Registration No.__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2 TO FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUER
UNDER SECTION 12(B) OR (G) OF
THE SECURITIES EXCHANGE ACT OF 1934
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ALADDIN SYSTEMS HOLDINGS, INC.
(Name of Small Business Issuer in its Charter)
NEVADA 86-0866757
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
165 WESTRIDGE DRIVE, WATSONVILLE, CALIFORNIA 95076
(Address of Principal Executive Offices and Zip Code)
Issuer's Telephone Number: (831) 761-6200
Securities to be registered pursuant to Section 12(b) of the Act:
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.001 per share
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ALADDIN SYSTEMS HOLDINGS, INC.
FORM 10-SB
Table of Contents
Part I
Item 1 Description of Business............................................ 2
Item 2 Management's Discussion and Analysis or Plan of Operations......... 16
Item 3 Description of Properties.......................................... 23
Item 4 Security Ownership of Certain Beneficial Owners and Management..... 24
Item 5 Directors, Executive Officers, Promoters and Control Persons....... 25
Item 6 Executive Compensation............................................. 28
Item 7 Certain Relationships and Related Transactions .................... 34
Item 8 Description of Registrant's Securities to be Registered............ 35
Part II
Item 1 Market Price of and Dividends on the Registrant's Common Equity
And Related Stock Stockholder Matters.............................. 39
Item 2 Legal Proceedings.................................................. 39
Item 3 Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure............................................. 40
Item 4 Recent Sales of Unregistered Securities............................ 40
Item 5 Indemnification of Directors and Officers.......................... 42
Part F/S
Financial Tables and Exhibits.................................... F-1
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
"Aladdin", "StuffIt" "DropStuff" "Expander", "MacTicker",
"InstallerMaker", "StuffIt Deluxe""Spring Cleaning", "ShrinkWrap",
"InstallerMaker", and "PrivateFile" are trademarks and service marks of Aladdin
Systems Holdings, Inc. All other trademarks, service marks or tradenames
referred to in this Registration Statement on Form 10-SB ("Registration
Statement") are the property of their respective owners. Except as otherwise
required by the context, all references in this Registration Statement to (a)
"we," "us," "our" or "Aladdin" refer to the consolidated operations of Aladdin
Systems Holdings, Inc., a Nevada corporation, and its wholly-owned subsidiary,
Aladdin Systems, Inc., a Delaware corporation, (b) "you" refers to prospective
investors in our common stock and other readers of this Registration Statement,
(c) the "Web" refers to the World Wide Web, and (d) the "site" refer to our Web
site ("www.aladdinsys.com").
ITEM 1. DESCRIPTION OF BUSINESS
BACKGROUND
Aladdin is a developer and publisher of software products for the
Macintosh and Windows software markets. Aladdin's subsidiary, Aladdin Systems,
Inc. was formed in January, 1989 to publish software for the Macintosh computer.
In May, 1989, Aladdin entered into a publishing agreement to publish two
software products for the Macintosh computer developed by Raymond Lau, the
StuffIt data compression
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software product and the Shortcut desktop productivity application. In August,
1989, Aladdin commenced sales of its first product, Shortcut. The May, 1989
publishing agreement granted to Aladdin the right to publish and enhance the
StuffIt and Shortcut products in exchange for a royalty payment equal to fifteen
percent (15%) of Aladdin's net revenue from the sales and licensing of the
software.
Since 1990, Aladdin Systems has refined, expanded and improved the StuffIt
software and today publishes several different products based upon StuffIt for
both the Macintosh and Windows markets. We also publish several other popular
software applications including Spring Cleaning, a software uninstaller package
for the Macintosh; Private File, a file encryption application for both the
Macintosh and Windows markets; Aladdin Flashback, a version control application
for both the Macintosh and Windows markets which saves older versions of
documents as newer ones are created; DragStrip, a quick launch application for
both the Macintosh and Windows markets; and MacTicker, an automatically updated
stock ticker for the Macintosh which accesses data over the Internet without the
need for separate Web browser software. We sell these products to consumers
through distributors and resellers, as well as directly from our Web site
(www.aladdinsys.com).
In addition to products for the consumer market, we also develop and
market products to other software developers. Our InstallerMaker software
simplifies the installation of software products for Macintosh computers and our
StuffIt Engine product for the Macintosh and Windows markets provides developers
with the ability to include compression features in their own products. In
addition, we publish ShrinkWrap, a disk image product which is used by software
developers.
Recent Reorganization
In October, 1999, Aladdin Systems, Inc. entered into a reorganization with
a non-operating public company, Foreplay Golf & Travel Tours, Inc., a Nevada
corporation incorporated on March 26, 1997 ("FGT"). Under the reorganization
agreement (the "Reorganization Agreement"), the Aladdin Systems stockholders
received 1.580827 (the "Exchange Ratio") shares of FGT Common Stock in exchange
for each share of Aladdin Systems, Inc. Common Stock. The Exchange Ratio is
subject to adjustment after closing, pursuant to the terms of the Reorganization
Agreement, to adjust for options issued to employees of Aladdin Systems which
had expired prior to the closing. As part of the reorganization, Aladdin Systems
became a wholly-owned subsidiary of FGT, all of the executive officers and
directors of FGT resigned and certain executive officers and directors of
Aladdin Systems became the executive officers and directors of FGT which then
changed its name to Aladdin Systems Holdings, Inc. The Board of Directors and
shareholders of Aladdin Systems elected to enter into the reorganization with
FGT as a way to facilitate raising capital for expansion purposes. In connection
with assisting Aladdin Systems in the negotiations with FGT, Aladdin Systems
paid a fee to Baytree Capital, LLC upon the closing the transaction in the
amount of $30,000 and issued to Baytree Capital, LLC 50,000 shares of Aladdin
Systems Holdings, Inc. Immediately prior to the Reorganization, FGT conducted a
private placement of 1,000,000 shares of Common stock for total cash
consideration of $1,000,000.
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Headquarters
All of our business is currently conducted through Aladdin Systems, and
our principal executive offices are located at 165 Westridge, Watsonville, CA.
Our telephone number at this address is (831) 761-6200.
GENERAL
Aladdin Systems Holdings, Inc., a Nevada corporation (the "Company"),
through its Aladdin Systems, Inc. subsidiary, develops and publishes computer
software that enhances the transmission, access, and organization of information
for businesses and home-based personal computer users. Our strategy is to
produce products that are easy to use and allow users to utilize them in a
fashion that is transparent in operation, and minimally intrusive to the user.
We achieve transparency by designing our products to provide users with
additional features with only a minimal amount of additional user interaction.
For example, StuffIt Deluxe users can access the contents of StuffIt archives in
the same double-click method that they use to open a normal file.
Our software products are all labeled under the "Aladdin Systems" name and
are either developed internally by our own staff of software developers or are
acquired from third party developers in exchange for royalty payments pursuant
to publishing agreements. The publishing agreements we enter into either assign
to us all rights in the software or give us a perpetual right to modify and
publish the software, in exchange for a royalty ranging from 5% to 15% of our
net revenue from the sales and licensing of such software. We attempt to
negotiate maximum amounts of royalties that are to be paid to the developer of
the product.
Whether we create a product or acquire it from a developer, we assume all
costs associated with publishing it, including the costs of producing
documentation, packaging, marketing, advertising and distribution as well as the
costs of technical support for the products.
OUR PRODUCTS
Our products are divided into two different product groups serving two
different markets: consumers and software developers. While many of our products
are used by both groups, most of our developer products are licensed directly
rather than sold through the retail software distribution channel. Our products
are divided between these two market segments as follows:
Consumer Products:
StuffIt Deluxe (Macintosh)
DropStuff (Windows and Macintosh)
Expander (Windows and Macintosh)
StuffIt Lite (Macintosh)
Spring Cleaning (Macintosh)
Private File (Windows and Macintosh)
Aladdin FlashBack (Windows and Macintosh)
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DragStrip (Windows and Macintosh)
MacTicker (Macintosh)
Developer Products
StuffIt Engine (Windows and Macintosh)
StuffIt InstallerMaker (Macintosh)
StuffIt Product Line (Windows and Macintosh Platforms)
Our flagship product line is based upon Aladdin's data compression
technology: StuffIt Deluxe, DropStuff, Expander, StuffIt Lite and the StuffIt
Engine. StuffIt software is used to compress and expand data. The software
allows users to compress files, directories, hard drives or other media for
faster transmission over computer networks, including the Internet, and for
archival purposes. Because files encoded in the StuffIt format are compressed,
they are smaller than ordinary files which allows StuffIt files to be
transmitted faster than non-compressed files over computer networks including
the Internet regardless of the method of transmission - modem, DSL, cable modem,
etc.
Aladdin Systems commenced publishing StuffIt in 1989 when it acquired the
publishing rights to the product from Raymond Lau, then a 17-year old high
school student. Prior to that time, StuffIt was being published by Mr. Lau as
"shareware", a form of software distribution which encourages the free
distribution of the software and requests that the user send payment on the
"honor system." Pursuant to the 1989 publishing agreement with Raymond Lau,
Aladdin assumed the publishing of StuffIt in exchange for royalty payments to
Mr. Lau. In 1995, we purchased all rights to StuffIt from Raymond Lau. Since we
first published StuffIt in 1989, Aladdin has continually improved and updated
the product. StuffIt was originally designed to run only on Macintosh computers.
In 1995, Aladdin started to publish versions of certain StuffIt products for
Microsoft Windows-based computers. The Windows versions of our StuffIt products
(DropStuff, Expander and the StuffIt Engine) all operate on Windows 98, Windows
NT and the new Windows 2000 operating system.
In November, 1998, we shipped our newest version of StuffIt. This new
version incorporated two major changes: a new compression algorithm that on
average compresses files to be 20% smaller than earlier versions of StuffIt, and
a new file format designed to make StuffIt work equally as well under the
Microsoft Windows operating system as it does on the Macintosh. From 1996 to
August, 1999, Aladdin has sold 537,966 copies of StuffIt (all products
combined).
StuffIt has been adopted as a worldwide compression standard for the
Macintosh computer by Apple Computer and America Online. In 1990, America Online
adopted StuffIt as their standard for compressing Macintosh files utilizing
StuffIt to automatically compress files for transmission. StuffIt products have
been shipped over 10 million users worldwide over the last two years, including
eight million copies distributed by Apple Computer shipped pre-loaded on Apple
Computer's products. While originally
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Apple Computer paid us for the right to distribute StuffIt products, currently,
Aladdin receives no compensation therefor.
The StuffIt product line is divided into five different software products,
StuffIt Deluxe, DropStuff, Expander, the StuffIt Engine and StuffIt Lite,
designed for multiple computing platforms, and distributed through a worldwide
multi-channel distribution network. The StuffIt products are each protected by
copyright law.
StuffIt Deluxe (Macintosh) - StuffIt Deluxe is a full featured product
offering a complete compression and expansion solution to users. StuffIt Deluxe
is sold commercially through Aladdin's physical and electronic worldwide
distribution network of distributors, resellers, mail order houses, Web-based
retailers, and through our Web site (www.aladdinsys.com). StuffIt Deluxe was
first released for commercial sale in 1990. A localized kanji version is
distributed by our Japanese distributor. StuffIt Deluxe sells for a suggested
retail price of $129.95.
DropStuff (Windows and Macintosh) - DropStuff allows users to quickly and
easily compress a file by simply moving the file's icon directly over the
DropStuff icon on the user's desktop. DropStuff is distributed as shareware.
Shareware is generally recognized in the software industry as being on the
"honor system" with the software freely distributed at no charge pursuant to a
license agreement which requires payment as a condition of continued use after
30 days. We expect that the vast majority of shareware users will not register
the software or pay the license fee. However, we believe that on a historical
basis, the distribution of DropStuff as shareware has benefited Aladdin through
an increase in the number of users of our StuffIt compression standard as well
as increasing Aladdin's goodwill in the computer industry. In 1999, we started
distributing DropStuff (both Macintosh and Windows versions) through e-commerce
retailers as a commercial product. DropStuff is currently distributed by Apple
Computer as part of the Mac OS. We receive no compensation from Apple Computer
therefor. DropStuff sells for a suggested retail price of $20.00 for the Windows
version and $30.00 for the MacOS version.
Expander (Windows and Macintosh) - StuffIt Expander for the Macintosh and
Aladdin Expander for Windows are corresponding products which automatically
decompress files that are compressed into the StuffIt format. These products do
not compress files themselves. Expander is distributed as freeware in order to
encourage the wide distribution of files in StuffIt format and to seed the
market for our commercial products. Despite being distributed free of charge,
Expander is protected by copyright law and its use is subject to a license
agreement. In addition to decoding files in StuffIt format, Expander also
decodes files in other popular compression and encoding formats, including Zip,
Binhex, Base64 (MIME) and TAR, further increasing its popularity and usefulness.
We have entered into agreements allowing distribution of StuffIt Expander with
third parties such as Apple Computer, Netscape, IDG Communications and Connectix
Corporation. Generally, we receive no revenue from such agreements. We also
distribute Expander from our Web site (www.aladdinsys.com).
StuffIt Engine (Windows and Macintosh) - The StuffIt Engine is licensed
directly to software developers who wish to incorporate Aladdin's compression
technology into
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their software. We have licensed the StuffIt Engine to third parties such as
American Online and DataViz. Since the StuffIt Engine is licensed on a
negotiated basis, we do not have a suggested retail price for the product.
StuffIt Lite (Macintosh) - StuffIt Lite is a shareware compression product
designed to provide basic compression and expansion capabilities. The software
is only distributed electronically and is available for download through
multiple sources. StuffIt Lite is still distributed as shareware and is
primarily distributed via our Web site (www.aladdinsys.com). The suggested
shareware fee for StuffIt Lite is $30.00.
Spring Cleaning (Macintosh)
Spring Cleaning is a software uninstaller product for the Macintosh market
which removes unwanted and unused software and related files from a user's
computer. Released in November 1996, it has sold over 370,000 copies. Spring
Cleaning is published by Aladdin pursuant to a publishing agreement with The
Excelsior Group which grants to Aladdin perpetual rights to publish the product
and to create updates and derivate products. Spring Cleaning is sold
commercially through Aladdin's physical and electronic worldwide distribution
network of distributors, resellers, mail order houses, Web retailers, and
through our Web site (www.aladdinsys.com). Localized kanji and French language
versions of the product are distributed by our Japanese and French distributors.
Spring Cleaning is protected by copyright law. Spring Cleaning sells for a
suggested retail price of $49.95.
Private File (Windows and Macintosh)
Private File incorporates StuffIt compression technology into a data
security software product designed to send secure information over computer
networks including the Internet. Private File was released in 1997. The product
faces competition from many sources, with Network Associates and Symantec being
the market leader. Private File is sold commercially through both retail
software distribution channels and via our Web site (www.aladdinsys.com).
Private File is protected by copyright law. Private File sells for a suggested
retail price of $49.95.
ShrinkWrap (Macintosh)
ShrinkWrap is used by developers and consumers to create disk image files,
allowing the users to create exact copies of their hard disk, floppies, or CD
ROMs. ShrinkWrap was released in 1997. ShrinkWrap's only competition is Disk
Copy from Apple Computer. ShrinkWrap is distributed directly from Aladdin via
our Web site and by other Web-based retailers in a time-locked "trialware"
format which allows unrestricted use of the software for a period of thirty days
and then disables itself, unless the user enters an activation code received
after the license fee is paid. A localized kanji version is distributed by our
Japanese distributor. ShrinkWrap sells for a suggested retail price of $30.00.
Aladdin FlashBack (Windows and Macintosh)
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Aladdin FlashBack is a version control product designed to allow users to
restore versions of documents regardless of the application being used, and
protect them from data loss and accidental overwriting. Aladdin Flashback has no
competition in the Macintosh market and several competitors in the Windows
market, including Lost & Found from PowerQuest. None of the competitive products
are dominant in the market for such products. Aladdin Flashback was released in
1997 and is sold commercially through Aladdin's physical and electronic
worldwide distribution network of distributors, resellers, mail order houses,
Web-based retailers and through our Web site (www.aladdinsys.com). Localized
kanji, German and French language versions of the product are also distributed
by our Japanese, German and French distributors, respectively. Aladdin FlashBack
sells for a suggested retail price of $69.95.
StuffIt InstallerMaker (Macintosh)
StuffIt InstallerMaker, first published in 1991, is a product used by
software developers to create custom installers for the distribution of software
and is licensed by us directly to developers. StuffIt InstallerMaker
incorporates Aladdin's e-commerce technology which enables a developer to
disable their software after a certain period of time unless the user enters an
authorization code. InstallerMaker's licensee's include Apple Computer, Lexmark,
The Learning Company and RealNetworks. Aladdin licenses StuffIt InstallerMaker
at a variable license fee, depending upon usage, ranging from free to
$10,000.00.
DragStrip (Windows and Macintosh)
In March, 1999, Aladdin started publishing DragStrip pursuant to a
software publishing agreement with Poppybank Software which granted Aladdin
exclusive, perpetual rights to publish the software and create derivatives
thereof in exchange for a royalty payment DragStrip allows users to launch,
find, organize, and access applications and documents quickly and efficiently,
allowing users to become better organized. DragStrip is sold commercially
through Aladdin's physical and electronic worldwide distribution network of
resellers, mail order houses, Web-based retailers and through our Web site
(www.aladdinsys.com). DragStrip sells for a suggested retail price of $19.95.
MacTicker (Macintosh)
In July, 1999, we acquired the rights to MacTicker from Galleon Software,
Inc. MacTicker represents a new kind of product for Aladdin. MacTicker is a
browser-less Internet client software which displays a moving stock ticker
across a user's computer screen. The acquisition agreement for the MacTicker
product assigned to Aladdin all right, title and interest in the software in
exchange for a royalty payment which terminates after five years. The stock
quote information is continually fed to the software from a Web site. Currently,
we charge for the MacTicker software and provide 15 minute delayed stock quotes
free of charge. While several Web site currently offer stock market tickers, we
believe that MacTicker will appear to a portion of the market which would prefer
not to have to access a Web site to receive stock quotes. Since we commenced
sales of MacTicker, over 16,000 users have downloaded the trial version from our
www.aladdinsys.com web site. MacTicker sells for a
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suggested retail price of $29.95. We believe that a market for products like
MacTicker will exist since they are easier to use then similar offerings
provided by certain financial Web sites, in some cases, free of charge, and
contains additional functionality not found on these Web site based competitors.
We are currently exploring alternative revenue models for MacTicker including
charging a subscription fee for real time stock quotes and OEM arrangements with
brokerage houses and financial Web sites, as well as additional kinds of
information which can be provided to users. We have not yet determined if such
alternative revenue models will be viable and if implemented, whether such
alternative revenue models will succeed.
OUR SALES AND DISTRIBUTION METHODS
Our products are sold and distributed via a variety of business models and
distribution methods.
Sales Models
Freeware - Certain of our products are distributed to users free of charge
as "freeware". We distribute freeware products in order to seed the market for
our commerical products. Despite being distributed free of charge, our freeware
software is protected by Copyright law and a license agreement. Currently our
only freeware product is Expander.
Shareware - Certain of our products are distributed to users as
"shareware". Shareware software is distributed to users free of charge and the
user has a period of time to use the software (on average 15 days) and decide if
they like the software prior to paying the license fee. Payment of the shareware
license fee is made on honor system. While we expect most users not to pay the
shareware fee, we believe that our shareware products help seed the market for
our commercial products. Our shareware products are DropStuff and StuffIt Lite.
Our shareware products are distributed over our web site and through
distribution alliances with companies such as Apple Computer and America Online.
Trialware - Certain of our products are distributed as "trialware."
Trialware products are a fully functional version of the software. However,
unlike shareware, our trialware products automatically deactivate after a set
period time unless the user has obtained an activation code by paying for the
software. Selling products as Trialware is not a marketing scheme which is
mutually exclusive with retail sales. We may from time to time release trialware
versions of our products which are also sold through retail channels.
Retail software - Most of our products are distributed to users through
established retail software distribution channels which include sales to
resellers through distributors, direct mail sales and sales of products via our
Web site.
Licensed software - Our StuffIt InstallerMaker software is licensed
directly to other software developers based upon a sliding scale license fee
schedule.
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ROYALTY PAYMENTS
Pursuant to the publishing agreements we have entered into total royalty
payments to developers in 1996, 1997 and 1998 were $24,500, $201,220 and
$226,511, respectively.
OUR RESALE OF THIRD PARTY PRODUCTS
In addition to publishing our own products, we utilize our resources and
customer list to act as a reseller of software products published by other
software companies. Historically, we resold limited numbers of third-party
products through "bundling" offers with our products which were distributed via
direct mail efforts. We are now focusing on offering third party products for
sale via our Web site, primarily through a download model, where the customer
receives the product downloaded directly to their computer after credit card
information is entered and verified.
From 1996 through 1998, our revenue from the resale of third-party
products decreased dramatically as we reduced the amount of direct mail
marketing we conducted. During 1999, third-party products have been primarily
conducted through our Web site and 1999 revenues for third-party products sales
increased to $424,881 through August 31, 1999. Our resale agreements run for
periods from 90 days to one year and all are non-exclusive. We receive a
percentage of the net sale ranging from 3% to 70%.
As of the date hereof, we are currently acting as a reseller for the
following products:
Eudora from Qualcomm,
Norton Anti-Virus for Macintosh from Symantec,
Virtual PC from Connectix
Voice Express Standard from Learner & Hauspie
SOFTWARE PRODUCT REVENUES
The following table shows our net revenue from software products for the
last three complete years divided into three categories showing the revenue from
our consumer software products, our developer software products and third party
products which we resold.
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1998 1997 1996
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Consumer $6,707,281 $5,775,838 $4,058,623
Developer 1,146,874 1,274,241 1,524,804
Resold Products 148,363 224,835 531,776
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Total net revenues $8,002,518 $7,274,914 $6,115,203
Percentage of net revenues
Represented by Resold Products 1.85% 3.00% .83%
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- --------------------------------------------------------------------------------
PRODUCT SUPPORT
We believe that customer and technical support is an important part of the
Company's overall performance and success. As of August 30, 1999, we had five
full-time employees involved in technical support services, available to all
customers by electronic mail, via our Web site, telephone, or fax. Support
services include explaining how the customer's computer works, how the
customer's other software works in relation to our products, solving problems
with software operation and suggesting solutions to business and personal
computing issues. We offer product support free of charge to registered users of
our products.
DISTRIBUTION AND MARKETING; MAJOR CUSTOMERS
Our products are marketed through independent distributors in the United
States and Canada, through numerous resellers and mail order companies and
distributors in other countries, directly to corporate and educational accounts
under site licensing agreements, and directly to end-users through direct
marketing campaigns and our Web site (www.aladdinsys.com).
Of our total net revenues for 1998, approximately 30% was through
independent, domestic distributors pursuant to nonexclusive distribution
agreements. Sales to one such distributor, Ingram Micro, accounted for nearly
25% of total net revenues in 1998. Domestic distributors purchase product at a
discount from suggested list prices.
Of our total net revenues for 1998, approximately 12% was through
independent, international distributors. Several of these distributors are
limited by contract to distribution within a specified geographic area. We
currently provide translations of certain products in Japanese, German and
French languages. Sales to such distributors, Act2 (Japan), and Softline (United
Kingdom), accounted for approximately 8%, and 1%, of total net revenues in 1998,
respectively. International distributors generally require a somewhat larger
discount in return for various advertising, customer service, and customer
registration duties performed by them in connection with the software. This
discount normally ranges from 40% to 60% off of the suggested retail price of
the products. The Asian economic crisis has affected our sales in the Asian
marketplace and caused our distributor in Singapore went bankrupt. In addition,
our sales in Australia have dropped because of the overall Asian economic
condition. Neither the bankruptcy of our Singapore distributor nor the decrease
in Australian sales has had a material adverse affect on the overall sales of
the Company.
We give our distributors industry-standard rights of return for stock
balancing and for defective products, and replacement rights when products are
upgraded to new
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versions. A reserve for returns has been recorded and was $37,368 and $17,749 at
December 31, 1998 and 1997, respectively. Returns exchanged for product upgrades
and new version releases do not have a material impact on the financial
statements because of Aladdin's low cost to replace such returns. Historically,
product returns from end users have not been significant.
PRODUCT DEVELOPMENT AND UPGRADES
The personal computer software industry continues to undergo rapid
technological change, requiring a continuous high level of enhancement of
existing products and development of new products. We intend to continue the
enhancement of our existing products and to develop additional products which we
believe will be marketable to our existing customer base and new customers and
which will extend our current products to new computing platforms.
We regularly upgrade our existing products to add new features in response
to customer requests for additional features and to match or exceed features
contained in competing products. Historically, 10 % to 50% of the registered
users of a software product have purchased the upgraded version of the same
product. Most product upgrades are developed by our internal development staff.
However, upgrades on certain products which we publish are developed by the
original developer of the product, pursuant to the terms of the specific
software publishing agreement.
We additionally plan and develop new products to compliment our product
line. We have announced several new products which are not yet available for
sale. They are: Aladdin Expander for the Linux operating system and a product
called "DropZip" for Windows which will compress files into the "Zip"
compression format.
As of August 31, 1999, eighteen (18) employees were engaged full time in
product development. During years 1998, 1997, and 1996, we spent approximately
$1,500,000, $1,470,000 and $960,000, respectively, on product research and
development and enhancement activities, representing approximately 18.8%, 20.2%,
and 15.6%, respectively, of net revenues in each of these periods.
Our future financial performance will depend in part on the successful
development, completion, and introduction of such new software products, and on
such enhanced versions of existing products, and customer acceptance of those
products. In the future, there is no assurance that we will not encounter
difficulties that could delay or prevent the successful development of, or
marketing of, new products and/or enhancements of existing products. There also
can be no assurance that such products will yield positive results or that such
results can be obtained on a timely basis or without the expenditure of
substantial funds.
COMPETITION
The personal computer software market is highly competitive and has been
subject to rapid change, which is expected to continue. Various different
competitors exists for our different products. For our flagship StuffIt product
line for the Macintosh, we believe that our long history of publishing
compression software for the Macintosh,
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the goodwill associated with our "Aladdin" and "StuffIt" brands, our large
installed base of users as well as our strategic relationships with Apple
Computer and America Online makes StuffIt for the Macintosh the leading product
in its category. However, our attempts to extend the StuffIt line of products to
the Windows market will face strong competition from the many Windows-based
compression products with implement the "Zip" compression standard. There are
several major and many minor companies currently publishing "zip" products which
will directly compete with our StuffIt products for the Windows market.
In addition, certain computer manufacturers may devote significant
resources to creating software, directly competitive with products of Aladdin,
for inclusion with their computers and computer systems without additional
charge to consumers, specifically, Apple Computer provides a file encryption
technology in its Mac OS 9 operating system and Microsoft includes a compression
utility in its Windows 98 and Windows NT operating systems.
Our competitors include many independent software vendors that have
financial, marketing, and technological resources far in excess of those of
ours. Some of these include Apple, Symantec, Microsoft, Network Associates,
PowerQuest, and MindVision.
Aladdin's software products are marketed primarily through the retail
channel. All of these products face competing products offering many similar
features. Aladdin believes that the principal competitive factors in the market
include product features and functions, ease of understanding and operating the
software, product reliability, price/performance characteristics, name
recognition, and availability and quality of support and training services.
Price competition could become an increasing factor in the personal computer
software market, which could, in turn, be expected to increase pressures on
profit margins in the future.
As the Internet and e-commerce becomes an increasing important channel for
the distribution and sales of software products, we plan to increase our efforts
to sell both our products and the third-party products we resell direct to
consumers via our Web site (www.aladdinsys.com). In order to accomplish this, we
may need to invest money, effort and other resources into our Web efforts which
may divert attention and resources from our traditional sales channels. In
addition, we may be competing against existing and new companies that have
financial, marketing, and technological resources far in excess of Aladdin's. In
the event that we are not able to successfully compete against such companies it
could have a material adverse effect upon our business, results of operations
and financial condition.
PRODUCT PROTECTION
We regard the protection of our copyrights, service marks, trademarks,
trade dress and trade secrets as critical to our future success and rely on a
combination of copyright, trademark, service mark and trade secret laws and
contractual restrictions to establish and protect our proprietary rights in
products and services. Software products are generally protected against copying
pursuant to the Copyright Act and license agreements. In addition, many software
companies implement schemes
13
<PAGE>
designed to reduce unauthorized copying by requiring that users enter a unique
registration code to activate the software. Where applicable, some companies
also seek for patent protection for specific technologies embodied in their
products.
We regard our software as proprietary and attempt to protect it with
copyrights, trade secret laws, and internal nondisclosure safeguards, as well as
restrictions on disclosure and transferability that are incorporated into our
software license agreements. Our copyrights run for a period of 75 years from
the first creation of the work in accordance with the provisions of the
Copyright Act. None of our products lack the necessary copyright or trademark
protection. Aladdin licenses its software products to customers rather than
transferring title. Despite these restrictions, it may be possible for
competitors or users to copy aspects of the Aladdin's products or to obtain
information which Aladdin regards as trade secrets. Computer software generally
can be patented only with difficulty, and existing copyright laws afford only
limited practical protection. On a regular basis, we evaluate our development
efforts to determine if patent protection would be applicable. To date, we have
not pursued patent protection for any of our products.
Our products require that a product registration number be entered in
order to be activated. We believe that this system helps to reduce unauthorized
copying of our products. The range of product registration numbers distributed
is changed from time to time in order to further deter copying of the software.
However, because of the rapid pace of technological change in its industry, we
believe that such protections are less significant than factors such as frequent
product enhancements, and the timeliness and quality of Aladdin support
services. Policing unauthorized use of such a broadly disseminated product as
computer software is difficult, and software piracy can be expected to be a
persistent problem for the packaged software industry. These problems may be
particularly acute in international markets. We do not have specific information
regarding how unauthorized copying affects our sales in either the United States
or foreign markets.
Although we do not believe that we infringe the proprietary rights of
third parties, there can be no assurance that third parties will not claim
infringement by us with respect to past, current or future technologies. We
expect that participants in our markets will be increasingly subject to
infringement claims as the number of software and competitors in our industry
segment grows. Any such claim, whether meritorious or not, could be
time-consuming, result in costly litigation, cause software upgrade delays or
require us to enter into royalty or licensing agreements. Such royalty or
licensing agreements might not be available on terms acceptable to us or at all,
as a result, any such claim could have a material adverse effect upon our
business, results of operations and financial condition.
Since we produce computer software products and are not engaged in
hardware manufacturing, we did not spend any material amounts on compliance with
environmental laws.
14
<PAGE>
GOVERNMENTAL REGULATION
Our company, operations and products and services are all subject to
regulations set forth by various federal, state and local regulatory agencies
including export regulations on compression methods promulgated by the United
States Department of Commerce. We take measures to ensure our compliance with
all such regulations as promulgated by these agencies from time to time. The
cost of compliance with all such regulations is minimal.
As the Web-based portion of our business expands, we may be subject to any
existing or future governmental regulation associated with the Internet. There
are currently few laws and regulations directly applicable to the Internet. It
is possible that a number of laws and regulations may be adopted with respect to
the Internet covering issues such as user privacy, pricing, content, copyrights,
distribution, antitrust and characteristics and quality of products and
services. The growth of the market for online commerce may prompt calls for more
stringent consumer protection laws that may impose additional burdens on those
companies conducting business online. Federal and state tax authorities in a
number of states are currently reviewing the appropriate tax treatment of
companies engaged in online commerce, and new state tax regulations may subject
us to additional state sales and income taxes.
Our current policy regarding the collection, transfer, use and sale of
personal information from our customers is disclosed on our Web site. It is our
current policy not to sell, trade or rent customer email addresses to third
parties; however, we do utilize customer email addresses to send advertisements
for our own products and third party products to our customers.
Several states have also proposed legislation that would limit the uses of
personal user information gathered online or require online services to
establish privacy policies. The Federal Trade Commission has also initiated
action against at least one online service regarding the manner in which
personal information is collected from users and provided to third parties.
Changes to existing laws or the passage of new laws intended to address these
issues, including some recently proposed changes, could create uncertainty in
the marketplace that could reduce demand for our products or increase the cost
of doing business as a result of litigation costs or increased product marketing
costs, or could in some other manner have a material adverse effect on our
business, results of operations and financial condition.
In addition, because our products are accessible worldwide and we
facilitate sales of goods to users worldwide, other jurisdictions may claim that
we are required to qualify to do business as a foreign corporation in a
particular state or foreign country. Our failure to qualify as a foreign
corporation in a jurisdiction where it is required to do so could subject us to
taxes and penalties for the failure to qualify and could result in our inability
to enforce contracts in such jurisdictions. Any such new legislation or
regulation, or the application of laws or regulations from jurisdictions whose
laws do not currently apply to our business, could have a material adverse
effect on our business, results of operations and financial condition.
15
<PAGE>
EMPLOYEES
As of August 31, 1999, we had 46 full time employees, including 19 in
Marketing, Sales and Support; 7 in Administration; 18 in Research and
Development; and 2 in Shipping and Production. Although talented and qualified
employees are difficult to find in the current tight job market, we have
experienced relative success in attracting and retaining highly motivated and
talented employees.
We believe that the future success of the Company will depend in part on
our continued ability to attract, integrate, retain and motivate highly
qualified technical and managerial personnel, and upon the continued service of
our senior management and key technical personnel. The competition for qualified
personnel in our industry and graphical location is intense, and there can be no
assurance that we will be successful in attracting, integrating, retaining and
motivating a sufficient number of qualified personnel to conduct our business in
the future. From time to time, we also employ independent contractors to support
our research and development, marketing, sales and support and administrative
organizations. We have never had a work stoppage, and no employees are
represented under collective bargaining agreements. We consider our relations
with our employees to be good.
SUBSIDIARIES
We have two subsidiaries, Aladdin Systems, Inc., a California corporation
and Transaction Services, Inc. ("TSI"), a California corporation, which was
incorporation in 1997 and is a wholly-owned subsidiary of Aladdin Systems. TSI
was formed in order to provide technology and services to other software
publishers which allows such companies to make trial versions of their software
available. Information about Aladdin Systems and its products is set forth in
detail above. Currently, TSI transacts only non-material amounts of business.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATIONS
The following discussion of our financial condition and results of
operations should be read in conjunction with our consolidated financial
statements and notes thereto appearing elsewhere in this registration statement.
The matters discussed in this registration statement contain
forward-looking statements that involve risks and uncertainties. Our actual
results could differ materially from those discussed herein. Factors that could
cause or contribute to such differences are discussed in this section and
elsewhere in this registration statement.
SELECTED FINANCIAL DATA
The following table contains certain selected financial data of the
Company and is qualified by the more detailed financial statements and the notes
thereto provided in this Registration Statement. The financial data as of and
for the years ended December
16
<PAGE>
31, 1998 and 1997, have been derived from the Company's financial statements,
which statements were audited by Hutchinson & Bloodgood, LLP. The financial data
as of September 30, 1999 and for the nine-month periods ended September 30, 1999
and 1998, has been derived from the Company's unaudited financial statements.
The financial data shown represents the historical operating results of our
subsidiary, Aladdin Systems, Inc. as the accounting acquirer under the rules of
reverse acquisition accounting.
Statement of Operations Data
<TABLE>
<CAPTION>
Nine Months Ended Fiscal Year Ended
September 30 December 31,
------------------------- -------------------------
1999 1998 1998 1997
----------- ----------- ----------- -----------
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Revenues $ 6,719,464 $ 5,827,388 $ 8,002,518 $ 7,274,914
Net Income (loss) $ 1,000,866 ($ 40,629) $ 580,183 (772,999)
Net Income (loss) per share to Shareholders:
Basic $ 0.11 ($ 0.00) $ 0.06 ($ 0.09)
Diluted (with options) $ 0.09 ($ 0.00) $ 0.05 ($ 0.07)
Balance Sheet Data
September 30 December 31,
------------------------- -------------------------
1999 1998 1998 1997
----------- ----------- ----------- -----------
(unaudited) (unaudited)
Current Assets $ 1,343,467 $ 908,797 $ 1,075,928 $ 1,040,914
Total Assets $ 2,363,457 $ 1,979,576 $ 2,063,700 $ 2,341,848
Current Liabilities $ 777,385 $ 2,132,167 $ 1,468,685 $ 2,457,823
Long Term Debt $ 330,335 $ 219,678 $ 340,145 $ 215,665
Total Liabilities $ 1,107,721 $ 2,351,845 $ 1,808,829 $ 2,673,488
Shareholders Equity $ 1,255,736 ($ 372,269) $ 254,870 ($ 331,640)
</TABLE>
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
The following discussion of our financial condition and results of
operations should be read in conjunction with our consolidated financial
statements and notes thereto appearing elsewhere in this Registration Statement.
The matters discussed in this Registration Statement contain forward-looking
statements that involve risks and uncertainties. Our actual results could differ
materially from those discussed herein. Factors that could cause or contribute
to such differences include, but are not limited to,
17
<PAGE>
those discussed below in "Factors Affecting Our Business, Operating Results, and
Financial Condition" as well as those discussed in this section and elsewhere in
this Registration Statement. The following information represents the results of
the operations of our subsidiary, Aladdin Systems, Inc. and assumes that Aladdin
Systems, Inc. was the "accounting acquirer" of Aladdin Systems Holdings, Inc.
under reverse acquisition accounting.
Overview
Aladdin is a developer and publisher of software products for the
Macintosh and Windows software markets. Aladdin's subsidiary, Aladdin Systems,
Inc. was formed in January, 1989 to publish software for the Macintosh computer.
In May, 1989, Aladdin entered into a publishing agreement to publish the StuffIt
file compression software product for the Macintosh computer developed by
Raymond Lau. Since 1990, Aladdin Systems has continually refined, expanded and
improved the StuffIt software and today publishes several different version of
StuffIt for both the Macintosh and Windows markets. The Company also publishes
several other software applications including Spring Cleaning, the leading
software uninstaller package for the Macintosh, Private File, a file encryption
application for both the Macintosh and Windows markets, Aladdin Flashback, a
version control application for both the Macintosh and Windows markets which
saves older versions of documents as newer ones are created, DragStrip, a quick
launch application for both the Macintosh and Windows markets and MacTicker, an
automatically updated stock ticker for the Macintosh which accesses data over
the Internet without the need for separate browser software. Aladdin sells these
products to consumers through relationships with distributors and resellers, as
well as, directly from our Web site (www.aladdinsys.com).
In addition to products for the consumer market, Aladdin also develops and
markets products to other software developers, InstallerMaker which simplifies
the installation of software products for Macintosh computers and the StuffIt
Engine which provides developers with the ability to include compression
features in their own products.
Operating Results
Nine Months Ended September 30, 1999 Compared to Nine Months Ended
September 30, 1998.
Revenues for the nine months ended September 30, 1999 were $6,719,464, an
increase of $892,076, or approximately 15.3%, compared to $5,827,388 for the
nine months ended September 30, 1998. Revenues increased primarily due to sales
of an upgraded version of StuffIt Deluxe which increased in sales by $ 1,165,579
or a 45% increase over the prior period. We expect revenue from the sales of
StuffIt Deluxe to continue to increase in the future due to the release of an
upgraded version of the software in November, 1999.
The gross profit for the nine months ended September 30, 1999 was
$5,568,866, an increase of $900,405, or approximately 19.3%, compared to the
gross profit of
18
<PAGE>
$4,668,461 for the nine months ended September 30, 1998. Gross profit increased
primarily to due to an increase in sales of products via our Web site
(www.aladdinsys.com) since there is little to no cost of good sold for software
sold via our Web, which increases the overall gross profit margin.
Marketing, Sales and Support expenses for the nine months ended September
30, 1999 were $2,410,208, a decrease of $320,722 or 11.7%, compared to
$2,730,930 for the nine months ended September 30, 1998. This decrease reflects
a cut in co-op advertising expenses in the amount of $244,000 during 1999.
Research and Development expenses for the nine months ended September 30,
1999 were $1,278,847, an increase of $118,439 or 10.2%, compared to $1,160,408
for the nine months ended September 30, 1998.
General and Administrative expenses for the nine months ended September
30, 1999 were $671,693, a decrease of $9,138 or 1.3%, compared to $680,831 for
the nine months ended September 30, 1998.
Profit from operations for the nine months ended September 30, 1999 was
$1,208,117, an increase of $1,111,824 or 1,154% compared to income from
operations of $96,293 for the nine months ended September 30, 1998. This
increase is primarily due to the decrease in both cost of good sold and total
expenses and an increase in sales. Assuming that sales of our products continue
to grow, we expect that we continue to show profit growth from operations.
Interest income for the nine months ended September 30, 1999 was $3,996,
an increase of $3,857 compared to $139 for the nine months ended September 30,
1998. This increase represents interest associated with increased use of credit
line facilities for working capital purposes.
Allowance for income tax expenses for the nine months ended September 30,
1999 was $179,003 compared to a loss carryforward of $40,000 for the nine months
ended September 30, 1998. In the event that the Company remains profitable, and
the Company fully utilizes any loss carryforward, income tax expenses are
expected to increase.
Fiscal Year Ended December 31, 1998 Compared to Fiscal Year Ended December
31, 1997.
Revenues for fiscal 1998 were $8,002,518, an increase of $724,604 or
approximately 10%, compared to $7,274,914 for fiscal 1997. Revenues increased
primarily due to sales of an upgraded version of StuffIt Deluxe which increased
in sales by $1,218,090 or 43% over the prior period.
Gross profit for fiscal 1998 was $6,597,022, an increase of $763,686 or
13.1% compared to $5,833,336 for fiscal 1997.
Marketing, Sales and Support expenses for fiscal 1998 were $3,520,106, a
decrease of $379,648 or 9.7% compared to $3,899,754 for fiscal 1997. As a
percentage of revenue,
19
<PAGE>
Marketing, Sales and Support expenses decreased to 44% in fiscal 1998 from 53.6%
in fiscal 1997, primarily as a result of decreasing advertising expenses.
Research and Development expenses for fiscal 1998 were $1,506,798, an
increase of $39,932 or 2.7% compared to $1,466,866 for fiscal 1997. As a
percentage of revenue, Research and Development expenses decreased to 18.8% in
fiscal 1998 from 20.2% in fiscal 1997.
General and Administrative expenses for fiscal 1998 were $907,560 a
decrease of $251,574 or 21.7% compared to $1,159,134 for fiscal 1997. As a
percentage of revenue, General and Administrative expenses decreased to 11.3% in
fiscal 1998 from 15.9% in fiscal 1997, primarily as a result of a reduction in
the number of employees and a decrease in consulting fees and recruiting
expenses.
Due to the above, income from operations for fiscal 1998 was $662,559, an
increase of $1,354,977 compared to a loss from operations of $692,418 for fiscal
1997.
Net income for fiscal 1998 was $580,183, an increase of $1,353,182
compared to the net loss of $772,999 for fiscal 1997. The increase is due
primarily to an increase in sales and a decrease in expenses in 1998.
For the year ending December 31,1998, the Company had a loss carryforward
for income taxes in the amount of $81,769.
Liquidity and Capital Resources
Net cash provided by operating activities during the nine months ended
September 30, 1999 was $759,299. Net cash provided by operating activities
during fiscal 1998 was $642,574 an increase of $109,046 compared to net cash
used in operating activities of $366,472 in fiscal 1997. The increase is due
primarily to an increase in sales.
Net cash used in investing activities was $190,883 for the nine months
ended September 30, 1999, primarily reflecting cash used for the acquisition of
software and equipment. Net cash used in investing activities in fiscal 1998 was
$26,446 compared with net cash used in fiscal 1997 of $658,077, with both years
reflecting cash used for the acquisition of software and equipment.
Net cash used by financing activities was $323,734 for the nine months
ended September 30, 1999. Net cash used in financing activities for fiscal 1998
was $607,353.
Our capital requirements are dependent on several factors, including
market acceptance of our software and services, timely updating of the Company's
existing software product, developing new software products or acquiring the
rights to existing software products from third parties, the resources devoted
to marketing and selling the Company's services and brand promotions and other
factors. At October 31, 1999, the Company had cash and cash equivalents totaling
$1,073,697, resulting principally from the sale of common stock in a private
placement during October, 1999 which is described herein under Part 2, Item 4,
Recent Sales of Unregistered Securities, and working capital of $1,375,571.
20
<PAGE>
During 1997, certain Stockholders, the Company's former President a key
employee, and a relative of a stockholder lent the Company a total of $225,062,
in the form of demand notes with interest payable monthly at rates from 7% to
12%. These notes contain a conversion feature where they can be converted into
common stock in part or whole at any time for $1.74 per share. The notes are
payable upon thirty (30) days notice by the holder. The notes are subordinated
to all other financing by the Company. During 1998, the Company paid $11,000
against these notes resulting in a balance remaining of $214,062 as of December
31, 1998. The Company estimates that it will pay $69,000 of this balance during
1999. These repayments will be made from working capital. In the event that our
working capital is insufficient to pay the balance of the notes, we may seek
additional financing or attempt to renegotiate the terms of the notes with the
holders. There can be no assurance that either additional financing will be
available or that the holders will agree to renegotiated terms acceptable to us.
We believe that our current cash and cash equivalents will be sufficient
to meet our anticipated cash needs for working capital and capital expenditures
through 2000. If cash generated from operations is insufficient to satisfy our
liquidity requirements, we may seek to sell additional equity or debt securities
or to obtain a credit facility. The sale of additional equity or convertible
debt securities could result in additional dilution to our stockholders. The
incurrence of indebtedness would result in an increase in our fixed obligations
and could result in operating covenants that would restrict its operations.
There can be no assurance that financing will be available in amounts or on
terms acceptable to us, if at all. If financing is not available when required
or is not available on acceptable terms, we may be unable to develop or enhance
our products or services. In addition, we may be unable to take advantage of
business opportunities or respond to competitive pressures. Any of these events
could have a material and adverse effect on our business, results of operations
and financial condition.
Impact of the Year 2000
Many currently installed computer systems and software products are coded
to accept or recognize only two digit entries in the date code field. These
systems may recognize a date using "00" as the year 1900 rather than the year
2000. As a result, computer systems and/or software used by many companies and
governmental agencies may need to be upgraded to comply with Year 2000
requirements or risk system failure or miscalculations causing disruptions of
normal business activities.
State of Readiness. The two third-party vendors upon which we materially
rely are Hurricane Electric Internet Services, Inc., which hosts our Web site on
their equipment and provides our connection to the Internet and DigitalRiver,
Inc., which hosts the downloading of software from our Web site. We have sought
confirmation from both Hurricane Electric Internet Services, Inc. and
DigitalRiver, Inc., that their systems are Year 2000 compliant and both
Hurricane Electric Internet Services, Inc. and DigitalRiver, Inc. have confirmed
that their systems are Year 2000 compliant. We have conducted an internal
assessment of all material information technology and non-information technology
systems at our headquarters. We have determined that all such systems are Year
2000 complaint and in some cases, have upgraded software in order to assure Year
2000 compliance. As of the date hereof, we believe that all
21
<PAGE>
material information technology and non-information technology systems at our
headquarters are Year 2000. The cost of upgrading software packages has been not
significant.
Our Products. We have conducted an internal assessment on all our
products, and have determined that our products are all Year 2000 compliant.
With regard to Year 2000 compliance, our products fall into one of two
categories, that is, products which are "not sensitive" to Year 2000 compliance
issues since they do not use, process or store any date information and those
products which do utilize date information. Our products which are "sensitive"
to date information do not rely upon a two-digit field to represent the year and
thus, will not have problems processing dates after January 1, 1999. We have
tested all such products and determined that all versions of our products which
have been released for sale since January 1, 1998 are Year 2000 compliant. The
following table shows which of our products are "not sensitive" to date
information and which products are "sensitive" and have been tested for Year
2000 compliance.
DropStuff for Mac not sensitive
DropStuff for Windows not sensitive
StuffIt Expander not sensitive
Expander/Windows not sensitive
Private File Mac/Windows not sensitive
InstallerMaker Year 2000 compliant
Spring Cleaning not sensitive
StuffIt Deluxe not sensitive
StuffIt Lite not sensitive
StuffIt Engine not sensitive
Aladdin FlashBack Year 2000 compliant
ShrinkWrap Year 2000 compliant
Costs. To date, we have not incurred any material costs in identifying or
evaluating Year 2000 compliance issues. Most of our expenses have related to,
and are expected to continue to relate to, the upgrades or replacements, when
necessary, of software or hardware, as well as costs associated with time spent
by employees in the evaluation process and Year 2000 compliance matters
generally. We believe that the total expenses will not exceed $5,000. These
expenses are included in our capital expenditures budget and are not expected to
be material to our financial position or results of operations. Any addition,
unanticipated expenses, however, if higher than anticipated, could have a
material and adverse effect on our business, results of operations and financial
condition.
Risks. There can be no assurance that we will not discover Year 2000
compliance problems in our systems that will require substantial revisions or
replacements. In the event that the operational facilities that support our
business, or our Web-hosting facilities, are not Year 2000 compliant, we may be
unable to deliver goods or services to our customers and portions of our Web
site may become unavailable. In addition, there can be no assurance that
third-party software, hardware or services incorporated into our material
systems will not need to be revised or replaced, which could be time-
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consuming and expensive. Our inability to fix or replace third-party software,
hardware or services on a timely basis could result in lost revenues, increased
operating costs and other business interruptions, any of which could have a
material and adverse effect on our business, results of operations and financial
condition. Moreover, the failure to adequately address Year 2000 compliance
issues in our software, hardware or systems could result in claims of
mismanagement, misrepresentation or breach of contract and related litigation,
which could be costly and time-consuming to defend.
In addition, there can be no assurance that governmental agencies, utility
companies, Internet access companies and others outside our control will be Year
2000-compliant. The failure by these entities to be Year 2000-compliant could
result in a systemic failure beyond our control, including, for example, a
prolonged Internet, telecommunications or electrical failure, which could also
prevent us from delivering our services to our users, decrease the use of the
Internet or prevent users from accessing our services, any of which would have a
material and adverse effect on our business, results of operations and financial
condition.
Contingency Plan. In the event of a failure by any of our third party
vendors to fail to operate effectively after December 31, 1999, users may not be
able to access our Web site and may not be able to download copies of our retail
and shareware software. Our contingency plans in the event of such a situations
calls for timely replacement of any of our material third party vendors who fail
to operate effectively after the Year 2000.
If our present efforts to address the Year 2000 compliance issues
discussed above are not successful, or if distributors, suppliers and other
third parties with which we conduct business do not successfully address such
issues, our users could seek alternate suppliers of our products and services.
Any material Year 2000 problem could require us to incur significant
unanticipated expenses to remedy and could divert our management's time and
attention, either of which could have a material and adverse effect on our
business, operating results and financial condition.
This is a Year 2000 readiness disclosure statement within the meaning of
the Year 2000 Information and Readiness Disclosure Act (P.L. 105-271).
Effects of Inflation
Due to relatively low levels of inflation in 1997 and 1998, inflation has
not had a significant effect on our results of operations since inception.
ITEM 3. DESCRIPTION OF PROPERTIES
Our executive offices, comprising approximately 12,000 square feet, are
located at 165 Westridge Drive, Watsonville, California 95076. Our subsidiaries,
Aladdin Systems, Inc. and Transactions Services, Inc. are housed in the same
location. These facilities are leased pursuant to a lease expiring in the year
2001. The monthly rent is $13,719. Our leased space is currently adequate for
our needs.
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<PAGE>
We maintain substantially all of our computer systems at our offices . See
"Part 1, Item 1. Business--Operations and Systems." Our operations are dependent
in part on our ability to protect our computer systems against physical damage
from fire, floods, earthquakes, power loss, telecommunications failures,
break-ins or other similar events. Furthermore, despite our implementation of
network security measures, our servers are also vulnerable to computer viruses,
break-ins and similar disruptive problems. The occurrence of any of these events
could result in interruptions, delays or cessations in service to our users
which could have a material adverse effect on our business, results of
operations and financial condition.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of October 31, 1999, the ownership of
our common stock by (i) each of our directors and executive officers; (ii) all
of our executive officers and directors as a group; and (iii) all persons known
by us to beneficially own more than 5% of our common stock.
Unless otherwise indicated in the footnotes to the table, (1) the
following individuals have sole voting and sole investment control with respect
to the shares they beneficially own and (2) the address of each beneficial owner
listed below is c/o 165 Westridge Drive, Watsonville, CA 95076.
<TABLE>
<CAPTION>
NAME AND ADDRESS AMOUNT AND NATURE PERCENT OF
OF BENEFICIAL OWNER OF BENEFICIAL OWNERSHIP CLASS (1)
EXECUTIVE OFFICERS AND DIRECTORS (1)
- ------------------------------------------- ----------------------- -------
<S> <C> <C>
Jonathan Kahn (2) 1,186,098 12.97%
David Schargel 1,013,469 11.08%
Darryl Lovato (3) 1,157,857 12.66%
Brad Peppard (4) 31,605 nil
Benna Lovato 1,033,558 11.30%
Paul Goodman -- --
- ------------------------------------------- ----------------------- -------
All directors and executive officers
as a group (6 Persons) 4,422,587 38.37%
- ------------------------------------------- ----------------------- -------
OTHER 5% STOCKHOLDERS (1):
- ------------------------------------------- ----------------------- -------
Marco Gonzalez 680,680 7.44%
</TABLE>
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<PAGE>
(1) Calculated pursuant to Rule 13d-3(d) of the Exchange Act. Under Rule
13d-3(d), shares not outstanding which are subject to options, warrants, rights
or conversion privileges exercisable within 60 days are deemed outstanding for
the purpose of calculating the number and percentage owned by such person, but
are not deemed outstanding for the purpose of calculating the percentage owned
by each other person listed.
(2) Includes 119,020 shares of Common Stock subject to options that are
exercisable within 60 days of the date hereof.
(3) Includes 124,299 shares of Common Stock subject to options that are
exercisable within 60 days of the date hereof.
(4) Includes 31,606 shares of Common Stock subject to options that are
exercisable within 60 days of the date hereof.
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
The following table sets forth the names and positions of our directors
and executive officers:
NAME AGE POSITION
- --------------------------- --- ------------------------------------
Jonathan Kahn 41 Chairman, Chief Executive Officer,
Treasurer and Director
- --------------------------- --- ------------------------------------
Darryl Lovato (1) 33 President, Chief Technology Officer
and Director
- --------------------------- --- ------------------------------------
David Schargel (2)(3) 34 Director
- --------------------------- --- ------------------------------------
Paul Goodman (2)(3) 40 Director
- --------------------------- --- ------------------------------------
Brad Peppard (2)(3) 43 Director
- --------------------------- --- ------------------------------------
Benna Lovato (1) 33 Secretary
- --------------------------- --- ------------------------------------
(1) Darryl Lovato and Benna Lovato are married
(2) Member of the Compensation Committee
(3) Member of the Audit Committee
The following sets forth biographical information concerning our directors
and executive officers for at least the past five years:
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JONATHAN KAHN is currently Chairman and CEO of Aladdin. Mr. Kahn is one of
the original founders of Aladdin Systems and has served as a Director since
1988. Prior to becoming CEO in 1997, he served as President, and Vice President
of Sales. Mr. Kahn has extensive expertise in software industry sales,
marketing, business development and licensing arrangements. Mr. Kahn is a
graduate of the University of Rhode Island with a B.A. in Economics.
BRAD PEPPARD has been President of Lime Tree Productions, Inc., a boutique
consulting firm providing marketing and research consulting services to high
tech companies. Mr. Peppard served as Vice President of Marketing at Aladdin
Systems from 1996 through 1998. In 1998, Mr. Peppard became a Director of
Aladdin. Prior to joining Aladdin, Mr. Peppard was responsible for worldwide
marketing at Quarterdeck Office Systems, during which time the company grew from
$20 million to $120 million in revenue. Prior to 1993, he was also Vice
President of Marketing at Software Publishing Corporation, a pioneer in both
high-tech direct marketing and Internet electronic marketing, Mr. Peppard was
President and founder of SoftMail Corporation, one of the leading direct
marketing agencies in the country, as well as president of Monogram Software.
Mr. Peppard has an MBA from Stanford University and a B.A. from Amherst College.
DARRYL LOVATO has been President and Chief Technology Officer of Aladdin
since 1997. Mr. Lovato is a co-founder of Aladdin Systems and has been
responsible for overseeing the Company's technical operations and leading
research on new technologies and products. Mr. Lovato has served as a Director
since the company's founding in 1988. Prior to holding his current title, Mr.
Lovato was Aladdin's Vice President and Chief Technology Officer. Prior to
co-founding Aladdin, Mr. Lovato worked at Apple Computer as a Senior Software
Engineer. Mr. Lovato has over fifteen-years of software programming and
development experience.
DAVID SCHARGEL is the Chairman and President of Aportis Technologies
Corp., a leader in software for carryable and wearable computers (focusing on
Palm Pilot and Window CE computers), which he founded in 1997. Mr. Schargel is
one of the co-founders of Aladdin and served as its President from 1988 to 1994.
Mr. Schargel has served as a Director since 1988. From 1994 through 1997, he
performed various executive roles at Aladdin. Prior to co-founding Aladdin, Mr.
Schargel was Vice President at Olduvai Corporation, a publisher of software for
the Macintosh computer and also had served as Technical Editor at MacUser
Magazine. Mr. Schargel has extensive experience in software product management
and marketing.
PAUL GOODMAN since 1987 has been a partner in the New York City law firm
of Elias, Goodman Shanks & Zizmor, LLP where he concentrates on representing
software and Web companies in a wide range of business and financing
transactions. He has represented Aladdin since its inception. In addition to a
Juris Doctor degree, Mr. Goodman hold a BA and MA degree in Computer Science,
was a former member of the Computer Science faculty of Queens College, is the
author of five books on microcomputer programming and is the editor and
publisher of WebLegalGuide.com, a legal resource for companies involved in the
Web industry.
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BOARD OF DIRECTORS
All directors hold office until the next annual meeting of shareholders
following their election or until their successors have been elected and
qualified. Executive officers are appointed by and serve at the pleasure of the
Board of Directors. We may adopt provisions in our By-laws and/or Articles of
Incorporation to divide the board of directors into more than one class and to
elect each class for a certain term. These provisions may have the effect of
discouraging takeover attempts or delaying or preventing a change of control of
Aladdin.
BOARD COMMITTEES
The Compensation Committee of the Board of Directors determines the
salaries and incentive compensation of our officers and provides recommendations
for the salaries and incentive compensation of our other employees. The
compensation committee also administers our Stock Option Plan. The current
members of the Compensation Committee are Messrs. Peppard, Schargel and Goodman.
See "Compensation Committee Interlocks and Insider Participation."
The Audit Committee of the Board of Directors reviews, acts on and reports
to the Board of Directors with respect to various auditing and accounting
matters, including the selection of our independent auditors, the scope of the
annual audits, fees to be paid to the auditors, the performance of our
independent auditors and our accounting practices. The current members of the
audit committee are Messrs. Kahn, Goodman and Schargel.
The Finance Committee of the Board of Directors reviews, acts on and
reports to the Board of Directors with respect to various financing matters. The
current members of the audit committee are Messrs. Kahn, Goodman and Schargel.
The Board of Directors does not have a nominating committee.
DIRECTORS' COMPENSATION
Directors who are also employees of Aladdin receive no compensation for
serving on the Board of Directors. With respect to directors who are not
employees ("Non-Employee Directors"), we intend to reimburse such directors for
all travel and other expenses incurred in connection with attending meetings of
the Board of Directors and any committees of the Board. Non-Employee Directors
are also eligible to receive and have received grants of non-qualified stock
options under our Stock Option Plan, and we intend to establish a Non-Employee
Director Stock Option Plan which will provide for initial option grants of a
fixed number of shares of our common stock to Non-Employee Directors and
successive annual option grants to such Non-Employee Directors covering an
additional fixed number of shares to provide us with an effective way to recruit
and retain qualified individuals to serve as members of the Board of Directors.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
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We did not have a Compensation Committee or other committee of the Board
of Directors performing similar functions during the fiscal years ending
December 31, 1997 and 1998. Messrs. Kahn and Lovato are each officers of Aladdin
and, as members of the Board of Directors, participated in deliberations of the
Board of Directors relating to the compensation of our executive officers. The
Board of Directors established a Compensation Committee as of October, 1999. See
"Board Committees."
ITEM 6. EXECUTIVE COMPENSATION
COMPENSATION SUMMARY
The following table sets forth the compensation awarded or paid to, or
earned by, our Chief Executive Officer and all our other executive officers who
earned in excess of $100,000 in salary and bonus (collectively the "Named
Executives") for services rendered to us during the year ended December 31,
1998:
SUMMARY COMPENSATION TABLE (1)(2)
ANNUAL COMPENSATION LONG-TERM COMPENSATION
------------------------- -------------------------
SALARY ($) OTHER ($) NUMBER OF SECURITIES
UNDERLYING OPTIONS (#)(3)
NAME AND
PRINCIPAL
POSITION
Jonathan Kahn, CEO
1998 $126,526 0 89,286
1997 $111,065 $6,000(4) 188,844
1996 $79,717 $106,232(4) 0
Darryl Lovato,
President and Chief
Technology Officer
1998 $126,526 0 89,286
1997 $111,065 $17,339(4) 188,844
1996 $75,327 $103,178(4) 0
(1) Information set forth herein includes services rendered by the named
executives while employed by Aladdin Systems prior to the reorganization and by
Aladdin following the Reorganization.
(2) The columns for "Bonus", "Other Annual Compensation", "Restricted
Stock Awards", "LTP Payouts" and "All other Compensation" have been omitted
because there is no compensation required to be reported.
(3) Represents options granted to such executives during 1998 by Aladdin
Systems, Inc. prior to the Reorganization, expressed as converted to options to
purchase the shares of Registrant (adjusted to reflect the 1.580827 conversion
factor applied upon the Reorganization). Subject to the terms of the
Reorganization
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Agreement, the conversion factor applied to the options is subject to certain
adjustments as set forth in Part 1, Item 1 "Description of Business".
(4) Represents distributions made to such named executives in connection
with their ownership of stock in Aladdin Systems, Inc.
The following table sets forth certain information concerning options
granted to the named executives during 1998.
OPTION GRANTS DURING YEAR ENDED DECEMBER 31, 1998 (1)
Number of % of Total Exercise Expiration
Securities Options Price Per Date(5)
Underlying Granted to Share
Options Employee ($/SH)(4)
Granted (2) In 1998 (3)
NAME
Jonathan
Kahn 89,286 33.9% 1.21 October, 2007
Darryl
Lovato 89,286 33.9% 1.21 October, 2007
(1) No SARs were granted to the Named Executives during 1998.
(2) Each option represents the right to purchase one share of our common
stock (adjusted to reflect the 1.580827 conversion factor applied upon the
Reorganization). Subject to the terms of the Reorganization Agreement, the
conversion factor applied to the options is subject to certain adjustments as
set forth in Part 1, Item 1 "Description of Business.
(3) In 1998, we granted officers, employees and consultants options to
purchase an aggregate of 263,602 shares of our common stock (adjusted to reflect
the 1.580827 conversion factor applied upon the Reorganization). Subject to the
terms of the Reorganization Agreement, the conversion factor applied to the
options is subject to certain adjustments as set forth in Part 1, Item 1
"Description of Business.
(4) The fair market value of our common stock on the date of grant for
each of the listed options, as determined by our board of directors, was $1.10
per share (adjusted to reflect the 1.580827 conversion factor applied upon the
Reorganization). Subject to the terms of the Reorganization Agreement, the
conversion factor applied to the options is subject to certain adjustments as
set forth in Part 1, Item 1 "Description of Business".
(5) Options may terminate before their expiration dates if the optionee's
status as an employee or consultant is terminated or upon the optionee's death
or disability.
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OPTION EXERCISES AND YEAR-END OPTION VALUES
The following table sets forth certain information with respect to the
named executives concerning exercisable and unexercisable stock options held by
them as of December 31, 1998. None of these executive officers exercised options
to purchase common stock in 1998.
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<PAGE>
AGGREGATE OPTION EXERCISES IN 1998 AND YEAR END OPTION VALUES (1)
<TABLE>
<CAPTION>
Name Number of Unexercised Value of Unexercised In-the-
Options at Year End(#) Money Options at Year End (2)
--------------------------- ----------------------------
Exercisable Unexercisable Exercisable Unexercisable
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
Jonathan Kahn 136,509 141,716 $150,159 $155,887
Darryl Lovato 131,766 141,716 $144,942 $155,887
</TABLE>
(1) No SARs were owned or exercised by any of the Named Executives during
1998.
(2) Based on a per share fair market value of our common stock equal to
$1.10 per share, the fair market value as determined by our Board of Directors
at December 31, 1998 (adjusted to reflect the 1.580827 conversion factor applied
upon the Reorganization). Subject to the terms of the Reorganization Agreement,
the conversion factor applied to the options is subject to certain adjustments
as set forth in Part 1, Item 1 "Description of Business".
EMPLOYMENT AGREEMENTS AND TERMINATION OF EMPLOYMENT AND CHANGE OF CONTROL
ARRANGEMENTS
On October 25, 1999 we entered into an employment agreement with Jonathan
Kahn (the "Kahn Employment Agreement"). Under the Kahn Employment Agreement,
Jonathan Kahn is to serve as our Chief Executive Officer and perform such duties
as may be reasonably assigned to him by the Board of Directors. The Kahn
Employment Agreement provides for an annual base salary of $150,000.00. The Kahn
Employment Agreement also provides that Jonathan Kahn is to receive options to
purchase shares of our Common stock in an amount as to be determined, from time
to time, by the Board of Directors of the Company, and that he is eligible to
receive vacation in accordance with the Company's policies. He is also eligible
to participate in the health, life insurance, medical, retirement and other
benefit programs which we may offer from time to time.
The term of the Kahn Employment Agreement lasts until September 30, 2002
unless terminated pursuant to the terms thereof. We may terminate the Kahn
Employment Agreement only for cause. The term "cause" is defined in the Kahn
Employment Agreement as: (i) the willful neglect of duties reasonably assigned
by the Board of Directors; (ii) material breach of the agreement; or (iii)
willful gross misconduct. If Jonathan Kahn is terminated without cause or in the
event of a change of control of the Company, defined as a change in control of
at least 40% of the voting equal to: (i) the base salary; (ii) bonus
compensation; (iii) vested options to purchase Common stock; (iv) health
insurance; and (v) any unused vacation time. The change of control provision in
the employment agreement was not triggered by the recent Reorganization with
Foreplay Golf Travel & Tours, Inc. If Jonathan Kahn resigns from his position
for good cause, including a substantial reduction in his position, duties or a
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material breach of the agreement by us, he is to be deemed terminated without
cause and is eligible to receive severance.
On October 25, 1999 we entered into an employment agreement with Darryl
Lovato (the "Lovato Employment Agreement"). Under the Lovato Employment
Agreement, Darryl Lovato is to serve as our President and Chief Technology
Officer and perform such duties as may be reasonably assigned to him by the
Board of Directors. The Lovato Employment Agreement provides for an annual base
salary of $150,000.00. The Lovato Employment Agreement also provides that Darryl
Lovato is to receive options to purchase shares of our Common stock, in an
amount as to be determined, from time to time, by the Board of Directors of the
Company, and that he is eligible to receive vacation in accordance with the
Company's policies. He is also eligible to participate in the health, life
insurance, medical, retirement and other benefit programs which we may offer
from time to time.
The term of the Lovato Employment Agreement lasts until September 30, 2002
unless terminated pursuant to the terms thereof. We may terminate the Lovato
Employment Agreement only for cause. The term "cause" is defined in the Lovato
Employment Agreement as: (i) the willful neglect of duties reasonably assigned
by the Board of Directors; (ii) material breach of the agreement; or (iii)
willful gross misconduct. If Darryl Lovato is terminated without cause or in the
event of a change of control of the Company, defined as a change in control of
at least 40% of the voting shares of the Company, he is to receive severance pay
through September 30, 2002 equal to: (i) the base salary; (ii) bonus
compensation; (iii) vested options to purchase Common stock; (iv) health
insurance; and (v) any unused vacation time. The change of control provision in
the employment agreement was not triggered by the recent Reorganization with
Foreplay Golf Travel & Tours, Inc. If Darryl Lovato resigns from his position
for good cause, including a substantial reduction in his position, duties or a
material breach of the agreement by us, he is to be deemed terminated without
cause and is eligible to receive severance.
EMPLOYEE BENEFIT PLANS
Stock Option Plan
Our Stock Option Plan (the "Plan") was adopted by the Board of Directors,
and ratified and approved by our stockholders, as of the closing of the
Reorganization. The following description of our Stock Option Plan is a summary
and qualified in its entirety by the text of the plan, which is filed as an
exhibit to this Registration Statement.
The purpose of the Plan is to enhance our profitability and stockholder
value by enabling us to offer stock based incentives to employees, directors and
consultants. The Plan authorizes the grant of options to purchase shares of
common stock to employees, directors and consultants of Aladdin and its
affiliates. Under the Plan, we may grant incentive stock options within the
meaning of Section 422 of the Internal Revenue Code of 1986 and non-qualified
stock options. Incentive stock options may only be granted our employees.
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The number of shares available for options under the Plan is 3,000,000.
The Plan is administered by the Compensation Committee of the board. Subject to
the provisions of the Plan, the Compensation Committee has authority to
determine the employees, directors and consultants of Aladdin who are to be
awarded options and the terms of such awards, including the number of shares
subject to such option, the fair market value of the common stock subject to
options, the exercise price per share and other terms.
Incentive stock options must have an exercise price equal to at least 100%
(110% if the grant is to a stockholder holding more than 10% of our voting
stock) of the fair market value of a share on the date of the award and
generally cannot have a duration of more than 10 years (five years if the grant
is to a stockholder holding more than 5% of our voting stock). Terms and
conditions of awards are set forth in written agreements between Aladdin and the
respective option holders. Awards under the Plan may not be made after the tenth
anniversary of the date of its adoption but awards granted before that date may
extend beyond that date.
If the employment with Aladdin of the holder of an incentive stock option
is terminated for any reason other than as a result of the holder's death or
disability or for "cause" as defined in the Plan, the holder may exercise the
option, to the extent exercisable on the date of termination of employment,
until the earlier of the option's specified expiration date and 30 days after
the date of termination. If an option holder dies or becomes disabled, both
incentive and non-qualified stock options may generally be exercised, to the
extent exercisable on the date of death or disability, by the option holder or
the option holder's survivors until the earlier of the option's specified
termination date and one year after the date of death or disability.
As of October 31, 1999, 12,086 shares had been issued as the result of the
exercise of options previously granted under the Plan, 1,669,239 shares were
subject to outstanding options and 1,330,761 shares were available for future
grants. The exercise prices of the outstanding options ranged from $1.10 to
approximately $1.90. The options under the Plan vest over varying lengths of
time pursuant to various option agreements that we have entered into with the
grantees of such options.
We have not registered the Plan, or the shares subject to issuance
thereunder, pursuant to the Securities Act. Absent registration, such shares,
when issued upon exercise of options, would be "restricted securities" as that
term is defined in Rule 144 under the Securities Act.
Optionees have no rights as stockholders with respect to shares subject to
options prior to the issuance of shares pursuant to the exercise thereof.
Options issued to employees under the Plan shall expire no later than ten years
after the date of grant. An option becomes exercisable at such time and for such
amounts as determined at the discretion of the Board of Directors or the
Compensation Committee at the time of the grant of the option. An optionee may
exercise a part of the option from the date that part first becomes exercisable
until the option expires. The purchase price for shares to be issued to an
employee upon his exercise of an option is determined by the Board of Directors
or the Compensation Committee on the date the option is granted. The
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<PAGE>
purchase price is payable in full in cash, by promissory note, by net exercise
or by delivery of shares of our Common stock when the option is exercised.
The Plan provides for adjustment as to the number and kinds of shares
covered by the outstanding options and the option price therefor to give effect
to any stock dividend, stock split, stock combination or other reorganization of
or by Aladdin.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
STOCK OPTION PLAN. In 1997, Jonathan Kahn and Darryl Lovato received
options to purchase up to 119,500 and 119,938 shares of Common Stock,
respectively, with exercise prices of $1.87 to $1.91 per share and $1.74 to
$1.91 per share, respectively. These options vest in 48 monthly installments.
In 1998, Jonathan Kahn and Darryl Lovato each received options to purchase
up to 56,500 shares of Common Stock, respectively, with exercise prices of $1.91
per share. These options vest in 48 monthly installments.
In 1999, Brad Peppard received options to purchase up to 20,000 shares of
Common Stock, with exercise prices of $2.50 per share. These options vest in 48
monthly installments.
The foregoing number of shares for which options have been granted prior
to the Reorganization represents shares of Aladdin Systems Common Stock and are
not shown as adjusted to reflect the 1.580287 for 1 conversion ratio applied to
shares of Aladdin Systems Common Stock at the time of the reorganization
REORGANIZATION. In October, 1999, Aladdin Systems, Inc. entered into the
Reorganization with a non-operating public company, Foreplay Golf & Travel
Tours, Inc., a Nevada corporation incorporated on March 26, 1997 ("FGT"). Under
the Reorganization Agreement, the Aladdin Systems stockholders received 1.580287
shares of FGT Common Stock in exchange for each of their shares of Aladdin
Systems, Inc. Common Stock . Additionally, the holders of options to purchase
shares of Common stock of Aladdin Systems, Inc. terminated their options and
received options to purchase shares of Common Stock of FGT. As a result of the
Reorganization, Aladdin Systems, Inc. became a wholly-owned subsidiary of FGT.
FGT adopted the Aladdin Systems, Inc. Stock Option Plan. An aggregate of
7,441,628 shares of Common Stock and options to purchase an aggregate of
1,669,239 shares of Common Stock were issued to the former Aladdin Systems, Inc.
stockholders and option holders, respectively, in the Reorganization and the
Aladdin Systems, Inc. stockholders owned approximately 81.4% of FGT immediately
after the Reorganization. As part of the Reorganization, all of the executive
officers and directors of FGT resigned and the executive officers and directors
of Aladdin Systems became the executive officers and directors of FGT which
changed its name to Aladdin Systems Holdings, Inc.
BAYTREE CAPITAL ASSOCIATES, LLC. In July, 1999 Aladdin Systems, Inc.
entered into an agreement with Baytree Capital Associates, LLC which we assumed
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<PAGE>
after the Reorganization. Under the agreement, Baytree provided financial
consulting and assistance to Aladdin Systems, Inc. which included the
identification of a merger candidate and the assistance with the Reorganization.
For their services, Baytree received 50,000 shares of our Common Stock and was
paid $20,000 plus $10,000 in non-accountable expense reimbursement. In addition,
Baytree has been granted an 18 month right of first refusal with respect to any
subsequent financings.
ITEM 8. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The descriptions in this Item and in other sections of this Registration
Statement of our securities and various provisions of our Articles of
Incorporation and our Bylaws are summaries. Since this is a summary, statements
contained in this Registration Statement relating to such provisions may not
contain all information relevant to investors. Reference is hereby made to the
Articles of Incorporation and Bylaws, copies of which have been filed with the
SEC as exhibits to this Registration Statement, and provisions of applicable
law.
Our authorized capital stock consists of 50,000,000 shares of common
stock, par value $.001 per share, and 1,000,000 shares of Preferred Stock, par
value $.001. As of October 31, 1999, 9,141,628 shares of our common stock were
issued and outstanding and 3,000,000 shares of common stock were reserved for
issuance upon exercise of options issuable under our stock option plan. Only our
common stock is being registered under the Exchange Act pursuant to this
Registration Statement. As of August 30, 1999, no shares of our Preferred Stock
were issued and outstanding.
Description of Common Stock
The holders of our common stock are entitled to equal dividends and
distributions per share with respect to the common stock when, as and if
declared by the Board of Directors from funds legally available therefor. No
holder of any shares of our common stock has a preemptive right to subscribe for
any of our securities, nor are any common shares subject to redemption or
convertible into other of our securities. Upon liquidation, dissolution or
winding up of Aladdin, and after payment of creditors and preferred
stockholders, if any, the assets will be divided pro-rata on a share-for-share
basis among the holders of the shares of common stock. All shares of common
stock now outstanding are fully paid, validly issued and non-assessable.
Each share of common stock is entitled to one vote with respect to the
election of any director or any other matter upon which shareholders are
required or permitted to vote. Holders of the common stock do not have
cumulative voting rights, so the holders of more than 50% of the combined shares
voting for the election of directors may elect all of the directors if they
choose to do so, and, in that event, the holders of the remaining shares will
not be able to elect any members to the Board of Directors.
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Anti-Takeover Effects of Various Provisions of Nevada Law and Our Articles of
Incorporation and Bylaws
We are incorporated under the laws of the State of Nevada and are
therefore subject to various provisions of the Nevada corporation laws which may
have the effect of delaying or deterring a change in the control or management
of Aladdin.
Nevada's "Combination with Interested Stockholders Statute," Nevada
Revised Statutes 78.411-78.444, which applies to Nevada corporations like us
having at least 200 stockholders, prohibits an "interested stockholder" from
entering into a "combination" with the corporation, unless certain conditions
are met. A "combination" includes (a) any merger with an "interested
stockholder," or any other corporation which is or after the merger would be, an
affiliate or associate of the interested stockholder, (b) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of assets, in one
transaction or a series of transactions, to an "interested stockholder," having
(i) an aggregate market value equal to 5% or more of the aggregate market value
of the corporation's assets, (ii) an aggregate market value equal to 5% or more
of the aggregate market value of all outstanding shares of the corporation, or
(iii) representing 10% or more of the earning power or net income of the
corporation, (c) any issuance or transfer of shares of the corporation or its
subsidiaries, to the "interested stockholder," having an aggregate market value
equal to 5% or more of the aggregate market value of all the outstanding shares
of the corporation, (d) the adoption of any plan or proposal for the liquidation
or dissolution of the corporation proposed by the "interested stockholder," (e)
certain transactions which would have the effect of increasing the proportionate
share of outstanding shares of the corporation owned by the "interested
stockholder," or (f) the receipt of benefits, except proportionately as a
stockholder, of any loans, advances or other financial benefits by an
"interested stockholder." An "interested stockholder" is a person who (i)
directly or indirectly owns 10% or more of the voting power of the outstanding
voting shares of the corporation or (ii) an affiliate or associate of the
corporation which at any time within three years before the date in question was
the beneficial owner, directly or indirectly, of 10% or more of the voting power
of the then outstanding shares of the corporation.
A corporation to which the statute applies may not engage in a
"combination" within three years after the interested stockholder acquired its
shares, unless the combination or the interested stockholder's acquisition of
shares was approved by the Board of Directors before the interested stockholder
acquired the shares. If this approval was not obtained, then after the
three-year period expires, the combination may be consummated if all the
requirements in the Articles of Incorporation are met and either (a)(i) the
Board of Directors of the corporation approves, prior to such person becoming an
"interested stockholder," the combination or the purchase of shares by the
"interested stockholder" or (ii) the combination is approved by the affirmative
vote of holders of a majority of voting power not beneficially owned by the
"interested stockholder" at a meeting called no earlier than three years after
the date the "interested stockholder" became such or (b) the aggregate amount of
cash and the market value of consideration other than cash to be received by
holders of common shares and holders of any other class or series of shares
meets the minimum requirements set forth in Sections 78.411 through 78.443,
inclusive, and prior to the
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<PAGE>
consummation of the combination, except in limited circumstances, the
"interested stockholder" will not have become the beneficial owner of additional
voting shares of the corporation.
Nevada's "Control Share Acquisition Statute," Nevada Revised Statute
(S)78.378-78.379, prohibits an acquirer, under certain circumstances, from
voting shares of a target corporation's stock after crossing certain threshold
ownership percentages, unless the acquirer obtains the approval of the target
corporation's stockholders. The Control Share Acquisition Statute only applies
to Nevada corporations with at least 200 stockholders, including at least 100
record stockholders who are Nevada residents, and which do business directly or
indirectly in Nevada. While we do not currently exceed these thresholds, we may
well do so in the near future. In addition, although we do not presently "do
business" in Nevada within the meaning of the Control Share Acquisition Statute,
we may do so in the future. Therefore, it is likely that the Control Share
Acquisition Statute will apply to us in the future. The statute specifies three
thresholds: at least one-fifth but less than one-third, at least one-third but
less than a majority, and a majority or more, of all the outstanding voting
power. Once an acquirer crosses one of the above thresholds, shares which it
acquired in the transaction taking it over the threshold or within ninety days
become "Control Shares" which are deprived of the right to vote until a majority
of the disinterested stockholders restore that right. A special stockholders'
meeting may be called at the request of the acquirer to consider the voting
rights of the acquiror's shares no more than 50 days (unless the acquirer agrees
to a later date) after the delivery by the acquirer to the corporation of an
information statement which sets forth the range of voting power that the
acquirer has acquired or proposes to acquire and certain other information
concerning the acquirer and the proposed control share acquisition. If no such
request for a stockholders' meeting is made, consideration of the voting rights
of the acquiror's shares must be taken at the next special or annual
stockholders' meeting. If the stockholders fail to restore voting rights to the
acquirer or if the acquirer fails to timely deliver an information statement to
the corporation, then the corporation may, if so provided in its articles of
incorporation or bylaws, call certain of the acquiror's shares for redemption.
Our Articles of Incorporation and Bylaws do not currently permit us to call an
acquiror's shares for redemption under these circumstances. The Control Share
Acquisition Statute also provides that the stockholders who do not vote in favor
of restoring voting rights to the Control Shares may demand payment for the
"fair value" of their shares (which is generally equal to the highest price paid
in the transaction subjecting the stockholder to the statute).
Certain provisions of our Bylaws which are summarized below may affect
potential changes in control of Aladdin. The Board of Directors believes that
these provisions are in the best interests of stockholders because they will
encourage a potential acquirer to negotiate with the Board of Directors, which
will be able to consider the interests of all stockholders in a change in
control situation. However, the cumulative effect of these terms maybe to make
it more difficult to acquire and exercise control of Aladdin and to make changes
in management more difficult.
The Bylaws provide the number of directors of Aladdin shall be established
by the Board of Directors, but shall be no less than one. Between stockholder
meetings, the Board may appoint new directors to fill vacancies or newly created
directorships. A
37
<PAGE>
director may be removed from office by the affirmative vote of 66-2/3% of the
combined voting power of the then outstanding shares of stock entitled to vote
generally in the election of directors.
The Bylaws further provide that stockholder action may be taken at a
meeting of stockholders and may be effected by a consent in writing if such
consent is signed all of the holders of common stock.
We are not aware of any proposed takeover attempt or any proposed attempt
to acquire a large block of our common stock.
The provisions described above may have the effect of delaying or
deterring a change in the control or management of Aladdin.
Application of California GCL
Although we are incorporated in Nevada, our headquarters is in the State
of California. Section 2115 of the California GCL ("Section 2115") provides that
certain provisions of the California GCL shall be applicable to a corporation
organized under the laws of another state to the exclusion of the law of the
state in which it is incorporated, if the corporation meets certain tests
regarding the business done in California and the number of its California
stockholders.
An entity such as us can be subject to Section 2115 if the average of the
property factor, payroll factor and sales factor deemed to be in California
during its latest full income year is more than 50 percent and more than
one-half of its outstanding voting securities are held of record by persons
having addresses in California. Section 2115 does not apply to corporations with
outstanding securities listed on the New York or American Stock Exchange, or
with outstanding securities designated as qualified for trading as a national
market security on NASDAQ, if such corporation has at least 800 beneficial
holders of its equity securities. Since the average of our property factor,
payroll factor and sales factor deemed to be in California during our latest
fiscal year was almost 100%, and over 75% of our outstanding voting securities
are held of record by persons having addresses in California, and our securities
do not currently qualify as a national market security on NASDAQ, we are subject
to Section 2115.
During the period that we are subject to Section 2115, the provisions of
the California GCL regarding the following matters are made applicable to the
exclusion of the law of the State of Nevada: (i) general provisions and
definitions; (ii) annual election of directors; (iii) removal of directors
without cause; (iv) removal of directors by court proceedings; (v) filling of
director vacancies where less than a majority in office were elected by the
stockholders; (vi) directors' standard of care; (vii) liability of directors for
unlawful distributions; (viii) indemnification of directors, officers and
others; (ix) limitations on corporate distributions of cash or property; (x)
liability of a stockholder who receives an unlawful distribution; (xi)
requirements for annual stockholders meetings; (xii) stockholders' right to
cumulate votes at any election of directors; (xiii) supermajority vote
requirements; (xiv) limitations on sales of assets; (xv) limitations on mergers;
(xvi) reorganizations; (xvii) dissenters' rights in connection with
38
<PAGE>
reorganizations; (xviii) required records and papers; (xix) actions by the
California Attorney General; and (xx) rights of inspection.
PART II
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS
No shares of our common stock have previously been registered with the
SEC. Our common stock has been trading on the National Association of Security
Dealers Over-The-Counter Market Bulletin Board ("OTCBB") since June 10, 1998
first under the symbol "FLGA" and after October 25, 1999 had traded under the
symbol "ALHIE". There has never been an active trading market for the securities
of this Company.
As of September 30, 1999 there were approximately 50 holders of record of
our common stock, which figure does not take into account those stockholders
whose certificates are held in the name of broker-dealers or other nominees.
Dividend Policy
We do not anticipate that we will pay cash dividends or make distributions
in the foreseeable future. We currently intend to retain and invest future
earnings to finance our operations.
Transfer Agent
Our transfer agent for our common stock is Pacific Stock Transfer, 5844
South Pecos Road, Suite D, Las Vegas, Nevada 89120.
ITEM 2. LEGAL PROCEEDINGS
There is presently one pending legal proceedings to which we are a party.
In James E. Grimes Company, Inc. v. Aladdin Systems, Inc., Superior Court of the
State of California, Sacramento County, Case No, 99AS02616, James E. Grimes
Company, Inc. ("Grimes") has alleged that Aladdin is indebted to Grimes in the
amount of $122,047.14 for goods and services allegedly provided to Aladdin by
Grimes. We have answered the Complaint and we believe that Grimes's claims are
without merit and intend to defend our position vigorously. Notwithstanding the
foregoing, Aladdin has agreed to settle such litigation for the amount of
$75,000.00 rather then incur the potential costs of defending this litigation.
Subsequent to the commencement of this action by Grimes in May, 1999, Grimes
filed for bankruptcy and the settlement of the action is subject to the approval
of the bankruptcy court. As a condition of the settlement, Aladdin shall receive
a full release of all potential claims that Grimes may have against Aladdin.
To the best of our knowledge, there are presently no other legal
proceedings to which we or any of our subsidiaries is a party or to which any of
our property is subject
39
<PAGE>
and, to the best of its knowledge, no such actions against us are contemplated
or threatened.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES
Set forth in chronological order is information regarding shares of common
stock issued and options and warrants and other convertible securities granted
by us during the past three years. Also included is the consideration, if any,
received by us for such shares and options and information relating to the
section of the Securities Act, or rule of the SEC under which exemption from
registration was claimed.
Transactions described in Items (1) through (5) below refer to the
securities of Aladdin Systems, Inc., a Delaware corporation which was the
predecessor entity of the filer of this Registration Statement, and transactions
described in Items (6) through (9) below refer to the securities of Aladdin
Systems Holdings, Inc., a Nevada corporation which is the filer of this
Registration Statement.
Unless otherwise indicated, information in this Item 10 regarding shares
of our Common Stock reflect the 1.580287 for 1 conversion ratio applied to
shares of Aladdin Systems, Inc. Common Stock at the time of the reorganization.
The conversion ratio is subject to certain adjustments as set forth in Part 1,
Item 1 "Description of Business".
(1) In 1997, we issued options to purchase up to 1,400,595 shares of
Common Stock 20 employees and 5 directors of the Company with an exercise price
of $1.70 to $1.74 per share pursuant to the Company's Stock Option Plan. These
issuances were made in reliance on Section 4(2) of the Securities Act and/or
Rule 701 promulgated under the Securities Act and were made without general
solicitation or advertising. The purchasers were sophisticated investors with
access to all relevant information necessary to evaluate these investments, and
who represented to the Company that the shares were being acquired for
investment.
(2) In 1998, we issued options to purchase up to 245,900 shares of Common
Stock to 24 employees of the Company with an exercise price of $1.74 to $1.91
per share pursuant to the Company's Stock Option Plan. These issuances were made
in reliance on Section 4(2) of the Securities Act and/or Rule 701 promulgated
under the Securities Act and were made without general solicitation or
advertising. The purchasers were sophisticated investors with access to all
relevant information necessary to evaluate these investments, and who
represented to the Company that the shares were being acquired for investment.
(3) In from January 1, 1999 through October 24, 1999, we issued options to
purchase up to 168,850 shares of Common Stock to 15 employees and 1 consultant
of
40
<PAGE>
the Company with an exercise price of $2.50 to $3.00 per share pursuant to the
Company's Stock Option Plan. These issuances were made in reliance on Section
4(2) of the Securities Act and/or Rule 701 promulgated under the Securities Act
and were made without general solicitation or advertising. The purchasers were
sophisticated investors with access to all relevant information necessary to
evaluate these investments, and who represented to the Company that the shares
were being acquired for investment.
(4) In 1998, we issued to Jonathan Kahn 3,204 shares of Common Stock in
exchange for converting an outstanding promissory note from the Company to
Jonathan Kahn in the amount of $6,327. The issuances were made in reliance on
Section 4(2) of the Securities Act of 1933 and/or Regulation D promulgated under
the Securities Act of 1933 and were made without general solicitation or
advertising. The purchaser was a sophisticated investors with access to all
relevant information necessary to evaluate these investments, and who
represented to the Company that the shares were being acquired for investment.
(5) In September, 1999, we issued the aggregate amount of 5,313 shares of
Common Stock upon the exercise of options to purchase Common Stock which were
granted to employees, directors and consultants of the Company between 1997 and
1998. The issuances were made in reliance on Section 4(2) of the Securities Act
of 1933 and/or Regulation D promulgated under the Securities Act of 1933 and
were made without general solicitation or advertising. The purchasers were
sophisticated investors with access to all relevant information necessary to
evaluate these investments, and who represented to the Company that the shares
were being acquired for investment.
(6) In October 1999, under the terms of the Reorganization, the Company
issued the aggregate amount of 7,441,628 shares of Common Stock to the
shareholders of Aladdin Systems Holdings in exchange for their shares of Common
Stock of Aladdin Systems, Inc. The number of shares of the Company issued to the
Aladdin Systems shareholders is subject to adjustment after closing, pursuant to
the terms of the Reorganization Agreement, to adjust for options issued to
employees of Aladdin Systems which had expired prior to the closing. The
issuances were made in reliance on Section 4(2) of the Securities Act and were
made without general solicitation or advertising. The purchasers were
sophisticated investors with access to all relevant information necessary to
evaluate these investments, and who represented to the Company that the shares
were being acquired for investment.
(7) In October 1999, under the terms of the Reorganization, the holders of
options to purchase Common Stock of Aladdin Systems, Inc., exchanged their
options for options to purchase the aggregate amount of 1,669,239 shares of
Common Stock of the Company. These issuances were made in reliance on Section
4(2) of the Securities Act and/or Rule 701 promulgated under the Securities Act
and were made without general solicitation or advertising. The purchasers were
sophisticated investors with access to all relevant information necessary to
evaluate these investments, and who represented to the Company that the shares
were being acquired for investment.
(8) In October 1999, pursuant to the terms of the Reorganization Agreement
with Foreplay Golf Travel & Tours, Inc., the Company conducted a private
offering of
41
<PAGE>
its Common stock. Pursuant to that offering, a total of 1,000,000 shares of
Common stock were sold for total cash consideration of $1,000,000. The issuances
were made in reliance on Section 4(2) of the Securities Act and/or Regulation D
promulgated under the Securities Act and were made without general solicitation
or advertising. The purchasers were sophisticated investors with access to all
relevant information necessary to evaluate these investments, and who
represented to the Company that the shares were being acquired for investment.
(9) In October 1999, the Company issued 50,000 shares of Common stock to
Baytree Capital Associates pursuant to the terms of a Letter Agreement with
Baytree Capital Associates for financial business consulting services. The
issuance was made in reliance on Section 4(2) of the Securities Act and/or
Regulation D promulgated under the Securities Act and was made without general
solicitation or advertising. The purchaser was a sophisticated investor with
access to all relevant information necessary to evaluate the investment, and who
represented to the Company that the shares were being acquired for investment.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The General Corporation Law of Nevada limits the liability of officers and
directors for breach of fiduciary duty except in certain specified
circumstances, and also empowers corporations organized under Nevada Law to
indemnify officers, directors, employees and others from liability in certain
circumstances such as where the person successfully defended himself on the
merits or acted in good faith in a manner reasonably believed to be in the best
interests of the corporation.
Our Articles of Incorporation, with certain exceptions, eliminate any
personal liability of a directors or officers to us or our stockholders for
monetary damages for the breach of such person's fiduciary duty, and, therefore,
an officer or director cannot be held liable for damages to us or our
stockholders for gross negligence or lack of due care in carrying out his (or
her) fiduciary duties as a director or officer except in certain specified
instances. We may also adopt by-laws which provide for indemnification to the
full extent permitted under law which includes all liability, damages and costs
or expenses arising from or in connection with service for, employment by, or
other affiliation with us to the maximum extent and under all circumstances
permitted by law.
There is no pending litigation or proceeding involving one of our
directors, officers, employees or other agents as to which indemnification is
being sought, and we are not aware of any pending or threatened litigation that
may result in claims for indemnification by any director, officer, employee or
other agent.
We have purchased directors and officers liability insurance to defend and
indemnify directors and officers who are subject to claims made against them for
their actions and omissions as directors and officers of Aladdin. The insurance
policy provides standard directors and officers liability insurance in the
amount of $1,000,000.
We intend to enter into indemnification agreements with our directors and
officers. These agreements will provide, in general, that we shall indemnify and
hold
42
<PAGE>
harmless such directors and officers to the fullest extent permitted by law
against any judgments, fines, amounts paid in settlement, and expenses
(including attorneys' fees and disbursements) incurred in connection with, or in
any way arising out of, any claim, action or proceeding (whether civil or
criminal) against, or affecting, such directors and officers resulting from,
relating to or in any way arising out of, the service of such persons as our
directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons pursuant to
the foregoing provisions or otherwise, we have has been advised that in the
opinion of the SEC, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable.
43
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44
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
ALADDIN SYSTEMS HOLDINGS, INC.
(Registrant)
Date: March 7, 2000 By: /s/ Jonathan Kahn
------------------------------------
Jonathan Kahn, Chief Executive
Officer and Treasurer
45
<PAGE>
46
<PAGE>
PART F/S
FINANCIAL STATEMENTS
Reference is made to the Financial Statements together with the notes
thereto and the report thereon from David Coffey, C.P.A. and Hutchinson &
Bloodgood, LLP appearing on pages F-1 through F-44 of this Form 10-SB.
(A) Index to Financial Statements
Notes to Proforma Combined Statements F-3
Proforma Combined Statement of Income
as of September 30, 1999 (unaudited) F-6
Proforma Combined Statement of Income
as of December 31, 1998 (unaudited) F-7
Proforma Combined Balance Sheet
as of September 30, 1999 (unaudited) F-8
Aladdin Systems, Inc. Balance Sheet
as of September 30, 1999 (unaudited) F - 13
Aladdin Systems, Inc. Statement of Income
as of September 30, 1999 (unaudited) F - 15
Aladdin Systems, Inc. Statement of Cash Flow
as of September 30, 1999 (unaudited) F - 16
Notes to September 30, 1999 Statements F - 17
Report of Independent Certified Public
Accountants, Hutchinson & Bloodgood, LLP F - 18
Aladdin Systems, Inc. Balance Sheet
as of December 31, 1998 and 1997 F - 19
Aladdin Systems, Inc. Statement of Income
as of December 31, 1998 and 1997 F - 21
Aladdin Systems, Inc. Statement of Cash Flow
as of December 31, 1998 and 1997 F - 22
Notes to Financial Statements F - 23
Foreplay Golf & Travel Tours, Inc.
Balance Sheet as of September 30, 1999 (unaudited) F - 31
Foreplay Golf & Travel Tours, Inc.
Statement of Operations as of September 30, 1999 (unaudited) F - 32
F-1
<PAGE>
Foreplay Golf & Travel Tours, Inc.
Statement of Cash Flows as of September 30, 1999 (unaudited) F - 33
Notes to September 30, 1999 Statements F - 34
Report of Independent Certified Public
Accountants, David Coffey, C.P.A. F - 35
Foreplay Golf & Travel Tours, Inc.
Statement of Operations as of December 31, 1998 F - 36
Foreplay Golf & Travel Tours, Inc.
Balance Sheet as of December 31, 1998 F - 37
Foreplay Golf & Travel Tours, Inc.
Statement of Changes in Stockholders Equity
as of December 31, 1998 F - 38
Foreplay Golf & Travel Tours, Inc.
Statement of Cash Flows as of December 31, 1998 F - 39
Notes to Financial Statements F - 40
Report of Independent Certified Public
Accountants, David Coffey, C.P.A. F - 41
Foreplay Golf & Travel Tours, Inc.
Balance Sheet as of December 31, 1997 F - 42
Foreplay Golf & Travel Tours, Inc.
Statement of Operations as of December 31, 1997 F - 43
Foreplay Golf & Travel Tours, Inc.
Statement of Changes in Stockholders Equity
as of December 31, 1997 F - 44
Foreplay Golf & Travel Tours, Inc.
Statement of Cash Flows as of December 31, 1997 F - 45
Notes to Financial Statements F - 46
F-2
<PAGE>
ALADDIN SYSTEMS HOLDINGS, INC.
(Formerly Foreplay Golf & Travel Tours, Inc.)
(A Nevada Corporation)
ALADDIN SYSTEMS HOLDINGS, INC.
(Formerly Foreplay Golf & Travel Tours, Inc.)
ALADDIN SYSTEMS, INC.
PROFORMA COMBINED BALANCE SHEET AND INCOME STATEMENTS
(Unaudited)
The following unaudited proforma combined balance sheet and statements of income
aggregates the balance sheet and statements of operations of Aladdin Systems
Holdings, Inc. formerly Foreplay Golf & Travel Tours, Inc. (Parent) (A Nevada
Corporation) as of September 30, 1999 and December 31, 1998, and the balance
sheet and statements of income of Aladdin Systems, Inc. (Subsidiary) (a Delaware
Corporation) as of September 30, 1999 and December 31, 1998 giving effect to a
transaction completed on October 25, 1999, wherein Parent acquired Subsidiary as
a wholly-owned subsidiary (the "Acquisition). This business combination will be
treated as a reverse acquisition and as a recapitalization of Subsidiary. Parent
will issued common stock in exchange for all of the issued and outstanding
shares of Subsidiary. The following proforma balance sheet and statements of
income uses the assumptions as described in the notes and the historical
financial information available at September 30, 1999 and December 31, 1998. The
financial statements of Parent at September 30, 1999 are unaudited with those at
December 31, 1998 being audited. The financial statements of Subsidiary at
September 30, 1999 are also unaudited with those at December 31, 1998 being
audited.
The unaudited proforma combined balance sheet and statements of income should be
read in conjunction with the separate financial statements and related notes
thereto of Parent and Subsidiary. The unaudited proforma condensed combined
balance sheet and statements of income are not necessarily indicative of the
condensed combined balance sheet and statements of income which might have
existed for the periods indicated or the results of operations as they may
appear now or in the future.
F-3
<PAGE>
ALADDIN SYSTEMS HOLDINGS, INC.
(Formerly Foreplay Golf & Travel Tours, Inc.)
ALADDIN SYSTEMS, INC.
PROFORMA COMBINED NOTES TO THE FINANCIAL STATEMENTS
(Unaudited)
ALADDIN SYSTEMS HOLDINGS, INC. (the Company) - (Formerly Foreplay Golf & Travel
Tours, Inc.) was incorporated under the laws of the State of Nevada on March 26,
1997. The Company was organized to conduct business in the travel industry. The
Company was unable to establish a relationship with an existing travel agent to
book airline travel and was unable to successfully launch its business. The
Company depleted its cash in connection with its attempted business endeavors
and had to discontinue all operations in early 1999.
ALADDIN SYSTEMS, INC. (ALADDIN) - Founded in 1988, Aladdin is a leading
Macintosh utility software company serving the transmission, access and
organization markets. During Aladdin's ten-year history, the company has
established worldwide channels of distribution and expanded its proprietary
compression standard, StuffIt, and established it as a recognizable Internet
brand. In 1998, Aladdin expanded the StuffIt product line into the Window
marketplace, making Aladdin a single source provider of compression software.
Proforma Adjustments - (1) The Company reverse split its common stock on a 2.2
to 1 basis and canceled 2,000 shares decreasing shares outstanding to 650,000
shares. (2) The Company sold 1,000,000 post-split shares of common stock for
$1.00 per share for $1,000,000. Costs of the offering were $35,000. (3) The
Company acquired all of the issued and outstanding shares of Aladdin in exchange
for 7,441,628 restricted shares of previously authorized but unissued shares of
its common stock. The business combination is a reverse acquisition and will be
treated as a recapitalization of Aladdin. As part of the acquisition 50,000
shares of common stock of the Company was issued to and investment banker. The
shares have been valued at $1.00 per share and treated as an expense of the
acquisition in these proforma financial statements. Also, as part of the
acquisition $30,000 was paid and has been treated as expenses of the
acquisition. Thus, acquisition expense was a total of $80,000 paid in cash and
stock (4) This is part of the recapitalization transaction and entry. It
eliminates the retained deficit of the Company accounting for the transaction as
if the shares were exchanged by Aladdin for the net assets of the Company.
Stock Option Plan - The Company has adopted, with the approval of its
stockholders, a Stock Option Plan (the "Plan"), pursuant to which it is
authorized to grant options to purchase up to 3,000,000 shares of common stock
to the Company's key employees, officers, directors, consultants, and other
agents and advisors. Awards under the Plan will consist of stock options (both
non-qualified options and options intended to qualify as "Incentive Stock
Options" under Section 422 of the Internal Revenue Code of 1986, as amended),
restricted stock awards, deferred stock awards, stock appreciation rights and
other stock-based awards, which are described in the Plan.
The Plan will be administered by the Board of Directors which will determine the
persons to whom awards will be granted, the number of awards to be granted and
the specific terms of each grant, including the vesting thereof, subject to the
provisions of the Plan.
In connection with qualified stock options, the exercise price of each option
may not be less than 100% of the fair market value of the common stock on the
date of grant (or 110% of the fair market value in the case of a grantee holding
more than 10% of the outstanding stock of the Company). The aggregate fair
market value of shares for which qualified stock options are
F-4
<PAGE>
exercisable for the first time by such employee (10% shareholder) during any
calendar year may not exceed $100,000. Non-qualified stock options granted under
the Plan my be granted at a price determined by the Board of Directors, not to
be less than the fair market value of the common stock on the date of grant.
The plan also contains certain change in control provisions which could cause
options and other awards to become immediately exercisable and restrictions and
deferral limitations applicable to other awards to lapse in the event any
"person," as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, including a "group" as defined in Section 13(d), but
excusing certain stockholders of the Company, became the beneficial owners of
more than 25% of the Company's outstanding shares of common stock.
The Company granted options to purchase approximately 1,719,726 shares at
closing, to be divided amongst employees of the Company and other associated
persons. The exercise price will range from $1.00 to $1.90 per share.
F-5
<PAGE>
ALADDIN SYSTEMS HOLDINGS, INC.
(Formerly Foreplay Golf & Travel Tours, Inc.)
ALADDIN SYSTEMS, INC.
PROFORMA COMBINED STATEMENT OF INCOME
(Unaudited)
Giving effect to an Acquisition on October 31, 1999
<TABLE>
<CAPTION>
Aladdin
Systems Aladdin Proforma
Holdings, Systems, Increase Proforma
Inc. Inc. (Decrease) Combined
----------- ----------- ----------- -----------
(Nine months (Nine months
ended ended
9-30-99) 9-30-99
<S> <C> <C> <C> <C>
SALES $ -- $ 6,719,464 $ -- $ 6,719,464
COST OF SALES -- 1,150,598 -- 1,150,598
----------- ----------- ----------- -----------
GROSS PROFIT -- 5,568,866 -- 5,568,866
Operating Expenses
Marketing, sales, and support 1,587 2,410,208 -- 2,411,795
Research and development -- 1,278,847 -- 1,278,847
General and administrative 13,261 671,694 80,000(3) 764,955
----------- ----------- ----------- -----------
Total operating expenses 14,848 4,360,749 80,000 4,455,597
INCOME (LOSS) FORM OPERATIONS (14,848) 1,208,117 (80,000) 1,113,269
INTEREST AND OTHER INCOME 72 19,569 -- 19,641
INTEREST EXPENSE -- (47,820) -- (47,820)
----------- ----------- ----------- -----------
INCOME BEFORE INCOME TAXES (14,776) 1,179,866 (80,000) 1,085,090
PROVISION FOR INCOME TAXES -- 179,003 -- 179,003
----------- ----------- ----------- -----------
NET INCOME (LOSS) $ (14,776) $ 1,000,863 $ (80,000) $ 906,087
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of this statement of income
F-6
<PAGE>
ALADDIN SYSTEMS HOLDINGS, INC.
(Formerly Foreplay Golf & Travel Tours, Inc.)
ALADDIN SYSTEMS, INC.
PROFORMA COMBINED STATEMENT OF INCOME
(Unaudited)
Giving effect to an Acquisition on October 31, 1999
<TABLE>
<CAPTION>
Aladdin
Systems Aladdin Proforma
Holdings, Systems, Increase Proforma
Inc. Inc. (Decrease) Combined
----------- ----------- ----------- -----------
(Year ended (Year ended
12-31-98) 12-31-98)
<S> <C> <C> <C> <C>
SALES $ -- $ 8,002,518 $ -- $ 8,002,518
COST OF SALES -- 1,405,496 -- 1,405,496
----------- ----------- ----------- -----------
GROSS PROFIT -- 6,597,022 -- 6,597,022
Operating Expenses
Marketing, sales, and support -- 3,520,106 -- 3,520,106
Research and development -- 1,506,798 -- 1,506,798
General and administrative 9,113 907,560 80,000(3) 996,673
----------- ----------- ----------- -----------
Total operating expenses 9,113 5,934,464 80,000 6,023,577
INCOME (LOSS) FORM OPERATIONS (9,113) 662,558 (80,000) 573,445
INTEREST AND OTHER INCOME -- 11,346 -- 11,346
INTEREST EXPENSE -- (175,490) -- (175,490)
----------- ----------- ----------- -----------
INCOME BEFORE INCOME TAXES (9,113) 498,414 (80,000) 409,301
PROVISION FOR INCOME TAXES -- (81,769) -- (81,769)
----------- ----------- ----------- -----------
NET INCOME (LOSS) $ (9,113) $ 580,183 $ (80,000) $ 491,070
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of this statement of income
F-7
<PAGE>
ALADDIN SYSTEMS HOLDINGS, INC.
(Formerly Foreplay Golf & Travel Tours, Inc.)
ALADDIN SYSTEMS, INC.
PROFORMA COMBINED BALANCE SHEET
(Unaudited)
Giving effect to an Acquisition on October 25, 1999
<TABLE>
<CAPTION>
Aladdin
Systems Aladdin Proforma
Holdings, Systems, Increase Proforma
Inc. Inc. (Decrease) Combined
----------- ----------- ----------- -----------
LIABILITIES AND STOCKHOLDERS' EQUITY (9-30-99) (9-30-99)
<S> <C> <C> <C> <C>
Current Liabilities
Accounts payable $ -- $ 284,986 $ -- $ 284,986
StuffIt payable - current -- 34,973 -- 34,973
Severance 19,961 -- 19,961
Taxes / benefits payable -- 6,577 -- 6,577
Notes payables -- 318,216 -- 318,216
Accrued expenses -- 112,673 -- 112,673
----------- ----------- ----------- -----------
Total Current Liabilities -- 777,386 -- 777,386
----------- ----------- ----------- -----------
Long-term Obligations
StuffIt payable -- 79,802 -- 79,802
Notes payables -- 250,533 -- 250,533
----------- ----------- ----------- -----------
Total Long-term Obligations -- 330,335 -- 330,335
----------- ----------- ----------- -----------
Stockholders' Equity
Preferred stock; $.001 par value, 1,000,000
shares authorized, no shares issued and
outstanding -- -- -- --
Common stock; $.001 par value, 50,000,000
shares authorized, 9,141,628 shares
issued and outstanding 1,434 47,092 (784)(1) 9,142
1,000 (2)
(47,092)(3)
7,442 (3)
50 (3)
Additional paid-in capital 35,653 109,235 784 (1) 1,167,274
999,000 (2)
(35,000)(2)
47,092 (3)
(7,442)(3)
49,950 (3)
(31,998)(4)
Retained earnings (deficit) (31,998) 1,099,409 31,998 (4) 1,019,409
-- -- (80,000)(3) --
----------- ----------- ----------- -----------
Total Stockholders' Equity (deficit) 5,089 1,255,736 935,000 2,195,825
----------- ----------- ----------- -----------
Total Liabilities and Stockholders' Equity $ 5,089 $ 2,363,457 $ 935,000 $ 3,303,546
=========== =========== =========== ===========
</TABLE>
F-8
<PAGE>
The accompanying notes are an integral part of this balance sheet.
F-9
<PAGE>
F-10
<PAGE>
F-11
<PAGE>
F-12
<PAGE>
ALADDIN SYSTEMS, INC. and SUBSIDIARY
Consolidated Balance Sheets
as of September 30, 1999
(unauditied)
ASSETS
CURRENT ASSETS:
Cash $ 305,246
Accounts Receivable-trade $ 744,683
Current Inventory $ 81,698
Prepaid Expenses $ 46,469
Deferred Income Tax Benefits $ 165,368
Total Current Assets $ 1,343,464
FIXED ASSETS
Total $ 1,262,004
Less: Accumulated Depreciation $ (764,514)
Total Fixed Assets $ 497,490
OTHER ASSETS
Deferred Income Tax Benefits $ 98,191
Capitalized Software $ 1,204,347
Accumulated Amortization $ (880,003)
Capitalized Software, net of amort. $ 324,343
Deposits Paid $ 99,966
Total Other Assets $ 522,500
TOTAL ASSETS $ 2,363,454
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts Payable $ 284,985
StuffIt Payable - Current $ 34,973
Severance - Current $ 19,961
Accrued Expenses $ 318,216
Taxes Payable/Benefits Payable $ 6,577
Notes Payable $ 112,673
Total Current Liabilities $ 777,385
LONG TERM LIABILITIES
StuffIt Payable $ 79,802
Notes Payable $ 250,533
Total Long-term Liabilities $ 330,335
TOTAL LIABILITIES $ 1,107,721
F-13
<PAGE>
OWNERS EQUITY
Equity Accounts
Capital Stock $ 47,092
Paid In Capital $ 109,235
Retained Earnings $ 1,099,406
Total Equity Accounts $ 1,255,733
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 2,363,454
F-14
<PAGE>
ALADDIN SYSTEMS, INC. and SUBSIDIARY
Consolidated Statements of Income
as of September 30, 1998 and 1999
(unaudited)
Sept. 30, 1999 Sept. 30, 1998
SALES $ 6,719,464 $ 5,827,388
COSTS OF SALES $ 1,150,598 $ 1,158,926
GROSS PROFIT $ 5,568,866 $ 4,668,461
OPERATING EXPENSES
Marketing, Sales and Support $ 2,410,208 $ 2,730,930
Research & Development $ 1,278,847 $ 1,160,408
General & Administrative $ 671,693 $ 680,831
Total Expenses $ 4,360,748 $ 4,572,169
INCOME (LOSS) FROM OPERATIONS $ 1,208,117 $ 96,293
INTEREST AND OTHER INCOME $ 19,569 $ 8,394
INTEREST EXPENSE $ 47,820 $ 145,316
INCOME BEFORE INCOME TAXES $ 1,179,866 $ (40,629)
PROVISION FOR INCOME TAXES $ 179,003 $ --
NET INCOME $ 1,000,863 $ (40,629)
F-15
<PAGE>
ALADDIN SYSTEMS, INC, & SUBSIDIARY
Consolidated Statements of Cash Flow
as of September 30, 1998 and 1999
(unaudited)
CASH FLOWS FROM OPERATING ACTIVITIES 1999 1998
Net Income (Loss) $ 1,000,863 $ (40,629)
Depreciation and amortization $ 239,897 $ 250,315
Software Royalites $ 111,103 $ (70,643)
Accrued Expenses $ 96,823 $ (33,114)
Accounts Receivable $ (14,741) $ 120,757
Inventories $ (11,208) $ 12,803
Accounts Payable $ (474,198) $ 52,521
Prepaid expenses and other assets $ (78,138) $ 31,770
CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES $ 759,299 217,851
CASH FLOWS FROM INVESTING ACTIVITIES
Equipment & Etc. $ (173,924) $ (15,160)
Capitalized software cost $ (16,959) $ (5,000)
CASH (USED IN) INVESTING ACTIVITIES $ (190,883) 303,620
CASH FLOWS FROM FINANCING ACTIVITIES
New equipment leases $ 105,951 $ 2,261
Demand Notes $ (54,000) $ --
Silicon Valley Bank $ (160,887) $ (117,653)
Payment to Raymond Lau $ (26,103)
Severance packages $ (36,539) $ (82,146)
Capitalized leases $ (67,157) $ (72,869)
Cash Provided By (Used In) Financing Activities $ (323,734) (270,407)
NET INCREASE (DECREASE) IN CASH $ 244,682 33,213
CASH AT BEGINNING OF PERIOD $ 60,564 51,789
CASH AT END OF PERIOD $ 305,246 85,002
F-16
<PAGE>
ALADDIN SYSTEMS, INC. and SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Aladdin Systems, Inc. (the Company) has elected to omit substantially all
footnotes to the financial statements for the nine months ended September 30,
1999.
UNAUDITED INFORMATION
The information furnished herein was taken from the books and records of
the Company without audit. However, such information reflects all adjustments
which are, in the opinion of management, necessary to properly reflect the
results of the period presented. The information presented is not necessarily
indicative of the results from operations expected for the full fiscal year.
F-17
<PAGE>
Independent Auditors' Report on the Financial Statements
To the Board of Directors
Aladdin Systems, Inc.
Watsonville, California
We have audited the accompanying consolidated balance sheets of Aladdin Systems,
Inc. and subsidiary, as of December 31, 1998 and 1997, and the related
consolidated statements of income and retained earnings (deficit) and cash flows
for the years then ended. These consolidated financial statements arc the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Aladdin Systems,
Inc. and subsidiary as of December 31, 1998 and 1997, and the results of their
operations and their cash flows for the years then ended, in conformity with
generally accepted accounting principles.
March 29, 1999
Hutchinson and Bloodgood
Watsonville, CA
F-18
<PAGE>
ALADDIN SYSTEMS, INC. and SUBSIDIARY
Consolidated Balance Sheets
December 31, 1998 and 1997
1998 1997
ASSETS
CURRENT ASSETS:
Cash (Note 2) $ 60,564 $ 51,789
Accounts receivable - trade 729,942 736,942
Inventories 70,491 84,685
Prepaid expenses 49,563 57,300
Deferred income tax benefit (Note 7) 165,368 110,198
Total current assets 1,075,928 1,040,914
PROPERTY AND EQUIPMENT
Office furniture and fixtures 302,513 302,513
Computer equipment 685,647 664,199
Trade show display 99,920 99,920
Total cost 1,088,080 1,066,633
Less: accumulated depreciation 649,323 505,201
Total fixed assets 438,757 561,432
OTHER ASSETS, net:
Deferred income tax benefit (Note 7) 98,191 69,992
Capitalized software costs, net of amortization 432,091 650,777
Deposits and other assets 18,733 18,733
Total other assets 549,015 739,502
TOTAL ASSETS 2,063,700 $ 2,341,848
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current part of long-term debt (Note 4) $ 251,644 $ 570,456
Accounts payable - trade 792,280 968,354
Payable to bank (Note 3) 160,888 424,173
Related party payables (Note 5) 69,000 225,062
Accrued expenses 194,873 269,778
Total current liabilities 1,468,685 2,457,823
LONG-TERM OBLIGATIONS: (Note 4)
Notes payable (software) 225,877 396,860
Related party payables (Note 5) 145,062
Severance agreements 56,500 149,222
Capitalized leases 164,350 240,039
Less: current part (251,644) (570,456)
Total long-term obligations 340,145 215,665
Total liabilities 1,808,829 2,673,488
F-19
<PAGE>
STOCKHOLDERS' EQUITY
Capital stock, common, par value $0.01;
6,705,882 shares authorized, 4,709,222
and 4,705,882 shares issued and
outstanding in 1998 and 1997, respectively 47,092 47,059
Paid in Capital 109,235 102,941
Retained earnings (deficit) 98,543 (481,640)
Total stockholders' equity (deficit) 254,870 (331,640)
TOTAL LIABILITIES AND EQUITY $ 2,063,700 2,341,848
The accompanying notes are an integral part of these financial statements.
F-20
<PAGE>
ALADDIN SYSTEMS, INC. and SUBSIDIARY
Consolidated Statements of Income and Retained Earnings
For the Years Ended December 31, 1998 and 1997
1998 1997
SALES 8,002,518 $ 7,274,914
COST OF SALES 1,405,496 1,441,578
GROSS PROFIT 6,597,022 5,833,336
OPERATING EXPENSES
Marketing, sales and support 3,520,106 3,899,754
Research and development 1,506,798 1,466,866
General and administrative 907,560 1,159,134
Total 5,934,464 6,525,754
INCOME (LOSS) FROM OPERATIONS 662,559 (692,418)
INTEREST AND OTHER INCOME 11,346 7,455
LOSS ON DISPOSITION OF ASSETS (10,664)
INTEREST EXPENSE (175,490) (145,910)
INCOME BEFORE INCOME TAXES 498,415 (841,537)
PROVISION FOR INCOME TAXES (Note 7) (81,769) (68,538)
NET INCOME (LOSS) 580,184 (772,999)
RETAINED EARNINGS, BEGINNING (481,640) 291,359
RETAINED EARNINGS, ENDING $ 98,544 $ (481,640)
BASIC EARNINGS (LOSS) PER SHARE $ 0.06 ($ 0.09)
DILUTED EARNINGS (LOSS) PER SHARE $ 0.05 ($ 0.07)
The accompanying notes are an integral part of these financial statements.
F-21
<PAGE>
ALADDIN SYSTEMS, INC, & SUBSIDIARY
Consolidated Statements of Cash Flow
Years Ended December 31, 1998 and 1997
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) 580,183 $(772,999)
Adjustments to reconcile net income (loss) to cash
provided by (used in) operating activities:
Depreciation and amortization expense 367,808 252,201
(Increase) decrease in accounts receivable 7,000 (152,429)
(Increase) decrease in inventories 14,194 (41,198)
(Increase) in prepaid expenses and deferred income taxes (75,632) (35,118)
Increase (decrease) in accounts payable (176,074) 309,906
Increase (decrease) in accrued expenses (74,905) 73,165
CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES 642,574 (366,472)
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures (21,446) (390,859)
Additions to capitalized software costs (5,000) (305,000)
Decrease in deposits 37,782
CASH (USED IN) INVESTING ACTIVITIES (26,446) (658,077)
CASH FLOWS FROM FINANCING ACTIVITIES
Advances from (repayments to) related parties (11,000) 146,102
Increase (decrease) in payable to bank (263,286) 424,173
proceeds from issuance of capital stock 6,327 --
Increase (decrease) in long term debt (339,394) 149,274
(607,353) 719,549
NET INCREASE (DECREASE) IN CASH 8,775 (305,000)
CASH AT BEGINNING OF YEAR 51,789 356,789
CASH AT END OF YEAR $ 60,564 $ 51,789
SUPPLEMENTAL DISCLOSURE OF CASH FLOW
Cash paid during the year for:
Interest $ 165,242 $ 142,807
Income taxes 1,600 1,600
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-22
<PAGE>
ALADDIN SYSTEMS, INC. and SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 1998 and 1997
Note 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of business
Aladdin Systems, Inc. is based in Watsonville, California. The
Company develops, publishes, and distributes computer software on
the Macintosh platform, and more recently Windows, to customers
worldwide. The wholly owned subsidiary, Transaction Services, Inc.
possesses the technology to sell and download programs over the
interact, using unlocking keys, for Aladdin and other third party
vendors.
Principles of Consolidation
The consolidated financial statements include the accounts of
Aladdin Systems, Inc. and its wholly owned subsidiary, Transaction
Services, Inc., which was formed November 14, 1996, both of which
are under common control. Intercompany transactions and balances
have been eliminated in consolidation.
Accounting Policies
The accounting policies relative to the carrying value of property
and equipment are indicated in captions on the balance sheets. Other
significant accounting policies are:
Use of Estimates
Management uses estimates and assumptions in preparing
financial statements. Those estimates and assumptions affect
the reported amounts of assets and liabilities, the disclosure
of contingent assets and liabilities, and the reported
revenues and expenses.
Cash Equivalents
For purposes of the statement of cash flows, cash equivalents
include time deposits, certificates of deposit and all highly
liquid debt instruments with original maturities of three
months or less.
Accounts Receivable
Bad debts are recorded as an expense in the period in which
they become uncollectible. No allowance for doubtful accounts
is provided as expected losses are not material. There is an
allowance for returns that is based on an average yearly
return percentage applied to total accounts receivable.
Inventory
Inventory is stated at the lower of cost (first-in, first-out
method) or market.
F-23
<PAGE>
Depreciation
Depreciation is provided for on an accelerated basis over
estimated useful lives:
Software 5 years
Furniture and equipment 5 - 7 years
Computer equipment 5 years
Trade show display 5 - 7 years
Revenue Recognition
The Company recognizes revenues when earned or upon product
shipment, provided no significant obligations remain, and
collectibility is probable.
F-24
<PAGE>
ALADDIN SYSTEMS, INC. and SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Years Ended December 31, 1998 and 1997
Note 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Capitalized Software Costs
The Company follows Statement of Financial Accounting Standards No.
86, "Accounting for the Costs of Computer Software to be Sold,
Leased, or Otherwise Marketed" for all software development costs.
As a result, software development costs incurred after the
development of technological feasibility are capitalized and
amortized to cost of revenues on a product by product basis at the
greater of the amount computed using the ratio of current gross
revenues for a product to the total of rent and anticipated future
gross revenues or the straight-line method over the remaining
estimated economic life of the product. Generally, an estimated
economic life of five yews is assigned to capitalized software
development costs. No costs for the internal development of software
are being capitalized for 1998 or 1997. Capitalized purchased
software costs are being amortized using the straight-line method
over the remaining economic life, considered to be five years.
Income Taxes
As a corporation the Company is subject to income taxes at statutory
rates. The Company's income taxes arc accounted for under the
provisions of Statement of Financial Accounting Standards No. 109,
"Accounting for Income Taxes", which requires the liability method
of accounting.
Deferred income taxes reflect the impact of 'temporary differences'
between amounts of assets and liabilities for financial reporting
purposes and such amounts measured by tax laws. Temporary
differences which give rise to deferred tax assets (liabilities)
principally include certain reserves and depreciation.
Note 2. CASH DEPOSITS IN EXCESS OF INSURED LIMITS
F-25
<PAGE>
The Company maintains cash at a local financial institution. The
cash balance is insured by the Federal Deposit Insurance Corporation
up to $100,000. At December 31, 1998 and 1997, the Company's
uninsured bank balances totaled $41,223 and $122,497, respectively.
A reconciliation of the Company's cash position is presented below:
1998 1997
Uninsured bank balances $ 41,223 $ 122,497
Insured bank balances 108,591 128,278
Plus, deposits in transit 11,241 37,322
Less, outstanding checks (100,491) (236,308)
----------------------
$ 60,564 $ 51,789
Note 3. BANK FACTORING AGREEMENT
The Company has an arrangement with Silicon Valley Bank where the
bank advances 50% of pledged receivables up to $1,200,000 and when
those receivables are paid, the bank then remits the remaining
500/o, less an interest and administrative fee, to the Company.
Interest is charged at 1.25% per month on the average daily balance
and the administrative fee is .5% of the face amount of each
receivable pledged. The balance due the Bank at December 3 1, 1998
and 1997 was S 160,888 and $424,173, respectively.
Note 4. LONG-TERM DEBT
Long-term debt and the related current portion as of December 31,
1998 and 1997, consist of the following:
1998 1997
Notes payable, software $225,877 $396,860
Severance agreements 56,500 149,222
Capitalized leases 164,350 240,039
446,727 786,121
Less current part 251,644 570,456
$195,083 $215,665
The Company acquired all ownership rights of StuffIt Software in
1994 and the purchase price was payable in monthly installments of
$19,444 with an imputed interest rate of 10%. In 1997, the payment
plan was restructured to be payable monthly at $27,708, subordinated
to all other borrowing, with an option to convert any remaining
amount of the note to common stock. During 1998 the payment plan was
again restructured to be payable monthly at $5,000. The note is
scheduled to be paid in full in 2001. Two other software programs
were acquired in 1997 and the unpaid portion is being paid as there
is sufficient cash flow. These notes are considered current and will
be paid in full in 1999.
F-26
<PAGE>
The Company entered into severance agreements with former management
employees in 1994 and 1996, whereby the Company will pay each former
employee the sum of $175,000 over a 42 month period. The full amount
of the payments has been recorded as an expense in the years the
agreements were entered into. Two other employees are eligible to
participate in the severance agreement should they elect to leave
the employ of the Company.
The Company acquired equipment under long-term, noncancellable
leases. There are four leases with interest rates ranging from 16%
to 19.37% and monthly payments of $138 to $5,134. One of the leases
was paid off in 1999, two will be paid in full in 2000, and the
fourth will be paid in full in 2002. The leases are secured by
leased assets with a cost of $217,234 and a book value of $184,048
as of December 31, 1998.
Aggregate maturities or payments required on principal under
long-term debt for each of the remaining years are as follows:
1999 $251,644
2000 120,451
2001 65,602
2002 9,030
$446,727
Note 5. RELATED PARTY TRANSACTIONS;
Related Party Notes
During 1997, certain Stockholders, the Company's former President a
key employee, and a relative of a stockholder lent the Company a
total of $225,062, in the form of demand notes with interest payable
monthly at rates from 7% to 12%. These notes contain a conversion
feature where they can be converted into common stock in part or
whole at any time for $1.74 per share. The notes are subordinated to
all other financing by the Company. During 1998 the Company paid
$11,000 against these notes resulting in a balance remaining of
$214,062 as of December 31, 1998. The Company estimates that it will
pay $69,000 of this balance during 1999.
Note 6. COMMITMENTS
Facility Lease
The Company conducts its operations from facilities that are leased
under an operating lease expiring July 31, 2001. Rent expense was
$162,645 and $154,769 in 1998 and 1997. The minimum rental
commitment for the next four years, and in the aggregate, subject to
a cost of living adjustment each year, is as follows:
1999 $162,500
2000 162,500
2001 81,250
$406,250
F-27
<PAGE>
Note 7. PROVISION FOR INCOME TAXES
The provision for income taxes consists of:
1998 1997
Statutory tax liability:
California $ 1,600 $ 1,600
Adjustments for:
Net operating loss carryforward 3,432 (229,378)
Depreciation differences (35,187) (10,604)
Capitalized software development costs 21,563
Interest on installment sale 11,598 (15,905)
Contributions -- 143
Severance payments 28,672 (19,936)
California Franchise tax 453 1,543
Valuation allowance (92,337) 182,436
Deferred tax provision (83,369) (70,138)
Provision for income tax $ (81,769) $ (68,538)
Deferred tax assets consist of 1998 1997
Deferred tax asset, current:
Net operating loss carryforward $ 187,188 $ 164,506
State taxes 544 544
Interest on installment sale 11,339 16,627
Severance payments 21,420 38,719
Valuation allowance (55,123) (110,198)
$ 165,368 110,198
Deferred tax asset long-term:
Net operating loss carry forward $ 77,951 $ 104,066
Depreciation 63,289 28,102
Interest on installment sale -- 6,310
Severance payments 1,236 12,608
State deferred tax (11,555) (11,102)
Valuation allowance (32,730) (69,992)
$ 98,191 $ 69,992
Realization of deferred tax assets is dependent upon sufficient
future taxable income during the period that deductible temporary
differences and carryforwards are expected to be available to reduce
taxable income. A valuation allowance has been established for 25%
of the deferred tax asset. The Company has available at December 31,
1998, $738,268 for Federal and $159,817 for California, unused
operating loss forwards that may be applied against future taxable
income and that expire in 2011 and 2012.
Note 8. RESEARCH AND DEVELOPMENT
F-28
<PAGE>
Research and development costs are charged to operations when
incurred and arc included in operating expenses. The amounts charged
in 1998 and 1997 were $1,506,798 and $1,466,866, respectively.
Note 9. STOCK OPTION PLAN
During 1996, the Company implemented a stock option plan whereby it
could issue options for 2 million shares with varying vesting dates,
typically 4 years, to employees and others as a form of
compensation. A summary of the status of the Company's stock option
plan as of December 31, 1998 and 1997 and changes during the years
then ended (restated to reflect the 1.580827 conversion factor
applied upon the) is presented in the following table.
Shares Price
Range
Outstanding at 12/31/96 196,079.00
Granted in 1997 1,416,595 1.70 - 1.91
Weighted average exercise price 1.71
Returned 293,796
Outstanding at 12/31/97 1,318,878
Options exercisable at 12/31/97 314,517
Granted in 1998 245,400 1.74 - 2.75
Returned 551,997
Weighted average exercise price 1.81
Outstanding at 12/31/98 1,012,281
Options exercisable at 12/31/98 631,304
SFAS No. 123, Accounting for Stock-Based Compensation, requires the
Company to provide pro forma information regarding net income (loss)
as if compensation cost for the Company's stock option plan had been
determined in accordance with the fair market value method
prescribed by SFAS No. 123. The Company estimates the fair market
value of stock options at the grant date by using the minimum value
method with the following assumptions used for the grants in 1998
and 1997, respectively,: dvidend yield of 0; risk-free interest rate
of 6% and 6.6%l and an expected life of five years for all plan
options.
Under the accounting provisions of by SFAS No. 123, the Company's
net income (loss) would have been reduced (increased) to the pro
forma amounts indicated below:
1998 1997
As reported 580,183 (772,999)
Pro forma 529,792 (952,198)
F-29
<PAGE>
Note 10. RETIREMENT PLAN
The Company has established a 401 (k) retirement plan for all
employees. All employees may elect to contribute up to 15% of their
gross salary not to exceed federal tax law limitations. The company
may elect to match a portion of the employee contributions, however,
there were no company matching contributions in either 1998 or 1997.
Note 11. EARNINGS PER SHARE
Earnings per share are based upon the number of outstanding shares
and options restated to reflect the 1.580827 conversion factor
applied upon the Reorganization) as follows: 9,141,628 common shares
outstanding and 1,669,239 options outstanding.
F-30
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET SEPTEMBER 30, 1999
(Unaudited)
ASSETS
Cash $ 825
Organizational costs less accumulated
amortization of $97 98
Note receivable 4,094
Interest receivable 72
Total Assets $ 5,089
LIABILITIES & STOCKHOLDERS' EQUITY
Accounts payable $ 0
Total Liabilities 0
Stockholders' Equity
Common stock, authorized 25,000,000 shares
at $.001 par value, issued and outstanding
1,434,400 shares 1,434
Additional paid-in capital 35,653
Deficit accumulated during the
development stage (31,998)
Total Stockholders' Equity 5,089
Total Liabilities and Stockholders' Equity $ 5,089
The accompanying notes are an integral part of these financial statements.
F-31
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF OPERATIONS AND DEFICIT
(Unaudited)
<TABLE>
<CAPTION>
Jan. 1, 1999 to Jan. 1, 1998 to Inception to
Sept. 30, 1999 Sept. 30, 1998 Sept. 30, '99
-------------- -------------- -------------
<S> <C> <C> <C>
Interest income $ 72 $ 0 $ 72
Expenses
Advertising 1,587 0 1,587
Amortization 30 30 60
Conferences 667 2,086 2,753
Consulting 7,850 4,500 12,350
Depreciation 615 573 1,188
Licenses and fees 190 85 275
Office supplies 490 579 1,069
Professional fees 3,005 0 3,005
Publications 414 351 765
Rent 0 1,200 1,200
Total expenses 14,848 9,404 24,252
Net Loss (14,776) (9,404) (24,180)
Retained earnings, beginning of period (17,222) (6,909) (24,131)
Deficit accumulated during
the development stage (31,998) (16,313) (48,311)
Earnings (loss) per share
assuming dilution: Net loss (.01) (.01) (.02)
Weighted average shares outstanding 1,434,400 1,063,661
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-32
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Jan. 1, 1999 to Jan. 1, 1998 to Inception to
Sept. 30, 1999 Sept. 30, 1998 Sept. 30, '99
-------------- -------------- -------------
<S> <C> <C> <C>
CASH FLOWS PROVIDED BY OPERATING ACTIVITIES
Net Loss $(14,776) $ (9,404) $(24,180)
Non-cash items included in net loss
Amortization 30 30 $ 60
Depreciation 615 573 1,185
Adjustments to reconcile net loss to
cash used by operating activity
Decrease in prepaid offering costs 2,136 $ 2,136
Decrease in accounts payable (300) (5,329) (5,629)
NET CASH PROVIDED BY
OPERATING ACTIVITIES (14,431) (11,994) (26,425)
CASH FLOWS USED BY INVESTING ACTIVITIES
Office furniture and equipment 0 3,333 3,333
Sale of office furniture and equipment (4,094) 0 (4,094)
Note receivable and accrued interest 4,166 0 4,166
NET CASH USED BY
INVESTING ACTIVITIES 72 3,333 3,405
CASH FLOWS FROM FINANCING ACTIVITIES
Sale of common stock 0 834 834
Paid-in capital 0 40,886 40,886
Less offering costs 0 (10,633) (10,633)
NET CASH USED BY
FINANCING ACTIVITIES 0 31,087 31,087
NET INCREASE IN CASH (14,503) 15,760 1,257
CASH AT BEGINNING OF PERIOD 15,328 160 15,488
CASH AT END OF PERIOD $ 825 $ 15,920 16,.745
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-33
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
September 30, 1999
NOTES TO THE FINANCIAL STATEMENTS
Foreplay Golf & Travel Tours, Inc. (the Company) has elected to omit
substantially all footnotes to the financial statements for the nine months
ended September 30, 1999.
UNAUDITED INFORMATION
The information furnished herein was taken from the books and records of
the Company without audit. However, such information reflects all adjustments
which are, in the opinion of management, necessary to properly reflect the
results of the period presented. The information presented is not necessarily
indicative of the results from operations expected for the full fiscal year.
F-34
<PAGE>
REPORT OF INDEPENDANT CERTIFIED PUBLIC ACCOUNTS
To the Board of Directors and Stockholders of Foreplay Golf & Travel Tours, Inc.
Las Vegas, Nevada
I have audited the accompanying balance sheet of Foreplay Golf & Travel
Tours, Inc. (a development stage company) as of December 31, 1998 and the
related statements of operations, cash flows and changes in stockholders' equity
for the period from March 26, 1997 (date of inception) to December 31, 1998.
These financial statements are the responsibility of Foreplay Golf & Travel
Tours, Inc.'s management. My responsibility is to express an opinion on these
financial statements based on my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that I plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
I believe that my audit of the financial statements provide a reasonable basis
for my opinion.
In my opinion, the accompanying financial statements present fairly, in
all material respects, the financial position of Foreplay Golf & Travel Tours,
Inc. December 31, 1998 and the results of operations, cash flows and changes in
stockholders' equity for the year then ended in conformity with generally
accepted accounting principles.
David Coffey C.P.A.
Salt Lake City, UT
April 10, 1999
F-35
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS AND DEFICIT
ACCUMULATED DURING THE DEVELOPMENT STAGE
FOR THE YEAR ENDED December 31, 1998
(With Cumulative Figures From Inception)
From Inception,
January 1, 1998 March 26, 1997
To Dec. 31, 1998 To Dec. 31, 1998
Income $ 0 $ 0
Expenses
Amortization 39 68
Bank charges 30 182
Conferences 2,604 4,468
Consulting 4,500 7,500
Depreciation 880 1,445
Licenses and fees 85 170
Lodging 0 162
Meals 0 60
Office supplies 549 1,371
Publications 426 596
Rent 1,200 1,200
Total expenses 10,313 17,222
Net Loss (10,313) $ (17,222)
Retained earnings, (6,909)
beginning of period
-----------
Deficit accumulated during
the development stage $ (17,222)
Earnings (loss) per share assuming dilution:
Net loss $ (.09) $ (.19)
Weighted average shares outstanding 1,155,833 907,488
The accompanying notes are an integral part of these financial statements.
F-36
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
DECEMBER 31, 1998
ASSETS
Cash $ 15,328
Organizational costs less accumulated
amortization of $68 127
Office equipment, less accumulated 4,710
depreciation of $l,445
Total Assets $ 20,165
LIABILITIES & STOCKHOLDERS' EQUITY
Accounts payable - stockholder $ 300
Total Liabilities 300
Stockholders' Equity
Common stock, authorized 25,000,000 shares
at $.001 par value, issued and outstanding 1,434
1,434,400 shares
Additional paid-in capital 35,653
Deficit accumulated during the
development stage (17,222)
Total Stockholders' Equity 19,865
Total Liabilities and Stockholders' Equity $ 20,165
The accompanying notes are an integral part of these financial statements.
F-37
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
PERIOD FROM March 26, 1997 (Date of Inception)
To December 31, 1998
<TABLE>
<CAPTION>
Additional
Common Stock Paid-in
Shares Amount Capital Total
<S> <C> <C> <C> <C>
Balance,
March 26, 1997 $ -- $ -- $ -- $ --
Issuance of common
stock for cash 600,000 600 5,400 6,000
Less net loss -- -- -- (6,909)
-------- -------- -------- --------
Balance,
December 31, 1997 600,000 600 5,400 (909)
Issuance of common
stock for cash 834,400 834 40,886 41,720
Less offering costs 0 0 (10,633) (10,633)
Less net loss -- -- -- (10,313)
-------- -------- -------- --------
Balance, December 31, 1998 600,000 $ 1,434 $ 35,653 $ 19,865
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-38
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS FOR THE YEAR ENDED
December 31, 1998
(With Cumulative Figures From Inception)
<TABLE>
<CAPTION>
From Inception,
January 1, 1998 March 26, 1997
To Dec. 31, 1998 To Dec. 31, 1998
<S> <C> <C>
CASH FLOWS PROVIDED BY OPERATING ACTIVITIES
Net Loss $(10,313) $(17,222)
Non-cash items included in net loss
Amortization 39 68
Depreciation 880 1,445
Adjustments to reconcile net loss to
cash used by operating activity
Accounts payable (5,329) 300
-------- --------
NET CASH PROVIDED BY
OPERATING ACTIVITIES (14,723) (15,409)
CASH FLOWS USED BY INVESTING ACTIVITIES
Organizational costs 0 195
Office furniture and equipment 3,333 6,155
-------- --------
NET CASH USED BY
INVESTING ACTIVITIES 3,333 6,350
CASH FLOWS FROM FINANCING ACTIVITIES
Sale of common stock 834 1,434
Paid-in capital 40,886 46,286
Less offering costs (8,496) (10,633)
NET CASH PROVIDED BY
FINANCING ACTIVITIES 33,224 37,087
NET INCREASE IN CASH 15,168 $ 15,328
CASH AT BEGINNING OF PERIOD 160
CASH AT END OF PERIOD $ 15,328
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-39
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO THE FINANCIAL STATEMENTS
December 31, 1998
NOTE A SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The Company was incorporated on March 26, 1997 under the laws of the
state of Nevada. The business purpose of the Company is to package
group travel specializing in the golf and cruise industry.
The Company will adopt accounting policies and procedures based upon
the nature of future transactions.
NOTE B ORGANIZATION COSTS
Organization costs were capitalized and amortized over 60 months.
NOTE C OFFERING COSTS
The offering costs were incurred by the Company in connection with a
public stock offering will be deducted from the net offering
proceeds of the stock offering.
NOTE D OFFICE EQUIPMENT
Office equipment is carried at cost. Expenditures for the
maintenance and repair are charged against operations. Renewals and
betterments that materially extend the life of the asset are
capitalized.
Depreciation of the equipment is provided for using the
straight-line method over the estimated useful lives for both
federal income tax and financial reporting.
NOTE E RELATED PARTY TRANSACTIONS
The Company has been advanced $300 by one of its officers and
stockholders. The Company has also retained her as a consultant and
has paid her $4,500.
NOTE F PUBLIC STOCK OFFERING
In May of 1998, the company completed the stock offering and sold
834,400 of its common stock at $.05 per share. The net proceeds of
that offering will be used to package group travel specializing in
the golf and cruise industry.
NOTE G EARNING (LOSS) PER SHARE
Basic EPS is determined using net income divided by the weighted
average shares outstanding during the period. Diluted EPS is
computed by dividing net income by the weighted average shares
outstanding, assuming all dilutive potential common shares were
issued. Since the Company has no common shares that are potentially
issuable, such as stock options, convertible preferred stock, and
warrants, basic and diluted earnings per share are the same.
F-40
<PAGE>
To the Board of Directors and Stockholders of Foreplay Golf & Travel Tours, Inc.
Las Vegas, Nevada
I have audited the accompanying balance sheet of Foreplay Golf & Travel
Tours, Inc. (a development stage company) as of December 31, 1997 and the
related statements of operations, cash flows and changes in stockholders' equity
for the period from March 26, 1997 (date of inception) to December 31, 1997.
These financial statements are the responsibility of Foreplay Golf & Travel
Tours, Inc.'s management. My responsibility is to express an opinion on these
financial statements based on my audit.
I conducted my audit in accordance with generally accepted auditing
standards. Those standards require that I plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
I believe that my audit of the financial statements provide a reasonable basis
for my opinion.
In my opinion, the accompanying financial statements present fairly, in
all material respects, the financial position of Foreplay Golf & Travel Tours,
Inc. December 31, 1997 and the results of operations, cash flows and changes in
stockholders' equity for the period then ended in conformity with generally
accepted accounting principles.
David Coffey C.P.A.
May 16, 1998
F-41
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
DECEMBER 31, 1997
ASSETS
Cash $ 160
Organizational costs, less
accumulated amortization of $29 166
Offering costs 2,137
Office furniture and equipment,
less accumulated depreciation of $565 2,257
Total Assets $ 4,720
LIABILITIES & STOCKHOLDERS' EQUITY
Accounts payable:
Stockholder $ 5,012
Trade 617
Total Liabilities 5,629
Stockholders' Equity
Common stock, authorized 25,000,000 shares
at $.001 par value, issued and outstanding
600,000 shares 600
Paid-in capital 5,400
Deficit accumulated during the
development stage (6,909)
Total Stockholders' Equity (909)
Total Liabilities and Stockholders' Equity 4,720
The accompanying notes are an integral part of these financial statements.
F-42
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS AND DEFICIT
ACCUMULATED DURING THE DEVELOPMENT STAGE
FOR THE PERIOD ENDED December 31, 1997
Income $ 0
Expenses
Amortization 29
Bank charges 152
Conferences 1,864
Consulting 3,000
Depreciation 565
Licenses and fees 85
Lodging 162
Meals 60
Office supplies 822
Publications 170
Total expenses 6,909
Net loss (6,909)
Retained earnings,
beginning of period 0
Deficit accumulated during
the development stage (6,909)
The accompanying notes are an integral part of these financial statements.
F-43
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN
STOCKHOLDERS' EQUITY
PERIOD FROM March 26, 1997 (Date of Inception)
To December 31, 1997
<TABLE>
<CAPTION>
Additional
Common Stock Paid-in
Shares Amount Capital Total
<S> <C> <C> <C> <C>
Balance, March 26, 1997 -- $ -- $ -- $ --
Issuance of common
stock for cash 600,000 600 5,400 6,000
Less net loss -- -- -- (6,909)
------- ------- ------- -------
Balance, December 31, 1997 600,000 $ 600 $ 5,400 $ (909)
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-44
<PAGE>
FOREPIAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
From March 26, 1997 (Date of Inception)
To December 31, 1997
CASH FLOWS PROVIDED BY OPERATING ACTIVITIES
Net Loss (6,909)
Non-cash items included in net loss
Amortization 29
Depreciation 565
Adjustments to reconcile net loss to net
cash used by operating activity
Accounts payable 5,629
NET CASH USED BY
OPERATING ACTIVITIES (686)
CASH FLOWS USED BY INVESTING ACTIVITIES
Organizational costs 195
Ooffering costs 2,137
Office furniture and equipment 2,822
NET CASH USED BY
INVESTING ACTIVITIES 5,154
CASH FLOWS FROM FINANCING ACTIVITIES
Sale of common stock 6,000
NET CASH PROVIDED BY
FINANCING ACTIVITIES 6,000
NET INCREASE IN CASH 160
CASH AT BEGINNING OF PERIOD --
CASH AT END OF PERIOD 160
The accompanying notes are an integral part of these financial statements.
F-45
<PAGE>
FOREPLAY GOLF & TRAVEL TOURS, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO THE FINANCIAL STATEMENTS
December 31, 1997
NOTE A SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The Company was incorporated on March 26, 1997 under the laws of the
state of Nevada. The business purpose of the Company is to package
group travel specializing in the golf and cruise industry.
The Company will adopt accounting policies and procedures based upon
the nature of future transactions.
NOTE B ORGANIZATION COSTS
Organization costs were capitalized and amortized over 60 months.
NOTE C OFFERING COSTS
The offering costs were incurred by the Company in connection with a
public stock offering will be deducted from the net offering
proceeds of the stock offering.
NOTE D OFFICE EQUIPMENT
Office equipment is carried at cost. Expenditures for the
maintenance and repair are charged against operations. Renewals and
betterments that materially extend the life of the asset are
capitalized.
Depreciation of the equipment is provided for using the
straight-line method over the estimated useful lives for both
federal income tax and financial reporting.
NOTE E RELATED PARTY TRANSACTIONS
The Company has been advanced $5,012 by one of its officers and
stockholders. These advances will be repaid out of the offering
proceeds without interest.
NOTE F SUBSEQUENT EVENTS - PUBLIC STOCK OFFERING
In May of 1998, the company completed the stock offering and sold
834,400 of its common stock at $.05 per share and received net
proceeds of $40,103 from the offering.
F-46
<PAGE>
PART III
ITEM 1. INDEX TO EXHIBITS
The following exhibits are filed with this Registration Statement:
Exhibit No. Exhibit Name
2.1 Agreement and Plan of Reorganization dated as of October 12 1999 by
and among FGT, Gary Ulmer, Aladdin Systems, Inc. and the
shareholders of Aladdin Systems, Inc.*
3.1 Articles of Incorporation of the Registrant.*
3.2 Certificate of Amendment to the Articles of Incorporation of the
Registrant.*
3.3 By-Laws of Registrant.*
4.1 Sample Stock Certificate of the Registrant.*
4.2 See Exhibit Nos 2.1 2.2, 2.3 and 2.4.*
10.1 Letter Agreement, dated July 14, 1999 by and between Bay Tree
Capital Associates, LLC and the Registrant.
10.20 Employment Agreement dated October 25, 1999 by and between Mr.
Jonathan Kahn and the Registrant.
10.3 Employment Agreement dated October 25, 1999 by and between Mr.
Darryl Lovato and the Registrant.
10.4 Stock Option Plan of the Registrant.
10.5 Form of Stock Option Agreement issued under the Stock Option Plan of
the Registrant.
21.1 Subsidiaries of Registrant*
27.1 Financial Data Schedule
*Previously filed with the SEC.
Exhibit 10.1
BAYTREE CAPITAL ASSOCIATES, LLC
MERCHANT BANKERS
THE TRUMP BUILDING AT
40 WALL STREET
NEW YORK, NEW YORK 10005
212/509-1700 - 212/363-4231
July 14, 1999
Aladdin Systems, Inc.
165 Westbridge Drive
Watsonville, California 95076
Attn: Mr. Johnathan Kahn
President
Dear Mr. Kahn:
The purpose of this letter agreement (this "Agreement") is to memorialize
the understanding between Baytree Capital Associates, LLC ("Baytree") and
Aladdin Systems Inc. ("Aladdin") with respect to the investment by Baytree and
others of $1 million into Aladdin or any corporation or other entity formed by
or affiliated with Aladdin (together with Aladdin, the "Company") which
participates in, or which was formed for the purpose of effecting a Transaction
(as hereinafter defined). In the context of this Agreement, "Transaction" shall
mean, whether effected in one transaction or a series of transactions, any
merger, consolidation, reorganization, recapitalization or other business
combination pursuant to which the business of Aladdin is combined with that of
another entity (the "Merger Candidate"), whether or not Aladdin is the surviving
entity in such business combination.
1. Services. Pursuant to the terms and conditions set forth in this
Agreement, Baytree will assist Aladdin in negotiating and effecting a
Transaction. In this regard, Baytree will, on behalf of Aladdin:
(a) use its best efforts to identify a Merger Candidate which is a
public company with no material liabilities and at least $1.00 of positive
working capital, having a trading symbol on the Nasdaq Electronic Bulletin
Board;
(b) advise Aladdin as to the structure and form of the Transaction;
(c) assist Aladdin in obtaining appropriate information and
performing its due diligence regarding the merger Candidate; and
5
<PAGE>
(d) counsel Aladdin with respect to, and assist in the negotiations
with, the Merger Candidate regarding the Transaction in a fashion customary with
transactions of this nature.
Any obligations pursuant to the Paragraph 1 shall survive the
termination or expiration of this Agreement.
2. The Investment
(a) Baytree or other entities identified by Baytree or the Company
shall invest (the "Investment") $1 million in the Company. The investment will
be completed through a limited offering and will be completed contemporaneously
with consummation of the Transaction. The Investment will be subject to
Baytree's successful and satisfactory completion in Baytree's sole and absolute
discretion of its due diligence prior to the funding of the Investment, such
shall include, but not be limited to, a review and analysis of Aladdin's
financial status, business plans and any pending or potential litigation. The
placement of the Common Stock will rely on Rule 504 of Regulation D ("Regulation
D") promulgated under the U.S. Securities Act of 1933, as amended the "Act"),
and shall thereby be exempt from the registration requirements of the Act,
provided, however, that should Rule 504 of Regulation D be changed so that the
exemption from registration for stock so issued under this Agreements altered
then no further Investment as contemplated in this Agreement will occur unless
and until the parties to this Agreement enter into a separate and distinct
agreement to continue with a financing wherein the terms of said financing shall
be specifically described. In connection with their purchase of the Common stock
in the Investment, the purchasers (which may include Baytree) will receive one
(1) share of the Common Stock of the Company for every one ($1 US) dollar so
invested.
Baytree shall not be deemed an agent of the Company nor an agent of
Aladdin for any purpose. Any proceeds shall be paid, less the legal fees
reimbursement (each as defined in Paragraph 4 below), to the Company at a
closing held with respect to the sale of the Common Stock (the "Closing")
against delivery of certificates representing the securities sold. The Company
agrees that for a period of twelve (12) months from the Closing, it will not,
directly or indirectly, without Baytree's prior written consent, seek to arrange
or place any equity or convertible security financing which contains any
floating conversion price or ratio or other type of reset provision or which are
sold a greater than a 10% discount to the then current market price, except is
such financing is an underwritten public offering or non-convertible debt.
Additionally, the Company agrees that upon Closing, the Company shall grant
Baytree a right of first refusal for a period of eighteen (18) months from the
Closing with respect to any sale of securities by the Company except if the sale
is either pursuant to an underwritten public offering or is non-convertible debt
and except for the issuance of securities upon the exercise of currently
outstanding warrants which shall be as set forth in Section 4. Such right does
not apply to the issuance of securities upon the exercise of options (whether
currently outstanding or granted following the Closing, provided that the total
number of options which the Company may authorize during such term (including
the options currently outstanding) shall not exceed 2.2 million shares and
provided further that any options issued following the Closing shall have an
exercise price equal to or greater than the market price on the date of grant.
Baytree shall have ten (10) business days following receipt of written notice
from the Company setting forth the terms of any proposed financing to be
conducted by it (a "Notice"), to exercise the right of first refusal by agreeing
to provide financing on the same or better economic terms as presented to the
Company. In the event Baytree fails to exercise this right to provide such
financing, the Company
6
<PAGE>
shall be free to sell such securities in the manner, amount and for the prices
and terms set forth in the Notice without liability to Baytree, subject to
Baytree's right of consent for a period of twelve (12) months as set forth
above. Not withstanding the foregoing, in the event that a Closing is not
consummated, as contemplated herein, the Company shall have no obligation to
Baytree under this paragraph.
3. Compensation: Expenses. It shall be the Company's obligation to bear
all of its expenses in connection with the Transaction and the financing, which
expenses shall include, but are not limited to the following: printing a
duplication costs, postage and mailing expenses with respect to the transmission
of offering materials, registrar and transfer agent fees, accounting fees and
issue and transfer taxes, if any; provided that Aladdin shall not be liable for
such expense if the Investment does not occur through no fault of Aladdin.
Further, Aladdin will cause the Company to pay to Baytree a non-accountable
expense allowance at closing of Ten Thousand ($10,000.00 US) Dollars with
respect to the Transaction and the Investment; and, Aladdin will cause the
Company to pay the fees and reasonable disbursements of the Merger Candidate's
legal counsel incurred in connection with the Transaction (not to exceed
$35,000.00). Such expenses shall be paid at Closing. As total compensation for
its role in the Transaction, Baytree or its nominee shall receive $20,000 in
cash and 50,000 shares of common stock of the Company at Closing.
4. Structure of Merger Candidate.
It is contemplated by the parties that the capitalization of Merger
Candidate will be structured such that following the consummation of the
Transaction 650,000 shares of common stock will be held by the former holders of
the Merger Candidate, 1,000,000 shares of common stock will be held by Baytree
and the other new investors, and an aggregate of 8,350,000 shares of common
stock will either be issued to the holders of Aladdin stock or reserved for
issuance to the holders of Aladdin warrants or options.
5. Representations, Warranties, and Covenants.
(a) Aladdin represents and warrants and shall cause the Company to
so represent and warrant that this Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding agreement of
the Company enforceable against the Company in accordance with it terms. The
Company further represents and warrants that consummation of the transactions
contemplated herein will not conflict with or result in a breach of any of the
terms, provisions or conditions of any written agreement to which it is a party.
(b) Aladdin has not done, and shall cause the Company not to do anything
that may be considered a direct selling effort in the United States or which
could reasonably be expected to result in general preconditioning of the United
States Market for the Securities of the Company. Subject to the requirements of
law, the Company shall not make any public announcement of the Investment
without the prior written consent of Baytree and in any event, shall make no
such disclosure which could be deemed to be a general solicitation or directed
selling effort within the meaning of Regulation D under the Act.
(c) Baytree covenants that it will comply with all Rules and Regulations
applicable to Regulation D, all federal and state securities laws and
regulations and all rules promulgated by the
7
<PAGE>
NASD with regard to the Investment. Further, Baytree represents and warrants
that this Agreement has been duly authorized, executed and delivered by it and
constitutes its valid and binding agreement enforceable against it in accordance
with its terms. Baytree further represents and warrants that consummation of the
transactions contemplated herein will not conflict with or result in a breach of
any of the terms, provisions or conditions of any written agreement to which it
is a party.
(d) Aladdin represents, warrants, and covenants that at the time of the
Transaction contemplated herein there shall be no liens, encumbrances or
security interest in any assets of Aladdin (or any subsidiaries or affiliates)
(except for existing liens and security interests), said unencumbered assets
shall include but not be limited to the intellectual or proprietary property of
Aladdin which property shall include but not be limited to, any and all
copyrights issued to, titled to, or claimed by Aladdin.
6. Term. Baytree agrees to attempt to fulfill its obligations under this
Agreement with 60 days of the date hereof. If the Transaction and the Investment
are not consummated within such time period, Aladdin may terminate this
Agreement and shall have no further obligation to Baytree.
7. Indemnification. Aladdin agrees to indemnify and to cause the Company
to indemnify the purchasers who participate in the Investment in a form
substantially as set forth in Annex A, attached hereto, which provisions will be
incorporated into the purchase agreement relating to the Investment.
8. Information. Aladdin recognizes and confirms that in performing its
obligations under this Agreement, Baytree and other persons who participate in
the Investment will be using and relying on date, material, and other
information (the "Information") or ("Offering Materials") furnished by Aladdin
and the Merger Candidate or their respective employees and representatives. In
connection with Baytree's activities on Aladdin's behalf, Aladdin will cooperate
with Baytree and will furnish Baytree with all information concerning Aladdin,
the Transaction and, to the extent available to Aladdin, the Merger Candidate,
which Baytree deems appropriate and will provide Baytree with access to
Aladdin's officers, directors, employees, independent accountants and legal
counsel for the purpose of performing Baytree's obligations pursuant to this
agreement. To the extent that Aladdin has access to the officers, directors,
employees, independent accountants and legal counsel of the Merger Candidate, it
will provide such access to Baytree for the purpose of performing Baytree's
obligations pursuant to this Agreement. Aladdin hereby agrees and represents
that all Information (a) furnished directly by Aladdin to Baytree pursuant to
this Agreement, and (b) contained in any filing by Aladdin with any court or
governmental or regulatory agency, commission or instrumentality (each, and
"Agency") shall, at all times during the period of the engagement of Baytree
hereunder, be accurate and complete in all material respects and that, if the
Information provided by Aladdin becomes materially inaccurate, incomplete or
misleading during the term of Baytree's engagement hereunder, the Company shall
so advise Baytree in writing. Accordingly, Baytree assumes no responsibility for
the accuracy and completeness of the Information. In rendering its services
hereunder, Baytree will be using and relying upon the Information without
independent verification thereof or independent evaluation of any of the assets
or liabilities of Aladdin or the Merger Candidate. All information that is not
publicly available will be confidential and proprietary information belonging to
Aladdin and Baytree shall have not interest of any kind in such information by
virtue of the Agreement. No information shall be revealed, or used
8
<PAGE>
(except in the performance of Baytree's duties under this Agreement) by Baytree
unless compelled as determined in good faith by counsel to Baytree and with
reasonable notice given to Aladdin.
9. Disclosure. Aladdin agrees that, except as compelled by law, rule or
regulation or as necessary to its attorneys, accountants and other similar
advisors, it will not disclose and will cause the Company not to disclose the
services or advice to be provided by Baytree under this Agreement publicly or to
any third party without the prior written approval of Baytree.
10. Severability. If any provision of this Agreement shall be held or made
invalid by a statute, rule, regulation, decision of a tribunal or otherwise, the
remainder of this Agreement shall not be affected thereby and, to this extent,
the provisions of this Agreement shall be deemed to be severable.
11. Authorization. Aladdin and Baytree represent and warrant that each has
all requisite power and authority, and all necessary authorizations, to enter
into and carry out the terms and provisions of this Agreement.
12. Successors. This Agreement and all rights, liabilities and obligations
hereunder shall be binding upon and inure to the benefit of each party's
successors but may not be assigned without the prior written approval of the
other party. Any such approval shall not be reasonably withheld.
13. Headings. The descriptive headings of the Paragraphs of this Agreement
are inserted for convenience only, do not constitute a part of this Agreement
and shall not affect in any way the meaning or interpretation of this Agreement.
14. No Brokers. Aladdin represents and warrants to Baytree that other than
as disclosed in writing, there are no brokers, representatives or other persons
which have an interest in or claim for compensation due to Baytree from any
transaction contemplated herein.
15. Notices. Any notice or other communication to be given to Aladdin
hereunder may be given by delivering the same in writing to the address set
forth above, and any notice or other communication to be given to Baytree may be
given by delivering the same to Baytree Capital Associates, LLC, 40 wall Street,
New York, New York 10005, Attention: Michael Gardner, Principal, or in each
case, such other address of which a party shall have received notice. Any notice
or other communication hereunder shall be deemed given three days after deposit
in the mail if mailed by certified mail, return receipt requested, or on the day
after deposit with an overnight courier service for next day delivery, or on the
date personally delivered.
Please confirm that the foregoing correctly sets forth our agreement by
signing the enclosed letters in the space provided and returning them to us for
execution, whereupon we will send you a fully executed original letter which
shall constitute a binding agreement as of the date first above written.
Very truly yours,
BAYTREE CAPITAL ASSOCIATES, LLC
9
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By: /s/ Michael Gardner
Michael Gardner, Principal
Agreed to and accepted as of the above date
ALADDIN CORPORATION
By: /s/Jonathan Kahn
Jonathan Kahn, President
10
<PAGE>
Exhibit 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the 25th day of October, 1999 between
Aladdin Systems Holdings, Inc., a Nevada corporation with its principal offices
at 165 Westridge, Watsonville, California (the "Company") and Jonathan Kahn, an
individual residing at c/o Aladdin Systems 165 Westridge, Watsonville,
California (the "Employee").
In consideration of their mutual promises and covenants set forth herein,
and intending to be legally bound hereby, Company and Employee agree as follows:
1. Employment. The Company hereby employs the Employee and the Employee
accepts such employment on the terms and conditions hereinafter set forth.
2. Term. The term of this Agreement shall begin on October 25, 1999 and
shall terminate on October 24, 2002, unless sooner terminated in accordance with
Paragraph 7 below.
3. Duties. The Employee is engaged herein as Chief Executive Officer and
agrees to perform the duties and services incident to that position and such
other or further duties and services of a similar nature as may be reasonably
required of him by the Board of Directors of the Company or the Board's
designee. Employee shall at all times be subject to the supervision of the Board
of Directors of the Company and of such other person as the Board may designate.
The Employee shall devote his full business time, attention, energies and
best efforts to the performance of his duties hereunder and to the promotion of
the business and interests of the Company and of any corporate subsidiaries or
affiliated companies. The foregoing shall not be construed, however, as
preventing the Employee from (a) investing his assets in the operations of the
business in which such investment is made and provided such business (i) is not
in competition with the Company or, (ii) if in competition, such business has a
class of securities registered under the Securities Exchange Act of 1934 and the
interest of Employee therein is solely that of an investor owning not more than
10% of any class of the outstanding equity securities of such business or (b)
from serving on the Board of Directors of any company which does not compete
with the Company or (c) providing consulting services to any company which does
not compete with the Company provided that the providing of such services does
not materially interefere with the performance of Employee duties hereunder.
4. Compensation; Expenses.
(a) Base Salary. The Employee shall be paid a salary at the rate of
not less than $150,000.00 per year (the "Base Salary"). The Base Salary shall be
paid in installments in arrears in accordance with the Company's regular payroll
practices. The Company may, at its discretion,
11
<PAGE>
increase the Employee's Base Salary and his other compensation provided for
herein. Employee shall be entitled to annual increases in Base Salary as
determined by the Board of Directors.
(b) Fringe Benefits.
(i) The Employee shall be entitled to participate in all
insurance, vacation and other fringe benefit programs of the Company to the
extent and on the same terms and conditions as are accorded to other management
employees of the Company, provided, however, that nothing herein shall be deemed
to require grants or awards to Employee under any benefit plans which provide
for awards or grants at the discretion of the Board of Directors or of any
committee or administrator, and that entitlement to vacations shall be governed
solely by clause (ii) of this subparagraph (b).
(ii) The Employee shall be entitled in each calendar year
commencing with 1999 to a vacation in accordance with Aladdin's standard
vacation policy of not less than three (3) weeks (pro rated during 1999),
without loss of or reduction in his compensation. Each vacation shall be taken
by the Employee at such time or times as agreed upon by the Company and
Employee. Any portion of Employee's vacation not used during any calendar year
shall be carried forward, provided that Employee may not take more than six (6)
weeks paid vacation during any calendar year.
(c) Business Expenses. The Company will pay, or reimburse the
Employee, for all ordinary and reasonable out-of-pocket business expenses
incurred by Employee in connection with his performance of services hereunder
during the Employment Term in accordance with the Company's expense
authorization and approval procedures then in effect upon presentation to the
Company of an itemized account and written proof of such expenses.
(d) Options. Employee shall be entitled to receive options and other
equity based incentives, pursuant to the Company's 1999 Long Term Incentive
Program, as and if determined, from time to time, by the Board of Directors.
(e) Entire Compensation. The compensation provided for in this
Agreement is in full payment of the services to be rendered by the Employee to
the Company hereunder.
5. Death or Total Disability of the Employee.
(a) Death. In the event of the death of the Employee during the term of
this Agreement, this Agreement shall terminate effective as of the date of the
Employee's death, and the Company shall not have any further obligation or
liability hereunder except that the Company shall pay to Employee's designated
beneficiary or, if none, his estate, the portion, if any, of the Employee's Base
Salary for the period up to the Employee's date of death which remains unpaid.
(b) Total Disability. In the event of the Total Disability (as that term
is hereinafter defined) of the Employee, the Company shall have the right to
terminate the Employee's employment hereunder by giving the Employee 10 days'
written notice thereof and, upon expiration of such 10-day period, the Company
shall not have any further obligation or liability under this Agreement except
that the Company shall pay to the Employee the portion, if any, of the
Employee's Base Salary for the period up to the date of termination which
remains unpaid, provided that if the Employee,
12
<PAGE>
during any period of disability, receives any periodic payments representing
lost compensation under any health and accident policy or under any salary
continuation insurance policy, the premiums for which have been paid by the
Company, the amount of Base Salary that the Employee would be entitled to
receive from the Company during such period of disability shall be decreased by
the amounts of such payments.
The term "Total Disability," when used herein, shall mean a mental,
emotional or physical condition which either (i) has rendered the Employee for a
period of 120 consecutive days, or for a total of 180 days during any period of
24 consecutive months, during the term of this Agreement, or (ii) in the
reasonable opinion of the Company is expected to render the Employee, for a
period of 4 months, unable or incompetent to carry out, on a substantially
full-time basis, the job responsibilities he held or tasks that he was assigned
at the time the disability was incurred. The Employee agrees, in the event of
any dispute as to the determination made pursuant to this paragraph, to submit
to a physical or other examination by a licensed physician selected by the
Company, the cost of which examination shall be paid by the Company.
Any question as to the existence of the Disability of the Employee as to
which the Company and the Employee cannot agree shall be determined in writing
by a qualified independent physician mutually acceptable to the Employee and the
Company. If the Employee and the Company cannot agree as to a qualified
independent physician, each shall appoint a physician and those two physicians
shall select a third who shall make such termination.
6. Termination of Employment. In addition to termination pursuant to
paragraph 5, the Company may discharge the Employee and thereby terminate his
employment hereunder for the following reasons ("For Cause"): (i) habitual
intoxication which materially affects the Employee's performance; (ii) drug
addiction; (iii) conviction of a felony adversely affecting the Company or the
Employee's ability to perform his duties hereunder; (iv) adjudication as an
incompetent; (v) misappropriation of corporate funds or other acts of
dishonesty; or (vi) the Employee's breach of this Agreement in any other
material respect.
In the event that the Company shall discharge the Employee pursuant to
this paragraph 6, the Company shall not have any further obligations or
liability under this Agreement.
In the event of either a breach of this Agreement by the Company or a
change in control of the Company, as defined below, at Employee's option,
Employee shall have the right to terminate this Agreement. Upon such election to
terminate by Employee: (a) the provisions of Section 8 herein shall be deemed
terminated and (b) Employee shall receive a lump sum payment from the Company
which shall equal to (i) the total of Employee's salary plus all incentive
compensation for the remaining portion of the term of this Agreement, plus (ii)
the cash value of all benefits which would have been received by Employee for
the remaining portion of the term of this Agreement, plus (ii) the cash value of
all unexercised stock options (whether or not vested) or the cashless exercise
value thereof. For the purposes of this Section, a "change in control of the
Company" shall be deemed to occur upon the transfer of ownership of 35% or more
of the voting control of the Company.
7. Non-Disclosure.
13
<PAGE>
(a) Non-Disclosure. The Employee recognizes and acknowledges that he
will have access to certain confidential information of the Company and that
such information constitutes valuable, special and unique property of the
Company. The Employee agrees that he will not, for any reason or purpose
whatsoever, during or after the term of his employment, use any of such
confidential information or disclose any of such confidential information to any
party without express authorization of the Company, except as necessary in the
ordinary course of performing his duties hereunder. The obligation of
confidentiality imposed by this subparagraph shall not apply to information
which appears in issued patents or printed publications or which otherwise
becomes generally known in the industry through no act of the Employee in breach
of this Agreement.
(b) Inventions, Designs and Product Developments. All inventions,
discoveries, concepts, improvements, formulas, processes, devices, methods,
innovations, designs, ideas and product developments (collectively, the
"Developments"), developed or conceived by Employee, solely or jointly with
others, whether or not patentable or copyrightable, at any time during the
Employment Term or within one year after the termination hereof and which relate
to the actual or planned business activities of the Company and all of the
Employee's right, title and interest therein, shall be the exclusive property of
the Company. The Employee hereby assigns, transfers and conveys to the Company
all of his right, title and interest in and to any and all such Developments.
Employee shall disclose fully, as soon as practicable and in writing, all
Developments to the Board of Directors of the Company. At any time and from time
to time, upon the request of the Company, the Employee shall execute and deliver
to the Company any and all instruments, documents and papers, give evidence and
do any and all other acts which, in the opinion of counsel for the Company, are
or may be necessary or desirable to document such transfer or to enable the
Company to file and prosecute applications for and to acquire, maintain and
enforce any and all patents, trademark registrations or copyrights under United
States or foreign law with respect to any such Developments or to obtain any
extension, validation, reissue, continuance or renewal of any such patent,
trademark or copyright. The Company will be responsible for the preparation of
any such instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Employee for all reasonable expenses the
Employee incurs upon authorization of the Board of Directors of the Company.
8. Non-competition. The Employee agrees that during the term of this
agreement and for a period of one (1) year thereafter, the Employee shall not,
unless acting pursuant hereto or with the prior written consent of the Board of
Directors of the Company, directly or indirectly own, manage, operate, finance,
join, control or participate in the ownership, management, operation, financing
or control of, or be connected as an officer, director, employee, partner,
principal, agent, representative, consultant or otherwise with any business or
enterprise engaged in the business of publishing computer software which
competes with the products of the Company;
provided, however, that this provision shall not be-construed to prohibit
the ownership by the Employee of not more than 10% of any class of the
outstanding equity securities of any corporation which is engaged in any of the
foregoing businesses having a class of securities registered pursuant to the
Securities Exchange Act of 1934. In the event that the provisions of this
Section should ever be adjudicated to exceed the time, geographic, service or
product limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, service or product limitations permitted by applicable law.
14
<PAGE>
9. Equitable Relief; Survival.
(a) The Employee acknowledges that the restrictions contained in
paragraphs 7(a), 7(b) and 8 hereof are, in view of the nature of the business of
the Company, reasonable and necessary to protect the legitimate interests of the
Company, and that any violation of any provisions of those Sections will result
in irreparable injury to the Company. The Employee also acknowledges that the
Company shall be entitled to temporary and permanent injunctive relief, without
the necessity of proving actual damages, and to an equitable accounting of all
earnings, profits and other benefits arising from any such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled. In the event of any such violation, the
Company shall be entitled to commence an action for temporary and permanent
injunctive relief and other equitable relief in any court of competent
jurisdiction and Employee further irrevocably submits to the jurisdiction of any
California State court or Federal court sitting in the Northern District of
California over any suit, action or proceeding arising out of or relating to
paragraph 7 or 8. The Employee hereby waives, to the fullest extent permitted by
law, any objection that he may now or hereafter have to such jurisdiction or to
the venue of any such suit, action or proceeding brought in such a court and any
claim that such suit, action or proceeding has been brought in any inconvenient
forum. Effective service of process may be made upon the Employee by mail under
the notice provisions contained in paragraph 12 hereof.
(b) Survival of Covenants. The provisions of paragraphs 7 and 8
shall survive the termination of this Agreement.
10. Remedies Cumulative; No Waiver. No remedy conferred upon the Company
by this Employment Agreement is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and shall be in addition to
any other remedy given hereunder or now or hereafter existing at law or in
equity. No delay or omission by the Company in exercising any right, remedy or
power hereunder or existing at law or in equity shall be construed as a waiver
thereof;, and any such right, remedy or power may be exercised by the Company
from time to time and as often as may be deemed expedient or necessary by the
Company in its sole discretion.
11. Enforceability. If any provision of this Agreement shall be invalid or
unenforceable, in whole or in part, then such provision shall be deemed to be
modified or restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excised from this Agreement, as
the case may require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law, as if such provision had been originally
incorporated herein as so modified or restricted, or as if such provision had
not been originally incorporated herein, as the case may be.
12. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Company: Copy to:
15
<PAGE>
Aladdin Systems Holdings, Inc. Elias Goodman Shanks & Zizmor, LLP
165 Westridge 370 Lexington Avenue
Watsonville, CA95076-4159 19th Floor
Attention: President New York, NY 10017
Attention: Paul Goodman, Esq.
If to Employee:
Jonathan Kahn
c/o Aladdin Systems
165 Westridge
Watsonville, CA95076-4159
Any party hereto may give any notice, request, demand, claim or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party hereto
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other parties hereto
notice in the manner herein set forth.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
California.
14. Contents of Agreement; Amendment and Assignment. This Agreement sets
forth the entire understanding between the parties hereto with respect to the
subject matter hereof and supersedes and is instead of all other employment
arrangement between the Employee and the Company. This agreement cannot be
changed, modified or terminated except upon written amendment duly executed by
the parties hereto. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, representatives, successors and assigns of the parties hereto, except
that the duties and responsibilities of the Employee hereunder are of a personal
nature and shall not be assignable in whole or in part by the Employee.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on the
date first above written.
ALADDIN SYSTEMS HOLDINGS, INC.
By: /s/ Darryl Lovato
16
<PAGE>
Its: President
EMPLOYEE:
/s/ Jonathan Kahn
17
Exhibit 10.3
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the 25th day of October, 1999 between
Aladdin Systems Holdings, Inc., a Nevada corporation with its principal offices
at 165 Westridge, Watsonville, California (the "Company") and Darryl Lovato, an
individual residing at c/o Aladdin Systems 165 Westridge, Watsonville,
California (the "Employee").
In consideration of their mutual promises and covenants set forth herein,
and intending to be legally bound hereby, Company and Employee agree as follows:
1. Employment. The Company hereby employs the Employee and the Employee
accepts such employment on the terms and conditions hereinafter set forth.
2. Term. The term of this Agreement shall begin on October 25, 1999 and
shall terminate on October 24, 2002, unless sooner terminated in accordance with
Paragraph 7 below.
3. Duties. The Employee is engaged herein as President and agrees to
perform the duties and services incident to that position and such other or
further duties and services of a similar nature as may be reasonably required of
him by the Board of Directors of the Company or the Board's designee. Employee
shall at all times be subject to the supervision of the Board of Directors of
the Company and of such other person as the Board may designate.
The Employee shall devote his full business time, attention, energies and
best efforts to the performance of his duties hereunder and to the promotion of
the business and interests of the Company and of any corporate subsidiaries or
affiliated companies. The foregoing shall not be construed, however, as
preventing the Employee from (a) investing his assets in the operations of the
business in which such investment is made and provided such business (i) is not
in competition with the Company or, (ii) if in competition, such business has a
class of securities registered under the Securities Exchange Act of 1934 and the
interest of Employee therein is solely that of an investor owning not more than
10% of any class of the outstanding equity securities of such business or (b)
from serving on the Board of Directors of any company which does not compete
with the Company or (c) providing consulting services to any company which does
not compete with the Company provided that the providing of such services does
not materially interefere with the performance of Employee duties hereunder.
4. Compensation; Expenses.
(a) Base Salary. The Employee shall be paid a salary at the rate of
not less than $150,000.00 per year (the "Base Salary"). The Base Salary shall be
paid in installments in arrears in accordance with the Company's regular payroll
practices. The Company may, at its discretion,
18
<PAGE>
increase the Employee's Base Salary and his other compensation provided for
herein. Employee shall be entitled to annual increases in Base Salary as
determined by the Board of Directors.
(b) Fringe Benefits.
(i) The Employee shall be entitled to participate in all
insurance, vacation and other fringe benefit programs of the Company to the
extent and on the same terms and conditions as are accorded to other management
employees of the Company, provided, however, that nothing herein shall be deemed
to require grants or awards to Employee under any benefit plans which provide
for awards or grants at the discretion of the Board of Directors or of any
committee or administrator, and that entitlement to vacations shall be governed
solely by clause (ii) of this subparagraph (b).
(ii) The Employee shall be entitled in each calendar year
commencing with 1999 to a vacation in accordance with Aladdin's standard
vacation policy of not less than three (3) weeks (pro rated during 1999),
without loss of or reduction in his compensation. Each vacation shall be taken
by the Employee at such time or times as agreed upon by the Company and
Employee. Any portion of Employee's vacation not used during any calendar year
shall be carried forward, provided that Employee may not take more than six (6)
weeks paid vacation during any calendar year.
(c) Business Expenses. The Company will pay, or reimburse the
Employee, for all ordinary and reasonable out-of-pocket business expenses
incurred by Employee in connection with his performance of services hereunder
during the Employment Term in accordance with the Company's expense
authorization and approval procedures then in effect upon presentation to the
Company of an itemized account and written proof of such expenses.
(d) Options. Employee shall be entitled to receive options and
other equity based incentives, pursuant to the Company's 1999 Long Term
Incentive Program, as and if determined by the Board of Directors.
(e) Entire Compensation. The compensation provided for in this
Agreement is in full payment of the services to be rendered by the Employee to
the Company hereunder.
5. Death or Total Disability of the Employee.
(a) Death. In the event of the death of the Employee during the term of
this Agreement, this Agreement shall terminate effective as of the date of the
Employee's death, and the Company shall not have any further obligation or
liability hereunder except that the Company shall pay to Employee's designated
beneficiary or, if none, his estate, the portion, if any, of the Employee's Base
Salary for the period up to the Employee's date of death which remains unpaid.
(b) Total Disability. In the event of the Total Disability (as that term
is hereinafter defined) of the Employee, the Company shall have the right to
terminate the Employee's employment hereunder by giving the Employee 10 days'
written notice thereof and, upon expiration of such 10-day period, the Company
shall not have any further obligation or liability under this Agreement except
that the Company shall pay to the Employee the portion, if any, of the
Employee's Base Salary for the period up to the date of termination which
remains unpaid, provided that if the Employee,
19
<PAGE>
during any period of disability, receives any periodic payments representing
lost compensation under any health and accident policy or under any salary
continuation insurance policy, the premiums for which have been paid by the
Company, the amount of Base Salary that the Employee would be entitled to
receive from the Company during such period of disability shall be decreased by
the amounts of such payments.
The term "Total Disability," when used herein, shall mean a mental,
emotional or physical condition which either (i) has rendered the Employee for a
period of 120 consecutive days, or for a total of 180 days during any period of
24 consecutive months, during the term of this Agreement, or (ii) in the
reasonable opinion of the Company is expected to render the Employee, for a
period of 4 months, unable or incompetent to carry out, on a substantially
full-time basis, the job responsibilities he held or tasks that he was assigned
at the time the disability was incurred. The Employee agrees, in the event of
any dispute as to the determination made pursuant to this paragraph, to submit
to a physical or other examination by a licensed physician selected by the
Company, the cost of which examination shall be paid by the Company.
Any question as to the existence of the Disability of the Employee as to
which the Company and the Employee cannot agree shall be determined in writing
by a qualified independent physician mutually acceptable to the Employee and the
Company. If the Employee and the Company cannot agree as to a qualified
independent physician, each shall appoint a physician and those two physicians
shall select a third who shall make such termination.
6. Termination of Employment. In addition to termination pursuant to
paragraph 5, the Company may discharge the Employee and thereby terminate his
employment hereunder for the following reasons ("For Cause"): (i) habitual
intoxication which materially affects the Employee's performance; (ii) drug
addiction; (iii) conviction of a felony adversely affecting the Company or the
Employee's ability to perform his duties hereunder; (iv) adjudication as an
incompetent; (v) misappropriation of corporate funds or other acts of
dishonesty; or (vi) the Employee's breach of this Agreement in any other
material respect.
In the event that the Company shall discharge the Employee pursuant to
this paragraph 6, the Company shall not have any further obligations or
liability under this Agreement.
In the event of either a breach of this Agreement by the Company or a
change in control of the Company, as defined below, at Employee's option,
Employee shall have the right to terminate this Agreement. Upon such election to
terminate by Employee: (a) the provisions of Section 8 herein shall be deemed
terminated and (b) Employee shall receive a lump sum payment from the Company
which shall equal to (i) the total of Employee's salary plus all incentive
compensation for the remaining portion of the term of this Agreement, plus (ii)
the cash value of all benefits which would have been received by Employee for
the remaining portion of the term of this Agreement, plus (ii) the cash value of
all unexercised stock options (whether or not vested) or the cashless exercise
value thereof. For the purposes of this Section, a "change in control of the
Company" shall be deemed to occur upon the transfer of ownership of 35% or more
of the voting control of the Company.
7. Non-Disclosure.
20
<PAGE>
(a) Non-Disclosure. The Employee recognizes and acknowledges that he
will have access to certain confidential information of the Company and that
such information constitutes valuable, special and unique property of the
Company. The Employee agrees that he will not, for any reason or purpose
whatsoever, during or after the term of his employment, use any of such
confidential information or disclose any of such confidential information to any
party without express authorization of the Company, except as necessary in the
ordinary course of performing his duties hereunder. The obligation of
confidentiality imposed by this subparagraph shall not apply to information
which appears in issued patents or printed publications or which otherwise
becomes generally known in the industry through no act of the Employee in breach
of this Agreement.
(b) Inventions, Designs and Product Developments. All inventions,
discoveries, concepts, improvements, formulas, processes, devices, methods,
innovations, designs, ideas and product developments (collectively, the
"Developments"), developed or conceived by Employee, solely or jointly with
others, whether or not patentable or copyrightable, at any time during the
Employment Term or within one year after the termination hereof and which relate
to the actual or planned business activities of the Company and all of the
Employee's right, title and interest therein, shall be the exclusive property of
the Company. The Employee hereby assigns, transfers and conveys to the Company
all of his right, title and interest in and to any and all such Developments.
Employee shall disclose fully, as soon as practicable and in writing, all
Developments to the Board of Directors of the Company. At any time and from time
to time, upon the request of the Company, the Employee shall execute and deliver
to the Company any and all instruments, documents and papers, give evidence and
do any and all other acts which, in the opinion of counsel for the Company, are
or may be necessary or desirable to document such transfer or to enable the
Company to file and prosecute applications for and to acquire, maintain and
enforce any and all patents, trademark registrations or copyrights under United
States or foreign law with respect to any such Developments or to obtain any
extension, validation, reissue, continuance or renewal of any such patent,
trademark or copyright. The Company will be responsible for the preparation of
any such instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Employee for all reasonable expenses the
Employee incurs upon authorization of the Board of Directors of the Company.
8. Non-competition. The Employee agrees that during the term of this
agreement and for a period of one (1) year thereafter, the Employee shall not,
unless acting pursuant hereto or with the prior written consent of the Board of
Directors of the Company, directly or indirectly own, manage, operate, finance,
join, control or participate in the ownership, management, operation, financing
or control of, or be connected as an officer, director, employee, partner,
principal, agent, representative, consultant or otherwise with any business or
enterprise engaged in the business of publishing computer software which
competes with the products of the Company;
provided, however, that this provision shall not be-construed to prohibit
the ownership by the Employee of not more than 10% of any class of the
outstanding equity securities of any corporation which is engaged in any of the
foregoing businesses having a class of securities registered pursuant to the
Securities Exchange Act of 1934. In the event that the provisions of this
Section should ever be adjudicated to exceed the time, geographic, service or
product limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, service or product limitations permitted by applicable law.
21
<PAGE>
9. Equitable Relief; Survival.
(a) The Employee acknowledges that the restrictions contained in
paragraphs 7(a), 7(b) and 8 hereof are, in view of the nature of the business of
the Company, reasonable and necessary to protect the legitimate interests of the
Company, and that any violation of any provisions of those Sections will result
in irreparable injury to the Company. The Employee also acknowledges that the
Company shall be entitled to temporary and permanent injunctive relief, without
the necessity of proving actual damages, and to an equitable accounting of all
earnings, profits and other benefits arising from any such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled. In the event of any such violation, the
Company shall be entitled to commence an action for temporary and permanent
injunctive relief and other equitable relief in any court of competent
jurisdiction and Employee further irrevocably submits to the jurisdiction of any
California State court or Federal court sitting in the Northern District of
California over any suit, action or proceeding arising out of or relating to
paragraph 7 or 8. The Employee hereby waives, to the fullest extent permitted by
law, any objection that he may now or hereafter have to such jurisdiction or to
the venue of any such suit, action or proceeding brought in such a court and any
claim that such suit, action or proceeding has been brought in any inconvenient
forum. Effective service of process may be made upon the Employee by mail under
the notice provisions contained in paragraph 12 hereof.
(b) Survival of Covenants. The provisions of paragraphs 7 and 8
shall survive the termination of this Agreement.
10. Remedies Cumulative; No Waiver. No remedy conferred upon the Company
by this Employment Agreement is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and shall be in addition to
any other remedy given hereunder or now or hereafter existing at law or in
equity. No delay or omission by the Company in exercising any right, remedy or
power hereunder or existing at law or in equity shall be construed as a waiver
thereof;, and any such right, remedy or power may be exercised by the Company
from time to time and as often as may be deemed expedient or necessary by the
Company in its sole discretion.
11. Enforceability. If any provision of this Agreement shall be invalid or
unenforceable, in whole or in part, then such provision shall be deemed to be
modified or restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excised from this Agreement, as
the case may require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law, as if such provision had been originally
incorporated herein as so modified or restricted, or as if such provision had
not been originally incorporated herein, as the case may be.
12. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Company: Copy to:
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Aladdin Holdings, Inc. Elias Goodman Shanks & Zizmor, LLP
165 Westridge 370 Lexington Avenue
Watsonville, CA95076-4159 19th Floor
Attention: Jonathan Kahn New York, NY 10017
Attention: Paul Goodman, Esq.
If to Employee:
Darryl Lovato
c/o Aladdin Systems
165 Westridge
Watsonville, CA95076-4159
Any party hereto may give any notice, request, demand, claim or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party hereto
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other parties hereto
notice in the manner herein set forth.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
California.
14. Contents of Agreement; Amendment and Assignment. This Agreement sets
forth the entire understanding between the parties hereto with respect to the
subject matter hereof and supersedes and is instead of all other employment
arrangement between the Employee and the Company. This agreement cannot be
changed, modified or terminated except upon written amendment duly executed by
the parties hereto. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, representatives, successors and assigns of the parties hereto, except
that the duties and responsibilities of the Employee hereunder are of a personal
nature and shall not be assignable in whole or in part by the Employee.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on the
date first above written.
ALADDIN SYSTEMS HOLDINGS, INC.
By: /s/ Jonathan Kahn
-------------------------------------
Its Chief Executive Officer
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EMPLOYEE:
/s/ Darryl Lovato
-------------------------------------
Exhibit 10.4
ALADDIN SYSTEMS HOLDINGS, INC.
1999 STOCK OPTION PLAN
SECTION 1. PURPOSE
The purpose of the Plan is to offer selected employees, directors and
consultants an opportunity to acquire a proprietary interest in the success of
Aladdin Systems Holdings, Inc.(the "Company"), or to increase such interest, to
encourage such selected persons to remain in the employ of the Company and to
attract new employees with outstanding qualifications by purchasing Shares of
the Company's Common Stock. The Plan provides for the grant of Options to
purchase Shares. Options granted under the Plan may include Nonstatutory Options
as well as Incentive Stock Options intended to qualify under section 422 of the
Internal Revenue Code.
SECTION 2. DEFINITIONS
(a) "Board of Directors" shall mean the Board of Directors of the Company,
as constituted from time to time.
(b) "Change of Control" shall mean the occurrence of any of the following
events:
(i) the consummation of the acquisition of fifty-one percent (51%)
or more of the outstanding stock of the Company by one person or by two or
more persons acting as a partnership, limited partnership, syndicate or
other group pursuant to a tender offer validly made under any federal or
state law (other than a tender offer by the Company);
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<PAGE>
(ii) the consummation of a merger, consolidation or other
reorganization of the Company (other than a reincorporation of the
Company), if after giving effect to such merger, consolidation or other
reorganization of the Company, the stockholders of the Company immediately
prior to such merger, consolidation or other reorganization do not
represent a majority in interest of the holders of voting securities (on a
fully diluted basis) with the ordinary voting power to elect directors of
the surviving or resulting entity after such merger, consolidation or
other reorganization:
(iii) the sale of all or substantially all of the assets of the
Company to a third party who is not an affiliate (including a Parent or
Subsidiary) of the Company; or
(iv) the dissolution of the Company pursuant to action validly taken
by the stockholders of the company in accordance with applicable state
law.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Committee" shall mean a committee of the Board of Directors which is
authorized to administer the Plan under Section 3. After the initial public
offering of the Company's common stock, the Committee shall have membership
composition which enables the Plan to qualify under Rule 16b-3 with regard to
the grant of options to persons who are subject to Section 16 of the Securities
Exchange Act of 1934.
(e) "Company" shall mean Aladdin Systems Holdings, Inc., a Delaware
corporation.
(f) "Disability" shall mean that an Optionee is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment.
(g) "Employee shall mean (i) any individual who is a common-law employee
of the Company or of a Subsidiary, (ii) a member of the Board of Directors, or
(iii) a consultant who performs services for the Company or a Subsidiary.
Service as a member of the Board of Directors or as a consultant shall be
considered employment for all purposes of the Plan except the second sentence of
Section 4(a).
(h) "Exercise Price" shall mean the amount for which one Share may be
purchased upon exercise of an option, as specified by the Committee in the
applicable Stock option Agreement.
(i) "Fair Market Value" shall mean the fair market value of a Share, as
determined by the Committee in good faith. Such determination shall be
conclusive and binding on all persons.
(j) "ISO" shall mean an employee incentive stock option described in Code
section 411(b).
(k) "Nonstatutory Option" shall mean an employee stock option that is not
an ISO.
(l) "Option" shall mean an ISO or Nonstatutory Option granted under the
Plan and entitling the holder to purchase Shares.
(m) "Optionee" shall mean an individual who holds an Option.
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(n) "Plan" shall mean this Aladdin Systems Holdings 1999 Stock Option
Plan.
(o) "Service" shall mean service as an Employee.
(p) "Share" shall mean one share of Stock, as adjusted in accordance with
Section 8 (if applicable).
(q) "Stock" shall mean the common stock of the Company.
(r) "Stock Option Agreement" shall mean the agreement between the Company
and an Optionee which contains the terms, conditions and restrictions pertaining
to his or her Option.
(s) "Subsidiary" shall mean any corporation, of which the Company and/or
one or more other Subsidiaries own not less than 50 percent of the total
combined voting power of all classes of outstanding stock of such corporation. A
corporation that attains the status of a Subsidiary on a date after the adoption
of the Plan shall be considered a Subsidiary commencing as of such date.
SECTION 3. ADMINISTRATION.
(a) Committee Membership. The Plan shall be administered by the Committee,
which shall consist of members of the Board of Directors. The members of the
Committee shall be appointed by the Board of Directors. If no Committee has been
appointed, the entire Board of Directors shall constitute the Committee.
(b) Committee Procedures. The Board of Directors shall designate one of
the members of the Committee as chairperson. The Committee may hold meetings at
such times and places as it shall determine. The acts of a majority of the
Committee members present at meetings at which a quorum exists, or acts reduced
to or approved in writing by all Committee members, shall be valid acts of the
Committee.
(c) Committee Responsibilities. Subject to the provisions of the Plan, the
Committee shall have full authority and discretion to take the following
actions:
(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms relating
to the Plan;
(iii) To authorize any person to execute, on behalf of the Company,
any instrument required to carry out the purposes of the Plan;
(iv) To determine when Options are to be granted under the Plan;
(v) To select the Optionees;
(vi) To determine the number of Shares to be made subject to each
Option;
(vii) To prescribe the terms and conditions of each option,
including (without limitation) the Exercise Price, the vesting schedule,
to determine whether such Option is to be classified as
26
<PAGE>
an ISO or as a Nonstatutory Option, and to specify the provisions of the
Stock Option Agreement relating to such Option;
(viii) To amend or terminate any outstanding Stock Option Agreement;
(ix) To determine the disposition of an Option in the event of an
Optionee's divorce or dissolution of marriage;
(x) To correct any defect, supply any omission, or reconcile any
inconsistency in the Plan and any Option;
(xi) To prescribe the consideration for the grant of each Option
under the Plan and to determine the sufficiency of such consideration; and
(xii) To take any other actions deemed necessary or advisable for
the administration of the Plan.
All decisions, interpretations and other actions of the Committee shall be
final and binding on all Optionees, and all persons deriving their rights from
an Optionee. No member of the Committee shall be liable for any action that he
or she has taken or has failed to take in good faith with respect to the Plan or
any Option.
(d) Financial Reports. To the extent required by applicable law, and not
less often than annually, the Company shall furnish to Optionees, Company
financial statements including a balance sheet regarding the Company's financial
condition and results of operations, unless such Optionees have duties with the
Company that assure them access to equivalent information. Such financial
statements need not be audited.
SECTION 4. ELIGIBILITY.
(a) General Rule. Only Employees, as defined in Section 2(g), shall be
eligible for designation as Optionees by the Committee. In addition, only
individuals who are employed as common-law employees by the Company or a
subsidiary shall be eligible for the grant of ISOs.
(b) Ten-Percent Shareholders. An Employee who owns more than 10 percent of
the total combined voting power of all classes of outstanding stock of the
Company or any of its Subsidiaries shall not be eligible for designation as an
Optionee unless (i) the Exercise Price for an ISO (and an NSO to the extent
required by applicable law) is at least 110 percent of the Fair Market Value of
a Share on the date of grant, and (ii) in the case of an ISO, such ISO by its
terms is not exercisable after the expiration of five years from the date of
grant.
(c) Attribution Rules. For purposes of Subsection (b) above, in
determining stock ownership, an Employee shall be deemed to own the stock owned,
directly or indirectly, by or for his brothers, sisters, spouse, ancestors and
lineal descendants. Stock owned, directly or indirectly, by or
27
<PAGE>
for a corporation, partnership, estate or trust shall be deemed to be owned
proportionately by or for its shareholders, partners or beneficiaries. Stock
with respect to which such Employee holds an option shall not be counted.
(d) Outstanding Stock. For purposes of Subsection (b) above, "outstanding
stock" shall include all stock actually issued and outstanding immediately after
the grant. "Outstanding stock" shall not include shares authorized for issuance
under outstanding options held by the Employee or by any other person.
SECTION 5. STOCK SUBJECT TO PLAN.
(a) Basic Limitation. Shares offered under the Plan shall be authorized
but unissued Shares. The aggregate number of Shares which may be issued under
the Plan (upon exercise of Options) shall not exceed two million (2,000,000)
Shares, subject to adjustment pursuant to Section 8. The number of Shares which
are subject to Options outstanding at any time under the Plan shall not exceed
the number of Shares which then remain available for issuance under the Plan.
The Company, during the term of the Plan, shall at all times reserve and keep
available sufficient Shares to satisfy the requirements of the Plan.
(b) Additional Shares. In the event that any outstanding Option for any
reason expires or is canceled or otherwise terminated, the Shares allocable to
the unexercised portion of such Option shall again be available for the purposes
of the Plan.
SECTION 6. TERMS AND CONDITIONS OF OPTIONS.
(a) Stock Option Agreement. Each grant of an Option under the Plan shall
be evidenced by a Stock Option Agreement between the Optionee and the Company.
Such Option shall be subject to all applicable terms and conditions of the Plan
and may be subject to any other terms and conditions which are not inconsistent
with the Plan and which the Committee deems appropriate for inclusion in a Stock
Option Agreement. The provisions of the various Stock Option Agreements entered
into under the Plan need not be identical.
(b) Number of Shares. Each Stock Option Agreement shall specify the number
of Shares that are subject to the Option and shall provide for the adjustment of
such number in accordance with section 8. The Stock Option Agreement shall also
specify whether the Option is an ISO or a Nonstatutory Option.
(c) Exercise Price. Each Stock Option Agreement shall specify the Exercise
Price. The Exercise Price of an ISO shall not be less than one hundred percent
(100%) of the Fair Market Value of a Share on the date of grant. To the extent
required by applicable law, the Exercise Price of a
28
<PAGE>
Nonstatutory Option shall not be less than eighty-five percent (85%) of the Fair
Market Value of a Share on the date of grant. Subject to the preceding two
sentences, the Exercise Price under any Option shall be determined by the
Committee in its sole discretion. The Exercise Price shall be payable in a form
described in Section 7.
(d) Withholding Taxes. As a condition to the exercise of an Option, the
Optionee shall make such arrangements as the Committee may require for the
satisfaction of any federal, state, local or foreign withholding tax obligations
that may arise in connection with such exercise. The Optionee shall also make
such arrangements as the Committee may require for the satisfaction of any
federal, state, local or foreign withholding tax obligations that may arise in
connection with the disposition of Shares acquired by exercising an Option.
(e) Exercisability. Each Stock Option Agreement shall specify the date
when all or any installment of the Option is to become exercisable. To the
extent required by applicable law, an Option shall become exercisable no less
rapidly than the rate of 20% per year for each of the first five years from the
date of grant. Subject to the preceding sentence, the exercisability of any
Option shall be determined by the Committee in its sole discretion.
(f) Term. The Stock Option Agreement shall specify the term of the Option.
The term shall not exceed ten (10) years from the date of grant and may be
required to be shorter as provided in Section 4(b). Subject to the preceding
sentence, the Committee at its sole discretion shall determine when an Option is
to expire.
(g) Nontransferability. No Option shall be transferable by the Optionee
other than by will or by the laws of descent and distribution. An Option may be
exercised during the lifetime of the optionee only by him or by his guardian or
legal representative. No Option or interest therein may be transferred,
assigned, pledged or hypothecated by the Optionee during his lifetime, whether
by operation of law or otherwise, or be made subject to execution, attachment or
similar process.
(h) Exercise of Options on Termination of Service. Each Option shall set
forth the extent to which the Optionee shall have the right to exercise the
Option following termination of the Optionee's service with the Company and its
Subsidiaries. Such provisions shall be determined in the sole discretion of the
Committee, need not be uniform among all Options issued pursuant to the Plan,
and may reflect distinctions based on the reasons for termination of employment.
Notwithstanding the foregoing, and to the extent required by applicable law,
each Option shall provide that the Optionee shall have the right to exercise the
vested portion of any Option held at termination for at least 30 days following
termination of service with the Company for any reason, and that the Optionee
shall have the right to exercise the Option for at least six months if the
Optionee's service terminates due to death or Disability.
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<PAGE>
(i) No Rights as a Shareholder. An Optionee, or a transferee of an
Optionee, shall have no rights as a shareholder with respect to any Shares
covered by an option until the date of the issuance of a stock certificate for
such Shares.
(j) Modification, Extension and Assumption of Options. Within the
limitations of the Plan, the Committee may modify, extend or assume outstanding
Options or may accept the cancellation of outstanding Options (whether granted
by the Company or another issuer) in return for the grant of new Options for the
same or a different number of Shares and at the same or a different Exercise
Price or for other consideration.
(k) Restrictions on Transfer of Shares. Any Shares issued upon exercise of
an Option shall be subject to such rights of repurchase, rights of first refusal
and other transfer restrictions as the Committee may determine. Such
restrictions shall be set forth in the applicable Stock Option Agreement and
shall apply in addition to any restrictions that may apply to holders of Shares
generally.
SECTION 7. PAYMENT FOR SHARES
(a) General Rule. The entire Exercise Price of Shares issued under the
Plan shall be payable in lawful money of the United States of America at the
time when such Shares are purchased, except as provided in Subsections (b), (c)
and (d) below.
(b) Surrender of Stock. To the extent that a Stock Option Agreement so
provides, payment may be made all or in part with Shares which have already been
owned by the Optionee or the Optionee's representative for any time period
specified by the Committee and which are surrendered to the Company in good form
for transfer. Such Shares shall be valued at their Fair Market Value on the date
when the new Shares are purchased under the Plan.
(c) Promissory Notes. To the extent that a Stock Option Agreement so
provides, payment may be made all or in part with a full recourse promissory
note executed by the Optionee. The interest rate and other terms and conditions
of such note shall be determined by the Committee. The Committee may require
that the Optionee pledge his or her Shares to the Company for the purpose of
securing the payment of such note. In no event shall the stock certificate(s)
representing such Shares be released to the optionee until such note is paid in
full.
(d) Cashless Exercise. To the extent that a Stock Option Agreement so
provides and a public market for the Shares exists, payment may be made all or
in part by delivery (on a form prescribed by the Committee) of an irrevocable
direction to a securities broker to sell Shares and to deliver all or part of
the sale proceeds to the Company in payment of the aggregate Exercise Price.
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SECTION 8. ADJUSTMENT OF SHARES.
(a) General. In the event of a subdivision of the outstanding Stock, a
declaration of a dividend payable in Shares, a declaration of a dividend payable
in a form other than Shares in an amount that has a material effect on the value
of Shares, a combination or consolidation of the outstanding Stock into a lesser
number of Shares, a recapitalization, a reclassification or a similar
occurrence, the Committee shall make appropriate adjustments in one or more of
(i) the number of Shares available for future grants under Section 5, (ii) the
number of Shares covered by each outstanding Option or (iii) the Exercise Price
under each outstanding Option.
(b) Reorganizations In the event of: (1) a dissolution or liquidation of
the Company; (2) a merger or consolidation in which the Company is not the
surviving corporation; (3) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise, or (4) any
other capital reorganization in which more than fifty percent (50%) of the
shares of the Company entitled to vote are exchanged, then at the sole
discretion of the Board and to the extent permitted by applicable law: (i) any
surviving corporation shall assume any options outstanding under the Plan or
shall substitute similar options for those outstanding under the Plan, or (ii)
such options shall continue in full force and effect. In the event any surviving
corporation refuses to assume or continue such options, or to substitute similar
options for those outstanding under the Plan, then, with respect to options held
by persons then performing services as employees, consultants or directors for
the Company, the time during which such options may be exercised shall be
accelerated and the options terminated if not exercised within three (3) months
of such event. Notwithstanding the foregoing, at the discretion of the
Committee, individual Stock Option Agreements may permit acceleration of vesting
under specified circumstances.
(c) Reservation of Rights. Except as provided in this Section 8, an
Optionee shall have no rights by reason of (i) any subdivision or consolidation
of shares of stock of any class, (ii) the payment of any dividend or (iii) any
other increase or decrease in the number of shares of stock of any class. Any
issue by the Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or Exercise Price of Shares
subject to an Option. The grant of an Option pursuant to the Plan shall not
affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure, to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
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SECTION 9. LEGAL REQUIREMENTS.
Shares shall not be issued under the Plan unless the issuance and delivery
of such Shares complies with (or is exempt from) all applicable requirements of
law, including (without limitation) the Securities Act of 1933, as amended, the
rules and regulations promulgated thereunder, state securities laws and
regulations, and the regulations of any stock exchange on which the Company's
securities may then be listed.
SECTION 10. NO EMPLOYMENT RIGHTS.
No provision of the Plan, nor any Option granted under the Plan, shall be
construed to give any person any right to become, to be treated as, or to remain
an Employee. The Company and its Subsidiaries reserve the right to terminate any
person's Service at any time and for any reason.
SECTION 11. DURATION AND AMENDMENTS.
(a) Term of the Plan. The Plan, as set forth herein, shall become
effective on the date of its adoption by the Board of Directors, subject to the
approval of the Company's shareholders. In the event that the shareholders fail
to approve the Plan within twelve (12) months after its adoption by the Board of
Directors, any Option grants already made shall be null and void, and no
additional Option grants shall be made after such date. The Plan shall terminate
automatically October 24, 2009, and may be terminated on any earlier date
pursuant to Subsection (b) below.
(b) Right to Amend or Terminate the Plan. The Board of Directors may amend
the Plan at any time and from time to time. Rights and obligations under any
Option granted before amendment of the Plan shall not be materially altered, or
impaired adversely, by such amendment, except with consent of the person to whom
the Option was granted. An amendment of the Plan shall be subject to the
approval of the Company's stockholders only to the extent required by applicable
laws, regulations or rules.
(c) Effect of Amendment or Termination. No Shares shall be issued or sold
under the Plan after the termination thereof, except upon exercise of an Option
granted prior to such termination. The termination of the Plan, or any amendment
thereof, shall not affect any Option previously granted under the Plan.
SECTION 12. EXECUTION.
To record the adoption of the Plan by the Board of Directors, the Company
has caused its authorized officer to execute the same as of October 25, 1999.
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ALADDIN SYSTEMS HOLDINGS, INC.
By /s/ Jonathan Kahn
---------------------------------------------
Jonathan Kahn
Chief Executive Officer
33
Exhibit 10.5
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA,
EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES.
ALADDIN SYSTEMS HOLDINGS, INC.
1999 STOCK OPTION PLAN
(Effective October 25, 1999)
INCENTIVE STOCK OPTION AGREEMENT
Aladdin Systems Holdings, Inc., a Nevada corporation (The "Company"),
hereby grants an option to purchase Shares of its common stock to the optionee
named below. The terms and conditions of the option are set forth in this cover
sheet, in the attachment and in the Company's 1999 Stock Option Plan (the
"Plan").
Date of Option Grant: ____________, 1999
Name of Optionee: _______________________________________________
Optionee's Social Security Number: ____-___-_____
Number of Shares of Common Stock Covered by Option: _____________
Exercise Price per Share:$_______________________________________
Vesting Start Date: _______________, 1999
By signing this cover sheet, you agree to all of the terms and
conditions described in the attached Agreement and in the Plan, a
copy of which is also enclosed.
Optionee: _______________________________________________________
(Signature)
Company: ________________________________________________________
(Signature)
Title: ________________________________________________
Attachment
<PAGE>
ALADDIN SYSTEMS HOLDINGS, INC.
1999 STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
Incentive Stock Option
This option is intended to be an incentive stock option under section 422 of the
Internal Revenue Code and will be interpreted accordingly.
Vesting
Your right to exercise this option vests monthly beginning on the Vesting Start
Date, as shown on the cover sheet; provided, however, no portion of this option
may be exercised prior to the expiration of twelve (12) months from the Date of
Grant, as shown on the cover sheet. The number of Shares which may be purchased
under this option by you at the Purchase Price shall be equal to the difference
between (i) the product (rounded to the nearest integer) of the number of full
months of your continuous employment with the Company (including all days of any
approved leaves of absence) from the Vesting Starting Date times the number of
Shares covered by this option times .02083333, minus (ii) the number of Shares
purchased pursuant to this Option prior to such exercise. The resulting number
of Shares will be rounded to the nearest whole number. No additional Shares will
vest after your Company service has terminated for any reason.
Term
Your option will expire in any event at the close of business at Company
headquarters on the day before the 10th anniversary of the Date of Grant, as
shown on the cover sheet. (It will expire earlier if your Company service
terminates, as described below.)
Regular Termination
If your service as an employee of the Company (or any subsidiary) terminates for
any reason except death or Disability, then your option will expire at the close
of business at Company headquarters on the 30th day after your termination date.
Notwithstanding anything else in this Agreement to the contrary, in the event
that you cease to be employed by the Company within twelve (12) months from the
Date of Grant for any reason all rights to purchase shares under this Option
shall immediately terminate.
Death
If you die as an employee of the Company (or any subsidiary), then your option
will expire at the close of business at Company headquarters on the date six (6)
months after the date of death.
During that 6-month period, your estate or heirs may exercise the vested portion
of your option.
<PAGE>
DisabilityIf your service as an employee of the Company (or any subsidiary)
terminates because of your Disability, then your option will expire at the close
of business at Company headquarters on the date six (6) months after your
termination date.
"Disability" means that you are unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment.
Leaves of Absence
For purposes of this option, your service does not terminate when you go on a
bona fide leave of absence that was approved by the Company in writing, if the
terms of the leave provide for continued service crediting, or when continued
service crediting is required by applicable law. However, for purposes of
determining whether your option is entitled to ISO status, your service will be
treated as terminating 90 days after you went on leave, unless your right to
return to active work is guaranteed by law or by a contract. Your service
terminates in any event when the approved leave ends unless you immediately
return to active work.
The Company determines which leaves count for this purpose, and when your
service terminates for all purposes under the Plan.
Restrictions on Exercise
The Company will not permit you to exercise this option if the issuance of
Shares at that time would violate any law or regulation.
Notice of Exercise
When you wish to exercise this option, you must notify the Company by filing the
proper "Notice of Exercise" form at the address given on the form. Your notice
must specify how many Shares you wish to purchase. Your notice must also specify
how your Shares should be registered (in your name only or in you and your
spouse's names as community property or as joint tenants with right of
survivorship). The Notice will be effective when it is received by the Company.
If someone else wants to exercise this option after your death, that person must
prove to the Company's satisfaction that he or she is entitled to do so.
Periods of Nonexercisability
<PAGE>
Any other provision of this Agreement notwithstanding, the Company shall have
the right to designate one or more periods of time, each of which shall not
exceed 180 days in length, during which this option shall not be exercisable if
the Company determines (in its sole discretion) that such limitation on exercise
could in any way facilitate a lessening of any restriction on transfer pursuant
to the Securities Act or any state securities laws with respect to any issuance
of securities by the Company, facilitate the registration or qualification of
any securities by the Company under the Securities Act or any state securities
laws, or facilitate the perfection of any exemption from the registration or
qualification requirements of the Securities Act or any applicable state
securities laws for the issuance or transfer of any securities. Such limitation
on exercise shall not alter the vesting schedule set forth in this Agreement
other than to limit the periods during which this option shall be exercisable.
Form of Payment
When you submit your notice of exercise, you must include payment of the option
price for the Shares you are purchasing. Payment may be made in one (or a
combination) of the following forms:
o Your personal check, a cashier's check or a money order.
o To the extent that a public market for the Shares exists as determined by the
Company, by delivery (on a form prescribed by the Committee) of an irrevocable
direction to a securities broker to sell Shares and to deliver all or part of
the sale proceeds to the Company in payment of the aggregate Exercise Price.
Withholding Taxes
You will not be allowed to exercise this option unless you make acceptable
arrangements to pay any withholding or other taxes that may be due as a result
of the option exercise or the sale of shares acquired upon exercise of this
option and the sale of the shares.
Restrictions on Resale
In connection with any underwritten public offering by the Company of its equity
securities pursuant to an effective registration statement filed under the 1933
Act, you shall not sell, make any short sale of, loan, hypothecate, pledge,
grant any option for the purchase of, or otherwise dispose or transfer for value
or agree to engage in any of the foregoing transactions with respect to any
shares without the prior written consent of the Company or its underwriters, for
such period of time after the effective date of such registration statement as
may be requested by the Company or such underwriters (not to exceed one
hundred-eighty (180) days).
<PAGE>
In order to enforce the provisions of the foregoing paragraph, the Company may
impose stop-transfer instructions with respect to the shares until the end of
the applicable stand-off period.
You represent and agree that the Shares to be acquired upon exercising this
option will be acquired for investment, and not with a view to the sale or
distribution thereof. In the event that the sale of Shares under the Plan is not
registered under the Securities Act of 1933 but an exemption is available which
requires an investment representation or other representation, you shall
represent and agree at the time of exercise that the Shares being acquired upon
exercising this option are being acquired for investment, and not with a view to
the sale or distribution thereof, and shall make such other representations as
are deemed necessary or appropriate by the Company and its counsel.
Transfer of Option
Prior to your death, only you may exercise this option. You cannot transfer or
assign this option. For instance, you may not sell this option or use it as
security for a loan. If you attempt to do any of these tings, this option will
immediately become invalid. You may, however, dispose of this option in your
will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your option
in any other way.
Retention Rights
Your option or this Agreement do not give you the right to be retained by the
Company (or any subsidiaries) in any capacity. The Company (and any
subsidiaries) reserve the right to terminate your service at any time and for
any reason.
Shareholder Rights
You, or your estate or heirs, have no rights as a shareholder of the Company
until a certificate for your option Shares has been issued. No adjustments are
made for dividends or other rights if the applicable record date occurs before
your stock certificate is issued, except as described in the Plan.
Adjustments
In the event of a stock split, a stock dividend or a similar change in the
Company stock, the number of Shares covered by this option and the exercise
price per
<PAGE>
share may be adjusted pursuant to the Plan. Your option shall be subject to the
terms of the agreement of merger, liquidation or reorganization in the event the
Company is subject to such corporate activity.
Legends
In the event that the Shares under the Plan is not registered under the
Securities Act of 1933 all certificates representing the Shares issued upon
exercise of this option shall, where applicable, have endorsed thereon the
following legends:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH
ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL,
THAT SUCH REGISTRATION IS NOT REQUIRED."
Applicable Law
This Agreement will be interpreted and enforced under the internal laws of the
State of California
The Plan and Other Agreements
The text of the Plan is incorporated in this Agreement by reference. Certain
capitalized terms used in this Agreement are defined in the Plan.
This Agreement and the Plan constitute the entire understanding between you and
the Company regarding this option. Any prior agreements, commitments or
negotiations concerning this option are superseded.
By signing the cover sheet of this Agreement, you agree to all of the terms and
conditions described above and in the Plan.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS FOR THE YEAR ENDED DECEMBER 31, 1998 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIALS STATEMENTS. THE
EARNINGS PER SHARE SHOWN HAVE BEEN ADJUSTED TO REFECT THE 1.580827 CONVERSION
FACTOR APPLIED UPON THE REORGANIZATION.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 60564
<SECURITIES> 0
<RECEIVABLES> 729942
<ALLOWANCES> 0
<INVENTORY> 70491
<CURRENT-ASSETS> 1075928
<PP&E> 1088080
<DEPRECIATION> 649323
<TOTAL-ASSETS> 2063700
<CURRENT-LIABILITIES> 1468685
<BONDS> 0
0
0
<COMMON> 47092
<OTHER-SE> 207778
<TOTAL-LIABILITY-AND-EQUITY> 2063700
<SALES> 8002518
<TOTAL-REVENUES> 8002518
<CGS> 1405496
<TOTAL-COSTS> 7339960
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 175490
<INCOME-PRETAX> 498414
<INCOME-TAX> (81,769)
<INCOME-CONTINUING> 580183
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 580184
<EPS-BASIC> .06
<EPS-DILUTED> .05
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION (UNAUDITED) EXTRACTED FROM
THE CONSOLIDATED FINANCIAL STATEMENTS FOR THE PERIOD COMMENCING JANUARY 1, 1999
AND ENDING SEPTEMBER 30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIALS STATEMENTS. THE NUMBER OF SHARES OF COMMON STOCK SHOWN AND THE
EARNINGS PER SHARE SHOWN HAVE BEEN ADJUSTED TO REFECT THE 1.580827 CONVERSION
FACTOR APPLIED UPON THE REORGANIZATION.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 305246
<SECURITIES> 0
<RECEIVABLES> 744683
<ALLOWANCES> 0
<INVENTORY> 81698
<CURRENT-ASSETS> 1343464
<PP&E> 1262004
<DEPRECIATION> 764514
<TOTAL-ASSETS> 2363454
<CURRENT-LIABILITIES> 777385
<BONDS> 0
0
0
<COMMON> 47092
<OTHER-SE> 1208641
<TOTAL-LIABILITY-AND-EQUITY> 2363454
<SALES> 6719464
<TOTAL-REVENUES> 6719464
<CGS> 1150598
<TOTAL-COSTS> 5511346
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 47820
<INCOME-PRETAX> 1179866
<INCOME-TAX> (179003)
<INCOME-CONTINUING> 100863
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 100863
<EPS-BASIC> .11
<EPS-DILUTED> .09
</TABLE>
