<PAGE>
SCHEDULE 14A
(Rule 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant /X/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/ / Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
/X/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
VOICE MOBILITY INTERNATIONAL, INC.
------------------------------------------------
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/X/ No fee required.
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4)
and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing
fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
/ / Fee paid previously with preliminary materials.
/ / Check box if any part of the fee if offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
1
<PAGE>
May 19, 2000
Dear Stockholder:
On behalf of the Board of Directors (the "Board"), I cordially
invite you to the annual meeting of the stockholders (the "Annual Meeting")
of Voice Mobility International, Inc. (the "Company") which will be held on
June 9, 2000 at 2:00 p.m. at the Metropolitan Hotel, Connaught Room, located
at 645 Howe Street, Vancouver, British Columbia, Canada, V6C 2Y9. . I hope
that you will be able to attend in person. Following the formal business of
the Annual Meeting, management will be available to respond to your questions.
At the Annual Meeting, stockholders will be asked to consider and
vote upon the following matters:
(1) To approve an increase in the total amount of the Company's
authorized common stock, $.001 par value per share (the
"Common Stock"), from 50,000,000 authorized shares of Common
Stock, to 100,000,000 authorized shares of Common Stock (the
"Capital Stock Increase"), and
(2) To consider and vote on the adoption of Amended and Restated
Bylaws of the Company (the "Amended Bylaws");
(3) To elect Thomas G. O'Flaherty, James J. Hutton, William E.
Krebs, Randy G. Buchamer, Colin Corey, Morgan Sturdy, and
David Scott as the directors of the Company for the following
year;
(4) To consider and vote on the the Company's 1999 Stock Option
Plan which authorized the issuance of stock options to acquire
up to 5,000,000 shares of Common Stock, as well as certain
amendments to the Company's 1999 Stock Option Plan (the
"Amended 1999 Plan") which, among other things, would increase
the total amount of shares of Common Stock authorized to be
issued under the Amended 1999 Plan from 5,000,000 to
10,000,000 ; and
After careful consideration and consultation with its legal and
financial advisors, the Board has approved, and recommends that the
stockholders vote "FOR" the Capital Stock Increase, that the stockholders
vote "FOR" the Amended Bylaws, that the stockholders vote "FOR" the directors
nominated by the Board, and that the stockholders vote "FOR" the amendment to
the 1999 Stock Option Plan.
At the Annual Meeting, each holder of record of shares of Common
Stock as of May 12, 2000 (the "Record Date"), will be entitled at the meeting
to one (1) vote on each matter properly brought before the Annual Meeting.
The holders of the Company's Series A Preferred Shares will be entitled to
vote that number of shares equal to the unexercised exchange portion of those
6,600,000 "Exchange B" shares ("Exchangeable Shares") of Voice Mobility
Canada, Inc. Holders of Exchangeable Shares which are exchanged prior to or
on the Record Date would then have
2
<PAGE>
become holders of Common Stock and would be entitled to vote such Common
Stock as set forth herein.
The increase in the Company's authorized Common Stock (the "Capital
Stock Increase") requires the approval of the majority of the outstanding
shares of Common Stock and Exchangeable Shares. Holders of Common Stock and
Exchangeable Shares are not entitled to dissenters' rights in the event the
Capital Stock Increase is approved. The election of directors requires that
each person nominated as a director receive a plurality of the votes cast
pursuant to Article II, Section 10 of the Bylaws of the Company.
The Board of Directors believes the increase in the authorized
Common Stock of the Company will allow the Company to have greater
flexibility in financing the its continuing operations. For a further
discussion of the purpose and effect of the increase in the total amount of
the Company's authorized Common Stock, see "Proposal 1 - Increase in the
Company's Total Authorized Common Stock-Purpose and Effect of Increase in
Total Authorized Common Stock of the Company" in the accompanying Proxy
Statement.
The Board of Directors has approved the Amended Bylaws in an effort
to streamline corporate governance of the Company and to conform the
Company's bylaws to industry standards. Additionally, the Amended Bylaws
would provide for indemnification of the Company's officers and directors
against any proceeding, including a derivative action, brought against such
officers or directors based on actions they have taken as officers or
directors of the Company, provided such officer or director acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Company. For a discussion of the purpose and
effect of the Amended Bylaws, see "Proposal 2 - Approval of the Amended and
Restated Bylaws of the Company" in the accompanying proxy statement.
The Board of Directors believes that the Amended 1999 Plan will
increase the ability of the Company to award options to meritorious employees
thereby allowing the Company to attract and retain people for key positions,
to encourage and assist its key employees, directors, advisers and
subsidiaries to acquire or retain an appropriate stake in the Company's
future, to provide additional incentives to such persons, to allow the
Company to continue to rationalize the capital held by its founders and key
leaders, and to foster continued growth of the Company. For a further
discussion of the purpose and effect of the amendment to the 1999 Stock
Option Plan, see "Proposal 3 - Approval of Amendment to the 1999 Stock Option
Plan" in the accompanying Proxy Statement.
Details of the Capital Stock Increase proposal, and the names and
qualifications of the nominees for Directors of the Company and other
important information are set forth in the accompanying Proxy Statement and
should be considered carefully by stockholders.
I hope that you will attend the Annual Meeting. Whether or not you
plan to attend the Annual Meeting and regardless of the number of shares of
stock you own, please complete, date and sign the enclosed proxy card and
return it promptly in the accompanying envelope. You may, of course, attend
the Annual Meeting and vote in person, even if you have previously returned
your proxy card.
3
<PAGE>
Sincerely,
VOICE MOBILITY INTERNATIONAL, INC.
By: /s/ William E. Krebs
--------------------
William E. Krebs, Chairman of the Board
4
<PAGE>
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
Notice is hereby given that Voice Mobility International, Inc. (the
"Company") will hold its Annual Meeting of Stockholders on June 9, 2000 at
2:00 p.m., Pacific Daylight Time at the Metropolitan Hotel, Connaught Room,
located at 645 Howe Street, Vancouver, British Columbia, Canada, V6C 2Y9. .
The Annual Meeting is being held for the following purposes:
PROPOSAL 1: To approve an increase in the total amount of the
Company's authorized common stock, $.001 par value
per share (the "Common Stock"), from 50,000,000
authorized shares of Common Stock, to 100,000,000
authorized shares of Common Stock (the "Capital
Stock Increase") pursuant to the amendment to the
Company's Articles of Incorporation set forth on
EXHIBIT 1 hereto, and
PROPOSAL 2: To ratify the adoption of Amended and Restated
Bylaws as the bylaws of the Company attached as
EXHIBIT 2 hereto;
PROPOSAL 3: To elect Thomas G. O'Flaherty, James J. Hutton,
William E. Krebs, Randy G. Buchamer, Colin Corey,
Morgan Sturdy and David Scott as the directors of
the Company for the following year;
PROPOSAL 4: To consider and vote on the approval of the Voice
Mobility International, Inc. 1999 Stock Option Plan
("1999 Plan") a copy of which is attached hereto as
EXHIBIT 3.1, which authorized the issuance of stock
options to acquire up to 5,000,000 shares of Common
Stock together with the Voice Mobility International,
Inc. Amended and Restated 1999 Stock Option Plan
(the "Amended 1999 Plan") a copy of which is attached
hereto as EXHIBIT 3.2, which would increase the total
amount of shares of Common Stock authorized to be
issued under the Amended 1999 Plan from 5,000,000 to
10,000,000 shares of Common Stock; and
To consider and vote on such other matters as may
properly be presented at the Annual Meeting or any
adjournment or postponement thereof.
The Board of Directors has fixed May 12, 2000 as the Record Date for
the determination of the stockholders entitled to notice of, and to vote at,
the Annual Meeting or any adjournment or postponement. Holders of the
Company's Common Shares and the "Exchange B" Shares ("Exchangeable Shares")
of Voice Mobility Canada, Inc. on the Record Date are entitled to participate
in and vote at the Annual Meeting. At the Annual Meeting, each of the Common
Shares represented at the meeting will be entitled to one vote on each matter
properly brought before the Annual Meeting. The holders of the Company's
Series A Preferred Shares will be entitled to vote that number of shares
equal to the unexercised exchange portion of those 6,600,000 "Exchange B"
shares ("Exchangeable Shares") of Voice Mobility Canada, Inc. Holders of
Exchangeable Shares which are exchanged for Common Stock prior to or on the
Record Date would be entitled to vote such Common Stock as set forth herein.
5
<PAGE>
Your attention is directed to the accompanying information statement
and exhibits which summarize each item. Stockholders who do not expect to
attend the Annual Meeting in person and who are entitled to vote are
requested to date, sign and return the enclosed proxy as promptly as possible
in the enclosed envelope.
Dated: May 19, 2000
BY ORDER OF THE BOARD OF DIRECTORS
By: /s/ William E. Krebs
--------------------
William E. Krebs, Chairman of the Board
6
<PAGE>
STOCKHOLDER INFORMATION ON ANNUAL MEETING
The enclosed materials have been prepared to provide each
stockholder with information concerning the matters to be considered at the
Annual Meeting. Please read these materials carefully before you vote on the
enclosed proxy or at the Annual Meeting.
VOTING
In voting, please specify your choices by marking the appropriate
spaces on the enclosed proxy, signing and dating the proxy and returning it
in the accompanying envelope. If no directions are given and the signed proxy
is returned, the proxy holders will vote the shares in favor of Proposals 1,
2, 3 and 4 and at their discretion on any other matters that may properly
come before the Annual Meeting. In situations where brokers are prohibited
from exercising discretionary authority for beneficial owners who have not
returned proxies to the brokers (so-called "broker non-votes"), the affected
shares will be counted for purposes of determining the presence or absence of
a quorum for the transaction of business but will not be included in the vote
totals. Therefore, a failure by a stockholder to return a proxy and indicate
their vote on Proposals 1, 2, 3 and 4 will, in effect, be treated as a
non-vote on Proposals 1, 2, 3 and 4 since shares cannot be counted as voting
"FOR" Proposals 1, 2, 3 or 4 if a proxy is not returned.
The approval of Proposal 1 requires that the Company's Articles of
Incorporation be amended. Under Section 78.390 of the Nevada Revised Statutes
(the "Revised Statutes"), amendment of the Company's Articles of
Incorporation requires the affirmative vote of a majority of the outstanding
shares of Common Stock and Exchangeable Shares.
THE BOARD OF DIRECTORS RECOMMENDS VOTING "FOR" PROPOSAL 1 TO AMEND
THE ARTICLES OF INCORPORATION TO EFFECT THE INCREASE IN THE TOTAL AMOUNT OF
THE COMPANY'S AUTHORIZED COMMON STOCK, $.001 PAR VALUE TO 100,000,000 SHARES.
Approval of the Amended and Restated Bylaws (the "Amended Bylaws")
as the bylaws of the Company requires the affirmative vote of a majority of
all Common Stock and Exchangeable Shares issued and outstanding.
THE BOARD OF DIRECTORS RECOMMENDS VOTING "FOR" PROPOSAL 2 TO APPROVE
THE AMENDED AND RESTATED BYLAWS.
The election of Directors requires that each person nominated as a
Director receive a plurality of the votes cast pursuant to Article II,
Section 10 of the Bylaws of the Company.
THE BOARD OF DIRECTORS RECOMMENDS VOTING "FOR" PROPOSAL 3 TO ELECT
ALL NOMINEES AS THE DIRECTORS OF THE COMPANY UNTIL THE NEXT ANNUAL MEETING OF
STOCKHOLDERS.
7
<PAGE>
Approval of the Voice Mobility International, Inc. 1999 Plan and the
Amended 1999 Plan each requires the affirmative vote of a majority of the
votes cast pursuant to Article II, Section 10 of the Bylaws of the Company.
THE BOARD OF DIRECTORS RECOMMENDS VOTING "FOR" PROPOSAL 4 TO APPROVE
THE AMENDED 1999 PLAN.
A STOCKHOLDER HAS THE RIGHT TO APPOINT A PERSON (WHO NEED NOT BE A
STOCKHOLDER) TO ATTEND AND ACT FOR HIM AND ON HIS BEHALF AT THE ANNUAL
MEETING OTHER THAN THE PERSONS DESIGNATED IN THE ACCOMPANYING FORM OF PROXY.
TO EXERCISE THIS RIGHT, THE STOCKHOLDER MAY INSERT THE NAME OF THE DESIRED
PERSON IN THE BLANK SPACE PROVIDED IN THE PROXY AND STRIKE OUT THE OTHER
NAMES OR MAY SUBMIT ANOTHER PROXY.
THE SHARES REPRESENTED BY PROXIES IN FAVOR OF MANAGEMENT WILL BE
VOTED ON ANY BALLOT (SUBJECT TO ANY RESTRICTIONS THEY MAY CONTAIN) IN FAVOR
OF THE MATTERS DESCRIBED IN THE PROXY.
REVOCABILITY OF PROXIES
Any stockholder giving a proxy has the power to revoke it at any
time before the proxy is voted. In addition to revocation in any other manner
permitted by law, a proxy may be revoked by instrument in writing executed by
the stockholder or by his attorney authorized in writing, or, if the
stockholder is a corporation, under its corporate seal or by an officer or
attorney thereof duly authorized, and deposited at the executive office of
the Company located at Suite 180 - 13777 Commerce Parkway Richmond, British
Columbia, Canada V6V 2X3, at any time up to and including the last business
day preceding the day of the meeting, or any adjournment thereof, or with the
chairman of the meeting on the day of the meeting. Attendance at the Annual
Meeting will not in and of itself constitute revocation of a proxy.
OUTSTANDING COMMON STOCK AND SERIES A PREFERRED SHARES
Holders of record of Common Stock at the close of business on May
12, 2000, the Record Date, will be entitled to receive notice of and vote at
the meeting. Currently the Company is authorized to issue 50,000,000 shares
of Common Stock and 1,000,000 shares of preferred stock, par value of $.001
US per share ("Preferred Stock"). On the Record Date, there were 23,394,037
common share equivalents, consisting of 16,794,037 shares of Common Stock
and one share of the Company's Series A Preferred Shares. The Company's
Series A Preferred Shares are exchangeable into 6,600,000 shares of Common
Stock issuable on conversion of all outstanding Exchangeable Shares
outstanding. The holders of Common Stock are entitled to one (1) vote for
each share held. The holders of the Company's Series A Preferred Shares will
be entitled to vote that number of shares equal to the unexercised exchange
portion of those 6,600,000 "Exchange B" shares ("Exchangeable Shares") of
Voice Mobility Canada, Inc.
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<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
We have set forth in the following table certain information
regarding our Common Stock beneficially owned on March 17, 2000, for (i) each
shareholder we know to be the beneficial owner of 5% or more of our
outstanding common stock, (ii) each of the our executive officers and
directors, and (iii) all executive officers and directors as a group. In
general, a person is deemed to be a "beneficial owner" of a security if that
person has or shares the power to vote or direct the voting of such security,
or the power to dispose or to direct the disposition of such security. A
person is also deemed to be a beneficial owner of any securities of which the
person has the right to acquire beneficial ownership within 60 days. At March
17, 2000 we had outstanding 23,060,321 common share equivalents, consisting
of 16,460,321 shares of Common Stock and 6,600,000 shares issuable upon
conversion of all the outstanding Exchangeable Shares.
<TABLE>
<CAPTION>
NAME AND ADDRESS NUMBER OF SHARES OF COMMON PERCENT OF
OF SECURITY HOLDER STOCK BENEFICIALLY OWNED BENEFICIAL OWNERSHIP
- ------------------ ------------------------ --------------------
<S> <C> <C>
Edith Marion Both(1) 2,700,000 11.7%
843 Ida Lane, Kamloops
BC, V2B 6V2
Canada
James J. Hutton(2) 2,238,556 9.6%
6442-180th St.
Surrey, BC, V3S 7K2
Canada
William E. Krebs(3) 2,543,897 10.9%
300 Stewart Road
Salt Spring Island
BC, V8K 2C4
Canada
Jason Corless(4) 1,262,671 5.4%
312-3277 Glasgow Ave.
Victoria, BC, V8X 1M3
Canada
Randy Buchamer (5) 50,000 0.2%
5453 Nancy Greene Way
Vancouver, BC, V7R 4N2
Canada
Morgan Sturdy (5) 50,000 0.2%
180-6651 Fraserwood Place
Richmond, BC, V6W 1J3
David D. Scott (5) 50,000 0.2%
305-555 West 8th Ave.
Vancouver, BC, V5Z 1C6
Thomas G. O'Flaherty (6) 500,000 2.1%
509-2008 Fullerton Ave.
Vancouver, BC, V7P 3G7
Canada
All Executive Officers and Directors 9,395,124 38.1%
as a Group (7 persons)
</TABLE>
- --------------------
9
<PAGE>
(1) Includes 50,000 Plan Options. These shares are owned by E.W.G.
Investments Ltd. of which Ms. Both is the sole shareholder.
(2) Includes 36,778 shares which are owned by Janice Gurney, his wife, over
which Mr. Hutton disclaims beneficial ownership. Includes 250,000 Plan
Options. Includes 55,000 shares and 55,000 stock purchase warrants both
of which are held in a self-directed registered retirement savings
plan.
(3) Includes 2,000,000 shares owned by PWMC of which Mr. Krebs is the sole
shareholder and 93,897 shares owned by Margit Kristiansen, Mr. Krebs'
wife. Mr. Krebs disclaims beneficial ownership of the shares owned by
his wife. Includes 250,000 Plan Options. Includes 100,000 shares and
100,000 stock purchase warrants both of which are held in a
self-directed registered retirement savings plan.
(4) Includes 114,671 shares owned by Cathie Stevens, his wife, over which
Mr. Corless disclaims beneficial ownership. Includes 250,000 Plan
Options. Includes 24,000 shares and 24,000 stock purchase warrants both
of which are held in a self-directed registered retirement savings
plan.
(5) Includes 50,000 Plan Options.
(6) Includes 500,000 Plan Options.
DISSENTING STOCKHOLDERS RIGHTS
Dissenting Stockholders have no appraisal rights under Nevada law or
under the Company's Articles of Incorporation or Bylaws in connection with
the Capital Stock Increase.
SOLICITATION
The Company will bear the entire cost of the solicitation of
proxies, including preparation, assembly and mailing of this proxy statement,
the proxy and any additional material furnished to stockholders. Proxies may
be solicited by directors, officers and a small number of regular employees
of the Company personally or by mail, telephone or telegraph, but such
persons will not be specially compensated for such services. Copies of
solicitation material will be furnished to brokerage houses, fiduciaries and
custodians which hold shares of Common Stock and Series A Preferred Shares of
record for beneficial owners for forwarding to such beneficial owners. The
Company may reimburse persons representing beneficial owners for their costs
of forwarding the solicitation material to such owners.
YOUR VOTE IS IMPORTANT. PLEASE RETURN YOUR MARKED PROXY PROMPTLY SO
YOUR SHARES CAN BE REPRESENTED, EVEN IF YOU PLAN TO ATTEND THE ANNUAL MEETING
IN PERSON.
AT THE ANNUAL MEETING, HOLDERS OF 51% OF THE OUTSTANDING STOCK OF
THE COMPANY MUST BE PRESENT IN PERSON OR BY PROXY TO CONDUCT BUSINESS.
A STOCKHOLDER HAS THE RIGHT TO APPOINT A PERSON (WHO NEED NOT BE A
STOCKHOLDER) TO ATTEND AND ACT FOR AND ON BEHALF OF HIM OR HER AT THE ANNUAL
MEETING. THE DESIGNATED PERSON CAN BE SOMEONE OTHER THAN THE PERSONS
DESIGNATED IN THE ACCOMPANYING FORM OF PROXY. TO
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EXERCISE THIS RIGHT, THE STOCKHOLDER MAY INSERT THE NAME OF THE DESIRED
PERSON ON THE PROXY AND STRIKE OUT THE OTHER NAMES OR MAY SUBMIT ANOTHER
PROXY, IN PROPER FORM.
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PROPOSAL 1. INCREASE IN THE COMPANY'S TOTAL AUTHORIZED COMMON STOCK
GENERAL
The Board of Directors of the Company has authorized a vote by the
stockholders on the amendment of the Articles of Incorporation of the Company
to increase the total amount of the Company's authorized common stock, par
value $.001 U.S. per share (the "Common Stock"), from 50,000,000 shares to
100,000,000 shares (the "Capital Stock Increase"). Currently, the Company is
authorized to issue 50,000,000 shares of Common and 1,000,000 shares of
preferred stock, par value of $.001 U.S. per share ("Preferred Stock"). The
Board is recommending this proposal to assure that the Company has additional
equity available to support its capital requirements, including through
equity financing.
Proposal 1, if adopted, will be effected pursuant to the Certificate
of Amendment to Articles of Incorporation (the "Certificate of Amendment"),
which has been unanimously approved by the Board of Directors and recommended
to the stockholders for their approval at the Annual Meeting. A copy of the
Certificate of Amendment is attached as EXHIBIT 1.
However, under the Certificate of Amendment, the Board of Directors
will have the authority to determine, in its sole discretion, that it is in
the best interest of the Company to abandon the Capital Stock Increase at any
time prior to its approval by the stockholders.
The Capital Stock Increase, if it occurs, may affect any given
stockholder's proportionate equity interest in the Company, but will not
affect the relative rights, preferences, privileges or priorities of any
stockholder.
PURPOSE AND EFFECT OF INCREASE IN TOTAL AUTHORIZED CAPITAL STOCK OF THE
COMPANY
The principal effect of the Capital Stock Increase will be to
increase the total amount of authorized Common Stock of the Company from
50,000,000 shares to 100,000,000 shares. The respective voting rights and
other rights that accompany the Common Stock and any designated series of the
Preferred Stock will not be altered by the Capital Stock Increase, and the
par value of the Common Stock will remain at $.001 U.S. per share.
Consequently, the Board of Directors effectively will have the authority to
issue 50,000,000 more shares of Common Stock than it had the authority to
issue prior to the Capital Stock Increase. After giving effect to the Capital
Stock Increase, the number of outstanding shares of Common Stock (as of the
Record Date) would remain the same but the total number of shares of Common
Stock which would be available for issuance by the Company would increase to
100,000,000 shares with the result that authorized but unissued shares
available to the Company would be approximately 76,605,963 shares.
All authorized but unissued shares of Common Stock or Preferred
Stock will be available for issuance from time to time for any proper purpose
approved by the Board of Directors including the financing of future
operations (including issuances in connection with stock-based employee
benefit plans, stock splits or dividends and issuances to raise capital or
effect
12
<PAGE>
acquisitions). There are currently no arrangements, agreements and
understandings for the issuance and the use of the additional shares of the
authorized capital stock of the Company (other than issuances permitted or
required under the Company's stock-based employee benefit plans or awards
made pursuant to those plans). The Board of Directors does not presently
intend to seek further stockholder approval of any future issuances of shares
unless such approval is required by law or the rules of Nasdaq OTC Bulletin
Board Market trading system.
Stockholders do not have any preemptive or similar rights to
subscribe for or purchase any additional shares of Common Stock that may be
issued in the future, and therefore, future issuances of Common Stock or
Preferred Stock may, depending on the circumstances, have a dilutive effect
on the earnings per share, voting power and other interests of the existing
stockholders. In reaching its decisions to submit the Capital Stock Increase
proposal to the stockholders, the Board balanced the dilution which would
result if all of the additional Common Stock is issued with the positive
contribution which will be provided from the additional capital which the
Company intends to have available for Company use from the issuance of the
additional equity. The Board concluded that the Capital Stock Increase is
important to the Company since it will enable the Company to continue to grow
and develop its operations on a positive basis.
The proposal could have an anti-takeover effect, although that is
not its intention. For example, if the Company were the subject of a hostile
takeover attempt, it could try to impede the takeover by issuing shares of
Common Stock, thereby diluting the voting power of the other outstanding
shares and increasing the potential cost of the takeover. The availability of
this defensive strategy to the Company could discourage unsolicited takeover
attempts, thereby limiting the opportunity for the Company's stockholders to
realize a higher price for their shares than is generally available in the
public markets. The Board of Directors is not aware of any attempt, or
contemplated attempt, to acquire control of the Company, and this proposal is
not being presented with the intent that it be utilized as a type of
anti-takeover device.
The Board of Directors believes that the Capital Stock Increase is
in the best interests of the Company and its stockholders. In this regard,
the Board of Directors believes the Capital Stock Increase will allow the
Company to finance ongoing activities and is therefore critical to its
ability to continue operations and attract new capital. The Board of
Directors also believes the Capital Stock Increase may enhance the Company's
flexibility in its future financing and capitalization needs.
CHANGES IN STOCKHOLDERS' EQUITY
The Company's stated capital, which consists of the par value per
share of Common Stock multiplied by the number of shares of Common Stock
issued, will not be immediately affected by the Capital Stock Increase.
However, if the Board of Directors issued additional Common Stock made
available as a result of the Capital Stock Increase the Company's stated
capital could be increased. As of the Record Date, the Company's stated
capital was 23,394. Correspondingly, the Company's capital in excess of par
value, which consists of the difference between the Company's stated capital
and the aggregate amount paid to the Company upon the issuance by the Company
of all currently outstanding Common Stock, will be
13
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increased by the amount of consideration received for the Common Stock in
excess of par value. The following table illustrates the principal effects of
the Capital Stock Increase discussed in the preceding paragraphs:
<TABLE>
<CAPTION>
AFTER CAPITAL
PRIOR TO CAPITAL STOCK INCREASE
STOCK INCREASE AND AND AMENDED
NUMBER OF SHARES OF COMMON STOCK AMENDED ARTICLES ARTICLES
--------------------- ------------------
<S> <C> <C>
Authorized 50,000,000 100,000,000
Outstanding 23,394,037 23,394,037
Reserved for future issuance under stock compensation plans 5,000,000 10,000,000
Reserved for future issuance under outstanding warrants 4,343,950 4,343,950
Available for future issuance by action of the Board of Directors
(after giving effect to the above reservations) 17,262,013 62,262,013
</TABLE>
Assuming the Certificate of Amendment is approved by the
stockholders at the Annual Meeting, the Certificate of Amendment will be
filed with the Secretary of State of the State of Nevada immediately after
the Annual Meeting and the Certificate of Amendment and the proposed Capital
Stock Increase would become effective immediately upon such filing.
However, there can be no assurance that the Capital Stock Increase
will increase the Company's ability to finance ongoing activities or that it
will not adversely impact the market price of the Common Stock or that the
Capital Stock Increase will otherwise have any of the effects described
herein.
INTERESTS OF CERTAIN PERSONS IN THE CAPITAL STOCK INCREASE
The Company is not currently aware of any arrangements which, as a
result of the Capital Stock Increase, would benefit an officer, director or
associate of such persons, whether such persons are currently nominated to
serve as directors for the coming fiscal year or whether such persons served
as directors during the last fiscal year.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR PROPOSAL 1 TO
APPROVE THE CAPITAL STOCK INCREASE.
14
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PROPOSAL 2. APPROVAL OF THE AMENDED AND RESTATED BYLAWS OF THE COMPANY
The Board of Directors is seeking stockholder ratification of
Amended and Restated Bylaws for the Company (the "Amended Bylaws") attached
hereto as EXHIBIT 2. Pursuant to Article IX of the Company's Articles of
Incorporation, the Board of Directors has adopted the Amended Bylaws in an
effort to streamline corporate governance of the Company and to conform the
Company's bylaws to industry standards. The bylaws under which the Company
previously operated were typical of a small closely held company and were not
typical of a publicly held corporation like the Company which has numerous
and diverse stockholders. The Company believes its former Bylaws were too
restrictive and were not in the best interests of the Company's stockholders.
Substantive changes to the Bylaws included the following:
1. Decreasing the percentage of shareholders permitted to call a
special meeting;
2. Increasing the number of days notice of meeting that may be given;
3. Increasing the number of days prior to the annual meeting
permitted for the record date to be set;
4. Permitting action by the stockholders to be taken without a
meeting by written consent of stockholders holding a majority of the
outstanding shares of the Company instead of requiring unanimous consent;
5. Adding a provision setting the maximum number of directors at
nine and permitting the board of directors to set the number of directors
between the minimum and maximum number required and setting the initial
number of directors at seven;
6. Adding a provision permitting bonus options to be granted to
directors;
7. Providing that the Bylaws may be amended by the board of
directors rather than requiring shareholder approval;
8. Changing the fiscal year of the Company to begin on January 1 of
each year; and
9. Adding a provision indemnifying the Company's officers and
directors made a party to any proceeding, including a derivative action,
based on actions they have taken as officers or directors of the Company,
provided such officer or director acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of
the Company.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF PROPOSAL 2.
15
<PAGE>
PROPOSAL 3. NOMINATION AND ELECTION OF DIRECTORS
NUMBER OF DIRECTORS
The Amended Bylaws of the Company provide for a board of directors
of between one and nine directors with the number of directors to be set from
time to time by a resolution of the Board of Directors with the number of
directors initially set at seven, each elected for a one year term. The
director is elected by a plurality of votes at each annual meeting,
continuing in office until the next annual meeting and until such director's
successor is elected and has been qualified, or until such director's earlier
death, resignation or removal.
Assuming Proposal 2 is approved at the Annual Meeting, the
stockholders will be voting to elect seven Directors and the Board of
Directors has nominated seven persons in anticipation of such approval. If
Proposal 2 is not adopted, each shareholder vote for seven persons will also
constitute approval of a board of directors consisting of seven directors.
The Amended Bylaws also state that directors must be elected by a plurality
of votes. Common Shares and Series A Preferred Shares represented by proxies
marked "withhold authority" for one or more nominees will be counted as a
negative vote for the noted nominee or nominees.
NOMINEES
The following sets forth information concerning each of the nominees
for election as directors and the officers, directors and significant
employees of the Company. Officers are elected by the board of directors and
their terms of office are, except to the extent governed by employment
contract, at the discretion of the board of directors.
<TABLE>
<CAPTION>
Name Age Position
- ---- --- --------
<S> <C> <C>
NOMINEES:
Thomas G. O'Flaherty 58 President, a current director and a nominee for director
James J. Hutton 33 Chief Executive Officer, a current director and a nominee
for director
William E. Krebs 53 Chairman of the Board of Directors, Secretary and Treasurer,
and a nominee for director
James C. Hewett 47 Chief Financial Officer
Randy G. Buchamer 44 A current director and a nominee for director
Colin Corey 38 A current director and a nominee for director
16
<PAGE>
Morgan Sturdy 48 A current director and a nominee for director
David Scott 65 A current director and a nominee for director
</TABLE>
THOMAS G. O'FLAHERTY was appointed President in January 2000 and
appointed to the Board of Directors in March 2000. Prior to joining the
Company, he served as the Sales & Marketing Leader of the Technology Practice
at Ernst & Young LLP from late 1995 to late 1999. From mid 1993 to late 1995,
Mr. O'Flaherty served various senior executive roles at Modatech Systems
Inc., a sales force automation software company. He joined Modatech as the
Vice President of Marketing in mid 1993, was promoted to President in 1994,
and further promoted to CEO in January 1995. In early 1989, Thomas O'Flaherty
founded Richmond Technologies & Software Inc. to market Maximizer, a contact
management software product, which was subsequently acquired by Modatech
Systems Inc. in mid 1993. Prior to founding Richmond Technologies & Software
Inc., he co-founded Bedford Software Limited in 1983 as the marketing
partner, and served in this role until 1989. Bedford Software Limited was
listed on the Toronto Stock Exchange in 1988, and the business was acquired
by Computer Associates in 1989. From 1972 to 1983 he held various sales and
marketing management positions at Xerox Canada Inc. Thomas O'Flaherty began
his career at the Nova Scotia Research Foundation in 1969, was appointed as
the Director of the Operational Research Division in 1971, and served in this
position until 1972. Mr. O'Flaherty received a Bachelor of Science from
Dalhousie University in 1963, a Bachelor's Degree in Mechanical Engineering
in 1965, and a Master of Science Degree from Birmingham (UK) in 1968.
JAMES J. HUTTON has been a director of the Company since June 1999.
Mr. Hutton has also served as President, Chief Executive Officer and a
director of our subsidiary, VMI, since 1998. From January 1998 to the
present, Mr. Hutton has also served as a director of Acrex Ventures Ltd. From
1990 to the present, he has also served as director and President of South
Sycamore Group Holdings, a family company involved in diversified
investments. Mr. Hutton served as Canadian Regional Manager for Ascend
Communications (1995-1998). He served in various capacities for Gandalf
Systems, Inc., from 1989 to 1995, starting as a sales executive and becoming
Western Regional Manager. From 1987 to 1989, Mr. Hutton was a Sales Trainee
in the Automotive Electronics Group of Amp of Canada. Mr. Hutton attended the
University of British Columbia.
WILLIAM E. KREBS has been Chairman of the Board of Directors of the
Company since June 1999. Mr. Krebs has also been the Chairman of the Board of
Directors of our subsidiary, VMI, since 1995. From January 1995 to the
present, Mr. Krebs has also served as a director of Acrex Ventures Ltd. He
also has served as President and a director of Pacific Western Mortgage Corp.
("PWMC") since 1987 and served as President and a Director of Pacific Western
Capital Corp. from 1994 to 1995. He has been a director of Waverider
Communications, Inc., (OTCBB:WAVC) a public company traded on the
Over-the-Counter Bulletin Board since 1997 and was its Secretary from 1997
through May, 1999. Mr. Krebs ceased to be a director of Waverider
Communications Inc., in September 1999. Mr. Krebs served as director and
President of TelcoPlus Enterprises Ltd. and its wholly owned subsidiary,
Intertec Telecommunications
17
<PAGE>
Inc., from 1990 to 1995. Mr. Krebs is a Chartered Accountant and practiced as
such from 1970 to 1980. He served as a Director and President of CT&T
Telecommunications Inc. from 1990 to 1995. Mr. Krebs has been a member of the
British Columbia Institute of Chartered Accountants since 1973.
JAMES C. HEWETT (47 years old) has served as Chief Financial Officer
since May 2000. Prior to joining Voice Mobility, Mr. Hewett served as Vice
President, Finance and Administration for Steels Industrial Products Ltd., a
distributor of building products to the industrial and commercial markets.
From 1997 to 1999, he served as Chief Financial Officer with Nice Systems
Canada Ltd., a computer telephony interface provider of call logging and
quality performance products for call centers. In 1997 Nice Systems acquired
Dees Communications Ltd., a developer of telephony hardware products and
software products used for quality improvements in call centers. From 1993 to
1997, Mr. Hewett served as Chief Financial Officer with Dees Communications
Ltd. From 1988 to 1993, he served as the Divisional Controller with Coca Cola
Bottling Ltd.'s British Columbia division. From 1997 to 1998, Mr. Hewett
served as the Controller with Landucci Industries Ltd. and Queensboro
Manufacturing Ltd., a lumber re-manufacturing business. From 1982 to 1987, he
served as the Chief Financial Officer and Corporate Secretary with Datel
Industries Inc., a telecommunications interconnect business. From 1978 to
1982, Mr. Hewett held various positions with the public accounting firm, Peat
Marwick Thorne. He received his Bachelor of Science from the University of
British Columbia in 1975 and is a member of the British Columbia Institute of
Chartered Accountants
RANDY G. BUCHAMER has been a director of the Company since August
1999. Mr. Buchamer has served from 1996 as Vice President and Chief Operating
Officer of Mohawk Oil Retail SBU and from 1989 to 1996 as Vice President
Corporate Services and Chief Information Officer for Mohawk Oil Company. From
1987 to 1988, he was Retail Market Specialist for Digital Equipment of Canada
Limited. Mr. Buchamer founded and served, from 1981 to 1988, as President of
Vartech Systems Corporation and RB Computer Products, an IBM value added
reseller and North American software publisher and distributor of retail,
distribution and manufacturing software solutions. From 1979 to 1981, he was
Sales Manager and, from 1978 to 1979, a Sales Representative for Micom Canada
Ltd. He received his MBA from Simon Fraser University's Executive Management
Development Program in 1994 and his BBA in Marketing and Finance from the
University of Illinois in 1978. He also has completed courses at the IBM
Canada Business Management School. He is a member of the Vancouver Board of
Trade and the Sales and Marketing Executives Association of Vancouver.
COLIN W. COREY has been a director of the Company since March 2000.
Mr. Corey currently serves as President of NBTel Global, a wholly owned
division of Aliant Inc. which is known for its design, development and
marketing of software product and telecom consulting services to Network
Service Providers, primarily outside of Canada. Mr. Corey holds an MBA and a
B.Sc. Electrical Engineering and over the past fifteen years has held various
positions with NBTel, including most recently, Vice President, Software Sales
and Business Development and General Manager, NBTel InterActive.
18
<PAGE>
MORGAN STURDY has been a director of the Company since April 2000.
Since 1997, Mr. Sturdy has served as Executive Vice President and Chief
Operating Officer at NICE Systems North America, a publicly traded computer
telephony company listed on NASDAQ. From 1985 to 1997, he was President of
Dees Communications Engineering Ltd., and General Manager of Mod-Lok
Industries. He was also a former Chairman of the Board of Directors of
Hothaus Technologies, a leader in DSP solutions for Voice over IP, which was
subsequently acquired by Broadcom for $414 million. He is a current director
of several publicly traded companies, including Q/Media Services Corporation,
Infowave Software, Inc., WaveMakers Research Inc., and is a nominee to
Director of Digital Dispatch Systems. Mr. Sturdy is a past director of
National Wireless Canadian Industry Foundation, past director of the
Technology Industry Association of British Columbia and the current Chairman
of Softworld 2001.
DAVID SCOTT was appointed to the board in April 2000. He is a
veteran investment executive with more than 30 years experience in the
venture capital and mutual fund industries. Prior to starting his own
consulting firm, Mr. Scott was President from 1994 to 1999 of MDS Venture
Pacific Inc., a Vancouver-based venture capital manager with $30 million in
assets under management. Prior thereto, he held various investment industry
positions, including President, Toronto Shared Ventures Inc., a partnership
between North America Life and the Molson Company; President of money
manager, Elliott & Page Ltd.; President, ScotiaFund Financial Services, an
RSP company he founded and subsequently sold to a major bank, with various
other mutual fund and senior investment community positions. Mr. Scott
currently devotes substantially all of his time to directorships and advisory
roles with public, private and not for profit companies.
Key Management Employees of VMI, our operating subsidiary are:
THOMAS G. O'FLAHERTY, our President, is also the president and a
director of VMI.
JAMES J. HUTTON, our CEO, is also a director of VMI.
WILLIAM E. KREBS, our Secretary and Treasurer, is also secretary,
treasurer and a director of VMI.
WILLIAM GARDINER (44 years old) has been Vice President-Business
Development since May 1998. William Gardiner served as President from
November 1997 to April 1998, and served as a consultant from 1995 to 1997. At
VMI, he engineered the basic concept of the "follow me" number which is an
integral feature of the e-go platform and was responsible for introducing the
first e-mail to voice service in Canada, as well as call connect, same line
fax, fax to voice, and e-mail to voice. Mr. Gardiner earned a Diploma in
Computer Technology from Computer Data Institute in 1989. Mr. Gardiner is the
son of Edith Both, a Director of the Company, and Ernest Weir Gardiner, the
President of VMI from September 1993 to October 1997.
19
<PAGE>
JASON CORLESS (29 years old) has served as Director of Engineering
since 1997 and was a consultant to VMI from 1994 to 1997 where he assisted in
the design and development of prototypes of e-mail to speech, web paging, and
TNPP paging. Mr. Corless served as a software developer for Hughes Aircraft
in 1994 where he was involved in network performance testing of the Canadian
Automated Air-Traffic Control System (known as "CAATS"). In 1991, he was a
software developer for Northern Telecom where he designed and developed
software for the "DMS 250" product line as part of the frame relay billing
group. Mr. Corless received a Bachelor of Science in Computer Science from
the University of Victoria in 1994 and a Master of Science in Computer
Science from the University of Victoria in 1995. His monograph entitled
"Publication in Software" was published in Practice and Experience Journal,
Volume 28, Number 12, October 1998.
BUDD STEWART (46 years old) has served as Vice President -
Operations since 1999. From 1997 to 1999, he was Director of Operations at
Enhanced Cellular Systems Inc. where he was responsible for negotiating and
maintaining various U.S.A. carrier agreements and operating systems, as well
as installation and maintenance of the U.S.A.-based credit card cellular
payphone network. From 1995 to 1996, he was Director of Customer Service for
Prime Copy Office Systems where his responsibilities included service,
refurbishing and warehouse operations at Canada's largest Mita copier and
Panafax facsimile dealer. Mr. Stewart served as Director of Technical
Operations, at Savin (Ricoh) Canada from 1994 to 1995 at which firm he was in
charge of ten branches in Western Canada with a staff of over 90 service
personnel. From 1989 to 1993, he was President and owner of Stewart/Scotvold
Holdings, a project manager for non-residents in custom home construction.
Mr. Stewart was employed by Bell Canada and Bell Canada International from
1976 to 1989 in various capacities, successively Section Manager - Repair
Service Bureau, Director Operations - Customer Service and Director Cost and
Results. In this last capacity, he was responsible for negotiating and
tracking the $3 billion annual operating expense budget of the seven business
units of Bell Canada. Mr. Stewart received a Bachelor of Arts from University
of Toronto.
DAVID GRINSTEAD (42 years old) served as a director of the Company
from September 1999 until March 2000. Mr. Grinstead was appointed Executive
Vice President, Business Development of VMI in February 2000. Prior to
joining VMI, Mr. Grinstead was a director, New Business
Opportunities-Telecommunications at Aliant Inc., a telecommunications and
data services organization based in Eastern Canada, with assets of $3 billion
and annual revenues of $1.7 billion and the parent company of Maritime Tel &
Tel. He is responsible for the development of new business opportunities,
services, and products with a particular focus on the creation of exportable
business, intellectual property and e-commerce opportunities as well as the
development and implementation of new business development and e-commerce
strategies. From 1997 through January 1999, Mr. Grinstead was Vice-President,
Market & Technology Development with The Bermuda Telephone Company Limited,
Hamilton, Bermuda. In this capacity, Mr. Grinstead was responsible for all
revenue generation, business development, strategic planning and corporate
communications activities. Mr. Grinstead also held full operating
responsibility for BTC Mobility, the cellular subsidiary, and was Chairman of
the Board of Logic Communications Inc., Bermuda's largest internet service
provider and systems integrator. Immediately prior to joining The Bermuda
Telephone Company, Mr. Grinstead was Vice-President, Customer Solutions and
Service of Northwestel Inc., a subsidiary of Bell Canada
20
<PAGE>
Enterprises and President of Northwestel Cable TV Inc., and Executive
Vice-President of Ardicom Digital Communications Inc. He previously was Chief
Operating Officer of MultiServices Canada Inc, and held senior management
roles with Picker International and DHL Worldwide Express.
DON ANDERSON (40 years old) has served as Vice President of Sales
since September 1998. Mr. Anderson brings a high level of experience in the
technology industry and business in general. While at IBM from 1985 to 1998,
he worked right across the IBM product lines. From starting as a Systems
Engineer working on mainframe computers, Mr. Anderson worked his way through
the ranks to hold several senior positions selling into the
telecommunications, insurance and utilities sectors. From 1980 to the
present, he has been a Director of Sept Point Investments Ltd., a privately
owned company involved in diversified investments. In 1994, Mr. Anderson
founded Tree Fort Productions Ltd., an award-winning production company of
children's entertainment. Don continues to be an active sportsman both on the
racquets court and in the outdoors and he travels extensively. Born and
raised in BC, Don received his Bachelors of Applied Science Degree (Marine
Architecture in Mechanical Engineering) at the University of British Columbia
and is currently a member of the Association of Professional Engineers of
British Columbia.
JOHN DEMETRIS (39 years old) has served as Vice President of
Marketing since March 2000. Prior to Joining Voice Mobility, John was Vice
President, Retail Sales & Distribution for Telus, Canada's second largest
telecommunications supplier with over $6 billion in revenue. He has over ten
years of marketing experience in telecommunications, primarily in wireless
communications, with BC TEL Mobility (now known as Telus Mobility). As
Director of Cellular and Paging Marketing with BC TEL Mobility, he was
responsible for the market launches of BC TEL Mobility's digital PCS network,
Prepaid Cellular service, and Prepaid Paging service. Over his 15 year career
with BC TEL, Mr. Demetris has also held several marketing and sales positions.
A KEY CONSULTANT TO THE COMPANY AND VMI, OUR OPERATING SUBSIDIARY IS:
JOHN E. CURRY is a financial consultant to the Company and VMI. Mr.
Curry was the acting Chief Financial Officer of the Company from September
1999 to April 30, 2000. He was appointed by the Board of Directors of the
Company as acting Chief Financial Officer on February 15, 2000. Prior to
joining Voice Mobility, Mr. Curry was with Bedford Curry & Co., a
Vancouver-based chartered accounting firm with one of the regions strongest,
medium-sized accounting practices specializing in public companies and
business financing, which he co-founded in 1983. Mr. Curry presently serves
as a director of Waverider Communications Inc., (OTCBB:WAVC) a public company
traded on the Over-the-Counter Bulletin Board since 1997. He is a member of
the British Columbia Institute of Chartered Accountants.
RESIGNATIONS OF CERTAIN DIRECTORS
Mr. Robert Cashman resigned as a director of the Company in November
of 1999. Mr. Cashman did not resign as a result of any disagreement with the
Board of Directors.
21
<PAGE>
David Grinstead resigned as a director of the Company in March of
2000. Mr. Grinstead did not resign as a result of any disagreement with the
Board of Directors.
Edith Marion Both resigned as a director of the Company in April of
2000. Ms. Both did not resign as a result of any disagreement with the Board
of Directors.
LEGAL PROCEEDINGS
The Company is not aware of any legal proceedings affecting any of
its directors or officers.
COMPENSATION OF DIRECTORS
The Company currently compensates Directors with a cash compensation
of Cdn$1000 for participation in each formal meeting held by the Board of
Directors. The non-employee Directors of the Company are also granted 50,000
incentive stock options annually. Employee Directors of the Company are
granted incentive stock options based on their individual employment
agreements. All stock option grants are made pursuant to the Company's 1999
Stock Option Plan.
ACTIVITIES OF THE BOARD OF DIRECTORS AND ITS COMMITTEES
The Company currently operates with a Board of seven directors. The
Board of Directors meets periodically to review significant developments
affecting the Company and to act on matters requiring Board approval.
Although the Board of Directors delegates many matters to others, it reserves
certain powers and functions to itself.
During fiscal 1999, the Board of Directors of the Company had 2
formal meetings. All incumbent Directors of the Company were present at, or
participated in taking actions for one hundred percent (100%) of the total
number of meetings of the Board of Directors of the Company and the
Committees on which he served.
COMMITTEES OF THE BOARD OF DIRECTORS
As of May 12, 2000, standing committees of the Board of Directors of
the Company included an Audit Committee and a Compensation Committee.
AUDIT COMMITTEE
The Audit Committee of the Company's Board of Directors currently
consists of Messrs. O'Flaherty, Krebs and Buchamer. Mr. O'Flaherty currently
serves as a director of the Company and the President and a director of our
subsidiary, VMI. Mr. Krebs currently is the Chairman of the Board of the
Directors of the Company and the Secretary and Treasurer. Mr. Buchamer is a
non-employee director of the Company. This committee is directed to review
the scope, cost and results of the independent audit of the Company's books
and records, the results of the annual audit with Management and the internal
auditors and the adequacy of the Company's accounting,
22
<PAGE>
financial, and operating controls; to recommend annually to the Board of
Directors the selection of the independent auditors; to consider proposals
made by the Company's independent auditors for consulting work; and to report
to the Board of Directors, when so requested, on any accounting or financial
matters. The Board of Directors has not adopted a written charter for the
Audit Committee. The Audit Committee of the Board of Directors was formed in
February2000.
COMPENSATION COMMITTEE
The Compensation Committee of the Company currently consists of
Messrs. Buchamer, Krebs and Hutton. Mr. Buchamer is a non-employee director
of the Company. Mr. Krebs currently is the Chairman of the Board of Directors
of the Company and the Secretary and Treasurer. Mr. Hutton currently serves
as a director and CEO of the Company. The Compensation Committee reviews and
approves annual salaries, bonuses and other forms and items of compensation
for senior officers and employees of the Company. Except for plans that are,
in accordance with their terms or as required by law, administered by the
Board or another particularly designated group, the Compensation Committee
also administers and implements all of the Company's stock option and other
stock-based and equity-based benefit plans (including performance-based
plans), recommends changes or additions to those plans, and reports to the
Board of Directors on compensation matters. The Compensation Committee was
formed in February 2000. To the extent required by law, a separate committee
of disinterested parties administers the 1999 Plan and will administer the
Amended 1999 Plan.
REPORT OF COMPENSATION COMMITTEE
GENERAL
The Company's Compensation Committee is responsible for formulating
and overseeing the general executive and employee compensation policies for
the Company. Its responsibilities include determination of the compensation
of senior executive officers and administration of the annual and long-term
incentive plans and stock option plans of the Company unless such plans, in
accordance with their terms, are administered by the Board or another
particularly designated group. Specific decisions relating to compensation
earned by or awarded to the senior officers of the Company, including the
chief executive officer and the other four highest paid executive officers
(collectively, the "Named Executive Officers") are governed by the
Compensation Committee.
The Compensation Committee has adopted the following policy
framework on which it intends to base the Company's compensation program and
its decisions:
- Efforts should be made to achieve base salaries for the senior
executives which are competitive with compensation at the Company's
peer group of companies, not withstanding the significantly larger
revenues at many of the entities in the peer group.
23
<PAGE>
- Annual incentives should consider Company performance and individual
contribution. Efforts should be made to establish parity among
individuals with similar responsibilities and performance.
- The long-term incentive program should be performance-based and
emphasize stock options to ensure that long-term compensation primarily
depends on increases in stock price. Other awards, including restricted
stock, performance units or a combination may be utilized to provide
incentives that might otherwise be reflected in stock option grants.
- Stock option grants (or other performance-based long-term incentives
that may be awarded in the future) should be competitive with peer
practices to allow the Company to attract and retain senior personnel
and to reflect the Company's operating growth and performance.
- The relative mix of annual and long-term incentives should reflect
levels within the organization, so that senior executives receive a
greater proportion of long-term incentives and others receive
compensation that emphasizes annual compensation and incentives.
To implement these policies, the Compensation Committee will take
into account current market data and compensation trends for similar
enterprises, compare corporate performance of the Company to the performance
of a selected peer group, gauge achievement of corporate and individual
objectives and consider the overall effectiveness of the Company's
compensation programs.
The Compensation Committee has considered comparisons of current
compensation levels at the Company with other small capital publicly traded
companies. In addition, broader published compensation surveys of
compensation levels for executives holding similar positions at comparable
industrial entities or organizations were used to establish competitive
norms. These assessments indicated that actual cash compensation (salary plus
annual incentives) of the Named Executive Officers were comparable to total
cash compensation levels of the peer group.
ANNUAL COMPENSATION
The Compensation Committee annually will review base salary levels
of executives and employees, subject to any provisions or limitations
included in their Employment Agreements and in the context of the above
policies. The Omnibus Budget Reconciliation Act of 1993 added Section 162(m)
to the Internal Revenue Code of 1986, as amended (the "Code"). Section 162(m)
creates a new limit on the deductibility of compensation paid to certain
officers. With respect to the Company, the covered officers are the Chief
Executive Officer and the next four most highly compensated persons in office
at the end of the year. Compensation paid to these officers in excess of
$1,000,000 per person, that is not performance-based, cannot be claimed by
the Company as a tax deduction. It is the Compensation Committee's intention
to utilize performance-based compensation and to conform such compensation to
these limits.
24
<PAGE>
CEO COMPENSATION
The compensation for James J. Hutton, as CEO of the Company, was
determined in accordance with the guidelines discussed above. Based on the
performance of the Company and the compensation of the CEOs at several peer
companies, no annual bonus was paid in 1999 and base salary was set at
$72,600.
CONCLUSION
The Compensation Committee believes that the policies and concepts
discussed above will be an effective strategy since a significant portion of
compensation to the Named Executive Officers will be based on the operating
results of the Company, the commensurate results for its stockholders, and
the need to attract and retain senior management, technical and operating
personnel as the Company matures and the technology and market conditions
change and evolve. At the same time, it is intended that the policies will
encourage responsible management for both long-term and short-term results
and will further the interests of the Company's stockholders. In implementing
its policies, the Compensation Committee intends to base its review on the
experience of its members, on Company and management information, and on
discussions with and information compiled by various independent compensation
consultants and other appropriate sources.
Submitted by the Compensation Committee of the Company's Board of
Directors.
EXECUTIVE COMPENSATION
The following table shows, for the three-year period ended December
31, 1999, the cash and other compensation we paid to our Chief Executive
Officer and to each of our executive officers who had annual compensation in
excess of $100,000.
25
<PAGE>
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
Long Term Compensation
---------------------------------------------
Annual Compensation Awards Payouts
---------------------------------------- ------------------------------- -------------
Securities
Under
Options/ Restricted
SARs Stock Awards LTIP
Name and Principal Position Year Salary Bonus Other Granted (#) ($) Payouts
- ----------------------------- ------ ----------- ---------- ----------- ------------ -------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
James J. Hutton 1999 $72,600 N/A N/A N/A N/A N/A
President and 1998 $48,000 N/A N/A N/A N/A N/A
Chief Executive Officer
since May, 1998
- ----------------------------- ------ ----------- ---------- ----------- ------------ -------------- -------------
William Gardiner 1998 $36,720 N/A N/A N/A N/A N/A
President (Chief Executive 1997 $36,720 N/A N/A N/A N/A N/A
Officer) from Nov, 1997 to
Apr, 1998
- ----------------------------- ------ ----------- ---------- ----------- ------------ -------------- -------------
Ernest Weir Gardiner 1998 0 N/A N/A N/A N/A N/A
President (Chief Executive 1997 0 N/A N/A N/A N/A N/A
Officer) from Nov, 1997 to
Apr, 1998
- ----------------------------- ------ ----------- ---------- ----------- ------------ -------------- -------------
</TABLE>
(1) Compensation was paid to Mr. Hutton and William Gardiner by VMI, our
operating subsidiary.
OPTION GRANTS IN THE LAST FISCAL YEAR
The following table presented in accordance with the Securities
Exchange Act of 1934, as amended ("the Exchange Act") and the Regulations
thereunder sets forth individual grants of stock options under the Company's
Stock Option Plan ("the Stock Option Plan") during the most recently
completed financial year to each of the Named Executive Officers:
<TABLE>
<CAPTION>
- ----------------------- ----------------- --------------- --------------- --------------- -----------------
Market Value
of
% of Total Securities
Options Underlying
Securities /SARs Options/
Under Granted to Exercise or SARs on Date
Options/ Employees in Base Price of Grant
Name SARs Granted Fiscal Year ($/Security) ($/Security) Expiration Date
- ----------------------- ----------------- --------------- --------------- --------------- -----------------
<S> <C> <C> <C> <C> <C>
James J. Hutton 250,000 250,000 $1.00 $550,00 Dec. 31, 2003
- ----------------------- ----------------- --------------- --------------- --------------- -----------------
William Gardiner 200,000 200,000 $1.00 $440,00 Dec. 31, 2003
- ----------------------- ----------------- --------------- --------------- --------------- -----------------
</TABLE>
26
<PAGE>
AGGREGATED OPTION/EXERCISES IN LAST FISCAL YEAR AND 1999 FISCAL YEAR END
OPTION/VALUES
The following table sets forth information with respect to the
exercise of options to purchase shares of our Common Stock during the fiscal
year ended December 31, 1999 to each person named in the Summary Compensation
Table and the unexercised options held as of the end of 1999 fiscal year.
<TABLE>
<CAPTION>
- --------------------------- ---------------- --------------- ------------------- -----------------------------------
Number of
Securities
Underlying
Unexercised
Options/SARs at Value of Unexercised In-the-Money
Securities Fiscal Year-End Options/SARs at
Acquired on Aggregate Exercisable/ Fiscal Year-End ($)
Name Exercise Value Realized Unexercisable Exercisable/Unexercisable
- --------------------------- ---------------- --------------- ------------------- -----------------------------------
<S> <C> <C> <C> <C>
James J. Hutton 0 0 250,000 $577,500
- --------------------------- ---------------- --------------- ------------------- -----------------------------------
William Gardiner 0 0 200,000 $462,000
- --------------------------- ---------------- --------------- ------------------- -----------------------------------
</TABLE>
REPRICING OF OPTIONS/SARS
The Company did not reprice any options awarded to any executive officers
during fiscal 1999.
LONG-TERM INCENTIVE PLANS-AWARDS IN LAST FISCAL YEAR
The Company has no long term incentive plans.
EXECUTIVE EMPLOYMENT AGREEMENTS
We have not entered into any employment agreements with our officers
and directors and have paid no compensation to them. Our operating
subsidiary, Voice Mobility Inc., however, has entered into employment
agreements with its executive employees. Thomas G. O'Flaherty, President of
VMI, entered into an employment agreement on January 1, 2000 which terminates
on December 31, 2002. He receives a salary of Cdn$150,000 per year plus
500,000 Plan Options exercisable at $2.00 per share. Mr. O'Flaherty may also
receive an additional 125,000 Plan Options pursuant to mutually agreeable
performance criterias. James Jay Hutton, Chief Executive Officer of VMI,
entered into an employment agreement on April 1, 1998 which terminated on
March 31, 2000. He has renegotiated a salary of Cdn$150,000 per year
effective April 1, 2000 plus 250,000 Plan Options exercisable at $1.00 per
share. VMI and Mr. Hutton are currently negotiating the term of this
contract. Mr. James Hewett, Chief Financial Officer of VMI, entered into an
employment agreement on May 1, 2000. He receives a salary of Cdn$105,000 per
year plus 105,000 Plan Options. William Gardiner, Vice-President Business
Development of VMI, entered into an employment agreement on August 1, 1998
which terminates on August 1, 2001. He receives a salary of Cdn$69,000 per
year plus 200,000 Plan Options exercisable at $1.00 per share. Jason Corless,
Chief Scientist of VMI, entered into an employment agreement on October 1,
1998 which terminates on August 1, 2001. He receives a salary of Cdn$90,000
per year plus 250,000 Plan Options exercisable at $1.00 per share. Bud
Stewart, Vice-President - Operations of VMI, entered into an employment
agreement on June 20, 1999 which terminates on June 19,
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2001. He receives a salary of Cdn$100,000 per year plus 250,000 Plan Options
exercisable at $1.00 per share. Mr. Stewart may also receive an additional
250,000 Plan Options pursuant to mutually agreeable performance criteria. Don
Anderson, Vice-President of Sales of VMI, entered into an employment
agreement on September 28, 1998. He receives a salary of Cdn$100,000 per year
plus 225,000 Plan Options exercisable at $0.75 per share. David Grinstead,
Executive Vice-President, Business Development, entered into an employment
agreement on December 1, 1999. He receives a salary of Cdn$130,000 per year
plus 500,000 Plan Options exercisable at $2.125 per share. John Demetris,
Vice-President of Marketing, entered into an employment agreement on March 6,
2000. He receives a salary of Cdn$110,000 per year plus 150,000 Plan Options
exercisable at $8.00 per share. Deborah Sterling, Vice-President Research and
Development, entered into an employment agreement on Maay 1, 2000. She
receives a salary of Cdn$100,000 per year plus 100,000 Plan Options.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In 1993, Ernest Weir Gardiner and certain other persons founded VMI.
Ernest Weir Gardiner served as a director of that company and its successors
until October 1997. Ernest Weir Gardiner is also the father of William
Gardiner, the Vice President of Business Development of VMI, and the former
spouse of Edith Both, a director of the Company. In 1995, William Krebs,
through PWMC, a company owned and controlled by Mr. Krebs, became a
shareholder of VMI and began to advance funds to VMI to cover operating
costs. Mr. Krebs is an officer and director of the Company. In October 1997,
VMI undertook a recapitalization and, as a result of those transactions,
PWMC, an entity controlled by Ernest Weir Gardiner, James Hutton (who is
currently the Chief Executive Officer and a director of the Company) became
the holders of substantially all of the issued and outstanding capital stock
of VMI. In a series of transactions commencing in November and December of
1997, the entity undertook a series of additional recapitalization
transactions.
In March 1999, VMI and Acrex agreed to satisfy certain obligations
with PWMC, a company owned by Mr. Krebs, a director, officer, and shareholder
of the Company, incurred prior to December 1997. Pursuant to these
understandings, the Company issued 750,000 shares of Common Stock to PWMC in
settlement of a loan made by PWMC to VMI in the principal amount of
Cdn$375,000, including accrued interest. The price per share of Common Stock
(Cdn$0.50) used in settling such loan was the same price per share as offered
in the Acrex private placements in March 1999. The March 1999 agreement
provided that in the event VMI became a public company or was owned by a
public company, outstanding amounts of the loan could, at the option of the
debtor, be settled by shares of the public entity.
In March, 1999 VMI and Acrex agreed to satisfy certain obligations
with Ernest Weir Gardiner incurred prior to December 1997. Pursuant to these
understandings, the Company issued warrants to purchase 101,000 shares of
Common Stock at a price of Cdn $0.50 per share to Ernest Weir Gardiner, in
settlement of a loan made by Ernest Weir Gardiner to VMI in the principal
amount of Cdn$50,500, including accrued interest. The price per share of
Common Stock (Cdn$0.50) used in settling such loan was the same price per
share as offered in the Acrex private placements in March 1999. The March
1999 agreement provided that in the event VMI became a public company or was
owned by a public company, outstanding amounts of the loan could, at the
option of the debtor, be settled by a fixed number of shares of the public
entity.
By agreement dated March 26, 1999, among Acrex, VMI and MTT, in
settlement of amounts owed to MTT, Acrex and VMI agreed that in the event VMI
became a public company or was owned by a public company, MTT would settle
such amounts owed for an aggregate of
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1,428,571 shares of such public entity, at a deemed value of Cdn$500,000. The
price per share of the 1,428,571 shares received by MTT (Cdn$0.35)
represented a discount of Cdn$0.15 per share below the price paid by the
investors in the Acrex private placements.
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
The Company is not aware of any officer, director, or beneficial
owner of more than 10% of its common stock that has failed to file on a
timely basis, as disclosed in such forms, the reports required by Section
16(a) of the Securities Exchange Act during the most recent fiscal year. The
Company became a reporting person under the Securities Exchange Act in August
of 1995.
INDEPENDENT PUBLIC ACCOUNTANTS
The Company's current independent public accountants, Ernst & Young
LLP, have been selected as the Company's accountants for the current year.
Representatives of Ernst & Young LLP are expected to be present at the annual
meeting. Ernst & Young LLP will have the opportunity to make a statement and
will be available to answer questions.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR EACH NAMED NOMINEE.
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PROPOSAL 4. APPROVAL OF THE 1999 PLAN AND THE AMENDED 1999 PLAN.
The Board of Directors is seeking stockholder approval of (I) the
Company's 1999 Stock Option Plan, which was adopted by the Board of Directors
on June 29, 1999 and which by its terms requires the approval of the
stockholders prior to June 28, 2000, and (II) certain amendments to the
Company's 1999 Stock Option Plan (the "Amended 1999 Plan") which would
increase the total number of shares authorized under such plan from 5,000,000
shares of Common Stock to 10,000,000 shares of Common Stock, and expand the
types of grants that are covered by the 1999 Stock Option Plan. A copy of the
1999 Plan is attached as EXHIBIT 3.1 and a copy of the Amended 1999 Plan is
attached as EXHIBIT 3.2.
1999 STOCK OPTION PLAN
On June 29, 1999, our board of directors adopted the 1999 Stock
Option Plan (the "1999 Plan") as a means of increasing the proprietary
interest of employees, board of advisors, consultants and non-employee
directors and to align more closely their interests with the interests of our
stockholders. The 1999 Plan should also maintain our ability to attract and
retain the services of experienced and highly qualified employees and
non-employee directors. The 1999 Plan requires that the Plan be approved by
the Stockholders of the Company prior to June 28, 2000.
Under the 1999 Plan, we have reserved an aggregate of 5,000,000
shares of common stock for issuance pursuant to options ("Plan Options"). Our
board of directors or a committee of our board of directors consisting of
non-employee directors (the "Committee") will administer the 1999 Plan,
including, without limitation, the selection of the persons who will be
granted Plan Options under the 1999 Plan, the type of Plan Options to be
granted, the number of shares subject to each Plan Option and the Plan Option
price.
Plan Options granted under the 1999 Plan may either be options
qualifying as incentive stock options ("Incentive Options") under Section 422
of the Internal Revenue Code of 1986, as amended, or options that do not so
qualify ("Non-Qualified Options"). In addition, the 1999 Plan also allows for
the inclusion of a reload option provision ("Reload Option"), under which an
eligible person who elects to pay the exercise price of the Plan Option with
shares of Common Stock owned by the eligible person shall receive a new Plan
Option to purchase shares of common stock equal in number to the tendered
shares. Any Incentive Option granted under the 1999 Plan must provide for an
exercise price of not less than 100% of the fair market value of the
underlying shares on the date of such grant, but the exercise price of any
Incentive Option granted to an eligible employee owning more than 10% of our
common stock must be at least 110% of such fair market value as determined on
the date of the grant. The term of each Plan Option and the manner in which
it may be exercised is determined by our board of directors or the Committee,
provided that no Plan Option may be exercisable more than 10 years after the
date of its grant and, in the case of an Incentive Option granted to an
eligible employee owning more than 10% of our Common Stock, no more than five
years after the date of the grant. The exercise price of Non-Qualified
Options shall be determined by our board of directors or the Committee.
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The per share purchase price of shares subject to Plan Options
granted under the 1999 Plan may be adjusted in the event of certain changes
in our capitalization, but any such adjustment shall not change the total
purchase price payable upon the exercise in full of Plan Options granted
under the 1999 Plan.
Our (and any of our subsidiary's) officers, directors, key employees
and consultants will be eligible to receive Non-Qualified Options under the
1999 Plan. Only employees are eligible to receive Incentive Options.
Recipients of Plan Options may not assign or transfer them, except
by will or by the laws of descent and distribution. During the lifetime of
the optionee, an option may be exercised only by such optionee. If an
optionee's employment is terminated for any reason, other than his death or
disability or termination for cause, or if an optionee is not an employee but
is a member of our board of directors and his service as a director is
terminated for any reason, other than death or disability, the Plan Option
granted to him or her shall lapse to the extent unexercised on the earlier of
the expiration date or 30 days following the date of termination. If the
optionee dies during the term of his employment, the Plan Option granted to
him shall lapse to the extent unexercised on the earlier of the expiration
date of the Plan Option or the date one year following the date of the
optionee's death. If the optionee is disabled, the Plan Option granted to him
or her lapses to the extent unexercised on the earlier of the expiration date
of the option or one year following the date of the disability.
Our board of directors or the Committee may amend, suspend or
terminate the Plan at any time, except that no amendment shall be made which
(i) increases the total number of shares subject to the 1999 Plan, or (ii)
changes the definition of an Eligible Person under the 1999 Plan without the
prior approval of the stockholders.
As of December 31, 1999, we have granted 3,252,750 Plan Options. As
of April 19, 2000, no Plan Options had been exercised.
AMENDED AND RESTATED 1999 STOCK OPTION PLAN
The Board of Directors of the Company has adopted the Amended 1999
Plan to allow it to continue to attract and retain people for key positions
at the Company and its subsidiaries, to encourage and assist key employees,
directors and advisers of the Company and its subsidiaries to acquire or
retain an appropriate stake in the Company's future, to provide additional
incentives to such persons, to allow the Company to continue to rationalize
the capital held by its founders and key leaders, and to foster continued
growth of the Company. The main differences between the Amended 1999 Plan and
the 1999 Plan are:
1. The Amended 1999 Plan authorizes up to a maximum of 10,000,000
Common Shares to be issued on exercise of options, stock
appreciation rights ("SARs") and other incentive awards or as
restricted shares and provides for the administration of the
Amended 1999 Plan.
2. The 1999 Plan authorized the grant of stock options, while the
Amended 1999 Plan expands the range of grants to include Stock
Appreciation Rights, stock purchase warrants, restricted shares,
phantom stock, performance units and other share based
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incentive awards as well. Grants under the Amended 1999 Plan can
be made until June 28, 2009 unless the plan is sooner terminated
by the Board of Directors.
3. The Amended 1999 Plan expands the manner in which the Exercise
Price may be paid to include stock, the assignment of the proceeds
of a sale or loan, by a promissory note from the Plan Participant,
or such other consideration as the Board of Directors or the
Committee may approve.
4. The 1999 Amended Plan provides that an Award may also be exercised
by the guardian or legal representative of an Award holder.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE IN FAVOR OF PROPOSAL 4 TO
APPROVE THE 1999 PLAN AND THE AMENDED 1999 PLAN.
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OTHER MATTERS
The Board of Directors knows of no other business that will be
presented for consideration at the Annual Meeting. If other matters are properly
brought before the Annual Meeting, however, it is the intention of the persons
named in the accompanying proxy to vote the shares represented thereby on such
matters in accordance with their best judgment.
Dated: May 19, 2000 BY ORDER OF THE BOARD OF DIRECTORS
By: /s/ William E. Krebs
--------------------
William E. Krebs, Chairman of the Board
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EXHIBIT 1
AMENDED CERTIFICATE
CERTIFICATE OF AMENDMENT TO ARTICLES OF INCORPORATION
VOICE MOBILITY INTERNATIONAL, INC.
We, the undersigned President and Secretary of Voice Mobility
International, Inc., do hereby certify: That the Board of Directors of said
corporation at a meeting duly convened, held on the 9th day of June, 2000,
adopted a resolution to amend the original articles of incorporation as
follows:
Article IV is hereby amended to read as follows:
This corporation shall have the authority to issue two (2) classes
of capital stock the total of which shall be 101,000,000 shares. The
classification and par value of 100,000,000 shares shall be common voting
stock having a par value of $.001 per share, and each share shall be entitled
to the same dividend, liquidation and voting rights; the classification and
par value of 1,000,000 shares shall be preferred stock having a par value of
$.001 per share. Said preferred stock may be issued from time to time in one
or more classes or series with such dividend rates, voting rights, rights of
conversion, rights upon dissolution or liquidation, and with such
designations or restrictions thereof as shall be determined by resolution
adopted by the Board of Directors at the time such stock is issued without
further approval of the shareholders.
The number of shares of the corporation outstanding and entitled to
vote on amendments to the Articles of Incorporation is 23,394,037; that the
said amendments have been consented to and approved by a majority vote of the
stockholders holding at least a majority of each class of stock outstanding
and entitled to vote hereon.
By: /s/ Thomas G. O'Flaherty By: /s/ William E. Krebs
------------------------- ---------------------
Thomas G. O'Flaherty William E. Krebs
President Secretary
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STATE OF ____________________ )
) ss
COUNTY OF __________________ )
On this day ______________ of ________________ , 2000, before me
appeared Thomas G. O'Flaherty and William E. Krebs, personally known to me or
proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Notary Public in and for said County
(SEAL)
------------------------------------
Printed Name of Notary Public
------------------------------------
Commission Expiration Date
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EXHIBIT 2
AMENDED BYLAWS
AMENDED AND RESTATED BY-LAWS
OF
VOICE MOBILITY INTERNATIONAL, INC.
ARTICLE I - OFFICES
The principal office of the corporation in the State of Nevada shall be
located at 318 N. Carson Street, Suite 208, in the city of Carson City. The
corporation may have such other offices, either within or without the State
of incorporation as the board of directors may designate or as the business
of the corporation may from time to time require.
ARTICLE II - STOCKHOLDERS
1. ANNUAL MEETING. The annual meeting of the stockholders shall be held on
the 2nd Tuesday of August in each year, beginning with the year 1997 at the
hour of 1 o'clock P.M. local time for the purpose of the election of
directors and for the transaction of such other business as may come before
the meeting. If the day fixed for the annual meeting shall be a legal holiday
such meeting shall be held on the next succeeding business day.
2. SPECIAL MEETINGS. Special meetings of the stockholders, for any purpose
or purposes, unless otherwise prescribed by statute, may be called by the
president or by a director, and shall be called by the president at the
request of the holders of not less than twenty-five percent (25%) of all the
outstanding shares of the corporation entitled to vote at the meeting.
3. PLACE OF MEETING. The directors may designate any place, either within
or without the state unless otherwise prescribed by statute, as the place of
meeting for any annual meeting or for any special meeting called by the
directors. A waiver of notice signed by all stockholders entitled to vote at
a meeting may designate any place, either within or without the state unless
otherwise prescribed by statute, as the place for holding such meeting. If no
designation is made, or if a special meeting be otherwise called, the place
of meeting shall be the principal office of the corporation.
4. NOTICE OF MEETING. Written or printed notice stating the place, day and
hour of the meeting and, in the case of a special meeting being called, shall
be delivered not less than ten (10) days nor more than fifty (50) days before
the date of the meeting, either personally or by mail, by the direction of
the president, or secretary, or the director calling the meeting. If mailed,
such notice shall be deemed to be delivered when deposited in the United
States mail, addressed to the stockholder at his address as it appears on the
stock transfer books of the corporation, with postage thereon prepaid.
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5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, of stockholders entitled to receive
payment of any dividend, or in order to make a determination of stockholders
for any other proper purpose, the directors of the corporation may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case twenty (20) days. If the stock transfer books be closed
for the purpose of determining stockholders entitled to notice of or to vote
at a meeting of stockholders, such books shall be closed for at least the
notice period as set forth in paragraph 4 but not to exceed twenty (20) days
immediately preceding such meeting. In lieu of closing the stock transfer
books, the directors may fix in advance a date as the record date for any
such determination of stockholders, such date in any case to be not more than
the notice period as set forth in paragraph 4. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
6. WAIVER OF NOTICE. Notice of the time, place and purpose of any meeting
may be waived in writing and will be waived by any stockholder by his/her
attendance therat in person or by proxy. Any stockholder so waiving shall be
bound by the proceedings of any such meeting in all respects as if due notice
thereof had been given.
7. VOTING LIST. The officer of agent having charge of the stock transfer
books for the shares of the corporation shall make, at least ten (10) days
before each meeting of stockholders, a complete list of stockholders entitled
to vote at such meeting, or any adjournment thereof, arranged in alphabetical
order, with the address of and number of shares held by each, which list, for
a period of the ten (10) days prior to such meeting, shall be kept on file at
the principal office of the corporation and shall be subject to inspection by
any stockholder at any time during usual business hours. Such list shall also
be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any stockholder during the whole time of the
meeting. The original transfer book shall be prima facie evidence as to who
are the stockholders entitled to examine such list or transfer books or to
vote at the meeting of stockholders.
8. QUORUM. At any meeting of stockholders fifty-one percent (51%) of the
outstanding shares of the corporation entitled to vote, represented in person
or by proxy, shall constitute a quorum at a meeting of stockholders. If less
than said number of the outstanding shares are represented at a meeting, a
majority of the outstanding shares so represented may adjourn the meeting
from time to time without further notice. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting originally noticed. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
9. PROXIES. At all meetings of the stockholders, a stockholder may vote by
proxy executed in writing by the stockholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary of the
corporation before or at the time of the meeting. No proxy shall be valid
after eleven (11) months from the date of its execution, unless otherwise
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provided in the proxy.
10. VOTING. Each shareholder entitled to vote in accordance with the terms
and provisions of the certificate of incorporation and these by-laws shall be
entitled to one vote, in person or by proxy, for each share of stock entitled
to vote held by such shareholder. Upon the demand of any stockholder, the
vote for directors and upon any question before the meeting shall be by
ballot. All elections for directors shall be decided by plurality vote; all
other questions shall be decided by majority vote except as otherwise
provided by the Certificate of Incorporation or the laws of Nevada.
11. ORDER OF BUSINESS. The order of business at all meetings of the
stockholders, shall be as follows:
a. Roll Call.
b. Proof of notice of meeting or waiver of notice.
c. Reading of minutes of preceding meeting.
d. Reports of Officers.
e. Reports of Committees.
f. Election of Directors.
g. Unfinished Business.
h. New Business.
12. INFORMAL ACTION BY STOCKHOLDERS. Unless otherwise provided by law, any
action required to be taken at a meeting of the stockholder, or any other
action which may be taken at a meeting of the stockholders, may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by stockholders holding a majority of the outstanding shares
of the Corporation entitled to vote with respect to the subject matter
thereof.
ARTICLE III - BOARD OF DIRECTORS
1. GENERAL POWERS. The business and affairs of the corporation shall be
managed by its board of directors. The directors shall in all cases act as a
board, and they may adopt such rules and regulations for the conduct of their
meetings and the management of the corporation, as they may deem proper, not
inconsistent with these by-laws and the laws of the State of Nevada.
2. NUMBER, TENURE AND QUALIFICATIONS. The number of directors of the
corporation shall be a minimum of one (1) and a maximum of nine (9), as
determined by the board of directors. In the absence of further action by the
board of directors, the number of directors shall be seven (7). Each director
shall hold office until the next annual meeting of stockholders and until his
successor has been elected and qualified.
3. REGULAR MEETINGS. A regular meeting of the board of directors, shall be
held without notice immediately after, and at the same place as, the annual
meeting of stockholders. Regular meetings of the board of directors shall be
held at such place and on such day and hour as shall from time to time be
fixed by resolution of the board of directors. No notice of
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regular meetings of the board of directors shall be necessary.
4. SPECIAL MEETINGS. Special meetings of the board of directors may be
called by or at the request of the president or any two directors. The person
or persons authorized to call special meetings of the directors may fix the
place for holding any special meeting of the directors called by them.
5. NOTICE OF SPECIAL MEETING. Notice of any special meeting of the board
of directors shall be given at least one day previously thereto by written
notice delivered personally, or by facsimile or mailed to each director at
his business address. If mailed, such notice shall be deemed to be delivered
when delivered to the address of the director. The attendance of a director
at a meeting or waiver of notice by mail, telegram, facsimile, telephone or
personal communication shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of
objecting to the transaction of any business because the meeting is not
lawfully called or convened.
6. QUORUM. At any meeting of the board of directors fifty percent (50%)
shall constitute a quorum for the transaction of business, but if less than
said number is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice. The directors
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to leave less
than a quorum.
7. MANNER OF ACTING. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the board of
directors.
8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Newly created directorships
resulting from an increase in the number of directors and vacancies occurring
on the board for any reason except the removal of directors without cause may
be filled by a vote of the majority of the directors then in office, although
less than a quorum exists. Vacancies occurring by reason of the removal of
directors without cause shall be filled by vote of the stockholders. A
director elected to fill a vacancy caused by resignation, death or removal
shall be elected to hold office for the unexpired term of his predecessor.
9. REMOVAL OF DIRECTORS. Any and all of the directors may be removed for
cause by vote of the stockholders or by action of the board of directors.
Directors may be removed without cause only by vote of the stockholders.
10. RESIGNATION. A director may resign at any time by giving written notice
to the board of directors, the president or the secretary of the corporation.
Unless otherwise specified in the notice, the resignation shall take effect
upon receipt thereof by the board or such officer, and the acceptance of the
resignation shall not be necessary to make it effective.
11. COMPENSATION. No compensation shall be paid to directors, as such, for
their services, but by resolution of the board of directors a fixed sum and
expenses for actual attendance at each regular or special meeting of the
board may be authorized. Nothing herein
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contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Bonus
options may be rewarded directors for their service on the board of directors.
12. EXECUTIVE AND OTHER COMMITTEES. The board, by resolution, may designate
from among its members an executive committee and other committees, each
consisting of one (1) or more directors. Each such committee shall serve at
the pleasure of the board.
13. PRESUMPTION OF ASSENT. A director who is present at a meeting of the
board of directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his/her dissent shall be
entered in the minutes of the meeting or unless he/she shall file his/her
written dissent to such action with the person acting as the secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the secretary of the Corporation immediately thereafter.
ARTICLE IV - OFFICERS
1. NUMBER. The officers of the corporation shall be the president, a
secretary and a treasurer, each of whom shall be elected by the directors.
Such other officers and assistant officers as may be deemed necessary may be
elected or appointed by the directors.
2. ELECTION AND TERM OF OFFICE. The officers of the corporation to be
elected by the directors shall be elected annually at the first meeting of
the directors held after each annual meeting of the stockholders. Each
officer shall hold office until his successor shall have been duly elected
and shall have qualified or until his death or until he shall resign or shall
have been removed in the manner hereinafter provided.
3. REMOVAL. Any officer or agent elected or appointed by the directors may
be removed by the directors whenever in their judgment the best interest of
the corporation would be served thereby, but such removal shall be without
prejudice to contract rights, if any, of the person so removed.
4. VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the directors for
the unexpired portion of the term.
5. PRESIDENT. The president shall be the principal executive officer of
the corporation and, subject to the control of the directors, shall in
general supervise and control all of the business and affairs of the
corporation. He shall, when present, preside at all meetings of the
stockholders and of the directors. He may sign, with the secretary or any
proper officer of the corporation thereunto authorized by the directors,
certificates for shares of the corporation, any deeds, mortgages, bonds,
contracts, or other instruments which the directors have authorized to be
executed, except in cases where the directors or by these ByLaws to some
other officer or agent of the corporation, or shall be required by law to be
otherwise signed or executed; and in general shall perform all duties
incident to the office of president and such other duties as may be
prescribed by the directors from time to time.
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6. CHAIRMAN OF THE BOARD. In the absence of the president or in the event
of his death, inability or refusal to act, the chairman of the board of
directors shall assume the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The chairman of the board of directors shall perform such other
duties as from time to time may be assigned to him by the directors.
7. SECRETARY. The secretary shall keep the minutes of the stockholders'
and of the directors' meetings in one or more books provided for that
purpose, see that all notices are duly given in accordance with the
provisions of these By-Laws or as required, be custodian of the corporate
records and of the seal of the corporation and keep a register of the post
office address of each stockholder which shall be furnished to the secretary
by such stockholder, have general charge of the stock transfer books of the
corporation and in general perform all the duties incident to the office of
secretary and such other duties as from time to time may be assigned to him
by the president or by the directors.
8. TREASURER. If required by the directors, the treasurer shall give a
bond for the faithful discharge of his duties in such sum and with such
surety or sureties as the directors shall determine. He shall have charge and
custody of and be responsible for all funds and securities of the
corporation; receive and give receipts for moneys due and payable to the
corporation from any source whatsoever, and deposit all such money in the
name of the corporation in such banks, trust companies or other depositories
as shall be selected in accordance with these by-laws and in general perform
all of the duties incident to the office of treasurer and such other duties
as from time to time may be assigned to him by the president or by the
directors.
9. SALARIES. The salaries of the officers shall be fixed from time to time
by the directors; and no officer shall be prevented from receiving such
salary by reason of fact that he is also a director of the corporation.
ARTICLE V - STOCK
1. CERTIFICATES. The shares of stock shall be represented by consecutively
numbered certificates signed in the name of the Corporation by its President
or Vice President and the Secretary or an Assistant Secretary, and shall be
sealed with the seal of the Corporation, or with a facsimile thereof. The
signatures of the Corporation's officers on such certificates may also be
facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar other than the Corporation itself or an employee of
the Corporation. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be an
officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
its issue. Certificates of stock shall be in such form consistent with law as
shall be prescribed by the Board of Directors. No certificate shall be issued
until the shares represented thereby are fully paid.
2. NEW CERTIFICATES. No new certificates evidencing shares shall be issued
unless and until the old certificate or certificates, in lieu of which the
new certificates is issued, shall
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be surrendered for cancellation, except as provided in paragraph 2 of this
Article V.
In case of loss or destruction of any certificate evidencing shares, another
may be issued in its place upon proof of such loss or destruction and upon
the giving of a satisfactory bond of indemnity to the corporation. A new
certificate may be issued without requiring any bond, when in the judgment of
the board of directors it is proper to do so.
3. RESTRICTIONS OF TRANSFER. No certificate shall be issued or re-issued
without a restriction of transferability clearly imprinted thereupon unless
registered as required by law or an exemption from registration is available.
ARTICLE VI - CONTRACTS, LOANS, CHECKS, AND DEPOSITS
1. CONTRACTS. The directors may authorize any officer or officers, agent
or agents, to enter into any contract or execute and deliver any instrument
in the name of and on behalf of the corporation, and such authority may be
general or confined to specific instances.
2. LOANS. No loans shall be contracted on behalf of the corporation and no
evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the directors. Such authority may be general or confined to
specific instances.
3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment of
money, notes or other evidences of indebtedness issued in the name of the
corporation, shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined
by resolution of the directors.
4. DEPOSITS. All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositories as the directors may select.
ARTICLE VII -FISCAL YEAR
The fiscal year of the corporation shall begin on the 1st day of January each
year.
ARTICLE VIII - DIVIDENDS
The directors may from time to time declare, and the corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law.
ARTICLE IX - CORPORATE SEAL
The directors shall provide a corporate seal which shall be circular in form
and shall have inscribed thereon the name of the corporation, the state of
incorporation, year of incorporation and the words, "Corporate Seal."
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ARTICLE X - INDEMNIFICATION OF DIRECTORS AND OFFICERS
1. INDEMNIFICATION. The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of the corporation) by reason of the fact that such person is or
was a director, trustee, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, trustee,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
by itself, create a presumption that the person did not act in good faith and
in a manner which the person reasonably believed to be in or not opposed to
the best interest of the corporation, and with respect to any criminal action
or proceeding, had reasonable cause to believe that such person's conduct was
lawful.
2. DERIVATIVE ACTION. The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure
a judgment in the corporation's favor by reason of the fact that such person
is or was a director, trustee, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director,
trustee, officer, employee or agent of any other corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit
or proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation; provided, however, that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for gross negligence or willful misconduct in the
performance of such person's duty to the corporation unless and only to the
extent that the court in which such action or suit was brought shall
determine upon application that, despite circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as
such court shall deem proper. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, by itself, create a presumption that
the person did not act in good faith and in a manner which the person
reasonably believed to be in or not opposed to the best interest of the
corporation.
3. SUCCESSFUL DEFENSE. To the extent that a director, trustee, officer,
employee or agent of the corporation has been successful, on the merits or
otherwise, in whole or in part, in defense of any action, suit or proceeding
referred to in paragraphs 1 and 2 above, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection
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therewith.
4. AUTHORIZATION. Any indemnification under paragraph 1 and 2 above
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, trustee, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct
set forth in paragraph 1 and 2 above. Such determination shall be made (a) by
the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (b) if by
independent legal counsel (selected by one or more of the directors, whether
or not a quorum and whether or not disinterested) in a written opinion, or by
the shareholders. Anyone making such a determination under this paragraph 4
may determine that a person has met the standards therein set forth as to
some claims, issues or matters but not as to others, and may reasonably
prorate amounts to be paid as indemnification.
5. ADVANCES. Expenses incurred in defending civil or criminal actions,
suits or proceedings shall be paid by the corporation, at any time or from
time to time in advance of the final disposition of such action, suit or
proceeding as authorized in the manner provided in paragraph 4 above upon
receipt of an undertaking by or on behalf of the director, trustee, officer,
employee or agent to repay such amount unless it shall ultimately be
determined by the corporation that the payment of expenses is authorized in
this Section.
6. NONEXCLUSIVITY. The indemnification provided in this Section shall not
be deemed exclusive of any other rights to which those indemnified may be
entitled under any law, by-law, agreement, vote of shareholders or
disinterested director or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
trustee, officer, employee or agent and shall insure to the benefit of the
heirs, executors, and administrators of such a person.
7. INSURANCE. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, trustee,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee or agent
of any corporation, partnership, joint venture, trust or other enterprise,
against any liability assessed against such person in any such capacity or
arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability.
8. "CORPORATION" DEFINED. For purpose of this action, references to the
"corporation" shall include, in addition to the corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had the power and authority to indemnify its directors, trustees,
officers, employees or agents, so that any person who is or was a director,
trustee, officer, employee or agent of such of constituent corporation will
be considered as if such person was a director, trustee, officer, employee or
agent of the corporation.
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ARTICLE XI - WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is required to be given
to any stockholder or director of the corporation under the provisions of
these by-laws or under the provisions of the articles of incorporation, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTTCLE XII - AMENDMENTS
These By-Laws may be altered, amended or repealed and new By-Laws may be
adopted by the board of directors.
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EXHIBIT 3.1
1999 STOCK OPTION PLAN
VOICE MOBILITY INTERNATIONAL, INC.
1999 STOCK OPTION PLAN
1. GRANT OF OPTIONS GENERALLY.
In accordance with the provisions hereinafter set forth in this stock
option plan, the name of which is the VOICE MOBILITY INTERNATIONAL,
INC. 1999 STOCK OPTION PLAN (the "Plan"), the Board of Directors (the
"Board") or, the Compensation Committee (the "Stock Option Committee")
of VOICE MOBILITY INTERNATIONAL, INC. (the "Corporation") is hereby
authorized to issue from time to time on the Corporation's behalf to
any one or more Eligible Persons, as hereinafter defined, options to
acquire shares of the Corporation's $.001 par value common stock (the
"Stock").
2. TYPE OF OPTIONS.
The Board or the Stock Option Committee is authorized to issue options
which meet the requirements of Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"), which options are hereinafter
referred to collectively as ISOs, or singularly as an ISO. The Board or
the Stock Option Committee is also, in its discretion, authorized to
issue options which are not ISOs, which options are hereinafter
referred to collectively as NSOs, or singularly as an NSO. The Board or
the Stock Option Committee is also authorized, but not obligated, to
issue "Reload Options" in accordance with Paragraph 8 herein, which
options are hereinafter referred to collectively as Reload Options, or
singularly as a Reload Option. Except where the context indicates to
the contrary, the term "Option' or "Options" means ISOs, NSOs and
Reload Options.
3. AMOUNT OF STOCK.
The aggregate number of shares of Stock which may be purchased pursuant
to the exercise of Options shall be 5,000,000 shares. Of this amount,
the Board or the Stock Option Committee shall have the power and
authority to designate whether any Options so issued shall be ISOs or
NSOs, subject to the restrictions on ISOs contained elsewhere herein.
If an Option ceases to be exercisable, in whole or in part, the shares
of Stock underlying such Option shall continue to be available under
this Plan. Further, if shares of Stock are delivered to the Corporation
as payment for shares of Stock purchased by the exercise of an Options
granted under this Plan, such shares of Stock shall also be available
under this Plan. If there is any change in the number of shares of
Stock on account of the declaration of stock dividends,
recapitalization resulting in stock split-ups, or combinations or
exchanges of shares of Stock, or otherwise, the number of shares of
Stock available for purchase upon the exercise of Options, the shares
of Stock subject to any Option and the exercise price of any
outstanding Option shall be appropriately adjusted by the Board or
the-Stock Option Committee. The Board or the Stock Option Committee
shall give notice of any adjustments to each Eligible Person granted an
Option under this Plan, and such adjustments shall be effective and
binding on all Eligible Persons. If because of one or more
recapitalizations, reorganizations or other
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corporate events, the holders of outstanding Stock receive something
other than shares of Stock then, upon exercise of an Option, the
Eligible Person will receive what the holder would have owned if the
holder had exercised the Option immediately before the first such
corporate event and not disposed of anything the holder received as a
result of the corporate event.
4. ELIGIBLE PERSONS
(a) With respect to ISOs, an Eligible Person means any individual
who has been employed by the Corporation or by any subsidiary
of the Corporation for a continuous period of at least sixty
(60) days.
(b) With respect to NSOs, an Eligible Person means (i) any
individual who has been employed by the Corporation or by any
subsidiary of the Corporation, for a continuous period of at
least sixty (60) days, (ii) any director of the Corporation or
any subsidiary of the Corporation (iii) any member of the
Corporations advisory board member or of any of the
Corporation's subsidiar(ies), or (iv) any consultant of the
Corporation or by any subsidiary of the Corporation.
5. GRANT OF OPTIONS.
The Board or the Stock Option Committee has the right to issue the
Options established by this Plan to Eligible Persons. The Board or the
Stock Option Committee shall follow the procedures prescribed for it
elsewhere in this Plan. A grant of Options shall be set forth in a
writing signed on behalf of the Corporation or by a majority of the
members of the Stock Option Committee. The writing shall identify
whether the Option being granted is an ISO or an NSO and shall set
forth the terms which govern the Option. The terms shall be determined
by the Board or the Stock Option Committee, and may include, among
other terms, the number of shares of Stock that may be acquired
pursuant to the exercise of the Options, when the Options may be
exercised, the period for which the Option is granted and including the
expiration date, the effect on the Options of the Eligible Person
terminates employment and whether the Eligible Person may deliver
shares of Stock to pay for the shares of Stock to be purchased by the
exercise of the Option. However, no term shall be set forth in the
writing which is inconsistent with any of the terms of this Plan. The
terms of an Option granted to an Eligible Person may differ from the
terms of an Option granted to another Eligible Person, and may offer
form the terms of an earlier Option granted to the same Eligible Person
6. OPTION PRICE.
The option price per share shall be determined by the Board or the
Stock Option Committee at the time any Option is granted, and shall be
not less than (i) in the case of an ISO, the fair market value, (ii) in
the case of an ISO granted to a ten percent or greater stockholder,
shall be determined by the Board, or (iii) in the case of an NSO, not
less than 75% of the fair market value (but in no event less than the
par value) of one share of Stock on the date the Option is granted, as
determined by the Board or the Stock Option Committee. Fair market
value as used herein shall be:
(a) If shares of Stock shall be traded on an exchange or
over-the-counter market, the closing price or the closing bid
price of such Stock on such exchange or over-the-counter
market on which such shares shall be traded on that date, or
if such
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exchange or over-the-counter market is closed or if no shares
shall have traded on such date, on the last preceding date on
which such shares shall have traded, or such other value as
determined by the Board or the Stock Option Committee of the
Corporation.
(b) If shares of Stock shall not be traded on an exchange or
over-the-counter market, the value as determined by the Board
or the Stock Option Committee of the Corporation.
7. PURCHASE OF SHARES.
An Option shall be exercised by the tender to the Corporation of the
full purchase price of the Stock with respect to which the Option is
exercised and written notice of the exercise. The purchase price of the
Stock shall be in United States dollars, payable in cash or by check,
or in property or Corporation stock or Options, if so permitted by the
Board or the Stock Option Committee in accordance with the discretion
granted in Paragraph 5 hereof, having a value equal to such purchase
price. The Corporation shall not be required to issue or deliver any
certificates for shares of Stock purchased upon the exercise of an
Option prior to (i) if requested by the Corporation, the filing with
the Corporation by the Eligible Person of a representation in writing
that it is the Eligible Persons then present intention to acquire the
Stock being purchased for investment and not for resale, and/or (ii)
the completion of any registration or other qualification of such
shares under any government regulatory body, which the Corporation
shall determine to be necessary or advisable.
8. GRANT OF RELOAD OPTIONS
In granting an Option under this Plan, the Board or the Stock Option
Committee may, but shall not be obligated to include, a Reload Option
provision therein, subject to the provisions set forth in Paragraphs 20
and 21 herein. A Reload Option provision provides that if the Eligible
Person pays the exercise price of shares of Stock to be purchased by
the exercise of an ISO, NSO or another Reload Option (the "Original
Option") by delivering to the Corporation shares of Stock already owned
by the Eligible Person (the "Tendered Shares"), the Eligible Person
shall receive a Reload Option which shall be a new Option to purchase
shares of Stock equal in number to the tendered shares. The terms of
any Reload Option shall be determined by the Board or the Stock Option
Committee consistent with the provisions of this Plan.
9. STOCK OPTION COMMITTEE
The Stock Option Committee may be appointed from time to time by the
Board. The Board may from time to time remove members from or add
members to the Stock Option Committee. The Stock Option Committee shall
be constituted so as to permit the Plan to comply in all respects with
the provisions set forth in Paragraph 20 herein. The members of the
Stock Option Committee may elect one to its members as its chairman.
The Stock Option Committee shall hold its meetings at such time and
places as its chairman shall determine. A majority of the Stock Option
Committee's members present in person shall constitute a quorum for the
transaction of business. All determinations of the Stock Option
Committee will be made by the majority vote of the members constituting
the quorum. The members may participate in a meeting of the Stock
Option Committee by conference telephone or similar communications
equipment by means of which all
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members participating in the meeting can hear each other. Participation
in a meeting in that manner will constitute presence in person at the
meeting. Any decision or determination reduced to writing and signed by
all members of the Stock Option Committee will be effective as if it
had been made by a majority vote of all members of the Stock Option
Committee at a meeting which is duly called and held.
10. ADMINISTRATION OF PLAN
In addition to granting Options and to exercising the authority granted
to it elsewhere in this Plan, the Board or the Stock Option Committee
is granted the full right and authority to interpret and construe the
provisions of this Plan, promulgate, amend and rescind rules and
procedures relating to the implementation of the Plan and to make all
other determinations necessary or advisable for the administration of
the Plan, consistent, however, with the intent of the Corporation that
Options granted or awarded pursuant to the Plan comply with the
provisions of Paragraph 20 and 21 herein. All determinations made by
the Board or the Stock Option Committee shall be final, binding and
conclusive on all persons including the Eligible Person, the
Corporation and its stockholders, employees, officers and directors and
consultants. No member of the Board or the Stock Option Committee will
be liable for any act or omission in connection with the administration
of this Plan unless it is attributable to that member's willful
misconduct.
11. PROVISIONS APPLICABLE TO ISOS.
The following provisions shall apply to all ISOs granted by the Board
or the Stock Option Committee and are incorporated by reference into
any writing granting an ISO:
(a) An ISO may only be granted within ten (10) years from June 29,
1999, the date that this Plan was originally adopted by the
Board.
(b) An ISO may not be exercised after the expiration of ten (10)
years from the date the ISO is granted.
(c) The option price may not be less than the fair market value of
the Stock at the time the ISO is granted.
(d) An ISO is not transferable by the Eligible Person to whom it
is granted except by will, or the laws of descent and
distribution, and is exercisable during his or her lifetime
only by the Eligible Person.
(e) If the Eligible Person receiving the ISO owns at the time of
the grant stock possessing more than ten (10%) percent of the
total combined voting power of all classes of stock of the
employer corporation or of its parent or subsidiary
corporation (as those terms are defined in the Code), then the
option price shall be at least 110% of the fair market value
of the Stock, and the ISO shall not be exercisable after the
expiration of five (5) years from the date the ISO is granted.
(f) The aggregate fair market value (determined at the time the
ISO is granted) of the Stock with respect to which the ISO is
first exercisable by the Eligible Person during any calendar
year (under this Plan and any other incentive stock option
plan of the Corporation) shall not exceed $100,000.
(g) Even if the shares of Stock which are issued upon exercise of
an ISO are sold within one year following the exercise of such
ISO so that the sale constitutes a
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disqualifying disposition for ISO treatment under the Code, no
provision of this Plan shall be construed as prohibiting such
a sale.
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(h) This Plan was adopted by the Corporation on June 29, 1999, by
virtue of its approval by the Board. Approval by the
stockholders of the Corporation is to occur prior to June 28,
2000.
12. DETERMINATION OF FAIR MARKET VALUE
In granting ISOs under this Plan, the Board or the Stock Option
Committee shall make a good faith determination as to the fair market
value of the Stock at the time of granting the ISO.
13. RESTRICTIONS ON ISSUANCE OF STOCK
The Corporation shall not be obligated to sell or issue any shares of
Stock pursuant to the exercise of an Option unless the Stock with
respect to which the Option is being exercised is at that time
effectively registered or exempt from registration under the Securities
Act of 1933, as amended, and any other applicable laws, rules and
regulations. The Corporation may condition the exercise of an Option
granted in accordance herewith upon receipt from the Eligible Person,
or any other purchaser thereof, of a written representation that at the
time of such exercise it is his or her then present intention to
acquire the shares of Stock for investment and not with a view to, or
for sale in connection with, any distribution thereof; except that, in
the case of a legal representative of an Eligible Person,
"distribution" shall be defined to exclude distribution by will or
under the laws of descent and distribution. Prior to issuing any shares
of Stock pursuant to the exercise of an Option, the Corporation shall
take such steps as it deems necessary to satisfy any withholding tax
obligations imposed upon it by any level of government.
14. EXERCISE IN THE EVENT OF DEATH OF TERMINATION OR EMPLOYMENT
(a) If an optionee shall die (i) while an employee of the
Corporation or a Subsidiary or within three months after
termination of his employment with the Corporation or a
Subsidiary because of his disability, or retirement or
otherwise, his Options may be exercised, to the extent that
the optionee shall have been entitled to do so on the date of
his death or such termination of employment by the person or
persons to whom the optionee's right under the Option pass by
will or applicable law, or if no such person has such right,
by his executors or administrators, at any time, or from time
to time. In the event of termination of employment because of
his death while an employee or because of disability, his
Options may be exercised not later than the expiration date
specified in Paragraph 5 or one year after the optionee's
death, whichever date is earlier, or in the event of
termination of employment because of retirement or otherwise,
not later than the expiration date specified in Paragraph 5
hereof or one year after the optionee's death, whichever date
is earlier.
(b) If an optionee's employment by the Corporation or a Subsidiary
shall terminate because of his disability and such optionee
has not died within the following three months, he may
exercise his Options, to the extent that he shall have been
entitled to do so at the date of the termination of his
employment, at any time, or from time to time, but not later
than the expiration date specified in Paragraph 5 hereof or
one year after termination of employment, whichever date is
earlier.
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(c) If an optionee's employment shall terminate by reason of his
retirement in accordance with the terms of the Corporation's
retirement plans or with the consent of the Board or the Stock
Option Committee or involuntarily other than by termination
for cause, and such optionee had not died within the following
three months, he may exercise his Option to the extent he
shall have been entitled to do so at the date of the
termination of his employment, at any time and from time to
time, but not later than the expiration date specified in
Paragraph 5 hereof.
(d) If an optionee's employment shall terminate for cause, all
right to exercise his Options shall terminate at the date of
such termination of employment.
15. CORPORATE EVENTS
In the event of the proposed dissolution or liquidation of the
Corporation, a proposed sale of all or substantially all of the assets
of the Corporation, a merger or tender for the Corporation's shares of
Common Stock the Board shall declare that each Option granted under
this Plan shall terminate as of a date to be fixed by the Board;
provided that not less than thirty (30) days written notice of the date
so fixed shall be given to each Eligible Person holding an Option, and
each such Eligible Person shall have the right, during the period of
thirty (30) days preceding such termination, to exercise his Option as
to all or any part of the shares of Stock covered thereby, including
shares of Stock as to which such Option would not otherwise be
exercisable. Nothing set forth herein shall extend the term set for
purchasing the shares of Stock set forth in the Option.
16. NO GUARANTEE OF EMPLOYMENT
Nothing in this Plan or in any writing granting an Option will confer
upon any Eligible Person the right to continue in the employ of the
Eligible Person's employer, or will interfere with or restrict in any
way the right of the Eligible Person's employer to discharge such
Eligible Person at any time for any reason whatsoever, with or without
cause.
17. 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 him.
18. NO RIGHTS AS STOCKHOLDER
No optionee shall have any rights as a stockholder with respect to any
shares subject to his Option prior to the date of issuance to him of a
certificate or certificates for such shares.
19. AMENDMENT AND DISCONTINUANCE OF PLAN
The Board may amend, suspend or discontinue this Plan at any time.
However, no such action may prejudice the rights of any Eligible Person
who has prior thereto been granted Options under this Plan. Further, no
amendment to this Plan which has the effect of (a) increasing the
aggregate number of shares of Stock subject to this Plan (except for
adjustments pursuant to Paragraph 3 herein), or (b) changing the
definition of Eligible Person under this Plan, may be effective unless
and until approval of the stockholders of the Corporation is obtained
in the same manner as approval of this Plan is required. The
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Board is authorized to seek the approval of the Corporation's
stockholders for any other changes it proposes to make to this Plan
which require such approval, however, the Board may modify the Plan as
necessary, to effectuate the intent of the Plan as a result of any
changes in the tax, accounting or securities laws treatment of Eligible
Persons and the Plan, subject to the provisions set forth in this
Paragraph 19, and Paragraphs 20 and 21.
20. COMPLIANCE WITH RULE 16B-3
This Plan is intended to comply in all respects with Rule 16b-3 ("Rule
16b-3") promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), with
respect to participants who are subject to Section 16 of the Exchange
Act, and any provision(s) herein that is/are contrary to Rule 16b-3
shall be deemed null and void to the extent appropriate by either the
Stock Option Committee or the Board.
21. COMPLIANCE WITH CODE
The aspects of this Plan on ISOs are intended to comply in every
respect with Section 422 of the Code and the regulations promulgated
thereunder. in the event any future statute or regulation shall modify
the existing stature, the aspects of this Plan on ISOs shall be deemed
to incorporate by reference such modification. Any stock option
agreement relating to any Option granted pursuant to this Plan
outstanding and unexercised at the time any modifying statute or
regulation becomes effective shall also be deemed to incorporate by
reference such modification and no notice of such modification need to
be given to optionee.
If any provision of the aspects of this Plan on ISOs is determined to
disqualify the shares purchasable pursuant to the Options granted under
this Plan from the special tax treatment provided by Code Section 422,
such provision shall be deemed null and void and to incorporate by
reference the modification required to qualify the shares for said tax
treatment.
22. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
The Plan, the grant and exercise of Options thereunder, and the
obligation of the Corporation to sell and deliver Stock 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 Corporation shall not be
required to issue or deliver any certificates for shares of Stock prior
to (a) the listing of such shares on any stock exchange or
over-the-counter market on which the Stock may then be fisted and (b)
the completion of any registration or qualification of such shares
under any federal or state law, or any ruling or regulation of any
government body which the Corporation shall, in its sole discretion,
determine to be necessary or advisable. Moreover, no option may be
exercised if its exercise or the receipt of Stock pursuant thereto
would be contrary to applicable laws.
23. DISPOSITION OF SHARES.
In the event any share of Stock acquired by an exercise of an Option
granted under the Plan shall be transferable other than by will or by
the laws of descent and distribution within two years of the date such
Option was granted or within one year after the transfer
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of such Stock pursuant to such exercise, the optionee shall give
prompt written notice thereof to the Corporation or the Stock Option
Committee.
24. NAME.
The Plan shall be known as the "Voice Mobility 1999 Stock Option Plan."
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25. NOTICES
Any notice hereunder shall be in writing and sent by certified mail,
return receipt requested or by facsimile transmission (with electronic
or written confirmation of receipt) and when addressed to the
Corporation shall be sent to it at its office, 701-543 Granville
Street, Vancouver, British Columbia V6C 1X8 Canada and when addressed
to the Committee shall be sent to it 701-543 Granville Street,
Vancouver, British Columbia V6C 1X8 Canada, subject to the right of
either party to designate at any time hereafter in writing some other
address, facsimile number or person to whose attention such notice
shall be sent.
26. HEADINGS
The headings preceding the text of Sections and subparagraphs hereof
are inserted solely for convenience of reference, and shall not
constitute a part of this Plan nor shall they affect its meaning,
construction or effect.
27. EFFECTIVE DATE
The Plan, was adopted by the Board on June 29, 1999. The effective date
of the Plan shall be the same date.
Dated as of June 29, 1999
VOICE MOBILITY INTERNATIONAL, INC.
By: /s/ James J. Hutton
--------------------------
James J. Hutton, President
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EXHIBIT 3.2
AMENDED AND RESTATED 1999 STOCK OPTION PLAN
VOICE MOBILITY INTERNATIONAL, INC.
AMENDED AND RESTATED
1999 STOCK OPTION PLAN
1. GRANT OF AWARDS GENERALLY.
In accordance with the provisions hereinafter set forth in this stock
option plan, the name of which is the VOICE MOBILITY INTERNATIONAL,
INC. AMENDED AND RESTATED 1999 STOCK OPTION PLAN (the "Plan"), the
Board of Directors (the "Board") or, the Compensation Committee (the
"Committee") of VOICE MOBILITY INTERNATIONAL, INC. (the "Corporation")
is hereby authorized to issue from time to time on the Corporation's
behalf to any one or more Eligible Persons, as hereinafter defined,
Awards to acquire shares of the Corporation's $.001 par value common
stock (the "Stock").
2. TYPE OF AWARDS
(a) The Board and the Committee are authorized under this Plan to
enter into any type of arrangement with a Participant that is
not inconsistent with the provisions of this Plan and that, by
its terms, involves or might involve the issuance of (i)
shares of Stock, or (ii) a Derivative Security (as such term
is defined in Rule 16a-1 promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as such
Rule may be amended from time to time) with an exercise or
conversion privilege at a price related to the Stock or with a
value derived from the value of the Stock. The entering into
of any such arrangement is referred to herein as the "grant"
of an "Award."
(b) Awards are not restricted to any specified form or structure
and may include, without limitation, sales or bonuses of
stock, restricted stock, stock options (including options
which meet the requirements of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), ("ISOs") and
options which are not ISOs (NSOs), reload stock options in
accordance with Paragraph 8 herein ("Reload Options"), stock
purchase warrants, other rights to acquire stock, securities
convertible into or redeemable for stock, stock appreciation
rights, limited stock appreciation rights, phantom stock,
dividend equivalents, performance units or performance shares,
and an Award may consist of one such security or benefit, or
two or more of them in tandem or in the alternative.
(c) Stock and Derivative Securities may be issued pursuant to an
Award for any lawful consideration as determined by the Board
or the Committee, including, without limitation, services
rendered by the recipient of such Award.
3. AMOUNT OF STOCK.
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The aggregate number of shares of Stock which may be purchased pursuant
to the exercise of Awards shall be 10,000,000 shares of Stock. Of this
amount, the Board or the Committee shall have the power and authority
to designate whether any options so issued shall be ISOs or NSOs,
subject to the restrictions on ISOs contained elsewhere herein. If an
Award ceases to be exercisable, in whole or in part, the shares of
Stock underlying such option shall continue to be available under this
Plan. Further, if shares of Stock are delivered to the Corporation as
payment for shares of Stock purchased by the exercise of an Award
granted under this Plan, such shares of Stock shall also be available
under this Plan. If there is any change in the number of shares of
Stock on account of the declaration of stock dividends,
recapitalization resulting in stock split-ups, or combinations or
exchanges of shares of Stock, or otherwise, the number of shares of
Stock available for purchase upon the exercise of Awards, the shares of
Stock subject to any Award and the exercise price of any outstanding
Awards shall be appropriately adjusted by the Board or the Stock Option
Committee. The Board or the Stock Option Committee shall give notice of
any adjustments to each Eligible Person granted an Award under this
Plan, and such adjustments shall be effective and binding on all
Eligible Persons. If because of one or more recapitalizations,
reorganizations or other corporate events, the holders of outstanding
Stock receive something other than shares of Stock then, upon exercise
of an Award, the Eligible Person will receive what the holder would
have owned if the holder had exercised the Award immediately before the
first such corporate event and not disposed of anything the holder
received as a result of the corporate event.
4. ELIGIBLE PERSONS
(a) With respect to ISOs, an Eligible Person means any individual
who has been employed by the Corporation or by any subsidiary
of the Corporation for a continuous period of at least sixty
(60) days.
(b) With respect to all other forms of Awards, an Eligible Person
means (i) any individual who has been employed by the
Corporation or by any subsidiary of the Corporation, for a
continuous period of at least sixty (60) days, (ii) any
director of the Corporation or any subsidiary of the
Corporation (iii) any member of the Corporations advisory
board or of any of the Corporation's subsidiary(ies), or (iv)
any consultant of the Corporation or by any subsidiary of the
Corporation.
5. GRANT OF AWARDS.
The Board or the Committee has the right to issue the Awards
established by this Plan to Eligible Persons. The Board or the
Committee shall follow the procedures prescribed for it elsewhere in
this Plan. A grant of Awards shall be set forth in a writing signed the
Board or by a majority of the members of the Committee. The writing
shall identify whether the Award being granted includes ISOs and shall
set forth the terms which govern the Awards. The terms shall be
determined by the Board or the Committee, and may include, among other
terms, the number of shares of Stock that may be acquired pursuant to
the exercise of the Awards, when the Awards may be exercised, the
period for which the Award is granted and the expiration date, the
effect on the Awards if the Eligible Person terminates employment, and
whether the Eligible Person may deliver
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shares of Stock to pay for the shares of Stock to be purchased by the
exercise of the Award. However, no term shall be set forth in the
writing which is inconsistent with any of the terms of this Plan. The
terms of an Award granted to an Eligible Person may differ from the
terms of an Award granted to another Eligible Person, and may differ
from the terms of an earlier Option granted to the same Eligible Person
6. EXERCISE PRICE.
The exercise price per share shall be determined by the Board or the
Committee at the time any Award is granted, and shall be not less than
(i) in the case of an ISO, the fair market value, (ii) in the case of
an ISO granted to a ten percent or greater stockholder, shall be
determined by the Board, or (iii) in the case of all other Awards, not
less than 75% of the fair market value (but in no event less than the
par value) of one share of Stock on the date the Award is granted, as
determined by the Board or the Committee. Fair market value as used
herein shall be:
(a) If shares of Stock shall be traded on an exchange or
over-the-counter market, the closing price or the
closing bid price of such Stock on such exchange or
over-the-counter market on which such shares shall be
traded on that date, or if such exchange or
over-the-counter market is closed or if no shares
shall have traded on such date, on the last preceding
date on which such shares shall have traded, or such
other value as determined by the Board or the
Committee.
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b) If shares of Stock shall not be traded on an exchange or
over-the-counter market, the value as determined by the
Board or the Committee.
7. PAYMENT OF EXERCISE PRICE
(a) Except as otherwise provided below, payment of the exercise
price for the number of shares of Stock being purchased
pursuant to any Award shall be made (i) in cash, by check,
or cash equivalent, (ii) by tender to the Corporation of
shares of Stock owned by the holder of the Award having a
Fair Market Value (as determined by the Corporation without
regard to any restrictions on transferability applicable to
such stock by reason of federal or state securities laws or
agreements with an underwriter for the Corporation) not less
than the exercise price, (iii) by the assignment of the
proceeds of a sale or loan with respect to some or all of
the shares being acquired upon the exercise of the Award
(including, without limitation, through an exercise complying
with the provisions of Regulation T as promulgated from time
to time by the Board of Governors of the Federal Reserve
System) (a "Cashless Exercise"), (iv) by the holderof the
Award's promissory note in a form approved by the Board or
the Committee, (v) by such other consideration as may be
approved by the Board or the Committee from time to time to
the extent permitted by applicable law, or (vi) by any
combination thereof. The Board or the Committee may at any
time or from time to time, by adoption of or by amendment to
the standard forms of Awards described in Section 7, or by
other means, grant Awards which do not permit all of the
foregoing forms of consideration to be used in payment of
the exercise price or which otherwise restrict one or more
forms of consideration.
(b) Notwithstanding the foregoing, an Award may not be exercised
by tender to the Corporation of shares of Stock to the
extent such tender of Stock would constitute a violation of
the provisions of any law, regulation or agreement
restricting the redemption of the Corporation's stock.
Unless otherwise provided by the Board or the Committee, an
Award may not be exercised by tender to the Corporation of
shares of Stock unless such shares either have been owned by
the holder for more than six (6) months or were not acquired,
directly or indirectly, from the Corporation.
(c) The Corporation reserves, at any and all times, the right, in the
Corporation's sole and absolute discretion, to establish, decline to
approve or terminate any program or procedures for the exercise of
Awards by means of a Cashless Exercise.
(d) No promissory note shall be permitted if the exercise of an Award
using a promissory note would be a violation of any law. Any permitted
promissory note shall be on such terms as the Board or Committee shall
determine. The Board and the Committee shall have the authority to
permit or require the Award holder to secure any promissory note used
to exercise an Award with the shares of Stock acquired upon the
exercise of the Award or with other collateral acceptable to the Board
or the Committee. Unless
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<PAGE>
otherwise provided by the Board or the Committee, if the Corporation at
any time is subject to the regulations promulgated by the Board of
Governors of the Federal Reserve System or any other governmental
entity affecting the extension of credit in connection with the
Corporation's securities, any promissory note shall comply with such
applicable regulations, and the Award holder shall pay the unpaid
principal and accrued interest if any, to the extent necessary to
comply with such applicable regulations.
(e) The Corporation shall have the right, but not the obligation,
to deduct from the shares of Stock issuable upon the exercise
of any Award Option, or to accept from the Award holder the
tender of, a number of whole shares of Stock having a Fair
Market Value, as determined by the Corporation, equal to all
or any part of the federal, state, local and foreign taxes, if
any, required by law to be withheld by the Corporation with
respect to such Award or the shares acquired upon the exercise
thereof. Alternatively or in addition, in its sole discretion,
the Corporation shall have the right to require the Award
holder, through payroll withholding, cash payment or
otherwise, including by means of a Cashless Exercise, to make
adequate provision for any such tax withholding obligations of
the Corporation arising in connection with the Awards or the
shares of Stock acquired upon the exercise thereof. The
Corporation shall have no obligation to deliver share of Stock
or to release shares of Stock from an escrow established
pursuant to the Award until the Corporation's tax withholding
obligations have been satisfied by the Award holder.
8. GRANT OF RELOAD OPTIONS
In granting stock options under this Plan, the Board or the Committee
may, but shall not be obligated to, include a Reload Option provision
therein, subject to the provisions set forth in Paragraphs 20 and 21
herein. A Reload Option provision provides that if the Eligible Person
pays the exercise price of shares of Stock to be purchased by the
exercise of an Award (the "Original Option") by delivering to the
Corporation shares of Stock already owned by the Eligible Person (the
"Tendered Shares"), the Eligible Person shall receive a Reload Option
which shall be a new Option to purchase shares of Stock equal in number
to the tendered shares. The terms of any Reload Option shall be
determined by the Board or the Committee consistent with the provisions
of this Plan.
9. COMMITTEE
The Committee may be appointed from time to time by the Board. The
Board may from time to time remove members from or add members to the
Committee. The Committee shall be constituted so as to permit the Plan
to comply in all respects with the provisions set forth in Paragraph 20
herein. The members of theCommittee may elect one to its members as its
chairman. The Committee shall hold its meetings at such time and places
as its chairman shall determine. A majority of the Committee's members
present in person shall constitute a quorum for the transaction of
business. All determinations of the Committee will be made by the
majority vote of the members constituting the quorum. The members may
participate in a meeting of the Committee by conference telephone or
similar communications equipment by means of which all members
participating in the meeting can hear each other. Participation in a
meeting in that manner will constitute
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presence in person at the meeting. Any decision or determination
reduced to writing and signed by all members of the Committee will be
effective as if it had been made by a majority vote of all members of
the Committee at a meeting which is duly called and held.
10. ADMINISTRATION OF PLAN
In addition to granting Awards and to exercising the authority granted
to it elsewhere in this Plan, the Board or the Committee is granted the
full right and authority to interpret and construe the provisions of
this Plan, promulgate, amend and rescind rules and procedures relating
to the implementation of the Plan and to make all other determinations
necessary or advisable for the administration of the Plan, consistent,
however, with the intent of the Corporation that Awards granted or
awarded pursuant to the Plan comply with the provisions of Paragraph 20
and 21 herein. All determinations made by the Board or the Committee
shall be final, binding and conclusive on all persons including the
Eligible Person, the Corporation and its stockholders, employees,
officers and directors and consultants. No member of the Board or the
Committee will be liable for any act or omission in connection with the
administration of this Plan unless it is attributable to that member's
willful misconduct.
11. PROVISIONS APPLICABLE TO ISOS.
The following provisions shall apply to all ISOs granted by the Board
or the Committee and shall be incorporated by reference into any
writing granting an ISO:
(a) An ISO may only be granted within ten (10) years from June 29,
1999, the date that this Plan was originally adopted by the
Board.
(b) An ISO may not be exercised after the expiration of ten (10)
years from the date the ISO is granted.
(c) The option price may not be less than the fair market value of
the Stock at the time the ISO is granted.
(d) An ISO is not transferable by the Eligible Person to whom it
is granted except by will, or the laws of descent and
distribution, and is exercisable during his or her lifetime
only by the Eligible Person.
(e) If the Eligible Person receiving the ISO owns at the time of
the grant stock possessing more than ten (10%) percent of the
total combined voting power of all classes of stock of the
employer corporation or of its parent or subsidiary
corporation (as those terms are defined in the Code), then the
option price shall be at least 110% of the fair market value
of the Stock, and the ISO shall not be exercisable after the
expiration of five (5) years from the date the ISO is granted.
(f) The aggregate fair market value (determined at the time the
ISO is granted) of the Stock with respect to which the ISO is
first exercisable by the Eligible Person during any calendar
year (under this Plan and any other incentive stock option
plan of the Corporation) shall not exceed $100,000.
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(g) Even if the shares of Stock which are issued upon exercise of
an ISO are sold within one year following the exercise of such
ISO so that the sale constitutes a disqualifying disposition
for ISO treatment under the Code, no provision of this Plan
shall be construed as prohibiting such a sale.
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(f) This Plan was adopted by the Corporation on June 29, 1999, by
virtue of its approval by the Board and amended and restated
on March 10, 2000. Approval by the stockholders of the
Corporation is to occur prior to June 28, 2000.
12. DETERMINATION OF FAIR MARKET VALUE
In granting ISOs under this Plan, the Board or the Committee shall make
a good faith determination as to the fair market value of the Stock at
the time of granting the ISO in accordance with the provisions of
Section 6 above.
13. RESTRICTIONS ON ISSUANCE OF STOCK
The Corporation shall not be obligated to sell or issue any shares of
Stock pursuant to the exercise of an Award unless the Stock with
respect to which the Award is being exercised is at that time
effectively registered or exempt from registration under the Securities
Act of 1933, as amended, and any other applicable laws, rules and
regulations. The Corporation may condition the exercise of an Award
granted in accordance herewith upon receipt from the Eligible Person,
or any other purchaser thereof, of a written representation that at the
time of such exercise it is his or her then present intention to
acquire the shares of Stock for investment and not with a view to, or
for sale in connection with, any distribution thereof; except that, in
the case of a legal representative of an Eligible Person,
"distribution" shall be defined to exclude distribution by will or
under the laws of descent and distribution. Prior to issuing any shares
of Stock pursuant to the exercise of an Award, the Corporation shall
take such steps as it deems necessary to satisfy any withholding tax
obligations imposed upon it by any level of government.
14. EXERCISE IN THE EVENT OF DEATH OF TERMINATION OR EMPLOYMENT
(a) If an Award holder shall die (i) while an employee of the
Corporation or a Subsidiary or within three months after
termination of his employment with the Corporation or a
Subsidiary because of his disability, or retirement or
otherwise, his Awards may be exercised, to the extent that the
Award holder shall have been entitled to do so on the date of
his death or such termination of employment by the person or
persons to whom the Award holder's right under the Award pass
by will or applicable law, or if no such person has such
right, by his executors or administrators, at any time, or
from time to time. In the event of termination of employment
because of his death while an employee or because of
disability, his Awards may be exercised not later than the
expiration date specified in Paragraph 5 or one year after the
Award holder's death, whichever date is earlier, or in the
event of termination of employment because of retirement or
otherwise, not later than the expiration date specified in
Paragraph 5 hereof or one year after the Award holder's death,
whichever date is earlier.
(b) If an Award holder's employment by the Corporation or a
Subsidiary shall terminate because of his disability and such
Awardholder has not died within the following three months, he
may exercise his Awards, to the extent that he shall
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have been entitled to do so at the date of the termination of
his employment, at any time, or from time to time, but not
later than the expiration date specified in Paragraph 5 hereof
or one year after termination of employment, whichever date is
earlier.
(c) If an Award holder's employment shall terminate by reason of
his retirement in accordance with the terms of the
Corporation's retirement plans or with the consent of the
Board or the Committee or involuntarily other than by
termination for cause, and such Award holder had not died
within the following three months, he may exercise his Award
to the extent he shall have been entitled to do so at the date
of the termination of his employment, at any time and from
time to time, but not later than the expiration date specified
in Paragraph 5 hereof.
(d) If an Award holder's employment shall terminate for cause, all
right to exercise his Awards shall terminate at the date of
such termination of employment.
15. CORPORATE EVENTS
In the event of the proposed dissolution or liquidation of the
Corporation, a proposed sale of all or substantially all of the assets
of the Corporation, a merger or tender for the Corporation's shares of
Stock, the Board or the Committee shall declare that each Award granted
under this Plan shall terminate as of a date to be fixed by the Board;
provided that not less than thirty (30) days written notice of the date
so fixed shall be given to each Eligible Person holding an Award, and
each such Eligible Person shall have the right, during the period of
thirty (30) days preceding such termination, to exercise his Award as
to all or any part of the shares of Stock covered thereby, including
shares of Stock as to which such Award would not otherwise be
exercisable. Nothing set forth herein shall extend the term set for
purchasing the shares of Stock set forth in the Award.
16. NO GUARANTEE OF EMPLOYMENT
Nothing in this Plan or in any writing granting an Award will confer
upon any Eligible Person the right to continue in the employ of the
Eligible Person's employer, or will interfere with or restrict in any
way the right of the Eligible Person's employer to discharge such
Eligible Person at any time for any reason whatsoever, with or without
cause.
17. NONTRANSFERABILITY
No Award granted under the Plan shall be transferable other than by
will or by the laws of descent and distribution. During the lifetime of
the Award holder, an Award shall be exercisable only by him, or by his
guardian or legal representative.
18. NO RIGHTS AS STOCKHOLDER
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No Award holder shall have any rights as a stockholder with respect to
any shares subject to his Award prior to the date of issuance to him of
a certificate or certificates for such shares.
19. AMENDMENT AND DISCONTINUANCE OF PLAN
The Board may amend, suspend or discontinue this Plan at any time.
However, no such action may prejudice the rights of any Eligible Person
who has prior thereto been granted Awards under this Plan. Further, no
amendment to this Plan which has the effect of (a) increasing the
aggregate number of shares of Stock subject to this Plan (except for
adjustments pursuant to Paragraph 3 herein), or (b) changing the
definition of Eligible Person under this Plan, may be effective unless
and until approval of the stockholders of the Corporation is obtained
in the same manner as approval of this Plan is required. The Board is
authorized to seek the approval of the Corporation's stockholders for
any other changes it proposes to make to this Plan which require such
approval, however, the Board may modify the Plan as necessary, to
effectuate the intent of the Plan as a result of any changes in the
tax, accounting or securities laws treatment of Eligible Persons and
the Plan, subject to the provisions set forth in this Paragraph 19, and
Paragraphs 20 and 21.
20. COMPLIANCE WITH RULE 16B-3
This Plan is intended to comply in all respects with Rule 16b-3 ("Rule
16b-3") promulgated by the Securities and Exchange Commission under the
Exchange Act, with respect to participants who are subject to Section
16 of the Exchange Act, and any provision(s) herein that is/are
contrary to Rule 16b-3 shall be deemed null and void to the extent
appropriate by either the Committee or the Board.
21. COMPLIANCE WITH CODE
The aspects of this Plan dealing with ISOs are intended to comply in
every respect with Section 422 of the Code and the regulations
promulgated thereunder. in the event any future statute or regulation
shall modify the existing stature, the aspects of this Plan on ISOs
shall be deemed to incorporate by reference such modification. Any
stock option agreement relating to any ISO granted pursuant to this
Plan outstanding and unexercised at the time any modifying statute or
regulation becomes effective shall also be deemed to incorporate by
reference such modification and no notice of such modification need to
be given to optionee.
If any provision of the aspects of this Plan dealing with ISOs is
determined to disqualify the shares purchasable pursuant to the ISOs
granted under this Plan from the special tax treatment provided by Code
Section 422, such provision shall be deemed null and void and to
incorporate by reference the modification required to qualify the
shares for said tax treatment.
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22. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
The Plan, the grant and exercise of Awards thereunder, and the
obligation of the Corporation to sell and deliver Stock under such
Awards, 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. Moreover, no option may be
exercised if its exercise or the receipt of Stock pursuant thereto
would be contrary to applicable laws.
23. DISPOSITION OF SHARES.
In the event any share of Stock acquired by an exercise of an Award
granted under the Plan shall be transferable other than by will or by
the laws of descent and distribution within two years of the date such
Award was granted or within one year after the transfer of such Stock
pursuant to such exercise, the Award holder shall give prompt written
notice thereof to the Board or the Committee.
24. NAME.
The Plan shall be known as the "Voice Mobility Amended and Restated
1999 Stock Option Plan."
25. NOTICES
Any notice hereunder shall be in writing and sent by certified mail,
return receipt requested or by facsimile transmission (with electronic
or written confirmation of receipt) and when addressed to the
Corporation shall be sent to it at its office, 701-543 Granville
Street, Vancouver, British Columbia V6C 1X8 Canada and when addressed
to the Committee shall be sent to it 701-543 Granville Street,
Vancouver, British Columbia V6C 1X8 Canada, subject to the right of
either party to designate at any time hereafter in writing some other
address, facsimile number or person to whose attention such notice
shall be sent.
26. HEADINGS
The headings preceding the text of Sections and subparagraphs hereof
are inserted solely for convenience of reference, and shall not
constitute a part of this Plan nor shall they affect its meaning,
construction or effect.
27. EFFECTIVE DATE
The Plan, was adopted by the Board on June 29, 1999 and amended and
restated on March 10, 2000. The effective date of the Plan shall be the
date on which the Plan is approved by the stockholder of the
Corporation.
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Dated as of March 10, 2000
VOICE MOBILITY INTERNATIONAL, INC.
By: /s/ Thomas G. O'Flaherty
---------------------------------
Thomas G. O'Flaherty, President
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PROXY PROXY
VOICE MOBILITY INTERNATIONAL, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS AND MANAGEMENT OF
VOICE MOBILITY INTERNATIONAL, INC.
The undersigned appoints James J. Hutton and William E. Krebs as Proxies, each
with the power to appoint his substitute, and hereby authorizes them to
represent and to vote, as designated below, all the Common Stock of Voice
Mobility International, Inc. (the "Company") held of record by the undersigned
on May 12, 2000, at the Annual Meeting of Stockholders to be held at the
Metropolitan Hotel, located at 645 Howe Street, in British Columbia, Canada, on
June 9, 2000, or any adjournment thereof.
Please check this box only if you intend to attend and vote at the
Annual Meeting / /
TO ASSIST THE COMPANY IN TABULATING THE VOTES SUBMITTED BY PROXY PRIOR TO THE
ANNUAL MEETING, WE REQUEST THAT YOU MARK, SIGN, DATE AND RETURN THIS PROXY BY
JUNE 1, 2000 USING THE ENCLOSED ENVELOPE.
PLEASE MARK YOUR VOTE IN THE BOX.
<TABLE>
<S> <C> <C> <C> <C>
FOR AGAINST ABSTAIN
PROPOSAL 1. ADOPTION OF AMENDMENT TO ARTICLES OF INCORPORATION. / / / / / /
To approve and adopt an amendment to the Company's
Articles of Incorporation to increase the total
amount of the Company's authorized common stock,
$.001 par value per share from 50,000,000 shares
to 100,000,000 shares.
FOR AGAINST ABSTAIN
PROPOSAL 2. ADOPTION OF AMENDED AND RESTATED BYLAWS. / / / / / /
To approve and adopt the Amended and
Restated Bylaws as the Bylaws of the Company.
PROPOSAL 3. ELECTION OF DIRECTORS.
/ / FOR all nominees. / / WITHHOLD authority to vote. (except as marked contrary below)
NOMINEES: Thomas G. O'Flaherty, James J. Hutton, William E. Krebs, Randy G. Buchamer,
Colin Corey, Morgan Sturdy and David Scott.
INSTRUCTIONS: To withhold authority to vote for any individual nominee, write that nominee's
name in the space below.
----------------------------------------------------------------------
FOR AGAINST ABSTAIN
PROPOSAL 4. APPROVAL OF AMENDMENT TO THE 1999 STOCK OPTION PLAN. / / / / / /
To approve and adopt an amendment to the Company's
1999 Stock Option Plan to increase the number of
shares available under such plan to 10,000,000
shares.
</TABLE>
In their discretion, the Proxies are authorized to vote upon such other business
as may properly come before the Annual Meeting. This Proxy, when properly
executed, will be voted in the manner directed by the undersigned shareholder.
If no direction is made, this Proxy will be voted "FOR" each of the nominated
directors and "FOR" each of the Proposals.
Dated: ______________________________
Signature: ____________________________________________________________________
PLEASE SIGN EXACTLY AS NAME APPEARS BELOW. WHEN SHARES ARE HELD JOINTLY, BOTH
SHAREHOLDERS SHOULD SIGN. WHEN SIGNING AS ATTORNEY, EXECUTOR, ADMINISTRATOR,
TRUSTEE OR GUARDIAN, PLEASE INDICATE FULL TITLE AS SUCH. IF A CORPORATION,
PLEASE INDICATE FULL CORPORATE NAME; AND IF SIGNED BY THE PRESIDENT OR ANOTHER
AUTHORIZED OFFICER, PLEASE SPECIFY THE OFFICER'S CAPACITY. IF A PARTNERSHIP,
PLEASE SIGN IN PARTNERSHIP NAME BY AUTHORIZED PERSON.
