As filed with the Securities and
Exchange Commission on March 10, 2000
Registration No. __________
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
_________________________
UNITED STATES ANTIMONY CORPORATION
(Exact name of registrant as specified in its charter)
Montana 81-0305822
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
P.O. Box 643
1250 Prospect Creek Road
Thompson Falls, Montana 59873
(Address, Including Zip Code, of Principal Executive Offices)
2000 STOCK PLAN
(Full title of the Plan)
_________________________
John C. Lawrence
President and Chairman
United States Antimony Corporation
P.O. Box 643
1250 Prospect Creek Road
Thompson Falls, Montana 59873
Telephone (406) 827-3523
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
____________________
CALCULATION OF REGISTRATION FEE
=================================================================
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of Each Class Amount to Proposed Proposed Amount
of Securities to be Regis- Maximum Maximum of
be Registered tered (1) Offering Aggregate Regis-
Price Per Offering tration
Share (2) Price (2) Fee
______________________________________________________________________________
Common Stock, par
value $.01 per share 500,000 $.73 $365,000 $96.36
=================================================================
</TABLE>
(1) This Registration Statement relates to the
registration of Five Hundred Thousand (500,000) shares of $.01
par value common stock ("Common Stock") for issuance or delivery
under the United States Antimony Corporation 2000 Stock Plan (the
"Plan"). Pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the
registration fee. Pursuant to Rule 457 under the Securities Act
of 1933, as amended, the price per share is estimated to be $.73,
based upon the average bid and asked prices for United States
Antimony Corporation Common Stock as reported on the OTCBB on
March 7, 2000.
=================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required in Part I is omitted from this
Registration Statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into
this Registration Statement and are deemed to be a part hereof
from the date of the filing of such documents.
(1) The Registrant's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1998 ("1998 Annual Report") (SEC
File No. 001-08675).
(2) All reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since the end of the fiscal year covered by the
Registrant's 1998 Annual Report, including without limitation,
the Registrant's Quarterly Reports on Form 10-Q for the three
month periods ended March 31, 1999 (SEC File No. 001-08675), June
30, 1999 (SEC File No. 001-08675), and September 30, 1999 (SEC
File No. 001-08675).
(3) The description of Common Stock contained in the
Registrant's Registration Statement filed under Section 12 of the
Exchange Act, including all amendments or reports filed for the
purpose of updating such description.
(4) All other documents subsequently filed by the
Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities
offered have been sold or which deregisters all securities that
remain unsold.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Bylaws ("Bylaws") of the Company provide that to the
full extent permitted by law, the Company shall indemnify and
advance expenses to any person who is or was a director or
officer of the Company, or was serving at the request of a
director, officer, employee or fiduciary of the Company, against
liabilities which may be incurred by such person by reason of (or
arising in part from) such capacity. The Company shall not
indemnify any director or officer in matters in which he is
adjudged to have been derelict in his duty as an officer or
director if the total expense of settlement substantially exceeds
costs of litigation to a conclusion. Further, the Company shall
not indemnify an officer or director in any action based on
Section 16(b) of the Exchange Act or similar federal or state
statute wherein the officer or director is adjudged to have
breached his duty to the Company. The Company shall indemnify an
officer or director in successful defense of a suit or criminal
action; and, prior to conclusion of the suit, the Company may
indemnify an officer or director's expenses of the suit if the
officer or director furnishes an undertaking to the Company in
the event it is determined that the acts of the officer or
director were unauthorized or improper.
<PAGE>
Section 35-1-452 of the MBCA authorizes the indemnification
of directors against liability incurred by reason of being a
director and against expenses reasonably incurred in connection
with any action, suit or proceeding seeking to establish such
liability, in the case of third-party claims, if the director
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interest of the corporation, and in
the case of actions by or in the right of the corporation, if the
director acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the
corporation, unless, despite the adjudication of liability, a
court otherwise determines. Indemnification also is authorized
with respect to any criminal action or proceeding where, in
addition to the above, the director has no reasonable cause to
believe that his conduct was unlawful. Section 35-1-453 provides
mandatory indemnification against reasonable expenses of a
director who is successful in the defense of any proceeding to
which he was a party because he is or was a director, unless
limited by a corporation's articles.
Section 35-1-457 of the MBCA provides for mandatory
indemnification of officers pursuant to Section 35-1-453 of the
MBCA, unless contrary to the corporation's articles, and provides
that officers are entitled to apply for court-ordered
indemnification to the same extent as a director pursuant to
Section 35-1-455 of the MBCA, together with indemnification
against reasonable expenses.
The above discussion of the Company's Bylaws and Sections
35-1-452, 35-1-453, 35-1-455, and 35-1-457 of the MBCA is only a
summary and is qualified in its entirety by the full text of each
of the foregoing.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits included as part of this Registration Statement
are as follows:
Exhibit Number Description
-------------- -----------
3.01 Articles of Incorporation of the Company were
filed as an exhibit to the Company's Form
10-KSB for fiscal year ended December 31,
1995, and are incorporated herein by this
reference.
4.01 United States Antimony Corporation Key
Employees' 2000 Stock Plan.
5.01 Opinion of Hawley Troxell Ennis & Hawley LLP
23.01 Consent of Hawley Troxell Ennis & Hawley LLP
(included in Exhibit 5.01)
23.02 Consent of Decoria, Maichel & Teague P.S.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
II-2
<PAGE>
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this 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 this Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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 being 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 (and, where applicable, each filing of any employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this
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 and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the 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 is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
(Signatures on following page)
II-3
<PAGE>
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
Thompson Falls, State of Montana, on March 7, 2000.
UNITED STATES ANTIMONY CORPORATION
By: //s// John C. Lawrence
------------------------------
John C. Lawrence
President and Chairman
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.
Signature Capacity Date
- --------- -------- ----
//s// John C. Lawrence
- ---------------------- President and March 7, 2000
John C. Lawrence Chairman of the Board
(Principal Executive
Officer and Director)
//s// Daniel Dougherty
- ---------------------- Vice President in March 7, 2000
Daniel Dougherty charge of Sales
(Principal Executive
Officer)
//s// Lee D. Martin
- ---------------------- Controller March 7, 2000
Lee D. Martin
//s// Robert A. Rice
- ---------------------- Director March 6, 2000
Robert A. Rice
//s// Leo Jackson
- ---------------------- Director March 7, 2000
Leo Jackson
II-4
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description Page
- -------------- ----------- ----
3.01 Articles of Incorporation of the
Company, filed as an exhibit to the
Company's Form 10-KSB for the fiscal
year ended December 31, 1995, and
are incorporated herein by this reference.
4.01 United States Antimony Corporation 2000
Stock Plan. II-7
5.01 Opinion of Hawley Troxell Ennis & Hawley
LLP II-20
23.01 Consent of Hawley Troxell Ennis & Hawley
LLP (included in Exhibit 5.01)
23.02 Consent of Decoria, Maichel & Teague
P.S. II-22
II-5
<PAGE>
Exhibit 4.01
UNITED STATES ANTIMONY CORPORATION 2000 STOCK PLAN
II-6
<PAGE>
UNITED STATES ANTIMONY CORPORATION
2000 STOCK PLAN
1. Purpose and Structure of the Plan.
(a) Purpose of the Plan. The purpose of this 2000
Stock Plan are to attract and retain the best available personnel
for positions of substantial responsibility, to provide
additional incentive to Employees, Directors and Consultants of
United States Antimony Corporation (the "Company") and its
Subsidiaries and to promote the success of the Company's
business.
(b) Structure of the Plan. The Plan shall be divided
into two separate equity programs:
(i) the Option Grant Program under which eligible
persons may, at the discretion of the Administrator, be granted
options to purchase Common Stock. Options granted under the Plan
may be Incentive Stock Options or Nonstatutory Stock Options, as
determined by the Administrator at the time of grant of and
subject to the applicable provisions of Section 422 of the Code,
and the regulations promulgated thereunder; and
(ii) The Restricted Stock Purchase Program under
which eligible persons may, at the discretion of the
Administrator, be issued shares of Common Stock directly, either
through the immediate purchase of such shares or as bonus or
other compensation for services or other consideration rendered
the Company.
2. Definitions. As used herein, the following definitions
shall apply:
(a) "Administrator" means the Board or any of its
Committees appointed pursuant to Section 4 of the Plan.
(b) "Applicable Laws" means the requirements relating
to the administration of stock option plans under U.S. state
corporate laws, U.S. federal and state securities laws, the Code,
any stock exchange or quotation system on which the Common Stock
is listed or quoted and the applicable laws of any foreign
country or jurisdiction where Options or Stock Purchase Rights
are, or will be, granted under the Plan.
(c) "Board" means the Board of Directors of the
Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means a Committee of Directors
appointed by the Board of Directors in accordance with Section
4(a) of the Plan.
(f) "Common Stock" means the common stock of the
Company.
(g) "Company" means United States Antimony
Corporation, a Montana corporation.
(h) "Consultant" means any person, including an
advisor, who is engaged by the Company or any Parent or
Subsidiary to render consulting or advisory services to such
entity.
(i) "Director" means a member of the Board of
Directors of the Company.
(j) "Disability" means total and permanent disability
as defined in Section 22(e)(3) of the Code.
<PAGE>
(k) "Employee" means any person, including Officers
and Directors employed by the Company or any Parent or Subsidiary
of the Company. A Service Provider shall not cease to be an
Employee in the case of
II-7
(i) any leave of absence approved by the Company or (ii)
transfers between locations of the Company or between the
Company, its Parent, Any Subsidiary or any successor. For
purposes of Incentive Stock Options, no such leave may exceed
ninety (90) days, unless reemployment upon expiration of such
leave is guaranteed by statute or contract. If reemployment upon
expiration of a leave of absence approved by the Company is not
so guaranteed, on the 91st day of such leave, any Incentive Stock
Option held by the Optionee shall cease to be treated as an
Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option. Neither service as a Director nor
payment of a director's fee by the Company shall be sufficient to
constitute "employment" by the Company.
(l) "Exchange Act" means the Securities Exchange Act
of 1934, as amended.
(m) "Fair Market Value" means, as of any date, the
fair market value of the Company's Common Stock determined as
follows:
(i) If the Common Stock is listed on any
established stock exchange or a national market system including
without limitation the National Market or the SmallCap Market of
the National Association of Securities Dealers, Inc. Automated
Quotation ("Nasdaq") System, its Fair Market Value shall be the
closing sales price for such stock (or the closing bid, if no
sales were reported), as quoted on such exchange or system, for
the last market trading day prior to the time of determination,
as reported in The Wall Street Journal or such other source as
the Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq
System (but not on the Nasdaq National or SmallCap Market
thereof) or is regularly quoted by a recognized securities dealer
but selling prices are not reported, its Fair Market Value shall
be the mean between the high bid and low asked prices for the
Common Stock for the last market trading day prior to the time of
determination, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable; or
(iii) In the absence of an established market
for the Common Stock, the Fair Market Value thereof shall be
determined in good faith by the Administrator.
(n) "Incentive Stock Option" means an Option intended
to qualify as an incentive stock option within the meaning of
Section 422 of the Code and the regulations promulgated
thereunder, as designated in the applicable Option Agreement.
(o) "Nonstatutory Stock Option" means an Option not
intended to qualify as an Incentive Stock Option, as designated
in the applicable Option Agreement.
(p) "Notice of Grant" means a written or electronic
notice evidencing certain terms and conditions of an individual
Option or Stock Purchase Right grant. The Notice of Grant is
part of the Option Agreement.
(q) "Officer" means a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act and
the rules and regulations promulgated thereunder.
(r) "Option" means a stock option granted pursuant to
the Plan.
(s) "Option Agreement" means the agreement between the
Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the
terms and conditions of the Plan.
<PAGE>
(t) "Option Exchange Program" means a program whereby
outstanding Options are surrendered in exchange for Options with
a lower exercise price.
II-8
(u) "Optioned Stock" means the Common Stock subject to
an Option or a Stock Purchase Right.
(v) "Optionee" means the holder of an outstanding
Option or Stock Purchase Right granted under the Plan.
(w) "Parent" means a "parent corporation," whether now
or hereafter existing, as defined in Section 424(e) of the Code,
or any successor provision.
(x) "Plan" means this United States Antimony
Corporation 2000 Stock Plan.
(y) "Reporting Person" means an Officer, Director or
greater than ten percent (10%) shareholder of the Company within
the meaning of Rule 16a-2 under the Exchange Act, who is required
to file reports pursuant to Rule 16a-3 under the Exchange Act.
(z) "Restricted Stock" means shares of Common Stock
acquired pursuant to a grant of a Stock Purchase Right under
Section 11 below.
(aa) "Restricted Stock Purchase Agreement" means the
agreement between the Company and an Optionee evidencing the
terms and conditions of a Stock Purchase Right.
(bb) "Rule 16b-3" means Rule 16b-3 promulgated under
the Exchange Act, as the same may be amended from time to time,
or any successor provision.
(cc) "Section 16(b)" means Section 16(b) of the
Exchange Act.
(dd) "Service Provider" means an Employee, Director or
Consultant.
(ee) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 12 of the Plan.
(ff) "Stock Purchase Right" means a right to purchase
Common Stock pursuant to Section 11 of the Plan, as evidence by a
Notice of Grant.
(gg) "Subsidiary" means a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f)
of the Code, or any successor provision.
3. Stock Subject to the Plan. Subject to the provisions
of Section 12 of the Plan, the maximum aggregate number of shares
which may be subject to Option and Stock Purchase Right and sold
under the Plan is 500,000 Shares. The Shares may be authorized
but unissued, or reacquired Common Stock. If an Option or Stock
Purchase Right expires or becomes unexercisable for any reason
without having been exercised in full, or is surrendered pursuant
to an Option Exchange Program, the unpurchased Shares which were
subject thereto shall become available for future grant or sale
under the Plan (unless the Plan has terminated). However, Shares
that have actually been issued under the Plan, upon exercise of
either an Option or Stock Purchase Right, shall not be returned
to the Plan and shall not become available for future
distribution under the Plan, except that if Shares of Restricted
Stock are repurchased by the Company at their original purchase
price, and the original purchaser of such Shares did not receive
any benefits of ownership of such Shares, such Shares shall
become available for future grant under the Plan. For purposes
of the preceding sentence, voting rights shall not be considered
a "benefit of Share ownership." In addition, any shares of
Common Stock which are retained by the Company upon exercise of
an
<PAGE>
Option in order to satisfy the exercise price for such Option or
any withholding taxes due with respect to such exercise shall be
treated as not issued and shall continue to be available under
the Plan.
II-9
4. Administration of the Plan.
(a) Initial Plan Procedure. Prior to the date, if
any, upon which the Company becomes subject to the Exchange Act,
the Plan shall be administered by the Board or a Committee
appointed by the Board.
(b) Plan Procedure After the Date, if any, Upon Which
the Company Becomes Subject to the Exchange Act.
(i) Multiple Administrative Bodies. Different
Committees with respect to different groups of Service Providers
may administer the Plan.
(ii) Section 162(m). To the extent that the
Administrator determines it to be desirable to qualify Options
granted hereunder as "performance-based compensation" within the
meaning of Section 162(m) of the Code, the Plan shall be
administered by a Committee of two or more "outside directors"
within the meaning of Section 162(m) of the Code.
(iii) Rule 16b-3. To the extent desirable to
qualify transactions hereunder as exempt under Rule 16b-3, the
transactions contemplated hereunder shall be structured to
satisfy the requirement for exemption under Rule 16b-3.
(iv) Other Administration. Other than as provided
above, the Plan shall be administered by (A) the Board or (B) a
Committee, which committee shall be constituted to satisfy
Applicable Laws.
(b) Powers of the Administrator. Subject to the
provisions of the Plan and in the case of a Committee, the
specific duties delegated by the Board to such Committee, and
subject to the approval of any relevant authorities, including
the approval, if required, of any stock exchange or national
market system upon which the Common Stock is listed, the
Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the
Common Stock, in accordance with Section 2(l) of the Plan;
(ii) to select the Service Providers to whom
Options and Stock Purchase Rights may from time to time be
granted hereunder;
(iii) to determine the number of shares of Common
Stock to be covered by each Option and Stock Purchase Rights
granted hereunder;
(iv) to approve the forms of Option Agreement and
Restricted Stock Purchase Agreements for use under the Plan;
(v) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any Option or any
Stock Purchase Right granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price,
the time or times when Options or Stock Purchase Rights may be
exercised (which may be based on performance criteria), any
vesting or acceleration or waiver of forfeiture restrictions, and
any restriction or limitation regarding any Option or Stock
Purchase Right or the shares of Common Stock relating thereto,
based in each case on such factors as the Administrator, in its
sole discretion, shall determine;
<PAGE>
(vi) to determine whether and under what
circumstances an Option may be settled in cash under Section 9(g)
instead of Common Stock;
II-10
(vii) to reduce the exercise price of any Option
to the then current Fair Market Value if the Fair Market Value of
the Common Stock covered by such Option shall have declined since
the date the Option was granted;
(viii) to institute an Option Exchange Program;
(ix) to construe and interpret the terms of the
Plan and awards granted pursuant to the Plan;
(x) to prescribe, amend and rescind rules and
regulations relating to the Plan, including rules and regulations
relating to sub-plans established for the purpose of qualifying
for preferred tax treatment under foreign tax laws;
(xi) to modify or amend each Option or Stock
Purchase Right (subject to Section 15(b) of the Plan), including
the discretionary authority to extend the post-termination
exercisability period of Options longer than is otherwise
provided for in the Plan;
(xii) to allow Optionees to satisfy withholding
tax obligations by electing to have the Company withhold from the
Shares to be issued upon exercise of an Option or Stock Purchase
Right that number of Shares having a Fair Market Value equal to
the amount required to be withheld;
(xiii) to authorize any person to execute on
behalf of the Company any instrument required to effect the grant
of an Option or Stock Purchase Right previously granted by the
Administrator; and
(xiv) to make all other determinations deemed
necessary or advisable for administering the Plan.
(c) Effect of Administrator's Decisions. All
decisions, determinations and interpretations of the
Administrator shall be final and binding on all Optionees, their
successors and assigns, and any other holders of any Options or
Stock Purchase Rights.
5. Eligibility.
(a) General. Nonstatutory Stock Options and Stock
Purchase Rights may be granted to Service Providers. Incentive
Stock Options may granted only to Employees. An Employee or
Consultant who has been granted an Option or Stock Purchase Right
may, if he or she is otherwise eligible, be granted additional
Options or Stock Purchase Rights.
(b) Designation in Option Agreement. Each Option
shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the
aggregate Fair Market Value 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 plans of the Company
and any Parent or Subsidiary) exceeds $100,000, such excess
Options shall be treated as Nonstatutory Stock Options. For
purposes of this Section 5(b), Incentive Stock Options shall be
taken into account in the order in which they were granted, and
the Fair Market Value of the Shares subject to an Incentive Stock
Option shall be determined as of the date of grant of such
Option.
<PAGE>
(c) No Rights to Employment or Service. Neither this
Plan nor any Option or Stock Purchase Right granted hereunder
shall confer upon any Optionee any right with respect to
continuation of his or her employment or consulting relationship
with the Company, nor shall it interfere in any way with his or
her right or
II-11
the Company's right to terminate his or her employment or
consulting relationship at any time, with or without cause.
6. Term of Plan. The Plan shall become effective upon its
adoption by the Board of Directors. It shall continue in effect
for a term of ten (10) years unless sooner terminated under
Section 15 of the Plan.
7. Term of Option. The term of each Option shall be the
term stated in the Option Agreement. In the case of an Incentive
Stock Option, the term shall be ten (10) years from the date of
grant or such shorter term as may be provided in the Option
Agreement. Moreover, in the case of an Incentive Stock Option
granted to an Optionee who, at the time the Option is granted,
owns stock representing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or
any Parent or Subsidiary, the term of the Incentive Stock Option
shall be five (5) years from the date of grant thereof or such
shorter term as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
(a) Option Exercise Price. The per share exercise
price for the Shares to be issued pursuant to exercise of an
Option shall be such price as is determined by the Administrator,
but shall be subject to the following:
(i) In the case of an Incentive Stock Option
that:
(A) is granted to an Employee who, at the
time of the grant of such Incentive Stock Option, owns stock
representing more than ten percent (10%) of the voting power of
all classes of stock of the Company or any Parent or Subsidiary,
the per Share exercise price shall be no less than one hundred
ten percent (110%) of the Fair Market Value per Share on the date
of grant; or
(B) is granted to any other Employee (other
than an Employee described in subparagraph (A) above), the per
Share exercise price shall be no less than one hundred percent
(100%) of the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option
that:
(A) is granted to any person, the per Share
exercise price shall be determined by the Administrator;
provided, however, in the case of a Nonstatutory Stock Option
intended to qualify as "performance-based compensation" within
the meaning of Section 162(m) of the Code, the per Share exercise
price shall be no less than 100% of the Fair Market Value per
Share on the date of grant.
(iii) Notwithstanding the foregoing, Options
may be granted with a per Share exercise price of less than 100%
of the Fair Market Value per Share on the date of grant pursuant
to a merger or other corporate transaction.
(b) Waiting Period and Exercise Dates. At the time an
Option is granted, the Administrator shall fix the period within
which the Option may be exercised and shall determine any
conditions that must be satisfied before the Option may be
exercised.
<PAGE>
(c) Form of Consideration. The consideration to be
paid for the Shares to be issued upon exercise of an Option,
including the method of payment, shall be determined by the
Administrator (and, in the case of an Incentive Stock Option,
shall be determined at the time of grant) and may consist
entirely of (i) cash; (ii) check; (iii) promissory note; (iv)
other Shares which (A) in the case of Shares acquired upon
exercise of an Option, have been owned by the Optionee for more
than six (6) months on the date of surrender or such other period
as may
II-12
be required to avoid a charge to the Company's earnings, and (B)
have a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares as to which such Option
shall be exercised; (v) consideration received by the Company
under a cashless exercise program implemented by the Company in
connection with the Plan; (vi) a reduction in the amount of any
Company liability to the Optionee, including any liability
attributable to the Optionee's participation in any Company-
sponsored deferred compensation program or arrangement; (vii) any
combination of the foregoing methods of payment; or (viii) such
other consideration and method of payment for the issuance of
Shares to the extent permitted by Applicable Laws. In making its
determination as to the type of consideration to accept, the
Administrator shall consider if acceptance of such consideration
may be reasonably expected to benefit the Company.
9. Exercise of Option.
(a) Procedure for Exercise. Any Option granted
hereunder shall be exercisable at such times and under such
conditions as determined by the Administrator, including
performance criteria with respect to the Company and/or the
Optionee, and as shall be permissible under the terms of the Plan
and as set forth in the Option Agreement. An Option may not be
exercised for a fraction of a Share. An Option shall be deemed
to be exercised when written or electronic notice of exercise (in
accordance with the Option Agreement) has been given to the
Company by the person entitled to exercise the Option and the
Company has received full payment for the Shares with respect to
which the Option is exercised. Full payment may, as authorized
by the Administrator, consist of any consideration and method of
payment allowable under Section 8(b) of the Plan. Exercise of an
Option in any manner shall result in a decrease in the number of
Shares that thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to
which the Option is exercised.
(b) Rights as Shareholder. Until the issuance (as
evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company) of the stock
certificate(s) evidencing such Shares, no right to vote or
receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding
exercise of the Option. The Company shall issue (or cause to be
issued) such stock certificate(s) promptly upon exercise of the
Option. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 12 of the
Plan.
(c) Termination of Relationship as a Service Provider.
If an Optionee ceases to be a Service Provider, other than upon
the Optionee's death or Disability, the Optionee may exercise his
or her Option within such period of time as is specified in the
Option Agreement to the extent that the Option is vested on the
date of termination (but in no event later than the expiration of
the term of such Option as set forth in the Option Agreement).
In the absence of a specified time in the Option Agreement, the
Option shall remain exercisable for three (3) months following
the Optionee's termination. If, on the date of termination, the
Optionee is not vested as to his or her entire Option, the Shares
covered by the unvested portion of the Option shall revert to the
Plan. If, after termination, the Optionee does not exercise his
or her Option within the time specified by the Administrator, the
Option shall terminate, and the Shares covered by such Option
shall revert to the Plan.
(d) Disability of Optionee. If the Optionee ceases to
be a Service Provider as a result of the Optionee's Disability,
the Optionee may exercise his or her Option within such period of
time as is specified in the Option Agreement to the extent the
Option is vested on the date of termination (but in no event
later than the expiration of the term of the Option as set forth
in the Option Agreement). In the absence of a specified time in
the Option Agreement, the Option shall remain exercisable for
twelve (12) months following the Optionee's termination. If, on
the date of termination, the Optionee is not vested as to his or
her entire Option, the Shares
<PAGE>
covered by the unvested portion of the Option shall revert to the
Plan. If, after termination, the Optionee does not exercise his
or her Option within the time specified by the Administrator, the
Option shall terminate, and the Shares covered by such Option
shall revert to the Plan.
(e) Death of Optionee. In an Optionee dies while a
Service Provider, the Option may be exercised within such period
of time as is specified in the Option Agreement (but in no event
later than the
II-13
expiration of the term of such Option as set forth in the Option
Agreement), by the Optionee's estate or by a person who acquires
the right to exercise the Option by bequest or inheritance, but
only to the extent that the Option is vested on the date of
death. In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for twelve (12)
months following the Optionee's termination. If, at the time of
death, the Optionee is not vested as to his or her entire Option,
the Shares covered by the unvested portion of the Option shall
immediately revert to the Plan. The Optionee may be exercised by
the executor or administrator of the Optionee's estate or, if
none, by the person(s) entitled to exercise the Option under the
Optionee's will or the laws of descent or distribution. If the
Option is not so exercised within the time specified herein, the
Option shall terminate, and the shares covered by such Option
shall revert to the Plan.
(f) Rule 16b-3. Options granted to Reporting Persons
shall comply with Rule 16b-3 and shall contain such additional
conditions or restrictions as may be required thereunder to
qualify for the maximum exemption from Section 16 of the Exchange
Act with respect to Plan transactions.
(g) Buyout Provisions. The Administrator may at any
time offer to buy out for a payment in cash or Shares, an Option
previously granted, based on such terms and conditions as the
Administrator shall establish and communicate to the Optionee at
the time that such offer is made.
10. Tax Withholding Obligations.
(a) Options to Satisfy Tax Withholding Obligations.
At the discretion of the Administrator, Optionees may satisfy
withholding obligations as provided in this Section 10. When an
Optionee incurs tax liability in connection with an Option, which
tax liability is subject to tax withholding under applicable tax
laws, and the Optionee is obligated to pay the Company an amount
required to be withheld under applicable tax laws, the Optionee
may satisfy the withholding tax obligation by one or some
combination of the following methods: (a) by cash payment, (b)
out of Optionee's current compensation, (c) if permitted by the
Administrator, in its discretion, by surrendering to the Company
Shares that (i) in the case of Shares previously acquired from
the Company, have been owned by the Optionee for more than six
(6) months on the date of surrender, and (ii) have a Fair Market
Value on the date of surrender equal to or less than Optionee's
marginal tax rate times the ordinary income recognized, or (d) by
electing to have the Company withhold from the Shares to be
issued upon exercise of the Option, if any, that number of Shares
having a Fair Market Value equal to the amount required to be
withheld. For this purpose, the Fair Market Value of the Shares
to be withheld shall be determined on the date that the amount of
tax to be withheld is to be determined (the "Tax Date").
(b) Rule 16b-3. Any surrender by a Reporting Person
of previously owned Shares to satisfy tax withholding obligations
arising upon exercise of this Option must comply with the
applicable provisions of Rule 16b-3 and shall be subject to such
additional conditions or restrictions as may be required
thereunder to qualify for the maximum exemption from Section 16
of the Exchange Act with respect to Plan transactions.
(c) Election by Optionee. All elections by an
Optionee to have Shares withheld to satisfy tax withholding
obligations shall be made in writing in a form acceptable to the
Administrator and shall be subject to the following restrictions:
(i) the election must be made on or prior to the
applicable Tax Date;
<PAGE>
(ii) once made, the election shall be irrevocable
as to the particular Shares covered by the Option as to which the
election is made;
(iii) all elections shall be subject to the
consent or disapproval of the Administrator;
(iv) if the Optionee is a Reporting Person, the
election must comply with the applicable provisions of Rule 16b-3
and shall be subject to such additional conditions or
restrictions
II-14
as may be required thereunder to qualify for the maximum
exemption from Section 16 of the Exchange Act with respect to
Plan transactions.
(d) Section 83 of the Code. In the event the election
to have Shares withheld is made by an Optionee and the Tax Date
is deferred under Section 83 of the Code because no election is
filed under Section 83(b) of the Code, the Optionee shall receive
the full number of Shares with respect to which the Option is
exercised but such Optionee shall be unconditionally obligated to
tender back to the Company the proper number of Shares on the Tax
Date.
11. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be
issued either alone, in addition to, or in tandem with other
awards granted under the Plan and/or cash awards made outside the
Plan. Shares of Common Stock may be issued under the Restricted
Stock Purchase Program through direct and immediate issuances
without any intervening option grants. After the Administrator
determines that it will offer Stock Purchase Rights under the
Plan, it shall advise the offeree in writing or electronically,
by means of a Notice of Grant, of the terms, conditions and
restrictions related to the offer, including the number of Shares
that such person shall be entitled to purchase, the price to be
paid, and the time within which such person must accept such
offer. The offer shall be accepted by execution of a Restricted
Stock Purchase Agreement in the form determined by the
Administrator. Shares purchased pursuant to the grant of a Stock
Purchase Right shall be referred to herein as "Restricted Stock."
(b) Purchase Price. The purchase price per share
shall be fixed by the Administrator and may be less than, equal
to or greater than the Fair Market Value per share of Common
Stock on the stock issuance date. Shares of Common Stock may be
issued under the Restricted Stock Purchase Program for any or all
of the following items of consideration which the Administrator
may deem appropriate in each individual instance:
(i) cash or check made payable to the Company;
(ii) services rendered to the Company or contracts
for services to be performed for the Company;
(iii) any other form or combination of
consideration described in Section 8(c) of the Plan.
(c) Repurchase Option. Unless the Administrator
determines otherwise, the Restricted Stock purchase agreement
shall grant the Company a repurchase option exercisable upon the
voluntary or involuntary termination of the purchaser's service
with the Company for any reason (including death or Disability).
The purchase price for Shares repurchased pursuant to the
Restricted Stock purchase agreement shall be the original price
paid by the purchaser and may be paid by cancellation of any
indebtedness of the purchaser to the Company. The repurchase
option shall lapse at such rate as the Administrator may
determine.
(d) Other Provisions. The Restricted Stock Purchase
Agreement shall contain such other terms, provisions and
conditions not inconsistent with the Plan as may be determined by
the Administrator in its sole
<PAGE>
discretion. In addition, the provisions of Restricted Stock
Purchase Agreements need not be the same with respect to each
purchaser.
(e) Rights as a Shareholder. Once the Stock Purchase
Right is exercised, the purchaser shall have rights equivalent to
those of a shareholder and shall be a shareholder when his or her
purchase is entered upon the records of the Company, or any duly
authorized transfer agent thereof. No adjustment shall be made
for a dividend or other right for which the record date is prior
to the date the Stock Purchase Right is exercised, except as
provided in Section 12 of the Plan.
II-15
12. Adjustments Upon Changes in Capitalization; Corporate
Transactions.
(a) Changes in Capitalization. Subject to any
required action by the shareholders of the Company, the number of
shares of Common Stock covered by each outstanding Option or
Stock Purchase Right, and the number of shares of Common Stock
which have been authorized for issuance under the Plan but as to
which no Options or Stock Purchase Rights have yet been granted
or which have been returned to the Plan upon cancellation or
expiration of an Option or Stock Purchase Right, the number of
shares which may be added to the Plan each fiscal year (pursuant
to Section 3), as well as the price per share of Common Stock
covered by each such outstanding Option or Stock Purchase Right,
shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend, combination,
recapitalization or reclassification of the Common Stock, or any
other increase or decrease in the number of issued shares of
Common Stock effected without receipt of consideration by the
Company; provided, however, that the conversion of any
convertible securities of the Company shall not be deemed to have
been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in
that respect shall be final, binding and conclusive. Except as
expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of
stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of
shares of Common Stock subject to an Option or Stock Purchase
Right.
(b) Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Company, the
Administrator shall notify each Optionee as soon as practicable
prior to the effective date of such proposed transaction. The
Administrator may, in the exercise of its sole discretion,
provide for an Optionee to have the right to exercise his or her
Option until fifteen (15) days prior to such transaction as to
all of the Optioned Stock covered thereby, including Shares as to
which the Option would not otherwise be exercisable. In
addition, the Administrator may provide that any Company
repurchase option applicable to any Shares purchased upon
exercise of an Option or Stock Purchase Right shall lapse as to
all such Shares, provided the proposed dissolution or liquidation
takes place at the time and in the manner contemplated. To the
extent it has not previously been exercised, an Option or Stock
Purchase Right will terminate immediately prior to the
consummation of such proposed transaction.
(c) Merger or Asset Sale. In the event of a merger of
the Company with or into another corporation, or the sale of
substantially all of the assets of the Company, each outstanding
Option and Stock Purchase Right shall be assumed or an equivalent
option or right substituted by the successor corporation or a
Parent or Subsidiary of the successor corporation. In the event
that the successor corporation refuses to assume or substitute
for the Option or Stock Purchase Right, the Optionee shall fully
vest in and have the right to exercise the Option or Stock
Purchase Right as to all of the Optioned Stock, including Shares
as to which it would not otherwise be vested or exercisable. If
an Option or Stock Purchase right becomes fully vested and
exercisable in lieu of assumption or substitution in the event of
a merger or sale of assets, the Administrator shall notify the
Optionee in writing or electronically that the Option or Stock
Purchase Right shall be fully vested and exercisable for a period
of <fifteen (15)/thirty (30)> days from the date of such notice,
and the Option or Stock Purchase Right shall terminate upon the
expiration of such period. For the purposes of this paragraph,
the Option or Stock Purchase Right shall be assumed if, following
the merger or sale of assets, the option or right confers the
right to purchase or receive, for each Share of Optioned Stock
subject to the Option or Stock Purchase Right immediately prior
to
<PAGE>
the merger or sale of assets, the consideration (whether stock,
cash or other securities or property) received in the merger or
sale of assets by holders of Common Stock for each Share held on
the effective date of the transaction (and if holders were
offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the
merger or sale of assets is not solely common stock of the
successor corporation or its Parent or Subsidiary, the
Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of
the Option or Stock Purchase Right, for each Share of Optioned
Stock subject to the Option or Stock Purchase Right, to be solely
common stock of the successor corporation or its Parent or
Subsidiary equal in fair market value to the per share
consideration received by holders of Common Stock in the merger
or sale of assets.
II-16
13. Non-Transferability of Options and Stock Purchase
Rights. Unless determined otherwise by the Administrator,
Options and Stock Purchase Rights may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner
other than by will or by the laws of descent or distribution and
may be exercised or purchased during the lifetime of the
Optionee, only by the Optionee. If the Administrator makes an
Option or Stock Purchase Right transferable, such Option or Stock
Purchase Right shall contain such additional terms and conditions
as the Administrator deems appropriate.
14. Time of Granting Options and Stock Purchase Rights.
The date of grant of an Option or Stock Purchase Right shall, for
all purposes, be the date on which the Administrator makes the
determination granting such Option or Stock Purchase Right, or
such other date as is determined by the Board. Notice of the
determination shall be given to each Optionee within a reasonable
time after the date of such grant.
15. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any
time amend, alter, suspend or discontinue the Plan. To the
extent necessary and desirable to comply with Rule 16b-3 or with
Section 422 of the Code (or for any other Applicable Laws or
regulation, including the requirements of any applicable stock
exchange or national market system), the Company shall obtain
shareholder approval of any Plan amendment in such a manner and
to such a degree as required.
(b) Effect of Amendment or Termination. No amendment,
alteration, suspension or termination of the Plan shall adversely
affect Options or Stock Purchase Rights already granted, and such
Options and Stock Purchase Rights shall remain in full force and
effect as if this Plan had not been amended or terminated, unless
mutually agreed otherwise between the Optionee and the Company,
which agreement must be in writing and signed by the Optionee and
the Company. Termination of the Plan shall not affect the
Administrator's ability to exercise the powers granted to it
hereunder with respect to Options granted under the Plan prior to
the date of termination.
16. Conditions Upon Issuance of Shares.
(a) Applicable Laws. Shares shall not be issued
pursuant to the exercise of an Option or Stock Purchase Right
unless the exercise of such Option or Stock Purchase Right and
the issuance and delivery of such Shares pursuant thereto shall
comply with all relevant provisions of Applicable Laws,
including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange or
national market system upon which the Shares may then be listed,
and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
(b) Investment Representations. As a condition to the
exercise of an Option or Stock Purchase Right, the Company may
require the person exercising such Option or Stock Purchase Right
to represent and warrant at the time of any such exercise that
the Shares are being purchased only for investment and without
any present intention to sell or distribute such Shares if, in
the opinion of counsel for the Company, such a representation is
required by any of the aforementioned relevant provisions of law.
<PAGE>
(c) Inability to Obtain Authority. The inability of
the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company's counsel
to be necessary for the lawful issuance and sale of any Shares
hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained.
17. Reservation of Shares. The Company, during the term of
this Plan, shall at all times reserve and keep available such
number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
II-17
18. Agreements. Options and Stock Purchase Rights shall be
evidenced by written Option Agreements and Restricted Stock
Purchase Agreements in such form as the Administrator shall
approve from time to time.
Date of Adoption by Board of Directors: January 7, 2000.
II-18
<PAGE>
Exhibit 5.01
OPINION OF HAWLEY TROXELL ENNIS & HAWLEY LLP
II-19
<PAGE>
March 10, 2000
United States Antimony Corporation
P.O. Box 643
1250 Prospect Creek Road
Thompson Falls, MT 59873
Re: United States Antimony Corporation 2000 Stock Plan
Form S-8 Registration Statement
Ladies and Gentlemen:
This office represents United States Antimony Corporation, a
Montana corporation (the "Company"). This opinion is delivered
in connection with the referenced Form S-8 Registration Statement
relating to the United States Antimony Corporation 2000 Stock
Plan (the "Plan"), and the proposed offering of up to 500,000
shares of the Company's Common Stock, $.01 par value per share
(hereinafter referred to as the "Common Stock"). In connection
therewith, we have examined originals or copies of corporate
records, certificates of public officials and of officers of the
Company and other instruments relating to the authorization and
issuance of such shares of Common Stock as we have deemed
relevant and necessary for the opinion hereinafter expressed.
On the basis of the foregoing, we are of the opinion that
the Plan and the proposed offer thereunder of up to 500,000
shares of Common Stock have been duly authorized by the Board of
Directors of the Company, and the shares, when issued in
accordance with the terms and conditions of the Plan, will be
legally issued, fully paid and nonassessable.
The opinions herein expressed are limited to the laws of the
United States, and the Montana Business Corporation Act, all as
in effect on the date hereof.
We hereby consent to the filing of this opinion as an
exhibit to said Registration Statement on Form S-8.
Sincerely,
HAWLEY TROXELL ENNIS & HAWLEY LLP
II-20
<PAGE>
Exhibit 23.02
CONSENT OF DECORIA, MAICHEL & TEAGUE P.S.
II-21
<PAGE>
CONSENT OF DECORIA, MAICHEL & TEAGUE P.S.
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated March 5, 1999 included in the Company's Form 10-KSB
for the year ended December 31, 1998, and to all references to
our Firm included in this registration statement.
DECORIA, MAICHEL & TEAGUE P.S.
//s// Decoria, Maichel & Teague P.S.
-------------------------------------
Boise, Idaho
March 10, 2000
II-22
<PAGE>
