<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Preliminary Proxy Statement [_] CONFIDENTIAL, FOR USE OF THE
COMMISSION ONLY (AS PERMITTED BY
RULE 14A-6(E)(2))
[X] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
SYMPLEX COMMUNICATIONS CORPORATION
- --------------------------------------------------------------------------------
(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)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
-------------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
-------------------------------------------------------------------------
(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):
-------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
-------------------------------------------------------------------------
(5) Total fee paid:
-------------------------------------------------------------------------
[_] 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. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
-------------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
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(3) Filing Party:
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(4) Date Filed:
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Notes:
Reg. (S) 240.14a-101
SEC 1913 (3-99)
<PAGE>
SYMPLEX COMMUNICATIONS CORPORATION
35 RESEARCH DRIVE
ANN ARBOR, MI 48103
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 11, 1999
To Our Stockholders:
The Annual Meeting of Stockholders of Symplex Communications Corporation, a
Delaware corporation (the "Company"), will be held on May 11, 1999 at 10:00
a.m., Eastern Daylight Time, at Weber's Inn, 3050 Jackson Road, Ann Arbor,
Michigan 48103, for the following purposes, all of which are more completely set
forth in the accompanying Proxy Statement.
1. To elect five (5) directors to the Board of Directors of the Company.
2. To ratify the appointment of Ehrhardt, Keefe, Steiner & Hottman, LLP as
the Company's auditors for the fiscal year ending December 31, 1999.
3. To amend and restate the Company's April 1997 Stock Option Plan.
4. To transact such other business as may properly come before the meeting,
or any adjournment thereof.
Pursuant to the terms of the Company's Certificate of Incorporation, the
holders of the Company's Series A Convertible Preferred Stock are entitled to
elect one member to the Company's Board of Directors. The director nominee for
that seat receiving the highest number of votes in favor of election from the
holders of Series A Convertible Preferred Stock will be elected. The other four
seats on the Board of Directors will be filled by those director nominees
receiving the highest number of votes in favor of election from the holders of
Common Stock and Series A Convertible Preferred Stock (voting as a single
class). In order for the other proposals listed above to be approved, each
proposal must be approved by the affirmative vote of holders of a majority of
shares Common Stock and Series A Convertible Preferred Stock (voting as a single
class).
All Common Stockholders and all Preferred Stockholders are cordially
invited to attend the meeting, although only Common and Preferred Stockholders
of record at the close of business on April 6, 1999 will be entitled to notice
of, and to vote at, the meeting or any and all adjournments thereof.
BY ORDER OF THE BOARD OF DIRECTORS
Thomas Radigan
Secretary of the Corporation
April 19, 1999
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE COMPLETE, DATE, SIGN AND
RETURN THE ENCLOSED PROXY CARD IN THE ENCLOSED POSTAGE PREPAID ENVELOPE. YOUR
PROMPT RETURN OF THE PROXY WILL HELP TO ASSURE A QUORUM AT THE MEETING AND AVOID
ADDITIONAL COMPANY EXPENSE FOR FURTHER SOLICITATION. YOUR PROXY MAY BE REVOKED
AT ANY TIME BEFORE IT IS VOTED.
<PAGE>
SYMPLEX COMMUNICATIONS CORPORATION
35 RESEARCH DRIVE
ANN ARBOR, MI 48103
PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS
MAY 11, 1999
SOLICITATION OF PROXIES
This Proxy Statement is furnished in connection with the solicitation of
proxies by the Board of Directors of Symplex Communications Corporation, a
Delaware corporation ("Symplex" or the "Company"), for use at the Annual Meeting
of Stockholders of the Company to be held on May 11, 1999 at 10:00 a.m., Eastern
Daylight Time, at Weber's Inn, 3050 Jackson Road, Ann Arbor, Michigan 48103, and
at any and all adjournments of such meeting.
If the enclosed Proxy Card is properly executed and returned in time to be
voted at the meeting, the shares of Common Stock and Series A Convertible
Preferred Stock represented will be voted in accordance with the instructions
contained therein. Executed proxies that contain no instructions will be voted
FOR each of the proposals described herein. Abstentions (proxies not returned)
and broker non-votes will be treated as stockholders absent from the Annual
Meeting. The proxies will be tabulated and votes counted by Pacific Trust
Company. It is anticipated that this Proxy Statement and the accompanying Proxy
Card will be mailed to the Company's stockholders on or about April 23, 1999.
STOCKHOLDERS WHO EXECUTE PROXIES FOR THE ANNUAL MEETING MAY REVOKE THEIR
PROXIES AT ANY TIME PRIOR TO THEIR EXERCISE BY DELIVERING WRITTEN NOTICE OF
REVOCATION TO THE COMPANY, BY DELIVERING A DULY EXECUTED PROXY CARD BEARING A
LATER DATE, OR BY ATTENDING THE MEETING AND VOTING IN PERSON.
The costs of the meeting, including the costs of preparing and mailing the
Proxy Statement and Proxy, will be borne by the Company. Additionally, the
Company may use the services of its Directors, officers and employees to solicit
proxies, personally or by telephone, but at no additional salary or
compensation. The Company will also request banks, brokers, and others who hold
shares of Common Stock and Series A Preferred Stock of the Company in nominee
names to distribute proxy soliciting materials to beneficial owners, and will
reimburse such banks and brokers for reasonable out-of-pocket expenses which
they may incur in so doing.
OUTSTANDING CAPITAL STOCK
The record date for stockholders entitled to vote at the Annual Meeting is
April 6, 1999. At the close of business on that day, there were (i) 8,467,523
shares of the Company's Common Stock, $.01 par value per share (the "Common
Stock"), outstanding and entitled to vote at the meeting, and (ii) 1,224,490
shares of the Company's Series A Convertible Preferred Stock, $.01 par value per
share (the "Series A Preferred
<PAGE>
Stock"), outstanding and entitled to vote at the meeting. The Series A Preferred
Stock is convertible into Common Stock of the Company on a one-for-one basis,
and the holders thereof are entitled to vote on all matters presented to the
stockholders of the Company for their action or consideration.
QUORUM AND VOTING
The presence, in person or by proxy, of the holders of a majority of the
outstanding shares of Common Stock and Series A Preferred Stock is necessary to
constitute a quorum for each matter voted upon at the Annual Meeting. In
deciding all questions, each holder of Common Stock and Series A Preferred Stock
is entitled to one vote, in person or by proxy, for each share held in his or
her name on the record date. Abstentions and broker non-votes, if any, will not
be included in vote totals and, as such, will have no effect on any proposal.
ACTION TO BE TAKEN AT THE MEETING
The accompanying proxy, unless the stockholder otherwise specifies in the
proxy, will be voted (i) FOR the election of each of the nominees named herein
for the office of director; (ii) FOR the selection of Ehrhardt, Steiner, Keefe &
Hottman, LLP, independent public accountants, as the auditors of the Company for
the fiscal year ending December 31, 1999; (iii) FOR the proposal to amend and
restate the Company's April 1997 Stock Option Plan; and (iv) at the discretion
of the proxy holders, on any other matter that may properly come before the
meeting or any adjournment thereof.
Where stockholders have appropriately specified how their proxies are to be
voted, they will be voted accordingly. If any other matter of business is
brought before the meeting, the proxy holders may vote the proxies at their
discretion. The Directors do not know of any such other matter or business.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information concerning the
beneficial ownership of the Company as of April 6, 1999, each person known by
the Company to own beneficially more than 5% of the outstanding Common Stock and
Common Stock Equivalents, certain executive officers, each Director and Director
nominee of the Company, and all Directors and executive officers as a group.
Except as may be indicated in the footnotes to the table and subject to
applicable community property laws, the Company believes that each of such
persons has the sole voting and dispositive power over the shares held by him or
her except as otherwise indicated.
-2-
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF
NAME AND ADDRESS COMMON SHARES PERCENT OF
OF BENEFICIAL OWNER BENEFICIALLY OWNED OUTSTANDING SHARES
- ------------------- ----------------------- -------------------
<S> <C> <C>
Surinder S. Chandok/(1)/........................ 1,885,715/(2)/ 18.3%
35 Research Drive
Ann Arbor, MI 48103
Opus Capital, LLP/(3)/.......................... 1,409,999/(4)/ 13.6%
1113 Spruce Street, Ste. 400
Boulder, CO 80302
Opus Capital Fund, LLC/(5)/..................... 905,000/(6)/ 9.2%
1113 Spruce Street, Ste. 400
Boulder, CO 80302
Gary R. Brock................................... 658,704/(7)/ 6.7%
35 Research Drive
Ann Arbor, MI 48103
Thomas Radigan................................... 182,773/(8)/ 1.9%
35 Research Drive
Ann Arbor, MI 48103
Thomas R. Mayer.................................. 186,333/(9)/ 1.9%
35 Research Drive
Ann Arbor, MI 48103
Andrew Brzozowicz................................ 53,898/(10)/ *
35 Research Drive
Ann Arbor, MI 48103
Patricia Kalmbach................................ 35,000/(11)/ *
35 Research Drive
Ann Arbor, MI 48103
ALL DIRECTORS AND EXECUTIVE OFFICERS AS A GROUP.. 3,002,423/(12)/ 27.8%
(6 PERSONS )
</TABLE>
________________________________________
*LESS THAN ONE PERCENT.
(1) Became beneficial owner of shares of Series A Preferred Stock and Director
in February 1999 after completion of a private placement by the Company.
(2) Includes 1,224,490 shares of Series A Preferred Stock convertible on a one-
for-one basis into shares of Common Stock. Includes warrants to purchase
shares of Series A Preferred Stock convertible into 661,225 shares of
Common Stock, which are currently exercisable or become exercisable within
60 days.
(3) The general partners of Opus Capital, LLP are Dieter Heidrich and Daryl
Yurek, 1113 Spruce Street, Boulder, Co 80302.
(4) Includes warrants to purchase 504,999 shares of Common Stock which are
currently exercisable or become exercisable within 60 days. Opus Capital,
LLP is the manager of Opus Capital Fund, LLC (the "Fund"). Includes
771,667 shares of Common Stock owned by the Fund and warrants held by the
Fund to purchase 133,333 shares of Common Stock which are currently
exercisable or become exercisable within 60 days.
-3-
<PAGE>
(5) The manager of Opus Capital Fund, LLC is Opus CapitaL LLP.
(6) Includes warrants to purchase 133,333 shares of Common Stock which are
currently exercisable or become exercisable within 60 days.
(7) Includes options to purchase 98,704 shares of Common Stock which are
currently exercisable or become exercisable within 60 days.
(8) Includes options to purchase 78,940 shares of Common Stock which are
currently exercisable or become exercisable within 60 days. Includes
warrants to purchase 63,000 shares of Common Stock which are currently
exercisable or become exercisable within 60 days.
(9) Includes option to purchase 31,673 shares of Common Stock which are
currently exercisable or become exercisable within 60 days. Includes
warrants to purchase 94,334 shares of Common Stock which are currently
exercisable or become exercisable within 60 days.
(10) Includes options to purchase 53,898 shares of Common Stock which are
currently exercisable or become exercisable within 60 days.
(11) Includes option to purchase 35,000 shares of Common Stock which are
currently exercisable or become exercisable within 60 days.
(12) Includes options to purchase 298,215 shares of Common Stock which are
currently exercisable or become exercisable within 60 days. Includes
warrants to purchase 157,334 shares of Common Stock and warrants to
purchase shares of series a preferred stock convertible into 661,225 shares
of Common Stock which are currently exercisable or become exercisable
within 60 days.
PROPOSAL 1 - ELECTION OF DIRECTORS
NOMINEES
Pursuant to the Bylaws, the authorized number of directors of the Company
has been set at five and five Directors are to be elected at the meeting for the
terms set forth opposite their respective names. Each nominee will be elected to
hold office until the expiration of his or her term as set forth below, or until
the next annual meeting of stockholders or until his or her successor is elected
and qualified.
Pursuant to the terms of the Company's Certificate of Incorporation, the
holders of the Company's Series A Preferred Stock are entitled to elect one
member to the Company's Board of Directors. The director nominee for that seat
receiving the highest number of votes in favor of election from the holders of
Series A Preferred Stock will be elected. The other four seats on the Board of
Directors will be filled by those director nominees receiving the highest number
of votes in favor of election from the holders of Common Stock and Series A
Preferred Stock (voting as a single class).
Proxy holders will not be able to vote the proxies held by them for more
than one person (Series A Preferred Stock seat) and four persons (all other
seats), respectively. If a quorum is present, the nominee for the Series A
Preferred Stock seat having the highest number of votes cast in favor of their
election by the holders of Series A Preferred Stock will be elected. Likewise,
the four nominees for the other four seats having the highest number of votes
cast in favor of their election by the holders of Common Stock and Series A
Preferred Stock (voting as a single class) will be elected. Should any nominee
become unable or unwilling to accept nomination or election, the proxy holders
may vote the proxies for the election, in his or her stead, of any other person
the Board of Directors may recommend. Each nominee has expressed his or her
intention to serve the entire term for which election is sought.
(1) To be elected by the holders of Series A Preferred Stock:
Surinder S. Chandok One Year
-4-
<PAGE>
(2) To be elected by the holders of Common Stock and Series A Preferred Stock
(voting as a single class):
Gary R. Brock Three Years
Thomas Radigan Three Years
Patricia Kalmbach Two Years
Thomas R. Mayer Two Years
The Board of Directors' nominees for the office of Director are as follows:
Year First
Became a
Name Age Director
- ------------------------- --- ----------
Gary R. Brock 49 1997
Thomas Radigan/(A)(C)/ 55 1997
Patricia Kalmbach/(C)/ 39 1995
Thomas R. Mayer/(A)(C)/ 63 1997
Surinder S. Chandok 57 1999
____________
(A) Member of the Audit Committee
(C) Member of the Compensation Committee
Gary R. Brock has been Chief Executive Officer, President and a Director of
the Company since May 27, 1997. From October 1994 to May 1997 Mr. Brock was
Regional Vice President of General DataComm, Inc., a data communication company.
From 1991 to 1994 Mr. Brock was Vice President of Marketing of Ascom-Timeplex,
Inc., a telecommunications company. He has over 26 years experience in the
computer, telecommunications and data networking industry, with over 14 years of
such experience in senior sales and marketing management positions.
Thomas Radigan was appointed Acting Secretary, Treasurer and Chief
Financial Officer in February 1997 and assumed those positions on a permanent
basis in August 1997. Mr. Radigan has been a Director of the Company since 1997.
For over ten years, Mr. Radigan has been an independent financial consultant
providing financial and related services on a contract basis to several
companies, mostly in high technology industries. Such services have been
provided through Business of Finance, Inc., a financial consulting firm wholly-
owned by Mr. Radigan. Mr. Radigan has performed Chief Financial Officer services
on a contract basis to Opus Capital, LLP, a firm that has provided management
and financial consulting services to the Company. Mr. Radigan is a Certified
Public Accountant.
Patricia Kalmbach has been a Director of the Company since 1995. For more
than six years, Ms. Kalmbach has been President of Avis Enterprises, Inc., a
holding company that owns or has owned a variety of businesses, including
condominium conversion, land development, construction, auto dealerships, and
distribution and manufacturing companies. Currently, Ms. Kalmbach holds director
and officer positions in several corporations owned by Avis Enterprises, Inc.
-5-
<PAGE>
Thomas R. Mayer has been a Director of the Company since February 1997.
From February 1997 to May 26, 1997, he served as Acting President and Chief
Executive Officer of the Company. Since November 1995, Mr. Mayer has provided
business management consulting services as President of TRM Consultants, Inc.
From April 1992 to October 1995, Mr. Mayer was the Chairman, President and Chief
Executive Officer of Syntellect, Inc., a Phoenix, Arizona company devoted to the
development and sale of voice processing technology.
Surinder S. Chandok became a Director of the Company in February 1999. Mr.
Chandok served as the Chairman and Chief Executive Officer of Imageware
Corporation from 1994 through 1997. For the past several years he has provided
business expertise and guidance to a number of software development companies
and has served on the boards of directors of a number of such companies.
THE BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE FOR EACH NOMINEE FOR
---
THE BOARD OF DIRECTORS
COMMITTEES OF THE BOARD OF DIRECTORS
The Company has an Audit Committee and a Compensation Committee. The Audit
Committee is responsible for (i) reviewing the scope of, and the fees for, the
annual audit, (ii) reviewing with the independent auditors the corporate
accounting practices and policies, (iii) reviewing with the independent auditors
their final report, and (iv) being available to the independent auditors during
the year for consultation purposes. The Audit Committee met two times in the
fiscal year ended December 31, 1998. The Compensation Committee determines the
compensation of the officers of the Company and performs other similar
functions. The Compensation Committee met two times in the fiscal year ended
December 31, 1998.
Directors are reimbursed for expenses incurred for attending any Board or
committee meeting. There is no family relationship between any current or
prospective Director of the Company and any other current or prospective
executive officer of the Company.
During the fiscal year ended December 31, 1998, there were twelve meetings
of the Board of Directors. All Directors attended at least 75% of the meetings
of the Board and committees of the Board on which they were members.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires
the Company's Directors, executive officers and holders of more than 10% of the
Company's Common Stock and Series A Preferred Stock to file with the Securities
and Exchange Commission initial reports of ownership and reports of changes in
ownership of Common Stock and Series A Preferred Stock. Except as stated below
in this paragraph, based solely upon a review of Forms 3 and 4 and amendments
thereto furnished to the Company during the fiscal year ended December 31, 1998,
and Forms 5 and amendments thereto furnished to the Company with respect to the
fiscal year ended December 31, 1998, to the best of the Company's knowledge, the
Company's Directors, officers and holders of more than 10% of its Common Stock
and Series A Preferred Stock complied with all Section 16(a) filing
requirements. Gary R. Brock, President and Chief Executive Officer, and Andrew
Brzozowicz, Vice President of Worldwide Sales, each filed a late Form 5
reporting Form 4 transactions, and Surinder S. Chandok filed a late Form 5
reporting a Form 3 transaction.
-6-
<PAGE>
EXECUTIVE OFFICERS
The following persons are the executive officers of the Company:
Name Age Position
- ---- --- --------
Gary R. Brock 49 Chief Executive Officer and President
Thomas Radigan 55 Chief Financial Officer, Treasurer and Secretary
Andrew Brzozowicz 45 Vice-President, Worldwide Sales
All executive officers are appointed by the Board of Directors and serve at
the Board's discretion.
Andrew Brzozowicz is Vice-President of Worldwide Sales for the Company,
with 15 years industry experience, having amassed numerous distinctions for
sales and marketing efforts with Fortune 1000 companies such as Sprint
International and General DataComm. Mr. Brzozowicz's command of Sprint's sales
and marketing campaign in Saudi Arabia and Canada enabled him to gain extensive
knowledge of worldwide networking requirements. Mr. Brzozowicz has also served
as Director of Sales, Sprint-Canada, Director of Sales, Telenet International,
and Director of Sales, Gulfnet-Saudi-Arabia. His U.S. assignments have been with
General DataComm, a worldwide leader in ATM deployment.
The resumes of Messrs. Brock and Radigan can be found above in the nominees
for the office of Director section.
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long Term
Compensation
Annual Compensation Awards
------------------------------------- ----------------
Securities
Other Annual Underlying
Name and Principal Position Year Salary ($) Bonus($) Compensation($) Options/SARS (#)
- --------------------------- ---- ---------- -------- --------------- ----------------
<S> <C> <C> <C> <C> <C>
Gary R. Brock/(1)/ 1998 130,000 27,188 -- --
Chief Executive Officer and
President
Andrew Brzozowicz/(2)/ 1998 85,833 -- 50,162 50,000
Vice President of Worldwide
Sales
</TABLE>
_______________
(1) Mr. Brock joined the Company in May 1997.
(2) Mr. Brzozowicz joined the Company in September 1997.
-7-
<PAGE>
Gary R. Brock, Chief Executive Officer and President, is eligible for a
quarterly cash bonus of $27,500 if the Company meets mutually agreed upon
performance goals, which may include, among other things, bookings, net income
and revenue growth.
Thomas Radigan, Chief Financial Officer, is compensated at a daily rate of
$400 for each day spent after November 1, 1997 on the affairs of the Company (to
a maximum of $6,000 per month), plus reimbursement of his reasonable expenses.
Mr. Radigan's appointment may be terminated by either party on 30 days notice.
He is expected to devote, on an annual basis, approximately 180 days to the
affairs of the Company
The following table presents information concerning individual grants of
options to purchase Common Stock of the Company made during the fiscal year
ended December 31, 1998, to each of the Named Executive Officers.
OPTION/SAR GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
Percent of Total
Options/SARs Granted
Number of Securities to Employees in Exercise of
Underlying Unexercised Fiscal Base Price
Options/SARs at FY-End 1998 Year 1998 ($ Per Share) Expiration
--------------------------- --------------------- ------------------- ---------------
<S> <C> <C> <C> <C>
Gary R. Brock -- -- -- --
Andrew Brzozowicz/(1)/ 50,000 17.3% $0.31 Aug. 31, 2003
</TABLE>
_______________
(1) Options vested as to one-sixth of shares on September 1, 1998 and thereafter
vest at the rate of 1/36th of the total shares each month.
The following table sets forth the fiscal year-end value of unexercised
options to purchase Common Stock of the Company for each Named Executive
Officer. No options or SARs were exercised by the Named Executive Officers
during the fiscal year ended December 31, 1998.
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR AND
FISCAL YEAR END OPTION/SAR VALUES
Number of Securities Underlying Value of Unexercised
Unexercised Options/SARs In-the-Money Options/SARs
at FY-End 1998 at FY-End 1998/(1)/
------------------------------- ---------------------------
Name Exercisable Unexercisable Exercisable Unexercisable
- ----------------- ----------- ------------------ ----------- --------------
Gary R. Brock 95,185 31,482 79,955 26,445
Andrew Brzozowicz 50,555 42,278 42,466 35,514
- -------------------------------------------------------------------------------
(1) The fair market value of the Company's Common Stock at December 31, 1998,
as determined by the last trade on the Vancouver Stock Exchange, was $0.84
per share.
-8-
<PAGE>
DIRECTOR COMPENSATION
Directors of the Company do not receive compensation as such, but are
reimbursed for travel costs and expenses incurred in attending Board and
Committee meetings. In April 1997, the Company granted nonstatutory stock
options under the April 1997 Stock Option Plan to purchase 35,000 shares of
Common Stock each to non-employee Directors Patricia Kalmbach and Thomas Mayer.
The options are exercisable at $0.31 per share and expire five years from the
date of grant. As of February 28, 1999, Ms. Kalmbach's options are fully
exercisable and 31,673 shares of Mr. Mayer's options are exercisable (the
balance vest at the rate of 667 shares for each meeting of Directors attended).
The Board of Directors meets monthly.
PROPOSAL 2 - APPOINTMENT OF AUDITORS
The Board of Directors has appointed the firm of Ehrhardt, Keefe, Steiner,
& Hottman, LLP, independent public accountants, as the auditors of the Company
for the fiscal year ending December 31, 1999, subject to the approval of such
appointment by the stockholders at the Annual Meeting. Ehrhardt, Keefe, Steiner
& Hottman, LLP were engaged by the Company as its principal independent
accountants on March 16, 1998 to audit its financial statements for its fiscal
years ending December 31, 1997 and 1998. The appointment of new independent
accountants was approved by the Audit Committee and the Board of Directors and
the Company dismissed its former accountants, Deloitte & Touche LLP, effective
upon the appointment of Ehrhardt, Keefe, Steiner & Hottman, LLP.
During the fiscal years ended December 31, 1996 and 1997 and the interim
period of December 31, 1997 and March 16, 1998, there were no disagreements with
the former accountants on any matter of accounting principles or practices,
financial statement disclosure or auditing scope or procedure which would have
caused the former accountants to make reference in their report to such
disagreements if not resolved to their satisfaction.
The ratification of the appointment of Ehrhardt, Keefe, Steiner & Hottman,
LLP will be determined by the vote of the holders of a majority of the shares of
Common Stock and Series A Preferred Stock (voting as a single class) present in
person or represented by proxy at the Annual Meeting.
If the foregoing appointment of Ehrhardt, Keefe, Steiner & Hottman, LLP is
not ratified by the stockholders, the Board of Directors will appoint other
independent accountants whose appointment for any period subsequent to the 1999
Annual Meeting will be subject to the approval of the stockholders at that
meeting. A representative of Ehrhardt, Keefe, Steiner & Hottman, LLP is expected
to be present at the Annual Meeting and will have an opportunity to make a
statement should he or she so desire and to respond to appropriate questions.
THE BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE TO RATIFY THE
APPOINTMENT OF THE FIRM OF EHRHARDT, KEEFE, STEINER & HOTTMAN, LLP
PROPOSAL 3 - AMENDMENT AND RESTATEMENT OF APRIL 1997 STOCK OPTION PLAN
On April 16, 1999, the Board of Directors amended and restated, subject to
stockholder approval, the Company's April 1997 Stock Option Plan (the "New
Plan"). The New Plan is set forth as Exhibit A to this Proxy Statement.
-9-
<PAGE>
The Board of Directors believes that the original April 1997 Stock Option
Plan (the "Original Plan") has been of material benefit to the Company by
assisting the Company in attracting, retaining and motivating key employees of
proven ability. The Board of Directors also believes that the best interests of
the Company and its stockholders require that the Company continue to be in a
position to offer options to present and prospective key personnel and expand
its ability to offer options to present and prospective consultants and to
present and prospective directors who are not employees of the Company.
The New Plan modifies the Original Plan in two ways, each of which is
discussed below.
EXPANSION OF OPTION POOL
As of March 31, 1999, options to purchase an aggregate of 1,224,790 shares
of Common Stock (net of options canceled) had been granted pursuant to the
Original Plan and no options had been exercised. Consequently, as of such date,
275,210 shares of the 1,500,000 shares of Common Stock reserved for issuance
under the Original Plan were available. As of March 31, 1999, the market value
of all shares of Common Stock subject to outstanding options issued under the
Original Plan was $526,660 (based upon the closing price as reported on the
Vancouver Stock Exchange on such date).
The Company views options as an important element of its overall
compensation strategy. In this regard, anticipating that the Company will need
to grant more options than were available under the Original Plan to continue to
recruit and retain experienced people, the Board of Directors has reserved
2,250,000 shares of Common Stock for issuance under the New Plan, an increase
from the 1,500,000 reserved for issuance under the Original Plan.
SATISFACTION OF REGULATORY REQUIREMENTS
To comply with the requirements and guidelines of those regulatory bodies
having jurisdiction over the Company's securities, the New Plan provides (in
Articles IX and X) that if regulatory approval and/or stockholder approval of
the options granted under the New Plan is required by any of such regulatory
bodies, then such options shall be subject to the approval of such regulatory
bodies and/or stockholder approval, as the case may be.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE AMENDMENT AND RESTATEMENT OF
---
THE COMPANY'S APRIL 1997 STOCK OPTION PLAN
STOCKHOLDER PROPOSALS
The Securities and Exchange Commission has amended the provisions of Rule
14a-4 under the Securities Exchange Act of 1934 to provide that the Company's
proxies solicited in connection with its annual meeting of stockholders,
including the 2000 Annual Meeting, may confer discretionary voting authority on
Company management with respect to certain types of stockholder proposals that
may be raised at the Annual Meeting unless the proposing stockholder notifies
the Company at least 45 days prior to the date of mailing the prior year's proxy
that such proposal will be made at the meeting.
Any proposals from stockholders to be presented for consideration for
inclusion in the proxy material in connection with the 2000 Annual Meeting of
Stockholders of the Company must be submitted in accordance with the rules of
the Securities and Exchange Commission and received by the Secretary of the
Company at the Company's principal executive offices no later than the close of
business on December 24, 1999.
-10-
<PAGE>
OTHER MATTERS
All information contained in this Proxy Statement relating to the
occupations, affiliations and securities holdings of Directors and officers of
the Company and their relationship and transactions with the Company is based
upon information received from the individual Directors and officers. All
information relating to any beneficial owner of more than 5% of the Company's
Common Stock and Series A Preferred Stock is based upon information contained in
reports filed by such owner with the Securities and Exchange Commission.
AVAILABILITY OF ANNUAL REPORT
THE COMPANY WILL FURNISH WITHOUT CHARGE A COPY OF ITS ANNUAL REPORT ON
FORM 10-KSB, INCLUDING THE FINANCIAL STATEMENTS, FOR THE FISCAL YEAR ENDED
DECEMBER 31, 1998, FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 TO ANY STOCKHOLDER
(INCLUDING ANY BENEFICIAL OWNER) UPON WRITTEN REQUEST TO THOMAS RADIGAN, CHIEF
FINANCIAL OFFICER, 35 RESEARCH DRIVE, ANN ARBOR, MICHIGAN 48103. A COPY OF THE
EXHIBITS TO SUCH REPORT WILL BE FURNISHED TO ANY STOCKHOLDER UPON WRITTEN
REQUEST THEREFOR AND PAYMENT OF A NOMINAL FEE.
Ann Arbor, Michigan
April 19, 1999
-11-
<PAGE>
EXHIBIT A
AMENDED AND RESTATED APRIL 1997 STOCK OPTION PLAN
<PAGE>
SYMPLEX COMMUNICATIONS CORPORATION
AMENDED AND RESTATED IPO STOCK OPTION PLAN
WHEREAS, SYMPLEX COMMUNICATIONS CORPORATION, (hereinafter called the
"Company"), a California corporation, wishes to provide favorable opportunities
for certain selected key employees, consultants and/or members of the Board of
Directors of the Company and any subsidiaries or parent corporation to purchase
shares of common stock of the Company, thereby encouraging them to acquire
proprietary and vested interests in the performance of the Company's common
stock; and
WHEREAS, the Company wishes to increase its ability to attract and retain
individuals of exceptional talent upon whom the sustained progress, growth and
profitability of the Company depend;
NOW, THEREFORE, the Company hereby establishes this Amended and Restated
IPO Stock Option Plan (sometimes hereinafter called the "Plan") effective the
16/th/ day of April, 1999, which amends and restates the IPO Stock Option Plan
effective April 29, 1997.
ARTICLE I
DEFINITIONS
-----------
For Plan purposes, except where the context might clearly indicate
otherwise, the following terms shall have the meaning set forth below:
A. "Board" shall mean the Board of Directors of the Company.
B. "Code" shall mean the Internal Revenue Code of 1986 and the rules and
regulations promulgated thereunder.
C. "Committee" shall mean the committee appointed by the Board to
administer the Plan. The Committee shall consist of not less than two (2) nor
more than five (5) members as selected by the Board, provided that any Committee
which, pursuant to Article II hereof, determines the eligibility of any officer
or Director of the Company to participate in this Plan shall consist solely of
disinterested persons. The term "disinterested persons" means persons who are
not at the time of determination of that status, and who have not been at any
time within one (1) year prior thereto, eligible employees (as defined in
Article V hereof) or eligible for selection as persons to whom stock may be
allocated or to whom stock options may be granted pursuant to any other plan of
the Company, or any of its affiliates, which entitles the participants therein
to acquire stock or stock options of the Company or any of its affiliates. If a
Committee is not appointed by the Board, the Board shall function as the
Committee.
D. "Common Stock" shall mean the common stock of the Company.
E. "Corporation" shall include any parent or subsidiary of the Company as
those terms are defined in Sections 425(e) and (f) of the Code, respectively,
and any predecessor corporation of any such corporation, as that term is defined
in proposed Income Tax Regulation Section 422A-2(f)(2).
<PAGE>
F. "Exchange" means the Vancouver Stock Exchange and any other stock
exchange or stock quotation system on which the Common Stock trades.
G. "Fair Market Value" means, as of any date, the value of the Common
Shares, determined as follows:
(i) if the Common Stock is listed on the Vancouver Stock Exchange,
the Fair Market Value shall be the closing sales price for
such shares (or the closing bid, if no sales were reported) as
quoted on such exchange for the ten market trading days
immediately prior to the date of determination less any
discount permitted by the Vancouver Stock Exchange;
(ii) if the Common Stock is listed on an Exchange other than the
Vancouver Stock Exchange, the fair market value shall be the
closing sales price of such shares (or the closing bid, if no
sales were reported) as quoted on such Exchange for the last
market trading day prior to the time of determination; and
(iii) if the Common Stock is not listed on an Exchange, the Fair
Market Value shall be determined in good faith by the
Committee.
H. "Option Agreement" means such option agreement or agreements as is
approved from time to time by the Committee and as is not inconsistent with the
terms of this Plan.
I. "Option Date" means the date of grant of a Stock Option to an
Optionee.
J. "Option Price" is the price at which the Optionee is entitled pursuant
to the Plan and the Option Agreement to acquire Option Shares.
K. "Option Shares" means, subject to the provisions of Article VII of
this Plan, the Common Stock which the Optionee is entitled to acquire pursuant
to this Plan and the applicable Option Agreement.
L. "Stock Option" shall mean a stock option to purchase common stock
which is intended not to meet or comply with requirements for an incentive stock
option as set forth in Section 422A of the Code. Also included in this
definition is any other form or forms of tax-qualified, discriminatory stock
options which may be incorporated within the Code as it may from time to time be
amended.
M. "Optionee" shall mean an individual who has been granted one or more
Stock Options under the Plan.
2
<PAGE>
ARTICLE II
ADMINISTRATION
--------------
A. Meetings of the Committee shall be held at such times and places as
shall be determined by the Committee. A majority of the members of the
Committee shall constitute a quorum for the transaction of business, and the
vote of a majority of those members present at any meeting shall decide any
question brought before that meeting. In addition, the Committee may take any
action otherwise proper under the Plan by the affirmative vote, taken without a
meeting, of a majority of its members.
B. The Committee shall administer the Plan, and accordingly, it shall
have full power to grant stock options, construe and interpret the Plan,
establish rules and regulations and perform all other acts, including the
delegation of administrative responsibilities, it believes reasonable and
proper.
C. The determination of those eligible to receive stock options, and the
amount, type and timing of each Stock Option, and the terms and conditions of
the respective Stock Option agreements shall rest in the sole discretion of the
Committee, subject to the provisions of the Plan.
D. Notwithstanding anything to the contrary in the Plan, if the Committee
finds by a majority vote, after full consideration of the facts presented on
behalf of both the Company and the Optionee, that the Optionee has engaged in
fraud, embezzlement, theft, commission of a felony, or proven dishonesty in the
course of his employment by the Company which resulted in damage to the Company,
or if Optionee disclosed trade secrets of the Company, the Optionee shall
forfeit all unexercised Stock Options and all exercised Stock Options under
which the Company has not yet delivered the certificates and which had
previously been granted to the Optionee by the Committee. The decision of the
Committee as to the cause of an Optionee's discharge and the damage done to the
Company shall be final. No decision of the Committee, however, shall affect the
finality of the discharge of such Optionee by the Company in any manner.
E. The Board, or the Committee, may correct any defect, supply any
omission or reconcile any inconsistency in the Plan, or in any granted Stock
Option, in the manner and to the extent it shall deem necessary to carry it into
effect.
F. Any decision made, or action taken, by the Committee or the Board
arising out of or in connection with the interpretation and administration of
the Plan shall be final and conclusive.
G. No member of the Board or Committee shall be liable for any act or
omission of any other member of the Committee or for any act or omission on his
own part, including but not limited to the exercise of any power or discretion
given to him under the Plan, except those resulting from his own gross
negligence or willful misconduct.
3
<PAGE>
ARTICLE III
SHARES SUBJECT TO THE PLAN
--------------------------
The aggregate number of Option Shares reserved for issuance under the Plan,
Common Stock reserved for issuance under any other share compensation
arrangement granted or made available by the Company from time to time (the
"Other Plans") and Common Stock reserved for issuance under stock options not
granted under the Plan or the Other Plan, may not exceed in aggregate TWO
MILLION TWO HUNDRED FIFTY THOUSAND (2,250,000) shares of Common Stock. A Stock
Option may not be granted to any person if, as the result of such grant, such
person would at the time of such grant hold options under the Plan and the Other
Plans to acquire in aggregate more than 5% of the issued and outstanding shares
of Common Stock of the Company. In the event that any outstanding Stock Option
for any reason shall expire or terminate by reason of the death or severance of
employment of the Optionee, the surrender of the Option Shares allocable to the
unexercised portion of such Stock Option shall be available for future grants of
Stock Options.
ARTICLE IV
AUTHORITY TO GRANT OPTIONS
--------------------------
The Committee may grant from time to time to such eligible individuals, as
it shall from time to time determine, a Stock Option or options to buy a stated
number of shares of common stock under the terms and conditions of the Plan.
The Committee, subject only to any applicable limitations set forth elsewhere in
the Plan, shall determine the number of shares of common stock covered by any
Stock Option.
ARTICLE V
ELIGIBILITY
-----------
The individuals who shall be eligible to participate in the Plan shall be
such executive and other key employees (including officers who may be members of
the Board of Directors) of the Company, or of any subsidiary or parent
corporations as the Committee may determine from time to time. Non-employee
members of the Board and non-employee consultants shall be eligible for Stock
Option grants.
ARTICLE VI
STOCK OPTION TERMS AND CONDITIONS
---------------------------------
All Stock Options granted under the Plan shall be evidenced by Stock Option
Agreements which shall be subject to applicable provisions of the Plan, and such
other provisions as the Committee may adopt, including the following provisions:
A. PRICE: The Option Price shall be determined by the Committee,
-----
provided that such price shall not be lower than the Fair Market Value of the
Option Shares on the date of grant of the Option.
4
<PAGE>
B. DURATION OF OPTION: Except as otherwise provided elsewhere in this
------------------
Plan, the Stock Options shall be exercisable for a period, or in percentage
installments over a period, to be determined in each instance by the Committee,
provided that if the Common Stock is listed on the Vancouver Stock Exchange, the
exercise period shall not exceed five (5) years from the Option Date. The Stock
Options must be exercised in accordance with this Plan and the Option Agreement.
C. VESTING: The Committee may establish vesting periods for a Stock
-------
Option, such that the option becomes fully vested and exercisable in a series of
cumulating portions. The Committee may also accelerate the vesting of any Stock
Option in its sole discretion.
D. EXERCISE: A valid, outstanding, and vested Stock Option shall be
--------
exercised, in part or as a whole, by the delivery of written Notice of Exercise
to the Company setting forth the number of shares with respect to which the
Stock Option is to be exercised and the address to which the certificates
representing shares of the stock issuable upon the exercise of such Stock Option
shall be mailed. In order to be effective, such written Notice shall be
accompanied at the time of its delivery to the Company by payment of the option
price of such shares. Such Notice shall be delivered in person to the Secretary
of the Company or shall be sent by registered mail, return receipt requested, to
the Secretary of the Company, in which case, delivery shall be deemed made on
the date such Notice is deposited in the mail. In its sole and absolute
discretion, the Committee may require as an additional condition to the issuance
of stock upon exercise of a Stock Option that the Optionee furnish the Committee
with an executed copy of a Stock Purchase Agreement in such form as may be
required by the Committee at the time Notice of Exercise is delivered to the
Company.
As promptly as practicable after the receipt by the Company of:
(i) such written notice from the Optionee setting forth the number
of shares with respect to which such option is to be exercised,
(ii) payment of the option price of such shares in the form required
by the provisions of this Article VI, and
(iii) a fully executed Stock Purchase Agreement in the form required
by the Committee, if any is so required.
The Company shall cause to be delivered to such Optionee (or to a specified
escrow agent if so required under the terms of any applicable Stock Purchase
Agreement) certificates representing the number of shares with respect to which
such Stock Option has been so exercised. Until the shares of common stock
represented by an exercised Stock Option are issued to an Optionee, he shall
have none of the rights of a share owner.
5
<PAGE>
E. PAYMENT: The price of an exercised Stock Option, or portion thereof,
-------
may be paid:
(i) in United States dollars in cash or by check, bank draft or
money order payable to the order of the Company, or
(ii) at the discretion of the Committee, through the delivery of
shares of common stock, with an aggregate fair market value,
equal to the option price, provided such tendered shares have
been owned by the Optionee for at least one (1) year prior to
such exercise, or
(iii) by a combination of both (i) and (ii) above.
The Committee shall determine acceptable methods for tendering common stock
as payment upon exercise of a Stock Option and may impose such limitations and
prohibitions on the use of common stock to exercise a Stock Option as it deems
appropriate.
F. TERMINATION OF EMPLOYMENT OF THE OPTIONEE: In the event an Optionee
-----------------------------------------
who is an employee shall cease to be employed by the Corporation while he is
holding one or more Stock Options, or in the event an Optionee who is a Director
shall cease to be a member of the Board of Directors while he or she is holding
one or more Stock Options, then the vested portion of such Stock Options, and
the non-vested portion of such Stock Options, shall (except as otherwise
provided in the Stock Option Agreement) expire at the earlier of the expiration
of the Stock Option's term or the following:
(i) Optionee's Death - all Stock Option(s) shall become fully vested
----------------
and shall be forfeited if not exercised within one (1) year
after such death.
(ii) Optionee's Termination Other Than For Cause - the non-vested
-------------------------------------------
portion of the Stock Option(s) shall expire immediately and the
fully vested portion shall be forfeited if not exercised within
thirty (30) days after the effective date of such termination.
(iii) Optionee's Termination For Cause - all Stock Option(s), whether
--------------------------------
vested or non-vested, shall expire immediately. The phrase
"termination for cause" is hereby defined to be a termination by
the Corporation because of the Optionee's fraud or dishonest
conduct with respect to the Corporation, or in the event of an
employee (Optionee's consistent failure) to carry out the
reasonable terms of his employment as determined by the
Committee.
In the event of the death of an Optionee following termination of
employment (in the event of an employee) or following termination of the
Optionee's service on the Board of Directors, while any
6
<PAGE>
portion of a Stock Option remains exercisable, the Committee, in its discretion,
may provide for an extension of the exercise period of up to one year after the
Optionee's death. After the death of the Optionee, his executors,
administrators, or any persons to whom the Stock Option may be transferred by
will or by the laws of descent and distribution shall have the right at any time
prior to the end of the exercise period described in the previous sentence to
exercise the Stock Option in whole or in part.
For the purpose of determining the employment relationship between the
Company and the Optionee, employment by any corporation in which the Company
owns, directly or indirectly, stock possessing more than fifty percent (50%) of
the total combined voting power of all classes of stock shall be considered
employment by the Company.
G. EFFECT OF LEAVES OF ABSENCE: For the purpose of this section, it
---------------------------
shall not be considered a termination of employment when an Optionee is placed
by the Corporation on military or sick leave or such other type of leave of
absence which is considered as continuing intact the employment relationship of
the Optionee. In case of such leave of absence, the employment relationship
shall be continued until the later of the date when such leave equals ninety
(90) days or the date when the Optionee's right to reemployment with the
Corporation shall no longer be guaranteed either by statute or contract.
ARTICLE VII
CHANGES IN CAPITAL STRUCTURE OF THE COMPANY
-------------------------------------------
In the event of a stock dividend, stock split or other subdivision,
consolidation, reorganization or change in the shares of common stock or capital
structure of the Company, the number of shares of common stock available for
options and subject to outstanding stock options and the option price per share
of outstanding stock options shall be appropriately adjusted.
The existence of outstanding Stock Options shall not affect, in any way,
the right or power of the Company or its stockholders to make or authorize any
or all adjustments, recapitalizations, reorganizations, or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or offsetting the stock or the rights thereof, or the dissolution
or liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
ARTICLE VIII
MERGER, CONSOLIDATION OR TENDER OFFER
-------------------------------------
A. If the Company shall be a party to a binding agreement to any merger,
consolidation or reorganization or sale of substantially all of the assets of
the Company, each outstanding Stock Option shall pertain and apply to the
securities and/or property which a share owner of the number of shares
7
<PAGE>
of common stock subject to the Stock Option would be entitled to receive
pursuant to such merger, consolidation or reorganization or sale of assets.
B. If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving corporation or if the
Company is liquidated or sells or otherwise disposes of substantially all of its
assets to another corporation while unexercised options remain outstanding under
the Plan:
(i) subject to the provisions of Subparagraph (iii) below, after the
effective date of such merger, consolidation or sale, as the
case may be, each holder of an outstanding Stock Option shall be
entitled, upon exercise of a vested Stock Option, to receive in
lieu of shares of stock, shares of such stock or other
securities as the holders of shares of stock receive pursuant to
the terms of the merger, consolidation or sale;
(ii) the Board of Directors may waive any limitation set forth in or
imposed pursuant to this Plan so that all Stock Options from and
after the date prior to the effective date of such merger,
consolidation, liquidation or sale, as the case may be,
specified by the Board of Directors, shall be vested and
exercisable in full; and
(iii) all outstanding Stock Options may be canceled by the Board of
Directors as of the effective date of any such merger,
consolidation, liquidation or sale provided that notice of such
cancellation shall be given to each holder of a stock option,
and each holder of a Stock Option shall have the right to
exercise any vested Stock Option in full (without regard to any
limitation set forth in or imposed pursuant to this Plan) during
a thirty (30) day period preceding the effective date of any
such merger, consolidation, liquidation, sale or acquisition.
C. Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class or securities convertible into shares of stock of
any class for cash or property or for labor or services either upon direct sale
or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustments by reason thereof
shall be made with respect to, the number, class or price of shares of stock
then subject to outstanding Stock Options.
ARTICLE IX
AMENDMENT OR TERMINATION OF PLAN
--------------------------------
A. The Board may amend, suspend or terminate the Plan or any portion
thereof at any time, but an amendment may not be made without shareholder
approval or approval by the regulatory bodies
8
<PAGE>
having jurisdiction over the Company's securities, if such approval is necessary
to comply with any applicable regulatory requirement.
B. No amendment, suspension or termination of this Plan shall, without
the Optionee's consent, alter or impair any of the rights or obligations under
any Stock Option theretofore granted to her or him under the Plan.
ARTICLE X
APPROVAL OF STOCK OPTIONS
-------------------------
If regulatory approval and/or shareholder approval of the Stock Options
granted hereunder is required by the prevailing policies of the regulatory
bodies having jurisdiction over the securities of the Company, then such Stock
Options shall be subject to the approval of the regulatory bodies having
jurisdiction over the securities of the Company and/or shareholder approval, as
the case may be.
ARTICLE XI
REQUIREMENTS OF LAW
-------------------
The Company shall not be required to sell or issue any shares under any
Stock Option if the issuance of such shares shall constitute or result in a
violation by the Optionee or the Company of any provisions of any law, statute
or regulation of any governmental authority. Specifically, in connection with
the Securities Act of 1933, upon exercise of any Stock Option, the Company shall
not be required to issue such shares unless the Committee has received evidence
satisfactory to it to the effect that the holder of such Stock Option will not
transfer such shares except pursuant to a registration statement in effect under
such Act or unless an opinion of counsel satisfactory to the Company has been
received by the Company to the effect that such registration is not required.
Any determination in this connection by the Committee shall be final, binding
and conclusive. The Company may, but shall in no event be obligated to register
any securities covered hereby pursuant to the Securities Act of 1933. The
Company shall not be obligated to take any other affirmative action in order to
cause the exercise of a Stock Option or the issuance of shares pursuant thereto
to comply with any law or regulation of any governmental authority.
ARTICLE XII
NO RIGHTS AS STOCKHOLDER
------------------------
No Optionee shall have rights as a stockholder with respect to shares
covered by this stock option until the date of issuance of a stock certificate
for such shares; and except as otherwise provided in Article VII hereof, no
adjustment for dividends or otherwise shall be made if the record date therefor
is prior to the date of issuance of such certificate.
9
<PAGE>
ARTICLE XIII
WRITTEN AGREEMENT
-----------------
Each Stock Option granted hereunder shall be embodied in a written Stock
Option Agreement which shall be subject to the terms and conditions described
herein and shall be signed by the Optionee and by the President or any Vice
President of the Company for and in the name and on behalf of the Company. Such
a Stock Option Agreement shall contain such other provisions as the Committee,
in its discretion shall deem advisable.
ARTICLE XIV
INDEMNIFICATION OF THE COMMITTEE AND THE BOARD OF DIRECTORS
-----------------------------------------------------------
In addition to such other rights of indemnifications as they may have as
members of the Board or the Committee, the Company shall indemnify each present
and future member of the Committee and the Board of Directors against, and each
member of the Committee and the Board of Directors shall be entitled without
further act on his part to indemnity from the Company for all expenses
(including the amount of judgments and the amount of approved settlements made
with a view to the curtailment of costs of litigation, other than amounts paid
to the Company itself) reasonably incurred by him in connection with or arising
out of any action, suit, or proceeding in which he may be involved by reason of
his being or having been a member of the Committee and the Board of Directors,
whether or not he continues to be such member of the Committee and the Board of
Directors at the time of incurring such expenses; provided, however, that such
indemnity shall not include an expenses incurred by any such member of the
Committee and the Board of Directors (i) in respect of matters as to which he
shall be finally adjudged in any such action, suit or proceeding to have been
guilty of gross negligence or willful misconduct in the performance of his duty
as such member of the Committee and the Board of Directors; or (ii) in respect
of any matter in which any settlement is effected to an amount in excess of the
amount approved by the Company on the advice of its legal counsel; and provided
further that no right of indemnification under the provisions set forth herein
shall be available to or enforceable by any such member of the Committee and the
Board of Directors unless within sixty (60) days after institution of any such
action, suit, or proceeding, he shall have offered the Company in writing the
opportunity to handle and defend same at its own expense. The foregoing right
of indemnification shall inure to the benefit of the heirs, executors, or
administrators of each such member of the Committee and the Board of Directors
and shall be in addition to all other rights to which such member of the
Committee and the Board of Directors may be entitled to as a matter of law,
contract or otherwise.
ARTICLE XV
MISCELLANEOUS PROVISIONS
------------------------
A. RIGHT TO CONTINUED EMPLOYMENT: No person shall have any claim or
-----------------------------
right to be granted a Stock Option under the Plan, and the grant of a Stock
Option under the Plan shall not be construed as giving an Optionee the right to
be retained in the employ of the Company.
10
<PAGE>
B. NONTRANSFERABILITY: Except by will or the laws of descent and
------------------
distribution, no right or interest of any stock option granted under the Plan
shall be assignable or transferable by the Optionee. In addition, such option
shall be exercised only by him, and no right or interest of any Optionee shall
be liable for, or subject to, any lien, obligation or liability of such
Optionee.
C. WITHHOLDING TAXES: The Company shall have the right to require a
-----------------
payment from an Optionee to cover applicable withholding for income and
employment taxes in the event of the exercise of a Stock Option. Upon the
exercise of a Stock Option requiring tax withholding, an Optionee may make a
written election to have shares of common stock withheld by the Company from the
shares otherwise to be received. The number of shares so withheld shall have an
aggregate Fair Market Value on the date of exercise sufficient to satisfy the
applicable withholding taxes. The acceptance of any such election by an
Optionee shall be at the sole discretion of the Committee.
D. PLAN EXPENSES: Any expenses of administering this Plan shall be borne
-------------
by the Company.
E. USE OF EXERCISE PROCEEDS: The payment received from Optionees from
------------------------
the exercise of Stock Options under the Plan shall be used for the general
corporate purposes of the Company.
F. CONSTRUCTION OF PLAN: The place of administration of the Plan shall
--------------------
be in the State of Michigan, and the validity, construction, interpretation,
administration and effect of the Plan and of its rules and regulations, and
rights relating to the Plan, shall be determined solely in accordance with the
laws of the State of Michigan.
G. FOREIGN NATIONALS: Without amending the Plan, grants may be made to
-----------------
employees of the Corporation who are foreign nationals or employed outside the
United States or both, on such terms and conditions, consistent with the Plan's
purpose, different from those specified in the Plan as may, in the judgment of
the Committee, be necessary or desirable to create equitable opportunities given
differences in tax laws in other countries.
11
<PAGE>
IN WITNESS WHEREOF, SYMPLEX COMMUNICATIONS CORPORATION, has caused this IPO
Stock Option Plan to be executed this 16/th/ day of April, 1999.
SYMPLEX COMMUNICATIONS CORPORATION
a Delaware corporation
/s/ Gary R. Brock
------------------------------------
By: Gary R. Brock
Its: President
ATTEST:
/s/ Thomas Radigan
- --------------------------------
Thomas Radigan, Secretary
12
<PAGE>
PROXY CARD
SYMPLEX COMMUNICATIONS CORPORATION
SOLICITED BY THE BOARD OF DIRECTORS FOR THE ANNUAL
MEETING OF STOCKHOLDERS TO BE HELD MAY 11, 1999
The undersigned hereby constitutes, appoints and authorizes Gary Brock or
Thomas Radigan the true and lawful attorney and Proxy of the undersigned with
full power of substitution and appointment, for and in the name, place and stead
of the undersigned to act for and vote as designated below, all of the
undersigned's shares of Common Stock and shares of Series A Convertible
Preferred Stock of Symplex Communications Corporation, a Delaware corporation,
at the Annual Meeting of Stockholders to be held on May 11, 1999 at 10:00 a.m.,
Eastern Daylight Time, at Weber's Inn, 3050 Jackson Road, Ann Arbor, Michigan
48103, and at any and all adjournments thereof, for the following purposes:
1. To elect five (5) directors to the Board of Directors of the Company:
A. To be elected by the holders of Series A Convertible Preferred
Stock of the Company:
[_] For the nominee listed below (except as marked to the contrary):
Surinder S. Chandok
B. To be elected by the holders of Common Stock and Series A
Convertible Preferred Stock (voting as a single class):
[_] For all nominees listed below (except as marked to the contrary):
Gary R. Brock, Thomas Radigan, Patricia Kalmbach, Thomas R. Mayer
(INSTRUCTION: TO WITHHOLD AUTHORITY TO VOTE FOR ANY INDIVIDUAL NOMINEE,
DRAW A LINE THROUGH OR OTHERWISE STRIKE OUT HIS OR HER NAME. IF AUTHORITY
TO VOTE FOR THE ELECTION OF ANY NOMINEE IS NOT WITHHELD, THE EXECUTION OF
THIS PROXY SHALL BE DEEMED TO GRANT SUCH AUTHORITY.)
2. To ratify the appointment of Ehrhardt, Keefe, Steiner & Hottman, LLP
as auditors for the Company for the fiscal year ending December 31,
1999:
[_] FOR [_] AGAINST [_] ABSTAIN
3. To amend and restate the Company's April 1997 Stock Option Plan:
[_] FOR [_] AGAINST [_] ABSTAIN
4. To transact such other business as may properly come before the
meeting, or any adjournment thereof:
[_] FOR [_] AGAINST [_] ABSTAIN
The undersigned hereby revokes any Proxies as to said shares heretofore
given by the undersigned, and ratifies and confirms all that said attorneys and
Proxies may lawfully do by virtue hereof.
<PAGE>
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY
THE UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED
FOR PROPOSALS 1, 2 AND 3. THIS PROXY CONFERS DISCRETIONARY AUTHORITY IN RESPECT
TO MATTERS NOT KNOWN OR DETERMINED AT THE TIME OF THE MAILING OF THE NOTICE OF
THE ANNUAL MEETING OF STOCKHOLDERS TO THE UNDERSIGNED.
The undersigned hereby acknowledges receipt of the Notice of Annual Meeting
of Stockholders and Proxy Statement furnished herewith.
Dated: ________________, 1999
______________________________
______________________________
Signature(s) of Stockholder(s)
Signature(s) should agree with the name(s) shown hereon. Executors,
administrators, trustees, guardians and attorneys should indicate when signing.
Attorneys should submit powers of attorney.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF SYMPLEX
COMMUNICATIONS CORPORATION. PLEASE SIGN AND RETURN THIS PROXY TO THE COMPANY.
THE GIVING OF A PROXY WILL NOT AFFECT YOUR RIGHT TO VOTE IN PERSON IF YOU ATTEND
THE MEETING.
