U.S. SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 10-QSB
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For quarterly period ended December 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to __________
Commission File Number: 0-26073
INVESTAMERICA, INC.
(Name of Small Business Issuer in its Charter)
Nevada 87-0400797
------------------------------ -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1330 Portside Way
Salt Lake City, Utah 84123
(Address of principal executive offices)
Registrant's telephone numbers: 801-808-6096 (Telephone)
485-658-4833 (Fax)
Indicate by checkmark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days
Yes [ ] No [ X ]
Indicate the number of shares outstanding for each of the issuer's
classes of Common Stock as of the last practical date:
Common Stock, $0.001 par value per share, 50,000,000 shares authorized,
30,522,703 issued and outstanding as of December 31, 1999. Preferred
Non-Voting Stock, $0.001 par value per share, 5,000,000 shares
authorized, none issued nor outstanding as of December 31, 1999.
Transactional Small Business Disclosure Format
Yes [ ] No [ X ]
1
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INVESTAMERICA, INC.
TABLE OF CONTENTS
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements................................. 2
Balance Sheet (unaudited)............................ 3
Statements of Operations (unaudited)................. 4
Statements of Cash Flows (unaudited)................. 5
Notes to Financial Statements........................ 6-8
Item 2. Management's Discussion and Analysis of Plan
of Operation........................................ 9
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.................................... 11
Item 2. Changes in Securities and Use of Proceeds............ 11
Item 3. Defaults upon Senior Securities...................... 11
Item 4. Submission of Matters to a Vote
of Security Holders................................. 11
Item 5. Other Information..................................... 11
Item 6. Exhibits and Reports on Form 8-K...................... 11
Signatures...................................................... 12
PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements
(Financial Statements Commence on Following Page)
2
<PAGE>
INVESTAMERICA,INC.
BALANCE SHEET
as at December 31, 1999
as at September 30, 1999
<TABLE>
<CAPTION>
BALANCE SHEET
ASSETS
Audited
Unaudited Year Ended
Dec. 31, 1999 Dec 31, 1998 Sept 30, 1999
------------- ------------ -------------
<S> <C> <C> <C>
CURRENT ASSETS:
Cash $ 512,688 $ 0
TOTAL ASSETS $ 512,688 $ 0
=========================================
LIABILITIES AND STOCKHOLDERS'
EQUITY (Deficiency)
CURRENT LIABILITIES
Accounts Payable and
Accrued Expenses $ - 674,954 801,036
Judgement Payable 7,372,894
Notes Payable $ 319,956
------------------------------------------
TOTAL CURRENT LIABILITIES $ - $ 994,910 $8,182,930
------------------------------------------
STOCKHOLDERS' EQUITY:
Preferred Shares, par value $.001
per share
Authorized Shares 5,000,000
Outstanding Shares None
Common Shares, par value $0.001 30,493 9,791 9,791
Per share
Authorized 50,000,000
Outstanding Shares
9,790,443 - 1998
30,522,703 - 1999
Additional Paid - In Capital 9,854,530 1,989,840 1,989,840
Accumulated Deficit (9,372,355) (2,994,541) (10,182,561)
------------------------------------------
Total Stockholders
(Deficiency) (512,688) (994,910) (8,182,930)
------------------------------------------
Total Liabilities and
Stockholders (Deficiency) $ 512,688 $ - $ -
==========================================
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
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INVESTAMERICA,INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
STATEMENTS OF INCOME
Unaudited Audited
For the Quarter For Fiscal Year
Ended December 31 Ended Sept, 1999
1999 1998
<S> <C> <C> <C>
Revenue $ - $ - $ -
Operating Expenses - 60,193 $ 256,865
---------------------------------------------
Loss before other items (60,193) (256,865)
Judgment Against Company - Net
Forgiveness of Indebtedness 810,206 -
---------------------------------------------
Income Before Provision for
Federal Income Taxes 810,206 -
Provision for Federal
Income Taxes 275,687 -
Tax Benefit from Net Operating
Loss Carry Forward (275,687) -
Judgement Against Company 6,991,348
--------------------------------------------
Net Income (Loss) $810,206 $ (60,193) $ (7,248,213)
============================================
Weighted average
number of common
shares outstanding 20,091,573 9,790,443 9,790,443
-------------------------------------------
Net loss per common share $ .04 $ (0.01) $ (0.74)
-------------------------------------------
</TABLE>
The accompanying notes are an integral part of these financial statements
<PAGE>
4
INVESTAMERICA,INC.
STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
STATEMENT OF CASH FLOWS
Unaudited Audited
For the Quarter For Fiscal Year
Ended December, 31 Ended Sept, 1999
1999 1998
- ----------------------------------------------------------------------------
<S> <C> <C> <C>
Cash Flow From (TO)
Operating Activities
Net Income (Loss) $ 810,206 $ (60,193) $(7,248,213)
Adjustment to reconcile
net loss to net cash
provided by operating
activities: 9,399
(Decrease) Increase in
Judgement Payable (7,372,894) 7,372,894
(Decrease) Increase in notes (810,066) 7,805 (312,181)
payable
(Decrease) Increase in accounts
payable and accrued expenses) - 52,388 187,500
-------------------------------------------
Net cash used by operating
Activities: (7,372,754) - -
-------------------------------------------
Cash Flows from Financing
Activities:
Proceeds from issuance of
Common stock 7,885,422 - -
--------------------------------------------
Net cash flow from financing
Activities 7,885,422 -
--------------------------------------------
Increase (Decrease) in Cash 512,668 0 0
Cash at Beginning of Year 0 0 0
-------------------------------------------
Cash at End of Year $ 512,668 $ 0 0
===========================================
</TABLE>
The accompanying notes are an integral part of these financial statements.
5
InvestAmerica, Inc. and Subsidiary
- ---------------------------------------------------------
Notes to Financial Statements
- ---------------------------------------------------------
December 31, 1999 and 1998
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization - Balboa Investments, Inc. (Parent) was organized under the
Laws of the State of Utah on October 20, 1983. The Company changed its
Domicile from the State of Utah to the State of Nevada on December 18, 1986.
This change in domicile was accomplished by merging the Company into a Nevada
corporation created solely for this purpose. In connection with the
change in domicile, the Company changed its corporate name from Technology
Research Inc., to Balboa Investments, Inc. effective December 18, 1986. The
Company has not commenced planned principal operations and is considered a
development stage company as defined in SFAS No. 7.
On December 29, 1992, Balboa Investments, Inc. changed its name to
Progressive Polymerics International, Inc., (Parent) and acquired all of
the issued and outstanding common stock of Progressive Polymerics, Inc.,
(Subsidiary).
In April of 1997, the Board of Directors of the Company approved a Plan
Of Reorganization, including a partial liquidation of the Company's current
assets to a Liquidating Trust in order to effectuate the partial
liquidation portion of the Plan. The Liquidating Trust received a transfer
of all the assets of the Company subject to the assumption by the Trust of
all the Company's liabilities and those being incurred in the Reorganization.
The Trust exists solely for the purpose of liquidating the Trust Estate and
distributing the proceeds of liquidation to the Shareholders. The Trust
served as a temporary vehicle for the maintenance and operation of the
Trust Estate, with a view to its liquidation and not the conduct of a
continuing business.
On April 17, 1997, the Company reverse-split its Common Stock twenty
(20) old shares for one (1) new share.
On April 17, 1997, the Company acquired 100% of the issued and
outstanding capital stock of InvestAmerica, Inc., thereby making it a
wholly-owned subsidiary.
On May 14, 1997, the stockholders of the Company approved the merger of
InvestAmerica, Inc., a wholly-owned subsidiary, with and into the
Company, the survivor of the merger. A change of the Company's name to
InvestAmerica, Inc., was also approved.
Principles of Consolidation - The consolidated financial statements
Include the accounts of the Company and its wholly-owned subsidiary. All
Significant intercompany transactions between the parent and the
subsidiary have been eliminated in consolidation.
Cash and Cash Equivalents - For purposes of the statements of cash flow,
cash and cash equivalents are defined as demand deposits at banks.
6
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InvestAmerica, Inc. and Subsidiary
- ---------------------------------------------------------
Notes to Financial Statements
- ---------------------------------------------------------
December 31, 1999 and 1998
NOTE 2 - NOTES PAYABLE
Demand notes payable were issued for services and expenses. These
Notes carry an interest rate of 10% per annum. Accrued interest has
Been added to principal balance on notes annually. The Notes were
not paid when due, however, they were satisfied by the Company under a
settlement agreement with the note holder. See "Note 5--Settlement."
NOTE 3 - INCOME TAXES
Income tax expense, if applicable, includes state taxes currently payable.
There are no deferred taxes or benefits arising from timing differences
between financial statement and tax a basis income. For the period
presented the Company was able to utilize net operating loss carry overs to
reduce Federal taxes.
NOTE 4 - STOCK OPTIONS
The Company granted stock options to purchase 6,150,000 shares of Common
Stock to Officers, Directors and key personnel. The options were granted
On November 24, 1999, and have a five (5) year term, vest monthly over
twenty-five (25) months, and have at an exercise price of $1.20 per share.
NOTE 5 - SETTLEMENT
The Company and Mr. Daniel Tepper, a shareholder and former consultant of the
Company, entered into a settlement agreement pursuant to which the Company
issued 4,740,000 shares of the Company's common stock to Mr. Tepper in
exchange for the
satisfaction of certain judgments totaling $7,372,894 obtained by Mr.
Tepper against the Company. The judgments related to claims which arose
prior to current management obtaining control of the Company, including
claims for money due under notes payable and for services rendered to this
Company. The settlement agreement included mutual releases.
7
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InvestAmerica, Inc. and Subsidiary
- ---------------------------------------------------------
Notes to Financial Statements
- ---------------------------------------------------------
December 31, 1999 and 1998
NOTE 6 - ACQUISITIONS AND INVESTMENTS
During the Quarter, the Company signed an Agreement to purchase Oakbay
Trading Limited, a BVI corporation ("Oakbay"),which is the sole stockholder
of Optica Communications, Inc. a British Columbia corporation, ("Optica
Canada") and Optica Communications, Inc., a Nevada corporation ("Optica USA").
Optica Canada and Optica USA are start-up companies that are endeavoring to
become a leading supplier of managed dark fiber and innovative band-with
services on a global basis. Under the terms of the Agreement, Oakbay will
become a wholly-owned subsidiary of the Company and the current stockholders of
Oakbay Limited will acquire control of the Company through the issuance of
Preferred Stock that is convertible into common stock of the Company.
The Company has entered into an agreement to invest $5,000,000 for 833,333
Preferred shares of Omnigon International, Inc., ("Omnigon"). Omnigon, a
private company, is constructing an advanced global network to offer
proprietary value added communications services.
The Company has signed a letter of intent to acquire through a newly formed
wholly-owned subsidiary all of the issued and outstanding shares of Zed Data
Systems Corp., a British Columbia corporation ("Zed"), for a cash payment of
$5,000,000 and the issue of shares of the subsidiary exchangeable for
15,000,000 common shares of the Company. Douglas Smith, President of the
Company, is the sole owner and President of Zed. Zed is a value added
reseller of data communications equipment. It sells products and services
for equipment supplied by several manufacturers, including Cisco Systems
and Fore Systems. During the quarter ended November 30, 1999, Zed had sales
of approximately $3,750,000 and income from operations before taxes of
approximately $225,000.
NOTE 7 - SHAREHOLDER'S EQUITY
<TABLE>
<CAPTION>
SHAREHOLDER'S EQUITY
Common Stock Additional
------------ paid-in
Accumulated
Shares Amount Capital Deficit
------ ------ ---------- -------
<S> <C> <C> <C> <C>
Balances,
September 30, 1998 9,790,443 $ 9,791 $1,989,840 $ (2,934,348)
Net(Loss) For the Quarter
Ended Dec. 31, 1998 (60,193)
-------------------------------------------------
9,790,443 $ 9,791 $1,989,840 $ (2,994,541)
=================================================
Balances,
September 30, 1999 9,790,443 $ 9,791 $1,989,840 $(10,182,561)
(A) Sale and Issuance of
Common Stock in a Private
Placement 15,992,260 15,962 496,566 -
Stock Issued in Lieu of Cash
Payment on Judgement
Against the Company 4,740,000 4,740 7,368,154 -
Net Income For the Quarter
Ended Dec 31, 1999 800,637
-------------------------------------------------
Balances, Dec 31, 1999 30,522,703 $30,523 $9,854,530 $ (9,372,355)
=================================================
</TABLE>
(A) During the Quarter, the Company sold and issued 15,992,260 shares for
$512,528 (avg. $.032 per share)
NOTE 8 - SUBSEQUENT EVENT
In order to further capitalize the Company, a Private Placement stock
offering was made, subsequent to December 31, 1999, in reliance upon an
exemption from registration requirements, pursuant to Section 4(2) of the
Securities Act of 1933, as amended and Regulation D of the Act. The Company
raised approximately three million ($3,000,000) dollars through this Private
Placement from approximately four (4) individuals. The terms of this Private
Placement was as follows: Approximately, six hundred twenty-five thousand
(625,000) shares of common stock were issued at a twenty percent discount to
the company's stock price of $6.00 per share, i.e., $4.80 per share with one
warrant per share issued. These warrants have a one (1) year term and have an
exercise price of $3.00 per share. Additionally, to further capitalize
the Company, the Company borrowed the sum of two million ($2,000,000) dollars
from private sources (one of whom is an affiliate of the Company), with the
interest payable at twelve (12) percent per year. The Note has a five year
term, and is payable in five equal annual installments.
In February, 2000, Optica entered into employment agreements with three (3)
individuals under which, among other things, each individual has been granted
an option to acquire one million (1,000,000) shares of the Company's common
stock and will be issued one hundred thousand (100,000) shares of the Company's
common stock. The options have a five year term, an exercise price of $5.25
per share, and vest in monthly installments over two years.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF PLAN OF OPERATIONS
InvestAmerica, Inc. (the "Company") was originally incorporated on October
20, 1983 as Balboa Investments, Inc. under the laws of the State of Utah to
engage in any lawful corporate activity, including, but not limited to,
selected mergers and acquisitions. After a number of name changes
as described in " Business Development, Organization and Acquisition
Activities," on or about May 14, 1997, the Company changed its name to
InvestAmerica, Inc.
The Company has been in the developmental stage since inception and has
no principal operations to date. Other than issuing shares to its
shareholders, the Company never commenced any operational activities.
As such, the Company's sole purpose during the past six months was to
locate a merger or acquisition opportunity with a private entity. The Board
of Directors of the Company has elected to commence implementation of the
Company's principal business purpose described below under "Item 2 - Plan
of Operation."
The Company has no operations and in accordance with SFAS #7, is
considered a development stage company.
Going Concern - The Company experienced operating losses for the period
ended December 31, 1999. The financial statements have been prepared assuming
the Company will continue to operate as a going concern which contemplates
the realization of assets and the settlement of liabilities in the normal
course of business. No adjustment has been made to the recorded amount of
assets or the recorded amount or classification of liabilities which would be
required if the Company were unable to continue its operations.
Unclassified Balance Sheet - In accordance with the provisions of SFAS
No. 53, the Company has elected to present an unclassified balance sheet.
Loss Per Share - The Company adopted the provisions of Statement
Of Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share"
that established standards for the computation, presentation and disclosure
of earnings per share ("EPS"), replacing the presentation of Primary EPS
with a presentation of Basic EPS. It also requires dual presentation of Basic
EPS and Diluted EPS on the face of the income statement for entities
With complex capital structures. The Company did not present Diluted EPS
since it has a simple capital structure.
During the quarter, the Company signed an Agreement to purchase Oakbay Trading
Limited, a BVI corporation ("Oakbay"),which is the sole stockholder of Optica
Communications, Inc. a British Columbia corporation ("Optica Canada"), and
Optica Communications, Inc., a Nevada corporation ("Optica USA"). Optica
Canada and Optica USA are start-up companies that are endeavoring to become a
leading supplier of managed dark fiber and innovative band-with services on a
global basis. Under the terms of the Agreement, Oakbay will become a wholly-
owned subsidiary of the Company and the current stockholders of Oakbay Limited
will acquire control of the Company through the issuance of Preferred Stock,
that is convertible into common stock of the Company.
Results of Operations
As of December 31, 1999, the Company has yet to generate any revenues. In
addition, the Company does not expect to generate any material revenues over
the next twelve (12) months, unless it consummates the acquisitions described
under "Plan of Operation" below. Due to a Forgiveness of Indebtedness, the
Company showed net income for the Quarter of $810,206. This represented
a net income of $0.04 per common share.
9
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Plan of Operation
On November 22, 1999 the Company signed an Agreement with Oakbay Trading
Limited, a BVI corporation ("Oakbay"), which is the sole stockholder of
Optica Communications, Inc., a British Columbia corporation ("Optica Canada")
and Optica Communications, Inc., a Nevada corporation ("Optica USA"). The
term "Optica" as used herein shall mean collectively Oakbay, Optica
Canada and Optica USA. Optica is endeavoring to become a leading supplier
of managed dark fiber and innovative band-with servies on a global basis.
The Company has entered into an agreement to invest $5,000,000 for 833,333
Preferred shares of Omnigon International, Inc., ("Omnigon"). Omnigon, a
private company, is constructing an advanced global network to offer
proprietary value added communications services.
The Company has signed a letter of intent to acquire through a newly formed
wholly-owned subsidiary all of the issued and outstanding shares of Zed Data
Systems Corp., a British Columbia corporation ("Zed"), for a cash payment of
$5,000,000 and the issue of shares of the subsidiary exchangeable for
15,000,000 common shares of the Company. Douglas Smith, President of the
Company, is the sole owner and President of Zed. Zed is a value added
reseller of data communications equipment. It sells products and services
for equipment supplied by several manufacturers, including Cisco Systems
and Fore Systems. During the quarter ended November 30, 1999, Zed had sales
of approximately $3,750,000 and income from operations before taxes of
approximately $225,000.
In order to further capitalize the Company, a Private Placement stock
offering was made, subsequent to December 31, 1999, in reliance upon an
exemption from registration requirements, pursuant to Section 4(2) of the
Securities Act of 1933, as amended and Regulation D of the Act. The Company
raised approximately three million ($3,000,000) dollars through this Private
Placement from approximately four (4) individuals. The terms of this Private
Placement was as follows: Approximately, six hundred twenty-five thousand
(625,000) shares of common stock were issued at a twenty percent discount to
the company's stock price of $6.00 per share, i.e., $4.80 per share with one
warrant per share issued. These warrants have a one (1) year term and have an
exercise price of $3.00 per share. Additionally, to further capitalize
the Company, the Company borrowed the sum of two million ($2,000,000) dollars
from private sources (one of whom is an affiliate of the Company), with the
interest payable at twelve (12) percent per year. The Company has five (5)
years to repay this Note.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING INFORMATION.
This Report contains forward-looking statements, which are generally
identified by words such as "may", "should", "seeks", "believes",
"expects", "intends", "estimates", "projects", "strategy" and similar
expressions. Those statements may include statements regarding
the intent, belief, expectation, strategies or projections of the
registrant and its management at the time. Forward-looking statements are
subject to a number of known and unknown risks and uncertainties that
could cause actual results to differ materially from those projected,
expressed or implied in the forward-looking statements. These risks and
uncertainties, many of which are not within the registrant's control,
include, but are not limited to, the uncertainty of potential manufacturing
difficulties, the dependence on key personnel, the possible impact of
competitive products and pricing, the registrant's continued ability
to finance its operations, general economic conditions and the achievement
and maintenance of profitable operations and positive cash flow.
We caution readers that these forward-looking statements speak only as of
the date hereof. We hereby expressly disclaim any obligation or undertaking
to release publicly any updates or revisions to any such statements to
reflect any changes in our expectations or any change in events, conditions or
circumstances on which such statement is based.
10
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PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings
See "Note 5--Settlement."
ITEM 2. Changes in Securities and Use of Proceeds
None.
ITEM 3. Defaults upon Senior Securities
None.
ITEM 4. Submission of Matters to a Vote of Security Holders
During the quarter ended December 31, 1999, no matters were submitted to the
Company's security holders.
ITEM 5. Other Information
See Exhibit 10.1, InvestAmerica, Inc., 1999 Stock Option Plan.
11
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
InvestAmerica, Inc.
/s/ Douglas E. Smith
- -----------------------
Douglas E. Smith
President and Chairman
Date: February 15, 2000
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.
InvestAmerica, Inc.
/s/ Brian A. Kitts
- ------------------------
Brian A. Kitts, Secretary
Date: February 15, 2000
12
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EXHIBIT 10.1 - 1999 STOCK OPTION PLAN
INVESTAMERICA, INC.
1999 STOCK OPTION PLAN
1. PURPOSE
The purpose of this Stock Option Plan (the "Plan") is to advance the
interests of InvestAmerica, Inc. (the "Company") and to encourage stock
ownership by participants. The Plan is intended to attract, motivate
and retain (1) employees of the Company and its affiliates, (2)
consultants who provide significant services to the Company and its
affiliates, and (3) directors of the Company who are not employees of
the Company or any of its affiliates.
2. SHARES SUBJECT TO THE PLAN
Subject to adjustment as provided in Article 7, the Company is
authorized to issue options ("Options") to purchase up to Twenty
Million (20,000,000) shares of its common stock ("Shares"). Any
unpurchased Shares that are subject to an Option that terminates for
any reason other than exercise shall, unless this Plan has been
terminated, become available for future grant under this Plan. The
Company shall at all times reserve for issuance pursuant to this Plan a
number of its authorized but unissued Shares equal to the number of
Shares issuable under this Plan. Exercise of an Option shall decrease
the number of Shares available for grant under this Plan.
3. TERM OF PLAN
3.1. TERM.
This Plan shall become effective upon its adoption by the Board of
Directors of the Company (the "Board"). Unless sooner terminated under
Article 6 or 7, this Plan shall terminate upon the earlier of (a) the
tenth anniversary of its adoption by the Board or approval by the
shareholders, whichever is earlier, or (b) the date on which all Shares
available for issuance under this Plan have been issued. Any Option
outstanding under this Plan at the time of its termination shall remain
in effect in accordance with its terms and conditions and those of this
Plan.
3.2. SHAREHOLDER APPROVAL.
Within 12 months after the date of such adoption, this Plan shall be
approved by the shareholders of the Company in the degree and manner
required under applicable state and federal law. No Option shall
become exercisable unless and, until such shareholder approval has been
obtained. Any option exercised before the share-holders approve the
Plan must be rescinded if the shareholders do not approve the Plan
within 12 months before or after the Board adopts the Plan. Shares
issued pursuant to any such exercise shall not be counted in
determining whether such approval is obtained.
2
<PAGE>
4. PARTICIPANTS
4.1. ELIGIBILITY.
The following persons shall be eligible to receive Options under this
Plan:
(a) any employee (an "Employee") of the Company or of any present or
future parent or subsidiary corporation of the Company (an
"Affiliate") as defined in Sections 424(e) and (f) of the
Internal Revenue Code of 1986, as amended (the "Code"),
respectively;
(b) any person who is engaged by the Company or an Affiliate to
render bonafide, consulting or advisory services (other than in
connection with the offer or sale of securities in a capital
raising transaction) and who is compensated for such services,
but who is not an Employee (a "Consultant"); and
(c) any director of the Company or an Affiliate who is not an
Employee, whether compensated for such services or not (an
"Outside Director").
4.2 INCENTIVE OPTIONS; NONQUALIFIED OPTIONS.
Only Employees are eligible to receive Options that are intended to be
incentive options ("Incentive Options") within the meaning of Section
422 of the Code. Employees, Consultants, and Outside Directors are
eligible to receive Options that are not intended to be Incentive
Options ("Nonqualified Options").
4.3 PARTICIPANTS TO BE SELECTED BY BOARD.
The Board shall have the authority in its sole discretion to select the
Employees, Consultants and Outside Directors to whom Options may from
time to time be granted under this Plan ("Participants").
4.4 LEGAL REPRESENTATIVES.
As used in this Plan, the term "Participant" includes any person who
acquires the legal right to exercise a Participant's Options by reason
of the death or incompetence of the Participant.
5. STOCK OPTIONS
5.1. OPTION AGREEMENT.
Grants of Options subject to this Plan shall be evidenced by a written
option agreement ("Option Agreement"), that shall specify the date of
grant of the Option, the number of Shares to which the Option pertains,
the exercise price of the Option, the expiration date of the Option,
any conditions to exercise of the Option and such
3
<PAGE>
other terms and conditions as the Board in its discretion deems
appropriate. The Option Agreement shall also specify whether the
Option is intended to be an Incentive Option or a Nonqualified Option.
If only a potion of an Option is intended to qualify as an Incentive
Option, the Option Agreement shall so state and the Option Agreement
shall not require that the number of Incentive Options exercised reduce
the size of the Nonqualified Option portion, or vice-versa. Each
Option Agreement shall be signed by the Participant and an officer of
the Company designated by the Board.
5.2. NO EMPLOYMENT AGREEMENT.
No Option Agreement, nor anything contained in this Plan, shall alter a
Participant's status as an "at will" employee of the Company, confer
upon any Participant any right to continue in the employ of the
Company, or limit the right of the Company to terminate a Participant's
employment at any time and for any or no reason.
5.3. VESTING RATE.
Options granted under this Plan shall vest (i.e., become exercisable)
at such rate or rates as the Board may determine. Nothing in this Plan
requires Options to be exercisable immediately upon grant.
5.4. EXERCISE PRICE.
5.4.1. Discretion of Board to Determine Price.
Subject to the provisions of this Article 5.4., the exercise
price for each Option shall be determined by the Board in its
sole discretion.
5.4.2. Incentive Options.
The exercise price of each Incentive Option shall not be less
than 85% of the fair market value of the Shares, as the Board may
determine, on the date the Option is granted.
5.4.3. Ten Percent Shareholders.
The exercise price of each Incentive Option granted to a
Participant who, at the time the Option is granted, owns, as that
term is defined in Section 424(d) of the Code, stock possessing
more than 10% of the combined voting power of all stock of the
Company or of its Affiliates, shall be at least 110% of the fair
market value of the Shares, as the Board may determine, on the
date the Option is granted.
4
<PAGE>
5.4.4.Determination of Fair Market Value.
The Board's determination of fair market value shall be final and
conclusive for the purposes of this Plan. If the Company's
common stock is publicly traded, the fair market value of the
Shares as of any date shall be determined as follows:
(a) If such stock is listed on a stock exchange or national
market system, fair market value shall be the closing sales
price of a share of the Company's common stock (or the
closing bid price if no sales were reported), as quoted on
such exchange or system for the last market trading day
before the time of determination; or
(b) If such stock is quoted on the NASDAQ System (but not on
its National Market System) or regularly quoted by a
recognized securities dealer but selling prices are not
reported, fair market value shall be the mean between the
high and low asked prices for such stock for the last
market trading day before the time of determination.
(c) If the Company's common stock is not publicly traded,
the fair market value of the Shares as of any date shall be
determined by reference to the price of reasonably
comparable publicly traded corporations, if any, in the
same industry as the Company, subject to appropriate
adjust-ments for the dissimilarities between the
corporations being compared. If the Company's common stock
is not publicly traded and there are no publicly traded
corporations that are suitable as a basis for comparison,
predominant weight shall be given to the earnings history,
book value, and prospects of the Company in light of market
conditions generally. In determining fair market value, the
Board may, but is not obligated to, obtain and rely upon an
independent appraisal.
5.5. LIMITATION ON INCENTIVE OPTION GRANTS.
The aggregate fair market value (determined at the time the Option is
granted) of the Shares for which one or more Incentive Options granted
under this Plan (or any other incentive stock option plan of the
Company or any Affiliate) become exercisable by a Participant for the
first time during any calendar year shall not exceed $100,000 or such
other amount as may be permitted under subsequent amendments to Section
422 of the Code. To the extent that any one or more Incentive Options
violate this limitation, such excess Options shall be treated as
Nonqualified Options. For purposes of this Article 5.5, Incentive
Options shall be taken into account in the order in which they were
granted, and the fair market value of the Shares shall be determined as
of the time the Option with respect to such Shares was granted.
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5.6. PAYMENT OF EXERCISE PRICE; TAXES.
5.6.1. Form of Payment.
The Participant shall pay the per Share exercise price in full at
the time of exercise by bank cashier's check or, with, the
approval of the Board, a promissory note or shares of common
stock of the Company, or any combination of the foregoing such
that the aggregate fair market value of such stock (as determined
by the Board) plus cash and notes equals the total exercise
price.
5.6.2. Promissory Notes.
The Company may require a promissory note to be with full
recourse, to be adequately secured by collateral other than the
Shares purchased, and to bear interest at market or above market
rates (if such rates are not usurious). It is the Company's
policy not to accept promissory notes except in unusual
circumstances. Inability to pay cash is not necessarily an
unusual circumstance.
5.6.3. Withholding Taxes.
The Participant shall pay by bank cashier's check or other form
of payment acceptable to the Company, the amount of any state or
federal income or other tax that the Company is required to pay
or withhold upon exercise of an Option unless the incidence of
such tax cannot lawfully be placed on the Participant.
5.7. CONDITIONS TO EXERCISE.
No Option may be exercised if the transfer of Shares upon such exercise
or the method of payment of consideration for such Shares would
constitute a violation of any applicable securities or other law or
regulation. Unless the Shares are registered under the Securities Act
of 1933 and any applicable state securities law, as a condition to
exercising an Option, the Participant shall provide the Company with
such written assurances as the Company deems appropriate for the Option
grant and exercise to qualify for exemption from registration. Such
assurances may include, among others, a representation that the
Participant intends to hold the Shares for investment and not for
distribution to the public. The Company has no obligation to register
the Options or Shares under the Securities Act of 1933 or any other
law.
5.8. METHOD OF EXERCISE.
To exercise an Option for all or part of the Shares, the Participant
must do the following:
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(a) provide the Chief Financial Officer of the Company with a written
notice of exercise that specifies the number of Shares for which
the Option is being exercised;
(b) pay the total exercise price for that number of Shares and any
withholding taxes as provided in Article 5.6.3;
(c) provide the Company with any written representations as required
under Article 5.7; and
(d) furnish to the Company appropriate documentation that, the
person(s) exercising the Option, if other than the Participant
named in the Option Agreement, have the right to do so.
5.9. DURATION.
5.9.1. Term of Exercisability.
Except as provided in this Article 5.9 or in any Option
Agreement, Options shall be exercisable only for so long as the
Participant has the same relationship with the Company as an
Employee, Consultant or Outside Director as the Participant had
when the Option was granted, but in any event not longer than 5
years after the date the Option is granted.
5.9.2. Effect of Change of Relationship.
If a Participant's employment or other relationship with the
Company terminates but the Participant continues to be eligible
under Section 4.1 of this Plan, the Board may, in its sole
discretion and at any time, elect to permit one or more of the
Participant's Options to continue as if the Participant's
employment or other relationship had not terminated, except that
any such continued Option shall be a Nonqualified Stock Option if
the Participant is no longer an Employee.
5.9.3. Exercise Following Termination of Employment.
Upon termination of a Participant's employment or other
relationship with the Company by reason of the Participant's
death or disability (within the meaning of Section 22(e)(3) of
the Code), the Participant or the Participant's estate or any
person who acquires the right to exercise the option by bequest
or inheritance, may exercise the Option at any time within one
year after such termination, but only to the extent that the
Option is exercisable for vested Shares on the date of such
termination and does not otherwise expire. Upon termination of a
Participant's employment or other relationship with the Company
by reason of the Participant's disability other than as defined
in Section 22(e)(3) of the Code, the Participant may exercise the
Option at any time within one year after termination, but only to
the extent that the Option is exercisable for vested Shares on
the date of such termination and does not otherwise expire. Upon
termination of a Participant's employment or other relationship
with the Company for any other reason, the Board in its sole
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discretion shall determine the length of time, if any, within
which the Participant may exercise any Option for vested Shares
existing on the date of such termination.
5.10. RESTRICTIONS ON TRANSFER.
5.10.1. Board May Impose Restrictions.
The Board may impose such restrictions on any Shares acquired
pursuant to the exercise of an Option as it may deem advisable,
including, but not limited to, restrictions related to applicable
federal securities laws, the requirements of any national
securities exchange or system upon which the Shares are then
listed or traded, or any blue sky or state securities laws.
5.10.2 Notation of Restrictions.
If transfer of the Shares is restricted under any applicable law,
each certificate representing such Shares shall bear a legend in
form and substance satisfactory to the Company reflecting that
such Shares are so restricted. The Company may also place a
notation on any certificate representing Shares purchased upon
exercise of an Incentive Option. To enforce any restrictions on
transfer of the Shares, the Company may set forth in its stock
transfer records a "stop transfer" order with respect to the
Shares. The Company shall not be liable for any refusal to
transfer the Shares on the books of the Company unless the
transfer complies with all terms and conditions of any
restrictions imposed on such Shares.
5.10.3. Market Standoff Requirement.
Each Participant shall, upon the request of the Company or the
underwriters managing any public offering of the Company's
securities, refrain from selling or disposing of any Shares
without the prior written consent of the Company and such
underwriters, as the case may be, for such period of time (not to
exceed 180 days) after the effective date of such registration
requested by such managing underwriters and subject to all
restrictions as the Company or the underwriters may specify. The
Participant and the Company shall cause any certificates
representing the Shares to bear a legend in substantially the
following form:
SALE, TRANSFER, OR HYPOTHECATION OF THE SHARES
REPRESENTED BY THIS CERTIFICATE IS PROHIBITED FOR A
PERIOD OF TIME FOLLOWING A PUBLIC OFFERING OF THE
STOCK OF THE CORPORATION PURSUANT TO THE 1999 STOCK
OPTION PLAN OF THE CORPORATION.
The legend shall be removed upon any resale of the Shares to the
public in an offering registered with the SEC or pursuant to Rule
144.
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5.11. NOTICE OF DISQUALIFYING DISPOSITION OF INCENTIVE OPTIONS.
Participants shall give the Company written notice of any disposition
of any Share acquired pursuant to exercise of an Incentive Option if
such disposition occurs before the second anniversary of the date the
Option was granted or the first anniversary of the date of purchase of
the Share disposed of, whichever occurs later. A disposition includes
any sale, exchange, gift, or other transfer or attempted transfer of
legal title. The notice shall include the Participant's name, the
number of Shares disposed of and the dates and prices the Shares were
both acquired and disposed of.
5.12. TRANSFERABILITY OF OPTION.
Options shall be transferable only by will or the laws of descent and
distribution. Only the Participant may exercise the Options during the
Participant's lifetime, except as provided in Article 5.9.3. Any other
purported transfer or assignment of any Option shall be void and of no
effect, and shall give the Company the right to terminate such Option
as of the date of such purported transfer or assignment.
5.13. ADJUSTMENTS TO OPTION RIGHTS.
Subject to the general limitations of this Plan, the Board may adjust
the exercise price, term, or any other provision of an Option by
canceling and regranting the Option or by amending or substituting the
Option. Options that have been so adjusted may have higher or lower
exercise prices, have longer or shorter terms, or be subject to
different rights and restrictions than prior Options. The Board may
also adjust the number of Options granted to a Participant by canceling
outstanding Options or granting additional Options. Except for
adjustments necessary to ensure compliance with any applicable state or
federal law, or adjustments deemed appropriate to reflect a change in a
Participant's duties, employment status, or other relationship with the
Company, no such adjustment shall impair a Participant's rights under
any Option Agreement without the consent of the Participant.
6. ADMINISTRATION AND AMENDMENT OF THE PLAN
6.1. ADMINISTRATION BY BOARD OR COMMITTEE.
This Plan shall be administered by the Board and/or by a duly appointed
committee of the Board having such powers as the Board may delegate to
such committee. All references to the Board in this Plan shall also
mean the committee if one has been appointed. Members of the Board or
the Committee who are either eligible for Options or have been granted
Options may vote on any matters affecting the administration of the
Plan or the grant of Options, but no such member shall act upon the
granting of an Option to himself or herself. A member of the Board or
the
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Committee may be counted in determining the existence of a quorum at
any meeting of the Board or Committee, and may execute any written
consent to the taking of action without a meeting, for any action which
is taken with respect to the granting of an Option to such member.
6.2. RULE 16b-3 COMPLIANCE.
If the Company registers any class of any equity security pursuant to
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act"),
then from the effective date of such registration until six months
after the termination of such registration, the Plan shall be
administered by a Committee of directors which shall consist of not
less than two members, who during the one year before serving as an
administrator of the Plan, have not been granted or awarded equity
securities pursuant to the Plan or any other plan of the Company or any
of its Affiliates except as permitted under Rule 16b-3 under the
Exchange Act, which provides that participation in a formula plan
meeting the conditions of Rule 16(b)(3)(c)(2)(ii) or in an ongoing
securities acquisition plan meeting the conditions in Rule
16(b)(3)(d)(2)(i) shall not disqualify a member of the Committee from
serving as an administrator of the Plan. In addition, an election to
receive an annual retainer fee in either cash or an equivalent amount
of securities, or partly in cash and partly in securities, shall not
disqualify a member of the Committee from serving as an administrator
of the Plan.
6.3. DESIGNATION OF INELIGIBLE PERSONS.
The Board may from time to time designate individuals as ineligible to
participate in the Plan for a specified time so that such persons will
be eligible to serve as members of the Committee.
6.4. RIGHTS AND POWERS.
Subject to this Plan and, in the case of a committee, the specific
rights and powers delegated by the Board to such committee, the Board
shall have the authority and discretion to:
(a) determine who shall be a Participant;
(b) determine when Options are granted;
(c) determine the terms and conditions of Option Agreements (which
terms and conditions may differ among Agreements);
(d) interpret this Plan;
(e) adopt rules and regulations for implementing this Plan; and
(f) take such other action as is appropriate to the administration of
this Plan.
All decisions, determinations, and interpretations of the Board shall
be final and binding on all Participants.
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6.5. TERMINATION; AMENDMENT.
The Board may from time to time suspend this Plan, terminate this Plan,
or amend this Plan as it deems desirable, without further action on the
part of the shareholders of the Company. The approval of the
shareholders shall be required, however, to (a) increase the total
number of Shares that may be issued under this Plan (except as
otherwise provided herein); (b) change the description of the persons
eligible to be Participants; or (c) change the minimum exercise price.
Except as provided in Article 7, or in an Option Agreement, the
suspension, termination, or amendment of this Plan shall not, without
the consent of the Participant, alter or impair any rights of the
Participant under any Option Agreement.
6.6. UNILATERAL AMENDMENTS.
Notwithstanding any other provision of this, Plan or any Option Agreement,
and in addition to the powers described in Article 5.13, the Committee may
amend the Plan and any Option Agreement, without the consent of any
Participant, to the extent the Committee in the Committee's sole judgment
deems necessary or appropriate to comply with the requirements for any
exemption from the registration and qualifica-tion requirements of state
and federal securities laws, or the requirements of any other law.
6.7. REQUIREMENTS OF RULE 16b-3.
In the event that the Company becomes subject to Section 16 of the
Securities Exchange Act of 1934, this Plan shall be administered in
accordance with Rule 16b-3 promulgated under such Act, or any successor
rule. Unless the Board determines otherwise in a specific case,
Options granted to persons subject to Section 16(b) of the Securities
Exchange Act of 1934 must comply with Rule 16b-3 and shall contain such
additional conditions or restrictions as may be required thereunder to
qualify for the maximum exemption from Section 16 with respect to Plan
transactions. In addition, to the extent necessary and desirable to
comply with Rule 16b-3 or with Section 422 of the Code (or any other
applicable law or regulation, including the requirements of the NASD or
an established stock exchange), the Company shall obtain shareholder
approval of any Plan amendment in such a manner and to such a degree as
required.
7. ADJUSTMENT OF AND CHANGES IN STOCK
7.1. RECAPITALIZATIONS.
If the number of the Company's outstanding shares of common stock is changed
by any stock dividend, stock split, reverse stock split, combination,
recapitalization, or re-classification, the number of Shares subject to this
Plan and to outstanding Options, and
the exercise price for such Shares, shall be equitably adjusted as determined
by the Board.
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7.2. LIQUIDATION.
In the event of the proposed liquidation or dissolution of the Company,
the Company shall notify the Participants at least 10 days before such
proposed action is taken. All unexercised Options shall terminate
immediately before such event.
7.3. REORGANIZATIONS IN WHICH COMPANY DISAPPEARS.
7.3.1. Notice of Reorganization.
The Company shall give each holder of Options at least 10 days
prior written notice of (a) a sale of all or substantially all of
the Company's assets, (b) any reorganization, merger, or
consolidation of the Company with any other corporation in which
the Company is not the surviving entity (except for a transaction
the principal purpose of which is to change the state in which
the Company is incorporated), or (c) any other corporate
reorganization or business combination in which the beneficial
ownership of 50% or more of the Company's voting securities
outstanding is transferred.
7.3.2. Right to Cancel Options.
If an exercisable Option is not exercised within 5 days before
such event, the Company may cancel the Option by paying the
Participant an amount equal to the fair market value of the
consideration that the Participant would receive in exchange for
the Shares underlying the Option, less the exercise price of the
Option.
7.3.3. Expiration of Options.
Unless a successor corporation, or parent or subsidiary thereof
assumes the unexercised Options or substitutes options to
purchase substantially equivalent securities of the successor or
its parent or subsidiary for the Options outstanding at the time
of the closing of such event, all outstanding Options shall
terminate upon such event.
7.4. REORGANIZATIONS IN WHICH COMPANY SURVIVES.
Upon any other merger or consolidation of the Company in which there is
any adjustment in the common stock of the Company outstanding
immediately before such merger or consolidation, there shall be
substituted for each Share then subject to this Plan, the number and
kind of shares of stock or other securities or property into which each
outstanding share of common stock of the Company is converted by such
merger or consolidation.
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7.5. OTHER CHANGES.
Upon any other relevant change in the capitalization of the Company,
the Board may provide for an equitable adjustment to the number of
Shares then subject to this Plan, to any Options granted under this
Plan, and to the exercise price for such Shares as it deems
appropriate.
7.6. NO FRACTIONAL SHARES.
No right to purchase fractional Shares shall result from any adjustment
in Options pursuant to this Article 7. Upon any such adjustment, the
Shares subject to Options of each Participant shall be rounded down to
the nearest whole Share. Alternatively, in the Company's discretion,
the Shares subject to Options of each Participant may be rounded up to
the nearest whole Share. The Company shall give notice of any
adjustment to each holder of Options that have been so adjusted. Such
adjustment (whether or not such notice is given) shall be effective and
binding for all purposes of this Plan.
8. SUSPENSION OF OPTIONS TO SATISFY SECURITIES LAWS
8.1. POWER TO SUSPEND.
The Board may suspend the exercisability of outstanding Options from
time to time if appropriate to satisfy an exemption from registration
under the Securities Act (such as SEC Rule 504) or any state securities
law.
8.2. MINIMUM PERIOD.
The minimum period of suspension shall be long enough to ensure that,
under applicable federal or state securities regulations (such as SEC
Rule 502(a)), sales of stock made before the suspension will not be
integrated with sales made after the suspension.
8.3. MAXIMUM PERIOD.
The maximum period of suspension shall only be so long as needed to
ensure that, under applicable federal or state securities regulations
(such as SEC Rule 504(b)(2)(i)), sales made before the suspension will
not be aggregated with sales made after the suspension, unless the
Board, in its discretion, determines that such aggregation will not be
detrimental to the best interests of the Company or the Participants.
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8.4. OPTION GRANTS DURING SUSPENSION.
The Company may continue to grant Options during a period of
suspension, provided that such Options are not exercisable until after
the suspension.
8.5. OPTION TERMINATES DURING PERIOD OF SUSPENSION.
If an outstanding Option terminates during a period of suspension or
during the 90 day period after the suspension, the Optionee shall have.
until 90 days after the suspension to exercise the Option, but in no
event later than 10 years after the date of grant.
8.6. ALLOCATION OF EXERCISE OF RIGHTS BEFORE SUSPENSION.
If the Board believes that a number of Participants wish to exercise
Options to an extent that would result in non-compliance with an
applicable federal or state securities exemption, the Board may limit
the right to exercise outstanding Options and allocate such right among
the Participants in a manner that the Board determines to be fair.
8.7. ALL OPTIONS MUST BE SUSPENDED.
The Board shall not suspend any Options granted pursuant to this Plan
under this Article 12 unless it suspends all such outstanding Options.
8.8. ADVICE OF COUNSEL.
The Board may rely upon advice of counsel in determining whether to
suspend exercisability of the outstanding Options and in determining
the period of suspension. Nothing contained in this Plan requires the
Board to determine the length of the suspension in advance.
8.9. SUNSET PROVISION.
This Article 8 shall be void and of no force and effect beginning on
the date the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act.
9. INFORMATION TO PARTICIPANTS
9.1. COPY OF PLAN.
The Company shall provide a copy of the Plan to each Participant.
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9.2. FINANCIAL INFORMATION PROVIDED.
The Company shall provide to each Participant on a periodic basis (but
not less frequently than annually), financial statements of the
Company. The Company may provide other information regarding the
Company as determined by the Board in its discretion.
9.3. INFORMATION CONFIDENTIAL.
No Participant shall disclose any confidential information about the
Company disclosed to the Participant in his or her capacity as a holder
of Options. A Participant may, however, disclose such information to
his or her legal and financial advisers in connection with advice to be
rendered by them to the Participant, or to any transferee of the
Shares, but only if the advisor or transferee agrees not to further
disclose such information or to use the information for the benefit of
anyone other than the Participant, the transferee as a holder of the
Shares, or the Company.
10. TAX STATUS
The Company does not, by way of this Plan, any document, Option
Agreement, or otherwise, represent or warrant to any person, including
the Participants, that the grant or exercise of an Option or the
subsequent disposition of Shares obtained by the exercise of an Option
pursuant to this Plan, or any other aspect of this Plan, will have any
particular tax effect.
11. MISCELLANEOUS
11.1. ADDITIONAL ACTIONS AND DOCUMENTS.
Each Participant shall execute and deliver such further documents and
instruments and shall take such other further actions as may be
required or appropriate to carry out the intent and purposes of this
Plan or any Option Agreement.
11.2. SUCCESSORS AND ASSIGNS.
All obligations imposed upon the Participants and all rights granted to
the Company under this Plan shall be binding upon each Participant's
heirs, legal representatives, successors, and assigns. This Plan, and
the Option Agreement with each Participant, shall be the sole and
exclusive source of any and all rights that a Participant and his or
her heirs, legal representatives, or successors shall have in respect
to this Plan or any Options.
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11.3. NO THIRD-PARTY BENEFICIARIES.
Nothing in this Plan or any Option Agreement shall (a) confer any
rights or remedies on any persons other than the parties and their
respective successors and assigns, (b) relieve or discharge the
obligation of any third person to any party, or (c) shall give any
third person any right of subrogation or action against any party.
11.4. AMENDMENTS, WAIVERS AND CONSENTS.
Except as provided in this Plan, no Option Agreement shall be amended
except in a writing signed by the Participant and the Company. No
waiver or consent shall be binding except in a writing signed by the
party making the waiver,or giving the consent. No waiver of any
provision of an Option Agreement or consent to any action shall
constitute a waiver of any other provision or consent to any other
action, whether or not similar. No waiver or consent shall constitute
a continuing waiver or consent, except to the extent specifically set
forth in writing. For the protection of all parties, amendments,
waivers, and consents concerning Option Agreements that are not in
writing and signed by the party to be bound may be enforced only if
they are detrimentally relied upon and proved by clear and convincing
evidence. Such evidence may not include the alleged reliance.
11.5. NOTICE.
Any notice, instruction, or communication required or permitted to be
given under this Plan or any Option Agreement to any party shall be in
writing (which may include telex, telegram, telecopier, or other
similar form of reproduction followed by a mailed hard copy) and shall
be deemed given when actually received or, if earlier, five days after
deposit in the United States Mail by certified mail, return receipt
requested, postage prepaid, or two days after deposit with a nationally
recognized air courier, fees prepaid, addressed to the principal office
or residence of such party as shown on the books of the Company, or to
such other address as such party may request by written notice. The
Company and each Participant shall make an ordinary, good faith effort
to ensure that the person to be given notice actually receives such
notice.
11.6. DISPUTE RESOLUTION.
11.6.1. Notice.
A party to an Option Agreement who desires money damages or
equitable relief from the other party because of a claim relating
to Options, Shares, this Plan, or an Option Agreement shall give
written notice to the other party of the facts constituting the
breach or default (a "Dispute Notice"). This Article 11.6 is
intended to cover all aspects of the relationship between the
parties
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with respect to Options, Shares, this Plan, and any Option
Agreement, including any claims based on tort or other theories.
Any additional claims the parties have against each other'shall
also be subject to this Article 11.6.
11.6.2. Negotiation.
For fifteen (15) days following delivery of a Dispute Notice (the
"Negotiation Period") the parties shall negotiate to resolve the
dispute in good faith.
11.6.3. Mediation.
After the end of the Negotiation Period, either party may request
non-binding mediation with the assistance of a neutral mediator
from a recognized mediation service. The party requesting the
mediation shall arrange for the mediation services, subject to
the approval of the other party which the other party shall not
withhold unreasonably. Mediation shall take place in Reno,
Nevada, or such other location as the parties may mutually agree.
Mediation may be scheduled to begin any time after expiration of
the Negotiation Period, but with at least 10 days notice to all
parties. The parties shall participate in the mediation in good
faith and shall devote reasonable time and energy to the
mediation so as to promptly resolve the dispute or conclude that
they cannot resolve the dispute. The party requesting the
mediation shall bear the cost of mediation except as provided
elsewhere in this Agreement.
11.6.4. Arbitration.
If thirty (30) days after beginning mediation the parties have
not resolved the dispute, either party may submit the dispute to
final and binding arbitration pursuant to the commercial rules of
the American Arbitration Association. The arbitrator(s) shall
apply the substantive law of the State of Nevada to the dispute,
and shall have the power to interpret such law to the extent it
is unclear. At the request of any party, the arbitrators,
attorneys, parties to the arbitration, witnesses, experts, court
reporters, or other persons present at the arbitration shall
agree in writing to maintain the strict confidentiality of the
arbitration proceedings. At the election of any party,
arbitration shall be conducted by three neutral arbitrators
appointed in accordance with the commercial rules of the American
Arbitration Association if (a) the amount in controversy is
greater than $50,000 (exclusive of interest and attorneys fees),
or (b) a party sought to be enjoined disputes that he or it has
engaged in, or asserts that he or it should be able to engage in,
the actions sought to be enjoined. In all other cases, the
matter shall be arbitrated by a single neutral arbitrator. The
parties surrender and waive the right to submit any dispute to a
court or jury, or to appeal to a higher court. There shall be no
arbitration of any claim that would otherwise be barred by a
statute of limitations if the claim were to be brought in a court
of law. The arbitrator shall not have the power to award
punitive, consequential, indirect, or special damages.
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11.6.5. Arbitrability.
The arbitrators shall have the power to determine what disputes
between the parties are the proper subject of arbitration.
11.6.6. Preliminary Remedies.
Notwithstanding this Article 11.6, a party may apply to a court
of competent jurisdiction for prejudgment remedies and emergency
relief in the form of a temporary restraining order pending final
determination of a claim through arbitration in accordance with
this Article 11.6.
11.6.7. Costs and Attorneys Fees.
If the arbitrator determines that the actions of a party or its
counsel have unreasonably or unnecessarily delayed the resolution
of the matter, the arbitrator may in its discretion require such
party to pay all or part of cost of the mediation and arbitration
proceedings payable by the other party and may require such party
to pay all or part of the attorneys fees of the other party.
This provision permits an award of attorneys fees against a party
regardless of which party is the prevailing party. Otherwise,
the parties shall bear their own attomey's fees and share the
costs of arbitration equally.
11.6.8. Enforcement.
The award of the arbitrator shall be enforceable according to the
applicable provisions of the laws of the state of Nevada. A
party who fails to participate in a negotiation, mediation, or
arbitration instituted under this Article 11.6, or who admits to
liability and the amount of damage, shall be deemed to have
defaulted. Such default may be entered and enforced the same
manner as a default in a civil lawsuit.
11.7. JURISDICTION AND VENUE.
Each Participant consents to the personal jurisdiction of all federal
and state courts in the State of Nevada and agrees that venue shall lie
exclusively in the state of Nevada.
11.8. GOVERNING LAW.
The rights and obligations of the parties shall be governed by, and
this Plan and each Option Agreement shall be construed and enforced in
accordance with, the laws of the State of Nevada, excluding its
conflict of laws rules to the extent such rules would apply the law of
another jurisdiction. Incentive Options granted under this Plan shall
be interpreted and administered in accordance with Section 422 of the
Code. If any provision is susceptible of more than one interpretation,
it shall be interpreted in a manner consistent with this Plan being an
incentive stock option plan. If any provision of this Plan or any
Option Agreement is found by a court of competent
18
<PAGE>
jurisdiction to be invalid or unenforceable, the remaining provisions
shall continue to be fully effective.
11.9. PLAN GOVERNS.
If there is any inconsistency between this Plan and any documents
related to this Plan, including any Option Agreement, this Plan shall
govern. Nothing in this Plan shall be construed to constitute, or be
evidence of, any right; in favor of any person to receive Options
hereunder or any obligation on the part of the Company to issue Options
with respect to its common stock.
<PAGE>
- -----------------------------------------------------------------------
CERTIFICATE OF SECRETARY
KNOW ALL BY THESE PRESENTS:
That the undersigned does hereby certify that the undersigned is the
Secretary of INVESTAMERICA, INC. a corporation duly organized and
existing under and by virtue of the laws of the State of Nevada; that
the above and foregoing 1999 Stock Option Plan was duly and regularly
adopted as such by the Board of Directors and the shareholders of said
corporation; and that the above and foregoing 1999 Stock Option Plan is
now in full force and effect.
Dated: November 24, 1999
/s/ Brian Kitts
- -----------------
Secretary
12
<PAGE>
<TABLE> <S> <C>
<S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEET, THE STATEMENT OF OPERATIONS, AND THE STATEMENT OF CASH
FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-START> OCT-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 512,668
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 512,688
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 512,688
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 30,493
<OTHER-SE> 482,195
<TOTAL-LIABILITY-AND-EQUITY> 512,688
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 810,206
<INCOME-TAX> 275,687
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 810,206
<EPS-BASIC> (0.04)
<EPS-DILUTED> (0.04)
</TABLE>
