendered to pay the exercise price as set forth in
Section 6(d) above, or by reducing at the optionee's instructions, the number
of shares to be issued upon exercise of the option, with such shares similarly
valued.
(i) Restrictions of Shares. To the extent required by the Company's
bylaws, the Board, and/or the Committee, shares of Stock issued upon exercise
of options shall be subject to a right of first refusal and market stand-off and
holders of such shares may be required to execute non-disclosure agreements
prior to being shown certain information concerning the Company.
7. Use of Proceeds
The proceeds from the sale of stock pursuant to options granted under
the Plan shall constitute general funds of the Company.
8. Amendment of Plan
The Board of Directors may at any time amend the Plan, provided that
no amendment may affect any then outstanding options or any unexercised portions
thereof, and provided further that any such amendment increasing the number of
Shares reserved under the Plan, altering the employees or class of employee
eligible to be granted incentive stock options under the Plan, causing options
granted to employees and intended to be incentive options under the Plan not to
qualify as "incentive stock options" under Section 422A of the Code, or amending
this Section 8 shall be subject to shareholder approval.
9. Financial Information
Whenever the Company provides financial statements, whether audited
or unaudited, to all of its shareholders as a group, the Company shall
concurrently provide each optionee with a copy of such financial statements.
Notwithstanding the foregoing, the Company shall provide each optionee at the
end of its fiscal year with a copy of its financial statements for such fiscal
year, either audited or unaudited, within ninety (90) days after the end of such
fiscal year if such person is then an optionee. In connection with such
provision, the Company may require the optionee to enter into a nondisclosure
agreement; provided, however, that such nondisclosure agreement may not contain
provisions which are more stringent than those the Company imposes on its
shareholders which are also receiving the financial statements.
10. Effective Date and Termination of Plan
This Plan was adopted by the Board of Directors on June 19, 1999, and
approved by the shareholders on June 28, 1999. The Board may terminate this
Plan at any time. If not earlier terminated, this Plan shall terminate on June
28, 2009.
This Plan, the granting of any option hereunder, and the issuance of
stock upon the exercise of any option, shall be subject to such approval or
other conditions as may be required or imposed by any regulatory authority
having jurisdiction to issue regulations or rules with respect thereto,
including the securities laws of various governmental entities.
EXHIBIT 23.2
HAEFELE, FLANAGAN & CO., P.C.
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement dated June 28, 1999,
of our report dated January 29,1999 included in the Form 10-KSB for the period
ending December 31, 1998, and to all references to our firm included in this
registration statement dated June 28, 1999.
/s/ HAEFELE, FLANAGAN & CO., P.A.
Maple Shade, New Jersey
June 25, 1999
