U.S. SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
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FORM S-8
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REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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ICEBERG CORPORATION OF AMERICA
(Name of Small Business Issuer in its charter)
Nevada Applied For
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
P.O. Box 8251, St. John's, Newfoundland, Canada A1B 3N4
(Address of principal executive offices)
(709) 739-5731
(Issuer's telephone number)
STOCK OPTION PLAN
(Full Title of the Plan)
(Name and Address of Agent For Service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------
Title of Each Proposed Proposed
Class Of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Offering Registration
Registered Registered(1) Per Unit(2) Price Fee(3)
- --------------------------------------------------------------------------
$0.0001 par 930,000 $0.625 $581,250 $153.45
value common
voting stock
(1) This Registration Statement also covers such additional
number of shares, presently undeterminable, as may
become issuable under the Plan in the event of stock
dividends, stock splits, recapitalizations or other
changes in the Common Stock. The shares subject to
this Registration Statement reflect the shares issuable
pursuant to the Stock Option Plan all of which may be
reoffered in accordance with the provisions of Form
S-8.
(2) Varied, but not less than the fair market value on the
date that the options were or are granted. Pursuant to
Rule 457(g), the proposed maximum offering price per
share and proposed maximum aggregate offering price are
based upon the average bid and asked prices of the
Registrant's Common Stock on March 31, 2000.
(3) Calculated according to Rule 230.457(h) of the
Securities and Exchange Commission, based upon the
exercise price of the options covering the underlying
common stock to be issued under the Plan.
<PAGE>
PART I
Item 1. Plan Information
a) General Plan Information.
Iceberg Corporation of America (the "Company") has
established a Stock Option Plan (the "Plan") for the benefit of
certain of its officers and key management personnel. A copy of
the Plan is attached hereto and incorporated herein by reference.
Item 2. Registrant Information and Employee Plan Annual
Information.
Copies of the Company's Stock Option Plan, Form 10-SB
Registration Statement, as amended, Form 10-QSB Quarterly Reports
and all Current Reports filed with the Securities and Exchange
Commission (the "Commission") during the past twelve months have
been provided to the Plan participants. The Registrant also
undertakes to furnish, without charge, to any such participant or
person purchasing any of the securities registered hereby, copies
of all such documentation. Information and documentation
requests should be directed to Lewis Stoyles, Chief Financial
Officer, at the address and telephone number appearing on the
cover page of this Registration Statement. Additional
information may be reviewed at the Commission's website at
www.sec.gov, in the Edgar archives.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference
and made a part hereof, to wit:
(a) The Registrant's Form 10-SB Registration Statement, as
amended, initially filed with the Commission on or
about November 12, 1999; and
(b) All other reports filed pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") for the past twelve months.
The financial statements and the related financial statement
schedules incorporated in this Registration Statements by
reference from the Company's Form 10-SB for the six months ended
June 30, 1999, for each of the years ended December 31, 1998 and
1997, and for the period from July 22, 1996 (inception) to June
30, 1999 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein
by reference, and have been so incorporated in reliance upon the
report of such firm given upon their authority as experts in
accounting and auditing.
All documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all
securities then remaining unsold, shall also be deemed to be
incorporated by reference into this Registration Statement and
made a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
The Company's authorized capital stock consists of
25,000,000 shares of Common Stock, par value $.0001 per share,
and five million (5,000,000) shares of Special Common Stock, par
value $.0001 per share. At March 31, 2000, there were 5,085,085
Common Shares issued and outstanding and 4,506,106 Special Common
Shares issued and outstanding, for a total of 9,591,191 issued
and outstanding shares of the Company.
All shares of the Company's Common Stock and Special Common
Stock have equal voting rights and, when validly issued and
outstanding, are entitled to one vote per share in all matters to
be voted upon by shareholders.
The shares of Common Stock have no preemptive, subscription,
conversion or redemption rights and may be issued only as fully
paid and non-assessable shares. Cumulative voting in the
election of directors is not permitted, which means that the
holders of a majority of the issued and outstanding shares of
Common Stock represented at any meeting at which a quorum is
present will be able to elect the entire Board of Directors if
they so choose and, in such event, the holders of the remaining
shares of Common Stock will not be able to elect any directors.
In the event of liquidation of the Company, each shareholder is
entitled to receive a proportionate share of the Company's assets
available for distribution to shareholders after the payment of
liabilities and after distribution in full of preferential
amounts, if any. All shares of the Company's Common Stock issued
and outstanding are fully paid and non-assessable. Holders of
the Common Stock are entitled to share pro rata in dividends and
distributions with respect to the Common Stock, as may be
declared by the Board of Directors out of funds legally available
therefor.
The Special Common Stock shares of the Company are
convertible, at the option of the respective holders of the
shares thereof, at any time, and into fully paid, non-assessable
Common Stock shares of the Company, at the rate of one Common
Stock share for each one Special Common Stock share so
surrendered for conversion. The Special Common Stock shares of
the Company carry the following additional rights:
Dividend rights: any dividends paid will be equivalent to
dividends paid on the common shares of Iceberg Corporation of
America Shares.
Direct Voting Rights: One vote per Special Common Stock
Share.
Retraction/Redemption Rights: The Special Common Stock
Shares are redeemable at the option of Icecap Equity Inc. and
retractable at the option of the holder upon delivery of one
Iceberg Corporation of America Share.
Liquidation Entitlement: Special Common Stock Share holders
are entitled to be paid, upon any liquidation of the assets of
Icecap Equity Inc. , an amount of money equivalent to the amount
that would be received per Iceberg Corporation of America Share
on a liquidation of Iceberg Corporation of America
Anti-dilution: The Special Common Stock Shares contain
anti-dilution provisions to keep such shares pari passu with any
changes involving Iceberg Corporation of America Shares, such as
reorganizations or stock splits.
In addition to the foregoing, the Special Common Stock
Shares are subject to certain collateral contractual arrangements
as follows:
Voting Rights in Iceberg Corporation of America: Iceberg
Corporation of America will issue special voting shares to a
trustee (the "Iceberg Corporation of America Trust Shares"). The
terms of the trust shall be contained in a trust indenture which
will provide as follows: (i) the number of Iceberg Corporation of
America Trust Shares shall be equal to the number of Special
Common Stock Shares; (ii) the voting rights of the Iceberg
Corporation of America Trust Shares shall be equal and equivalent
to the voting rights attached to the Iceberg Corporation of
America Shares; (iii) the trustee shall vote the Iceberg
Corporation of America Trust Shares as directed by the holders of
the Special Common Stock Shares; and (iv) as each Special Common
Stock Share is exchanged for an Iceberg Corporation of America
Share, the corresponding equivalent Iceberg Corporation of
America Trust Share shall be cancelled.
Put Rights: The holders of Special Common Stock Shares may
require those shares to be acquired by Iceberg Corporation of
America in exchange for an equal number of Iceberg Corporation of
America Shares.
The Company shall at all times reserve and keep available
out of its authorized but non-issued common shares the full
number of Common Shares deliverable upon the conversion of all of
the then outstanding Special Common Shares, and shall take all
action and obtain all permits or orders that may be necessary to
enable the Company lawfully to issue common shares upon the
conversion of the Special Common Shares.
Item 5. Interests of Named Experts and Counsel.
Dieterich & Associates, the law firm that has prepared this
Registration Statement and an Opinion regarding the
authorization, issuance and fully-paid and non-assessable status
of the securities covered by this Registration Statement, owns no
shares of the Registrant's Common Stock and is not deemed to be
an affiliate of the Registrant or a person or entity associated
with an affiliate of the Registrant. See Item 8, below.
Item 6. Indemnification of Directors and Officers.
Except for acts or omissions which involve intentional
misconduct, fraud or known violation of law or for the payment of
dividends in violation of Nevada Revised Statutes, there shall be
no personal liability of a director or officer to the Company, or
its stockholders for damages for breach of fiduciary duty as a
director or officer. The Company may indemnify any person for
expenses incurred, including attorneys fees, in connection with
their good faith acts if they reasonably believe such acts are in
and not opposed to the best interests of the Company and for acts
for which the person had no reason to believe his or her conduct
was unlawful. The Company may indemnify the officers and
directors for expenses incurred in defending a civil or criminal
action, suit or proceeding as they are incurred in advance of the
final disposition of the action, suit or proceeding, upon receipt
of an undertaking by or on behalf of the director or officer to
repay the amount of such expenses if it is ultimately determined
by a court of competent jurisdiction in which the action or suit
is brought determined that such person is fairly and reasonably
entitled to indemnification for such expenses which the court
deems proper.
Indemnification of Directors, Officers, Employees and Agents
So far as permitted by the Nevada Business Corporation Act,
the Company may indemnify its directors and officers against
expenses and liabilities they incur to defend, settle or satisfy
any civil or criminal action brought against them on account of
their being or having been Company directors or officers unless,
in any such action, they are adjudged to have acted with gross
negligence or to have engaged in willful misconduct. Section
78.751(1) of the Nevada Revised Statutes (NRS) authorizes a
Nevada corporation to indemnify any director, officer, employee,
or corporate agent who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative, except an action by or in the right of the
corporation due to his or her corporate role. Section 78.751(1)
extends this protection against expenses, including attorney's
fees, judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with the action,
suit or proceeding if he acted in good faith and in a manner
which he 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 his
conduct was unlawful.
Section 78.751(2) of the NRS also authorizes indemnification
of the reasonable defense or settlement expenses of a corporate
director, officer, employee or agent who is sued, or is
threatened with a suit, by or in the right of the corporation.
The party must have been acting in good faith and with the
reasonable belief that his of her actions were not opposed to the
corporation's best interests. Unless the court rules that the
party is reasonably entitled to indemnification, the party
seeking indemnification must not have been found liable to the
corporation.
To the extent that a corporate director, officer, employee,
or agent is successful on the merits or otherwise in defending
any action or proceeding referred to in Section 78.751(1) or
78.751(2), Section 78.751(3) of the NRS requires that he or she
be indemnified against expenses, including attorneys fees,
actually and reasonably incurred by him in connection with the
defense.
Section 78.751(4) of the NRS limits indemnification under
Section 78.751(1) and 78.751(2) to situations in which either (i)
the stockholders; (ii) the majority of a disinterested quorum of
directors; or (iii) independent legal counsel determine that
indemnification is proper under the circumstances.
Pursuant to Section 78.175(5) of the NRS, the corporation
may advance an officer's or director's expenses incurred in
defending any action or proceeding upon receipt of an
undertaking. Section 78.751(6)(a) provides that the rights to
indemnification and advancement of expenses shall not be deemed
exclusive of any other rights under any bylaw, agreement,
stockholder vote or vote of disinterested directors. Section
78.751(6)(b) extends the rights to indemnification and
advancement of expenses to former directors, officers, employees
and agents, as well as their heirs, executors, and
administrators.
Regardless of whether a director, officer, employee or agent
has the right to indemnity, Section 78.752 allows the corporation
to purchase and maintain insurance on his or her behalf against
liability resulting from his or her corporate role.
Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to officers, directors or persons
controlling the Company pursuant to the foregoing, the Company
has been informed that in the opinion of the U.S. Securities and
Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is therefore
unenforceable.
Item 7. Exemption From Registration Claimed.
None.
Item 8. Exhibits
Exhibit
Number Description
- ---------- ----------------------------------
5 Opinion regarding legality from Dieterich &
Associates
23.1 Consent of Dieterich & Associates
23.2 Consent of Deloitte & Touche LLP
99.1 Stock Option Plan
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "1933
Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) To include any additional or changed material
information with respect to the plan of distribution
not previously disclosed in the Registration Statement
or any material change to such information in the
Registration Statement; provided, however, only to the
extent required by the general rules and regulations of
the Commission. (2) That, for the purpose of
determining any liability under the 1933 Act, each such
post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof. (3) To remove from registration by
means of a post-effective amendment any of the
securities being registered which remain unsold at the
termination of the offering.
(b) That for purposes of determining any liability under the
1933 Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under
the 1933 Act, as amended, may be permitted to directors,
executive officers and controlling persons of the Registrant
as outlined above or otherwise, the Registrant has been
advised that in the opinion of the Commission, such
indemnification is against public policy as expressed in the
1933 Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses
incurred or paid by a director, executive officer or
controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by
such director, executive officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city
of St. John's, Province of Newfoundland, on April 20, 2000.
ICEBERG CORPORATION OF AMERICA
(Registrant)
Date: April 20, 2000 By: /s/ Paul Benson
Paul Benson,
President & Director
Date: April 20, 2000 By: /s/ Ron Stamp
Ron Stamp,
Vice President & Director
Date: April 20, 2000 By: /s/ Lewis Stoyles
Lewis Stoyles,
Vice President & Director
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit
plan) have duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the city of St. John's, Province of Newfoundland, on April 20,
2000.
ICEBERG CORPORATION OF AMERICA STOCK OPTION PLAN
(Registrant's Plan)
Date: April 20, 2000 By: /s/ Paul Benson
Paul Benson,
President & Director
Date: April 20, 2000 By: /s/ Ron Stamp
Ron Stamp,
Vice President & Director
Date: April 20, 2000 By: /s/ Lewis Stoyles
Lewis Stoyles,
Vice President & Director
<PAGE>
EXHIBIT 5 OPINION REGARDING LEGALITY
[Letterhead of Dieterich & Associates}
April 20, 2000
Iceberg Corporation of America
16 Forest Road, Suite 200
St. John's, Newfoundland, Canada A1B 3N4
Re: Opinion concerning the legality of the securities to be
issued pursuant to the Registration Statement on Form
S-8 to be filed by Iceberg Corporation of America, a
Nevada corporation
Board of Directors:
As counsel for Iceberg Corporation of America, a Nevada
corporation (the "Company"), and in connection with the issuance
of up to 930,000 shares of the Company's $0.0001 par value Common
Stock pursuant to a Company Stock Option Plan (the "Plan" and
collectively, the "Securities"), we have been asked to render an
opinion as to the legality of these Securities, which are to be
covered by a Registration Statement to be filed by the Company on
Form S-8 of the Securities and Exchange Commission (the
"Commission"), and as to which this opinion is to be filed as an
exhibit.
As you are aware, no services to be performed and billed to
you which are in any way related to a "capital raising"
transaction may be paid by the issuance of Securities pursuant to
the Plan.
You are also aware that we do not own any shares of the
Company's Common Stock; and that we have no interest in any of
the Securities covered hereby.
In connection with rendering our opinion, which is set forth
below, we have reviewed and examined originals or copies of the
following documents, to-wit:
1. Articles of Incorporation and all amendments thereto;
2. Bylaws;
3. 10-SB Registration Statement, as amended, filed with the
Commission on or about November 12, 1999;
4. 10-QSB Quarterly Reports and 8-K Current Reports for the
past twelve months;
5. Company Stock Option Plan; and
6. Unanimous Consents of the Board of Directors adopting
the Stock Option Plan, designating the name of the Plan and the
name, address and telephone number of the Plan's Agent.
We have also examined various other documents, books,
records, instruments and certificates of public officials,
directors, executive officers and agents of the Company, and have
made such investigations as we have deemed reasonable, necessary
or prudent under the circumstances. Also, in rendering this
opinion, we have reviewed various statutes and judicial
precedents as we have deemed relevant or necessary.
Further, as counsel for the Company, we have discussed the
items relied upon in rendering this opinion and the documents we
have examined with one or more directors and executive officers
of the Company, and in all instances, we have assumed the
genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as
originals, the conformity with the original documents of all
documents submitted to us as certified or photostatic copies and
the authenticity of the originals of such copies. We have
further assumed that the recipients of these Securities under the
Plan will have paid the consideration required under the terms of
the Plan prior to the issuance of the Securities, and that none
of the services performed by the recipients shall be related to
"capital raising" transactions.
We have also been advised that the Company has provided the
individual participants in the Plan with a copy of the documents
enumerated in paragraphs 3 through 6, inclusive, above.
Based upon the foregoing and in reliance thereon, it is our
opinion that, subject to the limitations set forth in the Plan,
the Securities to be issued pursuant to the Plan will, upon their
issuance and delivery to the recipients thereof, after receipt of
full payment therefor, be deemed duly and validly authorized,
legally issued and fully paid and non-assessable under the Nevada
Revised Statues.
This opinion is expressly limited in scope to the Securities
described herein and which are to be expressly covered by the
above-referenced Registration Statement and does not cover any
subsequent issuances of any securities to be made in the future
pursuant to any other plans, if any, pertaining to services
performed in the future. Any such transactions are required to
be included in a new Registration Statement or a post-effective
amendment to the above referenced Registration Statement, which
will be required to include a revised or a new opinion concerning
the legality of the Securities to be issued.
Further, this opinion is limited to the corporate laws of
the State of Nevada and the securities laws, rules and
regulations of the United States, and we express no opinion with
respect to the laws of any other jurisdiction.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the above-referenced Registration
Statement and with such state regulatory agencies in such states
as may require such filing in connection with the registration of
the Registered Securities for offer and sale in such states;
however, this opinion is not to be used, circulated, quoted or
otherwise referred to for any other purpose without our prior
written consent.
This opinion is based upon our knowledge of the law and
facts as of the date hereof, and we assume no duty to communicate
with you with respect to any matter which may hereafter come to
our attention.
Very truly yours,
DIETERICH & ASSOCIATES
/s/ Christopher H. Dieterich
Christopher H. Dieterich
Counsel to Iceberg Corporation
of America
<PAGE>
EXHIBIT 23.1 CONSENT OF DIETERICH & ASSOCIATES
[Letterhead of Dieterich & Associates}
April 20, 2000
U.S. Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
Re: Consent to be named in the S-8 Registration Statement
of Iceberg Corporation of America, a Nevada corporation
(the "Company"), SEC File No. 0-28051, covering the
registration and issuance of 930,000 shares of Common
Stock pursuant to the Company's Stock Option Plan
Dear Sirs or Madams:
We hereby consent to the incorporation in this Registration
Statement of Iceberg Corporation of America on Form S-8 of our
opinion letter dated April 20, 2000.
DIETERICH & ASSOCIATES
/s/ Christopher H. Dieterich
Christopher H. Dieterich
Counsel to Iceberg Corporation
of America
<PAGE>
EXHIBIT 23.2 CONSENT OF DELOITTE & TOUCHE LLP
[DELOITTE & TOUCHE LLP LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Iceberg Corporation of America on Form S-8 of our
report dated October 26, 1999, appearing in Form 10-SB of Iceberg
Corporation of America for the six months ended June 30, 1999,
for each of the years ended December 31, 1998 and 1997, and for
the period from July 22, 1996 (inception) to June 30, 1999 and to
the reference to us under the heading "Experts" in the Form 10-
SB, which is part of this Registration Statement.
/s/
St. John's, Newfoundland, Canada DELOITTE & TOUCHE LLP
April 14, 2000
<PAGE>
EXHIBIT 99 COMPANY STOCK OPTION PLAN
STOCK OPTION PLAN
1. Purpose
A Stock Option Plan (herein called the "Plan") for Iceberg
Corporation of America (the "Corporation" or the "Company") is
hereby established with the intent of advancing the interests of
the Corporation by encouraging and enabling the acquisition of an
equity interest in the Corporation to certain officers and key
management personnel of a caliber required to ensure the
Company's continued success (the "Participants"), pursuant to the
terms of this Plan.
2. Shares subject to Plan
(a) The total number of authorized but unissued shares
allocated to and made available to be granted to
Participants under the Plan shall not exceed 10% of the
common shares, as such may from time to time be issued
and outstanding in the capital stock of the Corporation
as the same is presently constituted, and the aggregate
number of common shares which may be issued under the
Plan to any one particular Participant under the Plan
shall not exceed 50% of the said aggregate number of
common shares allocated to and made available for the
Plan.
(b) Except as provided in paragraph 9 hereof or by the laws
of descent and distribution, the rights of any
Participant under the Plan are personal to the said
Participant and are not assignable.
3. Administration
(i) The Board of Directors shall appoint an option
committee (hereinafter call the "Committee"), to
administer the Plan, which Committee shall consist of
not less then three nor more than five members of the
Board, to serve at the pleasure of the Board. The
Committee shall have full power and authority to
construe, interpret, and administer the Plan and may
from time to time adopt such rules and regulations for
carrying out this Plan as it may deem proper and in the
best interests of the Company. Subject to the terms,
provisions, and conditions of the Plan, the Committee
shall have exclusive jurisdiction (i) to select the key
employees to whom options shall be granted, (ii) to
determine the number of shares subject to each option,
(iii) to determine the time or times when options will
be granted, (iv) to determine the option price of the
shares, (v) to fix such other provisions of the option
agreement as the Committee may deem necessary or
desirable consistent with the terms of this Plan, and
(vi) to determine all other questions relating to the
administration of the Plan. The interpretation of any
provisions of this Plan by the Committee shall be
final, conclusive and binding upon all persons, and the
Board of Directors shall place into effect the
determinations of the Committee,
(ii) The Corporation shall pay all costs of administering
the Plan.
4. Eligibility
Key employees of the Company, its parent and any of its
subsidiaries, including officers and directors, shall be eligible
to receive options. The fact that any employee has been granted
an option under this Plan shall not in any way affect or qualify
the right of the employer to terminate his employment at any
time. Nothing contained in this Plan shall be construed to limit
the right of the Company to grant options otherwise than under
the Plan for any proper and lawful corporate purpose, including
but not limited to options granted to key employees. Key
employees to whom options may be granted under the Plan will be
those selected by the Committee from time to time who, in the
sole discretion of the Committee, have contributed in the past or
who may be expected to contribute materially in the future to the
successful performance of the Company.
5. Option price
The exercise price of the shares purchased pursuant to stock
options granted hereunder shall be not less than that from time
to time permitted by the applicable regulations and policies of
any stock exchange or exchanges upon which any securities of the
Corporation may from time to time be listed.
6. Exercise of Options
(i) Each option granted hereunder shall be for a term
not exceeding 10 years and, unless the Board of
Directors determines otherwise, shall be
exercisable only after the first anniversary date
of its grant, subject to the option, and all or
any part of the shares as to which the option
shall have become exercisable may be purchased at
any time, or from time to time thereafter, until
expiration or termination of the option.
(ii) Subject to the provisions of the Plan, the options
granted hereunder may be exercised from time to
time by delivery to the Corporation at its head
office of a written notice of exercise specifying
the number of shares with respect to which the
option is being exercised and accompanied by
payment in full of the purchase price of the
shares then being purchased by way of cash or
certified cheque in favour of the Corporation.
Such notice shall contain the Participant's
undertaking to comply, to the satisfaction of the
Corporation and its counsel, with all applicable
requirements of any stock exchange or exchanges
upon which any securities of the Corporation are
from time to time listed and any applicable
regulatory authority or authorities.
(iii) Notwithstanding the foregoing, upon the making of
an Offer, options shall become immediately
exercisable in respect of any and all shares
covered thereby in respect of which the
Participant has not exercised such Participant's
right to acquire under the option. For the
purposes hereof, "Offer" means an offer made
generally to the holders of the Corporation's
voting securities in one or more jurisdictions to
purchase directly or indirectly voting securities
of the Corporation where the voting securities
which are the subject of the offer to purchase,
together with the offeror's then presently-owned
securities, will in the aggregate exceed 20% of
the outstanding voting securities of the
Corporation and where two or more persons or
companies make offers jointly or in concert or
intending to exercise jointly or in concert any
voting rights attaching to the securities to be
acquired, then the securities owned by each of
them shall be included in the calculation of the
percentage of the outstanding voting securities of
the Corporation owned by each of them.
7. Ten-percent owners
Notwithstanding the provisions of paragraphs 5 and 6, above, the
following terms and conditions shall apply to options granted
hereunder to a "10-percent owner". For this purpose, a "10-
percent owner" shall mean an optionee who, at the time the option
is granted, owns stock possessing more than 10 percent of the
total combined voting power of all classes of stock of the
Company or of any subsidiary thereof. With respect to a 10-
percent owner:
(a) the price at which shares of stock may be purchased
under an option granted pursuant to this Plan shall be
not less than 110 percent of the fair market value
thereof, said fair market value being determined in the
manner described at paragraph 5, above; and
(b) the period during which any such option may be
exercised, to be fixed by the Committee in the manner
described at paragraph 6, above, shall expire not later
than five years from the date the option is granted.
8. Option Agreements
(a) Each option under the Plan shall be evidenced by an
option agreement in substantially the form annexed
hereto as Schedule "A" prior to the grant of any stock
option to a Participant becoming effective, which shall
be signed by an officer or the Company and by the
employee and which shall contain such provisions as may
be approved by the Committee (as defined in Section 3).
(b) The option agreements shall constitute binding
contracts between the Company and the optionee, and
every optionee, upon acceptance of such option
agreement, shall be bound by the terms and restrictions
of this Plan and the option agreement.
(c) The terms of the option agreement shall be in
accordance with this Plan, but may include additional
provisions and restrictions, provided that the same are
not inconsistent with the Plan.
9. Termination of Employment
(i) In the event of the physical or mental disability,
retirement with the consent of the Corporation or
death of the optionee on or prior to the expiry
date while engaged as a key employee or director
or officer of the Corporation, any option granted
hereunder may be exercised up to the full amount
of the optioned shares by the legal personal
representative(s) of the Participant at any time
up to and including eighteen months following the
physical or mental disability, retirement or death
of the Participant after which date the option
shall forthwith expire and terminate and be of no
further force or effect whatsoever.
(ii) For greater certainty, any Participant who is
deemed to be an employee of the Corporation
pursuant to any medical or disability plan of the
Corporation shall be deemed to be an employee for
the purposes of the Plan.
(iii) In the event the Participant's employment by or
engagement with (as a director or otherwise) the
Corporation is terminated by the Corporation or
the Participant for any reason other than the
Participant's physical or mental disability,
retirement with the consent of the Corporation or
death before exercise of any options granted
hereunder, the option granted hereunder shall be
exercisable by the Participant at the earlier of
the expiration date of the option or within 90
days from the date of such termination to exercise
only that portion of the option that such
Participant is otherwise entitled to exercise at
that time and thereafter such Participant's option
shall expire and all rights to purchase shares
hereunder shall cease and expire and be of no
further force or effect. Options shall not be
affected by any change of employment so long as
the Participant continues to be employed by the
Corporation or any of its subsidiaries or
continues to be a director or officer of one of
the foregoing.
10. Capital adjustments affecting stock
(i) Subject to any required action by its
shareholders, if the Corporation shall be a party
to any reorganization, merger, dissolution or sale
or lease of all or substantially all its assets,
whether or not the Corporation is the surviving
entity, the option shall be adjusted so as to
apply to the securities to which the holder of the
number of shares of capital stock of the
Corporation subject to the option would have been
entitled by reason of such reorganization, merger
or sale or lease of all or substantially all of
its assets, provided, however, that the
Corporation may satisfy any obligations to a
Participant hereunder by paying to the said
Participant in cash the difference between the
exercise price of all unexercised options granted
hereunder and the fair market value of the
securities to which the Participant would be
entitled upon exercise of all unexercised
options, regardless of whether all conditions of
exercise relating to continuous employment have
been satisfied. Adjustments under this paragraph
or any determinations as to the fair market value
of any securities shall be made by the Board of
Directors, or any committee thereof specifically
designated by the Board of Directors to be
responsible therefor, and any reasonable
determination made by the said Board or committee
thereof shall be binding and conclusive.
(ii) In the event of any subdivision or subdivisions of
the common shares of the Corporation as said
common shares were constituted at the time any
options granted hereunder were granted into a
greater number of common shares, the Corporation
will thereafter deliver at the time of exercise
thereof in addition to the number of shares in
respect of which the option is then being
exercised, such additional number of shares as
result from such subdivision or subdivisions of
the shares for which the option is being exercised
without the Participant exercising the option
making any additional payment or giving any other
consideration therefor.
(iii) In the event of any consolidation or
consolidations of the common shares of the
Corporation as said common shares were constituted
at the time any options granted hereunder were
granted into a lesser number of common shares, the
Participant shall accept, at the time of the
exercise thereof in lieu of the number of shares
in respect of which the option is then being
exercised, the lesser number of shares as result
from such consolidation or consolidations of the
shares for which the option is being exercised.
(iv) In the event of any change of the common shares of
the Corporation as said common shares were
constituted at the time any options granted
hereunder were granted the Corporation shall
thereafter deliver at the time of the exercise
thereof the number of shares of the appropriate
class resulting from the said change as the
Participant exercising the option would have been
entitled to receive in respect of the number of
shares so purchased had the option been exercised
before such change,
(v) If the Corporation at any time while any options
granted hereunder are outstanding shall pay any
stock dividend or stock dividends upon the shares
of the Corporation in respect of which any options
were granted hereunder, the Corporation will
thereafter deliver at the time of exercise thereof
in addition to the number of shares in respect of
which the option is then being exercised, the
additional number of shares of the appropriate
class as would have been payable on the shares so
purchased if they had been outstanding on the
record date for the payment of said stock dividend
or dividends.
(vi) If at any time the Corporation grants to the
holders of its capital stock rights to subscribe
for and purchase pro rata additional securities
of the Corporation or of any other corporation or
entity, there shall be no adjustments made to the
number of shares or other securities subject to
the option in consequence thereof and the said
stock option of the Participant shall remain
unaffected.
11. Stock Appreciation Rights
(i) Any stock option granted under the Plan may
include a stock appreciation right, either at the
time of grant or by amendment adding it to an
existing stock option; subject, however, to the
grant of such stock appreciation right being in
compliance with the applicable regulations and
policies of any stock exchange or exchange upon
which any securities of the Corporation may from
time to time be listed. The provisions of the
Plan respecting the exercise of stock options and
the adjustments to options arising from certain
corporate actions shall apply mutatis mutandis to
all stock appreciation rights granted hereunder.
(ii) Stock appreciation rights granted hereunder are
exercisable to the extent, and only to the
extent, the option to which it is included is
exercisable. To the extent a stock appreciation
right included in or attached to an option granted
hereunder is exercised, the option to which it is
included or attached shall be deemed to have been
exercised to a similar extent.
(iii) A stock appreciation right granted hereunder shall
entitle the Participant to elect to surrender to
the Corporation unexercised the option in which it
is included, or any portion thereof, and to
receive from the Corporation in exchange therefor
that number of shares, disregarding fractions,
having an aggregate value equal to the excess of
the value of one share over the purchase price per
share specified in such option, times the number
of shares called for by the option, or portion
thereof, which is so surrendered. The value of a
share shall be determined for these purposes by
the weighted average sale price per share on the
stock exchange or other publicly quoted market
system having the greatest volume of trading of
the shares of the Corporation.
(iv) Subject to the provisions of the Plan, a stock
appreciation right granted hereunder may be
exercised from time to time by delivering to the
Corporation at its head office a written notice of
exercise, which notice shall specify the number of
stock appreciation rights to be exercised and
options to be forfeited and the number of shares
the Participant elects to receive thereby. Such
notice shall contain the Participant's undertaking
to comply, to the satisfaction of the Corporation
and its counsel, with all applicable requirements
of any stock exchange or exchanges upon which any
securities of the Corporation are listed for
trading and any other applicable regulatory
authority.
12. Other terms and conditions
The Corporation shall not be obligated to issue fractional
shares in satisfaction of any of its obligations hereunder.
Any option granted hereunder shall contain such other and
additional terms, not inconsistent with the terms of this Plan,
which are deemed necessary or desirable by the Committee, which
such terms, together with the terms of this Plan, shall
constitute such option as an "Incentive Stock option" within the
meaning of Section 422 of the 1986 Internal Revenue Code and
lawful regulations thereunder.
13. Amendments, suspension or termination
The Board of Directors of the Company shall have the right,
at any time, to amend, suspend or terminate the Plan in any
respect which it may deem to be in the best interests of the
Company, provided, however, no amendments shall be made in the
Plan without the approval of the stockholders of the Company
which:
(a) Increase the total number of shares for which options
may be granted under this Plan for all key employees or
for any one of them except as provided in Section 12;
(b) Change the minimum purchase price for the optioned
shares, except as provided in Section 12;
(c) Affect outstanding options or any unexercised rights
thereunder, except as provided in Section 6;
(d) Extend the termination date of the Plan.
14. Effective date, term and approval
Having been approved by the Board of Directors of the
Company at a meeting held on November 4, 1999, and subject to the
approval of the stockholders of the Company at the next Annual
Meeting, the Plan shall take effect immediately. This Plan will
terminate on December 31, 2009, and no options may be granted
under the Plan after that date, unless an earlier termination
date after which no options may be granted under the Plan is
fixed by action of the Board of Directors, but any option granted
prior thereto may be exercised in accordance with its terms. The
Plan and all options granted pursuant to it are subject to all
laws, approvals, requirements and regulations of any governmental
authority which may be applicable thereto and, notwithstanding
any provisions of the Plan or option agreement, the holder of an
option shall not be entitled to exercise his option nor shall the
Company be obligated to issue any shares to the holder if such
exercise or issuance shall constitute a violation by the holder
or the Company of any provisions of any such approval
requirements, law or regulation.
<PAGE>
Schedule "A"
Stock Option Agreement
THIS AGREEMENT made the __ day of ____________, 200_, between,
Iceberg Corporation of America, a corporation incorporated under
the laws of Nevada (the "Corporation") and ______________________
(the "Optionee"). The parties agree as follows:
1. Pursuant to the Stock Option Plan of the Corporation
established by the directors of the Corporation on November 4,
1999, the Corporation hereby grants to the Optionee the
irrevocable option to purchase up to ________ common shares (the
"Shares") in the capital stock of the Corporation, as presently
constituted, for cash, at a price of $______ per Share, upon the
following terms and conditions:
(a) The option shall be non-exercisable until ___________,
200_. On ___________,200_, and on each subsequent
_____ to and including ___________, 200_, the option
shall become exercisable with respect to ____ % of the
total number of Shares (computed in each case to the
nearest full share), and all or any part of the Shares
as to which the option shall have become exercisable
may be purchased at any time, or from time to time,
thereafter, until expiration or termination of the
option. The option may only be exercised by the
Optionee, or by the person or persons entitled to
exercise the same pursuant to the provisions of
subparagraph (d) below, on or prior to December 31,
2009, by the delivery to the Corporation at its head
office of written notice of election to exercise the
same, specifying the number of Shares with respect to
which the option is being exercised and accompanied by
payment in full of the purchase price of the Shares
then purchased by way of cash or certified cheque in
favour of the Corporation. Such notice shall
constitute the Optionee's acknowledgment of and
undertaking to comply to the satisfaction of the
Corporation and its counsel, with all applicable
requirements of any stock exchange or exchanges upon
which any securities of the Corporation may from time
to time be listed and of any applicable regulatory
authority or authorities. Such requirements may
include the placement of legends on share certificates
restricting transfer of such Shares, the making of
representations by the Optionee that the Optionee is
acquiring such Shares for investment and not with a
view to distribution, the filing of any required
information or statements with the aforesaid
authorities and the making of arrangements with the
Optionee's employer to withhold income taxes which may
become payable under the Optionee's exercise of an
option under this Agreement. Concurrently with its
receipt of any such notice and payment, the Corporation
shall deliver, or cause to be delivered, to the
Optionee a certificate representing the Shares
purchased by the Optionee. The Corporation may at its
election require that this Agreement be presented for
appropriate endorsement upon any such exercise.
Notwithstanding the foregoing, upon the making of an Offer,
options shall become immediately exercisable in respect of any
and all Shares covered thereby in respect of which the Optionee
has not exercised such Optionees right to acquire under the
option. For the purposes of this subparagraph, "Offer" means an
offer made generally to the holders of the Corporation's voting
securities in one or more jurisdictions to purchase directly or
indirectly voting securities of the Corporation where the voting
securities which are the subject of the offer to purchase
together with the offeror's then presently owned securities will
in the aggregate exceed 20% of the outstanding voting securities
of the Corporation and where two or more persons or companies
make offers jointly or in concert or intending to exercise
jointly or in concert any voting rights attaching to the
securities to be acquired, then the securities owned by each of
them shall be included in the calculation of the percentage of
the outstanding voting securities of the Corporation owned by
each of them
(b) The option shall be non-assignable and nontransferable
by the Optionee otherwise than by will or the laws of
descent and distribution or as contemplated in
subparagraph (d) hereof.
(c) The option shall expire and all rights to purchase
Shares hereunder shall cease and become null and void
at 5:00 p.m. EST time on December 31, 2009, and the
option hereby granted shall expire and all rights
hereunder shall cease at such time or upon the
happening of certain events as hereinafter provided.
(d) In the event of the physical or mental disability,
retirement with the consent of the Corporation or death
of the Optionee on or prior to the expiry date while
engaged as an employee, or director or officer of the
Corporation, the option granted may be exercised, up to
the full amount of the optioned Shares by the Optionee
or the legal personal representative(s) of the
Optionee, as the case may be, at any time up to and
including eighteen months following the physical or
mental disability, retirement or death of the Optionee
after which date the option shall forthwith expire and
terminate and be of no further force or effect
whatsoever.
For greater certainty, any Optionee who is deemed to be an
employee of the Corporation pursuant to any medical or disability
plan of the Corporation shall be deemed to be an employee for the
purposes of the Plan.
(e) In the event the Optionee's employment by or engagement
with the Corporation is terminated by the Corporation
or the Optionee for any reason other than the
Optionee's physical or mental disability, retirement or
death before exercise of the option contained herein,
the Optionee shall have 90 days from the date of such
termination to exercise only that portion of the option
such Optionee is otherwise entitled to exercise at that
point of time and thereafter this option shall expire
and all rights to purchase Shares hereunder shall cease
and expire and be of no further force or effect.
Options shall not be affected by any change of
employment so long as the Optionee continues to be
employed by the Corporation or one of its subsidiaries
or continues to be a director or an officer of one of
the foregoing.
(f) If the Corporation shall be a party to any
reorganization, merger, dissolution or sale of all or
substantially all of its assets, whether or not the
Corporation is the surviving entity, the option shall
be adjusted so as to apply to the securities to which
the holder of the number of Shares of the Corporation
subject to the option would have been entitled by
reason of such reorganization, merger, dissolution or
sale of all or substantially all of its assets
provided, however, that the Corporation may satisfy any
obligations to the Optionee hereunder by paying to the
Optionee in cash the difference between the exercise
price of all unexercised options granted hereunder and
the fair market value of the securities to which the
Optionee would be entitled, upon exercise of all
unexercised options, regardless of whether all
conditions of exercise relating to continuous
employment have been satisfied. Adjustments under this
subparagraph or any determinations as to the fair
market value of any securities shall be made by the
Board of Directors of the Corporation, or any committee
thereof specifically designated by the Board of
Directors to be responsible therefor, and any
reasonable determination made by the said Board or
committee thereof shall be binding and conclusive.
(g) In the event of any subdivision or subdivisions of the
common shares of the Corporation as said common shares
were constituted at the time any options granted
hereunder were granted into a greater number of common
shares, the Corporation will thereafter deliver at the
time of exercise thereof in addition to the number of
Shares in respect of which the option is then being
exercised, such additional number of Shares as result
from such subdivision or subdivisions without the
Optionee exercising the option being obligated to make
any additional payment or giving any other
consideration therefor.
(h) In the event of any consolidation or consolidations of
the common shares of the Corporation as said common
shares were constituted at the time any options granted
hereunder were granted into a lesser number of common
shares, the Optionee shall accept, at the time of the
exercise thereof in lieu of the number of Shares in
respect of which the option is then being exercised,
the lesser number of Shares as result from such
consolidation or consolidations.
(i) In the event of any change of the common shares of the
Corporation as said common shares were constituted at
the time any options granted hereunder were granted,
the Corporation shall thereafter deliver at the time of
the exercise thereof the number of shares of the
appropriate class resulting from the said change as the
Optionee exercising the option would have been entitled
to receive in respect of the number of shares so
purchased had the option been exercised before such
change.
(j) If the Corporation at any time while any options
granted hereunder are outstanding shall pay any stock
dividend or stock dividends upon the shares of the
Corporation in respect of which any options were
granted hereunder, the Corporation will thereafter
deliver at the time of exercise thereof in addition to
the number of shares in respect of which the option is
then being exercised, the additional number of shares
of the appropriate class as would have been payable on
the shares so purchased if they had been outstanding on
the record date for the payment of said stock dividend
or dividends.
(k) The Corporation shall not be obligated to issue
fractional Shares in satisfaction of its obligations
hereunder.
(l) If at any time the Corporation grants to its
shareholders the right to subscribe for and purchase
pro rata additional securities of the Corporation or of
any other corporation or entity, there shall be no
adjustments made to the number of Shares or other
securities subject to the option in consequence thereof
and the said option of the Optionee shall remain
unaffected.
2. Nothing in this Agreement shall confer upon the
Optionee any right to continue in the employ of the Corporation
or its subsidiaries and nothing herein contained shall interfere
in any way with the right of the Corporation or any of its
subsidiaries to terminate the employment of the Optionee at any
time.
3. The Corporation hereby represents to and agrees with
the Optionee that if for any reason, other than the failure or
default of the Optionee, the Corporation is unable to issue and
deliver the Shares as contemplated herein to the Optionee upon
the exercise by the Optionee of the option to purchase any of the
Shares covered by this option, the Corporation will pay, in
complete satisfaction of its obligations hereunder, to the
Optionee in cash, an amount equal to the difference between the
option exercise price and the fair market value of such Shares on
the date that the Optionee gave notice of such exercise in
accordance with paragraph 1(a) hereof. For the purposes of this
Agreement, if the Shares subject to this option are traded on a
stock exchange or exchanges, the fair market value shall be the
closing sale price on the exchange having the greatest volume of
trading on the last trading day immediately prior to the date
such notice is given.
4. The Optionee hereby acknowledges receipt from the
Corporation of a copy of the Stock Option Plan. The Optionee
acknowledges that upon any conflict between the terms of said
Plan and this option agreement the terms of this Agreement shall
prevail.
DATED this ___ day of ___________, 200_.
ICEBERG CORPORATION OF AMERICA
By: ________________________________
, President
c/s
By: ________________________________
, Secretary
WITNESS: )
)
)
)
______________________________) ___________________________ l/s
Optionee
<PAGE>
Schedule "B"
Option Exercise Form
The undersigned Optionee (or the Optionee's legal
representative(s) permitted under the Plan) hereby irrevocably
elects to exercise this Option for the number and class of Shares
(or other property or securities subject thereto) as set forth
below:
(a) Number of Shares to be Acquired: ______________
(b) Class of Shares: ___________________
(c) Option Exercise Price per Share: $_____________
(d) Aggregate Purchase Price [(a) times (c)]: $________
and hereby tenders a certified cheque or bank draft for such
aggregate purchase price, directing such Shares to be registered
and a certificate therefor to be issued as directed below.
DATED this ___ day of ______________, 200_.
WITNESS TO EXECUTION )
)
) _____________________
) [Name of Optionee]
)
______________________________)
) _____________________
) [Signature of Optionee]
)
Direction as to Registration:
________________________________
[Name of Registered Holder]
________________________________
[Address of Registered Holder]
