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As Filed with the Securities and Exchange Commission on February 4, 2000
Registration No. 33-91543
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8/A
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------------
INFORMATION-HIGHWAY.COM, INC.
(Exact name of issuer as specified on its charter)
Florida 65-0154103
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
#185-10751 Shellbridge Way
Richmond, British Columbia V6X 2W8, Canada
(Address of principal executive offices)
AMENDED AND RESTATED INFORMATION HIGHWAY.COM, INC.
STOCK OPTION PLAN
(Full title of the plan)
Please send copies of all communications to:
JOHN G. ROBERTSON JAMES L. VANDEBERG, ESQ.
President, Information-Highway.com, Inc. Vandeberg Johnson & Gandara
#185-10751 Shellbridge Way 600 University Street, Suite 2424
Richmond, British Columbia V6X 2W8 Seattle, Washington 98101-1192
(604) 278-5996 (206) 464-0404
(Name, address including zip code, telephone number, including area code, of
agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Title of Securities Amount Being Proposed Maximum Proposed Maximum Amount of
Being Registered Registered (1) Offering Price Per Aggregate Offering Registration Fee
Share (2) Price (2)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, No Par
Value 1,020,000 $9.8125 $10,008,750.00 $2782.43(3)
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(1) This number represents shares of the Registrant's common stock, no par
value per share ("Common Stock"), being registered for future issuance
under the Amended and Restated Information - Highway.com, Inc. Stock Option
Plan (the "Plan") and shares of Common Stock previously issued to non-
affiliates pursuant to the Plan being registered for resale, but it does
not include either (a) 830,000 shares (and their related option offers)
exempt from registration under Rule 701, (b) 650,000 shares reserved for
issuance under the Plan that are subject to option grants to persons in
connection with transactions for which registration on Form S-8 may not be
available or (c) 500,000 shares added to the Plan by amendment, which are
being registered on a separate registraton statement pursuant to General
Instruction E.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee. Pursuant to Rule 457(h)(1, 3) and Rule 457(c) under the
Securities Act of 1933 (the "Securities Act"), the price per share is
estimated based on the average of the high and low prices reported for
shares of the Registrant's Common Stock as of November 19, 1999.
(3) Previously paid.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in the
Registration Statement:
(a) The Registrant's annual report on Form 10-KSB for the year ended
May 31, 1999.
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act).
(c) The description of the Common Stock contained in the Registrant's
effective registration statement on Form 10-SB, including any
amendments or reports filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities covered hereby then
remaining unsold, shall also be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Item 5. Interests of Named Experts and Counsel.
James L. Vandeberg is a director of the Registrant and a partner in the
law firm of Vandeberg Johnson & Gandara, counsel to the Registrant. Mr.
Vandeberg directly owns 54,500 shares of the Registrant's common stock and has
options to acquire 100,000 shares of the Registrant's common stock at a price of
$4.00 per share that must be exercised by November 5, 2004.
Item 6. Indemnification of Directors and Officers.
The Registrant's Articles of Incorporation provide that the Registrant
must indemnify each of its (i) fiduciaries within the meaning of the Employee
Retirement Income Security Act of 1974, as amended, with respect to any employee
benefit plan, and (ii) directors and officers, to the fullest extent permitted
under the Florida Business Corporation Act, against all liabilities incurred by
reason of the fact that the person is or was a director or officer of the
Registrant or a fiduciary of an employee benefit plan, or is or was serving at
the request of the Registrant as a director or officer, or fiduciary of an
employee benefit plan, of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
The effect of these provisions is potentially to indemnify the
Registrant's directors and officers from all costs and expenses of liability
incurred by them in connection with any action, suit or proceeding in which they
are involved by reason of their affiliation with the Registrant.
Item 7. Exemption from Registration Claimed.
No restricted securities are to be reoffered or resold pursuant to this
registration statement. Of the 3,000,000 shares reserved for issuance under the
Plan, 830,000 are not being registered because they are exempt from registration
pursuant to Rule 701 under the Securities Act of 1933, 650,000 are not being
registered because they are subject to option grants to persons in connection
with transactions for which registration on Form S-8 may not be available and
500,000 shares are being registered on a separate registration statement
pursurant to General Instruction E.
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Item 8. Exhibits.
Exhibit Number Description
- -------------- -----------
4.1 Amended and Restated Information - Highway.com, Inc. Stock
Option Plan
4.2 Form of Stock Option Agreement
5.1 Opinion of Vandeberg Johnson & Gandara
23.1 Consent of Elliott Tulk Pryce Anderson, Chartered Accountants
23.2 Consent of Vandeberg Johnson & Gandara (see Exhibit 5.1)
Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) 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;
(iii) 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 paragraphs (A)(1)(i) and (A)(1)(ii) 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 Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in 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 a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. 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 Registrant
<PAGE>
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is
therefore unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richmond, Province of British Columbia, CANADA, on
February 4, 2000.
INFORMATION-HIGHWAY.COM, INC.
/s/ John G. Robertson
-------------------------------------
John G. Robertson
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<S> <C> <C>
/s/ John G. Robertson President, Chief Executive Officer and 2/4/00
- --------------------------------------------------- -----------------
John G. Robertson Director (Date)
/s/ James L. Vandeberg Vice-President, Chief Operating Officer 2/4/00
- --------------------------------------------------- -----------------
James L. Vandeberg and Director (Date)
/s/ Jennifer Lorette Vice-President, Chief Financial Officer, 2/4/00
- --------------------------------------------------- -----------------
Jennifer Lorette Principal Accounting Officer and Director (Date)
/s/ Donna M. Moroney Director 2/4/00
- --------------------------------------------------- -----------------
Donna M. Moroney (Date)
</TABLE>
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the locations and on the dates set
forth below.
INFORMATION HIGHWAY, INC. STOCK OPTION PLAN
<TABLE>
<S> <C> <C>
/s/ John G. Robertson Richmond, BC Director 2/4/00
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John G. Robertson (Date)
/s/ James L. Vandeberg Seattle, WA Director 2/4/00
- ----------------------------------- -----------------
James L. Vandeberg (Date)
/s/ Jennifer Lorette Richmond, BC Director 2/4/00
- ---------------------------------- -----------------
Jennifer Lorette (Date)
/s/ Donna M. Moroney Director 2/4/00
- ---------------------------------- -----------------
Donna M. Moroney (Date)
</TABLE>
<PAGE>
LIST OF EXHIBITS
Exhibit Number Description
- -------------- -----------
4.1 Amended and Restated Information - Highway.com, Inc.
Stock Option Plan
4.2 Form of Stock Option Agreement
5.1 Opinion of Vandeberg Johnson & Gandara
23.1 Consent of Elliott Tulk Pryce Anderson, Chartered
Accountants
23.2 Consent of Vandeberg Johnson & Gandara (see Exhibit
5.1)
<PAGE>
EXHIBIT 4.1
AMENDED AND RESTATED
INFORMATION-HIGHWAY.COM, INC.
STOCK OPTION PLAN
1. Purpose. The purpose of this Plan is to provide additional incentives
to key employees, officers, directors and consultants of Information-
Highway.com, Inc., and any of its Subsidiaries, thereby helping to attract and
retain the best available personnel for positions of responsibility with those
corporations and otherwise promoting the success of the business activities of
such corporations. It is intended that Options issued under this Plan constitute
either "incentive stock options" within the meaning of Section 422 of the Code
or nonqualified stock options.
2. Definitions. As used herein, the following definitions apply:
(a) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(b) "Board" means the Board of Directors of the Employer.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Common Stock" means the Employer's common stock.
(e) "Committee" means the Board or the Committee appointed by the
Board in accordance with Section 4(a).
(f) "Continuous Status as an Employee" means the absence of any
interruption or termination of service as an Employee; Continuous Status as
an Employee will not be considered interrupted in the case of sick leave,
military leave, or any other approved leave of absence.
(g) "Employee" means any person employed by or serving as an
employee, consultant, officer or director of the Employer or any Subsidiary
of the Employer which is hereafter organized or acquired by the Employer.
(h) "Employer" means Information-Highway.com, Inc., a Florida
corporation.
(i) "Nonemployee Director" has the meaning set forth in Rule 16b-3
under the 1934 Act.
(j) "Option" means a stock option granted under the Plan, which may
constitute either Incentive Stock Options (as provided for under Section
422 of the Code), or Nonqualified Stock Options.
(k) "Optioned Stock" means the Common Stock subject to an Option.
(l) "Optionee" means an Employee who receives an Option.
(m) "Plan" means this Employee Stock Option Plan, as amended from
time to time.
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(n) "Shareholder-Employee" means an Employee who owns stock
representing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Employer or of any Subsidiary; for this
purpose, the attribution of stock ownership rules provided in Section 424
of the Code apply.
(o) "Subsidiary" means any bank or other corporation of which not
less than fifty percent (50%) of the voting shares are held by the Employer
or a Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Employer or a Subsidiary.
3. Stock Subject to Options.
(a) Number of Shares Reserved. The maximum number of shares which
may be optioned and sold under the Plan is three million (3,000,000) shares
of Common Stock of the Employer, subject to adjustment as provided in
Section 6(i). During the term of this Plan, the Employer will at all times
reserve and keep available a sufficient number of shares of its Common
Stock to satisfy the requirements of the Plan.
(b) Expired Options. If any outstanding Option expires or becomes
unexercisable for any reason without having been exercised in full, the
shares of Common Stock allocable to the unexercised portion of such Option
will again become available for other Option grants.
4. Administration of the Plan.
(a) The Committee. The Plan is administered by the Board directly,
acting as a Committee of the whole, or if the Board elects, by a separate
Committee appointed by the Board for that purpose and consisting solely of
two or more Nonemployee Directors. All references in the Plan to the
"Committee" are to such separate Committee, if any is established, or if
none is then in existence, then to the Board as a whole. Once appointed,
any such Committee must continue to serve until otherwise directed by the
Board. From time to time the Board may increase the size of the Committee
and appoint additional members thereto, remove members (with or without
cause), appoint new members in substitution therefor, and fill vacancies
(however caused). At all times, the Board has the power to remove all
members of the Committee and thereafter to directly administer the Plan as
a Committee of the whole.
(b) Meetings; Reports. The Committee shall select one of its members
as chairman, and hold meetings at such times and places as the chairman or
a majority of the Committee may determine. All actions of the Committee
must be either by (i) a majority vote of the members of the full Committee
at a meeting of the Committee, or (ii) by unanimous written consent of all
members of the full Committee without a meeting. At least annually, the
Committee must present a written report to the Board indicating the
Employees to whom Options have been granted since the date of the last such
report, and in each case the date or dates of Options granted, the number
of shares optioned, and the Option price per share.
(c) Powers of the Committee. Subject to all provisions and
limitations of the Plan, the Committee has the authority and discretion to:
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(1) Determine the Employees to whom Options are to be granted, the times
of grant, and the number of shares to be represented by each Option,
subject to the provisions of Section 6(b) in the case of Incentive Stock
Options;
(2) Determine the Option price for the shares of Common Stock to be issued
pursuant to each Option, subject to the provisions of Section 6(b) in the
case of Incentive Stock Options;
(3) Determine all other terms and conditions of each Option granted under
the Plan (including specifying the dates upon which Options become
exercisable and whether and to whom Options are transferable), which need
not be identical;
(4) Modify or amend the terms of any Option previously granted, or to
grant substitute Options, subject to the provisions of Sections 6(l) and
6(m);
(5) Interpret the Plan;
(6) Authorize any person or persons to execute and deliver Option
agreements or to take any other actions deemed by the Committee to be
necessary or appropriate to effectuate the grant of Options by the
Committee; and
(7) Make all other determinations and take all other actions which the
Committee deems necessary or appropriate to administer the Plan in
accordance with its terms and conditions.
(d) Final Authority; Limitation of Liability. The Committee's
decisions, determinations and interpretations are final and binding on all
persons, including all Optionees and any other holders or persons
interested in any Options, unless otherwise expressly determined by a vote
of the majority of the entire Board. No member of the Committee or of the
Board may be held liable for any action or determination made in good faith
with respect to the Plan or any Option.
5. Eligibility; Limitation of Rights. Options may be granted only to
Employees whom the Committee, in its discretion, determines to be key Employees.
The grant of Options under the Plan is entirely discretionary with the
Committee, and the adoption of the Plan does not confer upon any Employee any
right to receive any Option or Options unless and until granted by the
Committee, in its sole discretion. Neither the adoption of the Plan nor the
grant of any Options to any Employee or Optionee will confer any right to
continued employment, nor shall the same interfere in any way with the
Employee's right or that of the Employer (or any Subsidiary) to terminate the
Employee's employment at any time.
6. Option Terms; Conditions. All Option grants under the Plan must be (i)
approved in advance by the Committee; and (ii) documented in written Option
agreements in such form as the Committee approves from time to time. All Option
agreements must comply with, and are subject to the following terms and
conditions:
(a) Number of Shares; Annual Limitation. Each Option agreement must state
whether the Option is an Incentive Stock Option or a Nonqualified Stock
Option, and the number of shares subject to Option. Any number of Options
may be granted to a single eligible Employee at any time and from time to
time, except that, in the case of Incentive Stock Options, the aggregate
fair market value (determined as of the time each Option is granted) of all
shares of Common Stock with respect to which Incentive Stock Options
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become exercisable for the first time by such Employee in any one calendar
year (under all incentive stock option plans of the Employer and all of its
Subsidiaries taken together) may not exceed one hundred thousand dollars
($100,000).
(b) Option Price. The Option price for the shares of Common Stock to be
issued under the Option will be the price determined by the Committee,
except that, in the case of Incentive Stock Options, the price may not be
less than the fair market value of the Common Stock on the date of grant of
the Incentive Stock Option. In the case of an Incentive Stock Option
granted to an Employee who, immediately before the grant of such Incentive
Stock Option, is a Shareholder-Employee, the Incentive Stock Option price
must be at least one hundred and ten percent (110%) of the fair market
value of the Common Stock on the date of grant of the Incentive Stock
Option. Fair market value is determined by the Committee in its discretion;
provided, however, that in the event that there is a public market for the
Common Stock, the fair market value is, if available, (i) the closing price
of the Common Stock as of the date of grant as reported (in descending
order of priority) on (A) a national securities exchange listing the Common
Stock, (B) the Nasdaq Stock Market, (C) a national automated quotation
system with daily trading volume in the Common Stock in excess of 10,000
shares, or (D) a regional securities exchange listing the Common Stock, and
otherwise (ii) the average of the closing bid and asked prices of the
Common Stock for the previous five trading days.
(c) Consideration; Manner of Exercise. The Option price is payable either
(i) in U.S. dollars upon exercise of the Option, or (ii) if approved by the
Board, other consideration including without limitation Common Stock of the
Employer, services, or other property. An Option is deemed to be exercised
when written notice of exercise has been given to the Employer in
accordance with the terms of the Option by the person entitled to exercise
the Option, together with full payment for the shares of Common Stock
subject to said notice.
(d) Term of Option. Under no circumstances may an Option granted under
the Plan be exercisable after the expiration of ten (10) years from the
date such Option is granted. Further, the term of an Incentive Stock Option
granted to an Employee who, immediately before such Incentive Stock Option
is granted, is a Shareholder-Employee may not exceed five (5) years from
the date of grant of such Option. Subject to the foregoing and other
applicable provisions of the Plan including but not limited to Section
6(e), the term of each Option must be determined by the Committee in its
discretion.
(e) Date of Grant; Holding Period. The grant date of an Option, for all
purposes, is the date the Committee makes the determination granting the
Option, as set forth in the Option agreement. Shares of Common Stock
obtained upon the exercise of any Option may not be sold by any Optionee
that is subject to Section 16 of the 1934 Act until six (6) months have
elapsed since the date of the Option grant.
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(f) Death of Optionee. In the event of the death of an Optionee who at
the time of his death was an Employee and who had been in Continuous Status
as an Employee since the date of grant of the Option, the Option terminates
on the earlier of (i) six (6) months after the date of death of the
Optionee, or (ii) the expiration date otherwise provided in the Option
agreement (except that if the expiration date of a Nonqualified Stock
Option should occur during the 90-day period immediately following the
Optionee's death, such Option terminates at the end of such 90-day period).
Under these circumstances, the Option will be exercisable at any time prior
to such termination by the Optionee's estate, or by such person or persons
who have acquired the right to exercise the Option by bequest or by
inheritance or by reason of the death of the Optionee.
(g) Disability of Optionee. If an Optionee's status as an Employee is
terminated at any time during the Option period by reason of a disability
(within the meaning of Section 22(e)(3) of the Code) and if the Optionee
had been in Continuous Status as an Employee at all times between the date
of grant of the Option and the termination of his status as an Employee,
the Option terminates on the earlier of (i) one (1) year after the date of
termination of his status as an Employee, or (ii) the expiration date
otherwise provided in the Option agreement.
(h) Termination of Status as an Employee. If an Optionee's status as an
Employee is terminated at any time after the grant of an Option by the
Optionee for any reason other than death or disability, as provided in
Sections 6(f) and 6(g), and not by the Company, as provided below, the
Option terminates on the earlier of (i) thirty (30) days following
termination of status as an Employee, or (ii) the expiration date otherwise
provided in the Option agreement. If an Optionee's status as an Employee is
terminated at any time after the grant of an Option by the Company for any
reason, then the Option terminates on the date of termination of status as
an Employee.
(i) Nontransferability of Options. No Option granted under the Plan may
be sold, pledged, assigned, hypothecated, transferred, or disposed of in
any manner other than by will or by the laws of descent or distribution and
may be exercised, during the lifetime of the Optionee, only by the
Optionee.
(j) Adjustments Upon Changes in Capitalization. Subject to any required
action by the shareholders of the Employer, the number of shares of Common
Stock covered by each outstanding Option, the number of shares of Common
Stock available for grant of additional Options, and the price per share of
Common Stock specified in each outstanding Option, must be proportionately
adjusted for any increase or decrease in the number of issued shares of
Common Stock resulting from any stock split or other subdivision or
consolidation of shares, the payment of any stock dividend (but only on the
Common Stock) or any other increase or decrease in the number of such
shares of Common Stock effected without receipt of consideration by the
Employer; provided, however, that conversion of any convertible securities
of the Employer will not be deemed to have been "effected without receipt
of consideration."
Any adjustments as a result of a change in the Employer's capitalization
will be made by the Committee, whose determination in that respect is final,
binding and conclusive, subject to the condition that no Incentive Stock Option
may be adjusted by the Committee under this Section 6(j) in a manner that causes
the Option to fail to continue to qualify
5
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as such within the meaning of Section 422 of the Code. Except as otherwise
expressly provided in this Section 6(j), no Optionee shall have any rights by
reason of any stock split or the payment of any stock dividend or any other
increase or decrease in the number of shares of Common Stock. Except as
otherwise expressly provided in this Section 6(j), any issue by the Employer of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall not affect the number of shares or price of Common Stock
subject to any Options, and no adjustments in Options shall be made by reason
thereof. The grant of an Option under the Plan does not in any way affect the
right or power of the Employer to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure.
(k) Conditions Upon Issuance of Shares. Shares of Common Stock may not be
issued with respect to an Option granted under the Plan unless the exercise
of the Option and the issuance and delivery of such shares pursuant thereto
complies with all applicable provisions of law, including, applicable
federal and state securities laws.
As a condition to the exercise of an Option, the Employer may require the
person exercising such Option to represent and warrant at the time of exercise
that the shares of Common Stock are being purchased only for investment and
without any present intention to sell or distribute such Common Stock if, in the
opinion of counsel for the Employer, such a representation is required by any
relevant provisions of law.
(l) Merger, Sale of Assets, Etc. In the event of the merger or
reorganization of the Employer with or into any other corporation, or in
the event of a proposed sale of substantially all of the assets of the
Employer, or in the event of a proposed dissolution or liquidation of the
Employer (collectively, "sale transaction"): (i) all outstanding Options
that are not then fully exercisable becomes exercisable immediately before
the date of closing of any sale transaction or such earlier date as the
Committee may fix; and (ii) the Committee may, in the exercise of its sole
discretion, terminate all outstanding Options as of a date fixed by the
Committee. In the event of such termination, however, the Committee must
notify each Optionee of such action in writing not less than sixty (60)
days prior to the termination date fixed by the Committee, and each
Optionee has the right to exercise his Option prior to said termination
date.
(m) Substitute Stock Options. In connection with the acquisition or
proposed acquisition by the Employer or any Subsidiary, whether by merger,
acquisition of stock or assets, or other reorganization transaction, of a
business any employees of which have been granted incentive stock options,
the Committee is authorized to issue, in substitution of any such
unexercised stock option, a new Option under this Plan which confers upon
the Optionee substantially the same benefits as the old option; provided,
however, that the issuance of any new Option for an old incentive stock
option must satisfy the requirements of Section 424(a) of the Code. As
amended, this Plan implements an agreement between Information Highway,
Inc., a Washington corporation which became a Subsidiary of the Employer in
February 1999 and had previously been the Employer hereunder, and the
Employer that the Employer assume the responsibility to issue shares of its
Common Stock in respect to all Options previously granted by Information
Highway, Inc.
(n) Tax Compliance. The Employer, in its sole discretion, may take any
actions that it reasonably believes to be required in order to comply with
any local, state, or federal tax laws relating to the reporting or
withholding of taxes attributable to the grant or exercise of any Option or
the disposition of any shares of Common Stock issued upon exercise of an
Option, including, but not limited to: (i) withholding from any Optionee
exercising an Option a number of shares of Common Stock having a fair
market value equal to the amount required to be withheld by Employer under
applicable tax laws, and (ii) withholding from
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any form of compensation or other amount due an Optionee or holder of
shares of Common Stock issued upon exercise of an Option any amount
required to be withheld by Employer under applicable tax laws. Withholding
or reporting is considered required for purposes of this Section 6(n) if
any tax deduction or other favorable tax treatment available to Employer is
conditioned upon such reporting or withholding.
(o) Other Provisions. Option agreements executed under the Plan may
contain such other provisions as the Committee deems advisable, provided
that: (i) they are not inconsistent with any of the other terms and
conditions of the Plan or applicable laws, and (ii) in the case of
Incentive Stock Options, the provisions are not inconsistent with the
provisions of Section 422 of the Code.
7. Term of the Plan. The Plan is effective on the earlier of (i) the date
of adoption of the Plan by the Board; or (ii) the date of shareholder approval,
as required under Section 9. Unless sooner terminated as provided in Section 8,
the Plan will terminate on the tenth (10th) anniversary of its effective date.
Options may be granted at any time after the effective date and prior to the
date of termination of the Plan.
8. Amendment; Early Termination. The Board may terminate or amend the
Plan at any time and in such respects as it deems advisable, although no
amendment or termination would affect any previously-granted Options, which
would remain in full force and effect notwithstanding any amendment or
termination of the Plan Shareholder approval of any amendments to the Plan must
be obtained whenever required by applicable law(s).
9. Shareholder Approval. Continuance of the Plan is subject to approval
of the Plan by affirmative vote of the holders of a majority of the outstanding
shares of Common Stock of the Employer at a duly convened meeting of the
shareholders of the Employer, which approval must occur within twelve (12)
months before or after the date of adoption of the Plan by the Board.
* * * *
CERTIFICATE OF ADOPTION
I certify that the foregoing plan was adopted by the Board on
_____________________ 1997, and approved by the Employer's shareholders on
____________________, 1997.
----------------------------
Jennifer Lorette
Secretary
Information Highway, Inc.
7
<PAGE>
SCHEDULE A
Option Grant Schedule
Name of No. of Shares Date(s) First
Optionee Under Option Date of Grant Exercisable
- - --------------- ---------------------- ----------------- ---------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
================================================================================
The Option awards listed above were approved by the Committee (or the
entire Board, acting as the Plan Administrator) on this ___ day of
_____________________, ________.
_________________________ ____________________________
(Signature of Member) (Signature of Member)
_________________________ ____________________________
(Signature of Member) (Signature of Member)
_________________________ ____________________________
(Signature of Member) (Signature of Member)
8
<PAGE>
EXHIBIT 4.2
INFORMATION HIGHWAY, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-Qualified Stock Option Agreement ("Agreement") is entered into by
and between INFORMATION-HIGHWAY.COM, INC. (the "Employer") and
__________________ ("Optionee").
Pursuant to Employer's Amended and Restated Stock Option Plan (the "Plan"),
Employer hereby grants to Optionee an irrevocable non-qualified stock option to
purchase ________________ shares of common stock of Employer at an option price
of $________ per share, payable in cash on the date of exercise.
The date of grant of this option is______________________. This option
shall terminate on the fifth anniversary of the date of grant, unless sooner
terminated by reason of death, disability or other termination of status as an
Employee, as defined in the Plan.
This option shall become vested and eligible for exercise upon date of
grant after which date this option shall be exercisable in whole or in part at
any time and from time to time until the date of termination of this option.
Exercise must be by actual delivery to Employer of a written notice of exercise
signed by Optionee specifying the number of shares and accompanied by payment of
the full amount of the option exercise price.
The sale of common stock acquired on exercise of a stock option is limited
by the following schedule:
1. Up to 25% of the shares acquired may be sold within 90 days of
exercise;
2. Up to 50% (on an aggregate basis) of the shares acquired may be sold
within 180 days of exercise;
3. Up to 75% (on an aggregate basis) of the shares acquired may be sold
within 270 days of exercise; and
4. All such shares may be sold 360 days after exercise.
All of the terms and conditions of the Plan are hereby incorporated by this
reference as a part of this Agreement as if said terms and conditions had been
included herein.
EXECUTED as of this ______ day of _____________, 200__.
OPTIONEE: EMPLOYER:
INFORMATION HIGHWAY, INC.,
a Washington corporation
By:
- ----------------------------------- -----------------------------------
John G. Robertson, President
<PAGE>
EXHIBIT 5.1
[Letterhead of Vandeberg Johnson & Gandara]
February 4, 2000
INFORMATION-HIGHWAY.COM, INC.
#185-10751 Shellbridge Way
Richmond, British Columbia V6X 2W8, Canada
Re: Registration Statement on Form S-8 of Information-Highway.com, Inc.;
Amended and Restated Information - Highway.com, Inc. Stock Option
Plan
Ladies and Gentlemen:
We have acted as counsel to Information-Highway.com, Inc. (the "Company")
in connection with the filing of the above-referenced Registration Statement
(the "Registration Statement") relating to the registration of 1,020,000 shares
(the "Shares") of Common Stock, no par value per share, of the Company issuable
under the Amended and Restated Information - Highway.com, Inc. Stock Option Plan
(the "Plan"). In connection therewith, we have reviewed the Company's Articles
of Incorporation, Bylaws, minutes of appropriate meetings, a copy of the Plan
and such other matters we deemed appropriate.
Based on that review, it is our opinion that the Shares will be, when sold
pursuant to the terms contemplated by the Registration Statement, validly
issued, fully paid and non-assessable shares.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement.
Very truly yours,
Vandeberg Johnson & Gandara
/s/ James L. Vandeberg
James L. Vandeberg
<PAGE>
EXHIBIT 23.1
CONSENT OF ELLIOTT, TULK, PRYCE, ANDERSON, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the registration of 1,020,000 shares of common stock
issuable under the Amended and Restated Information - Highway.com, Inc. Stock
Option Plan of our report dated September 15, 1999, with respect to the
financial statements of Information-Highway.com, Inc. included in its Annual
Report (Form 10-KSB) for the year ended May 31, 1999.
/s/ "Elliott, Tulk, Pryce, Anderson"
Chartered Accountants
Vancouver, Canada
February 4, 2000
