As filed with the Securities and Excange Commission on May 18, 1998.
File No._____________ Commission file number: 0-9476
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FLEXWEIGHT CORPORATION
(Name of Small Business Issuer in Its Charter)
Kansas 48-0680109
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
FLEXWEIGHT CORPORATION 1998 STOCK OPTION PLAN
(Full Title of Plan)
2133 East 9400 South, #151 Sandy, Utah 84093
(Name and Address of Agent for Service)
(801) 944-0701
(Telephone number including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities Amount to be Price Per Offering Registration
to be Registered Registered Share(1) Price(1) Fee
- ----------------------- ------------ --------- ---------- ------------
<S> <C> <C> <C> <C>
Common Stock, $.10 p.v. 700,000 $ 5.625 $3,937,500 $1161.56
Total $3,937,500 $1161.56
(1) Bona Fide estimate of maximum offering price solely for calculating the
registration fee pursuant to Rule 457(c) and (h) of the Securities Act of 1933,
based on the average bid and asked price of the registrant's common stock as of
May 1, 1998, a date within five business days prior to the date of filing of
this registration statement.
</TABLE>
In addition, pursuant to Rule 416(c) promulgated under the Securities Act
of 1933, this Registration Statement covers an indeterminate amount of interests
to be offered or sold pursuant to the Flexweight Corporation 1998 Stock Option
Plan described herein.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the information requirements of the Securities
Exchange Act of 1934 and, in accordance therewith, files reports with the
Securities and Exchange Commission (the "Commission"). The documents listed
below are hereby incorporated by reference in this Registration Statement on
Form S-8; and all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated herein by reference in this Registration Statement on Form
S-8, and shall be a part hereof from the date of the filing of such documents.
(a) The Registrant's Form 10-K/A, filed on January 28, 1998; and
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1996; and
(c) The description of the Common Stock which is contained in the
registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities and Exchange Act of 1934 after the date of
this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered by this Registration Statement have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein be reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated herein by reference modified or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
The common stock of the Company is registered under Section 12 of the
Securities and Exchange Act of 1934, as amended.
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<PAGE>
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Company's Bylaws provides that the Company shall indemnify its officers and
directors for any liability, including reasonable costs of defense, arising out
of certain circumstances.
When a person is sued or prosecuted in a criminal action, either alone
or with others, because he is or was a director or officer of the corporation,
or of another corporation serving at the request of this corporation, in any
proceeding arising out of his alleged misfeasance or nonfeasance in the
performance of his duties on out of any alleged wrongful act against the
corporation or by the corporation, he shall be indemnified for his reasonable
expenses, including attorneys' fees incurred in the defense of the proceedings,
if both of the following conditions exist:
(a) The person sued is successful in whole or in part, or the
proceeding against him is settled with the approval of the
court.
(b) The court finds that his conduct fairly and equitably merits such
indemnity.
The amount of such indemnity which may be assessed against the
corporation, its receiver, or its trustee, by the court in the same or in a
separate proceeding shall be so much of the expenses, including attorneys' fees
incurred in the defense of the proceedings, as the court determines and finds to
be reasonable. Application for such indemnity may be made either by the person
sued or by the attorney or other person rendering services to him in connection
with the defense, and the court may order the fees and expenses to be paid
directly to the attorney or other person, although he is not a party to the
proceeding. Notice of the application for such indemnity shall be served upon
the corporation, its receiver, or its trustee, and upon the plaintiff and other
parties to the proceeding. The court may order notice to be given also to the
stockholders in the manner provided in Article II, Section 2, for giving notice
of stockholders meetings, in such form as the court directs.
According to the Kansas Statutes Chapter 17, Article 63 (Statute 17-6305) the
Corporation has the power to indemnify officers, directors, employees and agents
of the Corporation under certain circumstances. Below is the statute in full:
(a) A corporation shall have power to indemnify any person who
was or is a party, or is threatened to be made a party, to
any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the
corporation, by reason of the fact that such person is or was
a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise,
against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, including
attorney fees, if such person acted in good faith and in a
manner such person reasonably believed to be in or not
opposed to the best interests of the corporation; and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed
to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was
or is a party, or is threatened to be made a party, to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a
<PAGE>
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action or
suit, including attorney fees, if such person acted in good
faith and in a manner such person reasonably believed to be in
or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsections (a) and (b), or in defense of any claim, issue or
matter therein, such director, officer, employee or agent
shall be indemnified against expenses actually and reasonably
incurred by such person in connection therewith, including
attorney fees.
(d) Any indemnification under subsections (a) and (b), unless
ordered by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent
is proper in the circumstances because such director,
officer, employee or agent has met the applicable standard of
conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by the board of directors by
a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or even if obtainable, a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses incurred by a director or officer in defending a
civil or criminal action, suit or proceeding may be paid by
the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer to repay such amount
if it is ultimately determined that the director or officer
is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses incurred by other
employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems
appropriate.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section
shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may
be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in
a person's official capacity and as to action in another
capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would
have the power to indemnify such person against such
liability under the provisions of this section . (h) For
purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power
and authority to indemnify its directors, officers and
employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture,
trust or other
<PAGE>
enterprise, shall stand in the same position under this
section with respect to the resulting or surviving corporation
as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references
to "fines" shall include any excise taxes assessed on a
person with respect to any employee benefit plan; and
references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed
to the best interests of the corporation" as referred to in
this section.
(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to members of the board of directors, officers, employees, or
persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 Articles of Incorporation of the Company(1)
4.2 Amendment to Articles of Incorporation of the Company(2)
4.3 By-Laws of the Company(1)
4.4 The Company's 1998 Stock Option Plan
4.6 Opinion of Kevin Woltjen, Esq. with consent.
4.7 Consent of Jones, Jensen CPA, P.C. independent accountants.
- ------------------------
Item 9. Undertakings
1. The undersigned Registrant hereby undertakes to file during any period
in which offers or sales are being made, a post-effective amendment to this
Registration Statement to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
- 5 -
<PAGE>
2. The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. The undersigned Registrant hereby undertakes to remove from registration
by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
4. The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement related to the securities
offered therein, and the offering of such securities at such time shall be
deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement on Form S-8 to be signed on its behalf
by the undersigned, thereunto duly authorized, in Salt Lake City, Utah, on the
date set forth below.
FLEXWEIGHT CORPORATION
Dated: May 4, 1998 By: s/Walter Sanders
Walter Sanders, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the Company and in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
- ------------------------ ------------------------------ ---------------
/s/ Walter Sanders President, Director May 4, 1998
Walter Sanders, President
/s/Charles(Sonny)Longson Vice-President, Director May 4, 1998
Sonny Longson, Vice-President
/s/Richard Capri Secretary/Treasurer, Director May 4, 1998
Richard Capri, Secretary/Treasurer
The Plan. Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator has duly caused the registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Salt Lake,
State of Utah on May 4, 1998.
FLEXWEIGHT CORPORATION
STOCK OPTION PLAN
By: /s/Walter Sanders
Walter Sanders, Plan Administrator
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<PAGE>
EXHIBIT INDEX
4.4 The Company's 1998 Stock Option Plan
4.6 Opinion of Kevin Woltjen, P.C. with consent.
4.7 Consent of Jones, Jensen CPA, P.C. independent accountants.
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<PAGE>
Exhibit 4.4
FLEXWEIGHT CORPORATION
1998 STOCK OPTION PLAN
Adopted by the Board of Directors: May 4, 1998
1. Purpose.
The purpose of this plan (the "Plan") is to secure for Flexweight
Corporation(the "Company") and its shareholders the benefits arising from
capital stock ownership by employees or officers of, and consultants or advisors
to, the Company corporation who have contributed to the Company in the past and
who are expected to contribute to the Company's future growth and success.
Except where the context otherwise requires, the term "Company" shall include
the parent and all present and future subsidiaries of the Company as defined in
Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended or
replaced from time to time (the "Code").
2. Type of Stock or Options and Administration.
(a) Types of Stock or Options. The shares of Common Stock issued for
services rendered or the stock options granted pursuant to the Plan shall be
authorized by action of the Board of Directors of the Company (the "Board"), or
a Committee (the "Committee") designated by the Board of Directors. The stock
options are non-statutory options and are not intended to meet the requirements
of Section 422 of the Code.
(b) Administration. The Plan will be administered by the Board, whose
construction and interpretation of the terms and provisions of the Plan shall be
final and conclusive. The Board may, to the full extent permitted by or
consistent with applicable laws or regulations (including, without limitation,
applicable state laws and Rule 16b-3 promulgated under the Securities Exchange
Act of 1934 (the "Exchange Act"), or any successor rule ("Rule 16b-3")),
delegate any or all of its powers under the Plan to a Committee appointed by the
Board, and if the Committee is so appointed all references to the "Board" in
this Plan shall mean and relate to such Committee. The Board may in its sole
discretion authorize the issuance of Common Stock for services rendered, or may
grant options to purchase shares of the Company's Common Stock ("Common Stock")
and issue shares upon exercise of such options as provided in the Plan; or the
Board may delegate the power to issue shares or grant options to the Committee.
The Board shall have authority, subject to the express provisions of the Plan,
to construe the respective stock issuance agreements, the option agreements and
the Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, to determine the terms and provisions of the respective stock issuance
agreements or option agreements, which need not be identical, and to make all
other determinations in the judgment of the Board necessary or
<PAGE>
desirable for the administration of the Plan. The Board may correct any defect
or supply any omission or reconcile any inconsistency in the Plan or in any
stock issuance agreement or option agreement in the manner and to the extent it
shall deem expedient to carry the Plan into effect and it shall be the sole and
final judge of such expediency. No director or person acting pursuant to
authority delegated by the Board or the Committee shall be liable for any action
or determination under the Plan made in good faith.
(c) Applicability of Rule 16b-3. Those provisions of the Plan which
make express reference to Rule 16b-3 shall apply only to such persons as are
required to file reports under Section 16(a) of the Exchange Act (a "Reporting
Person").
3. Eligibility
(a) General. Options may be granted to persons who are, at the time of
issuance or grant, employees or officers of, or consultants or advisors to, the
Company; and Common Stock or Options may be issued to consultants or advisors
who have rendered (in the case of stock issuances) or are rendering and are
expected to continue to render (in the case of Options) consulting or advisory
services, including Professional advisory services, to the Company, not
involving a capital raising transaction.
(b) Grant of Options to Officers. The selection of an officer (as the
term "officer" is defined for purposes of Rule 16b-3) as a recipient of either
stock or an option, the timing of the stock issuance or the option grant, the
exercise price of the option and the number of shares subject to the issuance or
the option shall be determined either (i) by the Board, or (ii) by two or more
directors having full authority to act in the matter, each of whom shall be a
"disinterested person". For the purposes of the Plan, a director shall be deemed
to be a "disinterested person" only if such person qualifies as a "disinterested
person" within the meaning of Rule 16b- 3, as such term is interpreted from time
to time.
(c) Issuance of Stock. Stock may be issued only to eligible persons
for (i) services (as defined in Section 3(a) above) which have been rendered
(including incidental expenses incurred in connection with the rendering of
services) to the Company, or (ii) upon the exercise of previously granted stock
options.
4. Stock Subject to Plan.
Subject to adjustment as provided in Section 14 below, the maximum number
of shares of Common Stock of the Company which may be issued and sold under the
Plan, including shares issuable pursuant to the exercise of stock options, is
700,000 shares. If an option granted under the Plan shall expire or terminate
for any reason without having been exercised in full, the unpurchased shares
subject to such option shall again be available for subsequent option grants or
stock issuances under the Plan.
- 2 -
<PAGE>
5. Forms of Stock Issuance Agreements and Option Agreements.
As a condition to the issuance of Stock or the grant of an option under the
Plan, each recipient of either stock or an option shall execute either an
employee or advisor compensation agreement or an option agreement in such form
not inconsistent with the Plan as may be approved by the Board. Such agreements
may differ among recipients.
6. Purchase Price.
(a) General. The stock issuance price and the purchase price per share
of stock deliverable upon the exercise of an option shall be determined by the
Board.
(b) Payment of Purchase Price. Options granted under the Plan may
provide for the payment of the exercise price by delivery of cash or a check to
the order of the Company in an amount equal to the exercise price of such
options, or, to the extent provided in the applicable option agreement, (i) by
delivery to the Company of shares of Common Stock of the Company already owned
and held by the optionee for at least twelve months and having a fair market
value equal in amount to the exercise price of the options being exercised, (ii)
by any other means which the Board determines are consistent with the purpose of
the Plan and with applicable laws and regulations (including, without
limitation, the provisions of Rule 16b-3 and Regulation T promulgated by the
Federal Reserve Board), or (iii) by any combination of such methods of payments.
The fair market value of any shares of the Company's Common Stock or other
non-cash consideration which may be delivered upon exercise of any option shall
be determined by the Board.
7. Option Period.
Each option and all rights thereunder shall expire on such date as shall be
set forth in the applicable option agreement, and options shall be subject to
earlier termination as provided in the Plan.
8. Exercise of Options.
Each option granted under the Plan shall be exercisable either in full or
in installments at such time or times and during such period as shall be set
forth in the agreement evidencing such option, subject to the provisions of the
Plan.
9. Nontransferability of Options.
All options granted to Reporting Persons shall not be assignable or
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<PAGE>
transferable by the person to whom they are granted, either voluntarily or by
operation of law, except by will or the laws of descent and distribution, and,
during the life of the optionee, shall be exercisable only by the optionee;
provided, however, that options may be transferred pursuant to a qualified
domestic relations order (as defined in Rule 16b-3).
10. Effect of Termination of Employment or Other Relationship.
(a) Options. Subject to the provisions of the Plan, the Board shall
determine the period of time during which an optionee or his/her valid assigns
may exercise an option following (i) the termination of the optionee's
employment or other relationship with the Company or (ii) the death or
disability of the optionee, but such period shall in no event be less than three
months. Such periods shall be set forth in the agreement evidencing such option.
(b) Stock. Shares of stock that are issued for services rendered
pursuant to this Plan may not be canceled by the Company; provided that when the
shares are issued, the recipient of the shares shall acknowledge having received
full payment for the services previously rendered and shall waive any right to
additional or different payment by the Company for such services.
11. Additional Provisions.
(a) Additional Option Provisions. The Board may, in its sole
discretion, include additional provisions in option agreements covering options
granted under the Plan, including without limitations restrictions on transfer,
repurchase rights, commitments to pay cash bonuses, to make, arrange for or
guaranty loans or to transfer other property to optionees upon exercise of
options, or such provisions as shall be determined by the Board; provided that
such additional provisions shall not be inconsistent with any other term or
condition of the Plan.
(b) Acceleration, Extension, Etc. The Board may, in its sole
discretion, (i) accelerate the date or dates on which all or any particular
option or options granted under the Plan may be exercised or (ii) extend the
dates during which all, or any particular, option or options granted under the
Plan may be exercised; provided, however, that no such extension shall be
permitted if it would cause the Plan to fail to comply with Rule 16b-3.
12. General Restrictions.
The shares issued pursuant to this Plan and each option shall be subject to
the requirement that if, at any time, counsel to the Company shall determine
that the listing, registration or qualification of the shares, including the
shares subject to such option, upon any
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<PAGE>
securities exchange or under any state or federal law, or that the consent or
approval of any governmental or regulatory body, or that the disclosure of
non-public information or the satisfaction of any other condition is necessary
as a condition of, or in connection with, the issuance or purchase of shares
thereunder, such shares may not be issued or such option may not be exercised,
in whole or in part, unless such listing, registration, qualification, consent
or approval, or satisfaction of such condition shall have been effected or
obtained on conditions acceptable to the Board.
13. Rights as a Shareholder.
The holder of an option shall have no rights as a shareholder with respect
to any shares covered by the option (including, without limitation, any rights
to receive dividends or non-cash distributions with respect to such shares)
until the date of issue of a stock certificate to him or her for such shares. No
adjustment shall be made for dividends or other rights for which the record date
is prior to the date such stock certificate is issued.
14. Adjustment Provisions for Recapitalizations and Related Transactions.
(a) General. If, through or as a result of any merger, consolidation,
sale of all or substantially all of the assets of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar transaction, (i) the outstanding shares of Common Stock
are increased, decreased or exchanged for a different number or kind of shares
or other securities of the Company, or (ii) additional shares or new or
different shares or other securities, of the Company or other non-cash assets
are distributed with respect to such shares of Common Stock or other securities,
an appropriate and proportionate adjustment may be made in (x) the maximum
number and kind of shares reserved for issuance under the Plan, (y) the number
and kind of shares or other securities subject to any then outstanding options
under the Plan, and (z) the price for each share subject to any then outstanding
options under the Plan, without changing the aggregate purchase price as to
which such options remain exercisable. Notwithstanding the foregoing, no
adjustment shall be made pursuant to this Section 14 if such adjustment would
cause the Plan to fail to comply with Rule 16b-3.
(b) Board Authority to Make Adjustments.
Any adjustments under this Section 14 will be made by the Board, whose
determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive. No fractional shares will be
issued under the Plan on account of any such adjustments.
- 5 -
<PAGE>
15. Merger, Consolidation, Asset Sale, Liquidation, Etc.
(a) General. In the event of a consolidation or merger or sale of all
or substantially all of the assets of the Company in which outstanding shares of
Common Stock are exchanged for securities, cash or other property of any other
corporation or business entity, or in the event of a liquidation of the Company,
the Board, or the board of directors of any corporation assuming the obligations
of the Company, may, in its discretion, take any one or more of the following
actions, as to outstanding options: (i) provide that such options shall be
assumed, or equivalent options shall be substituted, by the acquiring or
succeeding corporation (or affiliate thereof), (ii) upon written notice to the
optionees, provide that all unexercised options will terminate immediately prior
to the consummation of such transactions unless exercised by the optionee within
a specified period following the date of such notice, (iii) in the event of a
merger under the terms of which holders of the Common Stock of the Company will
receive upon consummation thereof a cash payment for each share surrendered in
the merger ( "Merger Price"), make or provide for a cash payment to the
optionees equal to the difference between (A) the Merger Price times the number
of shares of Common Stock subject to such outstanding options (to the extent
then exercisable at prices not in excess of the Merger Price) and (B) the
aggregate exercise price of all such outstanding options in exchange for the
termination of such options, and (iv) provide that all or any outstanding
options shall become exercisable in full immediately prior to such event.
(b) Substitute Stock or Options. The Company may issue stock or grant
options under the Plan in substitution for stock or options held by employees
of, or consultants or advisors to, another corporation who become employees of
or consultants or advisors to the Company or a subsidiary of the Company, as the
result of a merger or consolidation of the employing corporation with the
Company or a subsidiary of the Company, or as a result of the acquisition by the
Company, or one of its subsidiaries, of property or stock of the employing
corporation. The Company may direct that substitute stock be issued or options
be granted on such terms and conditions as the Board considers appropriate in
the circumstances.
16. No Special Employment Rights.
Nothing contained in the Plan or in any stock issuance or option shall
confer upon any recipient or optionee any right with respect to the continuation
of his or her employment by the Company or interfere in any way with the right
of the Company at any time to terminate such employment or to increase or
decrease the compensation of the recipient or optionee.
17. Amendment of the Plan.
(a) The Board may at any time, and from time to time, modify or amend
the Plan in any respect, except that if at any time the approval of the
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shareholders of the Company is required under any law or rule, the Board may not
effect such modification or amendment without such approval.
(b) The termination or any modification or amendment of the Plan shall
not, without the consent of a recipient of stock or an optionee, affect his or
her rights under stock or an option previously issued or granted to him or her.
With the consent of the recipient or optionee affected, the Board may amend
outstanding stock agreements or option agreements in a manner not inconsistent
with the Plan. The Board shall have the right to amend or modify the terms and
provisions of the Plan and of any outstanding stock or option to the extent
necessary to ensure the qualifications of the Plan under Rule 16b-3.
18. Withholding.
(a) The Company shall have the right to deduct from payments of any
kind otherwise due to the recipient or optionee any federal, state or local
taxes of any kind required by law to be withheld with respect to any shares
issued or issuable upon exercise of options under the Plan. Subject to the prior
approval of the Company, which may be withheld by the Company in its sole
discretion, the recipient or optionee may elect to satisfy such obligations, in
whole or in part, (i) by causing the Company to withhold shares of Common Stock
otherwise issued or issuable pursuant to the exercise of an option or (ii) by
delivering to the Company shares of Common Stock already owned by the recipient
or the optionee. The shares so delivered or withheld shall have a fair market
value equal to such withholding obligations. The fair market value of the shares
used to satisfy such withholding obligation shall be determined by the Company
as of the date that the amount of tax to be withheld is to be determined. A
recipient or optionee who has made an election pursuant to this Section 18(a)
may only satisfy his or her withholding obligation with shares of Common Stock
which are not subject to any repurchase, forfeiture, unfulfilled vesting or
other similar requirements.
(b) Notwithstanding the foregoing, in the case of a Reporting Person,
no election to use shares for the payment of withholding taxes shall be
effective unless made in compliance with any applicable requirements of Rule
16b-3.
19. Cancellation and New Grant of Options, Etc.
The Board shall have the authority to effect, at any time and from time to
time, with the consent of the affected optionees, (i) the cancellation of any or
all outstanding options under the Plan and the grant in substitution thereof of
new options under the Plan covering the same or different numbers of shares of
Common Stock and having an option exercise price per share which may be lower or
higher than the exercise price per share of the canceled options or (ii) the
amendment of the terms of any and all outstanding options under the Plan to
provide an option exercise price per share which is higher or lower than the
then-current exercise price per share of such outstanding options.
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<PAGE>
20. Effective Date and Duration of the Plan.
(a) Effective Date. The Plan shall become effective when adopted by
the Board. Amendments to the Plan shall become effective when adopted by the
Board. Shares may be issued and options may be granted under the Plan at any
time after the effective date and before the date fixed as the termination date
of the Plan.
(b) Termination. Unless sooner expressly terminated in accordance with
the provisions of the Plan, the Plan shall terminate upon the earlier of (i) the
close of business on the day next preceding the tenth anniversary of the date of
its adoption by the Board, or (ii) the date on which all shares available for
issuance under the Plan shall have been issued pursuant to the issuance of
shares or the exercise or cancellation of options granted under the Plan. Unless
sooner expressly terminated in accordance with the provisions of the Plan, the
Plan shall terminate with respect to options on the date specified in (ii)
above, then options outstanding on such date shall continue to have force and
effect in accordance with the provisions of the instruments evidencing such
options.
21. Provision for Foreign Participants.
The Board of Directors, may, without amending the Plan, modify stock
issuances or options granted to participants who are foreign nationals or
employed outside the United States to recognize differences in laws, rules,
regulations or customs of such foreign jurisdiction with respect to tax,
securities, currency, employee benefit or other matters.
22. Registration of Shares and Options.
In the Board's discretion, the Board may agree with respect to certain
shares and options issued under the Plan, to prepare and file Registration
Statements on Form S-8, which Registration Statements may include reoffer
prospectuses as that term is defined in Form S-8, to register and continue to
keep effectively registered for resale the shares issued as compensation under
the Plan and the shares of Common Stock issued upon the exercise of options
granted under the Plan.
Adopted by the Board of Directors
May 4, 1998
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<PAGE>
Exhibit 4.6
KEVIN S. WOLTJEN
ATTORNEY AT LAW
(ADMITTED IN ILLINOIS ONLY)
900 Jackson Street - Suite 600
Dallas, TX 75202
Telephone: 214-712-5673
Facsimile: 214-712-5674
May 12, 1998
Board of Directors
Flexweight Corporation
2133 East 9400 South - Suite 151 Sandy, UT 84093
To the Board of Directors of Flexweight Corporation:
Flexweight Corporation, a Kansas corporation (the "Company"), has informed me of
its intention to file with the Securities and Exchange Commission ("SEC"), on or
about May 12, 1998, a registration statement on Form S-8 under the Securities
Act of 1933, as amended ("Registration Statement"), concerning the issuance of
700,000 shares (the "Shares") of the Company's common stock, par value $0.10
("Common Stock"), pursuant to an employee benefit plan (the "Plan"). In
connection with the filing of the Registration Statement, you have requested my
opinion regarding the validity of the issuance of such Shares.
This opinion letter (this "Opinion") us governed by, and shall be interpreted in
accordance with the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, limitations, all as more particularly described in the Accord,
and this Opinion should be read in conjunction therewith.
You have represented to m that the Company is current in its filings with the
SEC, that the Company's board of directors has authorized the filing of a Form
S-8 and that the quantity of shares to be included in the Form S-8 is available
for issuance based on the quantity authorized for issuance in the Company's
Articles of Incorporation and on the amount of shares actually issued and
outstanding. Based on these representations and to the best of my knowledge, I
am of the opinion that the Form s-8 is an available for of registration and that
the Shares issuable pursuant to the Plan have been duly and validly authorized
and, upon payment therefor in accordance with the Plan, will be validly issued,
fully paid and nonassessable by the Company. This Opinion is conditioned upon
the above requirements being met.
The opinion set forth above is predicated upon and limited to the correctness of
the assumptions set forth herein and in the Accord, and is further subject to
qualifications, exceptions, and limitations set forth below:
A. I expressly except from the opinion set forth herein any
opinion or position as to whether or to what extent a Kansas
court or any other court would apply Kansas law, or the law of
any other state or jurisdiction, to any particular aspect of
the facts, circumstances and transactions that are the subject
of the opinion herein contained.
B. In expressing the opinion set forth herein, I have assumed the
authenticity and completeness of all corporate documents,
records and instruments provided to me by the /Company and its
representatives. I have assumed the accuracy of all statements
of fact contained therein. I have assumed that the information
provided to me by the Company is correct and that there are
shares available to be issued pursuant to the Plan. I have
further
<PAGE>
assumed the genuineness of signatures (both manual and
conformed), the authenticity of documents submitted as
originals, the conformity to originals of all copies or faxed
copies and the correctness of al such documents.
C. In rendering the opinion that the shares of Common Stock to be
registered pursuant to Form S-8 and issued under the Plan will
be validly issued, fully paid and nonassessable, I assumed
that: (1) the Company's board of directors has exercised good
faith in establishing the value paid for the Shares; (2) all
issuances and cancellation of the capital stock of the Company
will be fully and accurately reflected in the Company's Stock
Records as provided by the Company's transfer agent; and (3)
the consideration, as determined by the Company's Board of
Directors, to be received in exchange for each issuance of
common stock of the Company will have been paid in full and
actually received by the Company when the Shares are actually
issued.
D. I expressly except from the opinion set forth herein any
opinion concerning the need for compliance by any party, and
in particular by the Company, with the provisions of the
securities laws, regulations, and/or rules of the United
States of America, the State of Kansas or any other
jurisdiction with regard to any other issue not expressly
addressed herein, which exclusion shall apply, but not be
limited to, the subsequent tradeability of the Shares on
either state or Federal level.
E. In rendering the opinion that Form S-8 is available, I have
assumed that the Company is satisfying the various substantive
requirements of Form S-8 and I expressly disclaim any opinion
regarding the Company's compliance with such requirements,
whether they be of federal or state origin.
F. The opinion contained in this letter is rendered as of the
date hereof, and I undertake no and disclaim any, obligation
to advise you of any changes in or any new developments which
might affect any matters or opinions set forth herein.
This Opinion may be relied upon by you only in connection with filing of
the Registration Statement and may not be used or relied upon by you or any
other person for any purpose whatsoever, except to the extent authorized in the
Accord, without in each instance my prior written consent. In the event that any
of the facts are different from those which have been furnished to me and upon
which I have relied, the conclusions as set forth above cannot be relied upon.
I hereby consent to the use of this Opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/Kevin S. Woltjen
Kevin S. Woltjen
<PAGE>
Exhibit 4.7
Jones, Jensen, CPA, P.C.
Telephone (801) 328-4408 50 South Main Street Suite 1450
Salt Lake City, Utah 84144
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
I hereby consent to the incorporation by reference in the Registration Statement
on Form S-8 of my report dated May 4,1998, relating to the financial statements
of Flexweight Corporation as of August 31, 1998.
/s/Jones, Jensen, CPA, P.C.
By: Jones, Jensen, CPA, P.C.
May 4, 1998
Salt Lake City, Utah
