As filed with the Securities and Exchange Commission on December 15, 1998
Registration No. 33-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
800 TRAVEL SYSTEMS, INC.
(Exact name of registrant as specified in charter)
Delaware 59-3343338
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4802 Gunn Highway
Tampa, Florida 33642
(813) 908-0903
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------
1997 Stock Option Plan
Consultant's Stock Option Plan
Directors' Stock Option Plan
Officer's Stock Option Plan
(Full Title of Plan)
----------------
Mark D. Mastrini
President, Chief Executive Officer and Chief Operating Officer
800 Travel Systems, Inc.
Tampa, Florida 33624
(813) 908-0903
(name and address, including zip code and telephone number,
including area code of agent for service)
----------------
Copies to:
Vincent J. McGill, Esq.
Phillips Nizer Benjamin Krim & Ballon LLP
666 Fifth Avenue
New York, New York 10103
(212) 977-9700
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Class of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered (1) Per Share Offering Price Registration Fee (2)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
190,000 $3.00 $570,000 $172.73
150,000 $3.10 $465,000 $140.91
Common Stock, $0.01 par value 460,000 $5.00 $2,300,000 $696.97
50,000 $3.00 $150,000 $45.45
50,000 $4.00 $200,000 $60.61
25,000 $10.00 $250,000 $75.76
- --------------------------------------------------------------------------------------------------
TOTAL 925,000 -- $3,935,000 $1,192.42
==================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), the number of shares being registered shall be
adjusted to include any additional shares which may become issuable as a
result of stock splits, stock dividends or similar transactions in
accordance with the anti-dilution provisions of the 800 Travel Systems,
Inc. 1997 Stock Option Plan, Consultant's Stock Option Plan, Directors'
Stock Option Plan and Officer's Stock Option Plan (each, a "Plan" and
collectively, the "Plans").
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended, for the purpose of determining the registration fee, based upon
the price at which outstanding options may be exercised.
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by 800 Travel Systems, Inc.
(the "Registrant") with the Securities and Exchange Commission (the
"Commission"), are hereby incorporated by reference in this Registration
Statement:
1. Annual Report on Form 10-KSB for the fiscal year ended December 31,
1997.
2. Quarterly Report on Form 10-QSB for the fiscal quarter ended March
31, 1998.
3. Quarterly Report of Form 10-QSB for the fiscal quarter ended June
30, 1998.
4. Quarterly Report on Form 10-QSB for the fiscal quarter ended
September 30, 1998.
5. Current Report on Form 8-K dated March 30, 1998.
6. Current Report on Form 8-K dated June 26, 1998.
7. The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A filed pursuant to Section 12 of
the Exchange Act, and any amendment or report filed for the purpose
of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 subsequent to the date of the
Registration Statement and prior to the filing of a post-effective amendment,
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
respective dates of filing such documents.
The Registrant will provide without charge to any Plan participant, at the
request of such person, a copy of any or all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents).
Requests should be directed to Jerrold B. Sendrow, Secretary, 800 Travel
Systems, Inc., 4802 Gunn Highway, Tampa, Florida 33624, Tel. (813) 908-0903.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
2
<PAGE>
Section 145 of the General Corporation Law of the State of Delaware, as
amended, (the "DGCL") permits a corporation, under specified circumstances, to
indemnify its directors, officers, employees or agents against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlements
actually and reasonably incurred by them in connection with any action, suit or
proceeding brought by third parties by reason of the fact that they were or are
directors, officers, employees or agents of the corporation, if such directors,
officers, employees or agents acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reason to believe their conduct was unlawful. In an action by or in the right of
the corporation, indemnification may be made only for expenses actually and
reasonably incurred by directors, officers, employees or agents in connection
with the defense or settlement of an action or suit, and only with respect to a
matter as to which they shall have acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interest of the
corporation, except that no indemnification shall be made if such person shall
have been adjudged liable to the corporation, unless and only to the extent that
the court in which the action or suit was brought shall determine upon
application that the defendant directors, officers, employees or agents are
fairly and reasonably entitled to indemnify for such expenses despite such
adjudication of liability.
Article Sixth of the Company's Amended and Restated Certificate of
Incorporation provides that the Company's directors will not be personally
liable to the Company or its stockholders for monetary damages resulting from
breaches of their fiduciary duty as directors except (a) for any breach of the
duty of loyalty to the Company or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (c) under Section 174 of the General Corporation Law of the State of
Delaware, as amended, which makes directors liable for unlawful dividends or
unlawful stock repurchases or redemptions or (d) for transactions from which
directors derive improper personal benefit.
Article Seventh of the Company's Amended and Restated Certificate of
Incorporation provides that the Company shall indemnify each person who was or
is made a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he or she,
or a person of which he or she is the legal representative, is or was a director
of officer, or had agreed to serve as a director or officer, of the Company or
is or was serving or has agreed to serve at the request of the Company as a
director, officer, employee or agent of an entity affiliated with or related to
the Company.
The Company also maintains directors and officers liability insurance.
Item 7. Exemption From Registration Claimed.
Not Applicable.
3
<PAGE>
Item 8. Exhibits.
Exhibit
Nos. Description of Exhibits
- ---- -----------------------
5.1 Opinion of Phillips Nizer Benjamin Krim & Ballon LLP(1)
10.1 1997 Stock Option Plan(2)
10.2 Form of Consultant's Stock Option Plan(1)
10.3 Form of Directors' Stock Option Plan(1)
10.4 Form of Officer's Stock Option Plan(1)
23.1 Consent of Killman, Murrell & Company, P.C.(1)
23.3 Consent of Phillips Nizer Benjamin Krim & Ballon LLP (included in
Exhibit 5.1)
- ----------------
(1) Filed herewith.
(2) Incorporated by reference to the Company's Registration Statement on
Form SB-2, FileNumber 333-28237.
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(i) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(ii) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(iii) 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.
2. 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 an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
4
<PAGE>
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Act") may be permitted to directors, officers or
controlling persons of the registrant, pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the 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 hereunder, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the act and will be governed by the final adjudication of such
issue.
5
<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, on the 9th day of December 1998.
800 TRAVEL SYSTEMS, INC.
(Registrant)
By: /s/ Mark D. Mastrini
------------------------------
Mark D. Mastrini, President,
Chief Executive Officer and
Chief Operating Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ MARK D. MASTRINI President, Chief Executive December 9, 1998
- ----------------------------- Officer and Chief
Mark D. Mastrini Operating and Director
/s/ JERROLD B. SENDROW Vice President--Finance, December 9, 1998
- ----------------------------- Treasurer and Secretary
Jerrold B. Sendrow (principal accounting
officer)
Director
- -----------------------------
Pasquale Guadagno
/s/ MICHAEL GAGGI Director December 9, 1998
- -----------------------------
Michael Gaggi
/s/ GEORGE A. WARDE Chairman of the Board December 9, 1998
- -----------------------------
George A. Warde
/s/ CARL A. BELLINI Director December 9, 1998
- -----------------------------
Carl A. Bellini
/s/ L. DOUGLAS BAILEY Director December 9, 1998
- -----------------------------
L. Douglas Bailey
6
Exhibit 5.1
PHILLIPS NIZER BENJAMIN KRIM & BALLON LLP
666 Fifth Avenue
New York, New York 10103-0084
December 15, 1998
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to 800 Travel Systems, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), of a Registration Statement on Form S-8
(the "Registration Statement") relating to the registration by the Company of an
aggregate of 925,000 shares of the Company's Common Stock, $.01 par value per
share (the "Shares"), to be issued pursuant to the Company's 1997 Stock Option
Plan, Consultant's Stock Option Plan, Directors' Stock Option Plan and Officer's
Stock Option Plan (collectively, the "Plans").
In so acting, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of the Registration Statement, the Plans, the
Certificate of Incorporation of the Company, as amended to date, the By-Laws of
the Company, as amended to date, and such other documents, records, certificates
and other instruments of the Company as in our judgment are necessary or
appropriate for purposes of this opinion.
Based on the foregoing, we are of the following opinion:
1. The Company is a corporation duly incorporated and validly existing
under the law of the State of Delaware.
2. The Shares have been duly authorized and, when issued and paid for
in accordance with the Plans, will be validly issued, fully paid and
non-assessable.
We are expressing the opinions above as members of the Bar of the State of
New York and express no opinion as to any law other than the laws of that state
and the General Corporation Law of the State of Delaware.
We consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
PHILLIPS NIZER BENJAMIN KRIM & BALLON LLP
/s/ Phillips Nizer Benjamin Krim & Ballon LLP
Exhibit 10.2
800 TRAVEL SYSTEMS, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") is made and entered into as
of September 3, 1998 by and between 800 Travel Systems, Inc., a Delaware
corporation (the "Company"), and ZA Inc., a New York corporation ("Consultant"),
with respect to the following:
WHEREAS, Consultant and the Company have entered into a letter agreement,
dated as of July 16, 1998 (the "Engagement Agreement"), pursuant to which the
Company has engaged Consultant to create the Company's interactive web-site;
WHEREAS, as a result of cost overruns and time delays the parties have
renegotiated the compensation to be paid to Consultant and, as part of such
remuneration the Company has agreed to issue to Consultant options to purchase
up to One Hundred Twenty-Five Thousand (125,000) shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), as more fully described
herein;
NOW, THEREFORE, in consideration of the premises and the covenants and
conditions contained herein, the parties hereto agree as follows:
3. Grant of Options. The Company hereby grants to Consultant the right and
option, but not the obligation, to purchase an aggregate of up to One Hundred
Twenty-Five Thousand (125,000) shares of Common Stock, subject to adjustment as
provided herein, on the terms and conditions set forth herein (the "Options").
The Options are intended to be non-statutory options and not incentive stock
options within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
4. Exercise Periods; Exercise Prices. The Option shall become exercisable
cumulatively as follows:
a. The "Initial Options": as to 50,000 shares (the "Initial Option
Shares"), upon the execution of this Agreement for a period of three (3) years
from the date first set forth above (the "Initial Options Exercise Period"), at
an exercise price of $3.00 per share (the "Initial Options Exercise Price");
b. The "Additional Options": as to 50,000 shares (the "Additional
Option Shares"), upon the execution of this Agreement for a period of three (3)
years from the date first set forth above (the "Additional Options Exercise
Period"), at an exercise price of $4.00 per share (the "Additional Options
Exercise Price");
c. The "Contingent Options": as to 25,000 shares (the "Contingent
Option Shares"), upon the execution of this Agreement for a period of three (3)
years from the date first set forth above (the "Contingent Options Exercise
Period" and collectively, with the Initial Options Exercise Period and the
Additional Options Exercise Period, the "Exercise Periods"), at an exercise
price of $10.00 per share (the "Contingent Options Exercise Price" and
collectively, with the Initial Options Exercise Price and the Additional Options
Exercise Price, the "Exercise Prices"); provided, however, that the right to
exercise the Contingent Options shall vest only if the closing bid price of the
Common Stock (the "Closing Price") is at least $10.00 per share for any ten (10)
consecutive trading days during the period beginning the date
<PAGE>
first set forth above and ending upon the expiration of the Contingent Options
Exercise Period (the "Redemption Period").
Notwithstanding the foregoing, all Options shall be forfeited in the event
that Consultant shall fail to complete the Project (as defined in the Engagement
Agreement) to the Company's reasonable satisfaction by February 29, 1999.
The Exercise Prices shall be subject to adjustment as provided herein.
5. Manner of Exercise. The Options may be exercised by written notice
delivered to the Secretary of the Company. Such notice shall state the number of
Option Shares with respect to which Options are being exercised and shall be
accompanied by payment of the purchase price in full in cash. As soon as
practicable after any such exercise of Options, the Company shall issue and
register in the name of and deliver to Consultant a certificate or certificates
for the Option Shares issuable upon such exercise.
6. Adjustment Provisions. If, at any time or from time to time during the
Exercise Periods, any of the following events shall occur, the Exercise Prices
and the number of and kind of Option Shares then subject to the Options shall in
each instance be adjusted as follows:
a. Stock Dividends, Split-Ups and Combinations. If a change is
effected in the number of outstanding shares of Common Stock by a stock dividend
in Common Stock or by a subdivision or combination of such shares, the Exercise
Prices shall be proportionately reduced or increased, as the case may be, so
that it will bear the same ratio to the Exercise Prices in effect immediately
before such change as the number of shares outstanding immediately before such
change bears to the number outstanding immediately thereafter. Upon any
adjustment of the Exercise Price as provided above, the number of Option Shares
subject to the Options shall be increased or decreased, as appropriate, so that
it will bear the same ratio to the number of Option Shares subject to the
Options immediately before such change as the number of shares outstanding
immediately after such change bears to the number of outstanding immediately
prior thereto.
b. Other Changes in Capital Structure. In the case of any
reclassification or other change in the outstanding Common Stock not covered by
the foregoing provisions, other than a change in par value or in the case of any
consolidation or merger of the Company with or into another corporation (other
than a merger in which the Company is the continuing corporation and which does
not result in any reclassification or change of outstanding shares of the
Company), or in the case of any sale or conveyance to another corporation of the
property of the Company as an entirety, or substantially as an entirety,
Consultant shall have the right, upon exercise of the Options and payment
therefor, to receive solely a like amount and kind of shares of stock and other
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance as Consultant would have been entitled
to receive if the Options, to the extent not previously exercised, had been
exercised in full immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance.
c. Notice of Adjustment. Upon any adjustment of the Exercise Prices
and change in the number of Option Shares or other securities purchasable
hereunder, the Company shall give written notice thereof to Consultant, stating
the new price and the increased or decreased number of Option Shares or other
securities purchasable upon exercise of the Options and setting forth in
reasonable detail the method of calculation and the pertinent facts upon which
such calculation is based.
2
<PAGE>
7. Optional Redemption.
a. Redemption. Notwithstanding the Contingent Options Exercise
Period provided in Section 3 above, the Company shall have the right, but not
the obligation, to redeem any part or all of the Contingent Options at a
redemption price of $.05 per Contingent Option (the "Redemption Price") if and
to the extent that the Closing Price is at least $10.00 per share for any ten
(10) consecutive trading days (in addition to the ten (10) consecutive trading
days referred to in Section 2 (c)) at any time during the Redemption Period.
b. Manner of Exercise by the Company. The Company shall exercise its
right of redemption by delivering to Consultant a written notice of redemption
(the "Redemption Notice") with respect thereto. The Redemption Notice shall
state (i) the number of Contingent Options to be redeemed, (ii) the Contingent
Exercise Price thereof, (iii) the Closing Price of the Common Stock during the
applicable ten (10) day trading period, and (iv) the applicable redemption date
therefor(the "Redemption Date"), which shall be not less than ten (10) nor more
than twenty (20) days following the delivery date of the Redemption Notice.
Consultant shall be entitled to exercise any or all of the Contingent Options
called for redemption at any time through the Redemption Date therefor.
Thereafter, Consultant's right to exercise such Contingent Options shall cease
and its sole right with respect thereto shall be to receive payment of the
Redemption Price therefor.
8. Representations of Consultant. Consultant acknowledges that it has been
informed that the Option Shares subject to the Options, if and when issued, will
not be registered under the Securities Act of 1933, as amended (the "Securities
Act"). Consultant understands that the Company is granting the Options in
reliance upon exemptions contained in the Securities Act and the General Rules
and Regulations under the Securities Act as promulgated and from time to time
amended by the Securities and Exchange Commission on the grounds that the grant
of the Options and the issuance and sale of the Option Shares subject thereto
are transactions not involving any public offering and that, consequently, such
transactions are exempt from registration under the Securities Act by virtue of
the provisions of Section 4(2) thereof and Regulation D promulgated thereunder.
Consultant acknowledges that reliance upon this exemption is predicated in part
upon its representation that any Option Shares acquired upon exercise of the
Options will be acquired for the account of the holder and for investment only.
In addition, Consultant specifically authorizes the Company to place an
appropriate legend on the Option Shares in the form set forth in Section 8
below.
9. Representation of the Company. The Company represents and warrants that
the Option Shares issuable upon any exercise of the Options, when purchased and
paid for as herein provided, will be validly issued, fully paid and
non-assessable.
10. Legend. The certificates representing the Option Shares issued upon
any exercise of the Options granted hereby shall bear the following legend:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR UNLESS, IN THE
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER, SUCH
3
<PAGE>
OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION
OR IS OTHERWISE IN COMPLIANCE WITH THE SECURITIES ACT AND SUCH LAWS.
11. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be personally delivered,
transmitted by facsimile, telex or cable, or transmitted by postage prepaid,
registered or certified mail with return receipt requested, or by FedEx or other
similar overnight delivery service, addressed as follows:
If to Consultant, to it at:
ZA Inc.
75 Maiden Lane, Suite 346
New York, New York 10038
Fax: (212) 898-0383
Attn: Jack J. Zahran, Chief Executive Officer
If to the Company, to it at:
800 Travel Systems, Inc.
4802 Gunn Highway
Tampa, Florida
Fax: (813) 908-0080
Attn: Mark D. Mastrini, Chief Executive Officer
With a copy to:
Phillips Nizer Benjamin Krim & Ballon LLP
666 Fifth Avenue
New York, New York 10103-0084
Fax: (212) 262-5152
Attn: Vincent McGill, Esq.
Notices shall be deemed to have been given: (i) on the fifth business day after
posting, if mailed first class, (ii) on the date of receipt if delivered
personally, or (iii) on the next business day after transmission if transmitted
by facsimile, telex or cable (and appropriate answerbacks have been received) or
overnight delivery service. Either party hereto may change its address for
purposes hereof by notice to the other party in accordance with this Section 9.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
4
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Stock Option Agreement
as of the date first above written.
ZA INC.
By:
---------------------------------
Jack Zahran
Chief Executive Officer
800 TRAVEL SYSTEMS, INC.
By:
---------------------------------
Mark D. Mastrini
Chief Executive Officer
5
Exhibit 10.3
800 TRAVEL SYSTEMS, INC.
DIRECTORS' STOCK OPTION AGREEMENT
(NON-QUALIFIED STOCK OPTION)
THIS AGREEMENT, made as of this 1st day of April, 1998 by 800 TRAVEL
SYSTEMS, INC., a Delaware corporation (the "Company"), with ________________
(the "Holder"):
The Compensation Committee of the Board of Directors (the "Committee") has
determined that it would be to the advantage and interest of the Company to
grant the option provided for herein to the Holder as an inducement to remain a
director of the Company, and as an incentive for increased efforts during such
service.
NOW, THEREFORE, the Company with the approval of the Committee hereby
grants to the Holder as of the date hereof an option (the "Option") to purchase
all or any part of 50,000 shares of Common Stock of the Company, par value $.01
per share, at a price per share of $3.10, and upon the following terms and
conditions:
1. The Option shall continue in force through March 31, 2008 (the
"Expiration Date"), unless sooner terminated as provided herein. The Option
shall become exercisable immediately as of the date first set forth above.
3. If the Holder shall (a) die or (b) become permanently and totally
disabled then the Option may be exercised as set forth herein by the Holder or
by the person or persons to whom the Holder's rights under the Option pass by
will or applicable law, or if no such person has such right, by his executors or
administrators, at any time within one year after the date of death of the
original Holder, or one year after the date of permanent or total disability,
but in either case, not later than the Expiration Date.
4. a. The Holder may exercise the Option with respect to all or any part
of the shares then purchasable hereunder by giving the Company written notice in
the form annexed, as provided in paragraph 8 hereof, of such exercise. Such
notice shall specify the number of shares as to which the Option is being
exercised and shall be accompanied by payment in full in cash of an amount equal
to the exercise price of such shares multiplied by the number of shares as to
which the Option is being exercised; provided that, if permitted by the Board,
the purchase price may be paid, in whole or in part, by surrender or delivery to
the Company of securities of the Company having a fair market value on the date
of the exercise equal to the portion of the purchase price being so paid. In
such event fair market value should be determined pursuant to paragraph 5 of the
Company's 1997 Stock Option Plan, the terms of which paragraph 5 are
incorporated by reference herein by this reference.
b. Prior to or concurrently with delivery by the Company to the
Holder of a certificate(s) representing such shares, the Holder shall, upon
notification of the amount due, pay promptly any amount necessary to satisfy
applicable federal, state or local tax requirements. In the event such amount is
not paid promptly, the Company shall have the right to apply from the purchase
price paid any taxes required by law to be withheld by the Company with respect
to such payment and the number of shares to be issued by the Company will be
reduced accordingly.
<PAGE>
5. In the event of a change in the outstanding Common Stock of the Company
by reason of a stock dividend, split-up, split-down, reverse split,
recapitalization, merger, consolidation, combination or exchange of shares,
spin-off, reorganization, liquidation or the like, then the aggregate number of
shares and price per share subject to the Option shall be appropriately adjusted
by the Board, whose determination shall be conclusive.
6. This Option shall, during the Holder's lifetime, be exercisable only by
him, and neither this Option nor any right hereunder shall be transferable by
him, by operation of law or otherwise, except by will or by the laws of descent
and distribution. In the event of any attempt by the Holder to transfer, assign,
pledge, hypothecate or otherwise dispose of this Option or of any right
hereunder, except as provided for herein, or in the event of the levy or any
attachment, execution or similar process upon the rights or interest hereby
conferred, the Company may terminate this Option by notice to the Holder and it
shall thereupon become null and void.
7. Neither the Holder nor in the event of his death, any person entitled
to exercise his rights, shall have any of the rights of a stockholder with
respect to the shares subject to the Option until share certificates have been
issued and registered in the name of the Holder or his estate, as the case may
be.
8. Any notice to the Company provided for in this Agreement shall be
addressed to the Company in care of its Secretary, 4802 Gunn Highway, Suite 140,
Tampa, Florida 33624, and any notice to the Holder shall be addressed to him at
his address now on file with the Company, or to such other address as either may
last have designated to the other by notice as provided herein. Any notice so
addressed shall be deemed to be given on the second business day after mailing,
by registered or certified mail, at a post office or branch post office within
the United States.
9. In the event that any question or controversy shall arise with respect
to the nature, scope or extent of any one or more rights conferred by this
Option, the determination by the Committee (as constituted at the time of such
determination) of the rights of the Holder shall be conclusive, final and
binding upon the Holder and upon any other person who shall assert any right
pursuant to this Option.
800 TRAVEL SYSTEMS, INC.
By:
-----------------------------------------
Name: Jerrold B. Sendrow
Title: Chief Financial Officer
ACCEPTED AND AGREED
- ------------------------
Holder
2
<PAGE>
FORM OF NOTICE OF EXERCISE
TO: 800 TRAVEL SYSTEMS, INC.
4802 Gunn Highway, Suite 140
Tampa, Florida 33624
The undersigned hereby exercises his/her option to purchase _____ shares
of Common Stock of 800 TRAVEL SYSTEMS, INC. (the "Company") as provided in the
Stock Option Agreement dated as of _____________________, _________ at $_______
per share, a total of $_____________, and makes payment therefor as follows:
(a) To the extent of $_______ of the purchase price, the undersigned
hereby surrenders to the Company certificates for shares of its Common Stock
which, valued at $__________________ per share, the fair market value thereof,
equals such portion of the purchase price.
(b) To the extent of the balance of the purchase price, the
undersigned has enclosed a certificate or bank check payable to the order of the
Company for $________________.
A stock certificate or certificate for the shares should be delivered in
person or mailed to the undersigned at the address shown below.
The undersigned hereby represents and warrants that it is his (her)
present intention to acquire and hold the aforesaid shares of Common Stock of
the Company for his (her) own account for investment, and not with a view to the
distribution of any thereof, and agrees that he (she) will make no sale,
thereof, except in compliance with the applicable provisions of the Securities
Act of 1933, as amended.
Signature:
--------------------------
Name:
--------------------------
Address:
--------------------------
--------------------------
--------------------------
Dated:
--------------------
Exhibit 10.4
800 TRAVEL SYSTEMS, INC.
STOCK OPTION AGREEMENT
(NON-QUALIFIED STOCK OPTION; NOT UNDER THE 1997 STOCK OPTION PLAN)
THIS AGREEMENT, made as of this 1st day of September, 1998 by 800 TRAVEL
SYSTEMS, INC., a Delaware corporation (the "Company"), with Mark Mastrini (the
"Holder"):
The Compensation Committee of the Board of Directors (the "Committee") has
determined that it would be to the advantage and interest of the Company to
grant the option provided for herein to the Holder as an inducement to remain in
the service of the Company or one of its subsidiaries, and as an incentive for
increased efforts during such service.
NOW, THEREFORE, the Company with the approval of the Committee hereby
grants to the Holder as of the date hereof an option (the "Option") to purchase
all or any part of 250,000 shares of Common Stock of the Company, par value $.01
per share, at a price per share of $5.00, and upon the following terms and
conditions:
1. The Option shall continue in force through December 31, 2007 (the
"Expiration Date"), unless sooner terminated as provided herein. The Option
shall become exercisable immediately as of the date first set forth above. In
the event that the Company "constructively terminates" the Holder's employment
(as such term is defined in the Holder's employment agreement with the Company),
the Option shall become exercisable as to all shares originally covered hereby
immediately as of the date of such constructive termination.
3. If the Holder shall (a) die or (b) become permanently and totally
disabled, and if the Option was otherwise exercisable, immediately prior to the
occurrence of such event, then such Option may be exercised as set forth herein
by the Holder or by the person or persons to whom the Holder's rights under the
Option pass by will or applicable law, or if no such person has such right, by
his executors or administrators, at any time within one year after the date of
death of the original Holder, or one year after the date of permanent or total
disability, but in either case, not later than the Expiration Date.
4. a. The Holder may exercise the Option with respect to all or any part
of the shares then purchasable hereunder by giving the Company written notice in
the form annexed, as provided in paragraph 8 hereof, of such exercise. Such
notice shall specify the number of shares as to which the Option is being
exercised and shall be accompanied by payment in full in cash of an amount equal
to the exercise price of such shares multiplied by the number of shares as to
which the Option is being exercised; provided that, if permitted by the Board,
the purchase price may be paid, in whole or in part, by surrender or delivery to
the Company of securities of the Company having a fair market value on the date
of the exercise equal to the portion of the purchase price being so paid. In
such event fair market value should be determined pursuant to paragraph 5 of the
Company's 1997 Stock Option Plan, the terms of which paragraph 5 are
incorporated by reference herein by this reference.
b. Prior to or concurrently with delivery by the Company to the
Holder of a certificate(s) representing such shares, the Holder shall, upon
notification of the amount due, pay promptly any amount
4
<PAGE>
necessary to satisfy applicable federal, state or local tax requirements. In the
event such amount is not paid promptly, the Company shall have the right to
apply from the purchase price paid any taxes required by law to be withheld by
the Company with respect to such payment and the number of shares to be issued
by the Company will be reduced accordingly.
5. In the event of a change in the outstanding Common Stock of the Company
by reason of a stock dividend, split-up, split-down, reverse split,
recapitalization, merger, consolidation, combination or exchange of shares,
spin-off, reorganization, liquidation or the like, then the aggregate number of
shares and price per share subject to the Option shall be appropriately adjusted
by the Board, whose determination shall be conclusive.
6. This Option shall, during the Holder's lifetime, be exercisable only by
him, and neither this Option nor any right hereunder shall be transferable by
him, by operation of law or otherwise, except by will or by the laws of descent
and distribution. In the event of any attempt by the Holder to transfer, assign,
pledge, hypothecate or otherwise dispose of this Option or of any right
hereunder, except as provided for herein, or in the event of the levy or any
attachment, execution or similar process upon the rights or interest hereby
conferred, the Company may terminate this Option by notice to the Holder and it
shall thereupon become null and void.
7. Neither the Holder nor in the event of his death, any person entitled
to exercise his rights, shall have any of the rights of a stockholder with
respect to the shares subject to the Option until share certificates have been
issued and registered in the name of the Holder or his estate, as the case may
be.
8. Any notice to the Company provided for in this Agreement shall be
addressed to the Company in care of its Secretary, 4802 Gunn Highway, Suite 140,
Tampa, Florida 33624, and any notice to the Holder shall be addressed to him at
his address now on file with the Company, or to such other address as either may
last have designated to the other by notice as provided herein. Any notice so
addressed shall be deemed to be given on the second business day after mailing,
by registered or certified mail, at a post office or branch post office within
the United States.
9. In the event that any question or controversy shall arise with respect
to the nature, scope or extent of any one or more rights conferred by this
Option, the determination by the Committee (as constituted at the time of such
determination) of the rights of the Holder shall be conclusive, final and
binding upon the Holder and upon any other person who shall assert any right
pursuant to this Option.
800 TRAVEL SYSTEMS, INC.
By:
---------------------------------
Name: Jerrold B. Sendrow
Title: Chief Financial Officer
ACCEPTED AND AGREED
- ------------------------
Holder
5
<PAGE>
FORM OF NOTICE OF EXERCISE
TO: 800 TRAVEL SYSTEMS, INC.
4802 Gunn Highway, Suite 140,
Tampa, Florida 33624
The undersigned hereby exercises his/her option to purchase _____ shares
of Common Stock of 800 TRAVEL SYSTEMS, INC. (the "Company") as provided in the
Stock Option Agreement dated as of _____________________, _________ at $_______
per share, a total of $_____________, and makes payment therefor as follows:
(a) To the extent of $_______ of the purchase price, the undersigned
hereby surrenders to the Company certificates for shares of its Common Stock
which, valued at $__________________ per share, the fair market value thereof,
equals such portion of the purchase price.
(b) To the extent of the balance of the purchase price, the
undersigned has enclosed a certificate or bank check payable to the order of the
Company for $________________.
A stock certificate or certificate for the shares should be delivered in
person or mailed to the undersigned at the address shown below.
The undersigned hereby represents and warrants that it is his (her)
present intention to acquire and hold the aforesaid shares of Common Stock of
the Company for his (her) own account for investment, and not with a view to the
distribution of any thereof, and agrees that he (she) will make no sale,
thereof, except in compliance with the applicable provisions of the Securities
Act of 1933, as amended.
Signature:
--------------------------
Name:
--------------------------
Address:
--------------------------
--------------------------
--------------------------
Dated:
--------------------
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Form S-8 Registration Statement of our report
dated February 28, 1998 included in 800 Travel Systems, Inc.'s Form 10-KSB for
the year ended December 31, 1997, and to all references to our Firm included in
this Registration Statement.
KILLMAN, MURRELL & COMPANY, P.C.
/s/ Killlman, Murrell & Company, P.C.
Dated: December 14, 1998
