SCHEDULE 14a
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant [X]
Filed by a party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for use of the Commission only
(as permitted by Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-12
SUNVEST RESORTS, INC.
------------------------------------------------
(Name of Registrant as Specified in Its Charter)
- ------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act rules 14a-6(i)91) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is calculated and state how it was determined):
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[ ] Fee paid previously with preliminary materials:
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for
which the offsetting fee was paid previously. Identiry the
previous filing by registration statement number, or the
form or schedule and the date of its filing.
(1) Amount prevously paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
_________________________________________________________________________
SUNVEST RESORTS, INC.
3500 NW Boca Raton Boulevard
Building 811
Boca Raton, Florida 33431
(561) 368-0032
Notice of Annual Meeting of Shareholders
DATE: June 22, 2000
TIME: 10:00 A.M. Eastern Standard Time
PLACE: US DATA AUTHORITY
3500 NW 3500 Boca Raton Boulevard
Building 806 - Network Operation Center
Boca Raton, Florida 33431
Dear Shareholder:
You are cordially invited to attend the 2000 Annual Meeting
of Shareholders (the "Annual Meeting") of SunVest Resorts, Inc.,
a Florida corporation (the "Company"), which will be held on
Thursday, June 22, 2000, at 3500 NW 3500 Boca Raton Boulevard,
Building 806 - Network Operation Center, Boca Raton, Florida
33431, commencing at 10:00 A.M..
At the Annual Meeting, we will ask you to:
(1) Elect seven (7) directors to hold office until the next
annual meeting of shareholders or until their
respective successors have been elected or appointed.
(2) Approve Amended and Restated Articles of Incorporation
of the Company, which, among other things, will change
the Company's name to "U.S. Data Authority, Inc.,"
increase the number of authorized shares of the
Company's common stock from 25 million to 100 million
and create a class of preferred stock with 30 million
shares authorized.
(3) Approve the Company's 2000 Stock Incentive Plan.
(4) Transact such other business as may properly come
before the Annual Meeting or any adjournment thereof.
These items are fully discussed in the following pages,
which constitute part of this Notice. Only shareholders of
record on the Company's books at the close of business on
May 30, 2000, will be entitled to vote at the Annual
Meeting. A list of shareholders entitled to vote will be
available for inspection at the Company's offices for 10
days prior to the Annual Meeting.
Whether or not you plan to attend the Annual Meeting, the
Company requests that you vote your shares as early as possible.
You may do so by marking, signing, dating and returning the
enclosed proxy card in the accompanying postage-paid envelope.
You may revoke any proxy in the manner described in the Proxy
Statement at any time prior to its exercise at the Annual
Meeting. If you attend the Annual Meeting and prefer to vote in
person, you may do so.
By Order of the Board of Directors,
By: /S/ Ronald J. Austin
------------------------
Ronald J. Austin
Secretary
Boca Raton, Florida
May 31, 2000
SUNVEST RESORTS, INC.
3500 NW Boca Raton Boulevard
Building 811
Boca Raton, Florida 33431
(561) 368-0032
PROXY STATEMENT FOR THE
2000 ANNUAL MEETING OF SHAREHOLDERS
INFORMATION ABOUT THE ANNUAL MEETING AND VOTING
Why did you send me this proxy statement?
We sent you this proxy statement and the enclosed proxy card
because the Board of Directors of SunVest Resorts, Inc., a
Florida corporation (the "Company") is soliciting your proxy to
vote at the Annual Meeting of the Company's shareholders on June
21, 2000, beginning at 10:00 A.M. (the "Annual Meeting"). The
Annual Meeting will be held at 3500 NW 3500 Boca Raton Boulevard,
Building 806 - Network Operation Center, Boca Raton, Florida
33431. This proxy statement summarizes the information that you
need to know to vote intelligently at the Annual Meeting
However, you do not need to attend the Annual Meeting to vote
your shares. Instead, you may simply complete, sign and return
the enclosed proxy card. We will begin sending this proxy
statement, the attached Notice of Annual Meeting and the enclosed
proxy card on May 31, 2000, to all shareholders entitled to vote.
Only shareholders who owned the Company's common stock, par value
$.02 per share (the "Common Stock") at the close of business on
May 30, 2000 (the "Record Date") are entitled to vote. On the
Record Date there were 25,000,000 shares of the Common Stock
issued and outstanding held by 512 shareholders of record. The
Common Stock is the Company's only class of voting stock.
Presence in person or by proxy of a majority of the shares of
Common Stock outstanding as of the Record Date is required for a
quorum.
How many votes do I have?
Each share of Common Stock that you own entitles you to one
vote. The enclosed proxy card indicates the number of shares of
Common Stock that you own.
How do I vote by proxy?
Whether or not you plan to attend the Annual Meeting, we
urge you to complete, sign and return the enclosed proxy card and
return it to us promptly in the accompanying envelope. Returning
the proxy card will not affect your right to attend and vote at
the Annual Meeting.
If you properly complete and sign the proxy card and send it
to us in advance of the Annual Meeting, your "proxy" (the
individual named on your proxy card) will vote your shares as
you have directed. If you sign the proxy card but do not make
specific choices, your proxy will vote your shares as recommended
by the Board of Directors "FOR" all three proposals set forth
herein.
If any other matter is presented at the Annual Meeting, your
proxy will vote your shares in accordance with his best judgment.
At the time this proxy statement went to press, we knew of no
other matters to be raised at the Annual Meeting.
May I revoke my proxy?
If you give a proxy, you may revoke it at any time before it
is exercised. You may revoke your proxy in any of three ways:
* You may send in another proxy with a later date.
* You may notify the Company's Secretary in writing before the
Annual Meeting that you have revoked your proxy.
* You may vote in person at the Annual Meeting.
How do I vote in person?
If you plan to attend the Annual Meeting and vote in person,
we will give you a ballot when you arrive. However, if your
shares are held in the name of your broker, bank or other
nominee, you must bring an account statement or letter from the
nominee indicating that you are the beneficial owner of the
shares on the Record Date.
What vote is required to approve each proposal?
Proposal 1: Elect seven directors.
The seven nominees for director who receive the highest
number of affirmative votes will be elected. So, if you indicate
"withhold authority" to vote for all or a particular nominee on
your proxy card, your vote will not count either "for" or
"against."
Proposal 2: Approve Amended and Restated Articles of
Incorporation.
The affirmative vote of a majority of the Company's Common
Stock present in person or by proxy at the Annual Meeting will be
required to approve the Amended and Restated Articles of
Incorporation.
Abstentions or "broker non-votes" will be counted as
negative votes.
Proposal 3: Approve the Company's 2000 Stock Incentive Plan.
The affirmative vote of a majority of the Company's Common
Stock present in person or by proxy at the Annual Meeting will be
required to approve the Company's Employee Incentive Stock Option
Plan.
Abstentions or "broker non-votes" will be counted as
negative votes.
Is voting confidential?
We keep all the proxies, ballots and voting tabulations
private as a matter of practice. We let only our Inspector of
Election examine these documents. We will not disclose your vote
to management unless it is necessary to comply with legal
requirements. We will, however, forward to management any
written comments that you make, on the proxy card or elsewhere.
BACKGROUND INFORMATION
Since 1996, the Company has engaged in the business of
converting hotels into resort condotels. In 1998, the Company
also entered the business of converting a multi-unit single
family rental resort project into an active adult community. The
Company conducted the resort condotel business through two wholly-
owned subsidiaries, Cove Development, Inc. ("Cove") and Colony
Plaza Development, Inc. ("Colony"), and the active adult
community conversion business through a Florida limited liability
company, Lakeshore Club Development. LC ("Lakeshore"). Since
1998, the Company has been controlled by a group of individuals
consisting of Herbert Hirsch, Harvey Birdman, Diane Birdman,
Louis Birdman and Bonita Hirsch ("the HB Group"), which
personally guaranteed the bank debt associated with the three
conversion projects, owned approximately 80% of the 9,000,000
outstanding shares of the Common Stock and constituted the
officers and directors of the Company.
During late April 2000, the Company underwent a fundamental
transformation. Specifically:
1. On April 21, 2000, Colony merged into Cove and, on April 25,
2000, the Company distributed the 9,000,000 shares of the common
stock of Cove and the 9,000,000 membership Units in Lakeshore to
all the shareholders pro-rata as a special dividend.
2. On April 25, 2000, the members of the HB Group resigned as
directors and officers of the Company and elected (a) as
directors five of the seven individuals who have been nominated for
election as directors in this Proxy Statement and who then served
as the directors of US Data Authority, Inc. ("USDA"), a Florida
corporation engaged in the Internet-related business as a so-
called `total service provider' ("TSP") and (b) as officers the
then corresponding officers of USDA.
3. On April 28, 2000, the Common Stock underwent a 3.6:1
reverse stock split, whereby the 9,000,000 shares outstanding
turned into 2,500,000 shares outstanding. As a result, the
Company's trading symbol on the OTC Bulletin Board was changed
from "SUNE" to "SUNED."
4. Effective May 1, 2000, with the Company having essentially
no assets or liabilities, USDA merged with and into the Company
(the "Merger"), the shareholders of USDA receiving in the merger
approximately 22,500,000 new post-reverse stock split shares of
the Common Stock, or approximately 90% of the equity of the
Company.
The Annual Report accompanying this Proxy Statement contains
financial and other information about USDA. Please read it
carefully. Although this Proxy Statement relates to the
Company's 1999 fiscal year, wherever we considered it material,
the information contained in this Proxy Statement also reflects
the merger with USDA and the Company's current situation.
PROPOSAL 1: ELECTION OF DIRECTORS
Each of the current directors has been nominated for
election to the Board of Directors. If any such nominee is
unable or unwilling to serve as a nominee for the office of
director at the time of the Annual Meeting, the proxies may be
voted either (i) for a substitute nominee who shall be designated
by the proxy holder or by the present Board of Directors to fill
such vacancy or (ii) for the balance of the nominees, leaving a
vacancy. The Board of Directors has no reason to believe that
any of the following nominees will be unwilling or unable to
serve if elected as a director. Such persons have been nominated
to serve until the next annual meeting of shareholders following
the 2000 annual meeting or until the successors, if any, are
elected or appointed.
Recommendation of the Board
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE "FOR" THE
ELECTION OF ALL SEVEN NOMINEES FOR DIRECTOR. UNLESS MARKED
OTHERWISE, PROXIES WILL BE VOTED "FOR" THE ELECTION OF EACH OF
THE NOMINEES NAMED BELOW.
A. Information Concerning Nominees for Directors
The biography of each nominated director of the Company
follows. Except as otherwise indicated, each nominee has been or
was engaged in his present or last principal occupation, in the
same or a similar position, for more than five years.
Name Age Position with Company and Principal Occupation
David J.
Applebaum 41 Dr. Applebaum has served as a director of the
Company since April 25, 2000, and as a director of
USDA during March 14 - May 1, 2000. He has been
a Board certified plastic surgeon in Palm Beach
County since 1991, and a significant investor in
USDA since 1999. He is President of the Palm
Beach County IPA, an association of plastic
surgeons. Dr. Applebaum is a graduate of the
University of Texas and the Baylor College of
Medicine.
Michael A.
Cutler 46 Mr. Cutler has served as a director of
the Company since April 25, 2000, and was a
director of USDA during March 14 - May 1, 2000.
For the last ten years, he has been a director of
the Personal Communications Industry Association
("PCIA"), acting in various lobbying capacities
and involved in PCIA's FCC rule-making efforts.
During 1976-1996, Mr. Cutler served as President
of Commsite International, Inc., a communications
site management and acquisition company. He
earned a B.A. in political science from the
University of Delaware and his JD from the Potomac
Law School in Washington, DC.
Ralph A.
Haller 52 Mr. Haller has served as a director of
the Company since May 11, 2000. He has served as
President of Fox Ridge Communications, Inc., a
telecommunications consulting firm, since June
1996. Prior to that time, for a period of 25
years, Mr. Haller worked for the Federal
Communication Commission (FCC). He held several
positions within the FCC, including Chief of the
FCC's Private Radio Bureau, a position he held for
nearly nine years. During the last two years of
his tenure with the FCC, he was in charge of
developing rules for the new wireless personal
communication services. He currently serves as
president of Frequency Finder, Inc., and serves on
the Board of Directors of the American Mobile
Communications Association, and of the Broadcast
Pioneers of the Washington area. He holds a B.S.
degree in Electrical Engineering from the
University of Kansas.
Richard J.
Lucibella 46 Mr. Lucibella has served as a director of the
Company since April 25, 2000, and was a director
of USDA during March 14 - May 1, 2000. Since
1997, he has been an investor in CyBear, Inc., an
Internet-related healthcare company, which he
served as President from January through November
1997. From March through September 1994, Mr.
Lucibella served as President of Coastal Physician
Group, Inc. He earned an MBA from the Wharton
School of the University of Pennsylvania, and a
MPH from Johns Hopkins University.
Raymond J.
Markman 72 Mr. Markman has served as a director of the
Company since May 11, 2000. He is a private
investor and President of Life Planning, a company
engaged in the development and execution of
financial strategies, planning and investment for
high net worth individuals and corporations, which
he founded in 1988.
Adam M.
Reiser 37 Mr. Reiser has served as a director of
the Company since April 25, 2000. He served as the
Chief Technologist of the Company since May 1,
2000, and served in such capacity for USDA from
January 1999 through May 1, 2000. From September
1997 through December 1998, he served as President
and CEO of Axxsys International, Inc., a Boca
Raton-based MIS consulting firm. From July 1994
through December 1996, he owned and managed a
private systems integration consulting firm.
Melvyn B.
Siegel 61 Mr. Siegel has served as a director of
the Company since April 25, 2000, and as Chairman
of the Board and Chief Executive Officer of the
Company since May 11, 2000. He was a director of
USDA during March 14 - May 1, 2000. For the past
five years he has been a private investor.
B. Board Committees and Directors' Compensation
Until May 11, 2000, the Company had no standing committees
of the Board of Directors. At its May 11, 2000, meeting, the
Board of Directors created the following standing committees:
Audit, Nominating, Corporate Governance and Compensation. Each
of the Committees has a written charter that has been approved by
the Board. The members of the committees are identified in the
following table.
Corporate
Director Audit Nominating Governance Compensatio
n
D. Chair
Applebaum
M. Cutler Chair
R. Haller v v
R. v Chair
Lucibella
R. Markman Chair v
A. Reiser
M. Siegel v v v v
Due to their non-existence, the standing committees held no
meetings in 1999.
The Audit Committee recommends for approval by the Board of
Directors an independent firm of certified public accountants
whose duty it is to audit the financial statements of the Company
for the fiscal year in which they are appointed. The Audit
Committee monitors the activities of the Company's internal and
external auditors, including the audit scope, the external audit
fees, auditor independence matters and the extent to which the
independent auditors may be retained to perform advisory
services. The Audit Committee also reviews the results of the
internal and external audit work to assess the adequacy and
appropriateness of the Company's financial and accounting
controls. The Audit Committee reviews changes in accounting
standards that impact the financial statements and discusses with
management major events, including legal matters and tax audits,
that may have significant financial impact or are the subject of
discussions with the independent auditors. The composition of
the Audit Committee and the attributes of its members, and the
responsibilities of the Audit Committee as reflected in its
charter, are intended to be in accord with the Securities and
Exchange Commission rules and NASD listing requirements adopted
in December 1999 with regard to corporate audit committees. Two
out of the three members of the Audit Committee are independent,
as defined in Rule 4200(a)(14) of the NASD listing standards.
The Nominating Committee makes recommendations to the Board
regarding the size and composition of the Board. The Nominating
Committee establishes procedures for the nomination process,
recommends candidates for election to the Board of Directors and
nominates officers for election by the Board. The Nominating
Committee will consider nominees proposed by the shareholders.
Any shareholder who wishes to recommend a prospective nominee for
the Board of Directors for the Nominating Committee's
consideration may do so by giving the candidate's name and
qualifications in writing to the Secretary of the Company at the
address shown on the first page of this Proxy Statement.
The Corporate Governance Committee reviews and reports to
the Board on a periodic basis with regard to matters of corporate
governance. The Corporate Governance Committee also reviews and
assesses the effectiveness of the Board's Guidelines on
Significant Corporate Governance Issues and recommends to the
Board proposed revisions thereto. In addition, the Corporate
Governance Committee makes recommendations to the Board regarding
the agenda for the company's annual meetings of shareholders and
reviews shareholder proposals and makes recommendations to the
Board for action on such proposals.
The Compensation Committee administers the Company's stock
option plans, including the review and grant of stock options to
officers and other employees under the Company's stock option
plans. The Compensation Committee also reviews and approves
various other Company compensation policies and matters, and
reviews and approves salaries and other matters relating to
compensation of the executive officers of the Company. Two out
of the three members of the Compensation Committee are
independent, as defined in Rule 4200(a)(14) of the NASD listing
standards. The third member, M. Siegel, is the Chief Executive
Officer of the Company, who receives no compensation from the
Company.
The Board of Directors held two meetings during 1999. Each
director is expected to attend each meeting of the Board and
those committees on which he or she serves. In addition to the
meetings, the Board and its committees review and act upon
matters through written consent procedures.
The Board of Directors has adopted Guidelines on Significant
Corporate Governance Issues ("Corporate Governance Guidelines")
and the Board's Corporate Governance Committee is responsible for
overseeing the Corporate Governance Guidelines and reporting and
making recommendations to the Board concerning corporate
governance matters. Among other matters, the Board's Corporate
Governance Guidelines include the following:
* A majority of the members of the Board of Directors are
independent directors, as defined in the applicable rules for
NASDAQ-traded issuers. Independent directors do not receive
consulting, legal or other fees from the Company other than Board
compensation.
* Directors stand for re-election every year. Directors may
not stand for re-election after age 75.
* Members of Board committees are appointed by the Board.
* A majority of the members of the Audit, Nominating,
Compensation and Corporate Governance Committees are independent
directors.
* The Board has a process whereby the Board and its members
are subject to periodic self-evaluation and assessment.
* The Board no less than annually reviews the Company's
strategic long-range plan, business unit initiatives, capital
projects and budget matters.
* The Board has established the position of Lead Independent
Director, which is currently held by David J. Applebaum.
Independent directors meet on a regular basis apart from other
Board members and management representatives, and the Lead
Independent Director is responsible for setting the agenda and
running these meetings.
* Succession planning and management development are reported
periodically by the Chief Executive Officer to the Board.
* The Board evaluates the performance of the Chief Executive
Officer and other senior management personnel at least annually.
* Incentive compensation plans link pay directly and
objectively to measured financial goals set in advance by the
Compensation Committee.
None of the members of the Board of Directors has received
any compensation in 1999. The directors are eligible for
participation in the Company's 2000 Incentive Plan presented for
approval at the Annual Meeting.
C. Security Ownership of Certain Beneficial Owners
The following table shows the only shareholder whom we know
to be the "beneficial owner" of more than five percent of the
Common Stock as of May 30, 2000. We base this information on
reports that filed with the SEC. If you wish, you may obtain
such reports from the SEC:
Name and Address of
Beneficial Owner Number of Shares* Percent of Class(1)
Big Sky & Associates, LLC 12,526,625 50.11%
P.O. Box 28909
Las Vegas, Nevada 89126
* Information relating to beneficial ownership of the Common
Stock is based upon "beneficial ownership" concepts set forth in
rules of the SEC under Section 13(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). Under such rules,
a person is deemed to be a "beneficial owner" of a security if
that person has or shares "voting power," which includes the
power to vote or direct the voting of such security, or
"investment power," which includes the power to dispose of or to
direct the disposition of such security. A person is also deemed
to be a beneficial owner of any security of which that person has
the right to acquire beneficial ownership within 60 days. Under
the rules, more than one person may be deemed to be a beneficial
owner of the same securities, and a person may be deemed to be a
beneficial owner of securities as to which he has no beneficial
interest. For instance, beneficial ownership includes spouses,
minor children and other relatives residing in the same
household, and trusts, partnerships, corporations or deferred
compensation plans which are affiliated with the principal.
(1) The percentages are based on 25,000,000 shares of Common
Stock outstanding, plus shares of Common Stock that may be
acquired by the beneficial owner within 60 days of May 30,
2000, by exercise of options and warrants.
D. Security Ownership of the Company's Officers, Directors and
Nominees
The following chart shows the number of shares of Common
Stock that each executive officer, director and nominee for
director of the Company beneficially owns, and the total Common
Stock that such persons own as a group:
Name of Beneficial Owner Number of Percent of
Shares* Class(1)
Dominick F. Maggio, President 1,000,000 4.00%
Ronald H. Leventhal, Executive Vice 50,000 0.20%
President
David J. Applebaum, Director 12,526,903(2) 50.11%
Michael A. Cutler, Director 500,000(3) 2.00%
Richard J. Lucibella, Director 40,000 0.20%
Adam M. Reiser, Director and Chief 250,000 1.00%
Technologist
Melvyn B. Siegel, Director, 3,025,000(4) 12.10%
Chairman of the Board and Chief
Executive Officer
All directors and named executive 17,401,903 69.61%
officers as a group
(7 persons)
_______________________
* Information relating to beneficial ownership of common stock
is based upon "beneficial ownership" concepts set forth in
rules of the SEC under Section 13(d) of the Exchange Act.
Under such rules, a person is deemed to be a "beneficial
owner" of a security if that person has or shares "voting
power," which includes the power to vote or direct the
voting of such security, or "investment power," which
includes the power to dispose of or to direct the
disposition of such security. A person is also deemed to be
a beneficial owner of any security of which that person has
the right to acquire beneficial ownership within 60 days.
Under the rules, more than one person may be deemed to be a
beneficial owner of the same securities, and a person may be
deemed to be a beneficial owner of securities as to which he
has no beneficial interest. For instance, beneficial
ownership includes spouses, minor children and other
relatives residing in the same household, and trusts,
partnerships, corporations or deferred compensation plans
which are affiliated with the principal.
(1) The percentages are based on 25,000,000 shares of Common
Stock outstanding.
(2) Includes 12,526,625 shares held by Big Sky Associates, LLC,
of which Mr. Applebaum is the Manager.
(3) Includes 135,000 shares held by Data Investment, LLC, of
which Mr. Cutler is the Manager.
(4) Includes 250,000 shares owned by Mr. Siegel's wife as to
which he disclaims beneficial ownership, 2,250,000 shares
held by Winspire Venture Capital, LLC, of which Mr. Siegel
is the Manager, and 290,000 shares held by Windforms Venture
Capital, LLC, of which Mr. Siegel is the Manager.
E. Executive Compensation
No executive officer received any compensation during 1999.
The following table sets forth the compensation to be paid
in 2000 to the executive officers of the Company pursuant to
contractual arrangements entered into by USDA and succeeded to by
the Company by operation of the Merger.
Annual Compensation
Other Annual
Name and Principal Year Salary Bonus ($) Compensation
Position (b) ($) (d) ($)
(a) (c) (e)
Melvyn B. Siegel 2000 --- * ---
Chairman/Chief
Executive Officer
Dominick F. Maggio 2000 104,167 * ---
President
Ronald H. Leventhal 2000 153,846 * ---
Executive Vice
President
Adam M. Reiser 2000 75,000 * ---
Chief Technologist
* The bonus to which the executive officer may be entitled for
2000 is not calculable as of the date of this Proxy Statement.
Long Term Compensation
Securi-
Re- ties and All Other
strict Underlyin LTIP Compen-
Name and Principal ed g Pay- sation
Position Stock Options outs (i)
(a) Year Awards /SARs (h)
(f) (g)
Melvyn B. Siegel 2000 --- --- --- ---
Chief Executive Officer
Dominick F. Maggio 2000 --- --- --- ---
President
Ronald H. Leventhal 2000 --- 1,100,000 --- ---
Executive Vice President (1)
Adam M. Reiser 2000 --- --- --- ---
Chief Technologist
(1) Pursuant to his employment arrangement with USDA, to which
the Company succeeded by operation of the Merger, Mr. Leventhal
was granted an option to purchase 24.444 shares of the common
stock of USDA at $1,800 per share. At the 4500:1 conversion
ration applicable in the Merger, his option was converted to
1,100,000 post-reverse split shares of the Company Common Stock,
exercisable at $.40 per share. The terms of his option call for
the vesting schedule of: 300,000 shares on October 10, 2000,
400,000 shares on October 10, 2001 and 400,000 shares on October
10, 2002, and an exercise period of twelve months after each
relevant vesting date.
F. Aggregated Option Exercises in Last Fiscal Year and FY-
end Option Values
The Company had no currently exercisable options or warrants
during fiscal year 1999.
PROPOSAL 2: APPROVAL OF AMENDED AND RESTATED ARTICLES OF
INCORPORATION.
A. Introduction
The Company's Articles of Incorporation currently authorizes
the issuance of twenty-five million (25,000,000) shares of Common
Stock, with a par value $.02 per share. As a result of the
Merger, the Company currently has all of the 25 million shares of
Common Stock issued and outstanding and has no shares remaining
available for other purposes. As discussed below, one of the
corporate purposes for making additional shares of capital stock
available is to raise equity capital. Market conditions often
dictate that such equity capital, particularly raised in a
private placement, be in the form of preferred stock. Finally,
the current business of the Company consists in its entirety of
providing Internet services, which is the business formerly
conducted by USDA.
Accordingly, on May 11, 2000, the Board of Directors adopted
resolutions setting forth, among other things (i) the proposed
amendments to the Company's Articles of Incorporation; and (ii) a
call for submission of the Amended and Restated Articles of
Incorporation for approval by the Company's shareholders at the
Annual Meeting.
The following is the text of Articles I and III of the
Amended and Restated Articles of Incorporation of the Company, as
proposed:
ARTICLE I - NAME.
The name of the Corporation shall be US DATA
AUTHORITY, INC., and its principal place of
business shall be 3500 NW Boca Raton Boulevard,
Building 811, Boca Raton, Florida 33431.
.
.
.
ARTICLE III - CAPITAL STOCK.
A. AUTHORIZED SHARES. The total number of
shares of all classes of capital stock which the
Corporation shall have authority to issue is
130,000,000, consisting of 100,000,000 shares of
common stock, par value $0.02 per share (the
"Common Stock") and 30,000,000 shares of
preferred stock, par value $1.00 per share (the
"Preferred Stock"). The shares may be issued
from time to time as authorized by the Board of
Directors of the Corporation without further
approval of the shareholders except as otherwise
provided herein or to the extent that such
approval is required by statute, rule or
regulation.
B. COMMON STOCK. Except as otherwise
provided by statute or Preferred Stock
Designations (as defined below), the holders of
the Common Stock shall exclusively possess all
voting power. Each holder of shares of Common
Stock shall be entitled to one vote for each
share held of record by such holder as to each
matter submitted to shareholders for approval.
There shall be no cumulative voting rights in the
election of directors of the Corporation.
C. PREFERRED STOCK. The shares of
Preferred Stock may be issued from time to time
in one or more series as may be established by
the Board of Directors of the Corporation. The
Board of Directors is hereby expressly authorized
to fix and determine by resolution(s) the number
of shares of each series of Preferred Stock and
the designation thereof, any voting and other
powers, preferences and relative participating,
optional or special rights, including the number
of votes, if any, per share and such
qualifications, limitations or restrictions on
any such powers, preferences and rights as shall
be stated in the resolution(s) providing for the
issue of the series (a "Preferred Stock
Designation") and as may be permitted by the Act.
The number of authorized shares of Preferred
Stock may be increased or decreased (but not
below the number of shares of such class or
series then outstanding) by the affirmative vote
of holders of a majority of the voting power of
the then outstanding shares of capital stock,
voting together as a single class, without a
separate vote of the holders of the Preferred
Stock, or any series thereof, unless the vote of
such holders if required pursuant to any
Preferred Stock Designation.
B. Purpose and Effect of the Proposed Amendment
With respect to the change in the Company's name, the Board
of Directors believes that the name under which the Company's
current Internet services provider business had been conducted
prior to the Merger will allow for closer identification between
such businesses and the company conducting it in the minds of
customers, suppliers and strategic partners. Accordingly, it is
highly desirable to change the Company's name to US Data
Authority, Inc. In fact, after the name change is approved by the
shareholders and becomes effective upon filing of the Amended and
Restated Articles of Incorporation with the Florida Department of
State, the Company will apply for a change of its OTC Bulletin
Board trading symbol from "SUNED" to "USDA."
With respect to the increase in the number of authorized
shares of the Common Stock, the Board of Directors believes that
the availability of additional authorized but unissued shares
will provide the Company with the flexibility to issue Common
Stock for a variety of corporate purposes, such as to effect
future stock splits and stock dividends, to make acquisitions
through the use of stock, to raise equity capital, to adopt
additional stock options or other employee benefit plans or to
reserve additional shares for issuance under such plans and under
plans of acquired companies. The Board of Directors believes
that the proposed increase in authorized Common Stock will make
sufficient shares available for use pursuant to the purposes
described herein.
With respect to the authorization to issue preferred stock,
the Board of Directors believes that the availability of
authorized but unissued preferred stock will provide the Company
with the flexibility to raise equity capital under circumstances
where the investors desire a liquidation preference, a stated
dividend rate or other preferential rights not available with
respect to the Common Stock. Allowing for the terms of any
series of such preferred stock to be determined by the Board of
Directors will give the Company the flexibility to tailor such
terms to the particular market circumstances and relative
bargaining positions of the Company and the investors.
It is emphasized that, other than as may be permitted or
required under the outstanding stock options, the Board of
Directors has no immediate plans, understanding, agreements or
commitments to issue additional Common Stock or any preferred
stock for any purpose. No additional action or authorization by
the Company's shareholders would be necessary prior to the
issuance of such shares, unless required by applicable law or the
rules of any stock exchange or national securities association
trading system on which the Common Stock is then listed or
quoted. The Company reserves the right to seek a further
increase in authorized shares from time to time in the future as
considered appropriate by the Board of Directors.
Under the Company's Amended and Restated Articles of
Incorporation, the Company's shareholders do not have preemptive
rights with respect to the Common Stock. Thus, should the Board
of Directors elect to issue additional shares of common stock,
existing shareholders would not have any preferential rights to
purchase such shares. In addition, if the Board of Directors
elects to issue additional shares of Common Stock or shares of
preferred stock convertible into Common Stock, such issuance
could have a dilutive effect on the earnings per share, voting
power and shareholdings of current shareholders.
The proposed amendment to increase the authorized number of
shares of Common Stock could, under certain circumstances, have
an anti-takeover effect, although this is not the intention of
this proposal. For example, in the event of a hostile attempt to
take over control of the Company, it may be possible for the
Company to endeavor to impede the attempt by issuing shares of
Common Stock, thereby diluting the voting power of the other
outstanding shares and increasing the potential cost to acquire
control of the Company. The amendment, therefore, may have the
effect of discouraging unsolicited takeover attempts, thereby
potentially limiting the opportunity for the Company's
shareholders to dispose of their shares at the higher price
generally available in takeover attempts or that may be available
under a merger proposal. The proposed amendment may have the
effect of permitting the Company's current management, including
the current Board of Directors, to retain its position and place
it in a better position to resist changes that shareholders may
wish to make if they are dissatisfied with the conduct of the
Company's business. However, the Board of Directors is not aware
of any attempt to take control of the Company, and the Board of
Directors has not presented this proposal with the intent that it
be utilized as a type of anti-takeover device.
If the proposed amendment is adopted, it will become
effective upon filing the Amended and Restated Articles of
Incorporation, together with a certificate, with the Florida
Department of State.
C. Vote Necessary to Approve the Proposal
The affirmative vote of the holders of a majority of the
outstanding shares of the Common Stock entitled to vote at the
Annual Meeting, assuming a quorum is present, is necessary for
approval of this proposal. Therefore, abstentions and broker non-
votes (which may occur if a beneficial owner of stock whose
shares are held in a brokerage or bank account fails to provide
the broker or the bank with voting instructions as to such
shares) effectively count as votes against this proposal.
Recommendation of the Board
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE PROPOSAL
TO APPROVE THE COMPANY'S AMENDED AND RESTATED ARTICLES OF
INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF
COMMON STOCK FROM TWENTY-FIVE MILLION (25,000,000) TO ONE HUNDRED
MILLION (100,000,000) AND TO AUTHORIZE THIRTY MILLION
(30,000,000) SHARES OF PREFERRED STOCK. UNLESS A CONTRARY CHOICE
IS SPECIFIED, PROXIES SOLICITED BY THE BOARD OF DIRECTORS WILL BE
VOTED FOR APPROVAL OF THIS PROPOSAL.
PROPOSAL 3: APPROVAL OF THE COMPANY'S 2000 STOCK INCENTIVE PLAN
The Board of Directors believes that persons whose efforts
are intended to and could enhance the financial condition of the
Company should be given an incentive to exert their best efforts
in this regard. Experience has shown, the Board of Directors
believes, that an incentive in the form of stock of the Company
is most likely to motivate the recipient to work towards
enhancing the long-term value of the Company, as reflected in the
market value of its stock, rather than towards short-term gains,
and thus better to align his/her interests with those of the
Company's shareholders.
Accordingly, in its meeting on May 11, 2000, the Board of
Directors adopted resolutions setting forth, among other things,
(i) the text of the Company's 2000 Stock Incentive Plan; (ii) the
reasons for such plan; and (iii) a call for the submission of
such plan for approval by the Company's shareholders at the
Annual Meeting.
The Company's 2000 Stock Incentive Plan (the "Stock
Incentive Plan") grants the Board of Directors the authority
(which it may delegate to the Compensation Committee of the Board
of Directors) to grant employees, officers, directors,
consultants, advisors, as well as individuals who have accepted
an offer of employment from the Company, incentive awards based
on the Common Stock. These awards may be in the form of stock
options (both incentive and non-statutory), restricted stock
grants (both of shares of the Common Stock and securities
convertible into Common Stock) or stock appreciation right. No
grants may be made under the Plan after the expiration of the
tenth (10th) anniversary of the approval of the Plan by the
shareholders. The total amount of shares of the Common Stock
that would be available under the Plan is 2 million, or
approximately 7.41% of the total number of shares outstanding on
a fully diluted basis.
A copy of the Plan is attached as Exhibit A to this Proxy
Statement.
The affirmative vote of the holders of a majority of the
outstanding shares of the Common Stock entitled to vote at the
Annual Meeting, assuming a quorum is present, is necessary for
approval of this proposal. Therefore, abstentions and broker non-
votes (which may occur if a beneficial owner of stock whose
shares are held in a brokerage or bank account fails to provide
the broker or the bank with voting instructions as to such
shares) effectively count as votes against this proposal.
Recommendation of the Board
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE APPROVAL
OF THE COMPANY'S 2000 STOCK INCENTIVE PLAN. UNLESS A CONTRARY
CHOICE IS SPECIFIED, PROXIES SOLICITED BY THE BOARD OF DIRECTORS
WILL BE VOTED FOR APPROVAL OF THIS PROPOSAL.
OTHER MATTERS
Compliance with Section 16(a) Reporting Requirements
Prior to January 21, 2000, i.e. throughout 1999, the
Company's Common Stock was not registered under the Exchange Act.
As a result, Section 16(a) of the Exchange Act and related
regulations did not require the Company's executive officers and
directors, and certain persons who own more than 10% of the
Common Stock, to file reports of their holdings and transactions
in the Common Stock with the SEC.
Independent Public Accountants
Hixon, Marin, Powell & De Sanctis, P.A., served as the
Company's independent accounting firm for the year ended December
31, 1999, and have been selected to serve as the Company's
independent accounting firm for the current fiscal year.
Representatives of Hixon, Marin, Powell & De Sanctis, P.A., are
not expected to be present at the Annual Meeting.
2000 Shareholder Proposals or Nominations
From time to time shareholders of the Company submit
proposals that they believe should be voted upon at the annual
meeting or nominate persons for election to the Board of
Directors. Pursuant to Rule 14a-8 under the Exchange Act, some
shareholder proposals may be eligible for inclusion in the
Company's 2001 proxy statement. Any such shareholder proposals
must be submitted in writing to the Secretary of the Company no
later than December 13, 2000. Shareholders interested in
submitting such a proposal are advised to contact knowledgeable
counsel with regard to the detailed requirements of applicable
securities laws. The submission of a shareholder proposal does
not guarantee that it will be included in the Company's proxy
statement.
Alternatively, under the Company's Bylaws, a proposal or a
nomination that the shareholder does not seek to include in the
Company's proxy statement pursuant to Rule 14a-8 may be submitted
in writing to the Secretary of the Company for the 2001 annual
meeting of shareholders not less than 30 days prior to the date
of the 2001 annual meeting. If the date of the announcement of
the date of the 2001 annual meeting is less than 40 days before
the date of such annual meeting, the shareholder must submit any
such proposal or nomination no later than the close of business
on the 10th day following the day on which public announcement of
the date of such meeting is first made. The shareholder's
submission must include certain specified information concerning
the proposal or nominee, as the case may be, and information as
to the shareholders' ownership of Common Stock of the Company.
If you would like a copy of the Company's Bylaws, the Company
will send you one without charge at your request. Proposals or
nominations not meeting these requirements will not be
entertained at the annual meeting. If the shareholder does not
also comply with the requirements of Rule 14a-4(c)(2) under the
Exchange Act, the Company may exercise discretionary voting
authority under proxies it solicits to vote in accordance with
its best judgment on any such proposal or nomination submitted by
a shareholder. Shareholders should contact the Secretary of the
Company in writing to make any submission or to obtain additional
information as to the proper form and content of submissions.
Financial Statements
The Company's financial statements for the year ended
December 31, 1999, as well as USDA's audited financial statements
for the year ended December 31, 1999, and the separate unaudited
financial statements of the Company and USDA as of April 30,
2000, and a balance sheet of the Company as of May 1, 2000,
reflecting the Merger, are included in the Company's 1999 Annual
Report to Shareholders. Copies of the annual report are being
sent to the Company's shareholders concurrently with the mailing
of this Proxy Statement.
Other Matters Before the Annual Meeting
As of the date hereof, there are no other matters that the
Board of Directors intends to present, or has reason to believe
others will present, at the Annual Meeting. If other matters
come before the Annual Meeting, the persons named in the
accompanying form of proxy will vote in accordance with their
best judgment with respect to such matters.
Proxy Solicitation
The expense of solicitation of proxies will be borne by the
Company. Proxies will be solicited by the Company though its
directors, officers and other employees, who will receive no
compensation. These persons may solicit proxies personally or by
written communication, telephone or other electronic means. The
Company is required to request brokers and nominees who hold
stock in their name to furnish the Company's proxy material to
beneficial owners of the stock and will reimburse such brokers
and nominees for their reasonable out-of-pocket expenses in so
doing.
BY ORDER OF
THE BOARD OF DIRECTORS
By: /S/ Ronald J. Austin
---------------------
Ronald J. Austin
Secretary
PROXY
SUNVEST RESORTS, INC. This Proxy is Solicited on Behalf of the
Board of Directors. The undersigned
3500 NW Boca Raton hereby appoints Dominick F. Maggio, as
Boulevard Proxy with the power to appoint his
Building 811 substitute, and hereby authorizes him to
Boca Raton, Florida represent and to vote as designated
33431 below all the shares of common stock of
SunVest Resorts, Inc. held of record by
the undersigned on May 30, 2000, at the
Annual Meeting of Shareholders to be
held on June 22, 2000, or any
adjournment thereof.
1. ELECTION OF DIRECTORS (The Board of Directors recommends a
vote "FOR" all nominees listed below.)
( ) FOR all nominees listed below (except ( ) WITHHOLD AUTHORITY
as marked to the contrary below) for all nominees listed below.
David J. Applebaum
Michael A. Cutler
Ralph A. Haller
Richard J. Lucibella
Raymond J. Markman
Adam M. Reiser
Melvyn B. Siegel
(INSTRUCTIONS: To withhold authority to vote for any
individual nominee, write that nominee's name on the space
provided below.)
_______________________________________________________________
2. APPROVAL OF AMENDED AND RESTATED ARTICLES OF INCORPORATION
( ) FOR ( ) AGAINST ( ) ABSTAIN
3. APPROVAL OF 2000 STOCK INCENTIVE PLAN
( ) FOR ( ) AGAINST ( ) ABSTAIN
4. IN HIS DISCRETION, THE PROXY IS AUTHORIZED TO VOTE UPON SUCH OTHER BUSINESS
AS MAY PROPERLY COME BEFORE THE ANNUAL MEETING.
This Proxy when properly executed will be voted in the
manner directed herein by the undersigned shareholder. If no
direction is made, this Proxy will be voted FOR the election of
all listed nominees and FOR Proposals 2 and 3.
( ) Please check if you plan to attend the meeting.
______________________, 2000
PLEASE MARK, SIGN, DATE AND RETURN Date
THE PROXY CARD PROMPTLY USING
THE ENCLOSED ENVELOPE.
__________________________________________
Signature
__________________________________________
Signature if held jointly
(Please sign exactly as your
name appears. When joint tenants
hold shares, both should sign.
When signing as attorney, executor,
administrator, trustee or
guardian, please give full
title as such. If a
corporation, please sign in
full corporate name by
President or other authorized
officer. If a partnership,
please sign in partnership
name by authorized person.)
Exhibit "A"
SUNVEST RESORTS, INC.
2000 STOCK INCENTIVE PLAN
1. PURPOSE The purpose of this 2000 Stock Incentive
Plan (the "Plan") of SunVest Resorts, Inc., a Florida corporation
(the "Company"), is to advance the interests of the Company's
shareholders by enhancing the Company's ability to attract,
retain and motivate persons who make (or are expected to make)
important contributions to the Company by providing such persons
with equity ownership opportunities and performance-based
incentives and thereby better aligning the interests of such
persons with those of the Company's shareholders. Except where
the context otherwise requires, the term "Company" shall include
any of the Company's present or future subsidiary corporations,
as defined in Section 424(f) of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder (the
"Code").
2. ELIGIBILITY
All of the Company's employees, officers, directors,
consultants and advisors (and any individuals who have accepted
an offer for employment) are eligible to be granted options,
restricted stock awards, or other stock-based awards (each, an
"Award") under the Plan. Each person who has been granted an
Award under the Plan shall be deemed a "Participant".
3. ADMINISTRATION, DELEGATION
(a) Administration by Board of Directors.
------------------------------------
The Plan will be administered by the Board of
Directors of the Company (the "Board"). The Board shall have
authority to grant Awards and to adopt, amend and repeal such
administrative rules, guidelines and practices relating to the
Plan as it shall deem advisable. The Board may correct any
defect, supply any omission or reconcile any inconsistency in the
Plan or any Award in the manner and to the extent it shall deem
expedient to carry the Plan into effect and it shall be the sole
and final judge of such expediency. All decisions by the Board
shall be made in the Board's sole discretion and shall be final
and binding on all persons having or claiming any interest in the
Plan or in any Award. No director or person acting pursuant to
the authority delegated by the Board shall be liable for any
action or determination relating to or under the Plan made in
good faith.
(b) Delegation to Compensation Committee.
------------------------------------
To the extent permitted by applicable law, the
Board may delegate to the Compensation Committee of the Board the
power to make Awards and exercise such other powers under the
Plan as the Board may determine. All references in the Plan to
the "Board" shall mean the Board or the Compensation Committee of
the Board to the extent that the Board's powers or authority
under the Plan have been delegated to such Committee.
4. STOCK AVAILABLE FOR AWARDS
(a) Number of Shares.
----------------
Subject to adjustment under Section 8, Awards may
be made under the Plan for up to 2,000,000 shares of common
stock, $0.02 par value per share, of the Company (the "Common
Stock"). If any Award expires or is terminated, surrendered or
canceled without having been fully exercised or is forfeited in
whole or in part or results in any Common Stock not being issued,
the unused Common Stock covered by such Award shall again be
available for the grant of Awards under the Plan, subject,
however, in the case of Incentive Stock Options (as hereinafter
defined), to any limitation required under the Code. Shares
issued under the Plan may consist in whole or in part of
authorized but unissued shares or treasury shares.
(b) Per-Participant Limit.
---------------------
The maximum number of shares of Common Stock with
respect to which an Award may be granted to any Participant under
the Plan in any calendar year shall be limited as provided in
Section 162(m) of the Code.
5. STOCK OPTIONS
(a) General.
-------
The Board may grant options to purchase Common
Stock (each, an "Option") and determine the number of shares of
Common Stock to be covered by each Option, the exercise price of
each Option and the conditions and limitations applicable to the
exercise of each Option, including conditions relating to
applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an
Incentive Stock Option (as hereinafter defined) shall be
designated a "Nonstatutory Stock Option".
(b) Incentive Stock Options.
-----------------------
An Option that the Board intends to be an
"incentive stock option" as defined in Section 422 of the Code
(an "Incentive Stock Option") shall only be granted to employees
of the Company and shall be subject to and shall be construed
consistently with the requirements of Section 422 of the Code.
The Company shall have no liability to a Participant, or any
other party, if an Option (or any part thereof) which is intended
to be an Incentive Stock Option is not an Incentive Stock Option.
(c) Exercise Price.
--------------
The Board shall establish the exercise price at
the time each Option is granted and specify it in the applicable
option agreement.
(d) Duration of Options.
-------------------
Each Option shall be exercisable at such times and
subject to such terms and conditions as the Board may specify in
the applicable option agreement.
(e) Exercise of Option.
------------------
Options may be exercised by delivery to the
Company of a written notice of exercise signed by the proper
person or by any other form of notice (including electronic
notice) approved by the Board together with payment in full as
specified in Section 5(f) for the number of shares for which the
Option is exercised.
(f) Payment Upon Exercise.
---------------------
Common Stock purchased upon the exercise of an
Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order
of the Company;
(2) except as the Board may, in its sole
discretion, otherwise provide in an option agreement, by (i)
delivery of an irrevocable and unconditional undertaking by a
creditworthy broker to deliver promptly to the Company sufficient
funds to pay the exercise price or (ii) delivery by the
Participant to the Company of a copy of irrevocable and
unconditional instructions to a creditworthy broker to deliver
promptly to the Company cash or a check sufficient to pay the
exercise price;
(3) by delivery of shares of Common Stock
owned by the Participant valued at their fair market value as
determined by (or in a manner approved by) the Board in good
faith ("Fair Market Value"), which Common Stock was owned by the
Participant at least six months prior to such delivery;
(4) to the extent permitted by the Board, in
its sole discretion by (i) delivery of a promissory note of the
Participant to the Company on terms determined by the Board, or
(ii) payment of such other lawful consideration as the Board may
determine; or
(5) by any combination of the above permitted
forms of payment.
6. RESTRICTED STOCK
(a) Grants.
------
The Board may grant Awards entitling recipients to
acquire shares of Common Stock, subject to the right of the
Company to repurchase all or part of such shares at their issue
price or other stated or formula price (or to require forfeiture
of such shares if issued at no cost) from the recipient in the
event that conditions specified by the Board in the applicable
Award are not satisfied prior to the end of the applicable
restriction period or periods established by the Board for such
Award (each, a "Restricted Stock Award").
(b) Terms and Conditions.
--------------------
The Board shall determine the terms and conditions
of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any. Any stock
certificates issued in respect of a Restricted Stock Award shall
be registered in the name of the Participant and, unless
otherwise determined by the Board, deposited by the Participant,
together with a stock power endorsed in blank, with the Company
(or its designee). At the expiration of the applicable
restriction periods, the Company (or such designee) shall deliver
the certificates no longer subject to such restrictions to the
Participant or if the Participant has died, to the beneficiary
designated, in a manner determined by the Board, by a Participant
to receive amounts due or exercise rights of the Participant in
the event of the Participant's death (the "Designated
Beneficiary"). In the absence of an effective designation by a
Participant, Designated Beneficiary shall mean the Participant's
estate.
7. OTHER STOCK-BASED AWARDS
The Board shall have the right to grant other Awards based
upon the Common Stock having such terms and conditions as the
Board may determine, including the grant of shares based upon
certain conditions, the grant of securities convertible into
Common Stock and the grant of stock appreciation rights.
8. ADJUSTMENTS FOR CHANGES IN COMMON STOCK AND CERTAIN OTHER EVENTS
(a) Changes in Capitalization.
-------------------------
In the event of any stock split, reverse stock
split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in
capitalization or event, or any distribution to holders of Common
Stock other than a normal cash dividend, (i) the number and class
of securities available under this Plan, (ii) the per-Participant
limit set forth in Section 4(b), (iii) the number and class of
securities and exercise price per share subject to each
outstanding Option, (iv) the repurchase price per share subject
to each outstanding Restricted Stock Award, and (v) the terms of
each other outstanding Award shall be appropriately adjusted by
the Company (or substituted Awards may be made, if applicable) to
the extent the Board shall determine, in good faith, that such an
adjustment (or substitution) is necessary and appropriate. If
this Section 8(a) applies and Section 8(c) also applies to any
event, Section 8(c) shall be applicable to such event, and this
Section 8(a) shall not be applicable.
(b) Liquidation or Dissolution.
--------------------------
In the event of a proposed liquidation or
dissolution of the Company, the Board shall upon written notice
to the Participants provide that all then unexercised Options
will (i) become exercisable in full as of a specified time at
least 10 business days prior to the effective date of such
liquidation or dissolution and (ii) terminate effective upon such
liquidation or dissolution, except to the extent exercised before
such effective date. The Board may specify the effect of a
liquidation or dissolution on any Restricted Stock Award or other
Award granted under the Plan at the time of the grant of such
Award.
(c) Acquisition and Change in Control Events
----------------------------------------
(1) Definitions
(a) An "Acquisition Event" shall mean:
(i) any merger or consolidation of the
Company with or into another entity as a result of which the
Common Stock is converted into or exchanged for the right to
receive cash, securities or other property; or
(ii) any exchange of shares of the
Company for cash, securities or other property pursuant to a
statutory share exchange transaction.
(b) A "Change in Control Event" shall mean:
(i) any merger or consolidation which
results in the voting securities of the Company outstanding
immediately prior thereto representing immediately thereafter
(either by remaining outstanding or by being converted into
voting securities of the surviving or acquiring entity) less than
50% of the combined voting power of the voting securities of the
Company or such surviving or acquiring entity outstanding
immediately after such merger or consolidation;
(ii) the acquisition by an individual,
entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) (a "Person") of beneficial
ownership of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) 50% or more of
either (A) the then-outstanding shares of Common Stock of the
Company (the "Outstanding Company Common Stock") or (B) the
combined voting power of the then-outstanding voting securities
of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (ii), the
following acquisitions shall not constitute a Change in Control
Event: (A) any acquisition directly from the Company, (B) any
acquisition by the Company, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (D) any
acquisition by any corporation pursuant to a transaction which
results in all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
immediately prior to such transaction beneficially own, directly
or indirectly, more than 50% of the then-outstanding shares of
common stock and the combined voting power of the then-
outstanding voting securities entitled to vote generally in the
election of directors, respectively, of the resulting or
acquiring corporation in such transaction (which shall include,
without limitation, a corporation which as a result of such
transaction owns the Company or substantially all of the
Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such transaction, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, respectively;
(iii) any sale of all or substantially
all of the assets of the Company; or
(iv) the complete liquidation of the
Company.
(2) Effect on Options
(a) Acquisition Event. Upon the occurrence of
an Acquisition Event (regardless of whether such event also
constitutes a Change in Control Event), or the execution by the
Company of any agreement with respect to an Acquisition Event
(regardless of whether such event will result in a Change in
Control Event), the Board shall provide that all outstanding
Options shall be assumed, or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or an
affiliate thereof); provided that if such Acquisition Event also
constitutes a Change in Control Event, except to the extent
specifically provided to the contrary in the instrument
evidencing any Option or any other agreement between a
Participant and the Company, such assumed or substituted options
shall be immediately exercisable in full upon the occurrence of
such Acquisition Event. For purposes hereof, an Option shall be
considered to be assumed if, following consummation of the
Acquisition Event, the Option confers the right to purchase, for
each share of Common Stock subject to the Option immediately
prior to the consummation of the Acquisition Event, the
consideration (whether cash, securities or other property)
received as a result of the Acquisition Event by holders of
Common Stock for each share of Common Stock held immediately
prior to the consummation of the Acquisition Event (and if
holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the
outstanding shares of Common Stock); provided, however, that if
the consideration received as a result of the Acquisition Event
is not solely common stock of the acquiring or succeeding
corporation (or an affiliate thereof), the Company may, with the
consent of the acquiring or succeeding corporation, provide for
the consideration to be received upon the exercise of Options to
consist solely of common stock of the acquiring or succeeding
corporation (or an affiliate thereof) equivalent in fair market
value to the per share consideration received by holders of
outstanding shares of Common Stock as a result of the Acquisition
Event.
Notwithstanding the foregoing, if the
acquiring or succeeding corporation (or an affiliate thereof)
does not agree to assume, or substitute for, such Options, then
the Board shall, upon written notice to the Participants, provide
that all then unexercised Options will become exercisable in full
as of a specified time prior to the Acquisition Event and will
terminate immediately prior to the consummation of such
Acquisition Event, except to the extent exercised by the
Participants before the consummation of such Acquisition Event;
provided, however, in the event of an Acquisition Event under the
terms of which holders of Common Stock will receive upon
consummation thereof a cash payment for each share of Common
Stock surrendered pursuant to such Acquisition Event (the
"Acquisition Price"), then the Board may instead provide that all
outstanding Options shall terminate upon consummation of such
Acquisition Event and that each Participant shall receive, in
exchange therefor, a cash payment equal to the amount (if any) by
which (A) the Acquisition Price multiplied by the number of
shares of Common Stock subject to such outstanding Options
(whether or not then exercisable), exceeds (B) the aggregate
exercise price of such Options.
(b) Change in Control Event that is not an
Acquisition Event. Upon the occurrence of a Change in Control
Event that does not also constitute an Acquisition Event, except
to the extent specifically provided to the contrary in the
instrument evidencing any Option or any other agreement between a
Participant and the Company, all Options then-outstanding shall
automatically become immediately exercisable in full.
(3) Effect on Restricted Stock Awards
(a) Acquisition Event that is not a Change in
Control Event. Upon the occurrence of an Acquisition Event that
is not a Change in Control Event, the repurchase and other rights
of the Company under each outstanding Restricted Stock Award
shall inure to the benefit of the Company's successor and shall
apply to the cash, securities or other property which the Common
Stock was converted into or exchanged for pursuant to such
Acquisition Event in the same manner and to the same extent as
they applied to the Common Stock subject to such Restricted Stock
Award.
(b) Change in Control Event. Upon the
occurrence of a Change in Control Event (regardless of whether
such event also constitutes an Acquisition Event), except to the
extent specifically provided to the contrary in the instrument
evidencing any Restricted Stock Award or any other agreement
between a Participant and the Company, all restrictions and
conditions on all Restricted Stock Awards then-outstanding shall
automatically be deemed terminated or satisfied.
(4) Effect on Other Awards
(a) Acquisition Event that is not a Change in
Control Event. The Board shall specify the effect of an
Acquisition Event that is not a Change in Control Event on any
other Award granted under the Plan at the time of the grant of
such Award.
(b) Change in Control Event. Upon the
occurrence of a Change in Control Event (regardless of whether
such event also constitutes an Acquisition Event), except to the
extent specifically provided to the contrary in the instrument
evidencing any other Award or any other agreement between a
Participant and the Company, all other Awards shall become
exercisable, realizable or vested in full, or shall be free of
all conditions or restrictions, as applicable to each such Award.
9. GENERAL PROVISIONS APPLICABLE TO AWARDS
(a) Transferability of Awards.
-------------------------
Except as the Board may otherwise determine or
provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to
whom they are granted, either voluntarily or by operation of law,
except by will or the laws of descent and distribution, and,
during the life of the Participant, shall be exercisable only by
the Participant. References to a Participant, to the extent
relevant in the context, shall include references to authorized
transferees.
(b) Documentation.
-------------
Each Award shall be evidenced by a written
instrument in such form as the Board shall determine. Each Award
may contain terms and conditions in addition to those set forth
in the Plan.
(c) Board Discretion.
----------------
Except as otherwise provided by the Plan, each
Award may be made alone or in addition or in relation to any
other Award. The terms of each Award need not be identical, and
the Board need not treat Participants uniformly.
(d) Termination of Status.
---------------------
The Board shall determine the effect on an Award
of the disability, death, retirement, authorized leave of absence
or other change in the employment or other status of a
Participant and the extent to which, and the period during which,
the Participant, the Participant's legal representative,
conservator, guardian or Designated Beneficiary may exercise
rights under the Award.
(e) Withholding.
-----------
Each Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes
required by law to be withheld in connection with Awards to such
Participant no later than the date of the event creating the tax
liability. Except as the Board may otherwise provide in an Award,
when the Common Stock is registered under the Exchange Act,
Participants may satisfy such tax obligations in whole or in part
by delivery of shares of Common Stock, including shares retained
from the Award creating the tax obligation, valued at their Fair
Market Value. The Company may, to the extent permitted by law,
deduct any such tax obligations from any payment of any kind
otherwise due to a Participant.
(f) Amendment of Award.
------------------
The Board may amend, modify or terminate any
outstanding Award, including but not limited to, substituting
therefor another Award of the same or a different type, changing
the date of exercise or realization, and converting an Incentive
Stock Option to a Nonstatutory Stock Option, provided that the
Participant's consent to such action shall be required unless the
Board determines that the action, taking into account any related
action, would not materially and adversely affect the
Participant.
(g) Conditions on Delivery of Stock.
-------------------------------
The Company will not be obligated to deliver any
shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan
until (i) all conditions of the Award have been met or removed to
the satisfaction of the Company, (ii) in the opinion of the
Company's counsel, all other legal matters in connection with the
issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock
exchange or stock market rules and regulations, and (iii) the
Participant has executed and delivered to the Company such
representations or agreements as the Company may consider
appropriate to satisfy the requirements of any applicable laws,
rules or regulations.
(h) Acceleration.
------------
The Board may at any time provide that any Options
shall become immediately exercisable in full or in part, that any
Restricted Stock Awards shall be free of restrictions in full or
in part or that any other Awards may become exercisable in full
or in part or free of some or all restrictions or conditions, or
otherwise realizable in full or in part, as the case may be.
10. MISCELLANEOUS
(a) No Right To Employment or Other Status.
--------------------------------------
No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued
employment or any other relationship with the Company. The
Company expressly reserves the right at any time to dismiss or
otherwise terminate its relationship with a Participant free from
any liability or claim under the Plan, except as expressly
provided in the applicable Award.
(b) No Rights As a Shareholder.
--------------------------
Subject to the provisions of the applicable Award,
no Participant or Designated Beneficiary shall have any rights as
a shareholder with respect to any shares of Common Stock to be
distributed with respect to an Award until becoming the record
holder of such shares. Notwithstanding the foregoing, in the
event the Company effects a split of the Common Stock by means of
a stock dividend and the exercise price of and the number of
shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date
for such dividend), then an optionee who exercises an Option
between the record date and the distribution date for such stock
dividend shall be entitled to receive, on the distribution date,
the stock dividend with respect to the shares of Common Stock
acquired upon such Option exercise, notwithstanding the fact that
such shares were not outstanding as of the close of business on
the record date for such stock dividend.
(c) Effective Date and Term of Plan.
-------------------------------
The Plan shall become effective on the date as of
which it is both adopted by the Board and approved by the Company
shareholders. No Awards shall be granted under the Plan after the
completion of ten years from the date the Plan was approved by
the Company's shareholders, but Awards previously granted may
extend beyond that date.
(d) Amendment of Plan.
-----------------
The Board may amend, suspend or terminate the Plan
or any portion thereof at any time.
(e) Governing Law.
-------------
The provisions of the Plan and all Awards made
hereunder shall be governed by and interpreted in accordance with
the laws of the State of Florida, without regard to any
applicable conflicts of law.
