As filed with the Securities and Exchange Commission on January 24, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------
MAX INTERNET COMMUNICATIONS, INC.
(Exact name of the Company as specified in its charter)
Nevada 75-27155335
(State or other jurisdiction of I.R.S. Employer
incorporation or organization) Identification No.)
-----------------
8115 Preston Road
Eighth Floor East
Dallas, TX 75225
(Address of principal executive offices)
-----------------
1999 STOCK OPTION PLAN
-----------------
Lawrence R. Biggs, Jr, Chairman
MAX Internet Communications, Inc.
8115 Preston Road
Eighth Floor East
Dallas, TX 75225
(Name and address of agent for service)
(214)691-0055
(Telephone number, including area code, of agent for service)
With copies to:
Ronald L. Brown, Esq.
Glast, Phillips & Murray, P.C.
13355 Noel Road, Suite 2200
Dallas, Texas 75240
(972)419-8300
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) per Share(2) Price (1)(2) Registration Fee(2)
- -------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.0001 2,600,000 $8.00 $20,800,000 $5491.20
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this Registration Statement also
covers an indeterminate number of additional shares that may be
issuable in connection with share splits, share dividends or similar
transactions.
(2) Estimated pursuant to Rule 457(c) under the Securities Act, solely for
the purpose of calculating the registration fee, based on the average
of the bid and asked prices for the Company's common stock as reported
within five business days prior to the date of this filing.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
------------------------------------------------------------
*The document(s) containing the information specified in Part 1 of Form S-8 will
be sent or given to participants as specified by Rule 428(b)(1) promulgated by
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"). Such document(s) are not being
filed with the Commission, but constitute (along with the documents incorporated
by reference into the Registration Statement pursuant to Item 3 of Part II
hereof) a prospectus that meets the requirements of Section 10(a) of the Act.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents previously or concurrently filed by MAX
Internet Communications, Inc. (the "Company") with the Commission are hereby
incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 1999 (the "Annual Report") filed by the Company
(SEC File No. 0-24273) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), with the Commission on
September 28, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to in (a) above.
(c) The description of the Company's Common Stock set forth under
the caption "Description of Capital Stock" at page 22 of the
Company's Registration Statement on Form SB-2, filed with the
Commission and effective on August 11, 1999, is hereby
incorporated by reference.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed incorporated by reference into this Registration Statement and
to be a part thereof from the date of the filing of such documents. Any
statement contained in the documents incorporated, or deemed to be incorporated,
by reference herein or therein shall be deemed to be modified or superseded for
purposes of this Registration Statement and the prospectus which is a part
hereof (the "Prospectus") to the extent that a statement contained herein or
therein or in any other subsequently filed document which also is, or is deemed
to be, incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement and the Prospectus.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 78.7502 et.seq. of the Nevada Revised Statues ("N. R.S.")
provides broad authority for indemnification of directors and officers. The
Articles of Incorporation and Bylaws of the Company provide for indemnification
of its officers and directors to the fullest extent permitted by the NRS.
As permitted by Section 78.037 of the NRS, the Registrant's Articles of
Incorporation provide that a director shall not be liable for monetary damages
for breach of his fiduciary duty as a director except in certain limited
circumstances.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
3
<PAGE>
Item 8. Exhibits.
--------
See the Exhibit Index following the signature page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
Item 9. Undertakings.
------------
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to the
Registration Statement to: (i) include any prospectus
required by Section 10(a)(3) of the Securities Act; (ii)
reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement; and notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be reelected
in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration" table in
the effective registration statement; and (iii) include
any material information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement, provided
however, that provisions (i) and (ii) of this
undertaking are inapplicable if the information to be
filed thereunder is contained in periodic reports filed
by the Company pursuant to the Exchange Act that are
incorporated by reference into the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post- effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which
remains unsold at the termination of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than director,
officer or controlling person in the successful defense of any
action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
(c) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant and
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on January 24, 2000.
MAX INTERNET COMMUNICATIONS, INC.
By: /s/ Donald G. McLellan
------------------------------------------
Donald G. McLellan, President and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature to the
Registration Statement appears below hereby appoints Donald G. McLellan or
Lawrence R. Biggs, Jr., or either one of them, as such person's attorney-in-fact
with full power to act alone, with full power of substitution or resubstitution,
for such person and in such person's name, place and stead, in any and all
capacities to sign on such person's behalf, individually and in the capacities
stated below, and to file any and all amendments and post-effective amendments
to this Registration Statement, which amendment or amendments may make such
changes and additions as such attorney-in-fact may deem necessary or appropriate
Name Office Date
---- ------ ----
/s/ Lawrence R. Biggs, Jr. Chief Executive Officer January 24, 2000
- --------------------------- and Director (Principal
Lawrence R. Biggs, Jr. Executive Officer)
/s/ Donald G. McLellan Director January 24, 2000
- --------------------------
Donald G. McLellan
/s/ Lawrence A. Cahill Director January 24, 2000
- --------------------------
Lawrence A. Cahill
/s/ Ronald L. Brown Director January 24, 2000
- --------------------------
Ronald L. Brown
Director January 24, 2000
- --------------------------
Brahil Santos
/s/ Harold L. Clark Director January 24, 2000
- --------------------------
Harold L. Clark
/s/ Brian K. Norman Director January 24, 2000
- --------------------------
Brian K. Norman
/s/ Robert F. Kuhnemund Director January 24, 2000
- --------------------------
Robert F. Kuhnemund
/s/ Leslie D. Crone Principal Financial Officer, January 24, 2000
- -------------------------- Controller and Principal
Leslie D. Crone Accounting Officer
5
<PAGE>
MAX INTERNET COMMUNICATIONS, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
EXHIBIT NO. DESCRIPTION
- ---------- -----------
4.1 1999 Stock Option Plan
5.1 Opinion of Glast, Phillips, & Murray, P.C.
23.1 Consent of Grant Thornton, LLP
23.3 Consent of Glast, Phillips, & Murray, P.C.
(included in Exhibit 5.1)
24.1 Power of Attorney (included on Signature Page
to the Registration Statement)
6
MAX INTERNET COMMUNICATIONS, INC.
1999 STOCK OPTION PLAN
2,600,000 Shares
ARTICLE I
GENERAL
1.1 Purpose of the Plan.
-------------------
The purpose of the Max Internet Communications, Inc. 1999 Stock Option
Plan (the "Plan") is to assist Max Internet Communications, Inc., a
Nevada corporation (the "Company"), in securing and retaining Key
Participants of outstanding ability by making it possible to offer
them an increased incentive to join or continue in the service of the
Company and to increase their efforts for its welfare through
participation or increased participation in the ownership and growth
of the Company.
1.2 Definitions.
-----------
(a) "Acceleration Event" means any event which in the opinion of
the Board of Directors of the Company is likely to lead to changes in
control of share ownership of the Company, whether or not such change in
control actually occurs.
(b) "Award" means an Option granted to a Key Participant under
the Plan.
(c) "Board of Directors" or "Board" means the Board of Directors
of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the committee referred to in Section 1.3.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Fair Market Value" means the closing price of the shares on
the principal trading market on which the Common Stock is primarily
traded on the day on which such value is to be determined or, if no
shares were traded on such day, on the next preceding day on which
shares were traded, as reported by NASDAQ. If at any time shares of
Common Stock are not traded on an exchange or in the over-the-counter
market, Fair Market Value shall be the value determined by the Board of
Directors or Committee administering the Plan, taking into consideration
those factors affecting or reflecting value which they deem appropriate.
(h) "Grantee" means a Key Participant to whom an Award is
granted under the Plan.
(i) "Incentive Share" means a share of Common Stock awarded to a
Key Participant under Article VI hereof on such terms as are determined
by the Committee.
(j) "Incentive Share Agreement" means a written agreement in
such form as the Board or Committee, as applicable, shall approve that
evidences the terms and conditions of an award of Incentive Shares
hereunder.
<PAGE>
(k) "Incentive Stock Option" means an option to purchase shares
of Common Stock which is intended to qualify as an incentive stock
option as defined in Section 422 of the Code.
(l) "Key Participant" means any person, including officers,
directors, employees, agents and consultants of the Company or any
Subsidiary who are designated a Key Participant by the Board or
Committee, as applicable, and is or is expected to be primarily
responsible for the management, growth, or supervision of some part or
all of the business of the Company. The power to determine who is and
who is not a Key Participant is reserved solely for the Committee.
(m) "Nonqualified Stock Option" means an option to purchase
shares of Common Stock which is not intended to qualify as an Incentive
Stock Option as defined in Section 422 of the Code.
(n) "Option" means an Incentive Stock Option or a Nonqualified
Stock Option.
(o) "Optionee" means a Key Participant to whom an Option is
granted under the Plan.
(p) "Parent" means any corporation which qualifies as a parent
of a corporation under the definition of "parent corporation" contained
in Section 425(e) of the Code.
(q) "Subsidiary" means any corporation which qualifies as a
subsidiary of a corporation under the definition of "subsidiary
corporation" contained in Section 425(f) of the Code.
(r) "Term" means the period during which a particular option may
be exercised as determined by the Committee and as provided in the
option agreement.
1.3 Administration of the Plan.
--------------------------
The Plan shall be administered by a committee (the "Committee")
appointed by the Board of Directors consisting solely of two or more
Non-Employee Directors, as defined in Rule 16b-3 (see Section 1.10,
below), or in the absence of an appointment of such a Committee, the
full Board shall serve as the Committee. Subject to the control of the
Board, and without limiting the control over decisions described in
Section 1.7, the Committee shall have the power to interpret and apply
the Plan and to make regulations for carrying out its purpose. More
particularly, the Committee shall determine which Key Participants shall
be granted Options and the terms of such grants. When granting Options,
the Committee shall designate the Option as either an Incentive Stock
Option or a Nonqualified Stock Option. Determinations by the Committee
under the Plan (including, without limitation, determinations of the
person to receive Awards, the form, amount and timing of such Awards,
and the terms and provisions of such Awards and the agreements
evidencing same) need not be uniform and may be made by it selectively
among persons who receive, or are eligible to receive, Awards under the
Plan, whether or not such persons are similarly situated. In serving on
the Committee, members thereof shall be considered to be acting in their
capacity as members of the Board of Directors and shall be entitled to
all rights of indemnification provided by the Bylaws of the Company or
otherwise to members of the Board of Directors.
1.4 Shares Subject to the Plan.
--------------------------
The total number of shares that may be purchased pursuant to Options
under the Plan shall not exceed 2,600,000 shares of Common Stock. Shares
subject to the Options which terminate or expire prior to exercise shall
be available for future Awards under the Plan without again being
charged against the limitation of 2,600,000 shares set forth above.
Shares issued pursuant to the Plan may be either unissued shares of
Common Stock or reacquired shares of Common Stock held in treasury.
1.5 Terms and Conditions of Options.
-------------------------------
All Options shall be evidenced by agreements in such form as the
Committee shall approve from time to time subject to the provisions of
Article II and Article III, as appropriate, and the following
provisions:
<PAGE>
(a) Exercise. The Committee shall determine whether the Option
shall be exercisable in full at any time during the Term or in
cumulative or noncumulative installments during the Term.
(b) Termination of Employment or Contractor Relationship. An
Optionee's Options shall expire on the expiration of the Term specified
in Section 2.1 or 3.1 as the case may be, or upon the occurrence of such
events as are specified in the agreement. In the event of exercise of
the Option after termination of employment or contractor relationship,
the Optionee may exercise the Option only with respect to the shares
which could have been purchased by the Optionee at the date of such
termination, and then only for a period of 90 days thereafter. However,
the Committee may, but is not required to, waive any requirements made
pursuant to Section 1.5(b) so that some or all of the shares subject to
the Option may be exercised within the time limitation described in this
subsection. An Optionee's employment or contractor relationship shall be
deemed to terminate on the last date for which he receives a regular
wage, salary or contract payment. Whether military, government or other
service or other leave of absence shall constitute a termination of
employment shall be determined in each case by the Committee at its
discretion, and any determination by the Committee shall be final and
conclusive. A termination of employment or contractor relationship shall
not occur where the Optionee transfers from the Company to one of its
Subsidiaries or transfers from a Subsidiary to the Company.
(c) Death or Disability. Upon termination of an Optionee's
employment or contractor relationship by reason of death or disability
(as determined by the Committee consistent with the definition of
Section 422(c)(7) of the Code), the Option shall expire on the earlier
of the expiration of (i) the date specified in the Option which in no
event shall be later than 12 months after the date of such termination,
or (ii) the Term specified in Section 2.1 or 3.1 as the case may be. The
Optionee or his successor in interest, as the case may be, may exercise
the Option only as to the shares that could have been purchased by the
Optionee at the date of his termination of employment. However, the
Committee may, but is not required to, waive any requirements made
pursuant to Section 1.5(b) so that some or all of the shares subject to
the Option may be exercised within the time limitation described in this
subsection.
(d) Payment. Payment for shares as to which an Option is
exercised shall be made in such manner and at such time or times as
shall be provided in the option agreement, including cash, Common Stock
of the Company which was previously acquired by the Optionee, or any
combination thereof. The Fair Market Value of the surrendered Common
Stock as of the date of exercise shall be determined in valuing Common
Stock used in payment for Options.
(e) Nontransferability. No Option granted under the Plan shall
be transferable other than by will or by the laws of descent and
distribution. During the lifetime of the Optionee, an Option shall be
exercisable only by the Optionee.
(f) Additional Provisions. Each option agreement may contain
such other terms and conditions not inconsistent with the provisions of
the Plan, including the award of cash amounts, as the Committee may deem
appropriate from time to time.
1.6 Stock Adjustments; Mergers.
--------------------------
(a) Generally. Notwithstanding Section 1.4, in the event the
outstanding shares are increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities
of the Company or of any other corporation by reason of any merger, sale
of stock, consolidation, liquidation, recapitalization,
reclassification, stock split up, combination of shares, stock dividend,
or transaction having similar effect, the total number of shares set
forth in Section 1.4 shall be proportionately and appropriately adjusted
by the Committee.
(b) Options. Following a transaction described in subsection (a)
above, if the Company continues in existence, the number and kind of
shares that are subject to any Option and the option price per share
shall be proportionately and appropriately adjusted without any change
in the aggregate price to be paid therefor upon exercise of the Option.
If the Company will not remain in existence or substantially all of its
voting Common Stock and Common Stock will be purchased by a single
purchaser or group of purchasers acting together, then the Committee may
(i) declare that all Options shall terminate 30 days after the Committee
gives written notice to all
<PAGE>
Optionee's of their immediate right to exercise all Options then
outstanding (without regard to limitations on exercise otherwise
contained in the Options), or (ii) notify all Optionee's that all
Options granted under the Plan shall apply with appropriate adjustments
as determined by the Committee to the securities of the successor
corporation to which holders of the numbers of shares subject to such
Options would have been entitled, or (iii) take action that is some
combination of aspects of (i) and (ii). The determination by the
Committee as to the terms of any of the foregoing adjustments shall be
conclusive and binding. Any fractional shares resulting from any of the
foregoing adjustments under this section shall be disregarded and
eliminated.
1.7 Acceleration Event.
------------------
If an Acceleration Event occurs in the opinion of the Board of
Directors, based on circumstances known to it, the Board of Directors
may, but is not obligated to, direct the Committee to declare that any
or all Options granted under the Plan shall become exercisable
immediately notwithstanding the provisions of the respective agreements
granting any such Awards.
1.8 Notification of Exercise.
------------------------
Options shall be exercised by written notice directed to the Secretary
of the Company at the principal executive offices of the Company. Such
written notice shall be accompanied by any payment required pursuant to
Section 1.5(d). Exercise by an Optionee's heir or the representative of
his estate shall be accompanied by evidence of his authority to so act
in form reasonably satisfactory to the Company.
1.9 Modification, Extension and Renewal of Awards.
---------------------------------------------
Subject to the terms and conditions and within the limitations of the
Plan, the Committee may modify, extend or renew outstanding Awards or
accept the surrender of outstanding Awards (to the extent not
theretofore exercised) granted under the Plan or under any other plan of
the Company or a Subsidiary, and authorize the granting of new Awards
pursuant to the Plan in substitution therefor, and the substituted
Awards may bear such different or additional terms and conditions as the
Committee shall deem appropriate within the limitations of the Plan.
Notwithstanding the foregoing, however, no modification of an Award
shall, without the consent of the Grantee holding the Award, adversely
affect the rights or obligations of such Grantee.
1.10. Compliance with Rule 16b-3.
--------------------------
It is intended that the provisions of the Plan and any Award shall
comply in all respects with the terms and conditions of Rule 16b-3 under
the Securities Exchange Act of 1934, as in effect on January 1, 1999 and
as amended, or any successor provisions, as it relates to persons
subject to the reporting requirements of Section 16(a) of such Act. Any
agreement granting an Award shall contain such provisions as are
necessary or appropriate to assure such compliance. To the extent that
any provision hereof is found not to be in compliance with such rule as
it relates to such Act, such provision shall be deemed to be modified so
as to be in compliance with such rule, or if such modification is not
possible, shall be deemed to be null and void, as it relates to such
Grantee.
ARTICLE II
INCENTIVE STOCK OPTIONS
2.1 Terms of Incentive Stock Options.
--------------------------------
Each Incentive Stock Option granted under the Plan shall be exercisable
only during a Term fixed by the Committee; provided, however, that the
Term shall end no later than 10 years after the date the Incentive Stock
Option is granted.
<PAGE>
2.2 Limitation on Options.
---------------------
The aggregate Fair Market Value of Common Stock (determined at the time
the Incentive Stock Option is granted) subject to Incentive Stock
Options granted to a Key Participant under all plans of the Key
Participant's employer corporation and its Parent or Subsidiary
corporations and that become exercisable for the first time by such Key
Participant during any calendar year may not exceed $100,000.
2.3 Special Rule for Ten Percent Shareholder.
----------------------------------------
If at the time an Incentive Stock Option is granted, a participant owns
stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of his employer corporation or of
its Parent or any of its Subsidiaries, as determined using the
attribution rules of Section 424(d) of the Code, then the terms of the
Incentive Stock Option shall specify that the option price shall be at
least 110% of the Fair Market Value of the stock subject to the
Incentive Stock Option and such Incentive Stock Option shall not be
exercisable after the expiration of five years from the date such
Incentive Stock Option is granted.
2.4 Interpretation.
--------------
In interpreting this Article II of the Plan and the provisions of
individual option agreements, the Committee and the Board shall be
governed by the principles and requirements of Sections 421, 422 and 425
of the Code, and applicable Treasury Regulations.
ARTICLE III
NONQUALIFIED STOCK OPTIONS
3.1 Terms and Conditions of Options.
-------------------------------
In addition to the requirements of Section 1.5, each Nonqualified Stock
Option granted under the Plan shall be exercisable only during a Term
fixed by the Committee.
3.2 Section 83(b) Election.
----------------------
The Company recognizes that certain persons who receive Nonqualified
Stock Options may be subject to restrictions regarding their right to
trade Common Stock under applicable securities laws. Such may cause
Optionee's exercising such Options not to be taxable under the
provisions of Section 83(c) of the Code. Accordingly, Optionee's
exercising such Nonqualified Stock Options may consider making an
election to be taxed upon exercise of the Option under Section 83(b) of
the Code and to effect such election will file such election with the
Internal Revenue Service within thirty (30) days of exercise of the
Option and otherwise in accordance with applicable Treasury Regulations.
ARTICLE IV
ADDITIONAL PROVISIONS
4.1 Stockholder Approval.
--------------------
The Plan shall be submitted for the approval of the stockholders of the
Company at the first annual meeting of stockholders held subsequent to
the adoption of the Plan and in all events within two years of its
approval by the Board of Directors. If at said meeting the stockholders
of the Company do not approve the Plan, the Plan shall terminate.
<PAGE>
4.2 Compliance with Other Laws and Regulations.
------------------------------------------
The Plan, the grant and exercise of Options hereunder, and the
obligation of the Company to sell and deliver shares under such Options,
shall be subject to all applicable Federal and state laws, rules, and
regulations and to such approvals by any government or regulatory agency
as may be required. The Company shall not be required to issue or
deliver any certificates for shares of Common Stock prior to (a) the
listing of such shares on any stock exchange on which the Common Stock
may then be listed and (b) the completion of any registration or
qualification or exemption of such shares under any Federal or state
law, or any ruling or regulation of any government body which the
Company shall, in its sole discretion, determine to be necessary or
advisable.
4.3 Amendments.
----------
The Board of Directors may discontinue the Plan at any time, and may
amend it from time to time, but no amendment, without approval by
stockholders, may increase the total number of shares which may be
issued under the Plan. Other than as expressly permitted under the Plan,
no outstanding Award may be revoked or altered in a manner unfavorable
to the Grantee without the consent of the Grantee.
4.4 No Rights As Shareholder.
------------------------
No Grantee shall have any rights as a shareholder with respect to any
share subject to his or her Option prior to the date of issuance to him
or her of a certificate or certificates for such shares.
4.5 Withholding.
-----------
Whenever the Company proposes or is required to issue or transfer shares
of Common Stock under the Plan, the Company shall have the right to
require the Grantee to remit to the Company an amount sufficient to
satisfy any Federal, state or local withholding tax liability in such
form as the Company may determine or accept in its sole discretion,
including payment by surrender or retention of shares of Common Stock
prior to the delivery of any certificate or certificates for such
shares.
4.6 Continued Employment Not Presumed.
---------------------------------
This Plan and any document describing this Plan and the grant of any
Award hereunder shall not give any Optionee or other Participant a right
to continued employment or directorship by the Company or its
Subsidiaries or affect the right of the Company or its Subsidiaries to
terminate the employment or directorship of any such person with or
without cause.
4.7 Effective Date; Duration.
------------------------
The Plan shall become effective as of April 1, 1999 pursuant to Board of
Director approval received on such date and shall expire on March 31,
2009. The Plan was amended on September 29, 1999 to increase the number
of shares covered by the Plan from 1,600,000 to 2,600,000, and the Plan
was approved by the Shareholders at a meeting on November 15, 1999. No
Awards may be granted under the Plan after March 31, 2009, but Awards
granted on or before that date may be exercised according to the terms
of the related agreements and shall continue to be governed by and
interpreted consistent with the terms hereof.
GLAST, PHILLIPS & MURRAY
A PROFESSIONAL CORPORATION
2200 ONE GALLERIA TOWER
ATTORNEYS AND COUNSELORS 13355 NOEL ROAD, L.B. 48
RONALD L. BROWN, P.C. DALLAS, TEXAS 75240-6657
DIRECT DIAL NUMBER: TELEPHONE: (972) 419-8300
(972) 419-8302 FAX: (972) 419-8329
e-mail: [email protected]
January 20, 2000
MAX Internet Communications, Inc.
8115 Preston Road, Eighth Floor East
Dallas, Texas 75225
Re: Form S-8 Registration Statement relating to the registration of
2,600,000 shares of common stock, $.0001 par value of MAX
Internet Communications, Inc. pursuant to the 1999 Stock Option
Plan.
Gentlemen:
We are acting as counsel for MAX Internet Communications, Inc., a
Nevada corporation (the "Company"), in connection with the filing under the
Securities Act of 1933, as amended, of a Registration Statement for the Company
on Form S-8 filed with the Securities and Exchange Commission ("SEC") (the
"Registration Statement"), covering an aggregate of 2,600,000 shares (the
"Shares") of common stock, par value $.0001 per share (the "Common Stock"), of
the Company which will be issued pursuant to the 1999 Stock Option Plan.
In that connection, we have examined the Form S-8 Registration
Statement in the form to be filed with the SEC. We have also examined and are
familiar with the originals or authenticated copies of all corporate or other
documents, records and instruments that we have deemed necessary or appropriate
to enable us to render the opinion expressed below.
We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete, that all documents submitted to us as copies are true and correct
copies of the originals thereof, that all information submitted to us was
accurate and complete and that all persons executing and delivering originals or
copies of documents examined by us were competent to execute and deliver such
documents. In addition, we have assumed that the Shares will not be issued for
consideration equal to less than the par value thereof and that the form of
consideration to be received by the Company for the Shares will be lawful
consideration under the Nevada Revised Statutes.
<PAGE>
Based on the foregoing and having due regard for the legal
considerations we deem relevant, we are of the opinion that the Shares, or any
portion thereof, when issued as described in the Registration Statement, will be
validly issued by the Company, fully paid and nonassessable.
This opinion is limited in all respects to the laws of the United
States of America and the general corporation laws of the State of Nevada.
This opinion may be filed as an exhibit to the Registration Statement.
Sincerely,
GLAST, PHILLIPS & MURRAY, P.C.
/s/ Glast, Phillips & Murray
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CONSENT OF INDEPENDENT AUDITORS
We have issued our report dated August 13, 1999 accompanying the consolidated
financial statements of MAX Internet Communications, Inc. (formerly Voxcom
Holdings, Inc.) and subsidiaries appearing in the 1999 Annual Report of the
Company on Form 10-KSB for the years ended June 30, 1999 and 1998 which are
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
report.
/s/ Grant Thornton, LLP
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Dallas, Texas
January 24, 2000
