SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
________________
VIAVID BROADCASTING, INC.
--------------------------------
(Exact Name of Registrant as Specified in Its Chapter)
Nevada 98-020-6168
- ------ ------------
(State of Incorporation) (I.R.S.
Employer Identification No.)
3955 Graveley Street
Burnaby, British Columbia, Canada V5C 3T4
-----------------------------------------
(Address of Principal Executive Offices)
1999 STOCK OPTION PLAN
------------------------
(Full Title of the Plan)
Brian Kathler, President
Viavid Broadcasting, Inc.
3955 Graveley Street
Burnaby, British Columbia, Canada V5C 3T4
-----------------------------------------
(Name and Address of Agent for Service)
(604) 669-0047
--------------
(Telephone Number including Area Code of Agent for Service)
________________
CALCULATION OF REGISTRATION FEE
=====================================================================
Title of Amount Proposed Proposed Amount
Securities to be Maximum Maximum of
to be Regis- Offering Aggregate Regis-
Registered tered Price Per Offering tration
(1),(2) Share(3) Price(4) fee
- ---------------------------------------------------------------------
Common Stock 950,000 $1.00 $950,000 $264
$0.001 par Shares
value
=====================================================================
(1) This Registration Statement shall also cover any additional
shares of Common Stock which become issuable under the Plan
being registered pursuant to this Registration Statement by
reason of any stock dividend, stock split, re-capitalization
or any other similar transaction effected without the receipt
of consideration which results in an increase in the number of
the Registrant's outstanding shares of Common Stock.
(2) Includes 950,000 shares of Common Stock issuable under the
1999 Stock Option Plan.
(3) The Proposed Maximum Offering Price Per Share calculated
pursuant to Rule 457(h) of the Securities Act of 1933 is equal
to the weighted average exercise price of the outstanding
options to purchase 950,000 shares which have been granted
pursuant to the 1999 Stock Option Plan. All outstanding
options are at an exercise price of $1.00 per share.
(4) The Proposed Aggregate Maximum Offering Price is based on the
Proposed Maximum Offering Price per Share and the total number
of shares of Common Stock to be registered. The Proposed
Maximum Aggregate Offering Price is estimated solely for the
purposes of calculating the registration fee pursuant to Rule
457(h)(l) under Securities Act of 1933.
________________
Copies to:
Cane & Company, LLC
Michael A. Cane
Suite 1200, 101 Convention Center Drive
Las Vegas, Nevada 89109
(702) 312-6255
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual
Information.*
* Information required by Part I to be contained in Section
10(a) prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, and
Note to Part I of Form S-8.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed by Viavid Broadcasting, Inc. (the
"Company") with the Securities and Exchange Commission are
incorporated by reference into this Registration Statement:
(1) The Company's Form 10-SB Registration Statement, as
amended, filed with the Securities and Exchange
Commission pursuant to Section 12(b) of the Securities
Exchange Act of 1934 (the "Exchange Act") originally on
June 29, 1999 and, as amended, on October 6, 1999;
(2) The Company's Quarterly Report on Form 10-QSB for the
quarter ended September 30, 1999 filed with the
Securities and Exchange Commission on November 15, 1999;
(3) All other reports filed by the Company pursuant to
Sections 13(a) or 15(d) of the Exchange Act subsequent to
the filing of the Company's Form 10-SB Registration
Statement referred to in (a) above;
(4) The description of the Company's Common Stock which is
contained in the Form 10-SB Registration Statement,
referred to in (a) above, including any amendment or
report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which de-registers
all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this
Registration Statement from the date of the filing of such reports
and documents.
Item 4. Description of Securities.
The securities to be offered are registered under Section 12 of the
Exchange Act of 1934.
Item 5. Interests of Named Experts and Counsel.
No expert or counsel named in this prospectus as having prepared or
certified any part of it or having given an opinion upon the
validity of the securities being registered or upon other legal
matters in connection with the registration or offering of the
common stock was employed on a contingency basis, or had, or is to
receive, in connection with the offering, a substantial interest,
direct or indirect, in the Company or any of its parents or
subsidiaries. Nor was any such person connected with the Company
or any of its parents or subsidiaries as a promoter, managing or
principal underwriter, voting trustee, director, officer, or
employee.
<PAGE>
Michael A. Cane of Cane & Company, Independent Counsel, has
provided an opinion on the validity of the Company's common stock.
Item 6. Indemnification of Directors and Officers.
The officers and directors of the Company are indemnified as
provided by the Nevada Revised Statutes (the "NRS") and the Bylaws
of the Company.
Under the NRS, director immunity from liability to a Company or its
shareholders for monetary liabilities applies automatically unless
it is specifically limited by a Company's Articles of Incorporation
(which is not the case with the Company's Articles of
Incorporation). Excepted from that immunity are: (i) a willful
failure to deal fairly with the Company or its shareholders in
connection with a matter in which the director has a material
conflict of interest; (ii) a violation of criminal law (unless the
director had reasonable cause to believe that his or her conduct
was lawful or no reasonable cause to believe that his or her
conduct was unlawful); (iii) a transaction from which the director
derived an improper personal profit; and (iv) willful misconduct.
The By-laws of the Company provide that the Company will indemnify
its directors and officers to the fullest extent not prohibited by
Nevada law; provided, however, that the Company may modify the
extent of such indemnification by individual contracts with its
directors and officers; and, provided, further, that the Company
shall not be required to indemnify any director or officer in
connection with any proceeding (or part thereof) initiated by such
person unless (i) such indemnification is expressly required to be
made by law, (ii) the proceeding was authorized by the Board of
Directors of the Company, (iii) such indemnification is provided by
the Company, in its sole discretion, pursuant to the powers vested
in the Company under Nevada law or (iv) such indemnification is
required to be made pursuant to the By-laws.
The By-laws of the Company provide that the Company will advance to
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director
or officer, of the Company, or is or was serving at the request of
the Company as a director or executive officer of another Company,
partnership, joint venture, trust or other enterprise, prior to the
final disposition of the proceeding, promptly following request
therefor, all expenses incurred by any director or officer in
connection with such proceeding upon receipt of an undertaking by
or on behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be
indemnified under the By-laws of the Company or otherwise.
The By-laws of the Company provide that no advance shall be made by
the Company to an officer of the Company (except by reason of the
fact that such officer is or was a director of the Company in which
event this paragraph shall not apply) in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative, if a determination is reasonably and promptly made
(i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the proceeding, or
(ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, that the facts known to the
decision-making party at the time such determination is made
demonstrate clearly and convincingly that such person acted in bad
faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
2
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description of Document
- ---------- -----------------------------------------------
4.1 1999 Stock Option Plan
5.1 Opinion of Cane & Company, LLC regarding validity
of securities and consent to use.
24.1 Power of Attorney (included on the signature page
of this Registration Statement).
Item 9. Undertakings.
(1) The Company hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration;
(1) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(2) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set
forth in the Registration Statement; and
(3) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
Provided however, that that paragraphs (a) (1) and
(2) do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
by the Company pursuant to section 13 or section
15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
Registration Statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of post-
effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(2) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of
1933, each filing of the Company's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at the time
shall be deemed to be the initial bona fide offering
thereof.
3
<PAGE>
(3) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by
the director, officer or controlling person of the
Company 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 the counsel the matter has been settled by controlling
precedent, submit to the appropriate jurisdiction the
question of whether such indemnification by it is against
public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(4) The Company hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article
3 of Regulation S-X are not set forth in the prospectus,
to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim
financial information.
4
<PAGE>
-5-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company, Viavid Broadcasting, Inc., certifies that it has
reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Vancouver, in the Province of
British Columbia, on this 15th day of December, 1999.
VIAVID BROADCASTING, INC.
By: /s/ Brian Kathler
_________________________
Brian Kathler, President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Brian Kathler, as his true and lawful attorney-in-fact and agent
with full power of substitution and re-substitution for him and his
name, place and stead, in any and all capacities, to sign any or
all amendments to this Registration Statement (including post-
effective amendments or any abbreviated registration statements and
any amendments thereto filed pursuant to Rule 462(b) increasing the
number of securities for which registration is sought) and to file
the same, with all exhibits thereto and other documents in
connection with therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in and about the foregoing, as fully to
all intents and purposes as he might or could do in person hereby
ratifying and confirming all that said attorney-in-fact or his
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following
person in the capacities and on the date indicated.
Signature Title Date
- --------- ----------------- -----
President & Director
/s/ BRIAN KATHLER (Principal Executive Officer) December 15,1999
- ------------------
BRIAN KATHLER
Secretary & Treasurer
/s/ CHERYL WATKINS (Principal Accounting Officer) December 15,1999
- ------------------
CHERYL WATKINS
/s/ PAUL WATKINS Director December 15,1999
- ------------------
PAUL WATKINS
/s/ ROBERT GAMON Director December 15,1999
- ------------------
ROBERT GAMON
/s/ DAVID FORMOSA Director December 15,1999
- ------------------
DAVID FORMOSA
<PAGE>
<PAGE>
1999 STOCK OPTION PLAN OF
VIAVID BROADCASTING, INC.
OCTOBER 29, 1999
A Nevada Corporation
<PAGE>
STOCK OPTION PLAN OF
VIAVID BROADCASTING, INC.
TABLE OF CONTENTS
Page No.
PURPOSE OF THE PLAN 1
TYPES OF STOCK OPTIONS 1
DEFINITIONS 1
ADMINISTRATION OF THE PLAN 2
GRANT OF OPTIONS 3
STOCK SUBJECT TO PLAN 3
TERMS AND CONDITIONS OF OPTIONS 3
TERMINATION OR AMENDMENT OF THE PLAN 8
INDEMNIFICATION 8
EFFECTIVE DATE AND TERM OF THE PLAN 9
<PAGE>
STOCK OPTION PLAN OF
VIAVID BROADCASTING, INC.
A Nevada Corporation
- -----------------------------------------------------------------
1. PURPOSE OF THE PLAN
The purpose of this Plan is to strengthen ViaVid Broadcasting, Inc.
(hereinafter the "company") by providing incentive stock options as
a means to attract, retain and motivate key corporate personnel,
through ownership of stock of the Company, and to attract
individuals of outstanding ability to render services to and enter
the employment of the Company or its subsidiaries.
2. TYPES OF STOCK OPTIONS
There shall be two types of Stock Options (referred to herein as
"Options" without distinction between such different types) that
may be granted under this Plan: (1) Options intended to qualify as
Incentive Stock Options under Section 422 of the Internal Revenue
Code ("Qualified Stock Options"), and (2) Options not specifically
authorized or qualified for favorable income tax treatment under
the Internal Revenue Code ("Non-Qualified Stock Options").
3. DEFINITIONS
The following definitions are applicable to the Plan:
(1) Board. The Board of Directors of the Company.
(2) Code. The Internal Revenue Code of 1986, as amended from
time to time.
(3) Common Stock. The shares of Common Stock of the Company.
(4) Company. ViaVid Broadcasting, Inc., a Nevada corporation.
(5) Consultant. An individual or entity that renders
professional services to the Company as an independent
contractor and is not an employee or under the direct
supervision and control of the Company.
(6) Disabled or Disability. For the purposes of Section 7, a
disability of the type defined in Section 22(e)(3) of the
Code. The determination of whether an individual is
Disabled or has a Disability is determined under
procedures established by the Plan Administrator for
purposes of the Plan.
(7) Fair Market Value. For purposes of the Plan, the "fair
market value" per share of Common Stock of the Company at
any date shall be: (a) if the Common Stock is listed on
an established stock exchange or exchanges or
<PAGE>
2
the NASDAQ National Market, the closing price per share on
the last trading day immediately preceding such date on the
principal exchange on which it is traded or as reported
by NASDAQ; or (b) if the Common Stock is not then listed
on an exchange or the NASDAQ National Market, but is
quoted on the NASDAQ Small Cap Market, the NASDAQ
electronic bulletin board or the National Quotation
Bureau pink sheets, the average of the closing bid and
asked prices per share for the Common Stock as quoted by
NASDAQ or the National Quotation Bureau, as the case may
be, on the last trading day immediately preceding such
date; or (c) if the Common Stock is not then listed on an
exchange or the NASDAQ National Market, or quoted by
NASDAQ or the National Quotation Bureau, an amount
determined in good faith by the Plan Administrator.
(8) Incentive Stock Option. Any Stock Option intended to be
and designated as an "incentive stock option" within the
meaning of Section 422 of the Code.
(9) Non-Qualified Stock Option. Any Stock Option that is not
an Incentive Stock Option.
(10) Optionee. The recipient of a Stock Option.
(11) Plan Administrator. The board or the Committee designated
by the Board pursuant to Section 4 to administer and
interpret the terms of the Plan.
(12) Stock Option. Any option to purchase shares of Common
Stock granted pursuant to Section 7.
4. ADMINISTRATION OF THE PLAN
This Plan shall be administered by the Board of Directors or by a
Compensation Committee (hereinafter the "Committee") composed of
members selected by, and serving at the pleasure of, the Board of
Directors (the "Plan Administrator"). Subject to the provisions of
the Plan, the Plan Administrator shall have authority to construe
and interpret the Plan, to promulgate, amend, and rescind rules and
regulations relating to its administration, to select, from time to
time, among the eligible employees and non-employee consultants (as
determined pursuant to Section 5) of the Company and its
subsidiaries those employees and consultants to whom Stock Options
will be granted, to determine the duration and manner of the grant
of the Options, to determine the exercise price, the number of
shares and other terms covered by the Stock Options, to determine
the duration and purpose of leaves of absence which may be granted
to Stock Option holders without constituting termination of their
employment for purposes of the Plan, and to make all of the
determinations necessary or advisable for administration of the
Plan. The interpretation and construction by the Plan Administrator
of any provision of the Plan, or of any agreement issued and
executed under the Plan, shall be final and binding upon all
parties. No member of the Committee or Board shall be liable for
any action or
<PAGE>
3
determination undertaken or made in good faith with
respect to the Plan or any agreement executed pursuant to the Plan.
All of the members of the Committee shall be persons who, in the
opinion of counsel to the Company, are outside directors and
"non-employee directors" within the meaning of Rule 16b-3(b)(3)(i)
promulgated by the Securities and Exchange Commission. From time
to time, the Board may increase or decrease the size of the
Committee, and add additional members to, or remove members from,
the Committee. The Committee shall act pursuant to a majority vote,
or the written consent of a majority of its members, and minutes
shall be kept of all of its meetings and copies thereof shall be
provided to the Board. Subject to the provisions of the Plan and
the directions of the Board, the Committee may establish and follow
such rules and regulations for the conduct of its business as it
may deem advisable.
At the option of the Board, the entire Board of Directors of the
Company may act as the Plan Administrator during such periods of
time as all members of the Board are "outside directors" as defined
in Prop. Treas. Regs. '1.162-27(e)(3), except that this requirement
shall not apply during any period of time prior to the date the
Company's Common Stock becomes registered pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended.
5. GRANT OF OPTIONS
The Company is hereby authorized to grant Incentive Stock Options
as defined in section 422 of the Code to any employee or director
(including any officer or director who is an employee) of the
Company, or of any of its subsidiaries; provided, however, that no
person who owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company, or
any of its parent or subsidiary corporations, shall be eligible to
receive an Incentive Stock Option under the Plan unless at the time
such Incentive Stock Option is granted the Option price is at least
110% of the fair market value of the shares subject to the Option,
and such Option by its terms is not exercisable after the
expiration of five years from the date such Option is granted.
An employee may receive more than one Option under the Plan.
Non-Employee Directors shall be eligible to receive Non-Qualified
Stock Options in the discretion of the Plan Administrator. In
addition, Non-Qualified Stock Options may be granted to Consultants
who are selected by the Plan Administrator.
<PAGE>
4
6. STOCK SUBJECT TO PLAN
The stock available for grant of Options under the Plan shall be
shares of the Company's authorized but unissued, or reacquired,
Common Stock. Subject to adjustment as provided herein, the maximum
aggregate number of shares of the Company's common stock that may
be optioned and sold under the Plan is 950,000 shares. The maximum
aggregate number of shares of the Company's common stock that may
be optioned and sold under the Plan will be increased effective the
first day of each of the Company's fiscal quarters, beginning with
the fiscal quarter commencing January 1, 2000, by an amount equal
to the lesser of:
(1) The number of shares which is equal to 15% of the
outstanding shares of the Common Stock on the first day
of the applicable fiscal quarter, less the number of
shares of Common Stock which may be optioned and sold
under the Plan prior to the first day of the applicable
fiscal quarter; and
(2) a lesser number of shares of Common Stock determined by
the board of directors of the Company.
The maximum number of shares for which an Option may be granted to
any Optionee during any calendar year shall not exceed three
percent (3%) of the issued and outstanding common shares of the
Company. In the event that any outstanding Option under the Plan
for any reason expires or is terminated, the shares of Common Stock
allocable to the unexercised portion of the Option shall again be
available for Options under the Plan as if no Option had been
granted with regard to such shares.
7. TERMS AND CONDITIONS OF OPTIONS
Options granted under the Plan shall be evidenced by agreements
(which need not be identical) in such form and containing such
provisions that are consistent with the Plan as the Plan
Administrator shall from time to time approve. Such agreements may
incorporate all or any of the terms hereof by reference and shall
comply with and be subject to the following terms and conditions:
(1) Number of Shares. Each Option agreement shall specify the
number of shares subject to the Option.
(2) Option Price. The purchase price for the shares subject
to any Option shall be determined by the Plan
Administrator at the time of the grant, but shall not be
less than 85% of Fair Market Value per share. Anything to
the contrary notwithstanding, the purchase price for the
shares subject to any Incentive Stock Option shall not be
less than 100% of the Fair Market Value of the shares of
Common Stock of the Company on the date the Stock Option
is granted. In the case of any Option granted to an
employee who owns stock possessing more than 10% of the
total combined voting power of all classes of stock of
the Company, or any of its parent or subsidiary
corporations, the
<PAGE>
5
Option price shall not be less than
110% of the Fair Market Value per share of the Common
Stock of the Company on the date the Option is granted.
For purposes of determining the stock ownership of an
employee, the attribution rules of Section 424(d) of the
Code shall apply.
(3) Notice and Payment. Any exercisable portion of a Stock
Option may be exercised only by: (a) delivery of a
written notice to the Company prior to the time when such
Stock Option becomes unexercisable herein, stating the
number of shares bring purchased and complying with all
applicable rules established by the Plan Administrator;
(b) payment in full of the exercise price of such Option
by, as applicable, delivery of: (i) cash or check for an
amount equal to the aggregate Stock Option exercise price
for the number of shares being purchased, (ii) in the
discretion of the Plan Administrator, upon such terms as
the Plan Administrator shall approve, a copy of
instructions to a broker directing such broker to sell
the Common Stock for which such Option is exercised, and
to remit to the Company the aggregate exercise price of
such Stock Option (a "cashless exercise"), or (iii) in
the discretion of the Plan Administrator, upon such terms
as the Plan Administrator shall approve, shares of the
Company's Common Stock owned by the Optionee, duly
endorsed for transfer to the Company, with a Fair Market
Value on the date of delivery equal to the aggregate
purchase price of the shares with respect to which such
Stock Option or portion is thereby exercised (a
"stock-for-stock exercise"); (c) payment of the amount of
tax required to be withheld (if any) by the Company, or
any parent or subsidiary corporation as a result of the
exercise of a Stock Option. At the discretion of the
Plan Administrator, upon such terms as the Plan
Administrator shall approve, the Optionee may pay all or
a portion of the tax withholding by: (i) cash or check
payable to the Company, (ii) a cashless exercise, (iii) a
stock-for-stock exercise, or (iv) a combination of one or
more of the foregoing payment methods; and (d) delivery
of a written notice to the Company requesting that the
Company direct the transfer agent to issue to the
Optionee (or his designee) a certificate for the number
of shares of Common Stock for which the Option was
exercised or, in the case of a cashless exercise, for any
shares that were not sold in the cashless exercise.
Notwithstanding the foregoing, the Company, in its sole
discretion, may extend and maintain, or arrange for the
extension and maintenance of credit to any Optionee to
finance the Optionee's purchase of shares pursuant to the
exercise of any Stock Option, on such terms as may be
approved by the Plan Administrator, subject to applicable
regulations of the Federal Reserve Board and any other
laws or regulations in effect at the time such credit is
extended.
(4) Terms of Option. No Option shall be exercisable after the
expiration of the earliest of: (a) ten years after the
date the Option is granted, (b) three Months after the
date the Optionee's employment with the Company and its
subsidiaries terminates, or a Non-Employee Director or
Consultant ceases to
<PAGE>
6
provide services to the Company, if
such termination or cessation is for any reason other
than Disability or death, (c) one year after the date the
Optionee's employment with the Company, and its
subsidiaries, terminates, or a Non-Employee Director or
Consultant ceases to provide services to the Company, if
such termination or cessation is a result of death or
Disability; provided, however, that the Option agreement
for any Option may provide for shorter periods in each of
the foregoing instances. In the case of an Incentive
Stock Option granted to an employee who owns stock
possessing more than 10% of the total combined voting
power of all classes of stock of the Company, or any of
its parent or subsidiary corporations, the term set forth
in (a) above shall not be more than five years after the
date the Option is granted.
(5) Exercise of an Option. No Option shall be exercisable
during the lifetime of an Optionee by any person other
than the Optionee. Subject to the foregoing, the Plan
Administrator shall have the power to set the time or
times within which each Option shall vest or be
exercisable and to accelerate the time or times of
vesting and exercise; provided, however each Option shall
provide the right to exercise at the rate of at least 20%
per year over five years from the date the Option is
granted. Unless otherwise provided by the Plan
Administrator, each Option will not be subject to any
vesting requirements. To the extent that an Optionee has
the right to exercise an Option and purchase shares
pursuant hereto, the Option may be exercised from time to
time by written notice to the Company, stating the number
of shares being purchased and accompanied by payment in
full of the exercise price for such shares.
(6) No Transfer of Option. No Option shall be transferable by
an Optionee otherwise than by will or the laws of descent
and distribution.
(7) Limit on Incentive Stock Option. The aggregate Fair
Market Value (determined at the time the Option is
granted) of the stock with respect to which an Incentive
Stock Option is granted and exercisable for the first
time by an Optionee during any calendar year (under all
Incentive Stock Option plans of the Company and its
subsidiaries) shall not exceed $100,000. To the extent
the aggregate Fair Market Value (determined at the time
the Stock Option is granted) of the Common Stock with
respect to which Incentive Stock Options are exercisable
for the first time by an Optionee during any calendar
year (under all Incentive Stock Option plans of the
Company and any parent or subsidiary corporations)
exceeds $100,000, such Stock Options shall be treated as
Non-Qualified Stock Options. The determination of which
Stock Options shall be treated as Non-Qualified Stock
Options shall be made by taking Stock Options into
account in the Order in which they were granted.
<PAGE>
7
(8) Restriction on Issuance of Shares. The issuance of
Options and shares shall be subject to compliance with
all of the applicable requirements of law with respect to
the issuance and sale of securities, including, without
limitation, any required qualification under state
securities laws. If an Optionee acquires shares of
Common Stock pursuant to the exercise of an Option, the
Plan Administrator, in its sole discretion, may require
as a condition of issuance of shares covered by the
Option that the shares of Common Stock be subject to
restrictions on transfer. The Company may place a legend
on the share certificates reflecting the fact that they
are subject to restrictions on transfer pursuant to the
terms of this Section. In addition, the Optionee may be
required to execute a buy-sell agreement in favor of the
Company or its designee with respect to all or any of the
shares so acquired. In such event, the terms of any such
agreement shall apply to the optioned shares.
(9) Investment Representation. Any Optionee may be required,
as a condition of issuance of shares covered by his or
her Option, to represent that the shares to be acquired
pursuant to exercise will be acquired for investment and
without a view toward distribution thereof, and in such
case, the Company may place a legend on the share
certificate(s) evidencing the fact that they were
acquired for investment and cannot be sold or transferred
unless registered under the Securities Act of 1933, as
amended, or unless counsel for the Company is satisfied
that the circumstances of the proposed transfer do not
require such registration.
(10) Rights as a Shareholder or Employee. An Optionee or
transferee of an Option shall have no right as a
stockholder of the Company with respect to any shares
covered by any Option until the date of the issuance of a
share certificate for such shares. No adjustment shall
be made for dividends (Ordinary or extraordinary, whether
cash, securities, or other property), or distributions or
other rights for which the record date is prior to the
date such share certificate is issued, except as provided
in paragraph (m) below. Nothing in the Plan or in any
Option agreement shall confer upon any employee any right
to continue in the employ of the Company or any of its
subsidiaries or interfere in any way with any right of
the Company or any subsidiary to terminate the Optionee's
employment at any time.
(11) No Fractional Shares. In no event shall the Company be
required to issue fractional shares upon the exercise of
an Option.
(12) Exercise in the Event of Death. In the event of the death
of the Optionee, any Option or unexercised portion
thereof granted to the Optionee, to the extent
exercisable by him or her on the date of death, may be
exercised by the Optionee's personal representatives,
heirs, or legatees subject to the provisions of paragraph
(d) above.
<PAGE>
8
(13) Recapitalization or Reorganization of the Company.
Except as otherwise provided herein, appropriate and
proportionate adjustments shall be made (1) in the number
and class of shares subject to the Plan, (2) to the
Option rights granted under the Plan, and (3) in the
exercise price of such Option rights, in the event that
the number of shares of Common Stock of the Company are
increased or decreased as a result of a stock dividend
(but only on Common Stock), stock split, reverse stock
split, recapitalization, reorganization, merger,
consolidation, separation, or like change in the
corporate or capital structure of the Company. In the
event there shall be any other change in the number or
kind of the outstanding shares of Common Stock of the
Company, or any stock or other securities into which such
common stock shall have been changed, or for which it
shall have been exchanged, whether by reason of a
complete liquidation of the Company or a merger,
reorganization, or consolidation with any other
corporation in which the Company is not the surviving
corporation, or the Company becomes a wholly-owned
subsidiary of another corporation, then if the Plan
Administrator shall, in its sole discretion, determine
that such change equitably requires an adjustment to
shares of Common Stock currently subject to Options under
the Plan, or to prices or terms of outstanding Options,
such adjustment shall be made in accordance with such
determination.
To the extent that the foregoing adjustments relate to
stock or securities of the Company, such adjustment shall
be made by the Plan Administrator, the determination of
which in that respect shall be final, binding, and
conclusive. No right to purchase fractional shares shall
result from any adjustment of Options pursuant to this
Section. In case of any such adjustment, the shares
subject to the Option shall he rounded down to the
nearest whole share. Notice of any adjustment shall be
given by the Company to each Optionee whose Options shall
have been so adjusted and such adjustment (whether or not
notice is given) shall be effective and binding for all
purposes of the Plan.
In the event of a complete liquidation of the Company or
a merger, reorganization, or consolidation of the Company
with any other corporation in which the Company is not
the surviving corporation, or the Company becomes a
wholly-owned subsidiary of another corporation, any
unexercised Options granted under the Plan shall be
deemed cancelled unless the surviving corporation in any
such merger, reorganization, or consolidation elects to
assume the Options under the Plan or to issue substitute
Options in place thereof; provided, however, that
notwithstanding the foregoing, if such Options would be
cancelled in accordance with the foregoing, the Optionee
shall have the right exercisable during a ten-day period
ending on the fifth day prior to such liquidation,
merger, or consolidation to exercise such Option in whole
or in part without regard to any installment exercise
provisions in the Option agreement.
<PAGE>
9
(14) Modification, Extension and Renewal of Options. Subject
to the terms and conditions and within the limitations of
the Plan, the Plan Administrator may modify, extend or
renew outstanding options granted under the Plan and
accept the surrender of outstanding Options (to the
extent not theretofore exercised). The Plan
Administrator shall not, however, without the approval of
the Board, modify any outstanding Incentive Stock Option
in any manner that would cause the Option not to qualify
as an Incentive Stock Option within the meaning of
Section 422 of the Code. Notwithstanding the foregoing,
no modification of an Option shall, without the consent
of the Optionee, alter or impair any rights of the
Optionee under the Option.
(15) Other Provisions. Each Option may contain such other
terms, provisions, and conditions not inconsistent with
the Plan as may be determined by the Plan Administrator.
8. TERMINATION OR AMENDMENT OF THE PLAN
The Board may at any time terminate or amend the Plan; provided
that, without approval of the holders of a majority of the shares
of Common Stock of the Company represented and voting at a duly
held meeting at which a quorum is present or the written consent of
a majority of the outstanding shares of Common Stock, there shall
be (except by operation of the provisions of paragraph (m) above)
no increase in the total number of shares covered by the Plan, no
change in the class of persons eligible to receive options granted
under the Plan, no reduction in the exercise price of Options
granted under the Plan, and no extension of the latest date upon
which Options may be exercised; and provided further that, without
the consent of the Optionee, no amendment may adversely affect any
then outstanding Option or any unexercised portion thereof.
9. INDEMNIFICATION
In addition to such other rights of indemnification as they may
have as members of the Board Committee that administers the Plan,
the members of the Plan Administrator shall be indemnified by the
Company against reasonable expense, including attorney's fees,
actually and necessarily incurred in connection with the defense of
any action, suit or proceeding, or in connection with any appeal
therein to which they, or any of them, may be a party by reason of
any action taken or failure to act under or in connection with the
Plan or any Option granted thereunder, and against any and all
amounts paid by them in settlement thereof (provided such
settlement is approved by independent legal counsel selected by the
Company). In addition, such members shall be indemnified by the
Company for any amount paid by them in satisfaction of a judgment
in any action, suit, or proceeding, except in relation to matters
as to which it shall have been adjudged that such member is liable
for negligence or misconduct in the performance of his or her
duties, provided however that within 60 days after institution of
any such action, suit, or proceeding, the member shall in writing
offer the Company the opportunity, at its own expense, to handle
and defend the same.
<PAGE>
10
10. EFFECTIVE DATE AND TERM OF THE PLAN
This Plan shall become effective (the "Effective Date") on the date
of adoption by the board of directors. Options granted under the
Plan prior to shareholder approval are subject to cancellation by
the Plan Administrator if shareholder approval is not obtained
within 12 months of the date of adoption. Unless sooner terminated
by the Board in its sole discretion, this Plan will expire on
October 29, 2009.
IN WITNESS WHEREOF, the Company by its duly authorized officer, has
caused this Plan to be executed as of the 29th day of October,
1999.
VIAVID BROADCASTING, INC.
/s/ Brian Kathler
__________________________
By: Brian Kathler
Its: President
<PAGE>
Cane & Company, LLC
Affiliated with O'Neill Ritchie Taylor Law Corporation
of Vancouver, British Columbia, Canada
Michael A. Cane* Stephen F.X. O'Neill**
Leslie L. Kapusianyk** Michael H. Taylor**
Telephone: (702) 312-6255
Facsimile: (702) 312-6249
E-mail: [email protected]
101 Convention Center Drive
Suite 1200
Las Vegas, NV 89109
December 21, 1999
Brian Kathler, President
Viavid Broadcasting, Inc.
3955 Graveley Street
Burnaby, British Columbia, Canada V5C 3T4
Re: Viavid Broadcasting, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Viavid Broadcasting, Inc., a Nevada
corporation (the "Company"), in connection with the preparation
of the registration statement on Form S-8 (the "Registration
Statement") filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as
amended (the "Act"), relating to the offering of certain shares
of the Company's common stock issued through its Incentive Stock
Option Plan (the "Plan"). This opinion is being furnished
pursuant to Item 601(b)(5) of Regulation S-K under the Act.
In rendering the opinion set forth below, we have reviewed (a)
the Registration Statement and the exhibits thereto; (b) the
Company's Articles of Incorporation; (c) the Company's Bylaws;
(d) certain records of the Company's corporate proceedings as
reflected in its minute books; and (e) such statutes, records and
other documents as we have deemed relevant. In our examination,
we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and
conformity with the originals of all documents submitted to us as
copies thereof. In addition, we have made such other examinations
of law and fact as we have deemed relevant in order to form a
basis for the opinion hereinafter expressed.
Based upon the foregoing, we are of the opinion that the common
stock to be issued under the Plan is validly issued, fully paid
and nonassessable.
Very truly yours,
CANE AND COMPANY, LLC
/s/ Michael Cane
_____________________________
Michael A. Cane, attorney and
Managing Member
*Licensed Nevada, California, Washington and Hawaii State Bars
** British Columbia Bar only
<PAGE>
Viavid Broadcasting, Inc.
December 21, 1999
Page 2
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to all references to this Firm under
the caption "Interests of Named Experts and Counsel" in the
Registration Statement.
Very truly yours,
CANE AND COMPANY, LLC
/s/ Michael Cane
_____________________________
Michael A. Cane, attorney and
Managing Member
2
